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.”

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