“Where it is not so regulated, it is understood that the
imprisonment terminates with the session.”[112]
Mark, if you please, “terminates with the session.”
Here you have the authentic words of this special authority,
interpreting the English Parliamentary Law, and also declaring our
law. Who is there that can go behind these words? What Senator will set
up his research or his conclusion against that of this exemplar? Who
is there here that will venture to claim for the Senate a prerogative
which this American authority disclaims for legislative bodies in our
country, unless expressly sanctioned by Constitutional Law?
I have shown that this power to commit beyond the session does not
exist in the House of Commons, from which we derive such prerogatives
or privileges as we have. But the stream cannot rise higher than the
fountain-head. How, then, if the power does not exist in the House of
Commons, can you find it here? You cannot trace the present assumption
to any authentic, legitimate fountain. If you attempt it, permit me to
say you will fail, and the assumption will appear without authority,
and therefore a usurpation. I so characterize it, feeling that I cannot
be called in question when I use this strong language. If you undertake
to detain these prisoners beyond the expiration of this session, you
become usurpers, the Senate of the United States usurps power that
does not belong to it; and, Sir, this is more flagrant, when it is
considered that it usurps this power in order to wield it against the
liberty of fellow-citizens.
When I state this conclusion, I feel that I stand on supports that
cannot be shaken. I stand on English authorities sustained by American
authorities. You cannot find any exception. That in itself is an
authority. If you could mention an exception, I should put it aside as
an accident or an abuse, and not as an authority. The rule is fixed
and positive; and I now have no hesitation in declaring that it will
be the duty of the judge, on a writ of _Habeas Corpus_, as soon as
this Senate closes its session, to set these prisoners at liberty,
unless the Senate has the good sense in advance to authorize their
discharge. I do not doubt the power and the duty of the Court. I am
sure that no judge worthy of a place on the bench will hesitate in this
judgment. Should he, I would read to him the simple words of the Lord
Chief-Justice of England on the very point:--
“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_.”[113]
There is no way of answering those words. They are as commanding on
this occasion as if they were in the very text of our Constitution.
When I say this, I do not speak vaguely; for I am sure that every
student of this subject will admit that a judgment like that which I
have adduced on a question of Parliamentary Law, and in favor of the
rights of the subject, is of an authority in our country equal to the
Constitution itself.
* * * * *
This brings me, Sir, to an important point which I had hoped not to be
called to discuss, but which the argument of the Senator from New York
seems to press upon the consideration of the Senate and of the country;
and therefore I shall open it to your attention, even if I do not
discuss it. It is this: that, whatever may be the power even in England
by Parliamentary Law, it by no means follows that the Senate of the
United States has that power.
What is the Senate? A body created by a written Constitution, enjoying
certain powers described and defined in the Constitution itself. The
Constitution says nothing about contempt or punishment for contempt. In
order to obtain this power you must go into inference and deduction;
you must infer it or imply it. In the case of impeachments the Senate
becomes a judicial body, and it is reasonable to infer that it may have
the power to compel the attendance of witnesses,--in short, the powers
of a court. The Senate also, by express terms of the Constitution, has
the power to expel a member. There again is an inquiry in its nature
judicial; and should the Senate on such occasion examine witnesses and
proceed as a court, it may be inferred that it is so authorized by the
Constitution. There is also a third power which the Senate possesses,
judicial in character: it is to determine the election of its members.
Beyond these every power that the Senate undertakes to exercise on
this subject is derived by inference. It does not stand on any text of
the Constitution. It is a mere implication, and, being adverse to the
rights of the citizen, it must be construed strictly.
Now I am not ready to say, I do not say, that the Senate has not
the power to institute a proceeding like that now in question. I am
very clear that it has not the power by compulsory process to compel
witnesses to testify in aid of legislation, as was once attempted in
what was known familiarly as the Harper’s Ferry Investigating Case. But
I do not undertake to say that it may not institute a proceeding like
that in which we are now engaged; yet I admit its legality with great
hesitation and with sincere doubt. I doubt whether such an assumption
can stand an argument in this Chamber; I doubt whether it can stand
a discussion before a court of justice. How do you arrive at such a
power? The Senator from Wisconsin [Mr. CARPENTER] said, the other day,
the Senate, according to the arguments of certain Senators, has not the
power of a justice of the peace. The Senator never spoke truer words:
the Senate has not the power of a justice of the peace. A justice of
the peace is a court with the powers of a court. The Senate of the
United States is not a court, except in the cases to which I have
already referred. It is a serious question whether it is a court in the
proceeding which it has now seen fit to institute. Were it a court,
then the argument of the Senator from Wisconsin might be applicable,
and it might then claim the privileges of a court. It might proceed, if
you please, to fine as well as to commit. The Senate in its discretion
forbears to fine; it contents itself with imprisonment. But if it can
imprison, why not fine? Why is not the whole catalogue of punishment
open to its grasp?
