disciples of Robespierre, in the full career of the guil lotine.

But we now reach what must be considered as the more prominent arguments of this writer-by the 48th section of the constitution, he observes, "the governor for the time being, with the advice and consent of council, may appoint the chancellor, &c. and all officers, &c." He then states, and here he cites the authority of Republicanus, that the word may must be considered as synonimous with the word shall, and then it is of course imperative. By this it would seem that five of the most sensible, discreet and experienced men, such as the constitution declares the council shall be, cannot be the joint authors or approvers of this publication. Every boy, commonly gifted with the faculties of his species, and moderately acquainted with the elements of law, must know that where official duties are prescribed, the words may and shall are considered and construed as synonimous or convertible terms, may is only more respectful, and seems better appropriated to an eventual thing, such as a vacancy, but still we find the word shall used in the constitution of the United States, where it is directed that the president shall nominate, and by and with the advice and consent of the senate shall appoint ambassadors, &c.-By the constitution of Maryland, the governor in case of vacancies, must appoint on his responsibility-It is a breach of his duty if he does not—no one can be so absurd as to suppose, that the constitution has made it discretionary with him, whether he may or may not appoint a chancellor and other officers, when vacancies occur; or that he may or may not leave the state without officers. In this sense, the word may is without doubt imperative, and equivalent to the word shall, used in the federal constitution; but as to whom the governor may or shall appoint, that depends on other principles. The first obvious feature in the clause is that the governor may appoint; if the clause is imperative on the governor, and he shall appoint, it is no less imperative on the council, and they shall not appoint. The second is that the governor must constitutionally advise with the eouncil, and obtain their consent to his appointment. And

this renders the clause wholly dependent on the constitutional and legal import of the terms advice and consent.

'The words advice or consent, taken disjunctively, much less together, never have been considered by mankind as obligatory or imperative, either in common parlance or technical language. In the usual transactions between man and man, the decencies of intercourse require that, previous to either being given, they should be askedIn the more correct and respectful forms established by national wisdom and prudence, to support official authority, this has been considered as indispensably requisite, as will be shewn. The governor is bound to ask the advice of council, and obtain their consent to his appointment-but can any thing be more absurd than to contend that these words authorise the council to command him, as a mere mechanical instrument, to appoint against his own opinion, or justify them in appointing without his consent, or even his knowledge? It must be a monstrous interpretation of these words, and the constitution, that none are to be commanded but the chief magistrate, who alone is bound to obey; and that the only man to be governed is the governor himself.

In exemplification of the foregoing, it may be observed, that the federal constitution renders it the duty of the several states to appoint senators of the United States. The clause is imperative and obligatory on them to appoint, but discretionary as to whom they shall appoint. In Maryland the senate and representatives elect the senator by joint ballot, it being the usual mode of election prescribed for that body by their constitution— In Massachusetts, they have determined that as an act of their legislature requires a concurrent vote of both houses, they could not act jointly, and each branch continues, as in all other acts, to exercise its independent judgment separately, and no appointment can or does take place, until they mutually agree on the man-yet this practice has not produced any of those evils, so wisely foretold by the Friend to Candour, and Spectator, as the inevitable consequence here, if the governor and Council should each exercise their independent opinion,

by acting concurrently; the mode in which every law ever has been passed, in these states, from their settlement the mode in which the governor and council of Massachusetts, and the president and senate of the United States, have always acted, and still do act, to the entire preservation of the just right and independence of all the public functionaries, and the perfect security and prosperity of the people over whom they preside.

