Gambar halaman

and subsequent legislatures_But of this more fully here


This distinction, or rather these words of the 33d section preserved steadily in view, will be alone sufficio , ent to destroy the pretensions of the council; but they form only a very minute part of those uniform, consistent, connected and unanswerable arguments, which result from our constitution and laws, as will appear from the following observations.

Some young men, born as it were yesterday, seem to look back to the convention and the constitution as to the creator and creation of a new world, or at least to believe, that all that preceded was a chaos yielding not one ray of light: Before they undertake to construe the constitution of this state, they should first examine its records and laws, and depend in some degree on those who were men and public officers before that period. They would then observe that the convention, (after asserting this first and most important truth resulting from the principles of the revolution, “ that all government originates from the people,”) proceed to declare, (as we have stated,) " that the inhabitants of Maryland are of right entitled to all the laws arising either from common or statute law in force and in practice in this state on the 1st of June, 1774, subject however to such alterations as had been or might be made by the convention or future legislatures."

It was on this basis that they proceeded to establish a constitution or system of organic laws, unalterable and irrepealable by any single act of a future legislature. By this constitution they preserve the three great departments of government as established and derived from the common law the Legislative, Executive and Judiciary ; but these they declare ought to be for ever thereafter separate and distinct: The principal laws relative to the organization of these departments they have rendered part of the constitution, consequently unalterable and irre, pealable, (as has been observed) by an ordinary act of

the legislature ; but all other laws in force on the ist of June, 1774, (all of which necessarily prescribed duties

to some of these departments,) are equally in force now, i unless expressly or by necessary construction repealed

by the constitution or subsequent legislatures; with this distinction, that they now remain, not constitutional laws, but repealable by ordinary legislative acts.

We must ever keep in view this fundamental principle when about to decide the true construction of the constitution, which without it must have remained a dead letter and never could have been brought into action, as will appear by the following observations:- The constitution organizes the legislative body in many respects differently from what before existed, but the power conferred on the delegates by section 10, of proposing to, or receiving bills from, the senate; and on the senate by section it, of exercising their judgment in passing all laws, cannot be considered as describing or defining the nature or extent of the objects, to which those bills or laws must relate, or the forms or modes in which they were to progress and be executed; those remained de. pendent on the colonial laws in force on the ist June, 1774, derived from the common law, and other sources described in the constitution, except as altered by the convention. The same general principle extends more forcibly to the judiciary : By the constitution, section 56, Ihree persons of integrity, 6. shall be appointed judges o of the court now called the Provincial Court, thence“ forth to be called and known by the name of the Ge“ neral Court:" And the county and inferior courts are no otherwise organized or noticed by the constitution, than by providing for the appointment of the justices and clerks, and permitting a justice of peace to serve in the general assembly, which was otherwise prohibited by the general separation of the legislative and judicial departments, as established by the declaration of rights. Yet all these courts proceeded without hesitation or question under the colonial laws and usages in force in 1774, without which they could not have issued a process, much less have tried a cause. In the executive department, the governor, and the council to advise the governor in

certain cases, were preserved as the known and esta-: blished functionaries of that department; but the legislative and judicial powers which both had exercised prior to the revolution, were destroyed, not only by the genes ral provision of the declaration of rights separating the three departments; but also by the constitution organizing other depositories on whom they were conferred. The words used by the constitution are strong and clear: Section 25 provides, that a person of wisdom, experience and virtue, shall be chosen governor. Here is no creation of a new office; a new mode only is prescribed of appointing an officer to discharge the duties of an office already known to the laws, and the inhabitants of Maryland from their first emigration; subject to such changes and limitations as the constitution and subsequent laws should make. Section 26. Five of the most sensible and experienced men are to be chosen the council to the governor. Words could not be more express and emphaticalthe word the even definitely refers to a body and official duties then existing and already known to the laws:this description itself, and all the laws and usages then known in Maryland, constitute them a body, only to advise the governor in the discharge of certain specified executive powers : The constitution throughout expressly recog. nizes and directs this, as the only mode in which they shall açt, except in the appointment of their clerk, and the devising a great seal, exceptions which arose from very peculiar circumstances in the preceding history of Maryland, and which will be hereafter noticed.

