USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 49
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A similar eulogium will be found in the third number of the Federalist, in which Mr. Hamilton, after contrasting its organi- zation with that of the Senate of the United States, remarks, " If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ouglit by this time to have been betrayed by the Senate of Maryland; but no such symptoms have appeared. On the contra- ry, the jealousies at first entertained by men of the same descrip- tion with those who view with terror the correspondent part of the federal constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union."
In adducing these opinions, it is not our design to subscribe to them in their full extent, or to rest the system upon them. They are entitled to respect ; but they are not authoritative. They do not preclude inquiry ; but they serve to show, that during our re- volutionary struggle, and down to the adoption of the Constitu- tion of the United States, the theory and results of this part of our constitution were equally approved. At the present day, it is gene- rally the subject either of indiscriminate approbation, or unqualified censure ; and in this, as in most other instances, the line of truth lies between. " Keep the middle way," is generally the safe doctrine in such cases, yet it is not without its difficulties. He, who thus places himself between opposite opinions, is often regarded as the common enemy of those who hold them ; and they for a mo- ment forget their hostility, to meet and mingle in a common war- fare against his doctrines. The shield of truth is then the only
(31) Ramsay's History of the American Revolution, vol. 1st, 445. 61
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protection left him, and the judgment of the future the only tri- bunal to which be can appeal. Yet he who enters upon such an examination, must not shrink from its difficulties.
The prominent and characteristic features of the present con- stitution of the Senate, are-The intervention of the Electoral college : The selection of the senators from the State at large The duration of their office: and the Senate's right to fill vacan -- .cies. The objects and tendency of these it will be proper briefly to examine.
In adopting the peculiar mode of electing our Senate, the framers of our constitution appear to have had in view two prominent objects; the equal influence of the counties in its choice; and the selection of the senators, as the representatives of the State at large and not of particular sections. The pre- sent was the only system, by which these two objects could have been concurrently accomplished. If the senators were elected for counties or cities, they would, by the very nature of their election, have stood in the relation of representatives to such ยท counties or citics : and no system of election by general ticket could have been devised, which would have preserved both these objects. By the substitution of an electoral college, in form the mere miniature of the house of delegates, each county was insured an equal influence in selecting senators for the whole State, which was considered tantamount to a specific equal re- presentation in the Senate itself: and, at the same time, the per- sons selected by the college were made, by the very manner of their choice, to regard themselves as the representatives of the whole State, or at least of their respective shores. The system was also recommended by the advantages of an indirect election by representatives, who would discharge this duty under the eye of the whole State, and under a high sense of responsibility to the community which they dared not disregard. Originally esta- blished upon such considerations, the present organization of the Senate is still sustained by them in all their original force ; and cannot be destroyed, without departing from them. The change of the system would not be a mere alteration of its modes, but an abandonment of the principles of its formation: and hence it is necessary to consider in connexion with any pro-
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. position for change, the value of these principles, and the con- sequences of their destruction.
The abolition of the Electoral college, and the allotment of Senators to the several counties and cities in the ratio of their respective representations in the house of delegates, will of nc- cessity render the constitution of our Senate, a mere copy of that of the house of delegates in all but the duration of the office : and thus the efficacy of the two houses, as checks upon each other, will be much impaired. In fact, there will remain no checking principle, but that derived from their separate existence. Organized in the same manner, and subject to the same species of responsibility, they will be governed by the same influences. There will be nothing but a representation of sections; and, per- haps, as its consequence, a legislation ever fashioned by section- al jealousies and prejudices. Hence we find that Mr. Jefferson, who was an acute observer of the principles of government, has characterized, what he terms the homogencous structure of the two houses of Assembly, under the old constitution of Virginia, as one of the greatest defects in its organization. "Being chosen (he remarks,) by the same electors, at the same time, and out of the same subjects, the choice falls of course on men of the same description. The purpose of establishing different houses of legislation, is to introduce the influence of different interests or principles. We do not, therefore, derive from the separation of our legislature into two houses, those benefits which a proper complication of principles is capable of producing, and those which alone can compensate the evils which may be produced by their dissensions." (14) Yet the structure, upon which he thus remarks, did not render the two houses of that Assembly as similar as those of our Assembly would be, if the alteration we are considering were accomplished. There the senators repre- sented districts, and the delegates counties, although the qualifi- cations for the voters were the same: but here in the case sup- posed, they would be elected by the same persons and for the same sections. The conformity between the two branches of the legislature would then be more exact under our constitution, than under the forms of state governments around us, which are
(14) Jefferson's Notes on Virginia, 122.
