Part 9

He was followed in his high post by Talbot and Hardwicke, each with a peerage. Jumping the long period of their successful administrations, when the presiding officer was also a member of the upper House, I come to another instance where the position of the presiding officer was peculiarly apparent,--and this, too, when Benjamin Franklin was in London, as agent for Pennsylvania. I refer to Sir Robert Henley, who became Lord Keeper in 1757, without a peerage. The King, George the Second, did not like him, and therefore, while consenting to place him at the head of the law, declined to make him a member of the House over which he was to preside. At last, in 1760, the necessities of the public service constrained his elevation to the peerage, and soon afterward George the Third, who succeeded to the throne without the animosities of his grandfather, created him Chancellor and Earl of Northington.

For nearly three years, Henley, while still a commoner, was presiding officer. During this considerable period he was without voice or vote. The historian remarks, that, “if there had been any debates, he was precluded from taking part in them.”[133] In another place he pictures the defenceless condition of the unhappy magistrate with regard to his own decisions in the court below, when heard on appeal:--

“Lord Keeper Henley, till raised to the peerage, used to complain bitterly of being obliged to put the question for the reversal of his own decrees, without being permitted to say a word in support of them.”[134]

Lord Eldon, in his Anecdote Book, furnishes another statement of this case:--

“When Sir Robert Henley was Keeper of the Great Seal, and presided in the House of Lords as Lord Keeper, he could not enter into debate as a Chancellor being a peer does; and therefore, when there was an appeal from his judgments in the Court of Chancery, and the law Lords then in the House moved to reverse his judgments, … the Lord Keeper could not state the grounds of his opinions given in judgment, and support his decisions.”[135]

And thus for nearly three years this commoner presided.

A few weeks after Henley first took his place as presiding officer, Franklin arrived in London for the second time, and continued there, a busy observer, until after the Judge was created a peer. Even if he had been ignorant of parliamentary usage, or had forgotten what passed at the trial of Lord Macclesfield, he could not have failed to note that the House of Lords had for its presiding officer an eminent judge, who, not being a member, could take no part in its proceedings beyond putting the question.

Afterward, in 1770, there was a different arrangement. Owing to difficulty in finding a proper person as Chancellor, the Great Seal was put in commission, and Lord Mansfield, Chief Justice of England, was persuaded to act as presiding officer. Curiously enough, Franklin was again in England, on his third visit, and remained through the service of Lord Mansfield in this capacity. Thus this illustrious American, afterward a member of the Convention that framed the National Constitution, had at two different times seen the House of Lords with a presiding officer who, not being a member of the body, could only put the question, and then again with another presiding officer who, being a member of the body, could vote and speak, as well as put the question.

But Franklin was not the only member of the National Convention to whom these precedents were known. One or more had been educated at the Temple; others were accomplished lawyers, familiar with the courts of the mother country. I have already mentioned that Blackstone’s Commentaries, where the general rule is clearly stated, was as well known in the Colonies as in the mother country. Besides, our fathers were not ignorant of the history of England, which, down to the Declaration of Independence, had been their history. The English law was also theirs. Not a case in its books which did not belong to them as well as to the frequenters of Westminster Hall. The State Trials, involving principles of Constitutional Law, and embodying these very precedents, were all known. At least four editions had appeared several years before the adoption of the National Constitution. I cannot err in supposing that all these were authoritative guides at the time, and that the National Constitution was fashioned in all the various lights, historical and judicial, which they furnished.

The conclusion is irresistible, that the National Constitution, when providing a presiding officer for the trial of the President of the United States, used the term _preside_ in the sense already acquired in Parliamentary Law, and did not intend any different signification; that our fathers knew perfectly well the parliamentary distinction between a presiding officer a member of the House and a presiding officer not a member; that, in constituting the Chief Justice presiding officer for a special temporary purpose, they had in view similar instances in the mother country, when the Lord Keeper, Chief Justice, or other judicial personage, had been appointed to preside over the House of Lords, of which he was not a member, as our Chief Justice is appointed to preside over the Senate, of which he is not a member; that they found in this constantly recurring example an apt precedent for their guidance; that they followed this precedent to all intents and purposes, using received parliamentary language, “the Chief Justice shall preside,” and nothing more; that, according to this precedent, they never intended to invest the Chief Justice, President _pro tempore_ of the Senate, with any other powers than those of a presiding officer not a member of the body; and that these powers, exemplified in an unbroken series of instances extending over centuries, under different kings and through various administrations, were simply to put the question and to direct generally the conduct of business, without undertaking in any way, by voice or vote, to determine any question, preliminary, interlocutory, or final.

