Part 8

Not only to England must we go, but also to Parliamentary Law, as recognized in England at the adoption of the National Constitution. The powers of a presiding officer, where not specifically declared, must be found in Parliamentary Law. The very term _preside_ is parliamentary. It belongs to the technicalities of this branch of law, as much as _indict_ belongs to the technicalities of the Common Law. In determining the signification of this term, it will be of little avail to show some local usage, or, perhaps, some decision of a court. The usage or decision of a Parliament must be shown. Against this all vague speculation or divination of reason is futile. I will not encumber this discussion by superfluous authorities. Insisting that this question must be determined by Parliamentary Law, I content myself with adducing the often cited words of Lord Coke:--

“And as every court of justice hath laws and customs for its direction, some by the Common Law, some by the Civil and Canon Law, some by peculiar laws and customs, etc., so the High Court of Parliament _suis propriis legibus et consuetudinibus subsistit_. It is _lex et consuetudo Parliamenti_, that all weighty matters in any Parliament, moved concerning the peers of the realm, or commons in Parliament assembled, _ought to be determined and adjudged and discussed by the course of the Parliament_, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts.”[99]

Here is the true rule. To “the course of the Parliament” we must resort. In “the course of the Parliament” we must find all the powers of a presiding officer, and all that is implied in the authority to preside. “The Chief Justice shall preside.” Such is the Constitution. Nothing is specified with regard to his powers; nothing is said. What was intended is left to inference from the language employed, which must be interpreted according to “the course of the Parliament,” precisely as what was intended by trial by jury is ascertained from the Common Law. In the latter case we go to the Common Law; in the former case we go to “the course of the Parliament.” You may as well turn away from the Common Law in the one as from “the course of the Parliament” in the other. In determining “the course of the Parliament” we resort to the summary of text-writers, and, better still, to the authentic instances of history.

Something has been said in this discussion with regard to the example of Lord Erskine, who presided at the impeachment of Lord Melville. This was in 1806, during the short-lived ministry of Fox, when Erskine was Chancellor. It is by misapprehension that this instance is supposed to sustain the present assumption. When seen in its true light, it is found in harmony with the general rule. Erskine had at the time two characters. He was Lord Chancellor, and in this capacity presiding officer of the House of Lords, without the right to rule or vote, or even to speak. Besides being Chancellor, he was also a member of the House of Lords, with all the rights of other members. As we advance in this inquiry, it will be seen that again and again it has been practically decided, that, whatever the powers of a presiding officer who is actually a member, a presiding officer who is not a member cannot rule or vote, or even speak. In this statement I anticipate the argument. I do it at this stage only to put aside the suggestion founded on the instance of Lord Chancellor Erskine.

* * * * *

I begin with the most familiar authority,--I mean the eminent writer and judge, Sir William Blackstone. In his Commentaries, where is found, in elegant form, the complete body of English law, you have this whole matter stated in a few suggestive words:--

“The Speaker of the House of Lords, _if a Lord of Parliament_, may give his opinion or argue any question in the House.”[100]

If not a Lord of Parliament, he could not give his opinion or argue any question. This is in accordance with all the authorities and unbroken usage; but it has peculiar value at this moment, because it is the text of Blackstone. This work was the guide-book of our fathers. It first appeared in 1765-69, the very period when the controversy with the mother country was fervid; and it is an unquestionable fact of history that it was read in the Colonies with peculiar interest. Burke, in one of his masterly orations, portraying the character of our fathers, says: “I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England.”[101] Nothing is clearer than that they knew it well.

The framers of the National Constitution had it before them constantly. It was their most familiar work. It was to them as Bowditch’s Navigator is to the mariner in our day. They looked to it for guidance on the sea they were traversing. When they undertook to provide that the Chief Justice, who was not a member of the Senate, should preside at the impeachment of the President, they knew well that he could have no power to “give his opinion or argue any question in the House,” for Blackstone had instructed them explicitly on this head. They knew that he was simply a presiding officer, according to the immemorial usage of the upper House in England, with such powers as belong to a presiding officer who is not a member of the House, and none other.

The powers of the presiding officer of the House of Lords are illustrated by authority and precedents, all in harmony with the statement of Blackstone. Ordinarily the Keeper of the Great Seal is the presiding officer; but, unless a member of the body, he can do little more than put the question. Any other person, as a Chief Justice, may be delegated by royal commission. According to the rules of the House, even if a peer, he cannot speak without quitting the woolsack, which is the Chair, and moving “to his own place as a peer.”[102] The right of speech belongs to him as a member, but he cannot exercise it without leaving his place as presiding officer. So is he circumscribed.

