USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 53
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Chap. XI.]
EACH HOUSE OF ASSEMBLY. 523
the revenue of the State -- (5) Its means of information as to pub- lic or official proceedings.
(1) Money Bills.
The House of Delegates has the peculiar and exclusive power of originating and amending money bills. This privilege is so familiar to us from its incorporation with our own, and with all the forms of goverment around, that we are apt to look upon it as inherent in the very nature of our institutions ; yet, upon closer examination, it will be found that it does not bear so na- tural and necessary a relation to them ; and that it has been de- rived from a constitution, which gave it for reasons not applica- ble to our legislature. The exclusive power of the British House of Commons as to money bills, is the source of the correspon- dent power in all our constitutions. Various reasons for its exis- tence in that body, have been assigned by writers on the English constitution. The only true reason is, that the House of Lords is not a representation of the people; that its members sit in their own communicable right, and not in a representative ca- pacity; and that they derive this right from the crown and not from the people. It is a singular fact, that the House of Com- mons in its infancy, grew up under the nurturing care of the En- glish kings, by whom it was fostered, and advanced, as a check upon the power and arrogance of the nobility. Thus arising, the Commons claimed the exclusive power of taxing those by whom they were delegated ; and the House of Lords, a similar power as to the members of their own body: and for a short period, these peculiar powers of taxation were claimed and ex- ercised by both Houses. When the separate powers were blended into one, to be concurrently exercised by the two Houses : the right of originating and amending money bills, was vested exclusively in the House of Commons as a bonus for the union. Since that period, an entire change has been effected in the general character of the House of Commons. It was origi- nally the instrument of the crown, to repel the aggressions and curb the insubordination of the Lords. The reason assigned by Blackstone for the exclusive right, will not, therefore, apply to its original character. It was not then denied to the House of Lords, " because (to use his language,) it was a permanent, he- reditary body, whose members were created at the pleasure of the
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crown, and were therefore supposed to be more liable to its influ. ence." The House of Commons was then more under the do.
. minion of the crown, than the House of Lords : and there is every reason to believe, that the king connived at this assump- tion of power by the Commons, because he had more to hope from its liberality than from that of the other House. He could soothe, flatter, and make promises to his "faithful Commons :" by whom, in their almost unfledged state of freedom, these atten- tions would be much more highly appreciated, than by sturdy nobles who were disposed to regard themselves as his equals. Blackstone's reason may sustain and justify the power at this day: but it does not direct us to its true source, which is to be found, not in abstract principles, but in the circumstances of the times in which it originated. In our constitution it was adopted for different reasons. With us, both branches of the Legislature represent the people, both spring from them, both are responsible to them, and both return to them to account for the deeds of their office. But the House of Delegates comes more immediately from the people. and hence it is presumed to have a more perfect knowledge of their present condition and immediate wants. It is more nume- rous than the Senate, it contains distinct representations of all the counties, and, from the number of its members, and the manner in which they are elected, men of more various pursuits and employ- ments in life, and possessing more of the information so essential to the proper exercise of the taxing power. Hence it is presumed to be more capable of devising plans of revenue, which will ope- rate equally and justly upon all sections of the State, and all classes of its inhabitants ; will adapt themselves to the exigencies of the moment ; and will open the richest sources of State wealth. Its members are elected for a much shorter period than those of the Senate, and are more speedily responsible : and hence it is pre- sumed, that they will look more carefully to the impartial exercise of the power.
Our State Constitution carries this privilege further than the Constitution of the United States : under which the Senate, al- though it cannot originate, may yet amend money bills. This power of amendment being denied to the State Senate, it was ne. cessary to guard against the possible abuses of the exclusive power of the House of Delegates; by an exact specification of
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the characteristics of money bills ; and by inhibiting that House from covering under such bills, propositions of a different nature, so as to shield them from the amending power of the Senate. Our Constitution foresaw and provided for this necessity. Its 11th. article expressly declares, that none shall be considered money bills, but bills assessing, levying, or applying taxes, or supplies, for the support of government or the current expenses of the State; and bills appropriating money in the treasury. Bills im- posing customs or duties for the mere regulation of commerce, or inflicting fines for the reformation of morals, from which revenue may incidentally arise, are expressly declared not to be money bills. It also inhibits the House of Delegates from annexing to, or blending with, a money bill, any matter, clause, or thing, not immediately relating to, and necessary for imposing, assessing, levying, or applying the taxes or supplies to be raised for the sup- port of government.
