USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 52
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The sufficiency of the authority by which elections have been conducted, has been frequently drawn into question, by cases in which the judges or clerks of election, although properly ap- pointed, did not qualify in the manner required by law, and by defects in the returns of elections. The doctrine of the present day is, that mere omissions or informalities of this kind will not · invalidate the election : and that the people shall not be disfran- chised, by the neglect of those who are competent to hold the elections. A contrary doctrine would certainly open the door to the grossest frauds, in warmly contested elections : as it would enable those who hold them, by the wilful disregard of their duties, to annul such elections at their pleasure. Defects in re- turns, especially, should, at all times, be open to amendment according to the fact.
Chap. XI.] EACH HOUSE OF ASSEMBLY. 513
In deciding upon the sufficiency of the vote, doubts often arise, as to the residence of the voter, and the designation by the ballot of the purpose of the vote and the person voted for. When such cases occur, they sometimes give rise to further difficulties in determining the proof admissible and sufficient in them-the admissibility of parol evidence, to prove what the ballot was, or to help out an insufficient designation of its pur- pose-and the power to compel the voter to testify for whom he did vote, or, in the absence of his testimony, to introduce se- condary evidence.
The ballot, agreeably to the requisitions of the act of 1805, must have written, or printed thercon, the name of the person voted for; and it must plainly designate the purpose. Some- times the ballot does not exactly apply to the person for whom it was intended; sometimes it is ambiguous, and will apply to two or more persons of the same name; and sometimes it appears to apply exclusively to another. In all such cases, without re- quiring that precise description which is requisite in a declara- tion or an indictment, the object should be, to discover the in- tent of the voter, and to effectuate it wherever it can be ascer- tained with reasonable certainty. It is difficult to lay down any general rules upon this subject. They must often be framed pro re nata; and circumstances, which have but little weight in themselves, are often rendered powerful by combination with others. Where the vote can apply only to one eligible person, or only one known as a candidate, there is a reasonable certainty that it was intended for such person. Such was the doctrine of the House of Delegates, in the case of Dashiell, at December session, 1823; and in that of M'Neill, at December session, 1829. As to the purpose of the ballot, the act requires simply, that it shall be plainly designated. The usual mode of designation is by a written or printed heading, setting forth the object; but the act does not ap- pear to render this the exclusive mode. In the case of Travilla, before the House of Delegates, at December session, 1829, it appeared that there were several ballots, which had the head- ing, "For Congress," and immediately beneath it the name of a gentleman who was a candidate for Congress: and below his name, the names of Travilla and others, separated only by a line. The persons, whose names appeared below this line, were can- 65
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didates for the Assembly when the ballot was given : and t! ~ House of Delegates held, that this fact, taken in connexion with: the fact that they were not candidates for Congress, made the line a sufficient identification of the purpose. There were but two elections then held : viz., for members of Congress, and members of Assembly. The vote was given with reference to one of these clections. The separation by the line from the name of the per- - son voted for as a candidate for Congress, and the fact that they were not candidates for Congress, but were for the Assembly, were held sufficient to establish, with reasonable certainty, that the vote was given to them for the latter purpose. Where there are no such explanatory circumstances, and more persons are named for any one office than the party had a right to vote for, the ballot as to this is void.
The residence required, is not a continued, uninterrupted resi- dence in fact. A mere temporary absence from the State of county, or a sojourn elsewhere, will not deprive the party of his vote. Residence cannot be thus lost. If there be the intention to return, clearly manifested : and it appears, that there was ho design to change the residence in going out of the state or county, the person remains, in contemplation of law, a resi- dent, notwithstanding his absence or sojourn elsewhere .- Whilst this intention continues, no length of absence will work a loss of residence: and in ascertaining it, the judges of election may, and do examine, on oath or affirmation, the voter himself; and may also call in aid, his conduct and declarations at the time of going out of the state or county, as furnishing the best illustra- tions of his intention at that time. (2)
The right to require the voter himself, in contested elections, to disclose his ballot, and the propriety of receiving his testimo- ny, or that of any other person, for that purpose, were much discussed in the case of the Calvert election, at December session, 1819, and of the Annapolis election, at December session, 1828: in each of which cases they were contended for, as necessary to purge the polls. In the first mentioned case, it was solemnly decided by the House of Delegates, that it had the power to coerce any person, who voted at an election, and was proved not
(2) Sce 2d Harris and Johnson, 388 and 395. 5th IIarr. and Johnson, 97.
