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clause, he would of course, but for the exception, have still retained it under the general grant of all other executive powers. Again, sect. 33. "But the governor shall not, under any pretence, exercise any power or prerogative by virtue of any law, statute or custom of England or Great-Britain." Thus, although the declaration of rights declares that the inhabitants of Maryland are entitled to the common law of England, and the statutes in force there at the time of their emigration, yet the executive powers derived therefrom, although used in England or GreatBritain, unless in force, recognized, and adopted as part of the laws of Maryland in 1774, are hereby excluded from the general grant of executive powers to the governor; who is expressly prohibited from the exercise of any such, on any pretence whatever.

Under any other construction of the constitution than that here laid down, these two last cited provisions are absolutely absurd; but under the fabrication which the Friend to Candour has attempted to impose on the public as the constitution of Maryland, that the governor and council are intrusted with all other executive business not confided to the governor ALONE, and still more under the construction of this writer, and the pretensions and practice of the council, that their advice and consent place him under their imperative guidance in the exercise of those other executive powers-these clauses must have been introduced by the convention in derision, which cannot be gravely contended of the venerable founders of our liberty-although really under the degraded and humiliating state to which the chief magistrate has been reduced by the abuses that are practised; not only these clauses, but the whole constitution, appears now like mockery and insult to this officer-He must be a compound of qualities as inconsistent as the duties now required of him-at one moment he is called to discharge the most awful and important duties that society can intrust to an individual-which require all the virtues of the heart and all the energies of the mind; he holds in his hands the keys of life and death, and is the last resort før mercy in this world: If he does not command in person, he must still solely direct the united efforts of

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society in that appeal to arms which involves the fate of every thing dear and valuable to individual and associated man; and in the next minute he is deprived of all use of his intellectual faculties, and must submit as a mere automatal machine, to sign his name to any thing that perhaps two of his council may direct, against his judgment, contrary to his sense of duty, and the obligations of his oath. The enlightened patriots who formed the constitution of Maryland, were far from intending to place at the head of their government a golden calf to be worshipped; but as little were they disposed to throw down a log for frogs to play upon their whole work evidences that they intended to improve on a well known establishment, that had grown out of the wisdom and experience of their ancestors, curtailing only such of its powers as had been abused, and rendering the depository himself responsible for the exercise of those retained-conformably to which construction, we find the governor, as the executive of Maryland, on the same principles which guided the legislative and judiciary, continuing to issue proclamations, a power derived from the common law of England, as recognized and practised here; executing the powers conferred on a proprietary governor under the statute law of 1766, and by other laws previous to the revolution, an instance of which we shall have occasion presently to notice.

With the foregoing synopsis and preliminary observations, the 34th section of the constitution will be found, on examination, to be not only clear, and consistent with every other part of the same instrument, but its true meaning and construction will produce a very different result from what has been expected by those who now rely on it to support their pretensions. The whole section stands thus-"That the members of the council, or any three or more of them, when convened, shall constitute a board for transacting of business: That the governor for the time being shall preside in the council, and be entitled to vote on all questions in which the council shall be divided in opinion; and in the absence of the governor 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." The first clause of this section, declaring the number that shall constitute a board to do business, is the usual preliminary in organizing a deliberative body of public functionaries; it may only be observed that it was peculiarly necessary here, as the council to the governor had before consisted of an unsettled number. On the 16th April, 1747, governor Ogle took the advice of eleven counsellors; on the 16th September, 1747, he acted with only three. The next words that occur (when convened,) are material: the expression, it is to be observed, is passive, not active; and we ask by whom convened? Will it be answered, convened by themselves? If so intended, the phraseolo gy is uncommon, and the idea unique in legislation. Can it be possible that the convention intended to leave the constitutional assemblage and adjournment of this body for the transaction of such important business dependent entirely on the fortuitous concurrence of a majority at the same time and place? Could they rely on one simultaneous impulse on five men situated in different parts of the state? What a door would it open for fraud and intrigue, if three might convene themselves at any time, constitute a board for the transaction of business without the knowledge of the governor and the other two members? and how different might the result be if the governor and those members were attending? It might then happen, and it actually does now frequently happen, although it is not carried to all the extreme of which the abuse is susceptible, that two members residing at the seat of government, a third may ride into town-never apprize the governor-collect the other members-turn out what officers of the state they please, and put others in their places, and the first notice the governor may receive of business so transacted, may be commissions sent to him to sign for 30 or 40 officers, or perhaps double that number, whose names he probably never heard of before, and some of whom, to his knowledge, may be improper characters and if he does not sign these commissions, he is liable, as the Friend of Candour supposes, to a civil suit. Is it possible that this can be the meaning of the convention? Let their work speak for itself— it can bear no such construction; but when connected

