INTERNATIONAL COPYRIGHT.

“I hear a lion in the lobby roar:Say, Mr. Speaker, shall we shut the door,And keep him there? or shall we let him in,To try if we can turn him out again?”[89]

“I hear a lion in the lobby roar:

Say, Mr. Speaker, shall we shut the door,

And keep him there? or shall we let him in,

To try if we can turn him out again?”[89]

February 19th, after a debate of several days, Mr. Thomas was declared “not entitled to take the oath of office, or to hold a seat, as a Senator of the United States,”—Yeas 27, Nays 20.

Letter to a Committee in New York, on this Subject, February 17, 1868.

From time to time International Copyright has occupied attention, and Mr. Sumner has often in correspondence expressed himself with regard to it. The following letter, in answer to an inquiry, was published by a New York committee of the following gentlemen: George P. Putnam, S. Irenæus Prime, Henry Ivison, James Parton, Egbert Hasard.

Senate Chamber, February 17, 1868.MY DEAR SIR,—Pardon my delay. There are two ways of dealing with the question of International Copyright,—one by the treaty power, and the other by reciprocal legislation.I have always thought that the former was the easier, but at the present moment the House of Representatives is not disposed to concede much to the treaty power.Mr. Everett, while Secretary of State, negotiated a treaty on this subject with Great Britain, which was submitted to the Senate, reported by the Committee on Foreign Relations, considered in the Senate, and finally left on the table, without any definitive vote.I shall send you a copy of this treaty, which, I believe, has never seen the light.I have always been in favor of an International Copyright,as justice to authors and a new stage in the unity of nations. Perhaps the condition of public affairs at this time, the preoccupation of the public mind, the imminence of the Presidential election, and also the alienation from England, may present temporary obstacles. But I am sanguine that at last the victory will be won. If authors should have a copyright anywhere, they should have it everywhere within the limits of civilization.Accept my best wishes, and believe me, dear Sir,Faithfully yours,Charles Sumner.James Parton, Esq., Secretary of the Committee.

Senate Chamber, February 17, 1868.

MY DEAR SIR,—Pardon my delay. There are two ways of dealing with the question of International Copyright,—one by the treaty power, and the other by reciprocal legislation.

I have always thought that the former was the easier, but at the present moment the House of Representatives is not disposed to concede much to the treaty power.

Mr. Everett, while Secretary of State, negotiated a treaty on this subject with Great Britain, which was submitted to the Senate, reported by the Committee on Foreign Relations, considered in the Senate, and finally left on the table, without any definitive vote.

I shall send you a copy of this treaty, which, I believe, has never seen the light.

I have always been in favor of an International Copyright,as justice to authors and a new stage in the unity of nations. Perhaps the condition of public affairs at this time, the preoccupation of the public mind, the imminence of the Presidential election, and also the alienation from England, may present temporary obstacles. But I am sanguine that at last the victory will be won. If authors should have a copyright anywhere, they should have it everywhere within the limits of civilization.

Accept my best wishes, and believe me, dear Sir,

Faithfully yours,

Charles Sumner.

James Parton, Esq., Secretary of the Committee.

Remarks in the Senate, on the Question of the Competency of Mr. Wade, Senator from Ohio, then President of the Senate pro Tem., to vote on the Impeachment of President Johnson, March 5, 1868.

MR. PRESIDENT,—I shall not attempt to follow learned Senators in the question whether this is a Senate or a Court. That question, to my mind, is simply one of language, and not of substance. Our powers at this moment are under the Constitution of the United States; nor can we add to them a tittle by calling ourselves a Court or calling ourselves a Senate. There they are in the Constitution. Search its text and you will find them. The Constitution has not given us a name, but it has given us powers; and those we are now to exercise. The Senate has the sole power to try impeachments. No matter for the name, Sir. I hope that I do not use an illustration too familiar, when I remind you that a rose under any other name has all those qualities which make it the first of flowers.

I should not at this time have entered into this discussion, if I had not listened to objections on the other side which seem to me founded, I will not say in error, for that would be bold when we are discussing a question of so much novelty, but I will say founded in areading of history which I have not been able to verify. Senator after Senator on the other side, all distinguished by ability and learning, have informed us that the Constitution intended to prevent a person who might become President from presiding at the trial of the President. I would ask learned Senators who have announced this proposition, where they find it in the Constitution. The Constitution says:—

“When the President of the United States is tried, the Chief Justice shall preside.”

