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governor's concurrent right of nominating be, as it is termed by the council, if he cannot vote ? If the person he nominates has little chance of obtaining even a single ballot, where the council nominate and ballot among themselves, the governor, if discreet, will not expose himself to mortification, but keep his nomination to him. self--and on a ballot, it may be asked, what becomes of that fundamental provision of the constitution, that the advice of each counsellor, shall, if desired by the gover. nor or a member, be entered on the journal? But this fact has been probably related to introduce the astonishment of the council that the governor, on the Susquehan. na appointmerit, refused to put the question on any 10. mination but his own. If the council really so informed the Friend to Candour, they were not serious; they were only amusing themselves with his credulity: They must have recollected what the journals will prove, that as early as June last, they proceeded to consider him as absent, although present in the chair, and actually determined among themselves, without his putting the questi. 0n, a subject confessedly without the line of their constitutional or legal authority-They changed a legal order of the governor, authorised and directed by the militia law of 1793, into their request, (a term ridiculous among military men.) and ordered the clerk to copy the govere nor's leiter verbatim, in every other respect, and sign it himself as a circular to all the lieutenant-colonels and other commandants of militia corps throughout the state; as this instance was not singular, and as they had appointed officers in his absence, as the Friend to Candour states, they could not have been really astonished when the governor refused to act contrary to his sense of duty and his oath of office; nor at a loss how to proceed, afa ter such precedents established by themselves.
It is a known fact, that soon after the qualification of the present governor, he had occasion to explain himself on an appointment to which he strongly objected, from his personal knowledge of the character; the appointment was ultimately effected, and on the close of the transaction he made a declaration, substantially to the following effect-that although he claimed no right to
withhold a commission from a person constitutionally appointed, yet as he considered the appointment of all of. ficers but one, vested expressly by the constitution, under certain restrictions, in himself, he would never sign a commission again for a person appointed by the council, who, from his own knowledge, he believed to be an improper character; that in every other case he should endeavour to accommodate to their opinion, but that he would not knowingly, and against his conscience, violate his duty and his oach.--Whether it was from a belief that he would sacredly adhere to this resolution, or from his willingness to do the drudgery, or from a real conformity of opinion and a mutual wish to harmonize, it is certain that the governor was but little exposed to fur. ther mortifications on the subject until the appointment of the Susquehanna commissioners.
On that occasion, his uniform expressions of attachment to members of the council, and respect for the commissioners nominated by them, ought to have shielded him from the suspicion of any other motive for his conduct, but that of an 'absolute sense of imperative duty and obligation.—That conduct, however, according to the Spectator, has met the disapprobation of republicans, and he, as their organ, denounces vengeance against him. His authority is perhaps no better than his facts. As to the message to the senate, now for the first time published, the governor must have understood this salvo the equivocal offspring of consternation and despair; the entire history of these resolutions is prepared, and may hereafter be submitted to the public by the Civil Oincer; but this will be avoided unless rendered necessary-At present a few of the misrepresentations of this writer will be noticed; in order to settie his character for accuracy. No. 1. he says the resolutions were proposed in the senate by Mr. Johnson, many years a counsellor, consequently well acquainted with the practice. The truth is, that Mr. Johnson was but two years a counsellor, out of the twenty-seven nearly elapsed since the constitution was adopted. No. 2. The resolution of the senate was rejected by every federal member--The fact is, that Mr. Solomon Frazier and Mr. Swearingen, both federal mei. bers, voted for it. No. 3. Out of 79 republican men bers, 23 voted for it-It is certain that excluding Mr. Swearingen and Mr. Frazier, only 21 could vote for it. No. 4. Instead of 29, there were actually but 28 mem. bers in the house of that party, and of Mr. Harwood, Mr. Hall, Mr, Carr, Mr. Van-Horn, Mr. Thompson, Mr. Lloyd and Mr. Ridgely, who all voted against the resolution, whom does the Spectator, with his plenary authority, mean to exclude and denounce ? All this, in eight short lines, is no bad specimen of the talents of this writer.
