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him; more especially when, by his retaining his powers, the theory and language of the constitution are preserved without inconvenience; and by their being merged or destroyed, the whole constitution becomes a mass of absurdity and inconsistency.

For admitting the governor has the sole right of proposal, or of ultimate rejection, or both those rights, yet this power of deciding in the special case of a division is equally wise and necessary: For if both those powers are vested in him, still, if five members of the council, or four, or even three, refuse to concur with him by their advice and consent, there is an end of the business, he cannot act; but surely if two concur, and only two refuse, it is reasonable and proper that he should act. It is neither presumed that the Friend of Candour will. deny that the convention, intending that the governor should possess the sole right of proposal, and the ultimate right of rejecting the advice of council, could not also give him the special power of deciding the act of the council when the members were divided; nor is it believed that he will assert that such special power was not a prudent and wise provision, even in addition to those other powers.

Let us now turn our attention to the consequencesUnder the constitution, as the Civil Officer contends it is, the governor and council are each left with their separate powers, to exert the full faculties of discreet rational beings, who alone can be worthy of being intrusted with public authority, independently deliberating, and finally, either freely concurring, or refusing to concur in some executive act, which the governor is to execute with their advice and consent; thus mutually checking each other, and preventing an abuse of power by either. But under the construction, or rather the system created by the Friend to Candour, on no other pretence than some irregular proceedings in council, that were kept secret from the public, we must suppose that the convention intended, that when the governor should proceed to deliberate in council, he should be instantly struck with a political dead palsy, and remain in council only

half alive; that if the board should by accident consist of four, and those four should by accident divide, the palsied half, on that contingency, on a contingency might revive only for the moment to give a casting vote, and sink again into lifeless insensibility; and that when he should come to act, he should be a mere mechanical instrument-an hollow tube-either a pen or a trumpet, to promulge their imperative advice and consent; or that if he should be out of the way, or not so alert as they might wish, the attestation of their clerk to their acts, would answer the same purpose.

We would now in our turn propound a short question or two to this sage casuist, the Friend to Candour; If the governor did advise as one of the council on the ap pointment of the judge, as he supposes, pray whom did he advise? for where advice is given, a person to be advised is as absolutely necessary as an adviser. Did he then, as counsellor, advise himself as governor? There is perhaps but one case in point that can be produced, and that is recorded by the inimitable Cervantes, to the following effect: When Sancho Panca became governor of Barataria, doctor Pedro Positive de Bede-ill was his chief counsellor, and advised his excellency to conform to the usages and customs of other governors, especially in eating only what he should advise, it being found by experience that the same food would be improper for him that would suit counsellors, &c. the governor bore with patience, whilst dish after dish disappeared, until a favourite pudding was on the move, when in spite of all doctor Pedro Positive could say, he turned counsellor himself, and advised his excellency to eat a little of that pudding.

The constitution of Maryland admits of no such foolery or absurdity, it is the work of wisdom, patriotism and experience. Let its language, without addition or diminution, speak for itself, and it will dispel the fogs that arise from dulness or design. Its words are, governor, by the advice and consent of council, may embody the militia-may call the assembly," &c. It is to be remarked, that the word may is not here imperative,

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as there is no absolute official duty prescribed: it is precisely equivalent here to that clause of the constitution that directs that the governor alone may, (which word is understood having before been repeated in the same sentence,) grant pardons and reprieves for any crime, &c. It confers a power, which, from its nature, must be exercised under a responsible discretion, as circumstances may require. In pardons and reprieves the governor's sole discretion is confided in; in embodying the militia, and calling the assembly, &c. the discretion and responsibility attach both on the governor and council; but as the governor is the executive agent to do the act, the responsibility rests first on him; if it becomes necessary to do either, he must require the concurrence of council, and then they become responsible for their advice and consent. The governor requires the concurrence of council to embody the militia or call the assembly, &c. five members will not advise and consent, four will notthree will not, the business is at an end, the governor can do nothing; but if they concur he can act; and if four members are present and two advise and consent, and two will not, the governor, by special provision of the constitution; in that case votes, and decides an act of council, equivalent to the advice and consent of all, or a majority of the board, and he may act constitutionally. Again, if there is a vacancy, as was lately the case, the governor, with the advice and consent of council, may appoint a judge of the general court; here is an absolute duty prescribed, and may is imperative; he cannot therefore require the advice and consent of council merely to appoint; the only act to which he can require their advice and consent, is to appoint some particular person judge; it so happened that a majority of the council did not concur, but the board being divided, the governor, by his special power, decided, and then appointed a judge.

