ited 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."1 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."

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 char

1 Howell's State Trials, Vol. XVI. col. 768.

2 Lives of the Chancellors, (4th edit.,) Vol. VI. p. 94.

acter, 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.

Besides his eminence as Chief Justice, King was the nephew of the great thinker who has exercised such influence on English and American opinion, John Locke. Shortly after presiding at the impeachment as Chief Justice, he became Chancellor with a peerage.

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He was followed in his high post by Talbot and Hardwicke, each with a peerage. Jumping the long period of their successful administrations, when the presiding officer was also a member of the upper House, I come to another instance where the position of the presiding officer was peculiarly apparent, and this, too, when Benjamin Franklin was in London, as agent for Pennsylvania. I refer to Sir Robert Henley, who became Lord Keeper in 1757, without a peerage. The King, George the Second, did not like him, and therefore, while consenting to place him at the head of the law, declined to make him a member of the House over which he was to preside. At last, in 1760, the necessities of the public service constrained his elevation to the peerage, and soon afterward George the Third, who succeeded to the throne without the animosities of his grandfather, created him Chancellor and Earl of Northington.

For nearly three years, Henley, while still a commoner, was presiding officer. During this considerable

period he was without voice or vote. The historian remarks, that, "if there had been any debates, he was precluded from taking part in them." 1 In another place he pictures the defenceless condition of the unhappy magistrate with regard to his own decisions in the court below, when heard on appeal:

"Lord Keeper Henley, till raised to the peerage, used to complain bitterly of being obliged to put the question for the reversal of his own decrees, without being permitted to say a word in support of them."2

Lord Eldon, in his Anecdote Book, furnishes another statement of this case:

"When Sir Robert Henley was Keeper of the Great Seal, and presided in the House of Lords as Lord Keeper, he could not enter into debate as a Chancellor being a peer does; and therefore, when there was an appeal from his judgments in the Court of Chancery, and the law Lords then in the House moved to reverse his judgments, . . . . the Lord Keeper could not state the grounds of his opinions given in judgment, and support his decisions." 8

....

And thus for nearly three years this commoner presided.

A few weeks after Henley first took his place as presiding officer, Franklin arrived in London for the second time, and continued there, a busy observer, until after the Judge was created a peer. Even if he had been ignorant of parliamentary usage, or had forgotten what passed at the trial of Lord Macclesfield, he could not have failed to note that the House of Lords had for

1 Campbell, Lives of the Chancellors, (4th edit.,) Vol. VI. p. 316. 2 Ibid., Vol. I. p. 15, note.

8 Twiss, Life of Eldon, Vol. I. p. 319.

its presiding officer an eminent judge, who, not being a member, could take no part in its proceedings beyond putting the question.

Afterward, in 1770, there was a different arrangement. Owing to difficulty in finding a proper person as Chancellor, the Great Seal was put in commission, and Lord Mansfield, Chief Justice of England, was persuaded to act as presiding officer. Curiously enough, Franklin was again in England, on his third visit, and remained through the service of Lord Mansfield in this capacity. Thus this illustrious American, afterward a member of the Convention that framed the National Constitution, had at two different times seen the House of Lords with a presiding officer who, not being a member of the body, could only put the question, and then again with another presiding officer who, being a member of the body, could vote and speak, as well as put the question.

But Franklin was not the only member of the National Convention to whom these precedents were known. One or more had been educated at the Temple; others were accomplished lawyers, familiar with the courts of the mother country. I have already mentioned that Blackstone's Commentaries, where the general rule is clearly stated, was as well known in the Colonies as in the mother country. Besides, our fathers were not ignorant of the history of England, which, down to the Declaration of Independence, had been their history. The English law was also theirs. Not a case in its books which did not belong to them as well as to the frequenters of Westminster Hall. The State Trials, involving principles of Constitutional Law, and embodying these very precedents, were all known. At least

four editions had appeared several years before the adoption of the National Constitution. I cannot err in supposing that all these were authoritative guides at the time, and that the National Constitution was fashioned in all the various lights, historical and judicial, which they furnished.

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 ques