This is all; and yet on this simple text the superstructure of Senators has been reared.

The Constitution does not proceed to say why the Chief Justice shall preside; not at all; nothing of the kind. Senators supply the reason, and then undertake to apply it to the actual President of the Senate. Where, Sir, do they find the reason? They cannot find the reason which they now assign in any of the contemporary authorities illustrating the Constitution; they cannot find it in the debates of the National Convention reported by Madison, or in any of the debates in the States at that time; nor can they find it in the “Federalist.” When does that reason first come on the scene? Others may be more fortunate than I; but I have not been able to find it earlier than 1825, nearly forty years after the formation of the Constitution, in the Commentaries of William Rawle. We all know the character of this work,—one of great respectability, and which most of us in our early days have read and studied. How does he speak of it? As follows:—

“The Vice-President, being the President of the Senate, presides on the trial, except when the President of the United States is tried. As the Vice-President succeeds to the functions and emoluments of the President of the United States, whenever a vacancy happens in the latter office, it would be inconsistent with the implied purity of a judge that a person under a probable bias of such a nature should participate in the trial, and it would follow that he should wholly retire from the court.”[90]

Those are the words of a commentator on the Constitution. They next appear eight years later, in the Commentaries of Mr. Justice Story. After citing the provision, “When the President of the United States is tried, the Chief Justice shall preside,” the learned commentator proceeds:—

“The reason of this clause has been already adverted to. It was to preclude the Vice-President, who might be supposed to have a natural desire to succeed to the office, from being instrumental in procuring the conviction of the Chief Magistrate.”[91]

And he cites in his note “Rawle on the Constitution, ch. 22, p. 216,”[92]being the very passage that I have just read. Here is the first appearance of this reason, which is now made to play so important a part, being treated even as a text of the Constitution itself. At least I have not been able to meet it at an earlier day.

If you repair to the contemporary authorities, including the original debates, you will find no such reason assigned,—nothing like it,—not even any suggestion of it. On the contrary, you will find Mr. Madison, in the Virginia Convention, making a statement which explains in the most satisfactory manner the requirementof the Constitution.[93]No better authority could be cited. Any reason supplied by him anterior to the adoption of the Constitution must be of more weight than anyex post factoimagination or invention of learned commentators.

If we trust to the lights of history, the reason for the introduction of this clause in the Constitution was because the framers of the Constitution contemplated the possibility of the suspension of the President from the exercise of his powers, in which event the Vice-President could not be in your chair, Sir. If the President were suspended, the Vice-President would be in his place. The reports will verify what I say. If you refer to the debates of the National Convention, under the date of Friday, September 14, 1787, you will find the following entry, which I read now by way of introduction to what follows at a later date, on the authority of Mr. Madison himself.

“Mr. Rutledge and Mr. Gouverneur Morris moved ‘that persons impeached be suspended from their offices until they be tried and acquitted.’“Mr. Madison.The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate.“Mr. King concurred in the opposition to the amendment.”[94]

“Mr. Rutledge and Mr. Gouverneur Morris moved ‘that persons impeached be suspended from their offices until they be tried and acquitted.’

“Mr. Madison.The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate.

“Mr. King concurred in the opposition to the amendment.”[94]

The proposition was rejected by the decisive vote of eight States in the negative to three in the affirmative. We all see, in reading it now, that it was rejected on good grounds. It would obviously be improper to confer upon the other branch of Congress the power, by its own vote, to bring about a suspension of the Chief Magistrate. But it did not follow, because the Convention rejected the proposition that a suspension could take place on a simple vote of the House of Representatives, that therefore the President could not be suspended. When the Senate was declared to have the sole power to try impeachments, it was by necessary implication invested with the power, incident to every court, and known historically to belong to the English court of impeachment, from which ours was borrowed, of suspending the party accused. All this was apparent at the time, if possible, more clearly than now. It was so clear, that it furnishes an all-sufficient reason for the provision that the Chief Justice should preside on the trial of the President, without resorting to the later reason which has been put forward in this debate.