A late writer on Parliamentary Law, whose work is a satisfactory guide, thus sententiously sums up the law and usage:--

“The position of the Speaker of the House of Lords is somewhat anomalous; for, though he is the president of a deliberative assembly, he is invested with no more authority than any other member; and if not himself a member, his office is limited to the putting of questions and other formal proceedings.”[103]

This statement is in obvious harmony with that of Blackstone; so that there is no difference between the writer who is our guide to-day and the learned commentator who was the guide of our fathers.

Mr. May goes still further, and lets us know that it is only as a member of the House that the presiding officer can address it, even on points of order:--

“Upon points of order, the Speaker, if a peer, may address the House; but, as his opinion is liable to be questioned, like that of any other peer, he does not often exercise his right.”[104]

Thus, even if a peer, even if a member of the upper House, the presiding officer cannot rule a point of order, nor address the House upon it, except as any other member; and what he says is open to question, like the utterance of any other member. Such is the conclusion of the most approved English authority.

American writers on Parliamentary Law concur with English. Cushing, who has done so much to illustrate the whole subject, says of the presiding officer of the Lords, that he “is invested with no more authority for the preservation of order than any other member; and if not himself a member, his office is limited to the putting of questions and other formal proceedings; … if he is a peer, he may address the House and participate in the debates as a member.” He then says again: “If a peer, he votes with the other members; if not, he does not vote at all.” And he adds: “There is no casting vote in the Lords.”[105] This statement was made long after the adoption of the National Constitution, and anterior to the present controversy.

There are occasions when the Lords have a presiding officer called a Lord High Steward. This is on the trial of a peer, whether upon impeachment or indictment. Here the same rule is stated by Edmund Burke, in his masterly Report to the House of Commons on the impeachment of Warren Hastings:--

“Every peer present at the trial (and every temporal peer hath a right to be present in every part of the proceeding) voteth upon every question of law and fact, and the question is carried by the major vote,--the High Steward himself voting merely as a peer and member of that court, in common with the rest of the peers, and in no other right.”[106]

In another place, the Report, quoting the Commons’ Journal, says:--

“That the Lord High Steward was but as a Speaker, or _Chairman_, for the more orderly proceeding at the trials.”[107]

And then again:--

“The appointment of him doth not alter the nature of the court, which still remaineth the Court of the Peers in Parliament.”[108]

The name of Burke gives to this illustration additional authority and interest. It is not difficult to see how he would have decided the present question.

In our day there have been instances of the Lord Chancellor as presiding officer without being a peer. Brougham took his seat on the 22d November, 1830, before his patent as a peer had been made out, and during this interval his energies were suppressed in the simple duty of presiding officer and nothing else. The same was the case with that eminent lawyer, Sir Edward Sugden, who sat as presiding officer on the 4th March, 1852, although still a commoner; and it was also the case with Sir Frederick Thesiger, who sat as presiding officer on the 1st March, 1858, although still a commoner. These instances attest the prevalence of the early rule down to our day. Even Brougham, who never shrank from speech or from the exercise of power, was constrained to bow before its exigency. He sat as Lord Chancellor, and in that character put the question, but this was all, until he became a member of the House. Lord Campbell expressly records, that, while his name appears in the entry of those present on the 22d November, 1830, as _Henricus Brougham, Cancellarius_, “he had no right to debate and vote till the following day,” when the entry of his name and office appears as _Dominus Brougham et Vaux, Cancellarius_.[109]

Passing from these examples of recent history, I return to the rule as known to our fathers at the adoption of the National Constitution. On this head the evidence is complete. It is found in the State Trials of England, in parliamentary history, and in the books of law; but it is nowhere better exhibited than in the Lives of the Chancellors, by Lord Campbell, himself a member of the House of Lords and a Chancellor, familiar with it historically and practically. He has stated the original rule, and in his work, which is as interesting as voluminous, has furnished constantly recurring illustrations of it. In the Introduction to his Lives, where he describes the office of Chancellor, he enunciates the rule:--

“Whether peer or commoner, the Chancellor is not, like the Speaker of the Commons, moderator of the proceedings of the House in which he seems to preside; he is not addressed in debate; he does not name the peer who is to be heard; he is not appealed to as an authority on points of order; and he may cheer the sentiments expressed by his colleagues in the ministry.”[110]

Existing rules of the Senate add to these powers; but such is the rule with regard to the presiding officer of the House of Lords, even when a peer. He is not appealed to on points of order. If a commoner, his power is still less.

