when he has done the last act required of him by the constitution, which in making an appointment is the signature of the commission, must have conclusive weight: for if the governor, or other chief magistrate, on hearing the reasons of his constitutional advisers for refusing their consent, shall be satisfied that his proposal was wrong; he ought, and it will be absolutely necessary for him, to alter his proposal; it therefore seems equally proper, that if deliberation should have suggested considerations to himself that produce a change of opinion, he should be at liberty to alter his proposition, or finally refuse to execute it, when it had become contrary to his judgment; although his constitutional advisers had actually concurred with his first proposal: This was precisely the case of the British treaty negotiated by president Washington, and proposed to the senate, and which he afterwards hesitated so long to ratify, although advised and consented to by the senate.

Doubtless there have been wise and honest men who have held the opinion and acted under it, that the council being authorised to give advice were not limitted to the proposal of the governor, and they have argued that advice and consent should be construed advice or consent, the conjunctive and being frequently construed as a disjunctive; they have not sufficiently reflected that this is never done but in order to make sense of a clause, whereas this is sense without; and they have certainly not suffi ciently examined the former laws and custom in this respect, on which the constitution was founded; the whole theory, expressions and language of the constitution throughout, and such observations as have been offered by the Civil Officer, together with the embarrassments that would necessarily occur in the execution-But still it would only render the construction of the supreme court, which establishes a deliberative right in the chief magistrate, after the advice and consent, more evidently and conclusively necessary, in order to secure that concurrent act which the constitution of Maryland contemplates and requires. More than 20 years ago this independent right of proposal in the council was agitated in Virginia, at which time it is understood that the present governor of Mary

land made up his mind fully, from the best information and reflection he could gain or bestow, and he has never varied from this opinion. When elected into his present office, and the usual manner of conducting executive business was first made known to him, he expressed his amazement, and as soon as all the members of the council could be assembled, he took occasion fully to explain himself" That he had accepted of the office under the

constitution of Maryland, which he had solemnly sworn "to support; that the form of doing business in council, "which he was then for the first time apprised of, al"though fifteen years had elapsed since he was first "elected into the Maryland legislature, was expressly 66 contrary to the undoubted sense and clear language of "the constitution, and that he would execute the con"stitution as he had sworn to it, or not at all." He then prepared a form at the table, predicated on the constitution itself, and conformable to the principles laid down by the Civil Officer, who, as evidence, now offers the following extract from the proceedings of the board, on the 24th November, 1801, the first day the whole board assembled "The governor submits to the council of "the governor a letter, &c. &c. Whereupon the coun"cil to the governor do advise his excellency to noti "fy, &c. &c."?

This form, was adopted, having been assented to by every member present. Although the governor, as we are informed, had never then seen the forms of proceedings in council previous to the constitution, yet, on examination, that which he prepared will be found to correspond perfectly with all the precedents which the convention could have contemplated as in use before by the same functionaries, acting under the same formularies of executive power.

This extract must prove, that the present governor accepted the office, and has since been actuated by one uniform principle and conviction of mind, consequently, that his conduct on the Susquehanna appointment originated from the solemn impressions of constitutional duty, and religious obligation, and not from any personal

motives arising from a particular occasion, as has been basely suggested. If he subsequently submitted to the irregularities of council from a strong anxiety to avoid a rupture that might be injurious to the state, and painful to himself, he did it in cases where his conscience was not grossly violated with regard to individuals, and where his own constitutional powers enabled him to confirm their acts. Let the council, or the Friend to Candour, explain and justify their principles and consistency.

With these remarks we shall now conclude our general observations on the constitution, (reserving ourselves in our next for the illustrations and facts of the Friend to Candour,) by stating, that as the constitution protects the powers of the governor, and secures to him the exercise of his deliberate concurrence in those acts which require the advice and consent of council; we hope that the present governor not only understands his duty, but will have energy enough to execute it; and that he will not be deterred from refusing his signature to any commission which his conscience disapproves, by the menaces of a civil suit: and the council, it is presumed, will take good care that they do not subject themselves to UNCIVIL SUITS, by way of CRIMINAL PROSECUTIONS, by their usurpations of powers and violations of the constitution.

