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their concurrence by the laws of this state ; by the express and uniform words of every clause of the same instrument, which authorises them to do any act at all, except in the two trifling instances frequently mentioned; it naturally follows, that when they are convened to deliberate on that advice and consent, the governor should be present to confer with them, not only to explain his own motives of action, but hear the motives of such advice as they may suggest in discussion. Public decorum would certainly require that the chief magistrate should preside when officially present; but the Friend to Candour can see no benefit that can result from this personal conference, and that consequent deliberation and discussion, so necessary to produce a concurrent act. Are not these the means which all deliberative bodies are frequently obliged to resort to, when their concurrence is necessary to form an act? Is it not in its nature still more essential in executive proceedings, where system, secrecy and promptitude, are the characteristic features? It was for the benefits to be derived from this conference, and to explain the motives of advice, that the governor of Maryland ever had presided in the council, when convened on executive business. It is the common law and custom of England, and probably of every civilized country in the world, where there is a chief executive magistrate, and a council to advise him. Although it may not appear from the journals whether he ever voted to decide the opinion of council before the revolution, and although it is almost certain he did not, as it was naturally and generally improper for him to advise himself, yet the reason is evident, when we reflect that it was unnecessary, as the council held their seats at his pleasure, and he could, if they ultimately disagreed, appoint such as would concur with him. And it will be seen that the governor, if he chose to take the responsibility on himself, never considered the advice and consent of council as lėgally necessary to the validity of an executive act. Perhaps it was really not so before the constitution ; but the convention having rendered the council independent on the governor, and their concurrence being made neces, sary to enable him to act on the most important executiye business, natural reason, it should seem, dictated
the propriety, that where the council were equally divided, the judgment of the governor should decide, and that he should yote, in order that the decision should be entered on the journal as that advice and consent, with, qut which he could not possibly act. For these plain and evident reasons the convention have directed, that in this only case the governor shall vote; and doubtless it is the only case he could vote, consistently with the whole theory and language of the constitution. But the Friend to Candour observes, unless he acts as a member, it is not the advice of council; we shall not vulgarize our language by calling this play upon words, a quibble, but this writer is certainly the first pupil of the school of reason that ever gravely contended, that those who had authority to lay down a general rule could not make a special one; or, that having admitted the general principle, the convention could not provide for an exception, so reasonable and necessary as this must apa pear to be.
But the question now occurs, how can the governor's presiding, or voting on such special cases, (and if all the council attend to their duty, as the convention must have contemplated, or any number except four, he never can vote,) destroy the power expressly vested in him of acting, or exercising all executive powers of government, either with or without the concurrence of council? How can that deprive him of the use of his deliberate reason and judgement as governor, the officer who is the express agent in every executive act? How can it enable the council to act? This is not only by implication to destroy the express powers of the governor, but by implication also to give them to the council. Can they view the governor in the light of a political sumpter mule, who may be led to council as an ass goes to market, where his masters ease him of his load, and turn him aside to browse on thistles and thorns; He exists, they admit, as an inte. gral officer, to issue death warrantş, &c. but all his other powers become common property, over which he has no control, unless they should disagree in the divi. sion of the spoil. The Indian, who with his murderous tomahawk has cleft the skull of his adversary, vainly
imagines that he inherits all his faculties and powers, But surely the council cannot believe, that if the gover. nor is defunct, his powers to act are to remain with them; for when he ceases to exist as constitutional go. vernor, their president must immediately call the assembly to supply his place: Sect. 32. The convention would not admit the idea of any but a constitutional governor continuing, even for a short time, to exercise the pow. ers attached to the chief magistrate; perhaps it has been the dread of this provision that led, to the invention of a convenient half-alive state for him, to legalize under his name their own acts; as the mayors of the palace formerly preserved the pageants of the second race of France.
