USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 51
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(17) See 2d Cranch, 276, and 7th Johnson's N. Y. Reports, 492, 494, 498, and 508.
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502
THE POWER OF THE
[Hist. View.
dertake to define judicial power generally, but simply declared, that the particular exercise of power under their consideration, was judicial in its nature. Yet from that particular instance, we may collect this general principle of such extensive application. The Act in question in that case was an Act of divorce, by one section of which the husband was required to pay over a certain annual amount for the support of his wife. Upon a full examina -. tion of the power to divorce as ever exercised in this State, it was determined by the court, that it was here a legislative power, but did not draw after it, as its necessary incident, the right to allow alimony : and that the suit for alimony in this State, as in Great Bri- tain, was a distinct remedy from the proceedings for divorce, had been so considered before the Revolution, and was now expressly recognized as such by the Act of 1777, investing the Chancellor with jurisdiction over such suits. "We cannot bring ourselves to doubt (say they in conclusion,) that if Mrs. ME. had obtained simply an act of divorce, she might have recovered, having merits, a main- tenance suitable to her condition in life, and to quadrate with the situation of her husband, by a bill in Chancery, or an application to the Equity side of Kent County Court. If she could have been thus redressed by an exercise of judicial, authority, we would ask, is it not fair to conclude that the redress granted to her by the legislature is an exercise of judicial authority ?" (18) Yet this principle must be confined to the administration of remedial power by the legislature itself: and cannot apply to Acts, which merely transfer that power from one tribunal to another, or dele- gate it for a particular case to a special tribunal : or which rein- state a judicial proceeding, or restore a remedy through the Courts after it has been lost. Such Acts as the latter, are only exercises of its unquestionable power to prescribe and modify civil reme- dies, and are essentially distinct from those by which the legisla- ture itself undertakes to administer them. (19)
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(18) See 1st Gill and Johns. 475.
(19) Sce the cases of Garretson es. Cole, 1 Harr. and Johns. 391, and Gover vs. Hall, 3d Harr. and Johns. 49. Yet the latter exhibits a strong case of legislative interference, which can scarcely be sustained even upon the doctrines of the text, although it was acted upon by the Court of Appeals. It was a case from Chancery, in which the original decree of the Chancellor
. was reversed by the General Court, and the case remanded under its decree.
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Chap. X.]
GENERAL ASSEMBLY. 503
(3) The restrictions protective of constitutional institutions.
It is unnecessary, in this place, to enumerate the several offices established by our constitution, or for which it has provided a manner of appointment, or prescribed powers and duties. This belongs more properly to the history of the origin and nature of these offices, from our several examination of which it will ap- pear, in what instances, and to what extent, they are Constitutional Institutions. For our present purposes, it is only necessary to illus- trate the extent, to which such institutions generally are protected by the constitution from the ordinary legislation of the Assembly.
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· All State offices, which are not established or recognized by the constitution, but have been introduced upon common law principles and as common law institutions, or established by acts of Assembly, and rest upon the latter for their existence and powers, are wholly under the control of the Assembly, and may be abolished or modified at pleasure by its ordinary acts. It is also competent to the Assembly in creating a new office unknown to the constitution, to give it any form, or prescribe any mode of appointing to it, which does not interfere with the express consti- tutional powers of other officers. If the constitution simply es- tablishes an office, and does not determine its tenure or powers and duties, nor designate the manner in which its incumbents are to be appointed; the office cannot be abolished except by an amendment of the constitution, but in all other respects, it is sub- ject to the operation of mere laws. If the constitution has not only established or recognized the office, but has also determined its tenure, or designated the manner in which the officer to fill
In Chancery, a new decree was then made, conforming to that of the General Court, from which appeal was again prayed, and the cause re- moved to the Court of Appeals : and whilst there pending, for reasons which it is not necessary to detail, an act of Assembly was passed, by which the Court of Appeals was directed to take up the case de novo, and to decree as if no decree in the case had ever been made by the General Court. The result of the case was, that the original decree of the Chancellor, which had been reversed by the General Court, was affirmed by the Court of Appeals : but the report does not show whether this was an exercise of power under the act of Assembly, or one to which the Court of Appeals considered them- selves competent without any such act. The Act in question, was in effect the reversal of a judicial decision : and as such, savors strongly of judicial power. Sec, however, the remarks of Spencer, J. in 7th Johns. N. Y. Re- ports, 491.
