But the question was presented at a later day in another case before the Privy Council, which came from the Supreme Court of Van Diemen’s Land. I cite now Moore’s Privy Council Cases, volume eleven. This case was decided in 1858. It is therefore a recent authority. The marginal note is as follows:—
“The Lex et Consuetudo Parliamenti applies exclusively to the House of Lords and House of Commons in England, and is not conferred upon a Supreme Legislative Assembly of a colony or settlement by the introduction of the Common Law of England into the colony.
“No distinction in this respect exists between Colonial Legislative Councils and Assemblies whose power is derived by grant from the Crown or created under the authority of an Act of the Imperial Parliament.”[115]
You will see, Sir, that by this decision the powers of a Legislative Assembly created by a Charter are limited to the grants of the Charter, and that the mere creation of the legislative body does not carry with it the Law and Custom of Parliament. In the course of his opinion Lord Chief-Baron Pollock uses the following language. Alluding to the decision of the Privy Council in the Newfoundland case, he says:—
“They held that the power of the House of Commons in England was part of the Lex et Consuetudo Parliamenti; and the existence of that power in the Commons of Great Britain did not warrant the ascribing it to every Supreme Legislative Council or Assembly in the Colonies. We think we are bound by the decision of the case of Kielley v. Carson.… If the Legislative Council of Van Diemen’s Land cannot claim the power they have exercised on the occasion before us as inherently belonging to the supreme legislative authority which they undoubtedly possess, they cannot claim it under the statute as part of the Common Law of England (including the Lex et Consuetudo Parliamenti) transferred to the Colony by the 9th Geo. IV. c. 83, sect. 24. The Lex et Consuetudo Parliamenti apply exclusively to the Lords and Commons of this country, and do not apply to the Supreme Legislature of a Colony by the introduction of the Common Law there.”[116]
Now the question is directly presented by these decisions, whether under the written text of the Constitution of the United States you can ingraft upon our institutions the Law and Custom of Parliament. So far as these cases are applicable, they decide in the negative; but I will not press them to that extent. I adduce them for a more moderate purpose,—simply to put the Senate on its guard against any assumption of power in this matter. I do not undertake to say to what extent the Senate may go; but with these authorities I warn it against proceeding on any doubtful practices. If there be any doubt, then do these authorities cry out to you to stop.
I have said, Sir, that our powers here are limited by the Constitution: I may add, also, and the Law in pursuance of the Constitution. And now I ask you to show me any text of the Constitution, and to show me any text of Law, which authorizes the detention of these witnesses by the Senate. The Senate, be it understood, is not a court. Certainly, for this purpose and on this occasion, it is not a court. Show me the law. Does it exist? If it exists, some learned Senator can point it out. But while Senators fail to point out any law sanctioning such a procedure, I point out an immortal text in the Constitution of the United States, borrowed from Magna Charta, which it is difficult to disobey:—
“No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor be deprived of life, liberty, or property, without due process of law.”
“Without due process of law.” What is the meaning of that language? Judge Story[117] tells us, as follows:—