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to my recollection, has ever been diplomatically discussed, is one somewhat famous at the time, known as that of the Swedish Frigate, which will be found in the second series of "Causes Célèbres," by Baron Charles de Martens.
It seems that in 1825, after ten years of peace, the Swedish Government conceived the idea of parting with ships, some of them more than twenty years old, as comparatively useless. A contract for their sale was made with a commercial house in London. The Spanish Government, by their minister at Stockholm, protested, on the alleged ground, that, though nominally sold to merchants, they were purchased for the revolted colonies in Mexico and South America, and in his communication, dated the 1st of July, 1825, used the following energetic language, which I translate:
"And what would his Majesty the King of Sweden think, on the supposition of the revolt of one of his provinces, — of the kingdom of Norway for example, if friendly and allied powers furnished the rebels with arms, munitions, a fleet even, through intermediate speculators, and under pretence of not knowing the result
I translate literally,
"intermediate speculators, and under pretence of not knowing the result? Informed of these preparations, would the Cabinet of Stockholm wait till the steel and the cannon furnished to its enemies had mown down its soldiers, till the vessels delivered to the rebels had annihilated its commerce and desolated its coasts, to protest against similar supplies, and to prevent them if possible? And if the protests were rejected, independently of every other measure, would it not raise its voice throughout Europe, and at the courts of all its allies, against this act of hostility, against this violation of the rights of sovereignty, and against this political scandal?"-Causes Célèbres, Tom. II. pp. 472-73.
These are strong words, but they only give expression to the feelings naturally awakened in a Power that seemed to be imperilled by such an act.
In another communication the same minister said to the Swedish Government :
"It is the doctrine of irresponsibility which the Cabinet of Stockholm professes with regard to the sale of these war vessels, which excites the most lively representations on the part of the undersigned.” — Note of 15 July 1825 : Ibid., p. 480.
Mark the words, "the doctrine of irresponsibility."
Then, again, the minister says in other words worthy of consideration at this moment :
"The Swedish Government on this occasion, creating this new kind of commerce, determined to furnish ships of war indiscriminately to every purchaser, even to private individuals without guaranty, establishing, as it seems to indicate, that the commercial benefits of these sales are for the State a necessity of an order superior to political considerations the most elevated, as to moral obligations the most respectable."-Note of 9 September, 1825: Ibid., p. 486.
I ask if these words are not applicable to the present case? Did it not become the Government of the United States at this time, when making these large sales, almost gigantic, so that its suspicion was necessarily aroused, to institute inquiry into the real character of the purchaser? Was it not put on its guard? Every morning told us of war unhappily raging in Europe. Could there be doubt that these large purchases were for the benefit of one of the belligerents? Was our Government so situated that for the sake of these profits it would neglect political considerations called in this dispatch the most elevated, as moral obligations the most respectable? Was it ready to assume the responsibility characterized by the Spanish minister in a case less plain, as "an act of hostility," a "violation of the rights of sovereignty," a "political scandal"?
PARLIAMENTARY LAW ON THE APPOINTMENT
OF SPECIAL COMMITTEES OF
TWO PROTESTS AGAINST THE COMPETENCY OF THE SENATE COMMITTEE TO INVESTIGATE THE SALE OF ARMS TO FRANCE; MARCH 26 AND 27, 1872.
MARCH 26, 1872, Mr. Sumner appeared before the Committee to investigate the sale of arms by the United States during the French and German War, in response to a communication signed by the chairman of the Committee requesting his attendance. After reading this communication, Mr. Sumner proceeded to read and file a protest in the following terms : —
ERSONALLY, I object to no examination. Willingly would I submit to the most searching scrutiny. not only in the present case, but in all my public life. There is not an act, letter, or conversation at any time, that I would save from investigation. I make this statement, because I would not have the protest I deem it my duty to offer open to suspicion that there is anything I desire to conceal or any examination I would avoid.
But appearing before the Committee on an invitation which is in the nature of a summons, to testify in the investigation originally moved by me into the sale of
arms to France, I am obliged to consider my duty as a Senator. Personal inclinations, whatever they may be, cannot be my guide. I must do what belongs to a Senator under the circumstances of the case.
Before answering any questions, I am constrained to consider the competency of the Committee which has summoned me. It is of less importance what these questions may be, although there are certain obvious limitations, to which I will allude at the outset.
The examination of a Senator by a Committee of the Senate on a matter outside of the Senate, and not connected with his public duties, is sustained by precedents, as when Mr. Seward and Mr. Wilson were examined with reference to the expedition of John Brown; but any examination with regard to his public conduct, and especially with regard to a matter which he has felt it his duty to lay before the Senate in the discharge of his public duties, is of very doubtful propriety. In his public conduct a Senator acts on his responsibility, under sanction of an oath, and the Constitution declares that "for any speech or debate" he "shall not be questioned in any other place." This inhibition, while not preventing questions of a certain character, must limit the inquiry; but the law steps forward with its own requirements, according to which it is plain that a Senator cannot be interrogated, first, with regard to his conference with other Senators on public business, and, secondly, with regard to witnesses who have confidentially communicated with him.
Referring to the most approved work on the Law of Evidence, I mean that of Professor Greenleaf,
1 Senate Reports, 36th Cong. 1st Sess., No. 278, pp. 140, 253.
find under the head of "Evidence excluded from Public Policy" at least four different classes of cases, which may enlighten us in determining the questions proper for Senators.
1. Communications between a lawyer and client. And are not the relations of Senators, in the discharge of their public duties, equally sacred?
2. Judges and arbitrators enjoy a similar exemption with regard to matters before them.
3. Grand jurors, embracing even the clerk and prosecuting officer, cannot be examined on matters before them. 4. Transactions between the heads of Departments and their subordinate officers are treated as confidential.
Plainly, the conferences of a Senator, in the discharge of his public duties, cannot be less protected.
This rule is equally imperative with regard to witnesses who have confidentially communicated with a Senator. Here again I quote Professor Greenleaf, who quotes the eminent English judge of the close of the last century, Lord Chief-Justice Eyre, as follows:
"There is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made should not be unnecessarily disclosed." 2
Then the learned professor proceeds:
"All were of opinion that all those questions which tend to the discovery of the channels by which the disclosure was made to the officers of justice were, upon the general principles of the convenience of public justice, to be suppressed; that all persons in that situation were protected from the discovery."3
1 Law of Evidence, Part II. ch. xiii.
2 Ibid., p. 250 (Rex v. Hardy, 24 Howell's State Trials, 808).