New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1871-05-20
SFNdTORIAL USURPd1ION.

! tee The right of the Senate to compel the
testimony Of witnesses has several times been
| warmly debated in COngTess-notably IN the
| case of Thaddeus Hyatt, imprisoned for re-
! fusng to testify before the Committee OF In
Guirv into the John Brown raid-and has been
/ asserted by a majority vote; but it has never
/ been iudicially defined, and has been cOntro-
vcrtcd by the ablcst constitutional lawyers
! and statesmen who have held seats IN Con-
grossly Sumner, Seward, Hale, Fcsscnden,
and many others. Whatever may be the true
doctrine in certain other cases, we purpose to
show that in such an instance as this thc Sem
ate has no power whatever.
The power to punish for contempt - not
granted by tie Constitution 10 either branch
of Congress- and can only be claimed as a
right inherent IN the judicial character But
the cases in which the Senate may exercise
judicial functions are clearly defined, and are
limited to these: I. Cases of impeachment; q
Cases touching the election, qualifications, and
returns of its own members 3. Cases lnvolv-
ing the punishment or expulsion of members.
The present inquiry comes under none of these
three heads and according to the Constitution
the Senate in making it is not exercising the
judicial character, and is not clothed with jul
dcial powers. 1t may be said that in case Che
Treaty proved to have been divulgcd by some
official in the State Department or White
House, impeachment would have followed, and
this was proper preliminary inquiry; but
the Senate has no right to make such prelim-
mary inquiries, the power OF inStituting I'M
parchment being reserved to the House of
Representatives. 1t may also be said that the
Senate had q right to inquire whether one OF
its own members had become liable to punish
ment by divulging the secrets OF the Chamber.
Waving this point, we reply that the recusant
correspondents gave full and respectful answers
to all questions on this head, and the question
which they declined to answer was in effect
this: d" If you did not get the Treaty from
"mcmber officer or clerk of the Senate, where
did Won get it3" The utmost stretch of the
Constitution could not Justify such Il question
as this.
But we need not press this point, for Mr..
Carpenter, the spokesman of the resolution,
has expressly told us that he derives his au-
thority from different source. The Select
Committee was instructed to inquire " not
"mercly into the conduct of Senators and
"oficers of the Senate, but into the facts
" when and by whom the Treaty between the
United States and Great Britain was made
"public. If it got out through the State De-
apartment, Congress might pass law pro-
"hibitng such things from being made public,
&" and so of the other Departments" That Is
to say, the right to institute committees OF
inquiry and compel the attendance of witnesses
is an incident of legislation. This was the
ground upon which the Senate in 1860 impris-
oned Hyatt and ordered the arrest Of i. b..
Sanborn and James Redpath. 1t was holly
and ably disputed at the time, but the pro-
Slavery Senator's under the lead of Mr. Mason,
passed the order of arrest, and Mr.. Hyatt was
sent to Jail. The pretensiOn was cOncluSivcly
refuted, not only by Mr.. Sumner and other
Senators, but by Mr.. Hyatts counsel the late
Gov. Andrew and the Hon. S. L. Sewall, in an
elaborate paper which was read by
the Clerk of the Senate 1t is a we'll
known principle of law that whenever any
power is granted all other powers absolutely
essential to the exercise of that one are to be
understood as granted with it; but the right
to imprsOn witnesses is not essential to the
exercise of legislation. 1t may be convenient;
but that is another thing. 81 know it is said,"
remarked Mr.. Sumner, in reviewing the Hyatt
case, "that this power is necessary in aid of
Legislation. | deny the necessity. Convenient
"at times it may be; but necessary never. We
do not drag the members of the Cabinet or
"the President to testify before Committee
"'in aid of legislation but | say without hes
citation, they can claim no immunity which
"d0es not belong equally to the humblest
Citizen" Mr.. Carpenter has no more right to
ip,p a A. rregupnIput
ing to aid him in the business Of legislation
than he would have to summon General Grant
to testify all that he knew about the secret
deliberations of the Joint High Commission,
and to lock him up in the common Jail If he
refused
AS if to make his case still worse, Mr..
Carpenter quoted the law of 1857, respecting
the power of either House of Congress to
force the attendance of witnesses, and added
that under that law the olfense of " this man
"Whiten was "a misdemeanOr punishable
"wth fine of from 800 to ! 900, and from
cone month to twelve months imprisonment,
" in the discretion of the Court" In the first
place, an Act of Congress cannot authorize an
unconstitutional exercise of power. In the
second place, the Act of 1867 was passed for
a legitimate purpOse-namely, to facilitate the
examination of certain charges of official mis-
conduct against members of the House-and
not to authorize inquiry in aid OF legisla-
ton" In the third place, it provided that a
recusant witness should, i'll addition to the
pains and penalties then existing, be liable
" 10 Indictment for a miSdemean0r i'll any court
of the United States having jurisdiction