I have reminded you, Sir, that our powers, whatever they may be, are
under a written Constitution, and in this important respect clearly
distinguishable from the powers of the House of Commons, which are the
growth of tradition and immemorial usage. I am not the first person
to take this ground. I find it judicially asserted in most authentic
judgments, to which I beg to call the attention of the Senate.
I have in my hands the fourth volume of Moore’s Privy Council Cases,
cases argued in the Privy Council of England, many of them being cases
that have come up from the Colonies,--and here is one, being an appeal
from the Supreme Court of the island of Newfoundland. I will read the
marginal note:--
“The House of Assembly of the island of Newfoundland does not
possess, as a legal incident, the power of arrest, with a view
of adjudication on a contempt committed out of the House,--but
only such powers as are reasonably necessary for the proper
exercise of its functions and duties as a local Legislature.
“_Semble._--The House of Commons possess this power only
by virtue of ancient usage and prescription, the _Lex et
Consuetudo Parliamenti_.
“_Semble._--The Crown, by its prerogative, can create a
Legislative Assembly in a settled colony, subordinate to
Parliament, but with supreme power within the limits of the
colony for the government of its inhabitants; but,
“_Quære._--Whether it can bestow upon it an authority, namely,
that of committing for contempt, not incidental to it by
law?”[114]
I will not take time in reading extracts from the opinion of the Court,
which goes on the ground that the Legislature of the Colony is acting
under a commission from the Crown in the nature of a Constitution,
being a written text, and that it could not therefore claim for itself
those vast, immense, unknown privileges and prerogatives which by long
usage are recognized as belonging to the House of Commons.
But the question was presented at a later day in another case before
the Privy Council, which came from the Supreme Court of Van Diemen’s
Land. I cite now Moore’s Privy Council Cases, volume eleven. This case
was decided in 1858. It is therefore a recent authority. The marginal
note is as follows:--
“The _Lex et Consuetudo Parliamenti_ applies exclusively to
the House of Lords and House of Commons in England, and is
not conferred upon a Supreme Legislative Assembly of a colony
or settlement by the introduction of the Common Law of England
into the colony.
“No distinction in this respect exists between Colonial
Legislative Councils and Assemblies whose power is derived by
grant from the Crown or created under the authority of an Act
of the Imperial Parliament.”[115]
You will see, Sir, that by this decision the powers of a Legislative
Assembly created by a Charter are limited to the grants of the Charter,
and that the mere creation of the legislative body does not carry with
it the Law and Custom of Parliament. In the course of his opinion
Lord Chief-Baron Pollock uses the following language. Alluding to the
decision of the Privy Council in the Newfoundland case, he says:--
“They held that the power of the House of Commons in England
was part of the _Lex et Consuetudo Parliamenti_; and the
existence of that power in the Commons of Great Britain did
not warrant the ascribing it to every Supreme Legislative
Council or Assembly in the Colonies. We think we are bound
by the decision of the case of Kielley _v._ Carson.… If the
Legislative Council of Van Diemen’s Land cannot claim the power
they have exercised on the occasion before us as inherently
belonging to the supreme legislative authority which they
undoubtedly possess, they cannot claim it under the statute
as part of the Common Law of England (including the _Lex et
Consuetudo Parliamenti_) transferred to the Colony by the 9th
Geo. IV. c. 83, sect. 24. The _Lex et Consuetudo Parliamenti_
apply exclusively to the Lords and Commons of this country,
and do not apply to the Supreme Legislature of a Colony by the
introduction of the Common Law there.”[116]
Now the question is directly presented by these decisions, whether
under the written text of the Constitution of the United States you
can ingraft upon our institutions the Law and Custom of Parliament. So
far as these cases are applicable, they decide in the negative; but I
will not press them to that extent. I adduce them for a more moderate
purpose,--simply to put the Senate on its guard against any assumption
of power in this matter. I do not undertake to say to what extent the
Senate may go; but with these authorities I warn it against proceeding
on any doubtful practices. If there be any doubt, then do these
authorities cry out to you to stop.
