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an hereditary fool, whose person is held sacred, and who cannot by law do wrong, to produce some responsibility, known advisers are necessary; but where, as among us, a chief magistrate is chosen at stated periods by the public opinion and voice, and where he remains always responsible by impeachment and election; the American judgment and experience seem clearly to have decided that councils are not only useless and expensive, but that they perplex the constitution, embarrass the conduct, and destroy the responsibility of the chief magistrate. They have therefore deemed it better if he should want advice, to let him, like other people, get it where he can.
It was on those grounds that the present governor had formed his opinion on the constitution, and particularly on that part which authorises the governor to act by and with the advice and consent of council; but if there could have heretofore existed a doubt, it must be now removed, as since this controversy has been submitted to the public, the highest judicial authority of the American nation has determined their legal force and im, port. ,
The supreme court of the United States have unani, mously decided=Ist. that the nomination is the sole act of the president, and is completely voluntary: and 2dly. that the appointment is also the act of the president, and voluntary, although it can only be performed by and with the advice and consent of the senate; they proceed to consider and so state, that appointment is the sole act of the president. They expressly declare, that the last act of the president in making an appointment is the signature of the commission-their words are, he has then acted on the advice and consent of the senate to his nomination. The time for deliberation hạs then passed. He has decided. His judgment on the advice and consent of the senate concurring in his nomination, has been made and the officer is appointed. The opinion of the present governor of Maryland had never extended so far, but had he not been convinced by their reasoning, he should not have opposed his own opinion to their autho
rity; having offered to relinquish it on the opinion of either the legislature or judiciary here differing with him, so far as to cease to act, by resigning. This able and elaborate opinion of the supreme court, must have its weight throughout the legal world, and that the terms advice and consent are not now imperative or obligatory, is the supreme law of the land, any thing in the constitutions or laws of the separate states to the contrary notwithstanding. The governor, the council and the le. gislature, are bound to support that decision as law by their oaths, and although the Civil Officer cannot now undertake to say, how far that decision can determine a question arising under the constitution of Maryland; yet he can safely say, that all those functionaries would be exposed to very serious difficulties, in giving different decisions on the same words, in their different capacities as citizens of the United States, and citizens or officers of this state, and they would expose the people of Maryland to a painful and dangerous dilemma, acting under a certainty that the one or the other constitution was unquestionably violated.
Why should the people or the government be involved in such dangerous embarrassments ? there has been no legal decision on the constitution of the state contrary to that of the United States. A practice in council, not exposed to public observation, frequently varying, and sometimes opposite, as extracts will prove, and contrary to decisions of the legislature, will not certainly be op. posed to common reason, immemorial and unvaried public usage, legal understanding, and the supreme judicial authority of our national government,
It will be seen that the supreme court decided on the word appoint, independently of the word nominate, the latter term is used in the federal constitution, where the president never personally meets the senate, and to avoid those cavils which had already existed; but although the president of the United States has no power of proposing or negotiating a treaty exclusive of the ge. neral authority resulting from the terms making treaties, yet it must be well recollected that after negotiating the British treaty, submitting it to the senate, and obtain. ing the advice and consent of two thirds of that body, the late president Washington deliberated a long time, whether he would ratify it or not. As soon as it was known that the senate had advised the ratification, addresses poured in upon him from all parts of America, praying him to reject it.-Although the advocates of that treaty were numerous, respectable for their wealth and eminent for their talents, yet it is not recollected that one solitary opinion appeared that the advice and consent of the senate was obligatory on him, or that he was not still at full liberty to reject or ratify at his own discretion. Nomination therefore wholly unimportant to decide the import of appointing by and with the ad. vice and consent, even where it is used, has been lugged into this controversy, although unknown to our constitution and laws-it has been connected with the term veto, which first excited the popular odium, and destroyed a constitutional power just established by the French people themselves. It was the magic spell that first raised all the furies of France, and blasted, perhaps for ever, the fair hopes of twenty-five millions of the vota. ries of freedom.-It is, hoped that it has been used with no such nefarious designs here, and it is believed it will be attended with no pernicious consequencesmit probably was only designed to confuse a plain question, and in this view it certainly entitles the Friend of Candour to rank among the phenomena of natural history next to a fish, which discovers the instinctive sagacity of mud. dying the water to elude pursuit.
