USURPATION OF THE SENATE IN IMPRISONING A CITIZEN.

MR. PRESIDENT,—It is related in English parliamentary history, that, on a certain occasion, when the House of Commons was about ordering the commitment of a somewhat too famous witness to the custody of the Sergeant-at-Arms, the Speaker interfered by volunteering to say, that “the House ought to pause before they came to a decision upon a point in which the liberty of the subject was so materially concerned.”[16] That same question is now before us. We are to pass on the liberty of a citizen.

Pardon me, if I say that such a question cannot at any time be trivial. But it has an unaccustomed magnitude on this occasion, because the case is novel in this body; so that what you now do, besides involving the liberty of the gentleman at the bar, will establish a precedent, which, in itself, will be a law for other cases hereafter.

Now, if it be conceded that the Senate is invested with all the large powers claimed by the Houses of Parliament, then I cannot doubt its power in the present case, although I might well question the expediency of exercising it. But this is notoriously untrue. It is well known that Parliament is above the constraint of a written Constitution; and it has been more than once declared—much to the indignation of our Revolutionary fathers—that it is “omnipotent” to such extent that it can do anything it pleases, except make a man of a woman, or a woman of a man. The Senate has no such large powers; it is not “omnipotent,” but under the constraint of a written Constitution. Instead of authority in all possible cases, it has authority only in certain specific cases.

If the Senate can summon witnesses to its bar, and compel them to testify, under pains and penalties, it must be by virtue of powers delegated in the Constitution,—I do not say by express grant, but at least by positive intendment. I say positive intendment; for nothing is to be presumed against liberty.

There are certain cases in which the power is clear: first, and most conspicuously, in the trial of impeachments; secondly, in determining the elections, returns, and qualifications of its members; and, thirdly, in punishing its members for disorderly behavior. All these proceedings are judicial, as well as political, in character, and carry with them, as a natural incident, the power to compel witnesses to testify.

Beyond these three cases, which stand on the express words of the Constitution, there are two other cases, quasi-judicial in character, which, though not supported by express words of the Constitution, have grown out of necessity and reason, amounting to positive intendment, and are sanctioned by precedents. I refer, first, to the inquiry into an alleged violation of the privileges of this body, as where a copy of a treaty was furtively obtained and published; and, secondly, to the inquiry into conduct of servants of the Senate, like that now proceeding with regard to the Printer, on the motion of the Senator from New York [Mr. King]. If I were asked to indicate the principle on which these two cases stood, I should say it was that just and universal right of self-defence inherent in every parliamentary body, as in every court, and also in every individual, but which is limited closely by the simple necessities of the case.

Such are the five cases in which this extraordinary power has been heretofore exercised: the first three standing on the text of the Constitution, and the other two on the right of self-defence necessarily inherent in the Senate; all five sanctioned by precedents of this body; all five judicial in character; all five judicial also in purpose and intent; and all five agreeing in this final particular, that they have no legislative purpose or intent. Beyond these cases there is no precedent for the exercise by the Senate of the power in question.

It is now proposed to add a new case, most clearly without any support in the Constitution, without any support in the right of self-defence inherent in the Senate, and without any support in the precedents of the Senate.

A committee has been appointed to inquire into the facts attending the late invasion and seizure of the armory and arsenal at Harper’s Ferry by a band of armed men, and report whether the same was attended by armed resistance to the authorities and public force of the United States, and by the murder of any citizens of Virginia, or of any troops sent there to protect public property; whether such invasion was made under color of any organization intended to subvert the government of any of the States of the Union; the character and extent of such organization; whether any citizens of the United States, not present, were implicated therein or accessory thereto, by contributions of money, arms, munitions, or otherwise; the character and extent of the military equipment in the hands or under the control of such armed band; where, how, and when the same was obtained and transported to the place invaded; also, to report what legislation, if any, is necessary by the Government for the future preservation of the peace of the country and the safety of public property; with power to send for persons and papers.