But we are not driven to speculate on this question. While the Constitution was under discussion in the Virginia Convention, George Mason objected to some of the powers conferred upon the President, especially the pardoning power. This was on June 18, 1788, and will be found under that date in the reports of the Virginia Convention. This earnest opponent of the Constitution said that the President might “pardon crimes which were advised by himself,” and thus further his own ambitious schemes. This brought forward Mr. Madison, who had sat, as we all know, throughout the debates of the National Convention, and had recorded its proceedings, and who, of all persons, was the most competent to testify at that time as to the intention of the framers. What said this eminent authority? I give you his words:—

“There is one security in this case to which gentlemen may not have adverted. If the President be connected in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they”—

evidently referring to the Senate, or the Senate in connection with the House—

“can remove him, if found guilty;they can suspend him, when suspected, and the power will devolve on the Vice-President.”[95]

Mark well these words,—“they can suspend him, when suspected.” If only suspected, the President can be suspended. What next? “And his power will devolve on the Vice-President.” In which event, of course, the Vice-President would be occupied elsewhere than in this Chamber.

Those were the words of James Madison, spoken in debate in the Virginia Convention. Taken in connection with the earlier passage in the National Convention, they seem to leave little doubt with regard to the intention of the framers of the Constitution. They were unwilling to give to the other House alone the power of suspension; but they saw, that, when they authorized the Senate to try impeachments, they gave to it the power of suspension, if it should choose to exercise it; and the suspension of the President necessarily involved the withdrawal of the Vice-President from this Chamber, and the duty of supplying his place.

I submit, then, on the contemporary testimony, that the special reason why the Chief Justice is called to preside, when the President is on trial, is less what learned Senators have assigned than because the Vice-President under certain circumstances would not be able to be present. It was to provide for such a contingency, being nothing less than his necessary absence in the discharge of the high duties of Chief Magistrate, that a substitute was necessary, and he was found in the Chief Justice. All this was reasonable. It would have been unreasonable not to make such a provision.

But this is not all. There is an incident, immediately after the adoption of the Constitution, which is in harmony with this authentic history. The House of Representatives at an early day acted on the interpretation of the Constitution given by Mr. Madison. The first impeachment, as we all know, was of William Blount, a Senator, and in impeaching him the House of Representatives demanded that he should “be sequestered from his seat in the Senate.” This was in 1797. The Senate did not comply with this demand; but the demand nevertheless exists in the history of your Government, and it illustrates the interpretation which was given at that time to the powers of the Senate. The language employed, that the person impeached should be “sequestered,” is the traditional language of the British Constitution, constantly used, and familiar to our fathers. In employing it, the House of Representatives gave their early testimony that the Senate could suspend from his functions any person impeached before them; and thus the House of Representatives unite with Madison in supplying a sufficientreason for the provision that on the trial of the President the Chief Justice shall preside.

In abandoning the reason which I have thus traced to contemporary authority, you launch upon an uncertain sea. You may think the reason assigned by the commentators to be satisfactory. It may please your taste; but it cannot be accepted as an authentic statement. If the original propositions were before me, I should listen to any such suggestion with the greatest respect. I do not mean to say now, that, as a general rule, it has not much in its favor; but I insist, that, so far as we are informed, the reason of the commentators was an afterthought, and that there was another reason which sufficiently explains the rule now under consideration.

I respectfully submit, Sir, that you cannot proceed in the interpretation of this text upon the theory adopted by the learned Senators over the way. You must take the text as it is. You cannot go behind it; you cannot extend it. Here it is: “When the President of the United States is tried, the Chief Justice shall preside.” That is the whole, Sir. “The Chief Justice shall preside.” No reason is assigned. Can you assign a reason? Can you supply a reason? Especially can you supply one which is not sustained by the authentic contemporary history of the Constitution, and particularly when you have authentic contemporary history which supplies another reason? Unless I am much mistaken, this disposes of the objection, proceeding from so many Senators, that the Senator from Ohio cannot take the oath because he may possibly succeed to the President now impeached at your bar. He may vote or not, as he pleases; and there is no authority in the Constitution, or any of its contemporary expounders, to criticize him.