“If he be a commoner, notwithstanding a resolution of the House that he is to be proceeded against for any misconduct as if he were a peer, he has neither vote nor deliberative voice, and he can only put the question, and communicate the resolutions of the House according to the directions he receives.”[111]

In the early period of English history the Chancellors were often ecclesiastics, though generally commoners. Fortescue, Wolsey, and More were never peers. This also was the case with Sir Nicholas Bacon, father of Lord Bacon, who held the seals under Queen Elizabeth for twenty years, and was colleague in the cabinet of Burleigh. Lord Campbell remarks on his position as presiding officer of the House of Lords:--

“Not being a peer, he could not take a share in the Lords’ debates; but, presiding as Speaker on the woolsack, he exercised a considerable influence on their deliberations.”[112]

Then again we are told:--

“Being a commoner, he could neither act as Lord Steward nor sit upon the trial of the Duke of Norfolk, who was the first who suffered for favoring Mary’s cause.”[113]

Thus early do we meet illustration of this rule, which constantly reappears in the annals of Parliament.

The successor of Sir Nicholas Bacon was Lord Chancellor Bromley; and here we find a record interesting at this moment. After presiding at the trial of Mary, Queen of Scots, the Lord Chancellor became ill and took to his bed. Under the circumstances, Sir Edmund Anderson, Chief Justice of the Common Pleas, was authorized by the Queen to act as a substitute for the Chancellor; and thus the Chief Justice became presiding officer of the House of Lords to the close of the session, without being a peer.

Then came Sir Christopher Hatton, the favorite of Queen Elizabeth, and so famous as the dancing Chancellor, who presided in the House of Lords by virtue of his office, but never as peer. The same was the case with his successor, Sir John Puckering. He was followed by the exemplary Ellesmere, who was for many years Chancellor without being a peer, but finished his career by adding to his title as presiding officer the functions of a member. The greatest of all now followed. After much effort and solicitation, Bacon becomes Chancellor with a peerage; but it is recorded in the Lords’ Journals, that, when he spoke, he removed from the woolsack “to his seat as a peer,” thus attesting that he had no voice as presiding officer. At last, when the corruptions of this remarkable character began to overshadow the land, the Chief Justice of the King’s Bench, Sir James Ley, was designated by the King to act as Speaker of the House of Lords. Soon afterward Bacon fell. Meanwhile it is said that the Chief Justice “had very creditably performed the duties of Speaker of the House of Lords.”[114] In other words, according to the language of our Constitution, he had presided well.

Then came Williams, Coventry, and Finch, as Lord Keepers. As the last absconded to avoid impeachment by the House of Commons, Littleton, Chief Justice of the Common Pleas, “was placed on the woolsack as Speaker.”[115] At a later time he received the Great Seal as Lord Keeper. This promotion was followed by a peerage, at the prompting of no less a person than the Earl of Strafford, “who thought he might be more useful, if permitted to take part in the proceedings of the House as a peer, than if he could only put the question as Speaker.”[116] Clarendon says, that, as a peer, he could have done Strafford “notable service.”[117] But the timid peer did not render the expected service.

Then came the period of Civil War, when one Great Seal was with the King and another was with Parliament. Meanwhile the Earl of Manchester was appointed Speaker of the upper House, and as such took his place on the woolsack. As a peer he had all the privileges of a member of the House over which he presided. Charles the Second, during his exile, appointed Hyde, afterward Earl of Clarendon, as Chancellor; but the monarch was for the time without a Court and without a Parliament. On the Restoration, in 1660, the Chancellor at once entered upon all his duties, judicial and parliamentary; and it is recorded, that, “though still a commoner, holding the Great Seal, he took his place on the woolsack as Speaker by prescription.”[118] A year later the commoner was raised to the peerage, thus becoming more than presiding officer. During illness from the gout the place of the Chancellor as presiding officer was sometimes supplied by Sir Orlando Bridgeman, Chief Justice of the Common Pleas, who on these occasions was presiding officer, and nothing more. Lord Campbell says he “frequently sat Speaker in the House of Lords,”[119]--meaning that he presided.

On the disgrace of Lord Clarendon, the disposal of the Great Seal was the occasion of perplexity. The historian informs us, that, “after many doubts and conflicting plans among the King’s male and female advisers, it was put into the hands of a grave Common-Law judge,”[120] being none other than the Chief Justice of the Common Pleas, who had already presided in the absence of Lord Clarendon; but he was never raised to the peerage. Then comes another explanation of the precise relation of such an official to the House. Lord Campbell expressly remarks, that, “never being created a peer, his only duty in the House of Lords was to put the question, and to address the two Houses in explanation of the royal will on the assembling of Parliament.”[121] Here is the constantly recurring definition of the term _preside_.