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504
THE POWER OF THE
[Hist. View.
it shall be appointed, either naming it particularly, or embracing it under general terms, applicable to it as an existing office at ti .~ time the constitution was established, the tenure and manner of appointment are constitutionally protected, as well as the office itself. But to all offices, the Assembly may, by ordinary acts, attach new powers and duties, provided they conform to the nature of such offices, as judicial, legislative, or executive, and do not conflict with their constitutional obligations. These general principles, which are collected from the past and most approved constructions of our constitution, will readily determine, in any case, the extent of this class of restrictions upon the powers of the General Assembly. (20)
(4) The restrictions flowing from the declared rights of the citi- zen.
Our Constitution and Bill of Rights, alike those of the sister States, embody many political truths, which ought to be received
(20) 1st H. and Johns. 249 ; 5th H. and J. 304 ; Opinion of Luther Martin, (when Attorney General) to the Governor and Council, in Council Chamber Records of January and April, 1819. See also the Opinion of Lord Chief Jus- tice Willes, in which he maintains that notwithstanding the charter power of the proprietary to appoint all officers of the province, it was competent to the Assembly, in creating a new office, to vest the appointment elsewhere. (Journal of House of Delegates of 23d March, 1760, and supra 310.) This general proprietary power, is analogous to that of the Governor and Council, under the 48th art. of the Constitution, to appoint all civil officers of the go- vernment : and the references above given, and particularly the opinion of C. J. Willes, fully sustain the position of the text, that such general ap- pointing powers do not exclude the Assembly, in creating a new office, from prescribing a new mode of appointment. It seems, therefore, that the seve- ral acts of Assembly, establishing Boards of county Commissioners, in lieu of the Levy Courts, and giving to the people of the counties in which they are established, the right of electing them, do not infringe the constitutional powers of the Governor and Council.
It will be seen hereafter, that a similar construction has been given to the 37th article of the Const., excluding delegates, &c. from holding other offices of profit : which rests for its sanctions upon the high authority of Mr. Pinkney and Mr. Martin. If it be admitted that general restrictions intended to secure the purity of office, do not apply to new and local offices, as not being with .: the contemplation of the constitution: it is much more manifest, that the gene- ral appointing power of the constitution does not necessarily attach to then, so as to exclude any other mode of appointment provided for them by the legis- Jature at the time of their creation.
Chap. X.]
GENERAL ASSEMBLY. 505
as maxims in all republican governments, but are not sufficiently definite to be regarded as imperative restrictions. Such general doctrines are not without utility. They illustrate the powers of government by its nature and ends : and present these constant- ly to the view of men in authority. But many of them are too indefinite to answer the purposes of standards, by which the con- stitutionality of acts can be tested. Culling from them such as will answer this purpose, and classifying them according to their objects, they will be found to relate, principally, to the purity of criminal prosecutions-the protection of the rights of con- science-the just distribution of taxation-the subordination of the military-and the liberty of opinion.
