“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_.