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appealed to as examples to sustain the proposed change: for under all of the latter, the members of the less popular branci: represent more extensive sections of the State. If then we admit, what all the forms of our republican governments seem to assert, that the division of a legislature into two branches is instituted to make them checks upon each other, there is no middle ground to occupy. Either the doctrine that such checks are necessary is erroneous; or the checks should be effi- cient. Yet by the continuance of our two houses of Assembly, we would admit the doctrine; and by their similar structure, we would defeat its application.
The difference between the term of office of the Senator and that of the Delegate has been sometimes adverted to, as if by - such a distinction all the purposes of the separate existence of the two houses were answered. The senator, it is said, being elected for a much longer period, will be subject to none of those momentary influences, or apprehensions of the loss of office, which might deter him from the fearless discharge of his public duties. Such notions spring from a misapprehension of the na- ture and objects of such a check. The mere diminution of re- sponsibility is not a check in legislation. It consists in the ex- istence of different responsibilities, and different influences, so well balanced against each other, as to give to cach its due ope- ration, and to deny to all an undue preponderance. Like me- chanical powers operating from different quarters upon the same object, and giving it a direction, between such opposite impulses, yet partaking of the motive power of all; the various interests in society are thus brought to bear upon general legislation, so as to direct it between their peculiar purposes to the general wel- fare. But in legislative bodies, such checks not only render the different interests in a community mutual and beneficial restraints, but they are also the safeguards of the people themselves against their own representatives. The two branches compose two dif- ferent classes of responsible agents, entrusted with the same ob- jects, and deriving their trusts under different circumstances and different degrees of responsibility, yet controlling them only by their concurrent operation.
Turning from these general considerations to those which be- long to the peculiar condition of this State, all will perceive at
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once the particular influences, which principally war against the general welfare, and most require the interposition of checks. The most careless observer of our State government, must have .. remarked its tendency to create and perpetuate sectional divi- sions, ever carrying in their train sectional jealousies and preju- dices. The very bounties of Providence have proved causes of separation. The noble bay, which intersects our State, has al- most become the line of demarcation between distinct people and governments; and every variety of local interests, every pe- 'culiar advantage of situation, have been brought into requisition to scatter dissensions amongst us. How well they have accom- plished it, in rallying shore against shore; counties against coun- ties; Potomac interests against Susquehanna interests, and Eastern shore interests against both: county jealousies against Baltimore influence; and Baltimore apprehensions of county enmity, let the past transactions of our legislature determine. If ever there was a State, in which local interests have operated to the general prejudice, it is the State of Maryland. All her in- stitutions, however general in their purposes, are but so many representations of sections. Her Senate, as at present organiz- ed, approaches more nearly to a state representation than any other: yet even here the shore distinctions predominate. It therefore becomes our people to weigh well the consequences, which may result from the destruction of the only check in our government upon these, its unquestionable tendencies.
It must be considered, that however different in its structure, the Senate derives its existence from the same source as the House of Delegates. The two houses are merely different modi- fications of the same right of representation. The same peo- ple elect, the one to represent their local interests, and the other to direct these with a due regard to their State interests. The latter they have accomplished in the only mode consistent with their county rights, by devolving the selection of senators upon responsible electors of their own choice, precisely as the elec- tion of the governor is cast upon the house of delegates : and if it be objected that this indirect mode of election is improper, the objection equally requires, that the Governor should be elected by the people. Adopting this mode, and directing the selection of the senators without respect to county divisions, it was the
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purpose of our constitution, that the senator should reprezent and protect State interests; that he should feel and respect that: popular will, but not fear its hasty impulses ; and that he should be subject to a responsibility which, like the kindly influences of the sun, is too remote to inflame, and yet near enough to vivify and impart creative power. If these purposes be accomplished, the Senate is then, what it was intended to be, a check : if not, . the defect lies, either in the organization of the electoral college, or in the attributes of the Senate : and these we now propose to examine.
