Volume 20 — PARLIAMENTARY LAW ON THE APPOINTMENT OF SPECIAL COMMITTEES OF THE SENATE.

Two Protests against the Competency of the Senate Committee to Investigate the Sale of Arms to France; March 26 and 27, 1872.

March 26, 1872, Mr. Sumner appeared before the Committee to investigate the sale of arms by the United States during the French and German War, in response to a communication signed by the chairman of the Committee requesting his attendance. After reading this communication, Mr. Sumner proceeded to read and file a protest in the following terms:—

PROTEST.

Personally, I object to no examination. Willingly would I submit to the most searching scrutiny, not only in the present case, but in all my public life. There is not an act, letter, or conversation at any time, that I would save from investigation. I make this statement, because I would not have the protest I deem it my duty to offer open to suspicion that there is anything I desire to conceal or any examination I would avoid.

But appearing before the Committee on an invitation which is in the nature of a summons, to testify in the investigation originally moved by me into the sale of arms to France, I am obliged to consider my duty as a Senator. Personal inclinations, whatever they may be, cannot be my guide. I must do what belongs to a Senator under the circumstances of the case.

Before answering any questions, I am constrained to consider the competency of the Committee which has summoned me. It is of less importance what these questions may be, although there are certain obvious limitations, to which I will allude at the outset.

The examination of a Senator by a Committee of the Senate on a matter outside of the Senate, and not connected with his public duties, is sustained by precedents,—as when Mr. Seward and Mr. Wilson were examined with reference to the expedition of John Brown;[25] but any examination with regard to his public conduct, and especially with regard to a matter which he has felt it his duty to lay before the Senate in the discharge of his public duties, is of very doubtful propriety. In his public conduct a Senator acts on his responsibility, under sanction of an oath, and the Constitution declares that “for any speech or debate” he “shall not be questioned in any other place.” This inhibition, while not preventing questions of a certain character, must limit the inquiry; but the law steps forward with its own requirements, according to which it is plain that a Senator cannot be interrogated, first, with regard to his conference with other Senators on public business, and, secondly, with regard to witnesses who have confidentially communicated with him.

Referring to the most approved work on the Law of Evidence,—I mean that of Professor Greenleaf,—we find under the head of “Evidence excluded from Public Policy”[26] at least four different classes of cases, which may enlighten us in determining the questions proper for Senators.

1. Communications between a lawyer and client. And are not the relations of Senators, in the discharge of their public duties, equally sacred?

2. Judges and arbitrators enjoy a similar exemption with regard to matters before them.

3. Grand jurors, embracing even the clerk and prosecuting officer, cannot be examined on matters before them.

4. Transactions between the heads of Departments and their subordinate officers are treated as confidential.

Plainly, the conferences of a Senator, in the discharge of his public duties, cannot be less protected.

This rule is equally imperative with regard to witnesses who have confidentially communicated with a Senator. Here again I quote Professor Greenleaf, who quotes the eminent English judge of the close of the last century, Lord Chief-Justice Eyre, as follows:—

“There is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made should not be unnecessarily disclosed.”[27]

Then the learned professor proceeds:—

“All were of opinion that all those questions which tend to the discovery of the channels by which the disclosure was made to the officers of justice were, upon the general principles of the convenience of public justice, to be suppressed; that all persons in that situation were protected from the discovery.”[28]

These words are explicit, and nobody can question them.

I am led to make these remarks and adduce these authorities because, perusing the testimony of Mr. Schurz, I find that he was interrogated on these very matters; and since I, too, am summoned as a witness, I desire to put on record my sense of the impropriety of such questions. It is important that they should not become a precedent. And here again I declare that I have nothing to conceal, nothing that I would not willingly give to the world under any examination and cross-examination; but I am unwilling to aid in the overthrow of a rule of law which stands on unquestionable grounds of public policy. Especially is it important in the Senate, where, without such protection, a tyrannical majority might deter a minority from originating unwelcome inquiries.