And this committee, after several weeks of session, now invokes the power of the Senate to compel the witness to testify. The chairman of the committee, the Senator from Virginia [Mr. Mason], who calls for the imprisonment of an American citizen, has shown no authority for such an exercise of power in the Constitution, or in the admitted right of self-defence, or in the precedents of the Senate. He cannot show any such authority. It does not exist.

Surely, where the Constitution, and reason, and precedent, all three, are silent, we might well hesitate to exercise a power so transcendent. But I shall not stop here. I go further, and point out two specific defects in the resolution of the Senate.

First. The inquiry which it institutes is clearly judicial in character,—without, however, any judicial purpose, or looking to any judicial end. The committee is essentially a Tribunal, with power of denunciation, but without power of punishment,—sitting with closed doors, having the secrecy of the Inquisition or the Star Chamber, or, if you please, the Grand Jury,—with power to investigate facts involving the guilt of absent persons, and to denounce fellow-citizens as felons and traitors. If such a power is lodged anywhere outside of judicial tribunals, it must be in the House of Representatives, as the Grand Inquest of the Nation, with its power to impeach all civil officers, from the President down; but it cannot be in the Senate. Let me cite an illustration. The Constitution of Maryland provides expressly that “the House of Delegates may inquire, on the oath of witnesses, into all complaints, grievances, and offences, as the Grand Inquest of the State, and may commit any person for any crime to the public jail, there to remain until discharged by due course of law.” But I deny that the Senate of that neighbor State can erect itself into a Grand Inquest.

If the Senate of the United States have power to make the present inquiry, then, on any occasion of alleged crime, of whatever nature, whether of treason or murder or riot, it may rush to the assistance of the grand juries of the District, or, still further, it may rush to the assistance of the grand juries of Virginia; in short, it will be an inquest of commanding character, and with far-reaching, all-pervading process, supplementary and ancillary to the local inquest,—or, rather, so transcendent in powers, that by its side the local inquest will be dwarfed into insignificance. This cannot be proper or constitutional. But perhaps I am especially sensitive on this point; for, as a citizen of Massachusetts, I cannot forget that her Bill of Rights, originally the work of John Adams, provides expressly that the legislative department shall never exercise judicial powers, and the judicial department shall never exercise legislative powers,—“to the end,” as is solemnly declared, “it may be a government of laws, and not of men.”

But, assuming that the resolution is defective so far as it constitutes an inquest into crime, it may be said that the witness should be compelled to answer the other parts. Surely, the Senate will not resort to any such refinement in order to imprison a citizen.

Secondly. But there is a broader objection still: that, whatever may be the power of the Senate in judicial cases, it cannot compel the testimony of a witness in a proceeding of which the declared purpose is merely legislative. Officers of the Government communicate with Congress and its committees simply by letter. They are not summoned from distant posts, or even from their offices here. And I know not why a distant citizen, charged with no offence, and in every right the peer of any office-holder, should be treated with less consideration. If information be desired from him for any legislative purpose, let him communicate it in the way most convenient to himself, and most consistent with those rights of the citizen which all are bound to respect.

At all events, if this power is to be exercised, let it not be under a simple resolution of the Senate, but by virtue of a general law, passed by both Houses, and approved by the President, so that the citizen shall be surrounded with certain safeguards.

Mr. President, I confidently submit that a power so entirely without support, and also so obnoxious to criticism, at the same time that it is so vast, is not to be carelessly exercised. You cannot send the witness to prison without establishing a new precedent and commencing a new class of cases. You will declare that the Senate, at any time,—not merely in the performance of admitted judicial duties, but also in the performance of mere legislative duties,—may drag a citizen from the most distant village of the most distant State, and compel his testimony, involving the guilt or innocence of absent persons, or, it may be, of the witness himself. This is a fearful prerogative, and permit me to say, that, in assuming it, you liken yourselves to the Jesuits, at the period of their most hateful supremacy, when it was said that their power was a sword whose handle was at Rome and whose point was in the most distant places. You take into your hands a sword whose handle will be in this Chamber, to be clutched by a mere partisan majority, and whose point will be in every corner of the Republic.

