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son in his authoritative "Manual"; so that they have become American Parliamentary Law, as obligatory here as in England. Speaking always by their essential reason, but with the weight of precedent also, they are not less binding than if promulgated with an enacting clause.
Mr. Jefferson furnishes other and most important words of his own:
"And when any member who is against the bill hears himself named of its committee, he ought to ask to be excused." 1
This is the language of our Manual, declaring the duty of a member who hears himself named of a committee on a bill he is against. Of course the general rule is applicable to any other matter referred to a committee. The words are, "he ought to ask to be excused." Of course his continuance on the committee, or any attempt to exercise its duties, is a violation of Parliamentary Law, unless you are ready to discard this positive injunction.
Mr. Jefferson then adds, by way of illustration:
Thus, March 7, 1606, Mr. Hadley was, on the question being put, excused from being of a committee, declaring himself to be against the matter itself.” 2
And our great authority declares that this is "a constant rule." 3
Such is Parliamentary Law; and Mr. Jefferson has answered in advance the possible objection, that this is English and not American. After saying, in his preface
1 Manual of Parliamentary Practice, Sec. XXVI.
to the "Manual," that the Senate has given to these rules "the sanction of their approbation," he announces "the law of proceedings in the Senate as composed of the precepts of the Constitution, the regulations of the Senate, and, where these are silent, of the rules of Parliament." Such, according to him, is the law of our proceedings. The "Manual" which he presents he hopes others may fill up, "till a code of rules shall be formed for the use of the Senate, the effects of which may be accuracy in business, economy of time, order, uniformity, and impartiality." The last word is “impartiality," which, doubtless, is a main object to be secured.
Any one disposed to neglect these rules will find a warning from Mr. Jefferson. In his opening chapter he quotes these words from the famous Speaker Onslow :
"That these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority, and that they were in many instances a shelter and protection to the minority against the attempts of power."
Mr. Jefferson follows this quotation by declaring "the forms and rules of proceeding" to be "the only weapons by which the minority can defend themselves," and by which "the weaker party can be protected from those irregularities and abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and successful majorities."
Thus is the parliamentary rule which forbids a person unfriendly to the business of the committee, whatever it may be, whether bill or inquiry, from serving on the committee, one of those inhibitions by which public business is promoted, by which impartiality is secured,
and especially by which a minority is shielded against the wantonness of power.
"The Congressional Globe" makes it easy to apply what has been said to several of this Committee. Unless the law, as illustrated by ancient cases, and adopted by Mr. Jefferson, is entirely neglected, unless the rule. so frequently enunciated is set at defiance or treated as a sham, there are at least three serving on the Committee in violation of Parliamentary Law. In undertaking to serve, they were undoubtedly oblivious of the time-honored requirement, or did not appreciate its stringency.
Not only every Senator, but the whole country has an immeasurable interest in the preservation of those rules by which what Mr. Jefferson justly calls "the wantonness of power" is restrained, and minorities are protected against majorities. Any shock to them, as in the present case, becomes a precedent by which liberty and justice suffer. As a Senator appearing before this Committee at their request, I deem it my duty to file this Protest, in the sincere hope, that, whatever may be the result of the present inquiry, the open violation of Parliamentary Law in the formation and constitution of the Committee will not be permitted to become a precedent hereafter. When law is sacrificed, individuals may for a moment seem to triumph, but it is at the cost of a great safeguard for the good of all.
SENATE CHAMBER, March 26, 1872.
On motion of Mr. Carpenter, of the Committee, it was ordered that a subpoena in regular form be issued to Mr. Sumner, returnable the
next day, to be served by the Sergeant-at-Arms; which was duly issued and served.
March 27th, Mr. Sumner appeared, and, after the reading of the subpoena, proceeded to read a second Protest.
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 subpoena, 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 subpoena. 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.”1
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." 2
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 2 Ibid., p. 732.
1 Lex Parl. Amer., pp. 729-30.