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.