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to be a qualified and legal voter, to give evidence as to the per- sons for whom he had voted; and after the adoption of an order, predicated upon the testimony taken before the committee of elections, and declaring certain persons therein named to be illegal voters, they were called to the bar of the House, and required to give such evidence. To this they objected, but the House overruled the objections, and some of them were ac- cordingly examined. Others persisted in their refusal, and formally protested against the right of the House to compel their answer; and upon such refusal and protest, no attempt was made to coerce them ; but an order was adopted, setting forth their refusal, and admitting evidence of their declarations as to the manner in which they had voted. It cannot be doubted that this proceeding, so far as it asserts the right of the House to compel the illegal voter to give such testimony, was wholly illegal and arbitrary. He is subject to a penalty, and he is expressly exempted, both by the rules of the common law, and the 20th article of the Declaration of Rights, not only from answering any question which might criminate him, but also any which might tend to criminate him, or of which the answer might furnish a link in the chain of testimony against him. To the admissibility of his declarations for the pur- pose of proving for whom he voted, there is less objection. They would be evidence against him if prosecuted for illegal voting; and; if it be proper at all; to enter into such in- quiries for the purpose of purging the polls, there is scarcely any other mode in which the House could arrive at the facts. The testimony of some person, who saw the ballot when it was deposited in the box, can rarely, if ever, be obtained. Yet at last, it may well be questioned, whether such modes of scrutiny do not open the door to fraud and perjury. If a person is once established to be an illegal voter, the proof of the manner in which he did vote, can rarely consist of any thing but his testi- mony or his declarations; and thus it is placed in the power of him, who has once acted fraudulently in giving an illegal vote, to double his fraud by representing the vote as different from what it actually was. He might do this with impunity; for if there be perjury in such a case, it is scarcely possible to detect it. In the Annapolis case, above referred to, it was the received opinion o
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the House, that neither the testimony, nor the declarations of the voter, were admissible for this purpose.
In all contested elections, however, the Houses of Assembly prescribe their own rules of decision : yet their discretion in the application of these, must be a wise and sound discretion, which sustains and gives efficacy, as far as possible, to the purity of the elective franchise. They are not fettered by the decisions of antecedent Assemblies : yet such decisions, if well settled, are en- titled to respect, and should not be lightly departed from. There are, however, but very few precedents on the journals, which can be adopted as safe guides. Contested elections always occur in times of party excitement; and these contests rarely take place, except in cases where the whole power of the State for the coming year, hangs upon their decision. The prize is then too great to be lost without a struggle; and parties, to secure to themselves the government of the State, will not boggle about the sacrifice of justice to expediency. They generally do not strain at the gnat, and will swallow the camel if it is neces- sary. They will do collectively, what individually they would consider unjust in the extreme. These are the necessary con- sequences of party excitement; and they are strikingly illustrated, in some of the cases which have occurred in the House of Delegates. The principal cases of contested elections, which have arisen since the passage of the act of 1805, are, the Allegany case, at December session, 1813, which has been called " the Allegany fraud," and the Calvert case, above alluded to, in 1819. In the first case, the vote of an entire district in Alle- gany county was rejected, because the presiding judge of elec- tion for that district was qualified by another judge, instead of being qualified by a justice of the peace, or one of the clerks of election. The rejection of this vote was necessary, to ensure the election of the federal members, and thereby the election of the governor; and therefore the strict construction of the act of 1805, as to qualification, was contended for and sustained by the decision of the House. This decision has since been virtually overruled in the case of the Queen Anne's election, at Decem- ber session, 1828, where the votes of a district, which had been rejected by the returning judges, because the clerks of elec- tion had been qualified by a justice of the peace, and not by a
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judge of election, as the law then required, were received and declared legal by the House of Delegates; and the members, who would have been excluded by their rejection, were accord- ingly admitted to their seats. The principal decision in the Calvert case, has already been adverted to ; but there were some incidental decisions of the House in that case, as to the right to impeach the credibility of witnesses, which are truly extraordinary. These cases have not passed, and are not likely to pass, into precedents: but they teach us forcibly the influence of partisan feelings upon the most honorable minds, in leading whole par- ties, composed of men of integrity and intelligence, to conclu-' sions directly opposite, upon questions of right.
In the Senate, very few difficulties arise in the exercise of this power. The Senate is not permitted to scrutinize the organiza- tion of the electoral college. That body is the sole judge of the elections and qualifications of its own members; and the Senate is limited in its inquiries, to the regularity of the proceedings of the college, and the qualifications of those returned as senators elect. In both houses, the power to inquire into the elections and qualifications of their members, would carry with it, as its incidents, all other powers necessary to its exercise : but, in ad- dition to these, the House of Delegates is clothed, by the 11th article of the Constitution, with the express power to call for all public or official papers, and to send for all persons whom they may judge necessary, in the course of their inquiries relative to public affairs.