It is admitted, it is certain, the governor could derive no authority merely as president, (if he had been declared so,) from his being governor; but vice ver sâ, the converse must hold good, and he could lose no authority as governor by being made president. By an act passed in March, 1774, governor Eden, and the governor for the time being, is created president of the board of trustees of Charlotte-Hall school; this act has been amended by several acts since the revolution, and the trustees may now transact business without the presence of their president, who remains the governor for the time being. No one could imagine that the governor gain. ed any authority as president by being governor, or that he lost any as governor by being made a presi. dent; the idea is too absurd. No one, it is presumed, will contend, that if the power had not been conferred on the governor of presiding in council, and voting on those special cases, that his full and integral powers as governor, derived from the constitution and laws, would not have remained entire. It is then asked, can additional powers conferred on an officer destroy those already possessed? Can express powers be destroyed by implication? That the power of presiding, and voting in a particular case, should destroy by implication or merge the power of acting as governor, which is granted generally in every case, is contrary to every principle of reason hitherto received among mankind. The doctrine of merger in law is rarely applied, and can only apply, where
the possessor of an inferior or imperfect title gains a superior and perfect title, the less or worse may be merged in the greater or better title, but that the governor, by gaining a trifling power, which may possibly never be exercised, and which cannot possibly be exercised, where all the constituțional functionaries are attending their duty, should lose the high and important powers he had ever possessed and had been constitutionally confirmed, is contrary to all natural and legal reason. But it seems admitted that it does not destroy those powers which by the constitution he is to exercise solely; with respect to them he still remains, it seems, an integral governor : And why should it destroy those which he is to exercise with the concurrence of council? Are they inconsistent? Are not his. integral powers necessary to fulfil the constitution in these cases? If he has no independent power as governor, but must act solely as an occasional member of the board, can it be a concurrent act when he does not vote at all? Can it be a concurrent alt even when he may happen to vote? Is it not then a joint act, which is the reverse of concurrent, the constitutional term? This, it should seem, must be conclusive as to legal construction, But as the necessity is admitted of his remaining at all times an integral governor in the exercise of his sole pow. ers, we may inquire into the propriety of his preserving and using those intellectual faculties which qualified him for the discharge of the one when he comes to discharge the other. If they are su important as to require that the judgment of the governor should be assisted by the advice of others, it certainly is more necessary for him to exert the energies of his mind also; and is it possible that the convention, when they directed him to take the advice and consent of others before he performed those duties, meant that he should relinquish all his powers of rationality with respect to them, unless his advisers, by possibility, should happen to divide. As the convention could not possibly intend this, so they never could foresee such a construction. A governor ever had presided over the executive council in Maryland before, without any such effect being produced. The name of president could not alter the legal effect, for we see the president of the United States uses his deliberate judgment, even
where assisted by the advice and consent of the sénate. But it seems that the convention could only have had in view their own president, or the speaker of the house or other deliberative body, and by directing him to preside in council, they intended to destroy, by implication, the express power they had already vested in him-on those subjects at least where the concurrence of the council is required. This is the amount of the reasoning of the Friend to Candour. But what analogy could he discover between the governor, a chief magistrate, whose official duties had existed from the first settlement of Maryland, had been recognized and rendered constitutional powers by the convention, who vest in him all executive power with or without the advice of council, and a president or speaker, officers elected in the same manner as the other members of the body over whom they preside, at the same time, and to discharge the same duties; who are separated from their associates only by an election among themselves, and who remain always primi inter pares. Had the convention known a president or speaker, had they created these officers, with powers, by and with the advice and consent of the senate and house of delegates, to pass laws.then there might be some analogy in the cases, but it would still have been a slight one. But having now proceeded so far, we are obliged to conclude our observations on this clause by a painful remark, that the Friend to Candour has been fabricating again. Let him examine this section better, and he will find it to be directly the reverse of what he states it to be. The governor of Maryland never had been, nor is he now, president of the council; there ever has been since the year 1716 another president of the council known to the law; and so far is it from being true, that the governor and council are by this section constituted into one board for the transaction of any business, much less all other executive business, that the language of the section has most cautiously and directly guarded against any such inference, or confounding the powers of the governor and council together. First, the members of the council, (not the governor and council,) or any three or more, shall constitute a board. The governor is not named, and the board is constituted without him. Then follows, the governor for the time