From these preliminaries I proceed to consider the competency of the present Committee. Requested as a Senator to appear before you, I deem it my duty to protest against the formation and constitution of the Committee as contrary to unquestionable requirements of Parliamentary Law; and I ask the Committee to receive this protest as my answer to their letter of invitation. I make this more readily because in my speech in the Senate, February 28, 1872, entitled “Reform and Purity in Government, Neutral Duties, Sale of Arms to Belligerent France,”[29] I have set forth what moved me to the inquiry, being grounds of suspicion, which, in my judgment, rendered the most searching inquiry by a committee friendly to inquiry absolutely necessary.

The general parliamentary rule in the appointment of special committees requires that they should be organized so as to promote the business or inquiry for which the committee is created. This requirement is according to obvious reason, and is sustained by parliamentary authorities. In familiar language, a proposition is committed to its friends and not to its enemies.

In illustration of this rule, we are told that members who have spoken directly against what is called “the body of the bill,” meaning, of course, the substance of the inquiry, are not expected to serve on the committee, but, should they be so nominated, to decline. Their presence on a committee is not unlike participation in a trial by a judge or juror interested in the result.

Very little reflection shows how natural is this rule as an instrument of justice. The friends of a measure, or the promoters of an inquiry, though in the majority on a committee, can do no more than adduce evidence that exists, so that the business cannot suffer through them,—while those unfriendly to a measure, or hostile to an inquiry, may, from lukewarmness, or neglect, or possible prejudice, fail to present the proper evidence or recognize its just value, so that the business will suffer. In legislation, plainly, those who believe an inquiry necessary are the most proper persons to conduct it, and being so, they are selected by Parliamentary Law.

This rule may be traced in the history of Parliament anterior to the settlement of our country. The ancient statement was simply that “those against the bill should not be on the committee.” The meaning of the rule is distinctly seen in historic cases, which I proceed to adduce.

In the House of Commons, as far back as November 7, 1601, in the reign of Queen Elizabeth, on the commitment of a bill relating to misdemeanors, the entry in the Journal mentions that it was delivered to a certain member, and then says, “and Mr. Serjeant Harris to be exempted out of the Committee, because he spake against the body of the Bill,” according to the ancient order in Parliament.[30] In other words, a speech against a measure disqualified the learned member, so that, according to the expressive words, he was “exempted out of the Committee.”

Again, in the case of the commitment of a bill affecting the city of London, which came up November 11, 1601, on the question whether the members for London, known to be against the bill, could be of the Committee, the rule of the House was stated in these positive words: “That those against the Bill should be no Committees.” Of course, this rule was not merely of form, but of substance. It meant that those really against the measure were not proper for the Committee, all of which appeared in the recorded debate and proceedings that ensued. A leading member, Mr. Wiseman, said:—

“The House allowing of this Bill to be committed are, in my opinion, to disallow any that will be against the Body of the Bill for being Committees.”

Sir Edward Hobby followed:—

“And for my own opinion, I think that he that is against the Body of the Bill can be no Committee.”

The report then proceeds:—

“Then the Speaker stood up and said, ‘… All that will have a man that hath been against the Body of the Bill to be a Committee, let them show their opinions by saying Yea.’ And not one said Yea. ‘All that will not, say No.’ And all said No.”

I take this important precedent from Townshend’s “Historical Collections: or, An Exact Account of the Proceedings of the Four Last Parliaments of Q. Elizabeth,” pp. 208, 209. The same account is found also in D’Ewes’s “Journals of all the Parliaments during the Reign of Queen Elizabeth,” pp. 634-35.

Thus, on submission of the question by the Speaker, the House unanimously decided that they would “not have a man that hath been against the Body of the Bill to be a Committee.” According to the report, “All said No”; and that unanimous “No” is the voice of Parliamentary Law, repeated ever since. The phrase “against the Body of the Bill” is strong and suggestive, showing the purpose to exclude those who were unfriendly to the measure.