. In order more clearly to exhibit the executive powers of the governor under the constitution and laws of Mary. land, the following analysis is offered.

The GOVERNOR may alone. · 1. Appoint and notify one of the two days, or a day be

tween, for the meeting of the assembly, where the two

houses differ on the day of adjournment. Sect. 29. 2. Have the direction of the militia when embodied.

Sect. 33. 3. Have the direction of the regular land and sea forces

of the state. Sect. 33

4. Grant pardons and reprieves for any crime, except

in such cases where the law may otherwise direét.

Sect. 33. 5. Lay embargoes, not exceeding thirty days, during the

recess of the legislature. Sect. 33. 6. Compel any vessel to ride quarantine, suspected to be

infected with the plague, Sect. 33. 7. Commission as sheriff the second of the two persons

first returned, on the death or disqualification of the

first. Sect. 41. 8. Commission a register of wills on the joint recommen.

dation of both houses of assembly. Sect. 42. 9. Suspend or remove any militia officer in pursụance of

the sentence of a court-martial. Sect. 48.
19. Sign all commissions and grants. Sect. 57.
11. Sign every bill passed by the general assembly.

Sect. 60. •
The GOVERNOR, with the advice and consent of the

council, may
12. Appoint a treasurer in recess of the assembly till

they meet. Sect. 13. 13. Cail the assembly before the time to which they are

adjourned, giving ten days notice. Sect. 29. 14. Embody the militia. Sect. 33 15. Command the miliţia and regular forces in person,

but no longer than the council approve. Sec. 33. 16. Appoint a register of wills during the recess of the

legislature till they meet. Sect. 42. 17. Appoint a sheriff when both the persons returned

shall die, refụse to serye, or become disqualified,

Sect. 41. 18. Appoint clerks of general and county courts in casę

of vacancies during the vacations of such courts,

Sect. 47. . 19. Appoint a chancellor, judges, justices, &c. and all

civil and military officers, (overseers of roads except

ed, &c.) Sect. 48. 20. Suspend or remove a civil officer who has not a com

mission during good behaviour, Sect. 48. 21. Suspend or remove any regular officer of the land

or sea service. Sect. 48.

[ocr errors]

And, lastly, 22. The governor may alone exercise all other. the executive powers of government, where the concurrence of council is not required by the laws of this state. Sect. 33. These other executive powers could no more be expressly enumerated, defined or fixed, by the constitution, than the other powers of the legislative or judiciary departments, which remain undefined thereby; and could it have been done, it would have been im. proper and absurd, unless the convention had been gifted with the divine attribute of foreknowledge ; as they would then become part of the constitution, and unal. terable by the ordinary acts of future legislatures.

The powers, therefore, of the governor, to be exer-. cised by him alone, under this last general clause, are ist, such as existed under the laws of the state in 1774, not · abrogated or altered by the constitution or subsequent laws: and 2ndly, such executive powers as are created by, or arise under, subsequent laws. On these we must remark, that his executive powers derived from the laws in force in 1794, must be such, and such only, as were created, adopted or recognized, by the laws and practice of Maryland, and not such as were merely executive powers in England or Great-Britain ; and that all such, unless ingrafted into the constitution, remain still subject to repeal or alteration by subsequent laws; which may also require him to exercise them, by and with the advice and consent of council: and in all such executive powers as may arise under laws subsequent to the constitution, the governor may, under the same general clause, be specially directed to require and obtain the concurrence of council in such specified cases.

That the foregoing is the true meaning and construcțion of this general clause is evident, not only from the general principles, structure, and express letter of the constitution as just commented on, but also from the following considerations. Sect. 29. “ But the governor shall not adjourn the assembly otherwise than as aforesaid, nor prorogue or dissolve it at any time.This power the governor only possessed under the laws of 1774, and being no otherwise abrogated by the convention than by this

se or disolve issembly other cir 29. " Bufalso from the the

« SebelumnyaLanjutkan »