(2) The expulsion of its Members.
The House of Delegates may expel any of its members for a great misdemeanor, but not a second time for the same cause. (5) The Senate is very wisely deprived of this power, for reasons. apparent from its constitution. It fills all vacancies occur- ring in its own body; and if it were invested with such a power, it would enable a cabal in the Senate to expel mem- bers, merely for the purpose of filling their places with others better suited to their purposes ; and would put the independence of that body at their feet. It is a dangerous power, even when deposited in the House of Delegates, whose members act under so direct a responsibility, and where the vacancies are filled by those who elected the member expelled. It is not a mere punitive power, which terminates in its consequences to the party expelled. By removing him from office, it disfranchises, or at least leaves unrepresented for a time, the people who have delegated him; and it was intended to be exercised, only for reasons and objections unknown to them when their choice is made. This is manifest, from the restriction denying the right to expel the party again for the same cause, if the people choose to re-elect him. Under the Constitution of the United States,
(5) Constitution, art. 10th.
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the power to expel is conferred upon both Houses of Congress, but can only be exercised by either House with the concurrence of two-thirds of its members. There the power is given gene- rally ; but, under our Constitution, the House of Delegates is restricted to cases of great misdemeanor. Hence the instance, in which it has been claimed by either House of Congress, cannot be used to define its extent, under our Constitution. Three cases have occurred in the Senate of the United States, which were much discussed, and may be usefully consulted, in ascertaining the proper nature of such power, and the mode of proceeding in its exercise. They are the cases of Marshall, in 1796; of Blount, in 1797; and of John Smith, in 1807. They appear to establish the doctrine, that where the cause of expul- sion consists in an indictable offence, it is not necessary that the party should first be convicted of it in a court of law, before expulsion can take place. In the case of Marshall, the Senate decided otherwise; but the cases of Blount and Smith, and indeed the whole force of the reasoning founded on the nature and necessity of the power, appear to warrant expulsion for such a cause without any previous conviction. But there are other doctrines maintained by the report of the Committee of the Senate in the case of Smith, applicable as well to expul- sions by our House of Delegates, as by that body, which are of the most dangerous character, and which, we would fain hope, will never be drawn into precedent in our State. Smith was charged with participation in the Burr conspiracy, and was in- dicted for it: but a nolle prosequi was entered upon the indict- ment, in consequence of the acquittal of Burr. Under these circumstances, that report maintains, that notwithstanding his discharge, he was subject to expulsion, if the Senate believed ** him guilty : that when a committee is raised for the purpose of investigating the charge, and reporting to the Senate the facts of the case, such committee is in the nature of the grand jury, and the member is not entitled to a defence before it by counsel, nor to have compulsory process for his witnesses, nor to be con- fronted with his accusers, but is remitted to the Senate as the proper place for defence : that the Senate in exercising this power, is not bound by judicial forms or the rules of legal evi-
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Chap. XI.]
dence; and that the same degree of proof is not necessary for expulsion, which would be requisite to convict the party in a court of law of the offence charged. Such doctrines as these, dispensing with all the defences of the citizen in criminal pro- secutions, and letting in every thing that may be called evidence, without regard to the legal rules as to its admissibility so admira- . bly calculated to test its truth and relevancy, and in a prosecution which is not only to dishonor the citizen for ever, but to deprive his State, for a time, of half her voice and influence in the Senate, do not suit the meridian of our Constitution.
