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]