The daily union. [volume] (Washington [D.C.]) 1845-1857, 1852-07-22

tended that any other heterogeneous shall be put thea OF
course there be supeniendence al all the part
OF the clerks, but IL is the commissioner alone who Is
thonzed 10 put the n,efogaioes according 70 his own
Judgment No third parry eooli Interfere al all Gross.
inleIrogatores would be fled presume, (ahough there
no provision Tor tha by the law officers OF the govern
ment and OF the claimans--by the lawagents .oi the
government, upon The one side, when the eommlsldS;
asked BY the government, and by the private
ant, upon the other, u the
Ii understand the rule as TO the taking OF dispositions
on written nlerosaores, the commissioner would have
no authority at all 10 go beyond those neroga,ores He
could ask no question beyond them. II so, there could
be superntendence Then the difficulty arises OF
thozing any in The State OF California who by the
laws of California may administer oath 10 take depo
silions under written inerrogaiores
Sir, in my judgment and experience ii is such easy
thing; requires man conversant with these matters
10 take the answers OF witnesses to written iuerrogao-
res. the whole effect oil the examination may be lost
as regards the neutrality-suspicious. particularly lyonr
commissioner is not competent man, witness may be
made speak precisely what the ignorance incapacy
OF the commissioner makes him speak. No lawyer who
has pracsed IN court OF chancery can doubt that II
your commissioner is not competent, il he is wanting
in good faith in taking the deposition OF witness under
written nerogaiores he may make that deposition pre-
cisely what he peases.
am therefore not willing TO confer this power unless
the Justices OF the peace in California and the nolaries
public in California have higher degree OF intelligence
and capacity than my observation has shown 70 exist as
regards such persons in other States oil the Union Where
have known something about them. Unless The ave-
rage there is higher, am not willing 10 intsust 10 Them
the interests OF the government; nor do think the m
terests OF the claimants ought TO be ntrused in such
10 parties 10 take 10 written nterrogatoes
who in nine out OF ten may be utterly incompetent
to take them cannot for the section as It stands,
because think it will tend TO establish loose rule as
to the taking OF testimony and true decision on one
side or the other must depend on the iah OF Inc iacs
stated, which could not be relied upon by taking testi-
mony the mode proposed.
Mr. FELCH. seems to me, sir that there is an I'M
necessary alarm upon this provision OF the bill does
not to me 10 require or to propose anything which,
in practical operation, will be found put in jeopardy
either the rights OF the public or OF individual claimants
1t has this certainly to recommend that there s an ao
solute necessity OF some means OF getting the testl-
mony which both the claimants and the government need
in these before the commissioners can act IN order to
bring these cases to termination within the lives OF the
present generation. ow sir, what is the provision oil
the old bill in regard TO dispositions The whole Is
based upon the idea that the witnesses will be present;
but is not based upon the idea that the witnesses will
in all testify before the board of commissioners
acting board On the contrary II contempales that
the dispositions shall be taken at chambers before of
the commissioners, and the law is required to be
notified that be may be present the taking of the depo
sions. These dispositions, thus taken, are presented
before the board and used in the same manner with other
deposons and the DISPOSITIONS taken by the proposed
amendment are proposed TO be used.
Now, sir. every guarantee which is had in regard to-
the soemny OF taking dispositions is had here, under the
amendment which is proposed II is only the tribunal
which is changed from Of the commissioners al
chambers TO such persons may be appointed TO take
dispositions from among those authorized to take depos
tions by of the judicial tribunals OF the State Ii
be supposed that there is particular ability
upon the part OF the commissioner to take deposition al
chambers Why SIR, any other good and competent man
may as well take at chambers deposition TO be used
before this tribunal of the commissioners and il
1t came from another man equally competent the deposit
lion would be the in form and substance. and as re-
liable, il taken before OF the commissioners at
chambers II seems be supposed that there may be
incompetent officers appointed IN California and that we
ought not 10 adopt those officers as a competent tr
buna TO take those depostions IL is very true that
incompetent officers may be appointed; but what will
be The case under this amendment The board thern
selves are to settle upon the application OF the party
he lnp Of n | understand
operation OF toe amendment, if deposition is pro-
posed 10 be taken, which cannot be taken before
the board, any member OF the board account OF
the absence OF the Witnesses then application made
to the board OF commissioners sitting such, and they
issue commission-esue il TO whomi Why, they are
limited in their choice to Individuals authorized to admin
lister oahs in other words they authorized 10 select
from the persons in the State OF California who are
authorized 10 administer oahs, individual, and com
mission is 10 issue him. The board of commissioners,
knowing who competent aud who are not competent,
will issue commission only 10 such persons as they think
proper 10 select.
Ii am correct in this matter, what is the position Of
the thng9 Why The commissioners themselves, acting
board, knowing the competency OF the men, the
ability of the men, and the integrity oil The men, VIII
direct their commission 10 such man living IN the neigh
borhood OF the witness as may receive their sanction as
proper to take these dispositions; and IN that man.
ner The testimony will come before the board This
understand to be the operation OF the amendment.
Mr. BAYARD. The senator IS entirely mistaken IN
his construction OF the act. There can be no difficulty
about it. do that the face OF the language used
select a commissioner at all The board may issue
commission. think the word "may' would be con-
slrued mandatory, ii reasonable for asking for
the taking OF deposition should be shown. III the COM
mission issues, issues TO take deposons before any
officer authorized by the laws OF California TO administer
oabs IL would not be competent, under such circum-
stances for the board 10 restrict the party particular
officer OF their selection. The commission issues
1t must be general commission 10 any officer who is
authorized by the laws OF California TO administer
oahs" That, think, is the necessary construction OF
the language
Mr.. WELLER The phraseology used here is, I think,
precisely similar TO that which is found in all laws
nterrogaiores. have never known any OF
commission issued, in which the name OF the officer be-
fore whom the dispositions to be taken was not
desgnated and that ia the only fair and legitimate
suucton OF the fifth section. Whenever application Is
made to the board OF commissioners for the taking OF
timony, sufficient showing, the board directs
mission TO issue to officer OF the State, who is
named in that commission, take this testimony. The
phraseology Of the bill Is, that they may direct COM
mission TO issue, take dispositions before any officer
thorized by the laws OF California 10 administer oaihs
Now, a matter OF course, when they come 10 issue
this commission upon proper application u must be DIT
rected to some officer who by the laws oil the State OF
California is authorized to administer oaths but whether
he is proper person 10 ntust with this important bust
ness OF taking testimony, question TO be settled by
the board OF commissioners. This, hold, is the only
fair construction OF the section. Any other construction
would be technical one, and not legitimate
Mr.. BAYARD. The senator's construction Is different
from what the practice has been under the laws OF the
United States The honorable senator is, think en-
Mr.. WELLER speak OF the practice which has
Mr.. FELCH Mr. President, question is raised as to
the construction OF this section, Perhaps speak more