with the laws of 1774, all is clear and consistent-At that time the governor could alone convene the general assembly for legislative, or the council for executive business; the latter, it is believed, he almost invariably convened at his own house for that purpose: neither of these bodies had any right to convene themselves; if they had convened themselves, they were neither an assembly nor a council; nor are they at this day invested with any public authority whatever, when convened in any other manner than that prescribed by the constitution and laws. By referring to the constitution, and our preceding remarks, we must perceive the great care observed in that instrument to prescribe the manner in which the general assembly may be constitutionally convened and adjourned, limitting the authority which the governor possessed on this subject under the laws of 1774. But in what part of the constitution has the convention destroyed or limitted the power of the governor to convene and adjourn the council? It is a power he ever exercised; in full force on the 1st June, 1774, and unless destroyed by the convention, or some subsequent law, it is in force at this day; it is now still more essential than formerly to the constitutional discharge of some of the most important duties of his office, which he cannot exercise without their advice and consent; to obtain which he must convene them. Here then we find the reasons which induced the legislature when they limitted the power the governor always possessed, (which they had recognized under their general grant,) of convening and proroguing the assembly, to leave his power over the assemblage and adjournment of the council as it stood by the general laws: and the reason why no time. is fixed for their assemblage, or power conferred on them to convene themselves, leaving it dependent on the occasions that might require their advice. This will be still more evident when we proceed in our comments on the next words of the section, (for the transacting of business,) and shall satisfactorily ascertain what this business may be. It is neither legislative nor judicial; by the declaration of rights: they are not to transact the general business of the executive department, as the Friend to La

Candour has laboured to establish, by stating the reverse of the constitutional provision; for as we have frequently cited, the governor may alone exercise all other the executive powers of government, unless the concurrence of the council is required by the laws. To entitle the council to act at all, they must be specially authorised by the con. stitution, or some other law; and when they do act, they must act by advising and consenting to some act of the governor. They never had acted in any other manner on executive business before the constitution, and that is the sole manner in which the constitution directs them to act throughout-for although the constitution, sec. 49, mentions the civil officers of the appointment of the governor and council, they are merely words of reference, and as such correct and consistent, with all the other parts of the instrument and the construction here laid down; but those terms are never used as terms of grant throughout the constitution. When powers are invested in the executive, they are invested in the governor alone, or in the governor, by and with the advice of council. The governor is the agent always contemplated, and advice and consent presuppose an act to consent to, for although they with strict propriety may be said to advise what they consent to, yet the converse of the proposition is really absurd, for they cannot be said to consent to an act which emanates solely from their own advice.

These observations will materially assist in elucidating the next clause of the section, which appears to be the great pivot, around which all the arguments to destroy the powers of the governor, and confer them on the council, seem to turn as it were in a circle; but which a correct examination will prove to be equally clear, and consistent with every other part of the constitution. The words are, that the governor for the time being shall preside in the council, and be entitled to vote on all questions in which the council shall be divided in opinion. The governor being the agent, as we have already shewn, on whom all executive powers are conferred by every part of the constitution; and the business the council are to transact; being to deliberate and decide on their advice and consent to such executive acts of the governor as require

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