The framers of the National Constitution had it before them constantly. It was their most familiar work. It was to them as Bowditch’s Navigator is to the mariner in our day. They looked to it for guidance on the sea they were traversing. When they undertook to provide that the Chief Justice, who was not a member of the Senate, should preside at the impeachment of the President, they knew well that he could have no power to “give his opinion or argue any question in the House,” for Blackstone had instructed them explicitly on this head. They knew that he was simply a presiding officer, according to the immemorial usage of the upper House in England, with such powers as belong to a presiding officer who is not a member of the House, and none other.
The powers of the presiding officer of the House of Lords are illustrated by authority and precedents, all in harmony with the statement of Blackstone. Ordinarily the Keeper of the Great Seal is the presiding officer; but, unless a member of the body, he can do little more than put the question. Any other person, as a Chief Justice, may be delegated by royal commission. According to the rules of the House, even if a peer, he cannot speak without quitting the woolsack, which is the Chair, and moving “to his own place as a peer.”[102] The right of speech belongs to him as a member, but he cannot exercise it without leaving his place as presiding officer. So is he circumscribed.
A late writer on Parliamentary Law, whose work is a satisfactory guide, thus sententiously sums up the law and usage:—
“The position of the Speaker of the House of Lords is somewhat anomalous; for, though he is the president of a deliberative assembly, he is invested with no more authority than any other member; and if not himself a member, his office is limited to the putting of questions and other formal proceedings.”[103]
This statement is in obvious harmony with that of Blackstone; so that there is no difference between the writer who is our guide to-day and the learned commentator who was the guide of our fathers.
Mr. May goes still further, and lets us know that it is only as a member of the House that the presiding officer can address it, even on points of order:—
“Upon points of order, the Speaker, if a peer, may address the House; but, as his opinion is liable to be questioned, like that of any other peer, he does not often exercise his right.”[104]
Thus, even if a peer, even if a member of the upper House, the presiding officer cannot rule a point of order, nor address the House upon it, except as any other member; and what he says is open to question, like the utterance of any other member. Such is the conclusion of the most approved English authority.
American writers on Parliamentary Law concur with English. Cushing, who has done so much to illustrate the whole subject, says of the presiding officer of the Lords, that he “is invested with no more authority for the preservation of order than any other member; and if not himself a member, his office is limited to the putting of questions and other formal proceedings; … if he is a peer, he may address the House and participate in the debates as a member.” He then says again: “If a peer, he votes with the other members; if not, he does not vote at all.” And he adds: “There is no casting vote in the Lords.”[105] This statement was made long after the adoption of the National Constitution, and anterior to the present controversy.
There are occasions when the Lords have a presiding officer called a Lord High Steward. This is on the trial of a peer, whether upon impeachment or indictment. Here the same rule is stated by Edmund Burke, in his masterly Report to the House of Commons on the impeachment of Warren Hastings:—