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.