USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 46
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From the colonization until 1650, the right of representation had no regu- lar character. Sometimes the assemblies had the nature of the " Ecclesia" of the Athenians. They were assemblies of the freemen generally, rather than of representatives. Every freeman had a right to be personally pre- sent ; and this right being a personal privilege, like that of a member of the English House of Peers, he might either appear in person or by proxy, or join in the election of delegates, at his option. . . When the assemblies were so constituted, the government was a pure democracy; being administered by the people in person. At other times, the freemen were permitted to ap- pear only by delegates or deputies, elected in the manner prescribed by the warrants of election. The three sessions of 1640, and those of July, 1641 and 1642, were of the latter character : the other sessions were of the for- mer, which was the prevailing character. After the commotions of the civil war had ceased, and the government was restored to the proprietary by Crom- well's commissioners, viz, from 1659, the Assembly consisted only of dele- gates ; and from that period, the right of making proxies or appearing per sonally, wholly ceased. Yet it was not until 1681, that any restrictions ap- pear to have been imposed upon the people in the choice of delegates. By the proprietary's ordinance of 6th September, 1681, the same qualifications were required for delegates as for voters ; and these were kept up, as to both, by the same acts, until the revolution. [ Supra notes 3d and 4th. ]
The exclusion of the clergy was founded upon the jealousy of church establishments imbibed under the proprietary government, and the apprehen-
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Of these, the original qualifications for this office, some have been wholly removed, and others superseded by new restriction .. aiming at the same object. Those wholly remored are, the pro- perty qualification, and the exclusion of field officers of the mili- tia; both of which were abolished in 1810. (9) That which ex- cludes for conviction of having held another office or received its profits, whilst a delegate to congress, has ceased to exist; for no such conviction can now take place. Such delegates were then appointed by the Assembly, and were required to qualify, by tak- ing an oath or affirmation not to hold or execute another office, or receive its profits; and the disqualifying conviction was founded upon a prosecution for the breach of this oath of office. Since the adoption of the present federal government, the office of delegate to congress, in the contemplation of the constitu- tion, has wholly ceased : the qualifications of representatives under the new federal government, are prescribed by the consti- tution of the United States; and the oath of office, on which alone such conviction could be founded, is no longer taken. It seems also that the disability, because of conviction for bribery, does not apply to bribery to obtain the present office of repre- sentative in congress; which is entirely distinct in its nature, qualifications and incidents, from that of delegate to congress, as established by the constitution. Those which have given place to substitutes, relate to holding offices under the United States, . or being employed in its service. Upon the adoption of the present constitution of the United States, it might have been questioned whether they could follow with the change, and attach to offices or employments under the new government To ob- viate all doubts, an amendment was therefore engrafted upon our
tion that these might be promoted by permitting them to sit in the Assembly, This restriction, although still strictly enforced, now rests upon different reasons. They are now excluded upon the doctrine, which they themselves will approve, that those whose high and holy office is the care of souls, should be wholly secluded from all the turmoils and corrupting influences of politi- cal life. The propriety of the other exclusions had been fully manifested in the experience of the colony.
(9) The property qualification, by the acts of 1800, chap. 198, and 1810, chap. 18 ; and the exclusion of field officers, by the acts of 1909, chap. 65, and 1810, chap. 78.
