advisers, who were responsible for any advice they might give; but that advice never was necessary to the complete validity of an executive act; its object and effect was only to create and fix a responsibility on the advisers. The council as the upper house of the legislature, were by the common law, as well as by their commissions, the advisers of the executive; the upper house of parliament are, and have been time immemorial, the advisers of the supreme executive of England, who may assemble them at any time for that purpose, whether parliament are sitting or not. The council of Maryland were expressly bound by their commissions to advise the governor, when, where and upon whatever occasion he might ask it.— When convened by him he acted as president according to the act of assembly, but it does not appear by the Journals that he ever voted, for being the sole executive, it will appear at every period of the journals of the executive prior to the constitution, that he considered himself as constitutionally empowered to act as he pleased, both before and after their advice, as he chose or might not choose to take the responsibility on himself, and his act in either case was held and considered as equally valid: This will appear by the journals of the 12th June, and 14th, 15th and 16th November, 1769, and by frequent and uniform preceding entries up to the earliest periods; and it will be found that governor Sharpe, after requiring the advice of each member of the council, and having it entered on the journal May 5, 1756, in the manner now made part of the constitution by sect. 26, still acted contrary to the opinion of the majority, as will appear by the law itself, as he passed it.

But the convention having established the constitutional form and formulary, (on certain spécified executive business,) which subsisted between the governor and council, when acting in their legislative capacity, and having required that the governor shall not only ask the advice of council, but obtain their consent, before he does certain acts, which acts are declared to be concurrent acts of governor and council, their consent is undoubtedly necessary to the validity of an executive act in those cases but in those cases only; and it is doubt

ful if he should require advice in any other cases, whether they are bound to give it, or are any wise responsible for it; consent they certainly cannot give, the governor being the sole executive in all those other cases, as well as the sole ministerial agent contemplated by the. constitution in every case.

That this was the interpretation given to the constitution immediately after its formation, and for several succeeding years, can be yet established by the records, and by the contemporary testimony of the most eminent fathers of the revolution now living. At the head of these still remains Mr. Thomas Johnson, the first governor after its adoption: on mentioning his name, an expression of indignation may surely be indulged at the insinuation of the Friend to Candour, that as he exercised authority confessedly unconstitutional, his proceedings could never be evidence of correct construction on questionable or controverted points;" by whom has this been confessed? Will he say by the Civil Officer ? If so, when and where did he confess it? Is it possible that this production of Candour is only the misbegotten offspring of a defective intellect? Or is it intended thus to confound the Civil Officer with those Curs who bark at the SETTING SUN? He has said, that it appeared from record that great part of the executive business was transacted by him, (governor Johnson,) when not a single counsellor was present. Does not the constitution render the governor the sole executive, except where the concurrence of council is required by law? To shew then that Mr. Johnson acted unconstitutionally, it must first be proved that he acted without the advice and consent of council, when required by law. Has any such instance been adduced? And if such had been so entered, still the council might have confirmed the act of the governor at a subsequent session. This is not without precedent here; and in a neighbouring state the council, acting under a similar formulary, have sometimes advised and consented that the governor might act as he should find it necessary, on a particular emergency; and the constitutionality of that advice was never questioned. However, there is no such pretence that this venerable patriot ever

acted unconstitutionally. The journals of his proceedings as sole executive, will be found strictly conformable to the constitution, and precisely corresponding with the only precedents then existing of official conduct under similar powers, although he had no access to them as has been observed. During the present controversy, the Civil Officer has been indirectly informed, that this aged statesman has declared, that during the whole term of his service as governor, he recollects no attempt by any member of the council to propose or to nominate, but in one instance by a single member; that he repelled it with a becoming indignation, and that some warmth ensued; but that the next day the member made his apology, and acknowledged his error. This account perfectly coincides with that which the Civil Officer received personally from the first clerk of the governor and council after the adoption of the constitution.

