The Late Case of Assault in the Senate Chamber — published June 7, 1856

The report of the Hon. Howell Cobb and Hon. A. B. Greenwood, the minority of the committee of the House of Representatives, appointed to investigate the facts touching the assault by one of its members on a member of the Senate, is a long but able document, and sets forth very clearly, the privileges of the House and the Senate as well as their respective members, and the authority the House has to punish one of its own members for a violation of the privilege of a member of the Senate. We quote as follows:

The first allegation is that the privilege of Mr. Sumner has been violated in this: that he has been questioned for the delivery of a speech in the Senate, in violation of that provision of the constitution which declares that “for any speech or debate in either House, they shall not be questioned in any other place.” This provision of the constitution was evidently intended to protect members of Congress from such legal liability as they might incur for words spoken in debate in their respective houses. It can hardly be supposed that the constitution was providing against a mode of questioning which in itself, even without such provision, would have not only been unauthorized by law, but in direct violation of the criminal law of the land. It is far from being settled that this immunity from responsibility goes to the extent claimed for it by those from whom we differ in this matter.

If members of Congress seek this shield and protection which the constitution gives them, is it an onerous condition imposed upon them that their speech shall be proper and legitimate in the discharge of their constitutional duty? Ought they to be permitted to avail themselves of the position given them by a confiding constituency to indulge in language and reflections in no wise necessary for the discharge of their official duty, nor promotive of the public good? And, even granting this right to the fullest extent, and they go beyond this exercise of speech or debate, and afterwards publish and circulate, in pamphlet form, libelous matter under the pretext that it is in this published form privileged speech or debate in Congress? Even the British Parliament, with all its disposition to protect its members, and, under the doctrine of privilege, to extend to them powers and immunities, refused to extend the doctrine beyond the strict limits of debate upon the floor of Parliament. The language of our constitution in this respect is drawn from the parliamentary law, and we suppose it will not be contended that our members of Congress have greater latitude in this respect from the members of the British Parliament.

Here the report quotes from Justice Story’s work on the Constitution, in support of their view. Judge S. says:

“Although a speech is delivered in the House of Commons is privileged, and the member cannot be questioned respecting it elsewhere, yet, if he publishes his speech, and it contains libelous matter, he is liable to an action and prosecution therefore, as in common cases of libel.

“And the same principles seem applicable to the privilege of debate and speech in Congress. No man ought to have a right to defame others under color of performance of the duties of his office. And if he does so in the actual discharge of his duties in Congress, that furnishes no reason why he should be enabled, through the medium of the press, to destroy the reputation and invade the peace of other citizens. It is neither within the scope of his public duty nor in furtherance of public rights or public policy. Ever Citizen has good a right to be protected by the laws from malignant scandal, and  false charges, and defamatory imputations, as a member of Congress has to utter them in his seat. If it were otherwise, a man’s character might be taken away without the possibility of redress, either by malice of indiscretion or overweening self-conceit of a member of Congress.”

We again quote from the report:

“The only provision of the Constitution under which the power can be exercised, on which the majority of our committee have relied, is the one already quoted, which declares that ‘each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.’

It is a question which has been much discussed, and one which it is important to decide correctly. To what extent is the power given to the two houses by this provision of the constitution to punish their members? Taking the whole paragraph in its connected sense, it seems to us that it has reference to the House while in session in the actual discharge of its constitutional duties. The power of providing rules for its proceedings, it will be seen, is coupled in that same sentence with the power to punish its members for disorderly behavior, and the power with the concurrence of two-thirds, to expel a member. If it had been contemplated that the power conferred in this provision were to be exercised to the extent now claimed for them, they would hardly have been placed in such intimate connexion with the simple power of providing rules for the proceedings of the two houses. We entertain no doubt that the whole of this provision looks to the session of the House, to the providing of rules for its proceedings during its sessions, to punishing its members for such disorderly conduct as would interrupt its session, and, where that conduct amounted to such an outrage upon the rules and proprieties of the House as would justify it, to expel the member.

To place any other construction upon this provision would be to make the members of each house, and their moral conduct and deportment, subject to the whim caprice and discretion of a majority of the body. Extend it beyond the presence of the session of the house and it becomes an unlimited power, operative not lonely during the session of Congress, but during the recess; to be exercised not only in reference to the conduct of members when in Washington city or in the District of Columbia, but when they have returned to their respective homes, and even when they have gone beyond the limits of the country. When you have passed the limits which are her laid down, there is no other boundary short of Congressional discretion. And we cannot believe that it was the intention of the framers of the constitution to place the moral conduct and deportment of members of the two houses of Congress under the control and discretion of a majority of either house.

The report, in conclusion, contends that there has been no violation in this case of the privileges of either House of Congress, or any member thereof, over which the House has jurisdiction. Whatever offence may have been committed, it says, is properly cognizable before the courts of the country, and it proposed to dismiss the subject to that jurisdiction provided by the constitution and laws of the country for its investigation.

SOURCE: Richmond Daily Whig, Richmond Virginia, Saturday Morning, June 7, 1856, p. 3

Messrs. Brooks And Sumner — published May 26, 1856

With regard to the assault upon Mr. Sumner, by Col Brooks, a statement was made in the Senate on Friday, by Mr. Wilson, of Massachusetts, which represent that Mr. S. was taken at very great disadvantage by his assailant. The following however, is said to be the authentic account of the affair.

