What is the Senate? A body created by a written Constitution, enjoying certain powers described and defined in the Constitution itself. The Constitution says nothing about contempt or punishment for contempt. In order to obtain this power you must go into inference and deduction; you must infer it or imply it. In the case of impeachments the Senate becomes a judicial body, and it is reasonable to infer that it may have the power to compel the attendance of witnesses,—in short, the powers of a court. The Senate also, by express terms of the Constitution, has the power to expel a member. There again is an inquiry in its nature judicial; and should the Senate on such occasion examine witnesses and proceed as a court, it may be inferred that it is so authorized by the Constitution. There is also a third power which the Senate possesses, judicial in character: it is to determine the election of its members. Beyond these every power that the Senate undertakes to exercise on this subject is derived by inference. It does not stand on any text of the Constitution. It is a mere implication, and, being adverse to the rights of the citizen, it must be construed strictly.
Now I am not ready to say, I do not say, that the Senate has not the power to institute a proceeding like that now in question. I am very clear that it has not the power by compulsory process to compel witnesses to testify in aid of legislation, as was once attempted in what was known familiarly as the Harper’s Ferry Investigating Case. But I do not undertake to say that it may not institute a proceeding like that in which we are now engaged; yet I admit its legality with great hesitation and with sincere doubt. I doubt whether such an assumption can stand an argument in this Chamber; I doubt whether it can stand a discussion before a court of justice. How do you arrive at such a power? The Senator from Wisconsin [Mr. Carpenter] said, the other day, the Senate, according to the arguments of certain Senators, has not the power of a justice of the peace. The Senator never spoke truer words: the Senate has not the power of a justice of the peace. A justice of the peace is a court with the powers of a court. The Senate of the United States is not a court, except in the cases to which I have already referred. It is a serious question whether it is a court in the proceeding which it has now seen fit to institute. Were it a court, then the argument of the Senator from Wisconsin might be applicable, and it might then claim the privileges of a court. It might proceed, if you please, to fine as well as to commit. The Senate in its discretion forbears to fine; it contents itself with imprisonment. But if it can imprison, why not fine? Why is not the whole catalogue of punishment open to its grasp?
I have reminded you, Sir, that our powers, whatever they may be, are under a written Constitution, and in this important respect clearly distinguishable from the powers of the House of Commons, which are the growth of tradition and immemorial usage. I am not the first person to take this ground. I find it judicially asserted in most authentic judgments, to which I beg to call the attention of the Senate.
I have in my hands the fourth volume of Moore’s Privy Council Cases, cases argued in the Privy Council of England, many of them being cases that have come up from the Colonies,—and here is one, being an appeal from the Supreme Court of the island of Newfoundland. I will read the marginal note:—
“The House of Assembly of the island of Newfoundland does not possess, as a legal incident, the power of arrest, with a view of adjudication on a contempt committed out of the House,—but only such powers as are reasonably necessary for the proper exercise of its functions and duties as a local Legislature.
“Semble.—The House of Commons possess this power only by virtue of ancient usage and prescription, the Lex et Consuetudo Parliamenti.
“Semble.—The Crown, by its prerogative, can create a Legislative Assembly in a settled colony, subordinate to Parliament, but with supreme power within the limits of the colony for the government of its inhabitants; but,
“Quære.—Whether it can bestow upon it an authority, namely, that of committing for contempt, not incidental to it by law?”[114]
I will not take time in reading extracts from the opinion of the Court, which goes on the ground that the Legislature of the Colony is acting under a commission from the Crown in the nature of a Constitution, being a written text, and that it could not therefore claim for itself those vast, immense, unknown privileges and prerogatives which by long usage are recognized as belonging to the House of Commons.