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how some able and honest men have gradually been led into a difference of opinion, and to imbibe prejudices that it is difficult to eradicate. Still we hope and believe that what we shall now say on this subject, must prove entirely satisfactory to every honest and intelligent man, howeyer deep rooted his prejudices may have been.
We must premise, that the strongest mind that has ever applied its powers to the science of government, has never yet attempted to define by analysis, what are strictly legislative, executive and judiciary powers; separating by lines the departments distinctly from each other: the reasoning faculty seems to recoil from the tension necessary to divide them, by the application of first principles to that infinite mass and endless variety of human action, which reflection suggests and history teaches. This indeed is the great desideratum in poli. tics ; which, like longitude in navigation, when once discovered and settled, will enable those at the helm to steer clear of most of the rocks and quicksands on which the best hopes of mankind have been hitherto lust. Even those enlightened statesmen who have devised constitutions or systems of organic laws, have been forced to content themselves with some general and vague outlines; for all attempts hitherto to trace, by detail, have only ended in perplexity and confusion,
Strictly speaking, there are but two distinct branches of government, the legislative and executive ; founded on the compound nature of man, who is a thinking as well as an acting being; but who has no other distinct quality to serve as the basis of that intermediate power, termed the Judiciary, which has therefore been general. ly considered as more properly a branch of the executive-but those powers can no more be entirely separated in government, than the qualities on which they are founded can be in the individual man; every act of government, therefore, whether termed legislative, executive or judiciary, consists necessarily of two parts, the one legislative or deliberative, and the other executive or ministerial, and it can only be properly referred to the one or the other department, as the duties of delbe , rating or acting preponderate; we believe that the Crea. tor never intended man, in any situation, to become a machine, and we believe and hope, that his omnipotence has secured his intentions from lasting violation. Man must and will think, and in some measure use his rea. soning faculties in judging for himself, even when compelled to act by the iron hand of power, and in spite of the guillotine, the wheel, or the bed of Procustes.
*. When the convention of Maryland, therefore, de. clared that the governor should alone direct the land and faval forces, and alone grant pardons and reprieves fot any crime, &c. they unquestionably intended and ex: pected, that he should be a man capable of deliberation; and that he should deliberate before he acted. When it declared that he should; (with the advice and consent of council,) appoint officers, embody the militia, &c. it must have also intended, that he should not only deliberate him. self, but consult and deliberate with others, and take the advice and consent of those who the constitution de clared should be the council to the governor for these special purposes. If their concurrence in such cases can. not be obtained, his own deliberate judgment will not authorise him to act; but if it is obtained, then remains that executive power with which the council have no. thing to do he is then to act, and is still the sole executive agent, for such the constitution, by its express words, constitues him in every act, whether to be performed with or without the advice and consent of council,
- In pursuing and establishing these principles, we must repeat, that the council are expressly constituted a board of themselves. To preserve the system, secrecy and promptitude, of the executive character, the governor presides to be advised, and confers personally, in order to deliberate and discuss the special measures submitted by the constitution for their concurrence; but'to render the advice and consent of the board a separate and dis. tinct act, which is essential to the nature of a concurrent act, (a word of the constitution which the Friend to Candour cautiously avoids explaining or commenting on,) the governor is not allowed to interfere, unless they
cannot agree, then, and then only, he decides by a vote that which is constitutionally intended as an act of the council, and for the evident reasons already enlarged on.
But here the doubts of gentlemen arise--that as his voting on that possible occasion necessarily implies that he shall wote on none other, whether his powers in such cases are not destroyed altogether, and whether he does bot become only the ministerial agent of the council on those occasions, bound by their advice and consent to act as they direct; it appearing to them not the probable intention of the convention on any possible case, and that he should vote, and afterwards separately act, on the same case. It is unnecessary here to repeat, that the. destruction of the general powers of the governor by implication, and that too founded on a possible case that might never happen, cannot certainly bear legal scru. , tiny: or that the act of the council cannot possibly amount to more than advice and consent by the constitution. But the fact is probable, and certainly has been hitherto believed by the Civil Officer, that the convention never expected that he would have to deliberate again after voting. Had the language of the constitution, and those forms corresponding therewith, and established by long experience, been known, observed and preserved, no doubt ever could have arisen, no question on the subject could have ever occurred.
