“Every peer present at the trial (and every temporal peer hath a right to be present in every part of the proceeding) voteth upon every question of law and fact, and the question is carried by the major vote,—the High Steward himself voting merely as a peer and member of that court, in common with the rest of the peers, and in no other right.”[106]
In another place, the Report, quoting the Commons’ Journal, says:—
“That the Lord High Steward was but as a Speaker, or Chairman, for the more orderly proceeding at the trials.”[107]
And then again:—
“The appointment of him doth not alter the nature of the court, which still remaineth the Court of the Peers in Parliament.”[108]
The name of Burke gives to this illustration additional authority and interest. It is not difficult to see how he would have decided the present question.
In our day there have been instances of the Lord Chancellor as presiding officer without being a peer. Brougham took his seat on the 22d November, 1830, before his patent as a peer had been made out, and during this interval his energies were suppressed in the simple duty of presiding officer and nothing else. The same was the case with that eminent lawyer, Sir Edward Sugden, who sat as presiding officer on the 4th March, 1852, although still a commoner; and it was also the case with Sir Frederick Thesiger, who sat as presiding officer on the 1st March, 1858, although still a commoner. These instances attest the prevalence of the early rule down to our day. Even Brougham, who never shrank from speech or from the exercise of power, was constrained to bow before its exigency. He sat as Lord Chancellor, and in that character put the question, but this was all, until he became a member of the House. Lord Campbell expressly records, that, while his name appears in the entry of those present on the 22d November, 1830, as Henricus Brougham, Cancellarius, “he had no right to debate and vote till the following day,” when the entry of his name and office appears as Dominus Brougham et Vaux, Cancellarius.[109]
Passing from these examples of recent history, I return to the rule as known to our fathers at the adoption of the National Constitution. On this head the evidence is complete. It is found in the State Trials of England, in parliamentary history, and in the books of law; but it is nowhere better exhibited than in the Lives of the Chancellors, by Lord Campbell, himself a member of the House of Lords and a Chancellor, familiar with it historically and practically. He has stated the original rule, and in his work, which is as interesting as voluminous, has furnished constantly recurring illustrations of it. In the Introduction to his Lives, where he describes the office of Chancellor, he enunciates the rule:—
“Whether peer or commoner, the Chancellor is not, like the Speaker of the Commons, moderator of the proceedings of the House in which he seems to preside; he is not addressed in debate; he does not name the peer who is to be heard; he is not appealed to as an authority on points of order; and he may cheer the sentiments expressed by his colleagues in the ministry.”[110]