Mr. Brooks waited at the Porter’s Lodge about an hour yesterday, and as long this morning, hoping to meet Mr. Sumner, with a view to attack him. Failing in this, he entered the Senate chamber to-day, just as that body adjourned, and seeing several ladies present, seated himself on the opposite side of Mr. Sumner. Soon all disappeared but one. He then request a friend to get her out, when he immediately approached Mr. Sumner, and said, in a quiet tone of voice:—

Mr. Sumner, I have read your speech with great care, and with as much impartiality as I am capable of and I feel it my duty to say to you that you have published a libel on my State, and uttered a slander upon a relative, who is aged and absent, and I am come to punish you.

At the concluding words Mr. Sumner attempted to spring to his feet, showing fight, but whilst in the act was struck by Col. Brooks a backhanded blow across the head with a gutta percha cane, near an inch thick, but hollow, and he continued striking him right and left until the stick was broken into fragments and, Mr. Sumner was prostrated and bleeding on the floor. No one took hold of Col. Brooks during the time, so quick was the operation; but immediately afterwards Mr. Crittenden caught him around the body and arms, when Col. B. said, “I did not wish to hurt him much, but only to whip him.”

No one knew of the anticipated attack but the Hon. H. A. Edmunson, of Virginia, who happened not to be present when the attack commenced. It was reported on the streets for several days previous that Mr. Sumner would be armed when he delivered his speech, and that if occasion required it he should use his weapons. He was not armed when attacked by Colonel Brooks to-day.

We append a sketch of the proceedings in the House of Representatives, on Friday, touching the affair:

Mr. Campbell, of Ohio, rising to a question of privilege, offered the following:

Whereas on the 23rd of May the Hon. Preston S. Brooks and Hon. Lawrence M. Keitt, members of the House from South Carolina, and other members, either as principals or accessories, perpetrated a violent assault on the person of Hon. Charles Sumner, Senator of the United States from Massachusetts, while remaining in his seat in the Senate Chamber, and while in the performance of the duties appertaining to his official station.  Therefore,

Resolved, That a select committee of five members be appointed by the Speaker to investigate the subject and report on the facts with such resolution in reference thereto as in their judgment may be proper and necessary for the vindication of the character of this House, and that said committee have power to send for persons and papers, and employ a clerk and sit during the session of the House.

A debate ensued upon a point of order.

Mr. Smith of Virginia, suggested to Mr. Campbell the propriety of striking out the preamble. It assumed as fact that which could only be ascertained as such on examination. Mr. Campbell was willing to modify the preamble, which he did to read: “Whereas it is represented, etc.” It was, he said, due to the House and all parties that facts should be presented in some authentic form, and could only be done fully and fairly through the committee.

Mr. Clingman said he was satisfied with the statement in the preamble that it was a gross falsehood, but he did not mean that Mr. Campbell had intentionally made an untrue declaration. The gentleman mistook him.

The Speaker decided the proposition in order. He said, substantially that it was represented or charged that a member of the House had assaulted a Senator while in discharge of his official duties. The Senate could not interfere with a member of the House, but it belonged to the House, if one of its members had violated the privilege of the Senate, to make an investigation, it being the prober tribunal for that purpose. The Senate being a co-ordinate branch of Congress, and covered by some constitutional privilege, it was the duty of The Chair to receive Mr. Campbell’s proposition as a question of privilege.

Mr. Clingman appealed from the decision of the Chair.

Mr. Craige was satisfied Mr. Keitt was not concerned in the matter in any way stated.

Mr. Campbell replied that if it should be passed, certainly no wrong would be done.

Mr. Keitt said he thought the dignity of the House required the investigation. His personal relations with the parties [had] always been those of friendship.

Mr. Paine inquired: is this resolution the result of precedent of action outside this hall or of [causas]?

Mr. Campbell replied that not one word had he heard passed by a member of any party as to such a course. He was influenced alone by the dictates of his own judgment and sense of public duty. As to who perpetrated the outrage; he only knew from what he had heard, although he saw Mr. Sumner lying in the ante-room adjoining the Senate Chamber with gashes on his head to the bone, and blood flowing over him.

Mr. Clingman repeated that he would leave the offender, Mr. Brooks, to answer to the law.

Mr. Letcher said that several years ago Postmaster General Hubbard was attacked by George Briggs, a member of the House, yet neither he [Mr. Letcher] nor Mr. Campbell thought it proper to bring the subject to the attention of the House.

The Speaker made a personal explanation. He had not been a party to any deliberation or consultation on this matter; and had no knowledge of the proposition until it was made from the clerk’s desk.

Mr. Brooks explained. I take the entire responsibility on myself, and state on my honor as a gentleman, no human being besides myself know when or where the transaction was intended to be made.

Mr. McQueen informed Mr. Campbell that a process had been instituted against his colleague, Mr. Brooks, who was amenable to the laws of the country. Mr. Campbell said he had no purpose to put any party in a false position, but he merely wished to ascertain the facts, there being so many rumors prevalent.

Mr. Haven appealed to Mr Campbell to omit the name of Mr. Keitt from the preamble.

Mr. Campbell assented.

Several gentlemen wanted him to strike of the words “other members,” but he refused, saying he had reasons for retaining them.

Mr. Keitt remarked that as his name had been withdrawn, he would say that he did not know the time nor the place where the act would be committed, and when it was committed he was behind the chair of the President of the Senate, with gentlemen from his own State, and he didn’t see the beginning of it. Therefore he had not the slightest preconsert with his colleague.

Under the operation of the previous question, Mr. C.’s proposition was adopted—yeas 93; nays 68.

The Speaker appointed Mr. Campbell, of Ohio, Allison, Cobb, of Georgia, Greenwood and Spinner, the committee. Mr. Allison was excused at his own request.

SOURCE: Richmond Daily Whig, Richmond Virginia, Monday Morning, May 26, 1856, p. 2