With the foregoing observations, we have conducted our reply, without any material omission to our knowledge, to the 34th section of the constitution organizing the board of council; with the true construction of which, the pretensions of the council to the powers they have exercised, and the arguments of their friendly advocate must ultimately stand or fall. Admitting here the full force of the rule he cites, which we have always urged, that all the parts of the constitution must be considered together and so construed as to render the whole one regular and consistent act—our observations that follow will be
more full and particular, and we hope and expect that they will prove entirely conclusive.
The Friend to Candour, thus commences; The convention having as before stated vested in the governor and council the right of appointments; and having also intrusted to them all other executive business not confided to the governor alone. We have been early on our guard against this attempted fal. lacy; and have already referred the reader to the consti. tution itself, to prove, that the last division of this sen. tence from the word appointments, is an artful mistatement, and its disingenuous and deceptive design will be now developed and exposed. By attending to the order which the constitution observes, its true construction will become still more evident. The first division of this sentence, (which is entirely incorrect as a citation,) is from the 48th section of the constitution ; distantly posterior to section 34, on which he is commenting; and the last division which is the direct reverse of the truth in fact and effect, is from the 33d section, prior to it in order. Strictly speaking, the power of appointing to office, will be found to be no new power vested in the governor by section 48. It was a power that had been invested in that officer from the first settlement of Maryland, preserved by the declaration of rights, recognized and established as a part of the constitution, (unalterable and irrepealable but in the constitutional mode,) by the 33d section. The 48th section in reality does no more than limit the governor in its exercise, by requiring the advice and consent of the council, without which express restriction, he might have alone exercised this power by the constitution and laws of Maryland. This remark is here intended to illustrate and connect our observations on this subject, but it is altogether unnecessary in proving the citation of the Friend to Candour to be the reverse of the truth. Section the 33d should be particularly attended to, as it organizes constitutionally the general executive powers of the state : Its own words can best explain its meaning~ The governor, by and with the
advice and consent of the council, may embody the 6 militia, and when embodied shall alone have the direc16 tion thereof, and shall also have the direction of all the
« regular land and sea forces under the laws of this state, “ but he shall not command in person, unless advised " thereto by the council, and then no longer than they " shall approve thereof; and may alone exercise all other the .“ executive powers of government where the concurrence of the es council is not required according to the laws of this state." So directly the reverse therefore is this position of the Friend of Candour from the truth--that the convention intrusted to the governor and council all other executive business, not confided to the governor alone-that by the express effect of this general grant to the governor alone, in order to enable him to require their advice and consent to his exercise of those other executive powers, and in order to compel them to give their advice and consent thereto, there must be a special law directing their concurrence in the particular case, and all other executive business of whatever nature it be, is expressly and constitutionally confided to the governor alone- The position therefore of the Friend of Candour which immediately follows as an inference from these premises, that the governor and council were constituted into one board for the transaction of all such business as had not been confided to the governor alone, must fall like the baseless fabric of a vision.” Here then stands fully exposed the great object of this deception, thus artfully contrived, which has stated the direct reverse of the real constitutional provision, as true. Notwithstanding this bold attempt to erect themselves, with the governor, by a fabrication, into a board for the general executive business of the state, and as such to legalize all their usurpations in his presence or absence, they must, as far as the constitution can prevail, remain a board still, to advise the governor expressly, and only to advise and consent to his acts in such special cases as may by law be required; who confers with them to hear the discussions and reasons they may offer for that advice, and decide, if they are divided; but who still is to act after that advice and consent is obtain. ed on his own responsibility, and who is alone, without consulting them, to exercise all other the executive powers of government, whatever may be their nature, whether de. rived from the laws existing before the revolution and unrepealed by the convention; or created by new laws