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State constitution in 1792, which provides " that no member of congress, or person holding any office of profit or trust under the United States, shall be capable of having a seat in the General Assembly. (10)
A qualification of an entirely new character was created in 1816, by the act for the suppression of dueling: which pro- vides, that if any person shall challenge another to fight a duel, with any weapon, or in any manner whatsover, the probable issue of which may be death, or shall accept a challenge to fight, or actually fight a duel, with any such weapon or in any such man- ner, he shall be incapable of holding, or of being elected to, any office of profit, trust, or emolument within the State. (11) This act has never been adopted as an amendment of the constitution; and as a mere act of ordinary legislation, can have no operation upon offices, such as that of delegate to the Assembly, for which the constitution has prescribed qualifications. Such disabilities as that created by the act of 1816, are not merely disabilities of the offender. They operate as restrictions of the people's right of choice, imposed for reasons personal to the offender. Now the constitution expressly empowers the people to select, as dele- gates, all persons having the qualifications which it prescribes; yet this law declares, that even these shall not suffice, if such persons have offended against its provisions. It therefore super- induces a qualification unknown to the constitution, and in di- rect conflict with the right to elect there given. Affirmative provisions in our constitution are always negative and exclusive of all mere laws, which alter or deny the rights they affirm. And in the present instance, as the law of 1816, if valid, would inter- vene to declare, that although the person proposed has all the qualifications of a delegate required by the constitution, yet the people shall not elect him, unless he is also free from the offences it creates, and thus controls a constitutional privilege of the people by the provisions of a mere law : it can have no efficacy as to this office. It would operate as an amendment to the con- stitution, and must therefore be adopted as such, before it can be valid.
(10) 1791, chap. 80 ; and 1792, chap. 22.
(11) Act of 1816, chap. 219.
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[Hist. View.
Upon the above summary of the qualifications for this office it must be remarked, that they fall under two general classes. The first class includes all the cases in which the person is ren- dered absolutely ineligible : and to this belong the several exist- ing qualifications, which require age and residence, which cx- clude members of congress and persons holding offices of profit or trust under the present government of the United States, and which disable because of conviction of bribery, or conviction of holding, or executing, or receiving the profits of another office. . . In all these instances, the persons lying under these disqualifica- tions or disabilities, are declared incapable of being elected to, or holding the office of delegate; and therefore the election of such persons is merely void, and not susceptible of confirmation, by any removal of the disqualifications, before the person elect takes his seat in the house of delegates, or before it is vacated. The disabling consequences of the convictions alluded to, are expressly declared to be permanent ; and therefore, under these, no such question can arise : but if the person elect, being under age, or not having the necessary residence, or holding an office under the United States, arrives to full age, or obtains the neces- sary residence, or resigns his office under the United States, be- fore he takes his seat, or before his seat is vacated, it will not suffice. He was originally ineligible ; and no change in his con- dition can operate to render valid his election. The latter class includes all those causes of disqualification, which merely declare that the person subject to them " shall not have a seat in the General Assembly;" and do not expressly render him ineligible Of this kind are the disabilities which exclude ministers or preach- ers of the gospel, and persons holding other places of profit, or receiving any part of their profits, or receiving any of the pro- fits arising on any agency for the supply of the army or navy of the State, or being employed in its regular land or marine service, (although such cases as the latter can rarely arise under the constitution of the United States.) In all these cases, it may be contended, with great force, that if the disability ceases or is removed, after the delegate is elected, and before he qualifies as such, (which constitutes what is called " taking his seat,") the objection ceases with it. These disabilities are now considered merely as creating qualifications consisting in freedom from them :
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the examination of their objects and extent, as disabilities, is re- served for another part of this work.
In the elections for the city of Annapolis, the positive qualifi- - cations, or those which relate to age, property, and residence, were originally left by our constitution to the regulation of its charter ; (12) and it has been seen, that under that charter, it was only necessary, that the delegate should be an actual resident of the city at the time of election, and should have therein a freehold or visible estate of the value of £20 stlg. (13) By the amendment of the constitution in 1810, all such parts of it us required a pro- perty qualification for delegates, were abolished; (14) and as the constitution expressly adopted the qualifications prescribed by the charter, as constitutional qualifications for the delegate elec- tions in that city, and the charter itself was then expressly made subject to alteration by the legislature, at pleasure ; (15) this pro- perty qualification, although regulated by the charter, must be con- sidered, as having been established by the constitution, and repeal- ed by the amendment. Hence the qualifications for delegates from this city are peculiar only in one respect. In the counties and the city of Baltimore, a residence in the county, or city, for twelve months next preceding the election, has always been required by the constitution; but the charter of Annapolis, which is in this re- spect unchanged, merely requires that the person elected should be an actual resident at the time of election. The disqualifications which exclude ministers of the gospel, persons in office under the United States, persons holding another office or receiving its profits, and persons convicted of bribery, or of holding another office or receiving its profits, apply as well to the elections in this city as to those in the counties or Baltimore. The power to elect delegates qualified agrecably to the charter, does not ex- clude disabilities, which expressly apply to the office of delegate generally, and are established to secure its purity.
