Then came the period of Civil War, when one Great Seal was with the King and another was with Parliament. Meanwhile the Earl of Manchester was appointed Speaker of the upper House, and as such took his place on the woolsack. As a peer he had all the privileges of a member of the House over which he presided. Charles the Second, during his exile, appointed Hyde, afterward Earl of Clarendon, as Chancellor; but the monarch was for the time without a Court and without a Parliament. On the Restoration, in 1660, the Chancellor at once entered upon all his duties, judicial and parliamentary; and it is recorded, that, “though still a commoner, holding the Great Seal, he took his place on the woolsack as Speaker by prescription.”[118] A year later the commoner was raised to the peerage, thus becoming more than presiding officer. During illness from the gout the place of the Chancellor as presiding officer was sometimes supplied by Sir Orlando Bridgeman, Chief Justice of the Common Pleas, who on these occasions was presiding officer, and nothing more. Lord Campbell says he “frequently sat Speaker in the House of Lords,”[119]—meaning that he presided.
On the disgrace of Lord Clarendon, the disposal of the Great Seal was the occasion of perplexity. The historian informs us, that, “after many doubts and conflicting plans among the King’s male and female advisers, it was put into the hands of a grave Common-Law judge,”[120] being none other than the Chief Justice of the Common Pleas, who had already presided in the absence of Lord Clarendon; but he was never raised to the peerage. Then comes another explanation of the precise relation of such an official to the House. Lord Campbell expressly remarks, that, “never being created a peer, his only duty in the House of Lords was to put the question, and to address the two Houses in explanation of the royal will on the assembling of Parliament.”[121] Here is the constantly recurring definition of the term preside.
For some time afterward there seems to have been little embarrassment. Nottingham, who did so much for Equity, Shaftesbury, who did so little, Guilford, so famous through contemporary biography, and Jeffreys, so justly infamous,—successively heads of the law,—were all peers. But at the Revolution of 1688 there was an interregnum, which again brought into relief the relations between the upper House and its presiding officer. James, on his flight, dropped the Great Seal into the Thames. There was, therefore, no presiding officer for the Lords. To supply this want, the Lords, at the meeting of the Convention Parliament, chose one of their own number, the Marquis of Halifax, as Speaker, and, in the exercise of the power inherent in them, they continued to reëlect him day by day. During this period he was strictly President pro tempore. At last, Sir Robert Atkyns, Chief Baron of the Exchequer, a commoner, took his seat upon the woolsack as Speaker, appointed by the Crown. Here, again, we learn that “serious inconvenience was experienced from the occupier of the woolsack not being a member of the House.”[122] At last, in 1693, the Great Seal was handed to Sir John Somers, Lord Keeper; and here is another authentic illustration of the rule. Although official head of the English law, and already exalted for his ability and varied knowledge, this great man, one of the saviours of constitutional liberty in England, was for some time merely presiding officer. The historian records, that, “while he remained a commoner, he presided on the woolsack only as Speaker”;[123] that he “had only, as Speaker, to put the question, … taking no part in debate.”[124] This is more worthy of notice because Somers was recognized as a consummate orator. At last, according to the historian, “there was a strong desire that he should take part in the debates, and, to enable him, the King pressed his acceptance of a peerage, which, after some further delay, he did, and he was afterward known as Lord Somers.[125]
In the vicissitudes of public life this great character was dismissed from office, and a successor was found in an inferior person, Sir Nathan Wright, who was created Lord Keeper without a peerage. For the five years of his official life it is recorded that he occupied the woolsack, “merely putting the question, and having no influence over the proceedings.”[126] Thus he presided.
Then came the polished Cowper, at first without a peerage, but after a short time created a member of the House. Here again the historian records, that, while he remained a commoner, “he took his place on the woolsack as Speaker of the House of Lords, and without a right to debate or vote.”[127] It appears, that, “not being permitted to share in the debates in the House of Lords, he amused himself by taking notes of the speeches on the opposite sides.”[128] Afterward, even when a peer, and, as Chancellor, presiding at the impeachment of Sacheverell, Lord Cowper did not interfere further than by saying, “Gentlemen of the House of Commons,” or “Gentlemen, you that are counsel for the prisoner may proceed.”[129]
Harcourt followed Cowper as Keeper of the Great Seal, but he was not immediately raised to the peerage. It is recorded that during one year he had “only to sit as Speaker,”[130]—that is, only to preside. Afterwards, as peer, he became a member. On the accession of George the First, Harcourt, in turn, gave place to Cowper, who was again made Chancellor. To him succeeded the Earl of Macclesfield, with all the rights of membership.
Lord Macclesfield, being impeached of high crimes and misdemeanors as Chancellor, Sir Peter King, at the time Chief Justice of the Common Pleas, was made presiding officer of the upper House, with only the limited powers belonging to a presiding officer who is not a member of the body. Here the record is complete. Turn to the trial and you will see it all. It was he who gave directions to the managers, and also to the counsel,—who put the question, and afterward pronounced the sentence; but he acted always as presiding officer and nothing else. I do not perceive that he made any rulings during the progress of the trial. He was Chief Justice of the Common Pleas, acting as President pro tempore. The report, describing the opening of the proceedings, says that the articles of impeachment, with the answer and replication, were read “by direction of the Lord Chief Justice King, Speaker of the House of Lords.”[131] Another definition of the term preside.
All this is compendiously described by Lord Campbell:—
“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.