Following the history of the rule, we meet it again, as stated by Hakewel in his “Modus tenendi Parliamentum,” published in 1671:—

“He that speaketh directly against the body of the bill may not be named a committee; for he that would totally destroy will not amend.”[31]

Here again is the declared purpose to save the measure from the hands of enemies.

Then follows a case remarkable for words which have become familiar in Parliamentary Law. It was that of Colonel Birch, who, February 11, 1677, brought into Parliament a Bill for Settling a Public Register for Lands in the several Counties, and in his remarks said:—

“I begged you formerly not to put the child to a nurse that cared not for it. For it was formerly committed to two lawyers, and the thing was lost.”[32]

Here the commitment of a bill for reform in law to “two lawyers” was condemned, because they were a nurse that did not care for it; and the casual remark of the author of the bill has become historical. There is good law as well as sense in his saying, that a child is not put to a nurse that cares not for it. Parliamentary Law, in the creation of special committees, always seeks those who care for the business, whatever it may be. One against an inquiry, or believing that there is no occasion for it, is repudiated by this rule, so just and benign, and also so venerable with years.

The preparation of articles of impeachment against the Earl of Danby, Lord High Treasurer in the reign of Charles the Second, December 21, 1678, presented the same rule in another aspect. It was no longer a bill, but an inquiry or investigation, when the Speaker said:—

“No man, by the ancient rules of the House, is to be of a committee of a thing he is against.”[33]

Here the language is somewhat broadened, though in entire keeping with the other cases. A man cannot be on a committee “of a thing he is against.” In other words, if he is against the inquiry for which a committee is created, he cannot be on it. And here again good faith requires that the rule should be observed not merely in form, but in substance.

These cases were analyzed and adopted by Mr. Jefferson in his authoritative “Manual”; so that they have become American Parliamentary Law, as obligatory here as in England. Speaking always by their essential reason, but with the weight of precedent also, they are not less binding than if promulgated with an enacting clause.

Mr. Jefferson furnishes other and most important words of his own:—

“And when any member who is against the bill hears himself named of its committee, he ought to ask to be excused.”[34]

This is the language of our Manual, declaring the duty of a member who hears himself named of a committee on a bill he is against. Of course the general rule is applicable to any other matter referred to a committee. The words are, “he ought to ask to be excused.” Of course his continuance on the committee, or any attempt to exercise its duties, is a violation of Parliamentary Law, unless you are ready to discard this positive injunction.

Mr. Jefferson then adds, by way of illustration:—

“Thus, March 7, 1606, Mr. Hadley was, on the question being put, excused from being of a committee, declaring himself to be against the matter itself.”[35]

And our great authority declares that this is “a constant rule.”[36]

Such is Parliamentary Law; and Mr. Jefferson has answered in advance the possible objection, that this is English and not American. After saying, in his preface to the “Manual,” that the Senate has given to these rules “the sanction of their approbation,” he announces “the law of proceedings in the Senate as composed of the precepts of the Constitution, the regulations of the Senate, and, where these are silent, of the rules of Parliament.” Such, according to him, is the law of our proceedings. The “Manual” which he presents he hopes others may fill up, “till a code of rules shall be formed for the use of the Senate, the effects of which may be accuracy in business, economy of time, order, uniformity, and impartiality.” The last word is “impartiality,” which, doubtless, is a main object to be secured.

Any one disposed to neglect these rules will find a warning from Mr. Jefferson. In his opening chapter he quotes these words from the famous Speaker Onslow:—

“That these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority, and that they were in many instances a shelter and protection to the minority against the attempts of power.”

Mr. Jefferson follows this quotation by declaring “the forms and rules of proceeding” to be “the only weapons by which the minority can defend themselves,” and by which “the weaker party can be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities.”

Thus is the parliamentary rule which forbids a person unfriendly to the business of the committee, whatever it may be, whether bill or inquiry, from serving on the committee, one of those inhibitions by which public business is promoted, by which impartiality is secured, and especially by which a minority is shielded against the wantonness of power.

