Whether the feudal system was introduced into England by the Norman conqueror, or was only extended over allodial property, the unextinguished remains of British or Roman titles, as seems to be the more correct opinion, (for there is no solid ground to believe that the Saxons differed in their fundamental institutions from their German brethren, or those other hordes of northern barbarians that subjugated civilized Europe on the decline of the Roman empire,) it is at least certain that these institutions were completely established long before the expiration of that period, which legal history exclusively assigns, to the reign of what we now term the common law.

The basis of this constitution in England, and in every soil and clime where the feudal tree has pushed its roots or spread its branches, was the power of the sovereign, or feudal chief, to grant lands to vassals, annexing to the grant, at his discretion, any portion of the jura regalia or heritable rights of feudal sovereignty; the political rights of all other tenants of those lands remaining the same, for the rights of the grantor and grantee could not be increased to the prejudice of others by this division; together they could only be equal to what the grantor originally held.

These grants indiscriminately made of British or foreign lands through every period of English history, were termed County Palatines when erected within the limits of England, but were conferred under the various descriptions of kingdoms, dominions, lordships, seigniories and proprietorships, when of foreign lands. Of these Chester and Durham were counties palatine in the time of the conqueror; Henry 2d granted Ireland, with complete jura regalia to his son John; Edward 3d erected Lancaster in England into a county palatine in favour of his kinsman Henry Plantagenet, and granted Guienne and Poitou in France to his son the Black Prince, with similar sovereign authority; Henry 4th granted Man as a kingdom to the earls of Northumberland, and subsequent to their attainder, Henry 7th granted it to the Stanleys, afterwards earls of Derby; the discovery and settlement P

of America which followed, opened a wide field for the prodigal favours of the house of Stuart, and among their grants of this nature was that of the proprietorship of Maryland by Charles 1st to the family of Calvert, barons of Baltimore, by charter, bearing date in 1632. By the seventh article of this instrument, the lords Baltimore, &c. are authorised to enact laws with the advice, assent and approbation of the freemen, or their deputies, and to execute the same by their deputies, lieutenants, &c. &c. as near as may be according to the laws and customs of England.

Two lords Baltimore of the name of Charles, exercised these powers personally within the province from 1676 to 1682, and again in 1733; but at all other times, whilst Maryland remained under their dominion, or was subject to the immediate jurisdiction of the crown, they were exercised by representation-by a deputy or lieutenant, commonly styled governor, from our earliest records, and by a council appointed by the proprietor or his deputy. The powers of the proprietor, when acting in person, were limitted by the charter and the common law of England; and the powers of his representative, the governor, by the same; and farther, by such commission and instructions, not inconsistent therewith, as were given by the proprietor or the king, which were entered of record, and ever were recognized and acted under as part of the fundamental laws of the land.

In exercising the legislative power by the advice and consent of the freemen or their deputies, the proprietor, or his representative, deliberated first conjointly with the assembly, and then acted solely and separately, passing or rejecting their joint acts; which is in exact conformity with the principles of the common law of England, where the king always presides in parliament, and sits in the house of lords, either personally or by representation, but still remains and acts as a sole branch of the legislature.

It appears by the original records of the first assembly of the freemen in 1637, that they appeared person

ally, or by proxy, and sat, together with the governor, in one house: By an act of this assembly the governor is declared president of the assembly, and voted and acted as such, but preserving and exercising his sole and integral power of finally rejecting or assenting to the laws which were all proposed by him. In 1638, the freemen were allowed, by act of assembly, to appear by representation or deputies, electing burgesses for each hundred; the governor being still declared by law the president of the assembly, voted and acted as such, and separately rejected or assented to the bills when passed by the assembly. This assembly passed an act declaratory of the rights of freemen, and formed certain constitutional or organic laws, regulating the different departments of government, by which the governor, council, and those summoned by the governor, together with the burgesses, were declared to possess the same powers as the house of commons of England, and all laws passed by them, and assented to by the proprietor, or his representative, were declared to be binding on all people of the province. This constitution continued until 1650, when the governor and council were by law separated as an upper house, and the two houses thenceforth sat in different apartments. The governor was recognized by joint act as president of the council or upper house, and voted with them as such, still however retaining his sole and separate power of rejecting or assenting to the acts of both; and the lower house nominated a speaker, who was to be approved by the governor, whose representative he was in that house: This constitutional law placed the government precisely on the basis of the common law of England.

