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.
“So spake the Fiend, and with necessity,
The tyrant’s plea, excused his devilish deeds.”
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:—
“I may observe, in passing, that throughout the reign of George the Second the privileges of the House of Commons flourished in the rankest luxuriance.… So long as men in authority are enabled to go beyond the law, on the plea of their own dignity and power, the ONLY limit to their encroachments will be that of the public endurance.”[21]