From this impartial statement we have a practical definition of the word preside. It is difficult to see how it can have a different signification in the National Constitution. The word is the same in the two cases, and it must have substantially the same meaning, whether it concern a Clerk or a Chief Justice. Nobody ever supposed that a presiding Clerk could rule or vote. Can a presiding Chief Justice?
The claim of a presiding Chief Justice becomes still more questionable when it is considered how positively the Constitution declares that “the Senate shall have the sole power to try all impeachments,” and, still further, that conviction can be only by “the concurrence of two thirds of the members present.” These two provisions accord powers to the Senate solely. If a presiding Chief Justice can rule or vote, the Senate has not “the sole power to try”; for ruling and voting, even on interlocutory questions, may determine the trial. A vote to postpone, to withdraw, even to adjourn, might, under peculiar circumstances, exercise a decisive influence. A vote for a protracted adjournment might defeat the trial. Notoriously such votes are among the devices of parliamentary opposition. In doing anything like this, a presiding Chief Justice makes himself a trier, and, if he votes on the final judgment, he makes himself a member of the Senate. But he cannot be either.
It is only a casting vote that thus far the presiding Chief Justice has assumed to give. But he has the same power to vote always as to vote when the Senate is equally divided. No such power in either case is found in the National Constitution or in Parliamentary Law. By the National Constitution he presides, and nothing more, while by Parliamentary Law there is no casting vote where the presiding officer is not a member of the body. Nor does there seem to be any difference between a casting vote on an interlocutory question and a casting vote on the final question. The former is determined by a majority, and the latter by two thirds; but it has been decided in our country, that, “if the assembly, on a division, stands exactly one third to two thirds, there is then occasion for the giving of a casting vote, because the presiding officer can then, by giving his vote, decide the question either way.”[150] This statement reveals still further how inconsistent is the claim of the presiding Chief Justice with the positive requirement of the National Constitution.
I would not keep out of sight any consideration which seems in any quarter to throw light on this claim; and therefore I take time to mention an analogy which has been invoked. The exceptional provision in the Constitution, under which the Vice-President has a casting vote on ordinary occasions, is taken from its place in another clause and applied to the Chief Justice. It is gravely argued that the Chief Justice is a substitute for the Vice-President, and, as the latter, by express grant, has a casting vote on ordinary occasions, therefore the Chief Justice has such when presiding on an impeachment. To this argument there are two obvious objections: first, there is no language giving a casting vote to the Chief Justice, and, in the absence of express grant, it is impossible to imply it in opposition to the prevailing rule of Parliamentary Law; and, secondly, it is by no means clear that the Vice-President has a casting vote, when called to preside on an impeachment. On ordinary occasions, in the business of the Senate, the grant is explicit; but it does not follow that this grant can be extended to embrace an impeachment, in face of positive provisions by which the power to try and vote is confined to Senators. According to the undoubted rule of interpretation, Ut res magis valeat quam pereat, the casting vote of the Vice-President must be subject to this curtailment. Therefore, if the Chief Justice is regarded as a substitute for the Vice-President, it will be only to find himself again within the same limitations.
I cannot bring this survey to an end without an expression of deep regret that I find myself constrained to differ from the Chief Justice. In faithful fellowship for long years, we have striven together for the establishment of Liberty and Equality as the fundamental law of this Republic. I know his fidelity, and revere his services; but not on this account can I hesitate the less, when I find him claiming in this Chamber an important power which, in my judgment, is three times denied in the National Constitution: first, when it is declared that the Senate alone shall try impeachments; secondly, when it is declared that only members shall convict; and, thirdly, when it is declared that the Chief Justice shall preside, and nothing more,—thus conferring upon him those powers only which by Parliamentary Law belong to a presiding officer not a member of the body. In the face of such a claim, so entirely without example, and of such possible consequences, I cannot be silent. Reluctantly and painfully I offer this respectful protest.
There is a familiar saying of jurisprudence, that it is the part of a good judge to amplify his jurisdiction: Boni judicis est ampliare jurisdictionem. This maxim, borrowed from the horn-books, was originally established for the sake of justice and humanity, that they might not fail; but it has never been extended to other exercises of authority. On the contrary, all accepted maxims are against such assumption in other cases. Never has it been said that it is the part of a good presiding officer to amplify his power; and there is at least one obvious reason: a presiding officer is only an agent, acting always in presence of his principal. Whatever the promptings of the present moment, such an amplification can find no sanction in the National Constitution, or in that Parliamentary Law from which there is no appeal.
Thus, which way soever we turn,—whether to the National Constitution, or to Parliamentary Law, as illustrated in England or the United States,—we are brought to conclude that the Chief Justice in the Senate Chamber is not in any respect Chief Justice, but only presiding officer; that he has no judicial powers, or, in other words, powers to try, but only the powers of a presiding officer not a member of the body. According to the injunction of the Constitution, he can preside, but this is all, unless other powers are superadded by concession of the Senate, subject always to the constitutional limitation that the Senate alone can try, and, therefore, alone can rule or vote on questions which enter into the trial. The function of a presiding officer may be narrow, but it must not be disparaged. For a succession of generations, great men in the law, Chancellors and Chief Justices, have not disdained to discharge it. Out of the long and famous list I mention one name of surpassing authority: Somers, the illustrious defender of constitutional liberty, unequalled in debate as in judgment, exercised this function without claiming other power. He was satisfied to preside. Such an example is not unworthy of us. If the present question could be determined by sentiments of personal regard, I should gladly say that our Chief Justice is needed to the Senate more than the Senate is needed to him. But the National Constitution, which has regulated the duties of all, leaves us no alternative. We are the Senate; he is the presiding officer,—although, whether in the Court Room or the Senate Chamber, he is always the most exalted servant of the law. This character he cannot lose by change of seat. As such he lends to this historic occasion the dignity of his presence and the authority of his example. Sitting in that Chair, he can do much to smooth the course of business, and to fill the Chamber with the spirit of justice. Under the rules of the Senate, he can become its organ,—but nothing more.