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being shall preside in council, and shall vote when the council are divided; but when the first named of the council presides in his absence, and votes as governor, (and he must qualify as such, as we shall see, to enable him to do so,) it is expressed, he shall vote in all cases where the other members disagree. Here then we find that the governor is neither president nor member of council, nor member of the board, by this article, he is to preside in council, and vote in a specified case, but he remains governor still, with all his powers vested in him by the other parts of the constitution, and after the advice and consent of the council has been decided, the business of the board ends; then it remains with his deliberate judgment to determine, whether he will concur there. with before he finally acts. The language of the con. stitution is express, the governor, with the advice and consent of council, may appoint officers; may embody the milia tia; call the assembly, &c. &.
This leads us to the last clause of this section which will be found equally perspicuous with every other part of the constitution : The words are and in absence of the governor, the first named of the council, shall preside, (not the first named of those who may happen to be convened or present, at any particular time, as has been strangely -construed,) and as such shall vote in all cases where the other members disagree in their opinion.” All therefore that now remains in examining this article, is to ascertain what is the constitutional or legal absence of the go. vernor. This we shall find can only be the absence de. fined and established by sect. 32, the death, resignation, or removal out of this state, of the governor, and possibly the case of extreme sickness and inability to perform the duties, under the law of 1716. This law, it must be observed, is a perpetual law-it has always been acted un. der, was in force in 1774, and being no wise inconsiste ent with, or repealed by, the constitution, may be, and by the best opinion the Civil Officer can form, is still in force. When therefore the first named of the council presides and votes, it must be as governor—the words in the clause, as such, cannot be construed so as to make. either grammar or sense in any other manner; for he is
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in no part of the section called president—the words are shall preside—the words therefore, as such, cannot refer to a verb; there is no substantive in the preceding part of the sentence to which they can either grammatically or intelligibly refer, but the governor. By referring to sect. 32, we find the cases there enumerated when the first named of the council shall act as governor, and qualify in the same manner, and shåll immediately call a meeting of the general assembly, giving not less than 14 days notice, at which meeting a governor shall be appointed for the residue of the year. The first named of the council then can only act as governor by the constitution in the cases here specified; and to do this he must qualify as such: This section therefore, 32, renders this clause of 34 absolutely necessary, to authorise the first named, acting as governor and qualified as such, to preside in council, and as such to vote where the other members disagree, and that there may be a governor or a qualified officer for the board to advise ; and the words vote as such, i. e. vote as governor, fixes, by necessary reference, that absence of the governor, and qualification of the first named of the council, which are here meant and understood by the convention. And the meaning and effect of the clause will not be varied if the law of 1716 is in force, for that law has always been construed, understood and practised under, as requiring the president to qualify as governor ; thus it appears, from the journal of . executive proceedings, “ that on 3d May, 1752, gover“nor Ogle died on the next day, it is thus entered, “ his excellency Samuel Ogle, late governor of this pro“ vince, being dead, and the honourable Benjamin Task66 er taking his place as president, the several oaths of “ government appointed to be taken by act of assembly “ of this province, and also the usual oaths taken by the “ governors of this province at the times of their quali“ fications, (changing only what is necessary to be “ changed,) and also the following oath, were administer« ed to the said Benjamin Tasker, &c." any other interpretation, was it consistent with grammatical construction, would involve the greatest of possible absurdities ; that is, although the first named of the council, on the
death, removal or resignation, of the governor, cannot act without qualifying, and must immediately call the assembly ; yet by meeting in the absence of the governor, he may go on through the whole year, exercising the duties of governor without qualifying or calling the assem. bly. He, and two of the council, or indeed any three or more, may meet under the present construction, and if when thus convened, they constitute a board to transact any business not confided to the governor alone, they máy meet at any other place as well as at the seat of government, or where the governor resides ; of course they may transact the business without his possible knowledge-they may meet at the seat of government at their own lodgings, and lastly, they may meet in the council chamber, without apprizing him, as they frequently have done, and transact the executive business without the governor, and without the qualification of the first named of the council; and the governor is as effectually ex. cluded from all participation in the duties of the office, not only for the residue, but for the whole year, and every year, as if dead, resigned or removed; notwithstanding the constitution has so effectually guarded against the exercise of the duties of this officer by any other than a governor, and qualified as such, permitting only to the first named of the council, qualified as governor, to act during the time requisite, to call the assembly.
