USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 47
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(38) 1805, chap. 97, sect. 12.
(39) 1819, chap. 174.
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by which the lower sort of people (as Montesquieu terms them, ; are regarded as mere machines, destitute of all sense of self-in- terest in the administration of the public affairs, and impelled to a proper exercise of the elective franchise, only by the instructive example or overawing influence of the higher orders of society ; · but it can have no place in a government like ours, where all per- sons having the right of suffrage, are not only presumed to be self-willed in the exercise of it, but where also every tendency of our government, and of all our institutions, is to form that will aright. Why give the right of suffrage at all, if the voter is to consult the will or bow down before the influence of others, in its exercise? Where it is so exercised, the government may be it form a democracy ; but it is in point of fact an aristocracy, which mocks the many with the show of power, whilst the substance is in the hands of the few. Where persons act in a representative capacity, the votes given by them should be open to the scrutiny of their constituents : but there exists no such responsibility, to require or sanction such a scrutiny; in the ordinary exercise of the elective franchise. The proper exercise of this franchise requires but that which is open to every understanding, a knowledge of the character, sentiments, and habits of those, who are to be selected for the protection of the public interests. It has nothing to ap- prehend from the free will of the voter, or the regulations which are calculated to protect it : but it has every thing to fear from ex- ternal influences, which may tend to corrupt it.
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When the polls are closed, the ballot box must then be opened by the judges of election, or some one of them, and the ballots taken out and read aloud in the presence of those who may choose to attend : and as they are read, the votes must be entered by the clerks on their poll books, so that the number of votes given for each candidate may distinctly appear. During the counting of the ballots, if there should appear upon the ballot more names than there ought to be, or if two or more of them are deceitfully folded together, or if the purpose for which the vote is given is not clearly designated on the ballot; in all such cases, the ballots must not be counted. After the counting of the ballots is com- pleted, and the number of votes given for each candidate is as- certained, the judge or judges of election present, are required to give two certificates of the number of votes given for each candi-
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date ; in which shall be stated, the office for which he received the votes, and the number of votes, in words at length; and these statements shall be made on the two poll books, and shall be at- tested by the clerks of election, or one of them. The 14th sec- tion of the act of 1805, chap. 97, prescribes a form, according to which or to the like effect, (says that section,) these certificates must be. . All that is absolutely necessary in the certificates is, that they should state the authority of the persons certifying to hold such election, and whence derived-the county and district in which, and the time and place at which held-the qualifica- tion of the judges, and the appointment and qualification of their clerks-the opening and closing of the polls at the time prescribed by law, and the election for which they were opened -- the counting of the ballots and the result of the count. Any certificate which sets out these particulars is substantially good. (40)
Thus the result of the election is ascertained in each election district in the county ; and it only remains to determine the ag- gregate result for the county, and to prepare and transmit the · final return. For this purpose, the presiding judge of election in cach district, or in case of his inability, one of the other judges, is required, under a penalty of five hundred dollars, to attend at the place of sessions of the County Court with the poll books for his district, on the second day after the election : and the judges from the several districts so assembled, are then required to make out two certificates or final returns of the election. The Act di- recting this, requires that these certificates should shew the num- ber of votes given for cach candidate : and yet the form for the return of delegate elections, prescribed by it, merely states the persons having the greatest number of legal votes. The bet- ter form would be, to set out the number of votes given for cach
(40) 1805, chap. 97, sections 13th and 14th. For their services in the con- duct of the elections generally, the judges and clerks of election are allowed each, under the general law, four dollars for each day's attendance in receiv- ing votes, or making returns : which is levied with the county or city charges, as the case may be. (1805, chap. 97, section 31.) In Allegany and Baltimore counties, this allowance is reduced to two dollars per day : (1810, chap. 46, and 1827, chap. 83.) In Dorchester, to' three dollars. (1827, chap. 16 :) and ni Baltimore city, the compensation for making returns is wholly taken away. (1829, chap. 7.)
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candidate ; and then in the declaring or returning clause, to 131,6 the persons elect. If any of the judges fail to attend on the day assigned, the other judges in attendance, may adjourn from day to day until the attendance of the whole can be procured. These final returns being completed, the judges must address one of them to the Chancellor, and then enclose it under cover, direct- ed to the Governor and Council, and endorsed, " on public ser-" vice;" and must place it in the next post-office within one day after their meeting. The duplicate must be lodged together with the books of polls, within the same time, with the clerk of the county, who is required, under a penalty of one hundred dollars, to make out a true copy under seal of office, and transmit it to the Governor and Council in the same manner. Thus the returns are ready to be delivered to the House of Delegates upon its assoul- blage : to which it alone belongs to determine all that relates to the election and qualifications of its members. (11)
(4) Peculiarities of these elections in the cities of Baltimore and Annapolis.
