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.”