Volume 16 — THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR VOTE.

Opinion in the Case of the Impeachment of Andrew Johnson, President of the United States, March 31, 1868.

In the course of this trial there was an important claim of power by the Chief Justice, as presiding officer of the Senate, on which at the time Mr. Sumner expressed his opinion to the Senate, when it withdrew for consultation. As this claim was calculated in certain contingencies to affect the course of proceedings, possibly the final judgment, and as it might hereafter be drawn into a precedent, Mr. Sumner was unwilling to lose this opportunity of recording his reasons against it.

In determining the relations of the Chief Justice to the trial of the President, we must look, first, to the National Constitution; for it is solely by virtue of the National Constitution that this eminent magistrate is transported from his own natural field to another, where he is for the time an exotic. The Chief Justice in his own court is at home; but it is equally clear, that, when he comes into the Senate, he is a stranger. Though justly received with welcome and honor, he cannot expect membership, or anything beyond the powers derived directly from the National Constitution, by virtue of which he temporarily occupies the Chair.

Repairing to our authoritative text, we find the only applicable words:—

“The Senate shall have the sole power to try all impeachments.… When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two thirds of the members present.”

This is all. The Chief Justice shall preside, but subject to two limitations specifically declared. First, the trial is to be by the Senate solely, and nobody else,—thus carefully excluding the presiding officer from all participation, except so far as is implied in the power to preside; and, secondly, judgment of conviction can be only by a vote of “two thirds of the members present,”—thus again excluding the presiding officer, unless it is assumed that he is a member of the Senate.

On the face of this text it is difficult to find ambiguity. Nobody questions that the Chief Justice must preside. Can anybody question that the trial must be by the Senate solely, and nobody else? To change this requirement is to fly in the face of the National Constitution. Can anybody question that the judgment of conviction must be by votes of “members present,” and nobody else? Now, since the Chief Justice is not a “member” of the Senate, it is plain that he is positively excluded from vote on the final question. It only remains that he should “preside.” And here the question recurs as to the meaning of this familiar term.

The person who presides is simply, according to the language of our Rules, “presiding officer,” and this designation is the equivalent or synonym of speaker, and also of prolocutor, each of which signifies somebody who speaks for the house. It is not implied that he votes with the house, much less that he decides for the house, but only that he is the voice of the house,—its speaker. What the house has to say it says through him; but, except as organ of the house, he is silent, unless also a member, when to his powers as presiding officer he superadds the powers of a member also. From this brief statement it appears at once how limited his functions must be.

Here I might stop; but, since this question has assumed unexpected importance, I am induced to go further. It is easy to show that the language of the National Constitution, if seen in the light of English parliamentary history, must have an interpretation identical with its natural import.

Nothing is clearer than this. If language employed in the National Constitution had already, at the time of its formation, received a definite meaning, it must be interpreted accordingly. Thus, when the Constitution secures “trial by jury,” it secures that institution as defined by antecedent English law. So, also, when it declares that the judicial power shall extend to “all cases in law and equity” arising under the National Constitution, it recognizes the distinction between law and equity peculiar to English law. Courts of Common Law and Courts of Equity are all implied in this language; and since there is no further definition of their powers, we must ascertain them in England. Cushing, in determining the rules of proceeding in our American Legislatures, says:—

“Such was the practice of the two Houses of the British Parliament when our ancestors emigrated; … and such has continued to be, and now is, the practice in that body.”[97]

This resource has been most persuasively presented by Mr. Wirt, in his remarkable argument on the impeachment of Judge Peck, where he vindicates and expounds the true rule of interpretation.

According to this eminent authority, what he calls “the English archetypes” were the models for the framers of the National Constitution. The courts were fashioned after these “archetypes.” They were instituted according to “the English originals, to which they were manifestly referred by the Constitution itself.”[98] Here again I quote the words of Mr. Wirt.

All this is precisely applicable to that part of the National Constitution under consideration. In essential features it was borrowed from England. There is its original, its model, its archetype. Therefore to England we go.

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.

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.

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.

