“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.”