May 18, 1871, Z. L. White and H. J. Ramsdell, newspaper
correspondents, having been taken into custody by order of
the Senate, for refusing to disclose, on the requisition of
a committee appointed to investigate the matter, the source
whence a copy of the Treaty of Washington had been obtained
which they had communicated for publication while under
consideration in Executive Session, and Mr. White, whose case
was first presented, on arraignment at the bar of the Senate
persisting in his refusal, a resolution was thereupon offered
for his commitment to the common jail until he should answer.
Mr. Sumner immediately moved an amendment substituting for the
common jail the custody of the Sergeant-at-Arms, remarking;--
In support of that amendment I will say that the only precedent we have
in our history known to me for this case is that of Nugent,[105] and he
was committed to the custody of the Sergeant-at-Arms. It appears from
the newspapers of the time that there was a perpetual menace, as the
excitement increased, that the custody should be changed to the common
jail; but it does not appear that it was so changed. He continued
for some two months in the custody of the Sergeant-at-Arms. We all
know, also, that after the Impeachment Trial a witness was taken into
custody; but it was simply the custody of the Sergeant-at-Arms of the
House.[106]
There is one other precedent to which I ought to allude, and it will be
for the Senate to say whether they will follow it. It is the resolution
of the Senate in the spring of 1860, on the motion of Mr. Mason,
chairman of the committee raised especially to persecute the supposed
associates of John Brown, and taking one of them into custody, bringing
him into this Chamber, propounding to him certain interrogatories which
he refused to answer. Mr. Mason finally brought forward a resolution
that he should be committed to the common jail.[107] That, Sir, is the
precedent which it is now proposed to follow. The Senate will consider
whether they will follow the lead of Mr. Mason, author of the Fugitive
Slave Bill, Chairman of the Harper’s Ferry Investigating Committee,
and afterward a Rebel, in committing a citizen to the common jail, or
whether they will follow the better precedent of the Senate at a better
day and under better auspices.
On this motion I ask for the yeas and nays.
The yeas and nays were ordered, with the result, for the
amendment, Yeas 31, Nays 27.
A second resolution, containing a provision for the continuance
of the Committee, with a view to holding the witness in
custody after the close of the session until he should answer
as required, which Mr. Sumner denounced as contrary to all
parliamentary precedent, prevailed against a motion to strike
out this part by Yeas 20, Nays 30.
Corresponding resolutions were subsequently adopted in the case
of Mr. Ramsdell, who had likewise persisted in refusing to
answer.
* * * * *
May 27th, on a resolution submitted by Mr. Wilson, of
Massachusetts, for the discharge of these persons from custody
“immediately upon the final adjournment of the session,” Mr.
Sumner spoke as follows:--
MR. PRESIDENT,--This question is important, primarily, as it concerns
the liberty of the citizen; but it is made important also by the
attempt, to which we have just listened, to establish for the Senate a
prerogative which on history and precedent does not belong to it.
Some days ago I took the ground, which I shall take to-day, that on
the close of the session of the Senate any imprisonment founded on its
order must cease. Of that conclusion, whether on history or law, I have
not the least doubt. I have listened to the argument of the Senator
from New York, [Mr. CONKLING,] and to his comment upon the authorities
adduced. The answer, to my mind, is obvious. It will be found simply in
stating one of those authorities and calling attention to its precise
language. The Senator from Ohio [Mr. SHERMAN] has already presented
to-day what I had the honor of quoting on the first day of this
discussion, the authoritative words of May in his work on Parliamentary
Law, and also the solemn judgment of Lord Denman, Chief-Justice of
England. May says, speaking of prisoners committed by order of the
House of Commons, that they
“are immediately released from their confinement on a
prorogation, whether they have paid the fees or not. If they
were held longer in custody, they would be discharged by the
courts, upon a writ of _Habeas Corpus_.”[108]
This statement, coming as it does from the well-known Clerk of the
House of Commons, as familiar with the usages of that body as any
living man, is of itself authority. But he adduces the weighty words
of Lord Denman in the most remarkable case of privilege that has ever
occurred in English history, being that of Stockdale and Hansard,
which, it is well known, was discussed day by day in Parliament, week
by week in Westminster Hall. I have before me the opinions of all the
judges on that case, but the words that are particularly pertinent now
are quoted by May as follows:--
“However flagrant the contempt, the House of Commons can only
commit till the close of the existing session,”--