The conclusion is irresistible, that the National Constitution, when providing a presiding officer for the trial of the President of the United States, used the term preside in the sense already acquired in Parliamentary Law, and did not intend any different signification; that our fathers knew perfectly well the parliamentary distinction between a presiding officer a member of the House and a presiding officer not a member; that, in constituting the Chief Justice presiding officer for a special temporary purpose, they had in view similar instances in the mother country, when the Lord Keeper, Chief Justice, or other judicial personage, had been appointed to preside over the House of Lords, of which he was not a member, as our Chief Justice is appointed to preside over the Senate, of which he is not a member; that they found in this constantly recurring example an apt precedent for their guidance; that they followed this precedent to all intents and purposes, using received parliamentary language, “the Chief Justice shall preside,” and nothing more; that, according to this precedent, they never intended to invest the Chief Justice, President pro tempore of the Senate, with any other powers than those of a presiding officer not a member of the body; and that these powers, exemplified in an unbroken series of instances extending over centuries, under different kings and through various administrations, were simply to put the question and to direct generally the conduct of business, without undertaking in any way, by voice or vote, to determine any question, preliminary, interlocutory, or final.
In stating this conclusion I present simply the result of the authorities. It is not I who speak; it is the authorities. My own judgment may be imperfect; but here is a mass of testimony, concurring and cumulative, without a single exception, which cannot err.
Plainly and unmistakably, the provision in our Constitution authorizing the Chief Justice to preside in the Senate, of which he is not a member, was modelled on the English original. This, according to the language of Mr. Wirt, was the “archetype” our fathers followed. As such it was embodied in the National Constitution, as if the text expressly declared that the Chief Justice, when presiding in the Senate, had all the powers accorded by parliamentary usage to such a functionary when presiding in the upper House of Parliament without being a member thereof. In saying that he shall “preside” the Constitution confers no powers of membership, and by the well-defined term employed limits him to those precise functions sanctioned at the time by immemorial usage.
Thus far I have considered this provision in the light of authorities already known and recognized at the adoption of the National Constitution. This is enough; for it is by these authorities that its meaning must be determined. You cannot reject these without setting at defiance a fixed rule of interpretation, and resorting instead to vague inference or mere imagination, quickened, perhaps, by your desires. Mere imagination and vague inference, quickened, perhaps, by your desires, are out of place when Parliamentary Law is beyond all question.
Pardon me, if I protract this argument by an additional illustration, derived from our own Congressional history. This is found under the parallel provision of the National Constitution relating to the Vice-President, which, after much debate in another generation, received authoritative interpretation: “The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” In other words, the Vice-President, like the Chief Justice, shall preside in the Senate, but, unlike the Chief Justice, with a casting vote. His general powers are all implied in the provision that he shall preside.
No question has occurred with regard to the vote of the Vice-President, for this is expressly regulated by the National Constitution. But the other powers of the Vice-President, when presiding in the Senate, are left to Parliamentary Law and express rules. Some of the latter were settled at an early day. From the rules of the Senate at the beginning it appears, that, independent of his casting vote, nothing was originally recognized as belonging to a presiding Vice-President beyond his power to occupy the chair. All else was determined by the rules. For instance, Senators, when speaking, are to address the Chair. This rule, which seems to us so superfluous, was adopted 16th April, 1789, early in the session of the first Congress, in order to change the existing Parliamentary Law, under which a member of the upper House of Parliament habitually addresses his associates, and never the Chair. Down to this day, in England, a peer rising to speak says, “My Lords,” and never “My Lord Chancellor,” although the latter presides. Another rule, adopted at the same date, has a similar origin. By Parliamentary Law, in the upper House of Parliament, when two members rise at the same time, the House, by their cry, indicate who shall speak. This was set aside by a positive rule of the Senate that in such a case “the President shall name the person to speak.” The Parliamentary Law, that the presiding officer, whether a member or not a member, shall put the question, was reinforced by an express rule that “all questions shall be put by the President of the Senate.”
Although the rules originally provided, that, when a member is called to order, “the President shall determine whether he is in order or not,” they failed to declare by whom the call to order should be made. There was nothing conferring this power upon the presiding officer, while by Parliamentary Law in the upper House of Parliament no presiding officer, as such, could call to order, whatever he might do as member. The powers of the presiding officer in the Senate were left in this uncertainty, but the small number of Senators and the prevailing courtesy prevented trouble. At last, in the lapse of time, the number increased, and debates assumed a more animated character. Meanwhile, in 1825, Mr. Calhoun became Vice-President. This ingenious person, severely logical, and enjoying at the time the confidence of the country to a rare degree, insisted, that, as presiding officer, he had no power but to carry into effect the rules adopted by the body, and that therefore, in the absence of any rule on the subject, he was not empowered to call a Senator to order for words spoken in debate. His conclusion was given as follows:—
“The Chair had no power beyond the rules of the Senate. It would stand in the light of a usurper, were it to attempt to exercise such a power. It was too high a power for the Chair.… The Chair would never assume any power not vested in it, but would ever show firmness in exercising those powers that were vested in the Chair.”[136]
The question with regard to the powers of the Chair was transferred from the Senate Chamber to the public press, where it was discussed with memorable ability. An article in the “National Journal,”[137] under the signature of “Patrick Henry,” attributed to John Quincy Adams, at the time President, assumed that the powers of the Vice-President, in calling to order, were not derived from the Senate, but that they came strictly from the National Constitution itself, which authorizes him to preside, and that in their exercise the Vice-President was wholly independent of the Senate. To this assumption Mr. Calhoun replied in the “National Intelligencer,” in two articles,[138] under the signature of “Onslow,” where he shows an ability not unworthy of the eminent parliamentarian whose name he for the time adopted. The point in issue was not unlike that now before us. It was insisted, on the one side, that certain powers were inherent in the Vice-President as presiding officer, precisely as it is now insisted that certain powers are inherent in the Chief-Justice when he becomes presiding officer. Mr. Calhoun replied in words applicable to the present occasion:—