In the constitution of such a body as the Electoral college, the great desideratum is the exclusion of all sinister influences, which might seduce the members from their duty to the public. In this as in every other agency, much depends upon a proper sense of accountability on the part of the agent: and this is regulated by the degree of his responsibility, the consequences of disregarding it, and the speediness of their operation. In the case of an elector of the Senate, all these ordinarily concur, in the most favorable form, to promote the faithful discharge of his duties to his imme- diate constituents. He returns, as soon as the election is con- cluded, to the walks of private life : and is brought at once under the full operation of public disapprobation, if he is deemed to have neglected the public interests, or to have prostituted his official powers to the promotion of his own selfish designs. His office has ceased : and with it, all opportunities of employing official influence, to palliate offence, or mitigate the censures of his con- stituents. This responsibility, however, is often partial in its ope- ration. He selects for the whole State : and yet the manner of his election often leads him to conclude, that he is not responsi- ble to any but the people by whom he is elected. Still this is not the result of the constitution, but of his own imperfect sense of duty. The constitution enjoins, and his oath of office requires, that he should select persons " of the most approved wisdom, experience, and virtue :" and hence he is permitted the widest range in his choice. If the duty thus resting upon such high moral sanctions be disregarded, the consequences to him who violates it, are at least as punitive as any which could flow from any other system. Yet at last, the most effective safeguard of official purity, consists in the exclusion of temp-
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tations. Men will not forsake the path of duty, if they can- not thus promote their selfish interests. In the exercise of elec- tive power, the station of the elector should never be the instru- ment by which he may advance himself to office. Here our present system is defective. The elector of the Senate is eligible as se- nator : and in the latter office he may place himself by the mere influence of the former. Thus temptations are held forth to make the obtention of the latter, the design in seeking the former : and when they suggest such a purpose, they tend to lead away the elector from the consideration of his public duties, and to prepare him for any arrangement which will accomplish his own election.
There is, however, one consequence of the election of the Senate by an electoral college, which all must deplore. The wholesome exercise of legislative power is always promoted by the liberty of difference, both in opinion and feeling, amongst the several members of a legislative body. This liberty should exist to such a degree, as to induce a full and impartial investiga- tion of the merits of every question. Collision in sentiment is necessary to elicit this. As with the pool of Bethesda, the troubling of its waters was required to impart to them a heal- ing efficacy : so with legislatures, the agitation of opinion is necessary to the purity and propriety of their measures. There should never be any general or dominant feeling or principle of action, under which they act in blind submission, and without reference to the merits of the question proposed. The consequences of such submission are constantly witnessed, in the operations of our State and national governments : and they cannot be obviated so long as parties exist. Legislatures will become instruments in the hands of a party, for the promo- tion of party purposes. In our State legislature, during the al- ternate ascendency of the two great parties, which formerly di- vided our State and country, we have seen each party, at moments, resting their decisions on questions of right, solely upon the doc- trines of political expediency. In our House of Delegates, the operation of these feelings was always mitigated by the manner of its constitution. The voice of the minority was always heard in it. Its members did not, as those of the Senate, all spring from the same creative power. They came severally from the counties, and each bore the impress of the general feeling of the county he
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represented. In that house the propriety of measures was dis- cussed ; because there was always conflict of sentiment. But not so in the Senate. The party which prevailed in the electoral college, always gave to it its own political character exclusively. The test of qualification was, " will he play the partisan?" The Senate was sometimes made the receptacle of political invalids and broken down politicians, whose influence it was expedient. to revive, or whose partisan services it was convenient to reward. Thus the Senate being entirely of one political complexion, be- came a mere political engine : and party expediency was, from the very manner of its constitution, the guide to its duties. Had the Senate been elected directly by the people, or by electoral col- leges raised for each county or for districts, the same feeling might have governed, but still the minority would have been represented and heard in the midst of it. If, however, the duration of the office of senator had corresponded to that of the delegate, the total want of a representation of the minority in that body would not have been so objectionable. But they were elected for five years. The feeling under which they were elected, might be, and often was, the feeling of the State for but a very short time after their election ; and long before they went out of office, they were the exclusive representatives of a minority. In the expression of the sentiments of the people, in their elections, and in their legisla- tive acts generally, they were sometimes found to a man in direct and wilful opposition to the well ascertained will of a majority of the people of the State. These days have not passed by. Party feeling is again upon us, and party divisions again pervade our State. They have returned, to bring with them in their train the same consequences, or at least a liability to them. The Senate will again be elected under the influence of the dominant party, who will give to it the same exclusive political character, and the same dull and vapid existence ; and it may again become the ex- clusive representative of a minority.
