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.