In all ages, prosecution for alleged crimes has been the great engine of tyranny. Arbitrary power always seeks to cloak its vengeance under the mantle of justice, and to make the dispen sations of the law, the ministers of its own ambitious or malignant purposes. As in this mode the liberties of the subject are most easily approached, and are here most open to attack, it should be the first aim of every government, to give certainty to the character of criminal offences, and to surround the proceedings in criminal cases with every possible security for the protection of the innocent. Offences should be well defined : punishments should be as lenient as is consistent with their proper object, the welfare of society, and proportioned by law, as far as practi- cable, to the enormity of the offence : the tribunals to ascertain the existence of crimes should be above all influences, except the authority of the law, and the dictates of their own judgments : and the alleged offender should be clothed with every power and privilege, which might be necessary, in any event, to the vindi- cation of innocence. When the criminal code of any country wears this character, the chief dangers to civil liberty are remov- ed; and arbitrary power, if it would reach it, can approach only in its naked deformity. Hence the anxious care of our'form of go- vernment, in reference to criminal prosecutions. It expressly denies to the Assembly the power to pass any ex post facto laws in criminal cases; of which nature are all laws operating upon acts committed before their passage, either so as to render them criminal although innocent at the time of their commission, or to increase the degree or change the nature of their punish-
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506
THE POWERS OF THE
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ment, if originally criminal. It prohibits all Acts, which would attaint particular persons of treason or felony, or forfeit any part of the estate of any person for any crime except murder or trea- son against the State. All general warrants to search suspected places, or to apprehend suspected persons, without particularly naming or describing the place or person, it pronounces illegal ; and all warrants, without oath or affirmation, to search suspect- ed places, or to seize any person or property, it denounces as grievous and oppressive; and therefore it prohibits the passage of any Acts, which would authorise them. It expressly declares the constitutional right of the citizen, in every criminal prosecu- tion, to be informed of the accusation against him, to have a copy of the indictment or charge in due time (if required) to prepare for his defence, to be allowed counsel, to be confronted with the witnesses against him, to have process for his own wit- nesses, to examine the witnesses for or against him on oath or affirmation, to have a speedy trial by an impartial jury, and not to be convicted without their unanimous consent. Any Acts which violate these well defined privileges, are unconstitutional and void. (21)
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The right to worship God according to the dictates of con- science, is the natural right of every human being, which God himself has sanctioned, and human laws cannot justly impair. Hence, our Bill of Rights expressly prohibits the passage of any law, which would molest the person or estate of the citizen, on account of his religious persuasion, or profession, or practice ; unless, under color of religion, he disturbs the peace, good order or safety of the State, or infringes the laws of morality, or injures others in their natural, civil, or religious rights : yet even in such cases as the latter, the power of the Assembly is restricted to the suppression of such abuses. It also denies to the Assembly the power to compel any person to frequent, or maintain, or con- tribute to maintain, unless on contract, any places of worship, or any ministry. (22)
(21) Bill of Rights, articles 15th, 16th, and 19th, as amended by the act of 1817, chap. 61, 23d, and 24th. Although the constitutional power to for- feit the property of the offender, in cases of murder and treason, still exists, yet all forfeitures are taken away by the act of 1809, chap. 138, sect. 10.
(22) Bill of Rights, article 33d, as amended by the acts of 1809, chap. 167, and 1810, chapter 24. Before the amendment of 1810, the Gene-
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Chap. X.]
GENERAL ASSEMBLY, 507
The distribution of the burdens of government, in proportion to its benefits, is one of the most obvious dictates of justice ; yet it is difficult to lay down any general rules, by which this pro- portion can always be estimated and preserved, in the imposition of taxes. To arrive at it as nearly as possible, our Bill of Rights expressly prohibits the imposition of any poll tax, and adopts as the general principle of State taxation, the doctrine "that every person ought to contribute to the public taxes, for the support of government, according to his actual worth in real or personal property within the State." Although the latter rule is not sufficiently definite to guard against oppressive distinctions, resulting from a system of taxation purporting to be based upon it: yet it cannot be doubted, that any system, which expressly adopts any other rule of taxation, is unconstitutional and void. (23)
In every government, the subjection of the military to the civil power, is one of the greatest securities of the citizen. The rule " inter arma silent leges," can apply only to cases of extreme exigency ; and in all other cases, the laws themselves should never sanction a violation of private rights, or a departure from the or- dinary forms of judicial proceedings. Our Bill of Rights has , therefore, not only affirmed the general doctrine, that the military should always be retained in strict subjection to the civil power; but it also expressly prohibits all laws, which would subject to martial law, any but those in the regular service of the State, or militia men when in actual service, or which would authorise the quartering of any soldier, in time of peace, in any house without the consent of the owner. (24)
The privilege of discussing freely, and resisting by remon- strance, all public measures, is an essential right of the citizen under every free government. Our Bill of Rights, therefore,
ral Assembly had the power of imposing a general and equal tax for the support of the Christian Religion, reserving the right to every individual of appointing the payment of any such tax collected from him, to the support of any particular place of worship or minister, or for the benefit of the poor of his own denomination, or of the poor in general of any particular county : but this power is wholly taken away by that amendment.
