“can only commit till the close of the existing session. Their
privilege to commit is not better known than this limitation
of it. Though the party should deserve the severest penalties,
yet, his offence being committed the day before a prorogation,
if the House ordered his imprisonment but for a week, every
court in Westminster Hall and every judge of all the courts
would be bound to discharge him by _Habeas Corpus_.”[109]
These were the words of the Lord Chief-Justice of England in a
most memorable case as late as 1839. This is no ancient authority,
but something modern and of our day. It is not expressed in vague
or uncertain terms, but in language clear and positive. It is as
applicable to the Senate of the United States as to the House of
Commons. It is applicable to every legislative body sitting under a
constitutional government.
An attempt has been made to claim for the Senate prerogatives which
belong to the House of Lords. How so? Is the Senate a House of Lords?
Is it an hereditary body? Is it a perpetual body in the sense that
the House of Lords is a perpetual body? We know that the House of
Lords is in session the whole year round. We know, that, according to
a rule of the Civil Law, “_Tres faciunt collegium_,”[110] three make
a quorum in the House of Lords. So that the presence of three peers
at any time, duly summoned to the chamber, constitutes a sufficient
quorum for business. Therefore the House of Lords has in it an
essential element enabling it to come together easily and to continue
in perpetual session. It is in its character, in the elements of its
privileges, clearly distinguishable from the Senate, as it is clearly
distinguishable from the House of Commons. Such privileges as the
Senate has are derived from the House of Commons rather than from the
House of Lords, so far as they are derived from either of these bodies.
Another attempt has been made, by criticizing the word “prorogation,”
to find a distinction between the two cases; but a note to May’s
work on Parliamentary Law, which I now have in my hand, meets that
criticism. After saying in the text that the prisoners committed by the
House of Commons “are immediately released from their confinement on a
prorogation,” the note says:--
“But this law never extended to an adjournment, even when it
was in the nature of a prorogation.”[111]
Take, for instance, the adjournments which habitually occur in the
British Parliament at the Christmas holidays, at the Easter holidays,
at the Whitsuntide holidays. You saw in the papers, only the other
day, that Mr. Gladstone gave notice that the House of Commons would
adjourn over several days on account of the Whitsuntide holidays;
but nobody supposes that that is in the nature of a “prorogation,”
or that a committal by order of the House of Commons would expire on
such an adjournment, as it would not expire on our adjournment for our
Christmas holidays.
Therefore do the very precedents of the British Parliament answer
completely the case put by the Senator from New York, who imagined a
difficulty from occasional adjournments at the Christmas holidays.
Sir, we are to look at this precisely as it is. The prorogation of the
House of Commons is an adjournment without day, corresponding precisely
to our adjournment without day. I believe in Massachusetts, down to
this moment, when the Legislature has agreed upon the time of its
adjournment, it gives notice to the Governor, who sends the Secretary
of the Commonwealth to prorogue it, and the Legislature is declared to
be prorogued,--thus following the language so familiar in England.
Then it is argued that this power to commit may be prolonged by a
Committee to sit during the vacation. But how so? The Committee has no
power to commit. The power to commit comes from the Senate. How does
the sitting of the Committee in the vacation add to its powers? It has
no such power while the Senate is in session. How can it have any such
power when the Senate has closed its session? But the power to protract
the imprisonment of a citizen must be kindred with that to imprison.
I dismiss the whole argument founded upon the prolongation of the
Committee as entirely irrelevant. Prolong the Committee, if you please,
till doomsday; you cannot by that in any way affect the liberty of the
citizen. The citizen is imprisoned only by the order of the Senate,
and the power to imprison or to detain expires with the session. Such,
Sir, is the rule that we have borrowed from England. Nor am I alone in
thus interpreting it. I cited, the other day, the authentic work of the
late Judge Cushing on the Law and Practice of Legislative Assemblies. I
will, with your permission, read again his statement, as follows:--
“According to the Parliamentary Law of England there is a
difference between the Lords and Commons in this respect: the
former being authorized, and the latter not, to imprison for a
period beyond the session.”
That is the testimony of Judge Cushing, who had devoted his life to the
study of this subject. He then goes on:--
“In this country the power to imprison is either incidental to
or expressly conferred upon all our legislative assemblies;
and in some of the States it is also regulated by express
constitutional provision.”