I would not keep out of sight any consideration which seems in any quarter to throw light on this claim; and therefore I take time to mention an analogy which has been invoked. The exceptional provision in the Constitution, under which the Vice-President has a casting vote on ordinary occasions, is taken from its place in another clause and applied to the Chief Justice. It is gravely argued that the Chief Justice is a substitute for the Vice-President, and, as the latter, by express grant, has a casting vote on ordinary occasions, therefore the Chief Justice has such when presiding on an impeachment. To this argument there are two obvious objections: first, there is no language giving a casting vote to the Chief Justice, and, in the absence of express grant, it is impossible to imply it in opposition to the prevailing rule of Parliamentary Law; and, secondly, it is by no means clear that the Vice-President has a casting vote, when called to preside on an impeachment. On ordinary occasions, in the business of the Senate, the grant is explicit; but it does not follow that this grant can be extended to embrace an impeachment, in face of positive provisions by which the power to try and vote is confined to Senators. According to the undoubted rule of interpretation, Ut res magis valeat quam pereat, the casting vote of the Vice-President must be subject to this curtailment. Therefore, if the Chief Justice is regarded as a substitute for the Vice-President, it will be only to find himself again within the same limitations.

I cannot bring this survey to an end without an expression of deep regret that I find myself constrained to differ from the Chief Justice. In faithful fellowship for long years, we have striven together for the establishment of Liberty and Equality as the fundamental law of this Republic. I know his fidelity, and revere his services; but not on this account can I hesitate the less, when I find him claiming in this Chamber an important power which, in my judgment, is three times denied in the National Constitution: first, when it is declared that the Senate alone shall try impeachments; secondly, when it is declared that only members shall convict; and, thirdly, when it is declared that the Chief Justice shall preside, and nothing more,—thus conferring upon him those powers only which by Parliamentary Law belong to a presiding officer not a member of the body. In the face of such a claim, so entirely without example, and of such possible consequences, I cannot be silent. Reluctantly and painfully I offer this respectful protest.

There is a familiar saying of jurisprudence, that it is the part of a good judge to amplify his jurisdiction: Boni judicis est ampliare jurisdictionem. This maxim, borrowed from the horn-books, was originally established for the sake of justice and humanity, that they might not fail; but it has never been extended to other exercises of authority. On the contrary, all accepted maxims are against such assumption in other cases. Never has it been said that it is the part of a good presiding officer to amplify his power; and there is at least one obvious reason: a presiding officer is only an agent, acting always in presence of his principal. Whatever the promptings of the present moment, such an amplification can find no sanction in the National Constitution, or in that Parliamentary Law from which there is no appeal.

Thus, which way soever we turn,—whether to the National Constitution, or to Parliamentary Law, as illustrated in England or the United States,—we are brought to conclude that the Chief Justice in the Senate Chamber is not in any respect Chief Justice, but only presiding officer; that he has no judicial powers, or, in other words, powers to try, but only the powers of a presiding officer not a member of the body. According to the injunction of the Constitution, he can preside, but this is all, unless other powers are superadded by concession of the Senate, subject always to the constitutional limitation that the Senate alone can try, and, therefore, alone can rule or vote on questions which enter into the trial. The function of a presiding officer may be narrow, but it must not be disparaged. For a succession of generations, great men in the law, Chancellors and Chief Justices, have not disdained to discharge it. Out of the long and famous list I mention one name of surpassing authority: Somers, the illustrious defender of constitutional liberty, unequalled in debate as in judgment, exercised this function without claiming other power. He was satisfied to preside. Such an example is not unworthy of us. If the present question could be determined by sentiments of personal regard, I should gladly say that our Chief Justice is needed to the Senate more than the Senate is needed to him. But the National Constitution, which has regulated the duties of all, leaves us no alternative. We are the Senate; he is the presiding officer,—although, whether in the Court Room or the Senate Chamber, he is always the most exalted servant of the law. This character he cannot lose by change of seat. As such he lends to this historic occasion the dignity of his presence and the authority of his example. Sitting in that Chair, he can do much to smooth the course of business, and to fill the Chamber with the spirit of justice. Under the rules of the Senate, he can become its organ,—but nothing more.