“The Congressional Globe” makes it easy to apply what has been said to several of this Committee. Unless the law, as illustrated by ancient cases, and adopted by Mr. Jefferson, is entirely neglected, unless the rule so frequently enunciated is set at defiance or treated as a sham, there are at least three serving on the Committee in violation of Parliamentary Law. In undertaking to serve, they were undoubtedly oblivious of the time-honored requirement, or did not appreciate its stringency.

Not only every Senator, but the whole country has an immeasurable interest in the preservation of those rules by which what Mr. Jefferson justly calls “the wantonness of power” is restrained, and minorities are protected against majorities. Any shock to them, as in the present case, becomes a precedent by which liberty and justice suffer. As a Senator appearing before this Committee at their request, I deem it my duty to file this Protest, in the sincere hope, that, whatever may be the result of the present inquiry, the open violation of Parliamentary Law in the formation and constitution of the Committee will not be permitted to become a precedent hereafter. When law is sacrificed, individuals may for a moment seem to triumph, but it is at the cost of a great safeguard for the good of all.

Charles Sumner.

Senate Chamber, March 26, 1872.

On motion of Mr. Carpenter, of the Committee, it was ordered that a subpœna in regular form be issued to Mr. Sumner, returnable the next day, to be served by the Sergeant-at-Arms; which was duly issued and served.

March 27th, Mr. Sumner appeared, and, after the reading of the subpœna, proceeded to read a second Protest.

SECOND PROTEST.

Since reading and filing my Protest yesterday, I have received by the hands of the Sergeant-at-Arms a subpœna commanding me to appear before this Committee. In answer to this subpœna, I now appear.

It is my duty to declare that my judgment as originally set forth in my Protest is in no respect altered by this subpœna. I do not think the Committee more competent to-day than yesterday. I still find several occupying seats on the Committee in violation of an unquestionable rule of Parliamentary Law. The record shows that they signalized themselves in the Senate by open speech against the pending inquiry and those who brought it forward, or, according to the language of the old rule, “against the thing,” and therefore disqualified themselves as much as a judge who has been counsel in a case, or a juror who has declared his opinion beforehand. This disqualification is not founded on argument or inference, but on peremptory rule, traced back many generations, illustrated by numerous authorities, and constituting part of what Mr. Jefferson calls the “code” for the government of the Senate, having, as he says, “the sanction of their approbation.”

Besides the authorities which I cited yesterday, there are two others from our own country, which I deem it my duty to adduce. The first is that of Cushing’s “Lex Parliamentaria Americana” or “The Law and Practice of Legislative Assemblies in the United States.” Here we learn how completely a committee is placed by Parliamentary Law in the hands of the mover, thus:—

“It became the established practice for the member upon whose motion a committee had been ordered, to move the names of the members to compose it,—being, of course, of his own selection: his own name being among them, and perhaps the first named on the list. If he felt any delicacy in moving his own name, the motion might be made by some friend: as on the occasion of the appointment of the committee to prepare articles of impeachment against Lord Melville, which had been ordered on the motion of Mr. Whitbread, that gentleman was first appointed one of the committee on the motion of Lord Temple, and then on the motion of Mr. Whitbread the other members of the committee (Lord Temple being one) were appointed.”[37]

As this was a case of investigation, it is a precedent for us now. But our Committee was constituted in a very different manner. Mr. Cushing vindicates the practice of allowing the mover of a proposition himself to nominate the committee for the consideration of the House, saying:—

“That the House, by adopting the resolution for the committee, has signified its willingness that the subject should be so considered or investigated; that the member nominating the committee must be supposed to feel as strong an interest in the proper consideration of the subject as any one, and also to possess or to be willing to obtain the knowledge necessary to enable him to decide upon the qualifications of the members he selects.”[38]

In this vindication the careful and elaborate author shows how completely the early rule is recognized. The same learned authority, while stating the English and American Parliamentary Law, shows how the examination is conducted:—

“When an inquiry is instituted and an examination of witnesses undertaken by the House in its inquisitorial capacity, it is customary for the member on whose motion or suggestion the inquiry has been engaged in, or for some of the members voting with him for the inquiry, to take the lead in the examination of the witnesses, … or, in other words, to examine the witnesses in chief.”[39]

Plainly, according to this usage, Mr. Schurz, and not Mr. Hamlin, should take the lead and examine the witnesses in chief.