› (3) The manner of election.
The time, place, and manner of holding the elections for dele- gates, were originally regulated by the constitution; and the
(12) Const. art. 4th.
(13) Supra, page 255.
(14) 1800, chap. 198 ; and 1810, chap. 18.
(15) Bill of Rights, art. 37.
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[Wlist View.
constitutional system for these elections was of the simplest nature. The time of election (which is yet unchanged,) was the first Monday of October in each year. There was but one place for holding the election in each county and city; and this place was, for the counties, their respective court houses; and for the city of Annapolis and Baltimore town, such as might be selected by their judges of election .. The judges of these elections were, for the counties, their respective sheriff's, or, in case of sickness of the latter, their deputies: for the city of Annapolis, its mayor, recorder, and aldermen, or any three of them : and for Baltimore town, its commissioners. These judges were empowered to ad- journ from day to day ; and to keep the polls open for four days, if necessary : and upon the closing of the polls, they were re- quired to make out, subscribe, and transmit to the Chancellor of the State, a full return of the result. (16)
This system remained without alteration until 1799, except as to the holding of the elections in Baltimore; in which, upon its erection into a city, the mayor and second branch of its council were made the judges of election. (17) It was soon found, that the designation of but a single place for voting was attended with great inconvenience to the voters; that it opened the door to management and fraud; and that in the more extensive and populous counties, it sometimes operated as a denial of the elec- tive franchise. Hence, in 1799, all those parts of the constitu- tion, which related to the judges, time, place, and manner of hold- ing these elections, were wholly repealed; and these subjects were left to be regulated by ordinary legislation. (IS) At the same time, an entirely new system was established by law ; under which, the counties were divided into election districts, and correspondent changes were made in all that related to the conduct of these elections. From that period to the present, they have remained subject, in these respects, to ordinary legis- lation. (19) It is now our purpose to exhibit the present regu-
(16) Const. arts. 2d, 3d, 4th, 5th and 6th.
(17) Act of 1797, chap. 57, confirmed by 1798, chap. 2.
(18) Acts of 1798, chap. 115, and 1799, chap. 48.
(19) Act of 1799, chap. 50, succeeded by the act of 1805, chap. 97; which latter act, and its supplements, constitute the existing election laws of the State.
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lations of the system thus introduced, so far as they are applica- ble to the elections in the counties. Those which relate to the elections in the cities of Annapolis and Baltimore, will be sepa- rately considered. Pursuing the natural order of the subject, we shall examine severally-the authority to hold these elections- the time, place, and notice of them-the manner of conducting them -- and the proceedings subsequent to the closing of the polls.
Every county in the State is divided into election districts, va- rying in their number, to suit the convenience of the people of ' each county. For each of these districts, three judges of elec- tion are annually appointed. The power of appointing these. judges was originally vested in the county court; but in 1801 it was transferred to the levy court; and to the latter the power still belongs, except in those counties where commissioners have been substituted for the levy courts. (20) In Baltimore, Cecil, Harford, Anne Arundel, Washington, and Alleghany counties, county commissioners have taken the place of the levy courts; and therefore, in these counties, the appointment of these judges has devolved upon the commissioners. The regular appointments must be made between the first Mondays of April and August in "each year; but vacancies may be filled at any time. (21) Va- cancies arise not only from death and resignation, but also by removal out of the district, or from any cause which may, in the opinion of the levy courts or commissioners, constitute a dis- qualification. (22) The persons appointed must be residents of the district for which they are appointed. (23). The appoint- ment being made, the clerk of the levy court or of the commis- sioners appointing, is required to make out and deliver to the sheriff of the county, within five days after appointment, cach appointee's warrant for his office; and this warrant must be de-
(20) 1801, chap. 74, sect. 22d ; and 1805, chap. 97, sect. 6th.