The council or upper house derived their authority solely from the appointment of the proprietor as feudal seignior or lord, as the peers of England, the upper house of parliament, do from the creation of the king; but their authority was never rendered hereditary, they were removable at pleasure, and records of such removals are still existing: When appointed, and whilst their commissions remained in force, their constitutional form and relation to the governor, when acting together,

were established by acts of assembly from 1950, as renewed, continued or altered, and by the commissions to the then governor and council from the proprietor, conformably to the charter and common law, which were renewed and continued by general reference, and special alterations, not materially affecting their constitutional form. By all these, as so occasionally renewed, continued or altered, it will appear that the governor might call, or prorogue or dissolve an assembly at his pleasure, consisting of his council and the house of burgesses or delegates of the freemen; that the governor presided in the assembly, sitting as president in the upper house or council, and by representation in the lower house; that he gave a casting vote as president of the council, and although in this special case he acted jointly, and might by that vote determine the act of the council, yet by the act of assembly expressly; by the terms of his commission; by the common law and uniform practice and usage, it was no law until it received his sole and separate assent as governor. This form and relation of the council to the governor, which had thus existed from the year 1650 to the 1st June, 1774, is precisely that which was rendered part of the constitution by sect. 34, although they are now confined to executive business. In legislative bu siness it is the English common law, that the king may, and always must sit as president of the upper house of parliament, either personally or by his representative or proxy; and that he may give a casting vote and decide an act of the upper house; but he still remains a sole branch of the legislature to pass or reject any BILL so passed,

It will be found by examining our records, that the proprietor himself, when in the province, or the governor, or his deputy, did preside personally in the council whilst acting as an upper house, until the revolution; when the jura regalia of the province were seized by the crown; from that time the governors, as representatives of the king, and of the proprietor after the restoration of the Calvert family in 1715, seldom sat personally in the upper house, except at the opening of the session: They continued the custom and usage adopted whilst royal governors, (and latterly they were commissioned

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as such,) founded on the practice in England, of acting in the upper house generally by deputy, who was styled President of the Council, and confined their personal interference in passing laws, to the exercise of their separate authority, as a third branch, by assenting to or rejecting the acts of the other two,

In this constitutional form and relation subsisting between the governor and his council, we find the principle established from the earliest settlement of Maryland, that the governor, acting by and with the advice and assent of council, and voting when they were divided, still retained his separate and integral right of concur ring as governor before the act was valid. The convention, therefore, using the same formulary, and establishing the same form and relation, could not possibly have suspected that an interpretation could be given to their act contrary to the uniform practice of themselves and their forefathers-an interpretation that would render their governor a mere cypher, and their constitution a mass of contradictions from one end to the other.

It may be said that this constitution or relation only subsisted between the governor and council when acting in a legislative capacity, but it is certain that the convention having established the same form of procedure, and the same formulary precisely of power on executive business, the legal effect and relation must be the same, as far as their powers extend or concur. But if we examine the laws and practice prior to the constitution as to executive business, they will still more strongly establish the construction of the Civil Officer.

By the charter of Maryland and the common law and the constitution of England, according to which it was to be executed, the proprietor, or the governor as his representative, was the sole executive: In executing the laws he was not required to obtain either the advice or consent of the freemen, or any others-He might ask it, and if he did ask it, the common law of England, and the commissions of the proprietors to their governors. and counsellors, provided and designated constitutional