“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.