The power to adjourn, and the exceptions to that power, rest upon the same reasons, and are in perfect accordance with each other and with the nature of the two houses. Each house should be independent of the other, and of the executive: and hence the exclusive power of cach, and the general denial to the Exe- cutive of the power to adjourn, prorogue, or dissolve them. Sud- den emergencies, not forescen by the legislature at the time of its adjournment, may require its prompt action : and hence the power to the Governor and Council, to convene it at an earlier day than that to which it stands adjourned. In the exercise of their several powers of adjournment, the two houses may differ. Each may wish to prescribe the time; and cach may be unwil- ling to recede from the ground it has taken. Hence the media-
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torial power of the Governor, to convene both houses, on either of the days to which the two houses may severally adjourn, or on any intermediate day.
(2). The obtention of information.
Each house of Assembly may require the opinion and advice of the Attorney General of the State, on any matter or subject depending before them; or may call for, and require to be laid before them, the proceedings of the Executive Council. (3) The want of such information is occasional, and these powers are given to meet and supply it. Of the proceedings of the princi- pal State officers, the legislature is informed, by returns made by those officers at stated periods, which render the grant of a power to call for them unnecessary. In some cases these re- turns are made to the General Assembly, in others only to one branch of it. The duty of the several officers in preparing and transmitting them, will appear hereafter. Besides the common powers above specified, the House of Delegates has certain pe- culiar powers of this description, which will be considered here- after. .
(3) Their right of self-protection.
The right to protect itself and its members in the discharge of their official duties, and to repress all acts of disorder or insult which interrupt or hinder their proceedings, is necessary, to the independent existence, and efficient action of every legislature. Hence, where the powers requisite for this purpose are not ex- pressly granted, they are held to result by necessary implication from the delegation of legislative power, upon the principle, that where a grant is made, it carries with it as inherent every thing necessary to its enjoyment. The power of self-protection, en- ters into the very existence of a legislature, and is consider- ed so essential, that most constitutions have deemed it incx- pedient to define the cases to which it extends, and have preferred to rest it upon an implied right of punishing con- tempts, which will expand itself to every case of that character, however new in instance. Even the Constitution of the United States, relating to a government of express grant, has not ex- pressly granted this power, so far as it extends to persons not
(3) Const. art. 26th, and Act of 1821, chap. 126
Chap. XI.]
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members; but has left it dependent, both for its existence and extent, upon necessary implication. Our State Constitution has ordered it otherwise. It has not followed the doctrine of other governments, that the law of privilege should be concealed in the breast of the legislature, undefined, unknown, and appearing, only when its existence is called for, to define the offence and punish the offender by one and the same act. We proceed to consider the right of self-protection granted by it to each house of Assembly, with reference to its own members or to third per- sons.
Offences against either house of Assembly, committed by any of its members in the house and during its session, are not parti- cularly defined by the Constitution; nor is there any peculiar power to punish these expressly given, except that of the House of Delegates to expel its members, which will be consi- dered hereafter. There is, indeed, a general authority given to each house, by the 12th article of the Constitution, to punish by imprisonment, any person who shall be guilty of a contempt in their view. Each house is also empowered, by the 24th article, to prescribe its own rules of proceeding ; and it has, therefore, the right to regulate the demeanor of its members, and to punish every departure from the decorum which its rules prescribe. Hence the rules adopted by each house for its government, contain a variety of regulations, prescribing, in the most defi- nite terms, the conduct and demeanor of its members, and car- rying with them the express power to restrain or punish, by censure or fine, all misdemeanors which shall be committed in such house; and they confer also upon the Speaker or President, the general power to call to order. As to the offences consist- ing in acts done without the house, which are defined by the 12th article, the prohibition and the power of punishment appear to extend, as well to members, as to others. The privileges of the house are as much invaded by such acts, when committed by its members, as if done by other persons ; and the consequences are the same. In such cases, the rules of the house cease to operate, and it is therefore remitted to its general power, in the punishment of such contempts by its members, not committed in its view, nor whilst in the discharge of their official duties. Where acts are done by a member out of the house, and not in
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his official capacity; nor falling within the prohibitions sborr mentioned, the house has no more control over him than oset persons not members.