It seems to be admitted that no positive adverse precedent can be adduced from the records of the first administration of Mr. Lee; and although the Friend to Candour has quoted with a benevolent irony the expression of a strict investigation by the Civil Officer, candidly suppressing the limitation he had annexed by the preceding words "for several years," yet his own indefatigable industry has discovered no precedent that he supposes will warrant his construction, for near seven years after the adoption of the constitution; and it happens unfortunately that not one of the six instances he has adduced during the administration of Mr. Paca, can possibly justify his conclusion; four of them are entries of the issuing commissions; and it will not be seriously contended, that they furnish evidence of correct construction of the constitution, as the council certainly cannot commission: One civil officer was appointed, but it appears clearly that the governor never commissioned him; and also a commissioner for the sale of confiscated property, but he was no civil officer, nor does the authority appear under which he was appointed.

With these instances he has closed his remarks on the administration of Mr. Paca, and he appears to lump the

following governors under the article of BLANK COMMISSIONS. And so it seems the Friend to Candour has been rummaging the old trunk, instead of the records in the council room. Certainly his remarks on these blank commissions are designedly ludicrous, for in the light he considers them, he never could offer them as evidence of correct construction of the constitution. The governors who succeeded Mr. Paca were gentlemen of great merit and worth, and of independent fortunes; but as none of them, (it is believed,) were bred to business but one, they would probably have found it easier to sign blank commissions than to contend on constitutional points with the council, generally consisting of able lawers, bred to, and practised in a profession, that can only be supported by the "indiscriminate defence of right and wrong," it is probable that capacity for business naturally drew it into their hands, and that mutual confidence produced a custom and mode of procedure without investigation on either side; that one precedent served for another, and continued precedents, we know, soon become LAW, with lawyers. In every view it is most certain, that a commission signed by the governor, whenever, or by whomever filled, is evidence of his constitutional concurrence in the appointment; he could not deny it In the same manner an act of the council concurring in an appointment would be conclusive evidence of their advice and consent, in whatever manner given; they could not deny it; and it would justify the act of the governor; but still it is believed by the Civil Officer that these blank commissions have been signed, rather from a confidence in the clerk than in the council, as he knows that the present governor has frequently signed them in the following manner: A number of appointments, pos sibly an hundred or more, may be agreed to in one morning, as the civil officers, with a few exceptions, must be re-appointed every year: A clerk cannot possibly fill up the commissions as the appointments are made; he presents therefore a number of blanks to the governor, who signs them, and then he fills them at his leisure from his entries: Some of these may not be wanting, and of course will be thrown aside, generally into an old

trunk, with the blank commissions, waste papers, &c. Out of these, possibly, at a future day, the signature of the present governor may be drawn, and with as much propriety, produced as evidence of his correct construction of the constitution: But it is hoped that no future Friend to Candour will arise, for our Friend, we suspect, is something like Blackmore's elephant-" none but himself can be his parallel."

With respect to the assertion of the Civil Officer relative to Mr. Henry, it was founded on the information of two gentlemen, whose names will not be here inserted, but will be communicated to the printer, that if this writer wishes information he may ask it personally; but it will be remarked, that the rank they hold in the public esteem can never be injured by a board of friends to candour: it may also be added, that the distinguished individual whom this writer has introduced, four and twenty years ago acted upon oath under the same formulary; giving it precisely the same construction that the governor of Maryland now does.

The name of Mr. Duvall has been also used; this gentleman, instead of being nineteen years a counsellor, as was published by an anonymous writer,, was a counsellor one year, and being elected another year, resigned, assigning as a reason the unconstitutionality of a law of the preceding session, which certainly has no possible connexion with the present question: the deliberate opinion of that gentleman, on this or any other legal subject, will, when known, be respected beyond the limits of Maryland; and by none more than the Civil Officer.

Every information has been sought from those who have acted in the executive, and whose evidence must command respect; many of them relate, that a practice existed, and was continued without inquiry, which seemed to have resulted from mutual accommodation: the governor commissioned those in whom a majority of the council concurred; but it is certain that the present chief judge, to whose worth all parties subscribe, and who