(21) 1805, chap. 97, sect. 6th. But in St. Mary's county, by the act of 1807, chap. 23, they are to be appointed annually in August. In the substi- tution of commissioners for the levy courts, the duties of the latter, as to the time and manner of appointing these judges, have been cast upon the for- mer without change.
(22) Same.
(23) Same.
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[Hist. Vir*
livered by the sheriff within ten days after its receipt, to the per- son appointed, or left at his place of abode, under a penalty of nity dollars for a neglect of their respective duties on the part of either of these officers. (24) Any one judge of election has power to hold the elections; but if all neglect to attend, and one hour has elapsed after the time prescribed by law for opening the polls, the justices of the peace present, or any one justice, if but one present, may choose three judges of election for the particular occasion: and if no justice be present, they shall be chosen by ballot by a majority of the voters present. (25) Although these appointments are annual, yet it is expressly provided that the ap- pointces shall hold their offices until a new appointment. (26) Hence it is manifest that no possible case can arise, so long as there are voters, in which there will be a failure of the power to hold these elections.
The time for holding these elections, is, and has been ever since the adoption ;of the constitution, the first Monday of October in every year. In each election district there is a particular place for holding the elections, which was either designated at the time of locating the district, or has since been established by law. Yet, although the time and place of these elections are thus rendered definite and notorious, it is the duty of the sheriff's of the several counties, under a penalty of fifty dollars, to give notice of them in and for their respective counties every year, by advertisements set up, at least three weeks before the election, in each election district. (27)
In conducting the election, the first step is, the appointment of the clerks of the election, and the qualification of the judges and clerks. There are two clerks of election for each district, who are appointed by the judges, who must be above the age of twenty- one : and who are bound to serve, when appointed under a penal- ty of ten dollars. (?S) The qualification of the judges and clerks consists in the oath of office, or affirmation, prescribed by law :
(24) 1805, chap. 97, sect. 6th.
(25) Same, sect. 8th.
(26) Same, sect. 6th.
(27) Same, section 4th.
(28) Same, section 10th.
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which must be taken by the judge before he receives any vote, and by the clerk before he enters any vote upon the polls. (29) This oath or affirmation must be administered to the judges, by some justice of the peace, or by a clerk of the election if he has quali- fied and no justice is present : and to the clerks, by one of the judges, or by some justice of the peace : and a certificate of its administration must be signed by the person administering it, " and annexed to the polls. (30) The duty of the clerks consists in recording the names of the voters : and the votes are en- tered by each clerk, so that they are mutual checks. It is the duty of the sheriff to provide a ballot box, and a poll book for each clerk for the entry of the votes. (3)
Every judge of the election is a conservator of the peace, dur- ing the pendency of the election ; and may commit for breaches of it. He may also issue warrants, in the name of the State, to re- cover the penalties incurred by those, who, having voted offer to vote again at the same election in the same district or county, or who offer to vote, in any name not their own, or in the place of another person of the same name, or in any district in which they do not reside : and in all such cases, he may try the cause, and adjudge the penalty. (32)
There are also further guards of the purity and freedom of elec- tions, in the penalties inflicted upon various acts calculated to interrupt or subvert them. Officers commissioned or non-com- missioned, having the command of any soldiers, quartered or posted within the State, are prohibited from mustering or embody-
(29) 1805, chapter 97, section 11. The oath or affirmation of the judge is simply that he will permit all persons to vote at the election to be held by him, who in his judgment are legally entitled to a vote : that he will permit none to vote whom he does not consider so entitled : and that he will In all re- spects discharge the duties of his office according to the best of his knowledge, without favor or partiality. That of the clerk is generally, " That he will faith- fully and without favor, affection, or partiality, discharge the duties of his of- fice," &c.
(30) 1805, chapter 97, section 11 ; and 1828, chap. 159.
(31) 1805, chap. 97, sections 5th and 10th.