The qualifications for voters and delegates, in these cities, have already been considered; and it remains only to examine the mode of proceeding in their delegate elections, where it dif- fers from that prescribed for the counties.
These elections for Baltimore town were originally held by it. commissioners; but after its erection into a city, this duty wa. transferred to the mayor and second branch of the city council, with whom it remained until 1799. (42) Until this period, there had been but one place for holding the elections in this city as well as in the counties; but a new system was then adopted for both. The eight wards, into which the city was divided for the election of its city council, were made election districts for the delegate elections; and the judges of elections for members of the first branch of the council then became, and have ever since been, judges for the latter elections also. (43) In 1817, the number of the city wards was enlarged to twelve; and for the future, the wards, whatever might be the change in their num-
(41) 1805, chap. 97, sections 15th, 17th, 19th, and 20th.
(42) Const. art. 6th; and act of 1797, chap. 57.
(43) Acts of 1798, chap. 115; and 1799, chaps. 30 and 48; 1805, chap. 37, sect. 22.
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ber or limits, were established by the constitution as the election districts for there and other elections. (41) The time of hold- ing the election is the same as in the counties, and the notice is given by the mayor of the city; but the time and manner of the notice appears to be discretionary, except in elections to fill va- cancies. (45) In all that relates to the duties and powers of the judges of election, in opening, conducting, and closing the elcc- tion, and in ascertaining and reporting the result; and in all the sanctions which enforce or sustain these, the elections for this city conform entirely to those for the counties.
In Annapolis, the delegate elections are still held by the mayor, recorder and aldermen, or any three of them, who . designate the place of election, and return the result to the Chancellor. (46) They are peculiar only in the power to keep the polls open for four successive days. This original power under the constitution has never been taken away; al- though some of our laws seem to have contemplated its aboli- tion. The amendment of the constitution, in 1799, referring the time, place, and manner of elections to the regulation of ordina- ry laws, did not extend to the elections in Annapolis ; and there- fore the election laws since passed, which restrict the time of election to a single day, being mere laws and not amendments of the constitution, have not affected this power.
(5) Elections to fill vacancies.
Vacancies arise by death, refusal to serve, resignation, remov- al out of the State, or from some of the causes already described as incapacitating for the office of delegate. (47) When they occur and are ascertained by the house, a warrant of elec- tion to fill the vacancy must be immediately issued by its speak- er. This warrant goes to the sheriff' of the county, or the mayor of the city of Baltimore, or the mayor, recorder, and aldermen of Annapolis, as the case may be. The election must be held within fifteen days after the receipt of the warrant; and notice of the time and place of holding it must be given by the person or persons to whom the warrant is directed. In Annapolis and
(44) 1817, chap. 51; and 1818, chap. 87.
(45) 1805, chap. 37, scct. 23.
(46) Const. art. 4th.
(47) Const. art. 7th, and supra, 448.
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Baltimore, this notice is ten days, exclusive of the day of notre and the day of election. In the counties, it has been reduced to eight days exclusive. The manner of giving it is discretionary in Annapolis and Baltimore; but in the counties, it must be given by advertisement, set up at the most public places in each district. It is also the duty of the sheriff of any county, or the mayor of Baltimore, upon the receipt of any such warrant, to - , cause a copy of it to be served on each of the judges of election at least three days before the day of election. Elections to fill vacancies are, in all other respects, conducted in the same man- ner as the regular elections. (48)
(6) Distribution of the right of representation.
The house of delegates consists of eighty members, of whom four are chosen by each of the nineteen counties of the State, and two by each of the cities of Annapolis and Baltimore.
With reference to the several counties of the State, the principle of our present system of representation in the house of delegates is "perfect equality, because of distinct county interests, without regard to difference in territory or population." Nor is there any proportionate representation of the latter in the Senate. Hence our Assembly has not, strictly speaking, any popular branch, any branch which may be called the image of the people. This system imparts to the State the character of a confederacy of counties; and unless so regarded, it has no governing principle. But when we re- cur to the circumstances under which it was adopted, we discover that its form is merely arbitrary and conventional. In our exami- nations of human institutions, in whatever age or under what- ever circumstances they originated, and however rude in their form and disproportioned in their parts, we are constantly in search of some general and governing principle to account for their existence. We will have a reason: and that reason must be a principle. Yet experience should teach us, that human in- stitutions, for the most part, spring from and are moulded into form by adventitious circumstances, and are not the creations of a principle. The forms of government are very generally, the results of fortuitous circumstances, the effects of compromise, or the work of gradual concessions or assumptions of power. The history of the world has exhibited but few instances, in which
(48) 1805, chap. 97, sects. 23 and 35; 1823, chap. 213; and Const. ort. 4th.
