USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 45
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they were drafted ; nor whether they were the production of any particular member or members of this committee.
(41) The reader will find, in the appendix to the second volume of this work, the names of all the members of this convention ..
In closing the history of the convention-government of Maryland, we shall surprise the reader by the fact, that the State has not in her archives, unless very recently obtained, a single memorial of its existence or operations. The proceedings of all the provincial conventions were published ; and there is, or was a few weeks since, a complete collection of them in the possession of Mr. Jonas Green, of Annapolis .- There is not, I believe, another entire collection of these in the State, if there be not one in the possession of the honorable . Gabriel Duvall, of the Supreme Court, who was for some time the clerk of the convention, afterwards occupied an important and responsible office under the provisional government, and was at all times distinguished by his zeal and efficiency in the cause of the revolution.
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HISTORY FROM THE STAMP ACT, &c. [list. Viw.
we shall endeavor to present a general view of its past and pir- sent relations to the federal government, exhibiting its rights and obligations under it, its relative rank and influence as a moms- ber of it, and its general course upon the national administra- tion.
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CHAPTER VII.
DISTRIBUTION OF THE LEGISLATIVE POWER UNDER THE STATE GOVERNMENT OF MARYLAND.
THE legislative power of the State government of Maryland is vested in two distinct and co-ordinate legislative bodies, which are respectively styled " The Senate" and " House of Delegates." The legislature, thus composed, is styled by our constitution, " The General Assembly of Maryland." (1) No control over its legislation is confided to the executive. The governor, who is the supreme executive officer of the State, does not participate in the enactment of laws. The constitution does indeed re- quire, that all bills passed by the General Assembly, when en- grossed, shall be presented by the Speaker of the House of De- legates, in the Senate Chamber, to the governor, who shall there sign them, and affix thereto the Great Seal of the State, in the presence of the members of both houses. (2) Yet this is a mere ministerial power, which he cannot withhold, and in the exercise of which he is not permitted to consider the propriety of the acts submitted. He has no reto upon them; and his signature is not necessary to give them efficacy, but is a mere authentication of them as the acts of the Assembly.
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In this respect, our State government is materially different, not only from the proprietary government which preceded it, and that of the mother country, but also from most of the forms of state government prevailing around us : yet however anomalous this feature of it may first appear, it will be found, on closer ex- amination, to be in perfect consistence with the origin and na- ture of our supreme executive power. When the executive is,
(1) Constitution, article Ist.
. (2) Constitution, article 60.
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as to its existence, totally independent of the legislative power, when it springs from a different source, or from the same source by a different channel; or when it is clothed with personal right", privileges, and dignities, which, although the consequence of of- ficial rank, are yet distinct from its purely official powers, there is some propriety in the veto. By such a check only, can its sepa- rate and independent existence, and the rights and dignities flowing from that existence, be effectually protected. In Eng- land, the king is no longer considered to hold his office by divine tenure. His power and dignity rest for their acknowledged foundation upon the will of the nation; and the doctrine, which so bases them, is rendered familiar by the acts which have been passed to regulate the succession to the throne. Yet the form of the English government, as an hereditary monarchy, contem- plates the personal exemption of the king from the legislative power ; and the existence of independent rights, as incident to his . high office and rank, which can be withdrawn only by the return of its people to natural rights. His veto upon the acts of parlia- ment, is therefore regarded as essential to his continuance in that state of privileged power and dignified independence, in which it is the design of the English constitution to sustain him. The proprietary veto upon the acts of our colonial Assembly rested upon similar reasons. The proprietary derived his right to the soil of the province, and his powers of government over it, from his charter. Those who migrated to his colony, voluntarily sub- mitted themselves to a dominion derived from the crown; and the right of legislation through Assemblies of the freemen, was given as ancillary to that dominion. If the charter had given the legislative power exclusively to the colonists, it would have placed the powers of the proprietary at their feet, and would thus have conflicted with its own nature and objects.
In the republican forms of government around us, which confer the executive veto, we discover reasons for its existence not ap- plying to our constitution. Under most, if not all of those govern- ments, the supreme executive springs directly from the people ; and having thus a common origin with the legislature, it is clothed with this power; not for the preservation of its own privileges, but merely that it may operate as a salutary check upon legisla- tion generally. Its existence rests upon the same reasons which
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have recommended the division of a legislature into two branches : and being established for the general benefit, and not for the pro- tection of the executive rights, as in England, its control generally ceases under circumstances warranting the inference, that it con- flicts with the well ascertained public will. Hence we find that under the governments alluded to, if the assent of the executive is refused to an Act, it may still be passed into a Law, if a certain number of the members of both branches of the legislature will concur in its passage. Under the constitution of the United States, if the President refuses to sanction an Act, he returns it, with his objections, to the house in which it originated. His ob- jections are then entered at large upon the journals of that house : and if, upon reconsideration, with these objections before them, two-thirds of the members of each house of Congress still vote for it, it becomes a law without his assent. The provisions of the state constitutions, under which the veto exists, although in some instances varying from this mode, are yet analogous in their gen- eral character : and they all illustrate, that the power is intended merely as a qualified check.