This is all, Sir, I have to say at this time on this head. There were other remarks made by Senators over the way to which I might reply. There was one that fell from my learned friend, the Senator from Maryland, [Mr.Johnson,] in which he alluded to myself. He represented me as having cited many authorities from the House of Lords, tending to show, in the case of Mr. Stockton, that this person at the time was not entitled to vote on the question of his seat. The Senator does not remember that debate, I think, as well as I do. The point which I tried to present to the Senate, and which, I believe, was affirmed by a vote of the body, was simply this: that a man cannot sit as a judge in his own case. That was all,—at least so far as I recollect; and I submitted that Mr. Stockton at that time was a judge undertaking to sit in his own case.[96]Pray, Sir, what is the pertinency of this citation? Is it applicable at all to the Senator from Ohio? Is his case under consideration? Is he impeached at the bar of the Senate? Is he in any way called in question? Is he to answer for himself? Not at all. How, then, does the principle of law, that no man shall sit as a judge in his own case, apply to him? How does the action of the Senate in the case of Mr. Stockton apply to him? Not at all. The two cases are as wide as the poles asunder. One has nothing to do with the other.

Something has beensaid of the “interest” of the Senator from Ohio on the present occasion. “Interest”! This is the word used. We are reminded that in a certain event the Senator may become President, and that on this account he is under peculiar temptations, which may swerve him from justice. The Senator from Maryland went so far as to remind us of the large salary to which he might succeed,—not less than twenty-five thousand dollars a year,—and thus added a pecuniary temptation to the other disturbing forces. Is not all this very technical? Does it not forget the character of this great proceeding? Sir, we are a Senate, and not a Court ofNisi Prius. This is not a case of assault and battery, but a trial involving the destinies of this Republic. I doubt if the question of “interest” is properly raised. I speak with all respect for others, but I submit that it is inapplicable. It does not belong here. Every Senator has his vote, to be given on his conscience. If there be any “interest” to sway him, it must be that of justice, and the safety of the country. Against these all else is nothing. The Senator from Ohio, whose vote is now in question, can see nothing but those transcendent interests by the side of which office, power, and money are of small account. Put in one scale these interests, so dear to the heart of the patriot, and in the other all the personal temptations which have been imagined, and I cannot doubt, that, if the Senator from Ohio holds these scales, the latter will kick the beam.

Opinion in the Case of the Impeachment of Andrew Johnson, President of the United States, March 31, 1868.

In the course of this trial there was an important claim of power by the Chief Justice, as presiding officer of the Senate, on which at the time Mr. Sumner expressed his opinion to the Senate, when it withdrew for consultation. As this claim was calculated in certain contingencies to affect the course of proceedings, possibly the final judgment, and as it might hereafter be drawn into a precedent, Mr. Sumner was unwilling to lose this opportunity of recording his reasons against it.

In determining the relations of the Chief Justice to the trial of the President, we must look, first, to the National Constitution; for it is solely by virtue of the National Constitution that this eminent magistrate is transported from his own natural field to another, where he is for the time an exotic. The Chief Justice in his own court is at home; but it is equally clear, that, when he comes into the Senate, he is a stranger. Though justly received with welcome and honor, he cannot expect membership, or anything beyond the powers derived directly from the National Constitution, by virtue of which he temporarily occupies the Chair.

Repairing to our authoritative text, we find the only applicable words:—

“The Senate shall have the sole power to try all impeachments.… When the President of the United States is tried, the Chief Justice shallpreside: and no person shall be convicted without the concurrence of two thirds of the members present.”

This is all. The Chief Justice shallpreside, but subject to two limitations specifically declared. First, the trial is to be by the Senatesolely, and nobody else,—thus carefully excluding the presiding officer from all participation, except so far as is implied in the power to preside; and, secondly, judgment of conviction can be only by a vote of “two thirds ofthe members present,”—thus again excluding the presiding officer, unless it is assumed that he is a member of the Senate.

On the face of this text it is difficult to find ambiguity. Nobody questions that the Chief Justice must preside. Can anybody question that the trial must be by the Senate solely, and nobody else? To change this requirement is to fly in the face of the National Constitution. Can anybody question that the judgment of conviction must be by votes of “members present,” and nobody else? Now, since the Chief Justice is not a “member” of the Senate, it is plain that he is positively excluded from vote on the final question. It only remains that he should “preside.” And here the question recurs as to the meaning of this familiar term.

The person who presides is simply, according to the language of our Rules, “presiding officer,” and this designation is the equivalent or synonym of speaker, and also of prolocutor, each of which signifies somebody who speaks for the house. It is not implied that he votes with the house, much less that he decides for the house, but only that he is the voice of the house,—its speaker. What the house has to say it says through him; but, except as organ of the house, he is silent,unless also a member, when to his powers as presiding officer he superadds the powers of a member also. From this brief statement it appears at once how limited his functions must be.

