KEITH A. SUTHERLAND +

When the thirty-sixth Senate of the United

States convened December 5, 1859, John Brown's raid at Harpers Ferry became the first subject of deliberation. Wearing Virginia homespun, a symbol of Southern independence, James M. Mason, Democrat, submitted a resolution calling for the creation of a special committee "to inquire into the facts attending the late invasion" and report to the Senate: Whether the same was attended by armed resistance to the authorities and public force of the United States... whether such invasion and seizure was made under color of any organization intended to subvert the government of any of the States of the Union; what was the character and extent of such organization; and whether any citizens of the United States not present were implicated therein, ... What was the character and extent of the military equipment... and where and how and when was the same obtained and transported, and to recommend what legislation may . . . be necessary . . . for the future preservation of the peace of the country. The right to issue subpoenas for persons and papers was sought.

Immediately following Mason, Lyman Trumbull, Republican from Illinois, introduced an amendment extending the mandate to inquire into the seizure of weapons, supposedly by persons sympathetic to the slaves, from the

Liberty, Missouri, arsenal in 1855. Jefferson

Davis had been secretary of war at the time, Franklin Pierce, president, and the Senate, Democratic; no action had been taken. Despite this dereliction of duty four years earlier, Trumbull's amendment must be considered as a red herring designed to distract attention from the potentially anti-Republican nuances of Mason's resolution.1

The extended debate over the resolution and amendment revealed a mixture of partisan politics and national concern. Southern "FireEaters," who advocated secession, attempted by innuendo and inference to associate John Brown's raid with the Republican party, implicating particularly its titular leader William H. Seward. Their intent was to discredit the Republicans in anticipation of the 1860 presidential and congressional elections. Further, the North was warned to repudiate them at the polls or dire consequences would follow. Alfred Iverson of Georgia bluntly expressed that position: "When the right and equality of my

1976 by Keith A. Sutherland

1U. S., Congress, Senate, Congressional Globe, 36 Cong., 1 sess., 1860, pt. 1, pp. 1 ff; E. G. Spaulding to Thurlow Weed, Dec. 11, 1859, Weed Papers, Rush Reeves Library, University of Rochester.

section are disregarded by the numerical power of a party majority in this country, then I think the Union is no longer worth preserving... I am for dissolving it... I would dissolve the Union tomorrow." Most Republicans denied the allegations and forcefully condemned John Brown. Benjamin Wade of Ohio, however, advised, "This Union will not be easily disrupted- do you think you can render it asunder without a struggle?" Moderate Southerners, disturbed by the sharply partisan debate, deplored the tactics being adopted and chastised extremists on both sides for converting a matter of grave national crisis into a party battle. Most Northern and Western Democrats echoed the concern; some, however, advocated appeasing the Southern extremists, at least on this issue.2

The resolution passed unanimously, but the amendment was defeated, with only the Republicans supporting it. On December 15 Vice President Breckenridge appointed the select committee to conduct an investigation. Mason, since he had introduced the parent resolution, was named chairman; the other Democrats named were Jefferson Davis and Graham Fitch of Indiana. Representing the Republican side were Jacob Collamer of Vermont and James Doolittle of Wisconsin.3

The composition of the committee precluded a substantial and impartial investigation. The chairman, who possessed significant practical and psychological leverage, was a Southern extremist. He used his authority several times to block a balanced inquiry and instead emphasized the partisan implications of the situation. Mason's fellow Democrats on the panel were content to let him run the show as he saw fit. Fitch was a Northern "doughface" who followed Mason's lead. Davis, preoccupied with other matters, performed inadequately. His attitude is best illustrated by his questions to a witness from Boston, which were mostly on the quality of the dinners served at the Parker House. Collamer and Doolittle attempted several times to broaden the scope of the inquiry to fill in significant details

2 Senate, Congressional Globe, 36 Cong., 1 sess., 1860, pt. 1, pp. 121-124, 141-145; F. W. Pickens to B. F. Perry, Nov. 21, 1859, Perry Papers, Department of Archives, Montgomery, Alabama; (?) to William Bigler, Dec. 14, 1859, Winslow Pierce to Bigler, Dec. 13, 1859, Bigler Papers, Historical Society of Pennsylvania.

3 Senate, Congressional Globe, 36 Cong., 1 sess., 1860, pt. 1, pp. 152 and 162.

but were voted down. What the committee lacked was substance; several times during its tenure the effects of this vacuum became clear.*

In addition to the integrity of its members, the committee's conduct was regulated by the terms of the parent resolution, existing statutes, one judicial decision, and custom. The Senate's mandate with its sweeping instructions for exploring organizations, probing for sources of support, recommending legislation for protecting public property, and maintaining the peace of the country provided the committee with a basis for an investigation as broad or as narrow as it chose to exercise. The granting of full subpoena power gave substance to that exercise. The only check on the committee, therefore, was the Senate, which was comfortably Democratic.

Similarly, statutory legislation and the applicable court decision buttressed the broad latitude of the congressional investigatory power and enabled Mason's committee to pursue its mandate according to the dictates of the majority. For its guidance there were the laws of 1798, 1817, and 1857, as well as the rather affirmative decision of Anderson v. Dunn.

Laws of 1798 and 1817 invested the president of the Senate, the speaker of the House, the chairman of the Committee of the Whole, the chairmen of special committees, and the chairmen of standing committees with the power to administer oaths to witnesses and to cite, according to existing law, those who committed perjury while testifying. These laws assumed that Congress possessed the power of subpoena. The law of 1857 specified in more detail the recourse open to Congress if a witness failed to appear or challenged the subpoenas that it issued. By the provisions of that statute, contumacious witnesses were subject to a $100 to $1,000 fine and possible imprisonment for one to twelve months. Witnesses, however, were granted immunity from prosecution on criminal charges based on their testimony.5 Having testified before Congress witnesses

4U.S., Congress, Senate, Select Committee, Invasion at Harper's Ferry, Report, 36 Cong., 1 sess., 1860, S. Rept. 278, pp. 35-37, 73-77, 201, 239 (cited henceforth as Mason Report). I have consulted both printed and manuscript reports and journals, and committee documents generally. Where conflicts have arisen, citations will be from the original manuscripts, Records of the United States Senate, Record Group 46, National Archives (cited henceforth as Com. Docs.)

51 Statutes at Large 36; 3 Statutes at Large 10; 19 Statutes at Large 155.