It has not hitherto been examined in what particular mode the governor is to act when he presides in council; that depends on the forms heretofore practised, and the constitutional provisions; we have only hitherto contended, that whether the governor has the right he always had exercised prior to the convention of proposing, or whether the council may originate, or whether the governor shall both originate and also deliberate after their advice and consent, agreeably to the determination of the supreme court of the United States; the theory and construction of our constitution require, that he shall exercise the faculties of a rational being in dis. charge of all the duties assigned to him, instead of holding an intermediate, semi-vital existence, between the ina. nimate pen he guides, and the animals who guide him, if
the expression can be used with propriety where no per. sonal offence is intended.
To the foregoing observations on the principles and construction of che constitution, it remains to add some remarks on the style and language that has been used in our laws, subsequent to the revolution: These frequently prescribe duties to be performed by the gover. kor and council, instead of the constitutional formulary, by the governor, with the advice and consent of council. This is neither essential to the question relative to the Susquehanna commissioners, (for in these the language of the constitution was observed,) nor to the general construction of the constitution itself-but the object of this address is, to offer information and reflections to assist the public mind in deciding an important constitutional question, and not to carry a particular point. We therefore have taken occasion to observe, that this luose language in our ordinary legislation cannot possibly create any change in the constitution; whenever the governor and council are named, they are named as constitutional organs, and when they are to act, they can only act in the manner prescribed by that instrument: This principle is admitted by all; for otherwise the governor and council must act jointly, and the governor vote on all occasions as another member: If they act as constitutional governor and council, they must aet concurrently, with the special proviso, that if the council are divided, the governor may decide their concurrence himself. The legislature can confer no powers on the governor and council to be executed jointly; they might name the governor by his name, and the counsellors individually, and then, like other individuals, they would become joint commissioners; but they must then act in, dependently of their constitutional authority.
We have remarked the great caution and care observed in the language of the constitution to avoid any inference that the governor and council are constituted into one board, and to prevent his powers from being con, founded with those of the council, when he presides over that body a separation, without which, the object and
nature of a concurrent act of the governor and council could not possibly be maintained and preserved. He presides to be advised, and when constitutionally and legally absent, the first named of the council, qualified as governor, presides for the same purpose, and with the same authority, but his style is president of the council still. The board of council having decided on their advice and consent; either by a majority of their own votes, or in case of division, the governor, by special authority in that case, having decided, it becomes then that constitutional advice and consent-that concurrence, which the constitution and laws have prescribed in specified cases, as an indispensable requisite, to enable the governor to act, and without which duly obtained, there is no doubt but that the act of the governor, in any of those cases, would be unconstitutional, illegal and invalid. But still that advice and consent can only be one part of an executive act in these cases; it still remains for the governor to concur and execute; for if it has ever been one of those few cases in which he could vote—so far as he voted with the council he acted jointly, he has not even then concurred as governor ; and if it is one of these cases on which there was no division; and a governor may serve his term out without a division ; and there never can be a division, if the constitutional number of members attend their duty; so far from concurring as governor, unless it was on his own nomination or proposal, he has not acted at all: His power and duty laid down generally by the constitution remains still to be executed, which are express, that the governor, (with the advice and consent of the council,) shall appoint officers-embody the militia, &c. &c. &c. This returns us again to the constitutional and legal meaning of advice and consent, which we have already, and we hope satis. factorily, discussed.
So far we have proceeded in explaining what we con. sider as the substance of the constitution, and it now remains to speak of those forms that are essential for the preserving and carrying that substance into effect. On the threshold of this inquiry, we have immediately opened to our view, how these misapprehensions have first arisenhow all these abuses have crept in and