I have said, Sir, that our powers here are limited by the Constitution:
I may add, also, and the Law in pursuance of the Constitution. And now
I ask you to show me any text of the Constitution, and to show me any
text of Law, which authorizes the detention of these witnesses by the
Senate. The Senate, be it understood, is not a court. Certainly, for
this purpose and on this occasion, it is not a court. Show me the law.
Does it exist? If it exists, some learned Senator can point it out. But
while Senators fail to point out any law sanctioning such a procedure,
I point out an immortal text in the Constitution of the United States,
borrowed from Magna Charta, which it is difficult to disobey:--
“No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, … nor be deprived of life, liberty, or property,
without due process of law.”
“Without due process of law.” What is the meaning of that language?
Judge Story[117] tells us, as follows:--
“Lord Coke[118] says that these latter words, _per legem
terræ_, (by the law of the land,) mean _by due process of
law_: that is, without due presentment or indictment, and
being brought in to answer thereto by due process of the
Common Law. So that this clause in effect affirms the right of
trial according to the process and proceedings of the Common
Law.”[119]
There, Sir, is a living text of the Constitution of the United States,
binding upon this Senate. Where do you find any other text authorizing
you to institute this proceeding? or if you institute the proceeding,
must it not come within the limitations of this prohibition?
But I may be reminded that there are precedents. How many precedents
are there for such a proceeding? We are familiar with all of them.
The latest, the most authentic, is that of Thaddeus Hyatt, proceeded
against because he refused to testify before the Harper’s Ferry
Investigating Committee. Is that a precedent which you are disposed to
follow? I am sure you would not, if you read the weighty argument in
that proceeding made by the late John A. Andrew, and Samuel E. Sewall,
of Massachusetts, the accomplished jurist, who still survives to us.
Go still further back and you have the case, entirely like that before
us, of Nugent,--who was not pursued, I was going to say, as ferociously
as the present witnesses have been pursued, for his custody was simply
that of the house of the Sergeant-at-Arms, and it was recognized at
that time that even that mild custody would expire with the session of
the Senate. You have also the earlier precedent of 1800 in the case
of Duane, which, I think, Senators would hesitate now to vindicate.
Let them look at it and see whether they would sanction a similar
proceeding at this day,--whether such a tyranny could go on without
shocking the public conscience, and being recognized universally as an
assault upon the liberty of the press.[120]
Those are the cases furnished by the history of the Senate. Lord
Denman, in the case of _Stockdale_ v. _Hansard_, the famous case to
which I have referred, gives an answer to them as follows: I quote from
the ninth volume of Adolphus and Ellis’s Reports, page 155:--
“The practice of a ruling power in the State is but a feeble
proof of its legality. I know not how long the practice of
raising ship-money had prevailed before the right was denied
by Hampden; general warrants had been issued and enforced for
centuries before they were questioned in actions by Wilkes
and his associates, who, by bringing them to the test of law,
procured their condemnation and abandonment. I apprehend that
acquiescence on this subject proves, in the first place, too
much; for the admitted and grossest abuses of privilege have
never been questioned by suits in Westminster Hall.”
This proceeding has analogy with one well known in English history,
that of the Star-Chamber Court, which you will find described by Mr.
Hallam in his “Constitutional History of England,” in chapter eight,
and I refer to it merely for the sake of one single sentence which I
cite from this great author:--
“But precedents of usurped power cannot establish a _legal
authority_ in defiance of the acknowledged law.”[121]
But where is the _legal authority_ for the imprisonment of these
witnesses? Only in mere inference, mere deduction,--the merest
inference; but surely you will not take away the liberty of the citizen
on any such shadowy, evanescent apology, which is no apology, but a
sham, and nothing else. I have already called attention to the argument
of Governor Andrew and Hon. S. E. Sewall, which will be found in the
Congressional Globe under date of March 9, 1860. Did time permit, I
should quote from it at length; but I commend it to the Senate and all
inquirers.
