REMARKS IN THE SENATE, ON THE BILL RELATING TO WITNESSES BEFORE
COMMITTEES, JANUARY 22, 1862.
In considering the bill amending the provisions of the
second section of the Act of January 24, 1857, enforcing the
attendance of witnesses before Committees of either House of
Congress, the following clause was objected to: “And no witness
shall hereafter be allowed to refuse to testify to any fact
or to produce any paper touching which he shall be examined
by either House of Congress or any Committee of either House,
for the reason that his testimony touching such fact or the
production of such paper _may tend to disgrace him or otherwise
render him infamous_.” In the debate that ensued Mr. Sumner
spoke as follows.
MR. PRESIDENT,--There seems to be much inquiry as to the Common Law on
this question, and various points are presented.
It is asked, for instance, whether a witness is obliged to answer,
where his answer will render him infamous. I know the differences on
this point, but cannot doubt that by the Common Law the witness is
obliged to answer in such a case,--most certainly, if the question is
relevant and material.
Again, it is asked if a witness is permitted to determine for himself
whether to answer the question proposed. Here also the Common Law, when
properly interpreted, is clear. The witness cannot be the final judge.
He must submit to the decision of the Court, which will determine
whether his answer may criminate him, by revealing either guilt or a
possible link in the evidence of guilt.
But then, Mr. President, why speak of the Common Law? Why revert to
these antiquarian inquiries, when we have the Constitution of the
United States specifically dealing with this very question? In the
fifth article of the Amendments it is provided that “no person shall
be compelled _in any criminal case_ to be a witness against himself.”
Such are the very words of the Constitution, derived from the Common
Law, but imparting precision and limitation to the Common Law. Now it
seems to me it will be enough, if, on this occasion, we follow the text
of the Constitution. As in the pending proposition there is nothing
inconsistent with the Constitution, we need not ransack the wide and
ancient demesnes of the Common Law to stir up difficulties. Whatever
the rule at Common Law, plainly under the Constitution its operation is
restricted to a “criminal case,” leaving a case of infamy untouched.
I am free to say, Sir,--and what I am about to remark is particularly
in answer to the Senator from New York [Mr. HARRIS],--that, if this
question were presented independent of the Constitution, I should be
little disposed to follow the Common Law. In my judgment the Common
Law is less wise here than it ought to be. I cannot but think that the
jurisprudence of other civilized countries, derived from the Roman Law,
supplies a better rule. There is no other civilized jurisprudence under
which a witness is excused from answering any question, though the
answer may affect his character or honor, or even render him criminal.
The Common Law, at an early day, under a generous inspiration, adopted
a contrary principle, which, crossing the ocean with our forefathers,
is embodied in the text of the Constitution. Finding it there, I accept
it; certainly I do not quarrel with it; but I cannot consent that it
shall receive any expansion, especially interfering with the public
interests. I hope the bill may pass as it comes from the House, without
amendment. It is a good bill.
Mr. Harris, of New York, moved as an amendment: “Nor shall this
Act be so construed as to require any witness to testify to any
fact which shall tend to criminate him.” The question, being
taken by yeas and nays, resulted, yeas 19, nays 21; so the
amendment failed.
The bill was then passed, and, January 24th, approved by the
President.[140]