(32) 1805, chapter 97, sections 6th and 25th. There is a special power given to the judges of election in Cecil county, to appoint two constables, for their respective districts, for the preservation of the peace on the day of elec- tion. 1823, chap. 122. 58
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ing any of the said troops, or marching any recruiting part !. within view of the place of election, during the time of hold !.:: : the election, under the penalty of one hundred dollars. (33) Can. didates, or other persons practising any force or violence, with intent to influence unduly, or to overawe, hinder, or interrupt any such election, are subject to indictment in the County Court : and may be fined any sum not exceeding two hundred and fifty dollars, and also imprisoned any time not exceeding fifty days. (31) Candidates, or other persons, at any time before or on the day of such elections, giving, bestowing, or directly or indirectly promising, any gift or reward to secure any person's vote, or keep- ing or suffering to be kept any house, tent, booth, or other accom- modation, in any part of any district, at any time during the day of election, and before its close, at which victuals or intoxicating liquors shall be gratuitously furnished to voters, are subject to in- dictment in the County Court, and a punishment by fine not ex- cecding five hundred dollars, and by imprisonment not exceeding six months. (35) Voters who have voted once and offer to vote again at the same election in the district or county, are subject to a penalty of ten dollars : and persons offering to vote, in any name not their own, or in the place of any other person of the same name, or in any district or county in which they do not reside, are subject to a penalty of twenty dollars : and in all these cases, as these are offences which ought to be instantly repressed, the penalties may be immediately recovered, by warrant issued in the name of the State, by any justice of the peace, or judge of the election. (36) Persons voting twice at one election, are subject to punishment by fine not exceeding forty dollars, and imprison- ment not exceeding one month; and persons offering more than one ballot with a fraudulent design, incur a penalty of twenty dollars : the punishment in both these cases, being enforced by indictment in the County Court. (37)
(33) 1805, chap. 97, sect. 28.
(34) 1805, chap. 97, sect. 27. -
(35) 1805, chapter 97, section 29, and 1811, chap. 204. There is besides the constitutional punishment for bribery by candidates, which upon conviction for this offence, forever excludes the offender from any office of profit or trust in the State. Const. art. 54, and supra page 449.
(36) 1805, chap. 97, sect. 25.
(37) 1805, chap. 97, sections 12th and 26th.
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The polls are to be opened at nine o'clock, A. M., and closed at six o'clock, P. M. The voting is by ballot, on which must be written or printed, the name of the person voted for, and the pur- pose for which the vote is given plainly designated. The ballot is received by a judge of election, by whom it must be deposited, without examination, in the ballot box, where it must remain until the closing of the polls: and any attempt by such judge or any other person, to discover the contents of a ballot by opening or unfolding it, subjects him to a penalty of fifty dollars. (38) In all cases where there is any doubt as to the right to vote, it is the duty of the judges to scrutinize it: and in doing this, they are empow- ered to examine on oath or affirmation, the person offering to vote, or any other person. (39)
The viva voce mode of voting was originally prescribed by the Constitution : and it continued to be the mode of voting in this State, until 1801, when it was superseded by that of voting by ballot. This change was introduced by the same Act which swept away the property qualification of the voter : and was intended to take away the indirect, whilst the latter took away the direct in- fluence of wealth upon the elective franchise. Both changes ap- pear to have sprung from the experience of the State during the national revolution which elevated Mr. Jefferson to the Presiden- cy. There is a great contrariety of opinion, about the compara- tive excellence of these two modes of voting : yet the present appears to be better adapted to the nature of our government. The contrary doctrine is maintained by Montesquieu, upon prin- ciples which do not accord with it. " The people's suffrages," (says he) " ought to be public, and this ought to be considered a fundamental law of democracy :" and the reason he assigns, is, " That the lower orders of people ought to be directed and re- strained by those of "higher ranks." This is the very reason why it is excluded by our laws : and the assignment of it shews, that they have pursued the proper mode of excluding what they held to be an improper influence. A republic rests for its true basis upon the virtue and intelligence of its citizens : and these are the only proper guides to direct them in the exercise of the right of suffrage. Such a reason might apply to a Constitution,
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