Here I might stop; but, since this question has assumed unexpected importance, I am induced to go further. It is easy to show that the language of the National Constitution, if seen in the light of English parliamentary history, must have an interpretation identical with its natural import.

Nothing is clearer than this. If language employed in the National Constitution had already, at the time of its formation, received a definite meaning, it must be interpreted accordingly. Thus, when the Constitution secures “trial by jury,” it secures that institution as defined by antecedent English law. So, also, when it declares that the judicial power shall extend to “all cases in law and equity” arising under the National Constitution, it recognizes the distinction between law and equity peculiar to English law. Courts of Common Law and Courts of Equity are all implied in this language; and since there is no further definition of their powers, we must ascertain them in England. Cushing, in determining the rules of proceeding in our American Legislatures, says:—

“Such was the practice of the two Houses of the British Parliament when our ancestors emigrated; … and such has continued to be, and now is, the practice in that body.”[97]

This resource has been most persuasively presented by Mr. Wirt, in his remarkable argument on the impeachment of Judge Peck, where he vindicates and expoundsthe true rule of interpretation.

According to this eminent authority, what he calls “the English archetypes” were the models for the framers of the National Constitution. The courts were fashioned after these “archetypes.” They were instituted according to “the Englishoriginals, to which they were manifestly referred by the Constitution itself.”[98]Here again I quote the words of Mr. Wirt.

All this is precisely applicable to that part of the National Constitution under consideration. In essential features it was borrowed from England. There is its original, its model, its archetype. Therefore to England we go.

Not only to England must we go, but also to Parliamentary Law, as recognized in England at the adoption of the National Constitution. The powers of a presiding officer, where not specifically declared, must be found in Parliamentary Law. The very termpresideis parliamentary. It belongs to the technicalities of this branch of law, as much asindictbelongs to the technicalities of the Common Law. In determining the signification of this term, it will be of little avail to show some local usage, or, perhaps, some decision of a court. The usage or decision of a Parliament must be shown. Against this all vague speculation or divination of reason is futile. I will not encumber this discussion by superfluous authorities. Insisting that this question must be determined by Parliamentary Law, I content myself with adducing the often cited words of Lord Coke:—

“And as every court of justice hath laws and customs for its direction, some by the Common Law, some by the Civil and Canon Law, some by peculiar laws and customs, etc., so the High Court of Parliamentsuis propriis legibus et consuetudinibus subsistit. It islex et consuetudo Parliamenti, that all weighty matters in any Parliament, moved concerning the peers of the realm, or commons in Parliament assembled,ought to be determined and adjudged and discussed by the course of the Parliament, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts.”[99]

Here is the true rule. To “the course of the Parliament” we must resort. In “the course of the Parliament” we must find all the powers of a presiding officer, and all that is implied in the authority to preside. “The Chief Justice shall preside.” Such is the Constitution. Nothing is specified with regard to his powers; nothing is said. What was intended is left to inference from the language employed, which must be interpreted according to “the course of the Parliament,” precisely as what was intended by trial by jury is ascertained from the Common Law. In the latter case we go to the Common Law; in the former case we go to “the course of the Parliament.” You may as well turn away from the Common Law in the one as from “the course of the Parliament” in the other. In determining “the course of the Parliament” we resort to the summary of text-writers, and, better still, to the authentic instances of history.

Something has been said in this discussion with regard to the example of Lord Erskine, who presided at the impeachment of Lord Melville. This was in 1806, during the short-lived ministry of Fox, when Erskine was Chancellor. It is by misapprehension that thisinstance is supposed to sustain the present assumption. When seen in its true light, it is found in harmony with the general rule. Erskine had at the time two characters. He was Lord Chancellor, and in this capacity presiding officer of the House of Lords, without the right to rule or vote, or even to speak. Besides being Chancellor, he was also a member of the House of Lords, with all the rights of other members. As we advance in this inquiry, it will be seen that again and again it has been practically decided, that, whatever the powers of a presiding officer who is actually a member, a presiding officer who is not a member cannot rule or vote, or even speak. In this statement I anticipate the argument. I do it at this stage only to put aside the suggestion founded on the instance of Lord Chancellor Erskine.

