Part 4

“International Law does not require of the neutral sovereign that he should keep the citizen or subject within the same strict lines of neutrality which he is bound to draw for himself.”--_Introduction to the Study of International Law_, 2d edition, p. 270.

That is, a citizen may sell ships and arms to a belligerent and take the penalty, but the Government cannot do any such thing.

Another authority of considerable weight, Bluntschli, the German, lays down the rule as follows:--

“The neutral State must neither send troops to a belligerent, nor put ships of war at its disposal, nor furnish subsidies to aid it in making the war.

“In coming _directly_ to the aid of one of the belligerent powers by the sending of men or war material, one takes part in the war.”--_Droit International Codifié_, tr. LARDY, art. 757, p. 381.

There is the true principle: “By the sending of men or war material one takes part in the war.”

* * * * *

But the most important illustration of this question, and the only case bearing directly on this point, which, according 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 THE SENATE.

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:--

PROTEST.

Personally, 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;[25] 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,--we find under the head of “Evidence excluded from Public Policy”[26] 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.”[27]

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.”[28]

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,”[29] 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.

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.[30] 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 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 measure.

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.”[31]

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:--

“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.”[32]

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.”[33]

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. Jefferson 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_.”[34]

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.”[35]

And our great authority declares that this is “a constant rule.”[36]

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 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.

CHARLES SUMNER.

SENATE CHAMBER, March 26, 1872.

On motion of Mr. Carpenter, of the Committee, it was ordered that a subpœna 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 subpœna, proceeded to read a second Protest.

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 subpœna, 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 subpœna. 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:--