It is certain that no terms of organic law can be so well understood, or their legal import so clearly ascertained, as the advice and consent which a chief magistrate is bound to obtain before he acts; and the true construction of few terms can be more definitely fixed, than that of the concurrence of two descriptions of public functionaries, in an official act. By and with the advice and consent has been the formulary of legislative and executive acts in England, time immemorial. It is well known by all who will read this, that the chief executive magistrate there, after obtaining the advice and consent of both houses of parliament, may still reject a bill. In his privy or cabinet council, if the board could advise what he should not approve of, (but which is impossible as the mode of procedure always presumes and states the act to be on his submission,) so far from their advice being obligatory, he can turn them all out of office immediately. The same formulary, as far as is known to the Civil Officer, or is believed, has been introduced from the mother country and her laws, into every colonial government to which she has given birth, we assert it of the present United States, although we cannot recur to the East and West-Indies, to which we are prudently referred by our opponents. It is sufficient for our purposes, that it was the formulary used in all the colonial laws of Maryland-all of which the governor could reject after the advice and consent of both houses were obtained. In council, the governor was also authorised to turn out the members, and it will be seen by extracts from the executive journals, that they gave their advice and consent only when it was required, and that this was far from being deemed obligatory or imperative on him. I

Such was the legal construction of these words in Maryland, such were the respective powers of the governor and council, and such were the colonial laws and usage on the first day of June, 1774. The first act of the convention in 1776, the declaration of rights establishes, that the inhabitants of Maryland are entitled to all laws of Great-Britain used in this country, and all the acts of assembly that were in force on that specified day, except such as had expired and have been or may be altered by the convention, subject however to revision or repeal by future legislatures. By the constitution the convention prescribed the office of governor, changing the source and mode of appointment, he was continued as the chief executive magistrate; but having expressly separated the legislative from the executive departments, they consequently destroyed his negative on the laws, and his powers as chancellor, &c. They deprived him also of the power of dissolving or proroguing the assembly, and finally declared that he should not on any pretence whatever, exercise any power or prerogative by virtue of any law, statute or custom of England or Great-Britain; this demonstrates the understanding of the legislature, and must conclusively shew that all the executive powers of government conferred on the governor by the colonial laws in force on the first of June, which had not been repealed, or were not expressly or necessarily destroyed by the convention, remained attached to the office: this construction has been practised under, and has been recognized by the legislature itself, as shall be hereafter shewn. The convention also preserved the council, but expressly as an advisary body to the governor on executive business this alone would have destroyed their legislative authority, had not that been conferred on the senate; they rendered the council independent on the governor for their appointment and continuance in office, but throughout the constitution, they direct them expressly to act only by advising the governor, save in two specified cases, the reason for excepting which will also be explained, and this advice was the only manner in which they had ever been known to act on executive business by the laws of Maryland previous to that time, as will appear by their journals. Thus by the constitution

it will be seen that the governor, and in his legal absence, the first named of the council, is the sole executive contemplated by the laws; this had been the case from 1716 to the first of June, 1774, as will be more fully observed. By the colonial laws in force at the last expressed period, the governor presided in council, but the council never assembled on executive business except when required by him, and never gave their advice and consent but when requested; and that such is the constitution of Maryland at this day, and that it was so understood at an early period of its existence, and so continued by the legislature, shall be satisfactorily proved. The true inquiry now, is whether the convention have made the governor the executive of Maryland; and not whether they ought to have done so; but as the Friend to Candour has argued from the expediency and propriety of vesting in the council the powers he contends for, it may not be improper here to remark, that a preference of unity in the executive branch of government, was not only habi. tual from practice, but it was a predilection the convention inherited from their British ancestors, and which extends to all their descendants in every part of the globe. It is a principle which all those enlightened minds, and illustrious ornaments of our species, who have exercised their intellectual powers on the theory of government, have unanimously considered as essential in the social system. It has perhaps never been departed from in the civilized world, unless in the first miserable administrations of Sweden-during the horrors and distractions of revolutionary France, or in the first constitution of Pennsylvania; all of them examples that will never encourage imitation. It is one in which the American mind is now more universally and firmly united, than in any other principle of government whatever; this is evident from the rejection of a council in some of the states originally; its abolition in every state but one, that has had an opportunity of reforming its constitution, and its utter rejection in all those constitutions that have been created since the revolution. At the head of these is the constitution of the United States, on which the deliberate opinion of United America was taken. In Great-Britain where an hereditary monarch might be