1. With regard to the conduct of its servants, as of its Printer;

2. When its privileges have been violated, as in the case of William

Duane,[17] by a libel, or in the case of Nugent,[18] by obtaining and

divulging a treaty while still under seal of secrecy.

It will be observed that these two classes of cases are not sustained

by any text of the Constitution. If sustained at all, it must be by

that principle of universal jurisprudence, and also of natural law,

which gives to every body, whether natural or artificial, the right

to protect its own existence,--in other words, the great right of

self-defence. And I submit that no principle less solid can sustain

this exercise of power. It is not enough to say that such a power

would be _convenient_, highly convenient, or important. _It must be

absolutely essential to the self-preservation of the body_; and even

then, in the absence of any law, it must be open in our country to the

gravest doubts.

“Doubtless,” says Blackstone, “all arbitrary powers, well executed,

are _the most convenient_.”[19] But _mere convenience_ is not a proper

reason, under a free government, for the assumption of powers not

granted; and this is especially the case where the powers are arbitrary

and despotic, and touch the liberty of the citizen.

Now, if the present inquiry were in the House of Representatives, and

were directed against the President or the Secretary of War, on the

ground of negligence or malfeasance at an important moment, it would

be clearly within the jurisdiction of that body, which has the _sole_

power of impeachment; but it would not come within the jurisdiction

of the Senate, until it became the duty of the latter body to try the

impeachment instituted by the House.

But the present inquiry is neither preliminary to impeachment nor on

the trial of an impeachment. It has no such element. It is precisely

the same as if an inquiry should be instituted into the murder of Dr.

Burdell in New York, or into the burning of slaves in Alabama, or into

the banks of New York, or into the conduct of the Supreme Court of

Wisconsin in alleged obstructions of the Fugitive Slave Bill,--with

regard to all which the Senate has no judicial powers. And yet it has

judicial powers in all these cases, precisely to the same extent that

it has in the case of John Brown at Harper’s Ferry.

I know it is said that this power is necessary _in aid of legislation_.

I deny the necessity. _Convenient_, at times, it may be; but

_necessary_, never. We do not drag members of the Cabinet or the

President to testify before a committee, _in aid of legislation_; but

I say, without hesitation, they can claim no immunity which does not

belong equally to the humblest citizen. Mr. Hyatt and Mr. Sanborn

have rights as ample as if they were office-holders. Such a power as

this--which, without the sanction of law, and merely at the will of a

partisan majority, may be employed to ransack the most distant States,

and to drag citizens before the Senate all the way from Wisconsin or

from South Carolina--may be convenient, and to certain persons may seem

to be necessary. Throughout all time alleged necessity has been the

apology for wrong.

“So spake the Fiend, and with _necessity_,

The tyrant’s plea, excused his devilish deeds.”

Such, according to Milton, was the practice among the fallen angels.

Let me be understood as admitting the power of the Senate, where it is

essential to its own protection or the protection of its privileges,

but not where it is required merely in aid of legislation. The

difference is world-wide between what is required for _protection_ and

what is required merely for _aid_; and here I part from Senators with

whom I am proud on other matters to act. They hold that this great

power may be exercised, not merely for the _protection_ of the Senate,

but also for its _aid_ in framing a bill or in maturing any piece of

legislation. To aid a committee of this body merely in a legislative

purpose, a citizen, guilty of no crime, charged with no offence,

presumed to be innocent, honored and beloved in his neighborhood, may

be seized, handcuffed, kidnapped, and dragged away from home, hurried

across State lines, brought here as criminal, and then thrust into

jail. The mere statement of the case shows the dangerous absurdity

of such a claim. “Nephew,” said Algernon Sidney in prison, on the

night before his execution, “I value not my own life a chip; but what

concerns me is, that the _law_ which takes away my life may hang every

one of you, whenever it is thought convenient.” It was a dangerous

_law_ that aroused the indignation of the English patriot. But in the

present case there is not even a law,--nothing but an order made by a

fractional part of Congress.

There are Senators here who pretend to find in the Constitution

the right to carry slaves into the National Territories. That such

Senators should also find in the same Constitution the right to make a

slave of Mr. Hyatt or Mr. Sanborn, or of anybody else, merely to aid

legislation, is not astonishing; but I am at a loss how Senators who

love Freedom can find any such right in the Constitution.

I say nothing now of precedents from the British Parliament, for

they are all more or less inapplicable. We live under a written

Constitution, with certain specified powers; and all these are

restricted by the Tenth Amendment, declaring that “the powers not

delegated to the United States by the Constitution, nor prohibited by

it to the States, are reserved to the States respectively, or to the

people.” But even British precedents have found a critic at home, in

the late Chief Justice of England, Lord Denman, pronouncing judgment

in the great case of _Stockdale_ v. _Hansard_,[20]--and also in the

words of an elegant and authoritative historian, whose life has been

passed in one or the other of the two Houses of Parliament: I refer to

Lord Mahon, now Earl Stanhope, who, in his History of England, thus

remarks:--

“I may observe, in passing, that throughout the reign of George

the Second the privileges of the House of Commons flourished

in the rankest luxuriance.… So long as men in authority are

enabled to go beyond the law, on the plea of their own dignity

and power, _the_ ONLY _limit to their encroachments will be

that of the public endurance_.”[21]

Nothing can be more true than this warning. But Lord Brougham has

expressed himself in words yet stronger, and, if possible, still more

applicable to the present case.

“All rights,” says this consummate orator, “are now utterly

disregarded by the advocates of Privilege, excepting that of

exposing their own short-sighted impolicy and thoughtless

inconsistency. Nor would there be any safety for the people

under their guidance, if unhappily their powers of doing

mischief bore any proportion to their disregard of what is

politic and just.”[22]

With these observations I quit this question, anxious only that the

recent Usurpation of the Senate may not be drawn into a precedent

hereafter.

During Mr. Hyatt’s protracted imprisonment, Mr. Sumner visited

him constantly, and thus became familiar with the condition

of the jail. This led to the introduction of the following

resolution, March 13, 1860.

“_Resolved_, That the Committee on the District of Columbia

be directed to consider the expediency of doing something

to improve the condition of the common jail of the city of

Washington.”

Before the vote on the resolution was taken, Mr. Sumner remarked

that he had visited the jail, and found it neither more nor less

than a mere human sty; and since the Senate had undertaken to send a

fellow-creature there, he thought that the least it could do was to see

that something was done to improve its condition.

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