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the social compact was more than a mere theory, or in which men, in moments of tranquillity and reflection, have cast off all their political connexions, have returned to a state of nature, as pre- liminary to the establishment of a new and better state of socie- ty, have devoted themselves to the investigation of the true principles of government, and have remodelled their government upon those principles, without reference to their previous condi- tion. Attachments to forms under which we have long lived, partialities for customs and prejudices, devotion to familiar feel- ings, and subserviency to jealousies, will cling to us, even in the transition from an old to'a new government.
Knowing this, we have a clue to the causes of our present delegate system, without being driven to a vague and fruitless search for some principle on which to rest it. We have seen that, under the proprietary government, for a long time. anterior to the revolution, the same cquality of county representation prevailed, and the same number of delegates were allotted to each county. (49) This was the system under which the framers of the constitution had grown up, and with which they were fa- miliar, as interwoven, not only with their own institutions, but also with those of the parent country. It was also accom- modated to their shore and county jealousies; and being thus identified with the feelings and habits of the people, it is proba- ble that any attempt to repudiate it, and to substitute in its stead a
- (49) Until 1650, the delegates were elected for hundreds or settlements ; and the warrant for each Assembly specified the number to be elected for each hundred. There was no regular delegate system before this period ; and perhaps this arose from the existence of the right then generally con- ceded to the freemen of appearing in the Assembly in person or by proxy. It was not until 1659, when the Lower House was made to consist only of delegates, that its organization became regular. At the session of 1659, four delegates were called from each county ; and from this period until 1681, with one exception, the summons permitted the election of two, three, or four delegates in each, at the option of its people. In the latter year, the number was reduced to two, by the proprietary's ordinance ; but in 1692, after the establishment of the royal government, the constitution of the Lower House was regulated by law, and four delegates were again allotted to each county. The right of representation thus established upon the basis of cquality amongst the counties, existed without alteration until the Ameri- can revolution.
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representation based upon territory, property, or population, or on a ratio compounded of any or all of these, would have alienated the affections of many of the inhabitants, would have roused the: jealousies of the smaller counties, and would have left the State the prey of internal dissensions, at a moment when all her ener- gies were required in her struggle for independence. (50) Our constitution was framed at a very early period of this struggle; and in its formation, it was necessary to regard sectional rights and feelings with the utmost tenderness, and to omit nothing in the effort; to bring them into harmonious concert against the common enemy. Like Solon's laws, it was the best of which their condition would admit; and formed, as it was, whilst the enemy was at the door, we can readily account for the retention of the old system of representation.
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Frequent and vigorous efforts have been made to change this system; in some instances, by attempting to substitute one founded upon the basis of population ; and in others, by propos- ing merely to enlarge the representation from Baltimore, so as to place it on an equality with the counties. All the attempts to substitute the basis of population, have hitherto proved entirely fruitless; nor have they ever been sustained by such a vote as to encourage the belief, that they will ultimately be successful. There are two prominent causes which always have operated, and probably always will operate, to prevent such a change: and these are, the unequal distribution of the population of the State amongst the counties and the two cities, and the supposed cx- istence of distinct shore interests, with its train of shore jealou-
(50) The prevalence of shore jealousy is strikingly manifest in some of the proceedings of the Convention which adopted our State government. A proposition was actually made in that convention to insert an article in the Declaration of Rights, acknowledging the right of either shore to separato from the other, when it should deem it to be for its interest and happiness. It was amended so as to give this right, whenever sanctioned by a majority of the voters in every county on the shore desiring to secede ; and in this amended form, it actually received seventeen votes, all of which, save off, were given by Eastern Shore delegates. Out of twenty-one Eastern Shore members voting on this proposition, sixteen were for it, and but five against it ; of the twenty-six Western Shore members voting on it, twenty-five were against it, and one for it. [Journals of Convention, 3d Nov. 1776.