I begin with the most familiar authority,—I mean the eminent writer and judge, Sir William Blackstone. In his Commentaries, where is found, in elegant form, the complete body of English law, you have this whole matter stated in a few suggestive words:—

“The Speaker of the House of Lords,if a Lord of Parliament, may give his opinion or argue any question in the House.”[100]

If not a Lord of Parliament, he could not give his opinion or argue any question. This is in accordance with all the authorities and unbroken usage; but it has peculiar value at this moment, because it is the text of Blackstone. This work was the guide-book of our fathers. It first appeared in 1765-69, the very period when the controversy with the mother country was fervid; and it is an unquestionable fact of history that it was read in the Colonies with peculiar interest. Burke, in one of his masterly orations, portraying the character of our fathers, says: “I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England.”[101]Nothing is clearer than that they knew it well.

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:—

“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, orChairman, 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 theHouse. Lord Campbell expressly records, that, while his name appears in the entry of those present on the 22d November, 1830, asHenricus Brougham, Cancellarius, “he had no right to debate and vote till the following day,” when the entry of his name and office appears asDominus 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]

Existing rules of the Senate add to these powers; but such is the rule with regard to the presiding officer of the House of Lords, even when a peer. He is not appealed to on points of order. If a commoner, hispower is still less.

“If he be a commoner, notwithstanding a resolution of the House that he is to be proceeded against for any misconduct as if he were a peer, he has neither vote nor deliberative voice, and he can only put the question, and communicate the resolutions of the House according to the directions he receives.”[111]

In the early period of English history the Chancellors were often ecclesiastics, though generally commoners. Fortescue, Wolsey, and More were never peers. This also was the case with Sir Nicholas Bacon, father of Lord Bacon, who held the seals under Queen Elizabeth for twenty years, and was colleague in the cabinet of Burleigh. Lord Campbell remarks on his position as presiding officer of the House of Lords:—

“Not being a peer, he could not take a share in the Lords’ debates; but, presiding as Speaker on the woolsack, he exercised a considerable influence on their deliberations.”[112]

Then again we are told:—

“Being a commoner, he could neither act as Lord Steward nor sit upon the trial of the Duke of Norfolk, who was the first who suffered for favoring Mary’s cause.”[113]

Thus early do we meet illustration of this rule, which constantly reappears in the annals of Parliament.

The successor of Sir Nicholas Bacon was Lord Chancellor Bromley; and here we find a record interesting at this moment. After presiding at the trial of Mary, Queen of Scots, the Lord Chancellor became ill and took to his bed. Under the circumstances, Sir EdmundAnderson, Chief Justice of the Common Pleas, was authorized by the Queen to act as a substitute for the Chancellor; and thus the Chief Justice became presiding officer of the House of Lords to the close of the session, without being a peer.

Then came Sir Christopher Hatton, the favorite of Queen Elizabeth, and so famous as the dancing Chancellor, who presided in the House of Lords by virtue of his office, but never as peer. The same was the case with his successor, Sir John Puckering. He was followed by the exemplary Ellesmere, who was for many years Chancellor without being a peer, but finished his career by adding to his title as presiding officer the functions of a member. The greatest of all now followed. After much effort and solicitation, Bacon becomes Chancellor with a peerage; but it is recorded in the Lords’ Journals, that, when he spoke, he removed from the woolsack “to his seat as a peer,” thus attesting that he had no voice as presiding officer. At last, when the corruptions of this remarkable character began to overshadow the land, the Chief Justice of the King’s Bench, Sir James Ley, was designated by the King to act as Speaker of the House of Lords. Soon afterward Bacon fell. Meanwhile it is said that the Chief Justice “had very creditably performed the duties of Speaker of the House of Lords.”[114]In other words, according to the language of our Constitution, he had presided well.

Then came Williams, Coventry, and Finch, as Lord Keepers. As the last absconded to avoid impeachment by the House of Commons, Littleton, Chief Justice of the Common Pleas, “was placed on the woolsack asSpeaker.”[115]At a later time he received the Great Seal as Lord Keeper. This promotion was followed by a peerage, at the prompting of no less a person than the Earl of Strafford, “who thought he might be more useful, if permitted to take part in the proceedings of the House as a peer, than if he could only put the question as Speaker.”[116]Clarendon says, that, as a peer, he could have done Strafford “notable service.”[117]But the timid peer did not render the expected service.

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 termpreside.

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 Presidentpro 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 havingno 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 Presidentpro 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 termpreside.

All this is compendiously described by Lord Campbell:—

Back to Index Next