If the present case were doubtful, which I do not admit, I feel that I cannot go wrong, when I lean to the side of Liberty. But, even admitting that you have the power, is this the occasion to use it? Is it, upon the whole, expedient? Is the object to be accomplished worth the sacrifice? It is well to have a giant’s strength, but it is tyrannous to use it like a giant.

For myself, Sir, I confess a feeling of gratitude to the witness, who, knowing nothing which he desires to conceal, and chiefly anxious that the liberties of all may not suffer through him, feeble in body and broken in health, hardly able to endure the fatigue of appearing at your bar, now braves the prison which you menace, and thrusts his arm as a bolt to arrest an unauthorized and arbitrary proceeding.

MR. PRESIDENT,—I welcome with pleasure the proposition for the discharge of Mr. Hyatt from his long incarceration in the filthy jail where he has been detained by the order of the Senate. But I am unwilling that this act of justice should be done to a much injured citizen, without for one moment exposing the injustice which he has received at your hands.

The case, it seems to me, can be made as plain as a diagram.

We must not forget a fundamental difference between the powers of the House of Representatives and the powers of the Senate. It is from the former that the Senator from Virginia has drawn his precedents, and here is his mistake.

To the House of Representatives expressly are given by the Constitution inquisitorial powers, while no such powers are given to the Senate. This is contained in the words, “The House of Representatives shall have the sole power of impeachment.” Here, then, obviously, is something delegated to the House, and not delegated to the Senate,—namely, those inquiries in their nature preliminary to impeachment, which may or may not end in impeachment; and since, by the Constitution, every “civil officer” of the national government may be impeached, the inquisitorial powers of the House may be directed against every “civil officer,” from the President down to the lowest on the list.

This is an extensive power, but it is confined solely to the House. Strictly speaking, the Senate has no general inquisitorial powers. It has, we know, judicial powers in three cases under the Constitution:—

1. To try impeachments;

2. To judge the elections, returns, and qualifications of its members;

3. To punish its members for disorderly behavior, and, with the concurrence of two thirds, to expel a member.

In the execution of these powers, the Senate has the attributes of a court, and, according to established precedents, it may summon witnesses and compel their testimony, although it may well be doubted if a law be not necessary even to the execution of this power.

Besides these three cases, expressly named in the Constitution, there are two others, where it has already undertaken to exercise judicial powers, not by virtue of express words, but in self-defence:—

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.

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:—

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.

With these observations I quit this question, anxious only that the recent Usurpation of the Senate may not be drawn into a precedent hereafter.

ABOLITION OF CUSTOM-HOUSE OATHS.

BOSTON COMMON, AND ITS EXTENSION.

ATTEMPT TO KIDNAP A CITIZEN UNDER ORDER OF THE SENATE.

I have a memorial, Mr. President, from Frank B. Sanborn, of Concord, Massachusetts, setting forth a gross attempt to kidnap, by men pretending to act in the name of the Senate of the United States. The memorial is authenticated by his affidavit before a notary public. It sets forth, that, on the evening of the 3d of April, certain persons, who had been prowling about his neighborhood, under shelter of night, with fraudulent pretence drew him to his door, seized him, handcuffed him, and then by force undertook to convey him to a carriage. By the courageous interposition of a refined lady, his sister, neighbors were aroused; the village was next summoned by the ringing of bells, and at length that great friend of the oppressed in our country, the writ of Habeas Corpus, arrived on the ground. By intervention of that writ he was taken from the custody of the kidnappers. The next day a hearing was had before the Supreme Court of Massachusetts; and Chief Justice Shaw, for thirty years the honored Chief Justice of Massachusetts, whose opinions are respected in every part of the country, representing the full bench, without undertaking to pass upon the question of jurisdiction in the Senate, went on to declare that the power delegated to its Sergeant-at-Arms could not be delegated to another, and that therefore all these proceedings were void, and the prisoner was discharged.