. It is true, the sword can always cut the Gordian knot, and power and precedent are effectual, though coarse refutations, of fair as well as fine-spun argument; but if. the rights of conscience, and the sacred obligations im. posed by the constitution, and the solemn oath of the governor, are to bend before practice, be that practice what it may! as the Spectator contends, it should at least be certain what that practice is, and how it may be ascertained; turning his back on the constitution and his oath, is he to seek it from former governors or former counsellors? If they communicate at all, and if they do not choose to tell, it might be difficult to compel them; it may happen, and it actually does happen, that they differ as to the practice ; which of them then is to be believed ? Perhaps there is no other point in which they all agree, but that nothing like the conduct of the present council was ever practised before; all of them, it is believed, admit, that if the council met and the governor was absent, but in town and able to attend, they sent their messenger to inform him that the council was assembled, and requested his presence before they proceeded to business, and that frequently, when he was unable to attend from indisposition, they met at his house,
The idea, however, is perfectly new, that vague and . oral tradition, which under the sanction of an oath in a
court of justice could not counteract a common record, may control the constitution of the state. Where then is this uniform practice, (established and admitted from the adoption of the constisution according to the Spectator,) to be found? Is it in the records of the proceedings of
withers in thatenstitution of the execmbers of a common
the council ? Certainly not. During Mr. Johnson's time, who was the first governor after the adoption of the con. stitution, and when its framers were its officers, his name never appears entered on the journals with the members of the board : The Friend to Candour terms the governor a member of the board, but the constitution calls him governor, and calls them members of a council to the governor, and not members of the executive council of Maryland. The constitution expressly vests all executive powers in that governor, to be exercised either with or without the concurrence, not the joint aft, of his council : It is true that the constitution, by the 34th section, (from which the constructive inference has been drawn to defeat its express and fundamental provisions,) among his other functions, authorises him to preside in'council, when assembled to transact business ; as this business is not there specified, it can only be such; ist, as they may transact immediately under the constitution, that is, principally to advise and consent to such execu. tive acts of the governor as require their concurrence, for by sect. 26, their journal ought to state, if he or any member requires it, what they advise the governor to do, not their own acts as an executive of Maryland. If it shall appear by those proceedings, that the advice the council gave was wise and proper, the governor is responsible for all consequences if he does not pursue it-but if it was unwise, or if the governo proposes wise measures or appointments and the council will not give their consent, they, or the particular members refusing, are rendered by that article responsible to the legislature; or 2dly, they may transact such business under the constitution as by some particular laws may require their concurrence expressly, and not their joint act with the governor. See sect. 33. The same sect. 34, requires him to give a casting vote when the council are divided, and wisely, other. wise he could not obtain their advice and consert, and his own judgment would avail nothing, although half the council should agree with him in opinion-his merely presiding does not alter his powers derived from other parts of the constitution, nor authorise him to act as another member of the board, as the Friend to CanLour terms him: The governor of Maryland presided in the council before the revolution, so did and so do all the governors of the different states where there are councils, before and since our independence; but that does not constitute them members of the council. In: deed imagination can hardly conceive a proposition more absurd, than that a man should be a member of a council to himself, which the council of Maryland by the constitution are to the governor. As the governor may, by absence out of the state or at the head of the militia, or may by sickness or other casuality, be unable to execute the duties of the office ; the last clause of the same section provides, that in case of such absence the first named of the council shall preside, &c. This clause, and the 34th section, will be found on examination only to establish by constitutional provision, what was already the law of the land. By the law of 1716, chap. 21, made during the sickness of governor Hart, it was enacted, that in all such cases of absence of the governor thereafter, the first named of the council, and so successively the next eldest, should preside, and by and with the advice and consent of council, execute the duties of governor, &c. In reality, these sections and the whole constitution left the executive and judiciary departments in a great measure as had been used, approved and understood before the revolution ; but a reference is principally made to the laws existing when the constitution was formed, as the necessary, and perhaps the only legal mode of ascertaining the true meaning of the terms and provisions which the convention have used: In this view the following observation may perhaps prove decisive of the present constitutional question; the terms by and with the advice and consent have been used perhaps in every law passed in Maryland from the settlement of the colony ta the sitting of the convention; their meaning had been uniform, and was descriptive of a concurrent exercise of independent authorities, or powers, but never indicated a joint act; it is impossible to believe that the convention, when they inserted those technical terms in the consti. tution, intended or expected they would convey any other meaning than what had been so long legally established and understood. In each of the three years of governor Johnson, his appointment, his qualification before the le