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Warrantable under the words or spirit of this section of the constitution. Once allow the construction of the Civil Officer, and this irreconcileable inference is readily deducibleAlthough the governor can vote, only. when the council are divided, yet he can reject their act even wheri they are all united in opinion. The Civil Officer admits the casting voté was wisely conferred on the governor, otherwise, he says, he could not obtain their advice and consent and his own judgment would avail nothing, although half the council should agree with him in opinion. If, however, his conseruction were correct, two of the council might vote for A. two for B. and the governor would have a right to vote for C. which would not be a casting vote. But the constitution obliges him to vote either for A. or B. for by voting for C. it would not be a case where the council were divided, C. not being the cause of a division among them. It may be further remarked, that if the constitution intended that the governor, when acting with the council, should still possess integral powers aš! the executive, there could have been no necessity for say. ing that he should preside in the council. It might have left the arrangement of the business to his own discre, tion, and he would have been as distinctly separated from the council, as the senate is from the house of delegates. But it is also provided, that " in the abşence of the go. vernor, the first named of the council shall preside, and as such shall also vote in all cases where the other members disagree in their opinion.” What power in the. event of the governor's absence does the first named of the council possess? The answer is obvious, all the pow. er attached to the governor when presiding in the council; he shall exercise the right of voting as the governor exercises it when he presides. If the governor has the exclusive right of nomination to office, the first named of the council who quo ad hoc represents the governor, it is presumed must have the same right.
But the Civil Officer objects to the council being called a board, and the governor a member of that board. The constitution itself calls them a board, when such a num. ber are assembled as are authorised to transact business., By the 26th section, the clerk is commanded to take all
oath of secrecy in such matters as he shall be directed by the board to keep secret. If the council were divided in opinion as to the propriety of keeping a particular measure secret, and the governor were to vote that secrecy should be observed, (for he has a right to vote in all cases of division,) would the Civil Officer contend that secrecy was not enjoined by the board? Or would his argument be, that it was directed by the governor and the board, or (to use expressions with which he may be better pleased,) by the governor and his council. This leads to another remark, which may tend to prove that the governor and council are considered as one board, and the governor when presiding in the council, is a member of that board. The Civil Officer seems to view it as an absurdity, that the governor should be considered as one of e council to himself. Let us take a case that has recently occurred: The council were divided in opinion as to the character to be appointed judge of the general court; the constitution directs that the judges of the general court may be appointed by the governor, with the advice and consent of the council; the governor gave the casting vote, and the judge was commissioned. Will the “ Civil Officer” ar. gue that the governor did not advise the appointment as one of the council ? If so, the inference would follow, that the judge was not appointed with the advice and consent of the council. The reasoning of the “ Civil Officer” seems to be grounded upon the idea, that advice cannot be mana datory in its nature, but leaves a discretion in the party to whom it is directed. In common parlance this may be the case, the constitution, however, seems to mean otherwise ; for by the 33d section, which enumerates the exclusive powers of the governor, the convention, in one particular instance, have placed him under the control of the council. After stating that the governor shall have the sole direction of the militia, and of all the regular land and sea forces under the laws of this state; by that section it is provided, “ that he shall not command in person, unless advised thereto by the council, and then only so long as they shall approve thereof." If the council should advise that he should act the hero, (a term by no means ridiculous among military men,) by taking
the command in person, this advice would operate as ax order; and if after a particular period they should advise him to relinquish that command, it would be equally im. perative, as it would be evidence of their disapprobation of his longer continuance at the head of the army. .