In stating this conclusion I present simply the result of the authorities. It is not I who speak; it is the authorities. My own judgment may be imperfect; but here is a mass of testimony, concurring and cumulative, without a single exception, which cannot err.

Plainly and unmistakably, the provision in our Constitution authorizing the Chief Justice to _preside_ in the Senate, of which he is not a member, was modelled on the English original. This, according to the language of Mr. Wirt, was the “archetype” our fathers followed. As such it was embodied in the National Constitution, as if the text expressly declared that the Chief Justice, when presiding in the Senate, had all the powers accorded by parliamentary usage to such a functionary when presiding in the upper House of Parliament without being a member thereof. In saying that he shall “preside” the Constitution confers no powers of membership, and by the well-defined term employed limits him to those precise functions sanctioned at the time by immemorial usage.

* * * * *

Thus far I have considered this provision in the light of authorities already known and recognized at the adoption of the National Constitution. This is enough; for it is by these authorities that its meaning must be determined. You cannot reject these without setting at defiance a fixed rule of interpretation, and resorting instead to vague inference or mere imagination, quickened, perhaps, by your desires. Mere imagination and vague inference, quickened, perhaps, by your desires, are out of place when Parliamentary Law is beyond all question.

Pardon me, if I protract this argument by an additional illustration, derived from our own Congressional history. This is found under the parallel provision of the National Constitution relating to the Vice-President, which, after much debate in another generation, received authoritative interpretation: “The Vice-President of the United States shall be _President of the Senate_, but shall have no vote, unless they be equally divided.” In other words, the Vice-President, like the Chief Justice, shall _preside_ in the Senate, but, unlike the Chief Justice, with a casting vote. His general powers are all implied in the provision that he shall preside.

No question has occurred with regard to the vote of the Vice-President, for this is expressly regulated by the National Constitution. But the other powers of the Vice-President, when presiding in the Senate, are left to Parliamentary Law and express rules. Some of the latter were settled at an early day. From the rules of the Senate at the beginning it appears, that, independent of his casting vote, nothing was originally recognized as belonging to a _presiding_ Vice-President beyond his power to occupy the chair. All else was determined by the rules. For instance, Senators, when speaking, are to address the Chair. This rule, which seems to us so superfluous, was adopted 16th April, 1789, early in the session of the first Congress, in order to change the existing Parliamentary Law, under which a member of the upper House of Parliament habitually addresses his associates, and never the Chair. Down to this day, in England, a peer rising to speak says, “My Lords,” and never “My Lord Chancellor,” although the latter _presides_. Another rule, adopted at the same date, has a similar origin. By Parliamentary Law, in the upper House of Parliament, when two members rise at the same time, the House, by their cry, indicate who shall speak. This was set aside by a positive rule of the Senate that in such a case “the President shall name the person to speak.” The Parliamentary Law, that the presiding officer, whether a member or not a member, shall put the question, was reinforced by an express rule that “all questions shall be put by the President of the Senate.”

Although the rules originally provided, that, when a member is called to order, “the President shall determine whether he is in order or not,” they failed to declare by whom the call to order should be made. There was nothing conferring this power upon the presiding officer, while by Parliamentary Law in the upper House of Parliament no presiding officer, _as such_, could call to order, whatever he might do as member. The powers of the presiding officer in the Senate were left in this uncertainty, but the small number of Senators and the prevailing courtesy prevented trouble. At last, in the lapse of time, the number increased, and debates assumed a more animated character. Meanwhile, in 1825, Mr. Calhoun became Vice-President. This ingenious person, severely logical, and enjoying at the time the confidence of the country to a rare degree, insisted, that, as presiding officer, he had no power but to carry into effect the rules adopted by the body, and that therefore, in the absence of any rule on the subject, he was not empowered to call a Senator to order for words spoken in debate. His conclusion was given as follows:--

“The Chair had no power beyond the rules of the Senate. It would stand in the light of a usurper, were it to attempt to exercise such a power. It was too high a power for the Chair.… The Chair would never assume any power not vested in it, but would ever show firmness in exercising those powers that were vested in the Chair.”[136]