Such a check, for such purposes, incident to the office of gov- ernor of Maryland, would be a most useless investment of power. He is elected by the very legislature upon which it would operate. He is elected annually : and his re-eligibility renders him virtu- ally the dependant of those who elected him, not merely because they have called him to the office, but also because, in the ordina- ry course of events, many of them will pass upon his re-election. To deposit such a check with an officer so created and so situated, would be little better than to commit the legislature to its own guardianship. It may also be remarked, that there is less ne- cessity for its existence under our constitution than under those of the sister states. It will hereafter appear, that in the organiza- tion of our Senate, the design to create a check upon the popular branch of the Assembly, is carried further than in the constitu- tion of any other legislative body in the United States : and that it would be visionary to look for further checks, in the grant of an ' executive veto.
The legislative power of the state being therefore confided ex- clusively to the two houses of Assembly, it leads us to consider- the organization and characteristic features of the Senate and the
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House of Delegates-the nature, extent, and exercise of the powers of the General Assembly-the nature, extent, and exercise of the peculiar rights and privileges of each house of Assembly-and the character and extent of the rights, privileges, and disabilitic., of the members of the General Assembly, or of either house .-. These will be severally considered in the following chapters.
CHAPTER VIII.
ORGANIZATION OF THE HOUSE OF DELEGATES.
IN viewing the constitution of the House of Delegates, we shall consider, (1) The qualifications of voters-(2) The qualifi- cations for the office of delegate -- (3) The manner of election- (4) The peculiarities incident to these elections in the cities of Annapolis and Baltimore-(5) The manner of filling vacancies -(6) The distribution of the right of representation-(7) The tenure and compensation of the office of delegate.
(1) Qualifications of voters.
For many years after the colonization of Maryland, its people appear to have enjoyed an elective franchise of the most exten- sive kind. Under the charter, the legislative power was to be exercised by the proprietary, "by and with the advice, assent, and approbation of the freemen, or of the delegates or deputies," the right being reserved to him of selecting the mode in which they should be assembled. Collecting the import of the word "freemen," as here used, from its legal acceptation at that period, and the expressions of other sections of the charter, we might be led to conclude that it was synonymous with "freeholder." In the early practice of the government, however, it appears to have had a different signification; and to have been held to cm- .. brace every free resident, without regard to the possession of a frechold. (1) In the infancy of the colony, the elective fran-
(1) Mr. Bozman appears to have entertained the opinion, that the term " Freeman," as here used, must be received according to its legal accepta- tion : and that so understood, it is synonymous with " Freeholder." In con- firmation of his opinion, that they were legal synonymes at the period when the charter was granted, he refers to Sir H. Spelman's Glossary, word " Homo," Magna Charta, chap. 11, Coke's Ist. Institutos, 58, and 2d Insti- tutes, 27 and 501. But his strongest argument is found in the fact, that
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ORGANIZATION OF THE . [Hist. View.
chise was not highly estimated; and there are several instances to manifest, that the inconvenience of personal attendance, and the obligation to defray the expenses of delegates, occasionally caused it to be considered as a grievance. (2) It was, therefore, the
+ they are used as such in the Charter itself. " Liberi Homines," are the words of the 7th section of the Charter, to designate the persons entitled to par- ticipate in legislation, and these have been translated "Freemen :" but in the Sth section, they are described as " Liberi tenentes," or freeholders.
Yet, at last, the argument amounts only to this, that the proprietary was not bound to summon any but freeholders to the Assembly : and this appears to have been conceded, for otherwise his Ordinance of 1681, restricting the right of electing delegates, to freeholders, or persons ha@ing a given amount of visible personal estate, would have been illegal. If all freemen were entitled tinder the Charter, he had no right to exclude any for the want of property. But the remark of the text is, that the elective franchise was not, in fact, so restricted before 1681 : and that before that period, all res- ident freemen participated in it. It was not until 1681, that any regular and permanent organization of the lower house was established. Until that time, the warrant for summoning each Assembly, directed the manner of its constitution. The acts relative to its organization, which are briefly no- ticed in Bacon's Edition of the Laws, such as the acts of 1638, chap. Ist ; 1642, chap. Ist ; 1647, chap. 1st ; and 1650, chap. Ist, merely applied to the particular Assembly by which they were enacted. I have examined the va- rious warrants for Assemblies before 1681, which have been preserved ; and none of them exhibit a restriction of the right of electing delegates, or of appearing in person in the Assembly, to freeholders. But we are not left to inferences and surmises : for we have an express decision of the Assembly in 1642, that there was no such restriction. The following is the record entry of the decision :
"Mr. Thomas Weston being called, pleaded he was no freeman, because he had no land, nor certain dwelling here : but being put to the question, it was voted, that he was a freeman, and as such bound to his appearance by himself or proxie : whereupon he took his seat in the house."
