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devices for the seal of the state, or with making constant inquiry into the conduct of their clerk, (after his first appointment,) to know if it be expedient to remove him from office. If their act is not conclusive, but subject to the revision of the governor, it was necessary to limit the right of voting in the first named of the council. For. if only four members should attend, including the presio dent of the board, that president, had he been allowed to vote in all cases, might in this instance have caused a di. vision. But this, with the controling power of the go- ! vernor, would have been no inconvenience: for it would be the occurrence of the same event in which the governor would have been allowed to vote, had he been present. In short, admit the power claimed by the gover. nor, and the advice of council in his absence could have been more fully obtained if the president of the council had not been restricted in voting, than under the constitution as it now stands.
The constitution commands the governor to sign all public commissions. If he should withhold a commission, where a majority of the board advise that it should issue, the responsibility, it is true, rests upon himself. But that responsibility is perhaps double, it is due to the representatives of the people, from whom he derived all his authority, and to the individual from whom the commission is withheld. But no signature of the governor is necessary to attest the appointment of the Susquehanna commissioners. The resolutions of the legislature contain their instructions, and a copy of the proceedings of the council, attested by the clerk, constitute the credentials in appointments like these. Commissions issue to civil or military officers of the state, signed by the go. vernor; and in all cases where a law authorising the appointment, (which usually prescribes the form,) positively directs it. To obviate the inconvenience of sendo ing after the governor to sign those testimonials of appointments by the board, it has been the practice with the predecessors of the present governor, to leave a number of blank commissions in the council chamber. This practice does not rest upon assertion alone, for there are at this time blank commissions, signed by governors Lee,
Stone, Henry and Ogle, as the clerk can attest, should the fact be denied.
But waving for the present all inferences from practice, let us see which construction is attended with fewer inconveniencies to the public. Agreeably to that which the council say, is the only correct construction that can be put upon the constitution, no prejudicial consequences can be experienced by the public, because no collision of opinion, like that on the Susquehanna commissioners, can in any possible event ever occur. The will of the majority becomes final and effective, and the minority, however opposed to that will, can never retard the ad. ministration of justice, or impede the execution of law. But once arm a governor with his controling veto, and from caprice, from passion, or the pompous desire of displaying power, the state may be involved in considerable inconvenience-A single instance may serve to il. lustrate the tendency of this construction. In the act of February session, 1777, ch. 19, is this clause,
Whereas it is uncertain by our constitution what body has the power of determining the validity of elections for sheriffs ; Be it enacted, That the governor for the time being, with the advice of the council, is hereby empowered to judge of and determine the validity of all elections for sheriffs, and if it shall appear that such elections have not been made fairly and freely, and agree. ably to the constitution of this state, shall issue new writs of election for sheriffs agreeable to the directions of the form of government.” If the council, on a contested election, should be unanimously of opinion, that the first on the return was fairly elected, and the gover. nor should think differently, an obstinate perseverance on his part would totally deprive the county of a sheriff. No writ could issue for a new election, without the ad vice of the council, and that advice could never be given, when they believed the first election had been fairly conducted. There is but one instance known to the writer, where any thing like the power claimed by the present governor was ever attempted to be exercised under the constitution of Maryland-It occurred under this law in the year 1797. Upon a contested election in Prince-George's
county; the majority of the council decided that the first person on the return was entitled to a commission. The then governor hesitated for several days about sign. ing one, but at length yielded. The attorney-general, and a gentleman who was formerly a member of the council, appeared in behalf of the person first returned, and thought the withholding of the commission, had it been persisted in, would have furnished sufficient grounds for the institution of a suit. This law, which was also passed the first session after the formation of the constitution, strengthens the construction of the council. The. plain inference from the preamble is, that the governor and council were considered as one body or board, and as such were authorised to determine in a case unprovided for by the constitution itself.