Another leading principle on which the Civil Officer rests the claim of the governor, is derived from the terms of the 26th section, which directs the choice of five persons to be " the council to the governor.” He says they are a council to the governor, not a council to the state of Maryland. The expressions of the constitution are by no means evidence that the convention did not intend they should be viewed as a council to the state. They were probably denominated a council to the gover. nor because he was the prominent officer through whom most of their acts were to be promulged, because he presided at the board of which they were members, and because his signature was required to all commissions that serve as public testimonials of appointments made by that board. That the convention considered them as a council to the state, is proved by the act of February session, 1777, chap. 5, which prescribes the oath of office-That oath commences in these words, “I, A. B. elected a member of the council of Maryland, do solemnly promise and swear,” &c. This was the first session of the legislature after the adoption of the constitution, and there were at least forty-two members of the convention in the two branches of the assembly. Among these are the names of S. Chase, J. T. Chase, W. Paca, Charles Carroll, (of Carrollton) J. Hall, Matthew Tilghman and Robert Goldsborough, who must no doubt have had a principal share in the formation of the government. It is thought too tedious and uninteresting to give a list of all the names, as the proceedings can establish the correctness of the statement.
But let'us pursue the reasoning of this writer a little farther. By the section of the constitution which autho. rises the council to transact business, the Civil Officer conceives that it must mean principally, that they are to advise and consent to such executive acts of the gover.
nor as require their concurrence, or such business under the constitution as may by some particular law require their concurrence expressly. This may be all true, but as before stated, it must be done in the manner provided for by the constitution; that is, the will of the majority, when known, shall make the act final and obligatory. But what is to be done in the absence of the governor ? Over this question the 6 Civil Officer” has glided with won. derful dexterity, after stating that part of the section which directs that in such case the first named of the council shall preside, and referring us to an old act of 1716, (passed under the proprietary government,) as the foundation of this part of the section. The Civil Officer has even here mistated the expressions of the act. There is no provision in any part of the law that authorises the first named of the council to preside. Nor does it provide that in such cases of absence, as the Civil Officer has quoted,) that the first named shall preside; but by that act, in case of the death or absence generally of the governor, all the powers of that officer devolve upon the first named of the council. Whether it was the practice un. der the proprietary government for the governor to preside in the council, is not a subject worth our inquiry ; but it is believed the Civil officer can shew no public act prior to the constitution that positively directed it. If, however, it is conceded, that the governor did preside, yet no aid can be drawn from the act of 1716 to strengthen the general power claimed by the governor. If this act be the source from whence the first named of the council derives his authority in the absence of the governor, he would, in that event, possess not only the right of presiding, (if at all vested in the governor,) but he would, ipso facto, be created governor, so far as he could become such by the possession of his powers. But whether this act did or did not authorise the first named of the council to preside in the absence of the governor, it yet remains for the Civil Officer to prove, (100 by general assertion, but by the records themselves, that the powers contended for by the present governor have ever been claimed from the first settlement of the colony to the period of framing the constitution of Maryland. To do this, he must shew where the advice of council has been
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rejected by the governor; should he fail in this attempt, it will be record proof, which is as strong as any tradi: tion, that, even during the proprietary government, nothing like the conduct of the present governor was ever practised.' Governor Hart himself consented, that in the event of his absence, the first named of the council should be invested with all his authority. Not attempting to grasp at more power than what his predecessors pos. sessed, he in this case created a substitute, and transferred to that substitute all the privileges of his office. This dele. gation of authority, if not accordant with his own feel. ings, could have been easily prevented by his negative up. on the law. But this act was probably cited to shew what the convention meant by the absence of the governor, That the sickness of the governor might cause his absence, or that when out of the state, or at the head of the army, he could not be considered as present, is readi. ly admitted; but the convention, by their general term absence, meant to provide for the transaction of the public business, whether that absence should arise from these or any other causes. Whenever the governor knows that the board are to meet, and does not choose to attend, his absence is as complete, in every public point of view, as if he were at the head of the militia or out of the state.
In this absence then, the council are authorised to transact business. Does this mean that they are merely to prepare business for the rejection or approbation of the governor, when he may again choose to attend? Or does it intend that their acts should be conclusive, and that the affairs of the state should not be interrupted during his absence? If the latter is understood to be the meaning of this clause in the constitution, it proves that all bu. siness committed to the governor and council, by particular laws, or to the governor with the advice and consent of the council, may be transacted in the absence of the gover. , nor. But if the Civil Officer is correct, that the council, under the constitution, can do but two acts without the concurrence of the governor, then the sage framers of that instrument intended, that the council, in the absence of the governor, should be amused with planning new