Journals of 1642 ; Assembly Proceedings from 1637 to 58, 253.
(2) We find an illustration of this at as late a period as 1671. At the ses- sion of that year, a message was sent by the lower to the upper house, in which they complained, that several delegates elect had not been summoned to attend, and desired to know the cause of it. To which it was replied by the upper, that all had not been. summoned from Kent, Dorset, and Somerset, because the sheriff's of those counties, in making their returns, " besought the governor not to charge their poor counties with more delegates than they used to have :" and hence but two delegates had been summoned from .cach of these counties .- Upper House Proceedings, Lib. F. F. 172.
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interest and the disposition both of the proprietary and the peo- ple, to extend, rather than to abridge this right; and it was not until it was esteemed a privilege, that restrictions were imposed. The first restraint of this franchise was that imposed in 1631, by the ordinance of the proprietary, which confined it to all free- men having a freehold of fifty acres, or residents having a visi- ble personal estate of £10 sterling, within the county. (3) These qualifications were re-established by law, in 1692, and continued by successive acts until the beginning of the revolution ; (4) and they were then preserved by the provisional government of 1775.
These restrictions upon the elective franchise, having been thus interwoven with their institutions from a very early period, and not having formed any part of the public grievances, when the struggle of the American revolution began, or at any antece- dent period, it was not surprising that the people of Maryland, in their transition from the proprietary to the state government, should still have retained this feature of their institutions, with the objections to which experience had not acquainted them. Just elevated to the rank of an independent republic, and not yet familiar with the principles on which the right of representation in it should rest, they transferred to their new government the system of representation with which they were familiar, and of which these restrictions formed a prominent feature. Hence the original provisions of our Constitution, restricting the right of voting for "delegates," in the counties and city of Baltimore, to freemen above the age of twenty-one years, having a free- hold of fifty acres in the county, in which they offered to vote, and residing therein at the time of election ; "or having property within the State, above the value of thirty pounds current money, and having resided in the county, in which they offered to vote, for one year next preceding the election. The qualifica- tions of voters for delegates in the city of Annapolis, were left to be regulated by the provisions of its charter. (5) Property,
(3) Proprietary's ordinance of 6th September, 1681.
(4) Acts of 1692, chapter 76, 1704, chapter 35, 170$, chapter 5, 1715, chapter 42, and 1716, chapter 11.
(5) Const. Articles, 2nd, 4th and 5th. The inhabitants of Annapolis were also originally entitled to vote for delegates for Anne Arundel county, upon a frechold of fifty acres in the county without the city, (5th section of
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age, and residence, being the original qualifications, all free persons having these, were permitted to vote, without refer- ence to their citizenship or color. These provisions were con- tinued without alteration, until 1802, when the property qualiti- cation for voters was entirely abolished, and the elective franchise was placed under new regulations, applicable as well to the elec- tions in Annapolis, as to those in Baltimore city and the counties. These excluded persons of color, and conferred the right of voting exclusively upon "free white persons, citizens of the state, above the age of twenty-one, and having a residence of twelve months next preceding the election in the city or county in which they offered to vote. (6) In 1810, the constitution was again amended; but all the qualifications prescribed by the amendment of 1802 were preserved, except the necessary residence, which was now redu- ced to twelve months in the state, and six months in the county or city ; and thus remains the qualification of voters to this day, (7) as then established.
It is not necessary to dwell upon the propriety of the material change introduced by these acts. It is no longer a subject for debate in our state. The judgment of the state has long since been passed upon the property qualification, and has pronounced it an unjust and unnecessary restriction upon the elective franchise. Attempts have indeed been made elsewhere, to deduce arguments in its favor, from what is alleged to have been the experience of our state since its abolition; but if they who dwell under our present system, are to furnish the evidence of that experience, the advocates of the property qualification, will not appeal to them for arguments."The best evidence of the experience of the state, is found in the fact, that from the day of the change to the present, no attempt has been made to return to the old order of things. That there have been objectors to it within our state, cannot be doubted; yet where is the system that has not had them? Those who grew up under
Constitution,) but the right was wholly taken away in 1810, by the acts of 1809, chapter, 38, and 1810, chapter 49. This was never the case as lo the citizens of Baltimore town, who were always excluded by the constitution, from voting for the county delegates. (Constitution, Article 6th.)
(6) 1801, chapter 90, confirmed by 1802, chapter 20.
