Henry Wilson got his action, of a sort. He demanded that the Senate do something about Preston Brooks caning Charles Sumner. At first no one rose to take up his suggestion that they form an investigatory committee, but then William Seward introduced a resolution to that effect. After a minor amendment, the Senate approved. The committee went to work sometime thereafter, delivering its report on May 28, six days after the attack.
The committee, unsurprisingly, agreed that Brooks had caned Sumner in response to words Sumner spoke on the floor of the Senate. They opted not to comment on “the various circumstances which preceded and attended this affair.” Instead, they reported looking into precedent. They had to scour the journals of the House of Representatives, as the Senate had no previous occasion to weigh in on such an event. The record held “an assault upon a member for words spoken in debate to be a violation of the privileges of the House.”
So Brooks warranted some kind of disciplinary action. There the Senators found a difficulty. His attack upon Sumner “was a breach of the privileges of the Senate” yet “not within the jurisdiction of the Senate, and can only be punished by the House of Representatives, of which Mr. Brooks is a member.”
To support that conclusion, the committee referred to British precedent that made the houses of Parliament equals and independent of one another “in every respect.” As independent equals, neither house could exert authority over the other. Thomas Jefferson agreed in his parliamentary manual, holding that in such occasions the offended chamber should complain to the other or redress. As a member of the House, only the House could judge and punish Brooks.
The Senate might have gotten right on that, at least for the sake of maintaining the forms. The matter came almost to a vote, but then James Mason objected again. He noted
the honorable Senator from South Carolina, [Mr. Butler,] who may feel, and probably does feel, an interest in this matter, is not in his seat. he has not been in the Senate to-day, I believe; I have not seen him. I think it would be better, therefore, to allow it to lie over. I do not know that he has any opinions in relation to it which he desires to express. I merely make the suggestion.
“Several senators” objected to delaying things, at which point Mason gave it up and the Senate agreed to the resolution.
The Senators might have found a way to try and punish Brooks if they wished to; politicians get creative about these things. A committee entirely unfavorable to Sumner, as the Senate elected, would probably not have exerted itself too much to find a solution. Yet on consideration, the problem does strike at the heart of bicameralism. The Constitution establishes two chambers of Congress, each with its own privileges. Those include the power to discipline their own members through use of each chamber’s rules. If the Senate could summon a congressman and punish his misconduct, then it sat as judge over the House.
One might reasonable counter with the argument that Brooks did not commit his crime in the House, but rather on the floor of the Senate. By entering the room, he entered their jurisdiction and had to abide by their rules. If Senate rules could regulate the behavior spectators in the gallery, as they did and do, then they clearly didn’t reach just Senators and those employed by the chamber as aides and officers. A Congressman might easily fall under them.
The committee found otherwise, but by referring the matter to the House and its antislavery coalition majority the Senators also knew the likely result. In relying on constitutional propriety to wash their own hands of Brooks, they probably expected that the House would find some way to handle him.