The other parliamentary authority to which I refer is Hon. R. M. T. Hunter, former Speaker of the House of Representatives. In his valedictory speech, March 3, 1841, this gentleman, who brought thought and study to the discharge of his public duties, took occasion to explain the principles governing the formation of committees, and all must admit that he did it with a clearness and philosophy not surpassed in parliamentary history. According to him, those having the affirmative of a proposition should have the direction of the committee. Speaking generally, he says:—

“The party upon which it naturally devolves to propose a question ought to have the power, it would seem, to present its proposition in the shape for which it is willing to be responsible; and as the different parties hold the affirmative according to the nature of the question, so ought the constitution of the committees to be varied.”

Then, in language precisely applicable to the present case, the Speaker says:—

“In committees of investigation it is equally clear that the opposition, who hold the affirmative, should have the majority and the power.”[40]

This instructive statement is in admirable harmony with the rule, as declared in early times, that those “against the thing” cannot go on the committee,—and that a measure, like a child, is not put to a nurse that cares not for it. The old Parliamentarians were less philosophical than the American Speaker, but each meant the same thing. The prime object is opportunity and fair play for those bringing forward a proposition, or holding the affirmative. A committee organized to sustain the negative is the very committee described as a nurse that cares not for the child, and therefore is a committee not tolerated by Parliamentary Law.

Thus from all quarters—beginning with the distant in time, embracing Jefferson, the father of American Parliamentary Law, Cushing, its most authoritative American expounder, and not forgetting an American Speaker—proceeds concurring testimony to the parliamentary rule requiring an inquiry to be placed in the hands of its friends; especially is it necessary that the chairman, who directs the inquiry and examines the witnesses, should be known as one of its friends.

Therefore I must be pardoned, if I renew my Protest against the competency of the present Committee. I protest against it as constituted in flagrant violation of Parliamentary Law; and I protest especially against the acting Chairman, who undertakes to direct this inquiry and to examine witnesses, as not coming within the conditions established by rule, by usage, and by reason. The record shows that he did not move the inquiry, nor did he coöperate with the mover, or take any part in sustaining him, while in open speech he showed himself “against the thing.” I object to the acting Chairman as to a judge or juror disqualified to sit in a court.

I make this second Protest with infinite reluctance. But the Committee leave me no alternative. In their invitation, in the nature of a summons, and now in their subpœna, they compel me to declare my objection to their competency. Seeing it as clearly as I do, and feeling it as strongly as I do, I cannot avoid expressing it. If I do so twice, it is because the Committee have laid me twice under this obligation. Beyond that sentiment of duty which is with me a rule of life, I am encouraged to this effort by the hope that, even if the present Committee cannot be corrected in conformity with Parliamentary Law, its incompetency is so clearly exposed that it will be powerless hereafter as a precedent. If obliged to witness the present dishonor of a time-honored rule, I would at least save this safeguard for the future.

In thus declaring my profound sense of the wrong that has been attempted, I do all in my power to maintain Parliamentary Law inviolate. I regret that I cannot do more.

With this explanation, and yielding to the command of the Committee, I offer myself for examination on matters proper for inquiry; but I do it under protest.

Charles Sumner.

Senate Chamber, 27th March, 1872.

Mr. Carpenter moved that the two Protests be returned to Mr. Sumner, as disrespectful to the Committee. On a subsequent day the motion was withdrawn.