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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," 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.
1 Ante, p. 5.
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. 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."
Sir Edward Hobby followed:
"And for my own opinion, I think that he that is against the Body of the Bill can be no Committee."
The report then proceeds:
"Then the Speaker stood up and said, '.... All that will have a man that hath been against the Body of the Bill to be
1 D'Ewes, Journals of all the Parliaments during the Reign of Queen Elizabeth, p. 629.
a Committee, let them show their opinions by saying Yea.' And not one said Yea. 'All that will not, say No.' And all said No."
I take this important precedent from Townshend's Historical Collections: or, An Exact Account of the Proceedings of the Four Last Parliaments of Q. Elizabeth," pp. 208, 209. The same account is found also in D'Ewes's "Journals of all the Parliaments during the Reign of Queen Elizabeth," pp. 634-35.
Thus, on submission of the question by the Speaker, the House unanimously decided that they would "not have a man that hath been against the Body of the Bill to be a Committee." According to the report, "All said No"; and that unanimous "No" is the voice of Parliamentary Law, repeated ever since. The phrase "against the Body of the Bill" is strong and suggestive, showing the purpose to exclude those who were unfriendly to the
Following the history of the rule, we meet it again, as stated by Hakewel in his "Modus tenendi Parliamentum," published in 1671:
"He that speaketh directly against the body of the bill may not be named a committee; for he that would totally destroy will not amend." 1
Here again is the declared purpose to save the measure from the hands of enemies.
Then follows a case remarkable for words which have become familiar in Parliamentary Law. It was that of Colonel Birch, who, February 11, 1677, brought into Parliament a Bill for Settling a Public Register for Lands in the several Counties, and in his remarks said:
1 Page 146.
"I begged you formerly not to put the child to a nurse that cared not for it. For it was formerly committed to two lawyers, and the thing was lost."1
Here the commitment of a bill for reform in law to "two lawyers" was condemned, because they were a nurse that did not care for it; and the casual remark of the author of the bill has become historical. There is good law as well as sense in his saying, that a child is not put to a nurse that cares not for it. Parliamentary Law, in the creation of special committees, always seeks those who care for the business, whatever it may be. One against an inquiry, or believing that there is no occasion for it, is repudiated by this rule, so just and benign, and also so venerable with years.
The preparation of articles of impeachment against the Earl of Danby, Lord High Treasurer in the reign of Charles the Second, December 21, 1678, presented the same rule in another aspect. It was no longer a bill, but an inquiry or investigation, when the Speaker said:
"No man, by the ancient rules of the House, is to be of a committee of a thing he is against."
Here the language is somewhat broadened, though in entire keeping with the other cases. A man cannot be on a committee "of a thing he is against." In other words, if he is against the inquiry for which a committee is created, he cannot be on it. And here again good faith requires that the rule should be observed not merely in form, but in substance.
These cases were analyzed and adopted by Mr. Jeffer
1 Gray's Debates of the House of Commons, Vol. V.