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.