“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]