(7) 1809, chapter 83, confirmed by 1810, chapter 83.
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the old regime, may object with that disposition, which is natural to man, to prefer the institutions with which his youth was fa- miliar, and to ascribe degeneracy to the present, just in proportion as he himself begins to be numbered with the past. Those upon whom the mantle of aristocracy would fall, were the right re- stricted, may naturally object to an elective franchise, which is no respecter of persons, and which enters, with impartial foot, the cottage of the peasant, and the palace of the lordly. And there . may be those who, in moments of disappointment, prefer the conclusion, that the right of suffrage is too extensive, to the admission, that they themselves may probably be wrong.
Yet there are no well founded arguments against our extended right of suffrage, to be deduced from considering merely what are alleged to be its abuses. The mere abuse of a right is not of itself an argument against its propriety. It must first be ascer- tained, that it is the natural and direct result of the exercise of the right : and when this is ascertaincd, it must be contrasted with the benefits which flow from it. And if, as in the present case, the question is between a more and a less restricted right of suffrage, we must not only be satisfied of the existence of abuses peculiar to the extension of the right; but also, that they over- balance the benefits. Were we disposed to follow out the train of reasoning which this contrast suggests, our system could be most triumphantly vindicated. None amongst us will contend, that the right of property is the only right to be protected or se- cured. The rights of life, liberty, and character, all will admit to be paramount. And if the right of representation be given to. protect those who have interests at stake in the community, or are to be affected by its government and legislation, shall none but those who have property to protect, be admitted to its exer- cise ?- This is not contended for ; but it is said, that it is an evi- dence of an interest in the welfare of the community, and that it places its possessor above the reach of all temptations to the im- proper exercise of the right. It has its benefits : yet, can it al- ways, and does it alone confer the power to exercise this right discreetly ? Does it alone evidence an interest in the well being and support of the government? When the hour of difficulty and danger to the commonwealth arrives, those who have property, then claim no monopoly : and the supporters of government, and
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the defenders of property, they who have borne the heat sul burden of the day, are then found amongst those who have inte- rest enough in the general welfare to stake their lives or liberty ta its defence, but are not presumed by such a qualification to have enough to entitle them to a vote.
These notions arise from a misapprehension of the proper basis, upon which the right of representation must rest in republican governments. Such governments have but one surety for the pure and proper exercise of the elective franchise : and that consists in the virtue and intelligence of the people. These are not pe- culiar to any rank or condition in life : and whilst it is the pro- gressive tendency of our institutions to render intelligence as dif- fusive as the right of suffrage itself, we shall have reason to rejoice at its extension .- " He and he only is the freeman whom the truth makes frec." Secured by the nature of our institutions against the abuses of this right, we shall find in it the firmest bonds of affection which can bind the allegiance of the citizen. He does not feel himself a stranger in his own land. He sees no privileged orders around him, exclusively directing and controll- ing a government which is his only for the purposes of subinis- sion. He sees, and feels, and knows that is his, at every return of the day which calls upon him to exercise his rights as a free voter. Such days come as political sabbaths, to teach all men the great equality, and to bow down every heart in thanksgivings to the common government which sheds over all its kindly influ- ences : and when the hour of danger to the state arrives, the re- collection of these days comes rushing on the freeman's soul, to nerve it for the encounter, and to bare his arm for the defence.
(2) Qualifications for the office of delegate.
The qualifications for this office, originally prescribed by our constitution, as to the elections in the counties and in Baltimore, were, that the delegate should be above the age of twenty-one years-should have resided in the county or in Baltimore town, for which chosen, for one year next preceding his election-should have real or personal property within the state above the value of five hundred pounds-was not a minister or preacher of the gos- pel of any denomination-did not hold any other place of profit, nor receive any part of the profits thereof, (except of justice of the peace) nor receive the profits, nor any part of the profits of
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any agency for the supply of clothing or provisions for the army or navy-did not hold any office under the United States or any of them-was not employed in the regular land or marine service of this State or of the United States-was not a field officer of the militia-had not been convicted of holding or executing any other office of profit, or of receiving directly or indirectly the profits, or any part of the profits, of any office exercised by any other person, whilst acting as a delegate, senator, member of the council, or delegate to congress-had not been convicted of giving any bribe, present, or reward, or any promise or security for the payment or delivery of money or any other thing, to obtain a vote to be governor, senator, delegate to congress or Assembly, coun- cillor, or judge, or to be appointed to any of these offices, or to any office of profit or trust then created or thereafter to be creat- ed in the State. (S)
(8) Constitution, Arts. 2d, 5th, 37th, 38th, 39th, 45th, and 54th. The ori- gin of these disqualifications can be traced either to the antecedent proprie- tary government, or to the experience of the colony under the provisional government of 1775.
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