These tendencies might, perhaps, be obviated by an arrange- ment of the Senators into classes, according to the manner in which the Senate of the United States is organized; so that these classes should retire at different periods : and thus par- tial vacancies might be made to occur at least once in every two years, to be filled by a new electoral college. If the Senate,
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could be organized so as to correct these tendencies, one of the principal objections to its right of filling vacancies in its own body would then disappear: but as at present constituted, this power puts the stamp of perpetuity upon its original form and character. By its aid, as the electoral college leaves the Senate, so the people find it at the end of its term. Such is the joint result of the election by the college in the first instance, and of the elections by the Senate to fill vacancies, that not only may not the breath of popular will blow too rudely upon that body, . but it is not even admitted to ventilate it. Under these opera- tions, it may remain like an Egyptian mummy, embalmed in the spirit of the college which gave it birth ; and whilst every thing around it, has changed, has progressed, and has adapted itself to the temper and circumstances of the period, it remains wrapped in its swaddling clothes, rigid in the form impressed upon it at its birth, and retaining all its infant features.
It must be evident, also, that the great hold which the people have upon those, who represent them in the exercise of the elec- tive power, is greatly weakened, if not entirely destroyed, in the election of senators by the Senate. Every form of government is chimerical, and fitted only for the Golden Age and an Utopian commonwealth, which, for the proper exercise of delegated power, reposes implicitly upon the virtue and intelligence of the delegate. He must be checked by proper apprehensions, and impelled by proper hopes : and these can exist only where there is a proper sense of accountability. Yet from the manner of its organization, there is little to impress upon the Senate the con- viction, that the office which they bestow is not their gift, but a public trust. Nor is this manner of appointment redeemed by the tendencies anticipated by the framers of our constitution. It was expected that persons, themselves selected for their high qualifications, were peculiarly fitted for the selection of their fel- lows. Yet, although men may beget like as an involuntary con- sequence, they will not always voluntarily appoint like. They cannot, in general, bear." a rival near the throne :" and much less will they bring a rival near it. In a small body, such as our Senate, its influence will generally be wielded by a few , who may not desire to introduce a new member, to control it by his ta- Jents and virtue : and in the general, each member will be unwil-
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ling to diminish his relative standing and influence by the capa- cities of those whom he may elect. The character of the elec- tions heretofore made by the Senate, has not realized these views : but has rather given additional sanction to this mode of filling vacancies. Yet, although the virtue and intelligence of the Senate have hitherto, in a great measure, counteracted these tendencies, they exist and will yet be felt.
Like every other human institution, the structure of the Senate has, therefore, its defects. Some of them are inseparable from it : and to such it is but fair'to put in contrast, its peculiar merits and advantages. Others might perhaps be removed, by a slight change in the form, not conflicting with its governing principles : and to these, remedies should be applied. But in abandoning this organi- zation for one corresponding to that of the house of delegates, we shall destroy its efficacy as a check, and break down the only barrier against sectional and partial legislation. If change should be resolv- ed upon, the prejudicial results of an uniformity in the organiza- tion of the two houses would be, in some degree, obviated, by elect- ing the senators for districts, composed of two or more counties, so as at least to produce a different combination of sectional interests in the two houses : and would be wholly removed, by making one of the houses a representation of population. The present constitution of the Senate is the only apology for a system of representation, by which a minority of its people have at all times the power to control the government of Maryland. It is due to the present form to remark, that from the adoption of the consti- tution to the present day, our Senate, in the intelligence, experi ; ence, and virtue, which it has embodied, may be proudly contrast- ed with any legislative body of the Union. If by its fruits it is to be judged, it will not fear to come to judgment : and thus recom- mended, it should not be lightly abandoned. In departing from it, there is one safe alternative, in organizing the Assembly so as to make one house the representation of counties, and the other of population. Such an organization rests upon republi- can principles : and its results are manifest in the experience of our sister States. But all else will be vague and dangerous experi- ment. The rule " to try all things, and hold fast to that which is good," will answer better in every thing else than in governments, where the people always pay the cost of the experiment.
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CHAPTER X.
5.
THE POWERS OF THE GENERAL ASSEMBLY.
THE General Assembly of Maryland was instituted for the ex- ercise of legislative power : but as the immediate organ of the public will, it is clothed with various rights, not pertaining to le-, gislation, and in some instances purely executive in their nature. Hence we distinguish its powers into legislative and incidental. In examining its legislative power, we shall consider-(1) The sources and efficacy of its restrictions-(2) The particular restric- tions, under the State government, relative to the nature of this power -- (3) Those protective of constitutional institutions-(4) Those flowing from the declared rights of the citizen-(5) Those relative to the manner of legislation.
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