The question with regard to the powers of the Chair was transferred from the Senate Chamber to the public press, where it was discussed with memorable ability. An article in the “National Journal,”[137] under the signature of “Patrick Henry,” attributed to John Quincy Adams, at the time President, assumed that the powers of the Vice-President, in calling to order, were not derived from the Senate, but that they came strictly from the National Constitution itself, which authorizes him to preside, and that in their exercise the Vice-President was wholly independent of the Senate. To this assumption Mr. Calhoun replied in the “National Intelligencer,” in two articles,[138] under the signature of “Onslow,” where he shows an ability not unworthy of the eminent parliamentarian whose name he for the time adopted. The point in issue was not unlike that now before us. It was insisted, on the one side, that certain powers were inherent in the Vice-President as presiding officer, precisely as it is now insisted that certain powers are inherent in the Chief-Justice when he becomes presiding officer. Mr. Calhoun replied in words applicable to the present occasion:--

“I affirm, that, as a presiding officer, the Vice-President has no inherent power whatever, unless that of doing what the Senate may prescribe by its rules be such a power. There are, indeed, inherent powers; but they are in the _body_, and not in the _officer_. He is a mere agent to execute the will of the former. He can exercise no power which he does not hold by delegation, either express or implied.”[139]

Then again, in reply to an illustration that had been employed, he says:--

“There is not the least analogy between the rights and duties of a judge and those of a presiding officer in a deliberative assembly. The analogy is altogether the other way. It is between the Court and the House.”[140]

It would be difficult to answer this reasoning. Unless all the precedents, in unbroken series, are set aside, a presiding officer not a member of the Senate has no inherent power except to occupy the Chair and to put the question. All else must be derived from grant in the Constitution or in the rules of the body. In the absence of any such grant, we must be contented to observe the mandates of the _Lex Parliamentaria_. The objections of Mr. Calhoun brought to light the feeble powers of our presiding officer, and a remedy was forthwith applied by amendment of the rules, making it his duty to call to order. To his general power as presiding officer was superadded, by express rule, a further power not existing by Parliamentary Law; and such is the rule of the Senate at this day.

I turn away from this Vice-Presidential episode, contenting myself with reminding you how clearly it shows, that, independently of the rules of the Senate, the presiding officer _as such_ had small powers; that he could do very little more than put the question and direct the Secretary; and, in short, that our fathers, in the interpretation of his powers, had tacitly recognized the time-honored and prevailing usage of Parliament, which in itself is a commanding law. But a Chief Justice, when presiding in the Senate, is not less under this commanding law than the Vice-President.

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Thus far I have confined myself to the Parliamentary Law governing the upper House of Parliament and of Congress. Further illustration is found in the position of the Speaker, whether in the House of Commons or the House of Representatives. One cardinal distinction is to be noted at the outset, by which, in both countries, he is distinguished from the presiding officer of the upper House: the Speaker is always a member of the House. As a member he has a constituency which is represented through him; and here is another difference. The presiding officer of the upper House has no constituency; therefore his only duty is _to preside_, unless some other function be superadded by the National Constitution or the rules of the body.

All the authorities make the Speaker merely the organ of the House, except so far as his representative capacity is recognized. In the Commons he can vote only when the House is equally divided; in our House of Representatives his name is sometimes called, although there is no tie; but in each case he votes in his representative capacity, and not as Speaker. In the time of Queen Elizabeth it was insisted, that, because he was “one out of our own number, and _not a stranger_, therefore he hath a voice.” But Sir Walter Raleigh replied, that the Speaker “was foreclosed of his voice _by taking that place_.”[141] The latter opinion, which has been since overruled, attests the disposition at that early day to limit his powers.

