ANSWER OF A WITNESS CRIMINATING HIMSELF.

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]

Charles Sumner: his complete works, volume 08 (of 20) · 第 58 / 125 题