As an illustration of the doubts which environ this question, I
call attention to the case of _Sanborn_ v. _Carleton_,[122] where
Chief-Justice Shaw, of Massachusetts, gave the opinion of the Court.
The Senator from Wisconsin [Mr. CARPENTER] will not question his
character. After stating that “it is admitted in the arguments that
there is no express provision in the Constitution of the United States
giving this authority in terms,”--that is, the alleged authority of
the Senate,--he proceeds to say that there are questions on this
subject “manifestly requiring great deliberation and research.” And
yet Senators treat them as settled. The Chief-Justice then proceeds
to announce that a warrant issued by order of the Senate of the
United States for the arrest of a witness for contempt in refusing to
appear before a Committee of the Senate, and addressed only to the
Sergeant-at-Arms of the Senate, cannot be served in Massachusetts by a
deputy. But this very question arises in the present proceedings. The
managing editor of the “Tribune,” Mr. Whitelaw Reid, was summoned by
a deputy, and not by the Sergeant-at-Arms. Gracefully yielding to the
illegal summons, he appeared before the Committee; but the question of
power still remains; and this very question adds to the embarrassments
of the subject.
The extent of the abuse now in question will be seen, if I call
the attention of the Senate to the last Report of the Committee of
Investigation. By that Report it appears that they undertook to examine
two agents of the Telegraph Company, who, finally, at the last moment,
when asked to make a definitive statement with regard to the copy of
the Treaty lodged with them for communication to New York, declined to
answer. And you have now in this usurpation of the Senate an attempt
to break into the telegraph-offices of the United States. You raise,
for the first time in this Chamber, one of the great questions of the
times. Can you do any such thing?
MR. NYE [of Nevada]. I should like to ask the Senator
from Massachusetts if the courts have not broken into the
telegraph-offices?
MR. SUMNER. I am not speaking about the courts. I am speaking about the
Senate of the United States.
MR. NYE. I ask the Senator if the Senate of the United States,
in this investigation, as long as it exists, has not all the
authority of a court?
MR. SUMNER. I have already stated that it has not,--that it has not the
authority of a justice of the peace. The Senate proposes to break into
the telegraph-offices of the United States. In the guise of privilege,
it enters those penetralia and insists that the secrets shall be
disclosed. What is the difference between a communication by telegraph
and a communication by letter? Is there not a growing substitution of
the telegram for the letter? Has not this taken place to an immense
extent in England? Is it not now taking place to an immense extent in
our own country?
Now, Sir, mark the limitation of my language. I do not mean to say
that the telegram is entitled to all the sacredness of the letter;
but I do insist that the Senate, before it undertakes to break into
the telegraph-offices of the United States, shall calmly consider
the question, and see to what end the present disposition will carry
them. Senators who have not entirely forgotten the recent history of
England know that the powerful Cabinet of Sir Robert Peel for a time
trembled under the imputation that one of its ablest members, Sir
James Graham, who, Mr. Webster told me, in his judgment, was the best
speaker in Parliament, had authorized the opening of the letters of
Mazzini at the Post-Office. The subject was brought before Parliament
night after night. You shall see how it was treated. The Liberal member
from Finsbury, Mr. Duncombe, in presenting it first,--I read from
Hansard,--after inveighing against the opening of letters, said:--
“That was a system which the people of this country would
not bear, which they ought not to bear; and he hoped, after
the exposure which had taken place, that some means would
be adopted for counteracting this insidious conduct of her
Majesty’s ministers. It was disgraceful to a free country that
such a system should be tolerated. It might do in Russia, ay,
or even in France, or it might do in the Austrian dominions, it
might do in Sardinia; but it did not suit the free air of this
free country.”[123]
Lord Denman, always on the side of Freedom, at the time Chief-Justice
of England, in the House of Lords said:--
“Could anything be more revolting to the feeling than that any
man might have all his letters opened in consequence of some
information respecting him having been given to the Secretary
of State, and that the contents of those letters, which he
might have never received, might be made use of for the purpose
of proceeding against him in a court of justice? The letters
of a man might be opened, and he might not have the slightest
intimation that he was betrayed. Now is such a state of things
to be tolerated in a civilized country? He would say, without
the slightest hesitation, that it ought not to be borne with
for a single hour.”[124]