Now, Mr. President, this act, it seems to me, is conspicuous, both from the person against whom it was directed and the place where it was attempted. It was directed against Mr. Sanborn, a quiet citizen engaged in the instruction of youth, a scholar of excellent attainments, of perfect purity, and much beloved by friends and neighbors. It was attempted at Concord, where another seizure was once attempted, which began that revolutionary contest that ended in Independence. I affirm, Mr. President, that a person like Mr. Sanborn, having suffered this outrage at the hands of persons claiming to act in the name of the Senate, has a right to redress in this body: and I assert, still further, that this body owes something to its own character; it ought to wash its hands of such an outrage. I offer his memorial, and ask its reference to the Committee on the Judiciary, and, that the Senate may better understand it, I think it ought to be printed. I move also its printing.

I merely wish to correct one error into which the Senator has fallen. He states that Mr. Sanborn was taken from the custody of those pretended officers by a mob. Now nothing is within my knowledge except what is authenticated by that memorial under oath, and there the statement is express that he was not taken from the custody of these pretended officers except by the intervention of the writ of Habeas Corpus, sustained by the posse comitatus of the neighborhood.

There, Sir, is the official response to the assertion of the Senator from Virginia. The Senator says that Mr. Sanborn was rescued by a mob. It is true there was a mob in Concord. It was a mob of kidnappers, who went there in the name of the Senate of the United States to seize a citizen of Massachusetts. I have here a letter which I have received from a prominent citizen of Concord, present at the time. This is his statement:—

Sir, it is not unnatural that an arrest made under such circumstances should have attracted attention in that town and throughout Massachusetts. It did so. It has excited a feeling of indignation against this attempt, increased, perhaps, when people put the question, “Why all this effort to seize Mr. Sanborn? Why this overthrow of law to accomplish such a purpose?”

It is notorious that there is a citizen of Virginia, formerly chief magistrate of that State, who has openly avowed that he knew much in regard to the very matters in inquiry before that committee, and that rubies could not bribe him to disclose it. He has thrown the challenge down to that committee and this Senate, before the whole country, refusing openly to testify; and yet that committee make no motion to bring Ex-Governor Wise before the Senate, and compel him to testify. Instead, the committee seeks a Northern man, Mr. Hyatt, now in jail, and another Northern man, Mr. Sanborn, who it is well understood know nothing of the matter; and it follows up Mr. Sanborn by an attempt which I characterize here as simply an act of kidnapping.

Mr. President, I profess to have no information except what is open to all the world; and there are two things open to all the world, through the public press: first, that the Ex-Governor of Virginia has more than once declared that he had important information in reference to the matter before the committee, and that rubies would not tempt him to disclose it; and, secondly, it is known that the Ex-Governor of Virginia has not been brought to Washington, as Mr. Hyatt has been, and as an attempt has been made to bring Mr. Sanborn. No kidnappers have been sent into Virginia, nor handcuffs put upon Ex-Governor Wise.

Mr. President, I think that I ought not to listen to such a proposition as has been made by the Senator from Virginia with reference to this memorial, without one word in reply. Here is a memorial from a gentleman of perfect respectability, charged with no crime, presumed to be innocent, complaining of gross outrage at the hands of certain persons pretending to act in the name of the Senate. The facts are duly set forth. They are authenticated also by documents now of record. The Senator moves—without any reference to a committee, without giving the petition the decency of a hearing, according to the ordinary forms of this body—that the memorial be “rejected”; and he makes this unaccustomed motion with a view to establish a precedent in such a case. I feel it my duty to establish a precedent also in this case, by entering an open, unequivocal protest against such attempt. Sir, an ancient poet said of a judge in hell, that he punished first and heard afterwards,—“castigatque auditque”; and, permit me to say, the Senator from Virginia, on this occasion, takes a precedent from that court.

Only one word. I presented a memorial to this body, setting forth an outrage. The Senator from Virginia moved its rejection, while he proposed that the case should be proceeded with. I characterized that motion as I thought I was authorized to do, referring to a precedent of antiquity, and that was all; and this is the occasion for a lecture from the Senator on the manner in which one should conduct on this floor. From the heights of his self-confidence he addresses me. Sir, I wish to say simply, in reply, that, when an outrage comes before this body, I shall denounce it in plain terms; and if a precedent from a very bad place seems to be in point, I shall not hesitate to quote it.