But the council do not rest their justification upon these grounds alone. They have the additional weight of precedent and practice, derived from the authority of the many respectable characters who have preceded them in office. During the three years that Mr. Johnson was governor, the journals afford little information on the question in dispute. A great part of that time they do not notice the attendance of either the governor or the council, and the absence of the governor is but four or five times particularly mentioned, during the term of his continuance in office. It is believed the Civil Officer is incorrect in stating, that a great part of the business was done by governor Johnson himself, when not a single counsellor was present. This is probably conjectured to have been the case, when the proceedings do not state the attendance either of the governor or the council. Admit the fact alleged by the Civil Officer, and, (if the expressions may be allowed,) by proving too much it would prove nothing—for by the exercise of authority confessedly unconstitutional, his proceedings could never be the evidence of correct construction on questionable or controverted powers.
In each of the three years that Mr. Lee first served as governor, his presence and that of the council is entered upon their first appearance at the board, and no further notice is ever taken of the attendance of sither; but when Mr. Lee was again governor, the proceedings distinctly mark the attendance of himself and every mem. ber of the board; during this period, there are various instances of appointments in his absence. To establish the fact, reference need only be had to the proceedings of the 23d of July, 1792, when associate justices were appointed for Baltimore and St. Mary's counties-August the 8th, 1792, when a register of wills was appointed for Worcester county--and to those of the 15th of the same month, when a commission issued to justices of the orphans court of Dorchester county. It is unnecessary to refer to all the appointments made in the absence of Mr. Lee, during his last three years. The above in. stances, connected with the circumstances of the blank commissions now in the council room, signed by that gentleman, must be strong evidence of the practice that prevailed when he was first chosen governor. It may also be worthy of remark, that Mr. Lee was elected a member of council in March, 1777, and continued to act until the expiration of Mr. Johnson's constitutional term as governor. He must consequently have known the construction that obtained under the first administration, and his own conduct whilst governor, is almost conclusive testimony, to establish that construction.
But let us examine into the practice under Mr. Paca, the third governor after the formation of the government, and a leading and influential member of the convention that framed the constitution. An act passed while he was governor, giving the council a PER DIEM allowance, which necessarily imposed a duty on the clerk of entering each day the attendance of the several members. During Mr. Paca's time, B. Stoddert, J. T. Chase, James Brice, J. H. Stone and G. Duvall, Esquires, were members of the council, and the four first named of those gentlemen filled the same office a great part of the period that Mr. Lee was governor. That appointments took place in the absence of Mr. Paca, the Civil Officer will find ample proof by referring to the proceedings of the 26th of April, 23d of May and 25th of August, 1783 Also to those of the 26th of April, 4th of June and 13th of September, 1784. One circumstance illustrative of
the correctness of these remarks, may be found in the letter of G. Duvall, Esq; entered in the proceedings of the 20th of April, 1786. By this letter he resigned his seat as a member of the council, and assigned as a reason, the unconstitutionality of a law of the preceding session, vesting certain powers in the governor and council. The only objectionable clause in that law, prescribed a different manner for the transaction of business at the board, than what the constitution had directed. It is in these words : “ That all and any of the powers vested by this act in the governor and council, may be exercised by any three or more of them, the governor always being present and having a vote. These references will prove the correctness of the Civil Officer's strict investigation, under succeeding governors to Mr. Johnson. To trace the practice to the present period would be a work of supereroga, tion, totally uninteresting to the public at large. A uniformity of construction has since prevailed, until the time of electing the present governor. It was reserved for him “ to cut the Gordian knot,” and free himself from those fetters that had so long entangled his predecessors in office. But let it not be said that the hint was taken from the resignation of Mr. Henry. Always attentive to the injunctions of his oath, that gentleman,
(with the sentiments indirectly ascribed to him,) could I never have signed blank commissions to be filled up at
the pleasure of the council. A majority of that council too, it is well known, was directly opposed to his political opinions. If Mr. Henry ever doubted on the constitutional question, he acted like a wise and unassuming judge in yielding his impressions to the authority of rea peated and uniform decisions. Perhaps far different motives than those assigned by the Civil Officer induced his resignation, He had expressed his confidence in a distinguished individual, opposed to the party then in power. This, at that time, was sufficient ground at least for their neglect.
The Civil Officer observes, that at the time of the ap. pointment of the Susquehanna commissioners, there was no procedent of an adjournment of the council to meet in the