“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.