(23) Bill of Rights, art. 13th.
(24) Bill of Rights, art. 27th, 28th, and 29th.
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508
THE POWERS OF THE
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declares "that the liberty of the press ought to be inviolably preserved :" and guarantees to every citizen, the right of petition- ing the legislature for the redress of grievances in a peaceable and orderly manner. (25)
(5) Those relative to the enactment and publication of laws.
The manner of originating and passing bills or resolutions, in each House of Assembly, is determined by its rules; which . have full control over all that relates to the mere forms of pro- ceeding. The Constitution only prescribes the enacting style of laws, and directs the manner in which they shall be authenticated, published, and recorded. All bills passed by the General As- sembly, when engrossed, shall be presented by the Speaker of the House of Delegates, in the Senate chamber, to the Governor, who shall sign the same, and affix thereto the great scal of the State. They are then recorded, and certified to the counties. The original place of record was the General Court office, from which it was transferred, upon the abolition of that court in 1805, to the office of the Court of Appeals for the Western Shore. (26)
(25) Bill of Rights, art. 11th and 38th.
(26) For the speedy and general circulation of the acts, resolutions, and journals of each Assembly, our laws have made the fullest provision. As soon as they are recorded and published, one copy of the acts and resolutions is certified under the great seal of the State, to every county, agreeably to the requisitions of the 60th Article of the Constitution, and the Act of 1715, chapter 25 : and the copies thus authenticated, are there- fore evidence of all laws, whether private or public. One copy of the laws, and the votes and proceedings of each House,, are also annually printed for, and transmitted to, the governor, each member of the executive coun- cil, each judge of the courts, the attorney general, register in chancery, each treasurer, each register of wills, each sheriff, the commissioners of the tax and trustees of the poor for each county, and the directors of the penitentiary ; one copy of the votes and proceedings to the clerk of the Court of Appeals ; and one copy of the laws, and four of the votes and proceedings, to the clerk's office of every county-1790, chap. 51); 1825, chap. 78 ; Resolution 74th of 1827 ; 12th of December session, 1828 ; and 62d of December session, 1829.
The manner of printing them is prescribed by the 64th Resolution of No- vember session, 1811 ; and the printing is now generally done under contract with the Legislature, upon proposals. Until 1812, the printing was done by a salary officer, who was called the printer to the State, and whose salary was regulated every year by the annual Act for the payment of the civil list;
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GENERAL ASSEMBLY.
Chap. X.]
The incidental powers of the General Assembly.
These are powers of appointment and removal, the nature and objects of which will be particularly examined, in connexion with the history of the several offices to which they relate. It will therefore be sufficient, in this place, to denote these offices :
The General Assembly elects, annually, the Governor and Executive Council of Maryland. (27)
It has the power of appointing the Senators to represent this State in the Senate of the United States; but where vacancies occur during its recess, they may be filled, until its assemblage, by the appointment of the governor and council. (28)
It has, virtually, the power of appointing all Registers of Wills, by its right of recommending imperatively to the governor and council, the person to be commissioned: but the latter have the same power of filling vacancies in the recess, as in the preceding instance. (29)
It has also the power of appointing Bank Directors to represent the stock of the State in several of the State Banks. (30)
It may demand the removal of the Attorney General of the State, or of any Judge of any of the county courts; but in cases of the latter kind, the address of the Assembly to the governor, requiring the removal, must be adopted by the votes of two-thirds of all the members of each house. (31)
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The time and place of meeting of the General Assembly.
The regular sessions of the General Assembly are annual, and commence on the last Monday of December in every year. The
but since that period it has been done by contract at each session, sometimes. made by committees of the Legislature, and sometimes by the executive, under the authority of an act or resolution. See Chandler vs. The State, 5 Harris and Johnson, 284.