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sies. A very slight observation of the local peculiarities of the State will convince us, that its population will probably, for a long time, be so distributed, as to render a majority of the coun- ties jealous of any change which would look to this basis. Along the shores of the Chesapeake Bay, there always has been a considerable direct commercial intercourse with other states, and with other cities; yet the operation of this is not likely to raise up, within the State, a commercial rival of the city of Balti- more. The object of such a commerce has been, and will be, principally, to be their own factors: and to supply themselves with such merchandize as they want for their own consumption. Baltimore is, therefore, destined to remain for a long time, and, we trust, for ever, the commercial emporium of the State; and if she makes a proper and timely use of all the local advantages with which she has been so liberally endowed by Providence, she will also be the great commercial emporium for the western states. Her population, even now, is more than one-sixth of that of the whole State; and is likely to increase in a greater ratio than that of the counties. It will also be perceived, in contrasting the several counties of the state with each other, both as to their past and present condition, that there are three or four, whose population now greatly exceeds, and is likely to continue to ex- ceed, that of the rest. Without even looking to the effect which will probably be produced upon the three extensive counties of Frederick, Washington and Allegany, by the projected improve- ments leading through them to the west, it will be seen, that the preponderance of population in three or four counties will be likely to continue because of their territorial extent, even if the causes of the improvement or decline of the State were to ope- rate equably upon all sections. The objection, therefore, which has hitherto been urged against a representation based on popu- lation, that it would place the power of the State in the hands of the city of Baltimore, and three or four of the largest counties of the State; is likely to remain open to such objectors; and so long as this is considered a sufficient reason, no change will be effect- ed. The truth is, that a majority of the counties, who now wield a majority of votes in the house of delegates, will, in a compara- tive view, always remain small counties, and do not expect to add to their relative weight in the legislature, by such a change,
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Some of them believe, that the allotment of delegates accordi!" to population would not increase their representation; and others, that theirs will be greatly diminished : and they therefore make a common cause against a change, by which none expect to gain, and most of them fear a great loss of legislative power. Those who have power, be they the majority or minority, rarely surrender it voluntarily ; and always conclude that it is as safe in their hands as in those of others.
It is also urged as an objection to any alteration of the pre- sent system, that it would destroy the present proportions in the distribution of the legislative power. In both houses of Assem- bly, the power of the Eastern Shore is to that of the Western, as two to three; and the members from the former are always opposed to a system, which would so materially reduce their shore power.
These considerations, so long as they are sustained by the notion of distinct shore interests, and by those singular apprehen- sions of Baltimore influence, which have so long prevailed in a State of which she is the pride and ornament, are calculated to give permanency to the ,present system. There is, however, one alteration of it, relating only to the representation of the city of Baltimore, which, it is believed, the justice and magnanimity of the State will yet accord to her. This proposes merely to in- crease the number of her delegates to four, so as to place her on an equality with the counties. It received the sanction of the legislature at the session of 1824, but was not confirmed, as the constitution requires, at the ensuing session. It was the writer's lot to participate in the discussion before the legislature, which led to the passage of the bill of 1821; and in those after- wards elicited by its submission to the people; and thus to be- come familiar with all the feelings and motives of opposition to the change proposed by that bill. On that occasion it was re- sisted, not so much on account of its immediate objects and effect in raising the representation of Baltimore to an equality with that of the several counties, as for its supposed tendency to extend the hand of innovation to the whole system, and to strengthen her claims for a further increase. Without regarding it as the beginning of innovation, it was difficult to find an argu- ment of justice or expediency, upon which the bill could be re-
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sisted. By the very grant of a partial right of representation, this city is admitted as a distinct member of the quasi-confede- racy, having distinct interests : and these, as the interests of a great and growing commercial city, are peculiar in their nature, belong to a larger population, exceed in value those of any county of the State, and require more legislation. Hence what- ever basis may be adopted, be it population, or distinct interests, or property, or the necessity of peculiar and frequent legislation ; in all, she is at least confessedly equal. And it is most manifest from the provisions of that article of the constitution, which gives her her present representation; and declares that it shall cease, if her population should so decrease, as that the number of her voters for seven successive years shall be less than one half of those of some one county of the State, until it shall regain that number of voters; that the framers of that article never had in prospect, even the state of wealth, prosperity, and population, to which she has now attained. (51)
Yet whilst the present system is thus guarded and fenced about by power and feeling, which are likely to insure its con- tinuance, the course prescribed by duty and policy to all sec- tions of the State is obvious. The constitutional mode of amend- ment is at all times open, and proper to be resorted to; but mere murmurs and revilings can never answer any other purpose than to produce sectional jeslousies and heart-burnings, to the preju- dice of the whole. In most of our reasonings about the forms of government, we are too apt to confound the means with the end. Political liberty and power are treated, as if they were the sole objects of human society; but as used here merely to de-
(51) Const. art. 5th. This clause did not make a part of the constitu- tion, as originally reported to the convention by its committee. It was a part of an amendment to it, proposed in convention by the late Judge J. T. Chase, one of the delegates from Baltimore town, in which this proposition for reduction was accompanied with one for an increase to four delegates, whenever the town should have an equal number of voters with any one county in the State. This proposition was a very fair application of the golden rule : but the convention were content to take its operation in one way only. When it was put to the vote, a division of the question was called : the clause relative to decrease was incorporated into the constitu- tion : and then the proposition for increase, for which the other was a mere purveyor, was rejected by a large majority.
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