In the course of the foregoing argument, we have been constrained to refer to the express letter of the constitution, to disprove the gross mistatements of this Friend to Candour; although his errors are not of that class which claim our pity, yet the Civil Officer disdains a triumph over vulgar malevolence and vapid nonsense; conscious of the rectitude of his motives, and in pursuit only of truth, he scorns the paltry gratifications of personal resentment, and nothing shall escape him intentionally to offend an individual, unless public information or public justice require it.

The Friend to Candour having, as we observed, erected a constitutional system on a foundation of his own creation, instead of stating cases that would flow from

the principles of his adversary, and shewing them to be inconsistent with the constitution, modestly proceeds to propound questions, that wholly arise out of, and depend upon, his own fictions; consequently, like baby-houses which children erect out of cards, we shall see them tumble at the first breath directed against them: "It is, (says he,) irreconcileable, that the governor can only "vote when the council are equally divided, and yet can reject, when all five are united against him;" and again, "In the late appointment of a judge of the gene

ral court, when the governor gave the casting vote, "will the Civil Officer say he did not advise as one of the coun"cil? If so, the judge was appointed without the advice ¶ and consent of council."—If this writer had recollected the constitution when he wrote, all his irreconcileability and his wonder would have vanished-he would there have found, that the act of the board of council is expressly advice and consent to an act of the governor, and nothing more or less-the words of the constitution would solve all his difficulties; but as his illustrations tend to establish every position of the Civil Officer, we will examine them minutely.

If the Civil Officer should indeed say that the governor, in the last case, had advised as one of the council to the governor, which that body are expressly declared to be by the constitution, he would undoubtedly say what is very great nonsense. It is equally certain that the governor did not advise as one of the council-that he did vote as governor on that particular occasion, and that he was authorised to do so by an express provision of the constitution-which rendered his vote equivalent to that of one of the board, and enabled him, by deciding that advice and consent agreeably to his proposal and judgment, to appoint the judge, and he accordingly did appoint him.

That he did not vote as a member of the council, nor as a member of the board, we have already seen: the mode of his election, the former laws of Maryland recognized and rendered part of the constitution, the various duties of his office, the express language of the constitution in

all its parts, and the cautious separation of himself and his powers from the members and duties of the board by this very sect. 34, even where he is directed to preside in council- -are incontrovertible evidence, that the convention never intended that the chief magistrate, or his powers, should be confounded or mixed with the members and duties of a board, constituted solely to advise him— In fact, without preserving that separation, the very theory and language of the constitution which require a concurrence, where the governor acts by the advice and consent of council; and that mutual check which is the favourite principle of freedom, would be wholly destroyed and perverted. But how the special authority of the governor, to decide by a casting vote the advice and consent of council in favour of those two who agree with him, is irreconcileable with his sole power of proposal, or with his ultimate power of rejecting the advice and consent of council, if the whole five or any other majority should be united in opinion against him, is utterly unintelligible to the Civil Officer, and will be equally so to the Friend to Candour if he will confine himself to the express constitutional powers of the council,

It is not probable, that if the governor should have occasion, by this special authority to decide the advice and consent of council, that he would ultimately reject what was determined agreeably to his proposal or opinion; and although such an event was possibly not in contemplation by the convention, and will very rarely if ever happen; yet we may conceive cases, and one had nearly occurred under the British treaty, where the executive magistrate might be induced ultimately to reject advice and consent to what he proposed himself-There is nothing in reason or the constitution of Maryland to forbid it. But we conceive it to be utterly irreconcileable, not only with the constitution but common sense, that the convention intended to destroy the general independent power of the governor, in every case where he acted with the council, because they authorised him on a possible contingency to decide where they were divided, without which decision his judgment would avail nothing, although an equal number of the council agreed with