Then he gives his conclusion:—
“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.