Cushing, in his elaborate work, brings together numerous illustrations, and gives the essence:--

“The presiding officer, though entitled on all occasions to be treated with the greatest attention and respect by the individual members, because the power and dignity and honor of the assembly are officially embodied in his person, is yet but the servant of the House to declare its will and to obey implicitly all its commands.”[142]

“The duties of a presiding officer are of such a nature, and require him to possess so entirely and exclusively the confidence of the assembly, that, with certain exceptions, which will presently be mentioned, he is not allowed to exercise any other functions than those which properly belong to his office; _that is to say, he is excluded from submitting propositions to the assembly, from participating in its deliberations, and from voting_.”[143]

At an early day an English Speaker vividly characterized his relations to the House, when he describes himself as “one of themselves to be the mouth, indeed the servant, of all the rest.”[144] This character appears in the memorable incident, when King Charles in his madness entered the Commons, and, going directly to the Speaker, asked for the five members he wished to arrest. Speaker Lenthall answered in ready words, revealing the function of the presiding officer: “May it please your Majesty, I have neither eyes to see nor tongue to speak, _in this place_, but as the House is pleased to direct me, whose servant I am _here_.”[145] This reply was as good in law as in patriotism. Different words were employed by Sir William Scott, afterward Lord Stowell, when, in 1802, on moving the election of Mr. Speaker Abbot, he declared that a Speaker must add “to a jealous affection for the privileges of the House an awful sense of its duties.”[146] But the early Speaker and the great Judge did not differ. Both attest that the Speaker, when in the Chair, is only the organ of the House, and nothing more.

Passing from the Speaker to the Clerk, we find still another illustration, showing that the word _preside_, under which the Chief Justice derives all his powers, has received an authoritative interpretation in the rules of the House of Representatives, and the commentaries thereon. I cite from Barclay’s Digest.

“Under the authority contained in the Manual, and the usage of the House, the Clerk _presided_ over its deliberations while there was no Speaker, but simply put questions, and, where specially authorized, preserved order, not, however, undertaking to decide questions of order.”[147]

In another place, after stating that in several Congresses there was a failure to elect a Speaker for several days, that in the twenty-sixth Congress there was a failure for eleven days, that in the thirty-first Congress there was a failure for nearly a month, that in the thirty-fourth and thirty-sixth Congresses respectively there was a failure for not less than two months, the author says:--

“During the three last-named periods, while the House was without a Speaker, the Clerk _presided_ over its deliberations; not, however, exercising the functions of Speaker to the extent of deciding questions of order, but, as in the case of other questions, putting them to the House for its decision.”[148]

This limited power of the Clerk is described in a marginal note of the author,--“Clerk _presides_.” The author then proceeds:--

“To relieve future Houses of some of the difficulties which grew out of the very limited power of the Clerk as _a presiding officer_, the House of the thirty-sixth Congress adopted the present 146th and 147th rules, which provide, that, ‘pending the election of a Speaker, the Clerk shall preserve order and decorum, and shall decide all questions of order that may arise, subject to appeal to the House.’”[149]

From this impartial statement we have a practical definition of the word _preside_. It is difficult to see how it can have a different signification in the National Constitution. The word is the same in the two cases, and it must have substantially the same meaning, whether it concern a Clerk or a Chief Justice. Nobody ever supposed that a _presiding_ Clerk could rule or vote. Can a _presiding_ Chief Justice?

The claim of a presiding Chief Justice becomes still more questionable when it is considered how positively the Constitution declares that “the Senate shall have the _sole_ power to try all impeachments,” and, still further, that conviction can be only by “the concurrence of two thirds of _the members present_.” These two provisions accord powers to _the Senate solely_. If a presiding Chief Justice can rule or vote, the Senate has not “the sole power to try”; for ruling and voting, even on interlocutory questions, may determine the trial. A vote to postpone, to withdraw, even to adjourn, might, under peculiar circumstances, exercise a decisive influence. A vote for a protracted adjournment might defeat the trial. Notoriously such votes are among the devices of parliamentary opposition. In doing anything like this, a presiding Chief Justice makes himself _a trier_, and, if he votes on the final judgment, he makes himself _a member of the Senate_. But he cannot be either.

It is only a casting vote that thus far the presiding Chief Justice has assumed to give. But he has the same power to vote always as to vote when the Senate is equally divided. No such power in either case is found in the National Constitution or in Parliamentary Law. By the National Constitution he presides, and nothing more, while by Parliamentary Law there is no casting vote where the presiding officer is not a member of the body. Nor does there seem to be any difference between a casting vote on an interlocutory question and a casting vote on the final question. The former is determined by a majority, and the latter by two thirds; but it has been decided in our country, that, “if the assembly, on a division, stands exactly one third to two thirds, there is then occasion for the giving of a casting vote, because the presiding officer can then, by giving his vote, decide the question either way.”[150] This statement reveals still further how inconsistent is the claim of the presiding Chief Justice with the positive requirement of the National Constitution.