Having seen, that the members of each house are subject to its rules, and also to the general prohibitions of the 12th article, it will be proper to consider these prohibitions, before we in- quire into their power to punish either members or third persons, . for any act not falling within them. Offences of third persons, which are specified by the 12th article, as breaches of privilege, or contempts of either house, consist-in contempts in the view of such house, by any disorderly or riotous behaviour, or by threats to or abuse of its members, or by any obstruction of its proceedings -- and in breaches of privilege, by arrests of or assaults upon mem- bers, assaults upon or obstructions of officers in service of process, assaults or obstructions of witnesses or other persons in attendance upon such house, or on their way to or from it, or rescues of per- sons committed by it. Such being the offences, they are pun- ishable by imprisonment alone; and that imprisonment will rn- dure only during the session of the legislature. "The existence of the power that imprisons, (says the Supreme Court of the United States,) is indispensable to its continuance ; and although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjournment or periodical dissolution. It follows that imprisonment must terminate with that adjournment." (4)
The implied power to punish for contempts and breaches of privilege, extends beyond these enumerated cases. That of the two houses of Congress, which is an implied power, has been held to extend to all attempts to corrupt the integrity of their members, to challenges given to a member, and to li- bels or slanderous imputations upon such houses. (5) What- ever may be the extent of the implied power, such implication always gives way to an express grant, upon the well known
(4) Anderson vs. Dunn, 6th Wheaton.
(5) See the cases of Randall & Whitney, in 1795 ; the case of another (whose name is not recollected,) in 1796, for giving a challenge; Duane's case in 1800; and the celebrated case of John Anderson, in January, 18IS. The Congressional proceedings in connection with the last mentioned caso may be seen in the 13th vol. of Niles' Register.
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maxim, "expressio unius est exclusio alterius." Had the State constitution been silent about this power, it would have been im- plied, as under the Constitution of the United States, and to an ex- tent limited only by its proper objects. But it has undertaken to define the power, to describe the cases to which it shall extend, and to prescribe the punishment; and it is therefore the inference of law as well as of reason, that when it defined the cases to which it should extend, it virtually declared that it should extend to no other. If the general power was intended to be conferred, it was perfectly absurd to grant it expressly, in these cases of the most obvious kind, and about which there was no difficulty. The 12th article, in affirming the power of the two houses, as to contempts and breaches of privilege, in particular cases, must therefore be considered as negative and exclusive of their power in all other cases.
There are but three or four instances of proceedings for con- tempts or breaches of privilege, upon the journals of the House of Delegates : and there is scarcely one which will bear the test of this conclusion, or appears to have been warranted by their constitutional power. The case of Hindman, which occurred in 1780, and that of O'Neale, in 1794, were cases of members .- The case of Swailes was one of expulsion, which will be consi- dered when we treat of that peculiar power of the House of Delegates. Hindman was a delegate from Talbot, who was charged with having spoken very disrespectfully of the Speaker of the house and certain members, because of their vote against a particular proposition. The words were spoken out of the house, and upon the question being put as to the power of the house to take cognizance of them, it was affirmed by an immense majority. Upon consideration of his case, the house directed that he should be reprimanded, and required him to ask the pardon of the house, the Speaker, and the parti cular members reflected upon. He did accordingly ask the pardon of the house and the Speaker, but refused to ask it of the particular members, and. denied the right of the house to require this, in a protest of remarkable force and perspicuity. His objection was not sustained; and he was accordingly com- mitted to and remained in the custody of the Sergeant-at-arms 66
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for several days. O'Neale was a delegate from Montgomery county, in 1794; when a petition was presented to the house, by , a citizen of Prince George's county, praying for a law to au- thorize the issuing of a patent on a survey of lands in that coun- ty, because of the loss of the original record of the patent .-- Having thus obtained a knowledge of this loss, O'Neale applied to the land office for a warrant of proclamation to affect these lands : and for this act a motion for his expulsion was submitted to the house. He was defended by the distinguished William Pink- ney, through whose exertions the motion was rejected; but an order of disapprobation was adopted, by an almost unanimous voie.
Both of these cases were clearly without the rules of the house, and the provisions of the 12th section : and it would be difficult to sustain powers of this kind, without converting the house into a mere court of honor, to protect the character of its members against out-of-door conversation, or a censorship over their pri- vate character and their private and unofficial acts. The pro- ceedings in cases of contempt, are arbitrary in their nature, and should not be extended beyond the actual necessity for the pow- er. They dispense with the ordinary safeguards of a grand and petit jury in criminal cases; and they define the offence and punish the offender by the same act. Our Constitution was jea- lous of the exercise of such a power; and in affirming it, as to cases of contempt in view of the house, and the more flagrant " breaches of privilege, which are of such a nature as to require a speedy interposition, it intended to remit all other cases to the courts, as the best and safest tribunals for the investigation of the offence, and the infliction of the punishment.
The peculiar powers of the two Houses.
The powers which fall under this head are not only exclusive in their exercise, but also peculiar in their kind to one of the houses of Assembly. Of this description of powers, the only one of importance belonging to the Senate, is that of filling vacancies in its own body, which has already been considered. The ex- clusive and peculiar powers of the House of Delegates relate to, (1) Money bills-(2) The expulsion of its members-(3) Iis ca- pacities as the Grand Inquest of the State-(4) Its control over
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