We shall now examine the A. B. C. argument of the Friend to Candour, and possibly prove that he is not yet master of his political alphabet. The case he states is, that if the council are divided between A. and B. the governor cannot vote for C. although in his judgment.

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and conscience he believes him most fit for the office, because C. was not the cause of division in the council. We might finish this business by this simple question; If the governor is to appoint, and in order to appoint must propose, and believes C. is the best man, why did he not propose C.? by what possible chance were the council divided between A. and B.? But as this A. B. C. business furnishes new and conclusive argument against any such possible construction of the constitution as that contended for by the Friend to Candour, it will be treated more at large. According to his doctrine, the unfor tunate governor is never to vote but when the council permit, and he must vote when they please, and finally he must vote as they please, although to do so he must violate an express and particular oath. But in this the Friend to Candour is at least consistent; according to his system, the governor of Maryland never takes an oath but to break it. Let this candid writer examine section 50, he will there find, that the governor, and every member of the council, and every judge and justice, shall, before they act as such, respectively take an oath, that he will vote for such person as in his judgment and conscience he believes most fit and best qualified for the office. Now, according to the case stated by the Friend to Candour, although the governor in his judgment and con. science believes C. most fit and best qualified for the office, and therefore is sworn to vote for him if he does vote, yet, says the Friend to Candour, as C. was not the cause of division in council, he shall not vote for him, but shall either vote for A. or B. How strangely, how cruelly partial must the convention have been! so indulgent to the consciences of the council, and so regardless of that of their chief magistrate! Is it possible that the constitution of Maryland can bear such a construction? Let it speak for itself, and how plain and consistent is its meaning, and how prudent and clear is every provision. The governor, authorised and directed, with the advice and consent of council, to appoint, asks their advice and consent to appoint C. whom he believes in his conscience to be most fit for the office; the council are divided, and he to decide votes according to his oath for C. but if the members of the council, in their

consciences, believe A. and B. more fit for this office than C. they of course will not advise nor consent to the appointment of C. there is nothing to oblige them to vote for C. against their oaths, they may refuse to concur, until the governor may be obliged to propose A. or B. And this shews the great and prudent foresight of the constitution. This oath of the governor is restricted to the possible case of his giving a casting vote, and there it is not only proper, as every person takes it, (even a judge, who cannot possibly vote for any officer but a clerk,) but it is also necessary-If the governor has proposed so doubtful a person, that after full discussion the council are divided whether they will concur, it is proper that the governor, before he gives a casting vote, should test his proposal by the same oath the council have taken; and if, after full discussion, he cannot on his oath vote for the man he proposed, he must necessarily propose some one else, and may probably find it necessary to turn his attention to such persons as the council in discussion have brought into view. And the governor has taken no oath to prevent what he may so often find it absolutely necessary to do He has taken no oath to appoint the man he thinks most fit for the office, for as he is to appoint with the advice and consent of council, if they will not concur in the appointment of the man he thinks best, he must, if the public necessities require it, appoint the man in whom the majority of the council will concur-but if the public necessities do not press, and he prefers to risk his responsibility on the man he proposes, he may reject, and in order to throw the responsibility on the council who have refused to concur, he, or any member of the board, can require the advice of each member to be entered on the journal, and their constituents can then decide, and render either the governor responsible for an improper proposal, or the particular members of council responsible for their unreasonably refusing to concur. But it is to be observed, that this particular provision of the constitution is absolutely incompatible with the practice of the council to vote by ballot for of ficers. This mode of ballet, the Civil Officer is informed, the senate of the United States adopted, but were obliged to relinquish, finding it incompatible with their

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