The history of law has long since established tat forms are essential to the preservation of substance in government: hence it is that the Lex Parliamentaria has been received as part of the common law of the land. The forms of executive proceedings have not been so much exposed to public view ; unfortunately, those records of Maryland remained at the revolution in the hands of the officers of the old government, and were not delivered over, (as it is understood,) until sometime in the administration of governor Lee.
· The convention well knew that the right of origia Dating and proposing ever had been vested in the gover. nor; some of them had been counsellors, and several of
them, no doubt, were well acquainted with the forms they knew that the acts of the council were in the form of advice and consent, to what was considered as the proposal of the chief magistrate. Hence it is that the terms the council to the governor-the advice and consent of the council-and the concurrence of the council, are the express language used by the convention-all of which terms are alone predicated on a supposed precedent act of the governor, on which the council are called to give, or not to give, at their discretion, their advice and consent, and without which he cannot act on his own judgment: en any other principle they are neither sense nor grammar. To admit a member to propose or give advice when not asked, destroys that unity of design so essential to ex. ecutive proceedings—it destroys promptitude, by suggesting various plans-gentlemen will become attached to their own, it is not likely they will agree with the governor until the moment of action is lost, to seize which is the great characteristic of a wisely constituted executive power; and finally, as a governor of Virginia of great experience and sound judgment observed, more than twenty years ago, it would eventually reduce the governor to a cypher, even admitting his right, which was never then questioned, of rejecting that advice, and refusing to act by it. In fact, it would destroy the constitution, and therefore the convention have wisely guarded against it, by the expressions and terms they have used, and by continuing the governor the sole executive agent.
We have already observed, that when a power is conferred to do an act, the grant necessarily includes all the means, without which that act cannot be effected. If the governor is directed to do an act with the advice and consent of others, the responsibility, in the first instance, necessarily attaches on him ; he must shew that he proposed to do the thing; and he must also shew distinctly, how, and what it was he proposed to do, in order to justify himself, if the thing has not been done at all, or improperly done; and in order to fix the responsibility on others, who have unreasonably withheld their advice and consent.
This is the rational theory of the constitution, found. ed on all preceding practice; but the constitutional point may be at once reduced to this :-proposal or nomination is either an incidental power to the principal power of ap. pointing or performing any other executive act, or a separate power; if incidental, it is vested in the governor, on whom the principal power is conferred; if separate, it is to be exercised by him alone, as one of all other the executive powers conferred on him alone, where the concurrence of council is not required by the laws of the state. Sect. 33.
This sole right of proposal existing in the governor under the laws of 1774, as will appear from all the executive records prior to the convention, and not repealed by that . body, but confirmed by a general grant, and indicated by every other expression of the instrument, is and must be the constitution of Maryland at this day. This right at once solves all the difficulties raised by the Friend to Candour and the council, and will explain every objection that can be raised, or seeming inconsistency that can be discovered, by the ingenuity of man; the construction therefore of the Civil Officer bears this indelible characteristic of truth, that it will suit every case that can occur, or can be imagined; which the Almighty has beneficently denied to the fabrications of deception and art, however consummate.
Prior to an examination of the decision of the supreme court of the United States, it had been the opinion of the Civil Officer, that when the governor had proposed, and the council had given their advice and consent, there was then completed that concurrence required by the constitution, and that there remained no other discretion with the governor than what naturally attaches to every ministerial duty; he still believes that such was the idea of the convention, founded on former precedents; for it could rarely occur that a governor would have occasion to change his opinion where the council had thus concurred with his own proposal--but the opinion of the court, that the act of the executive officer is only complete