(27) Sec 2d volume, chapter, " of the Governor and Council of Maryland."
(28) Constitution of U. S. art. 1st, supra 3d, and 2d volume, chapter, " of the adoption and obligations of the Federal Government."
(29) Sec 2d volume, chapter, " of the office of Register of Wills."
(30) See 2d volume, chapter, " of the Treasury of the State."
(31) See 2d volume, chapters, " of the office of .Ittorney General," and " of the County Courts."
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610
THE POWERS, &c.
[Hht. Visw.
time of assemblage was originally, the first Monday of Nove :... ber : but in 1812 it was changed to the first Monday of December; and in 1824 to the last Monday of December. (32)
It may also be convened by the Governor, with the advice of his council, at any period, upon giving not less than ten days notice; and where the two houses have adjourned to different days, the Governor may convene the Assembly on either of these . days, or any intermediate day. (33)
'The sessions of Assembly are held at the city of Annapolis, which has remained the seat of the State Government, without any constitutional security for its continuance as such, ever since the adoption of the State Constitution.
(32) Constitution, art. 23d, as amended at first by the acts of 1811, chapter 211, and 1812, chapter 129, and afterwards by the acts of 1823, chapter 111, and 1824, chapter 73.
(33) Constitution, Art. 29. .
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CHAPTER XI.
THE SEVERAL POWERS OF EACH HOUSE OF ASSEMBLY.
OF the powers and privileges severally possessed by the Sen- ate and the House of Delegates, there are some, which are com- mon in their kind to both, and only several and exclusive in their exercise: and others, which are peculiar to one or the other both in kind and exercise. Those, which are in their kind common to both houses, relate to-(1) Their several organiza- tion -- (2) The obtention of information for the discharge of their official duties-(3) Their right of self-protection.
(1) The powers relative to their several organization.
Each house has the exclusive right to judge of the elections and qualifications of its own members. Each house shall ap- point its own officers, and settle its own rules of proceeding. Each house shall choose its presiding officer ; who, in the House of Delegates shall be styled "the Speaker," and in' the Senate " the President." In each house, a majority of its members, and its presiding officer, are necessary to make a quorum for any act except that of adjourning. Each house may adjourn itself: but if the two houses adjourn to different days, the governor shall appoint and notify one of those days, or some intermediate day, as the day of meeting : or he may, by the advice of his council, convene the Assembly at any time before the time to which it has been adjourned, upon giving not less than ten days notice : "but he cannot prorogue or dissolve it under any other circumstan- ces. Each house may propose to, and receive from the other, bills, resolutions, and other legislative acts : and may assent, dissent, or proposc amendments, except as to money bills, which can neither originate in nor be amended by the Senate. (1)
(1) Const. arts. 8th, 9th, 10th, 20th, 21st, 22d, 24th, and 29th.
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512
THE SEVERAL POWERS OF
(Hist. Viw.
The propriety of the regulations, relative to the appoint- ment of their officers, the transaction of their business, and the determination of their respective rules of proceeding, is too ob. i- ous to require comment. The power of each house to judge of the elections and qualifications of its respective members, is vested in them of necessity. It must exist somewhere. With- out it, it would be useless to create qualifications, and prescribe rules of proceeding. in the election of Senators and Delegates: and it could not be vested in the legislature collectively, as it would then conflict with the separate and independent existence of the two houses; and would impair their efficacy as mutual checks, by enabling either to control or affect the organization of the other. In determining upon the qualifications of their mem- bers, the houses of Assembly can have but little difficulty. These are so fully and clearly defined, that he who runs may read and apply them. Questions as to the proper conduct of elections, are more embarrassing. The manner of proceeding is, it is true, as well defined as the qualifications : but the difficulties as to the former, consist in determining with what strictness its regulations must be adhered to, and when the non-observance of them will vitiate the election. The competency of the voter, and the authority of the persons holding the elections and receiving the votes, are essential to the validity of the vote. This, as a gen- eral proposition, is undeniable : yet doubts often arise from its particular application.
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