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:—
“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.”[37]
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.”[38]