For some time afterward there seems to have been little embarrassment. Nottingham, who did so much for Equity, Shaftesbury, who did so little, Guilford, so famous through contemporary biography, and Jeffreys, so justly infamous,--successively heads of the law,--were all peers. But at the Revolution of 1688 there was an interregnum, which again brought into relief the relations between the upper House and its presiding officer. James, on his flight, dropped the Great Seal into the Thames. There was, therefore, no presiding officer for the Lords. To supply this want, the Lords, at the meeting of the Convention Parliament, chose one of their own number, the Marquis of Halifax, as Speaker, and, in the exercise of the power inherent in them, they continued to reëlect him day by day. During this period he was strictly President _pro tempore_. At last, Sir Robert Atkyns, Chief Baron of the Exchequer, a commoner, took his seat upon the woolsack as Speaker, appointed by the Crown. Here, again, we learn that “serious inconvenience was experienced from the occupier of the woolsack not being a member of the House.”[122] At last, in 1693, the Great Seal was handed to Sir John Somers, Lord Keeper; and here is another authentic illustration of the rule. Although official head of the English law, and already exalted for his ability and varied knowledge, this great man, one of the saviours of constitutional liberty in England, was for some time merely presiding officer. The historian records, that, “while he remained a commoner, he presided on the woolsack only as Speaker”;[123] that he “had only, as Speaker, to put the question, … taking no part in debate.”[124] This is more worthy of notice because Somers was recognized as a consummate orator. At last, according to the historian, “there was a strong desire that he should take part in the debates, and, to enable him, the King pressed his acceptance of a peerage, which, after some further delay, he did, and he was afterward known as Lord Somers.[125]

In the vicissitudes of public life this great character was dismissed from office, and a successor was found in an inferior person, Sir Nathan Wright, who was created Lord Keeper without a peerage. For the five years of his official life it is recorded that he occupied the woolsack, “merely putting the question, and having no influence over the proceedings.”[126] Thus he presided.

Then came the polished Cowper, at first without a peerage, but after a short time created a member of the House. Here again the historian records, that, while he remained a commoner, “he took his place on the woolsack as Speaker of the House of Lords, and without a right to debate or vote.”[127] It appears, that, “not being permitted to share in the debates in the House of Lords, he amused himself by taking notes of the speeches on the opposite sides.”[128] Afterward, even when a peer, and, as Chancellor, presiding at the impeachment of Sacheverell, Lord Cowper did not interfere further than by saying, “Gentlemen of the House of Commons,” or “Gentlemen, you that are counsel for the prisoner may proceed.”[129]

Harcourt followed Cowper as Keeper of the Great Seal, but he was not immediately raised to the peerage. It is recorded that during one year he had “only to sit as Speaker,”[130]--that is, only to preside. Afterwards, as peer, he became a member. On the accession of George the First, Harcourt, in turn, gave place to Cowper, who was again made Chancellor. To him succeeded the Earl of Macclesfield, with all the rights of membership.

Lord Macclesfield, being impeached of high crimes and misdemeanors as Chancellor, Sir Peter King, at the time Chief Justice of the Common Pleas, was made presiding officer of the upper House, with only the limited powers belonging to a presiding officer who is not a member of the body. Here the record is complete. Turn to the trial and you will see it all. It was he who gave directions to the managers, and also to the counsel,--who put the question, and afterward pronounced the sentence; but he acted always as presiding officer and nothing else. I do not perceive that he made any rulings during the progress of the trial. He was Chief Justice of the Common Pleas, acting as President _pro tempore_. The report, describing the opening of the proceedings, says that the articles of impeachment, with the answer and replication, were read “by direction of the Lord Chief Justice King, Speaker of the House of Lords.”[131] Another definition of the term _preside_.

All this is compendiously described by Lord Campbell:--

“Sir Peter, not being a peer, of course had no deliberative voice, but, during the trial, as the organ of the House of Peers, he regulated the procedure without any special vote, intimating to the managers and to the counsel for the defendant when they were to speak and to adduce their evidence. After the verdict of _Guilty_, he ordered the Black Rod to produce his prisoner at the bar; and the Speaker of the House of Commons having demanded judgment, he, in good taste, abstaining from making any comment, dryly, but solemnly and impressively, pronounced the sentence which the House had agreed upon.”[132]

This proceeding was in 1725. At this time, Benjamin Franklin, the printer-boy, was actually in London. It is difficult to imagine that this precocious character, whose observation in public affairs was as remarkable as in philosophy, should have passed eighteen months in London at this very period without noting this remarkable trial and the manner in which it was conducted. Thus, early in life, he saw that a Chief Justice might preside at an impeachment without being a member of the House of Lords or exercising any of the powers which belong to membership.

Besides his eminence as Chief Justice, King was the nephew of the great thinker who has exercised such influence on English and American opinion, John Locke. Shortly after presiding at the impeachment as Chief Justice, he became Chancellor with a peerage.