The power of the House of Delegates being limited to mis- demeanors, the import of that word as a technical term, appears to restrict it to acts constituting a legal offence; and in requiring that they should be great misdemeanors, the Constitution evi- dently refers only to such offences as carry with them a high degree of moral turpitude. The term "misdemeanor," in its proper acceptation, will exclude all cases of the violation of imperfect or mere moral duties, or in other words, all but crimi- nal offences known as such to our laws. Mere immoralities not punishable by law, do not fall within it. In this view of it, the only case which has occurred of expulsion by the House of Delegates, was not warranted by its constitutional power. This was the case of Swailes, a delegate from Montgomery county, in 1797, who was convicted and expelled on the charge of having defrauded a certain Henry Crist at gaming, by the use of marked cards. Base as was the conduct imputed by this accusation, it was a mere private, unofficial act, which did indeed involve extreme moral turpitude, but did not fall within the legal accepta- tion of the word "misdemeanor." It would, perhaps, at this day, be held to be a case of constructive larceny, and in this point of view, it would be a cause of expulsion. But the House appears to have considered it, and to have punished it, merely as a grossly immoral and ungentlemanly act; and as such, how- ever sufficient it was to exclude him from their society, it was no constitutional cause of expulsion from the House. In the par- ticular instance, 'it appears to have been richly merited; but if drawn into a precedent, there is scarcely any point at which this power would stop. It would throw open to it all the private conduct of the member; and the House would sit as mere censor
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morum, to punish the thousand peccadillos of its members. Thera are times, when this duty would be no sinecure.
(13) Its capacities as the Grand Inquest of the State.
The House of Delegates is the Grand Inquest of the State; and as such, may enquire into all complaints, grievances, and · offences whatsoever; may call and examine witnesses in relation thereto ; and may commit any person for any crime, to the public - gaol, to remain there until discharged in due course of law. (6) (4) Its control over the revenue of the State:
· The House of Delegates has the exclusive power of appointing the Treasurer of the State; but where vacancies occur in the recess, they may be filled, until the meeting of the Assembly, by the appointment of the Governor and Council. It may also examine and pass all accounts of the State, relative to the col- lection and expenditure of State revenue; or appoint auditors to state and adjust them; and in the investigation of these, as well as of all other proper subjects for its inquiry, it may call for all public or official papers and records, and send for all persons whose presence it may deem necessary. (9)
(8) Constitution, art. 10th.
(9) Constitution, art. 10th. See 2d vol, chapter, " of the Treasury of the State," where the causes, nature, and past exercise of these powers are fully examined. .
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CHAPTER XII.
THE PRIVILEGES AND DISABILITIES OF MEMBERS OF ASSEMBLY.
THE privileges and disabilities of the members of Assembly are such as are necessarily incident to their office, or are ex- pressly connected with it for the purpose of securing its purity and efficiency. They are not mere personal privileges, which the member may claim or waive, or disabilities of which he may relieve himself, at his pleasure. His official privileges are not his, but those of the people whom he represents; and his waiver or sur- render of them cannot deprive his constituents of the right to enforce their observance. His disabilities modify and restrict his agency, and he can no more relieve himself from their opera- tion, than can he who accepts a qualified agency convert it into one unqualified. These general considerations at once indicate the nature and objects of these privileges and disabilities, and determine their extent. They shew us why it is, that the privi- leges of the member are protected, and infractions of them punished by the house to which he belongs. The house is the organ of the people, and as such protects the privileges of the people's agent. In the preceding chapter, we have seen the power of the houses to protect themselves and their members. We are now to consider the privileges and disabilities of the members, solely with reference to themselves; and this will of course exclude those, which, although they relate to the mem- bers, are yet only the privilege of the houses.
It is to be regretted that the same precision, with which the powers of the houses are defined, was not observed as to the privileges of the members. The latter have been suffered to rest upon implication. The doctrine of Judge Blackstone, "that the dignity and independence of the legislature can only be pre-
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[Hist. Ylew.
served by keeping its privileges indefinito," is not sustained even by the annotators on his work : and if we examine the reasons upon which he has founded it, we discover that, whatever their force in England, they do not apply to our government. The pri- vileges of the English parliament are given, not merely to pro- tect its members in the discharge of their public duties, from un- warrantable interruptions by their fellow subjects, but also to . preserve its independence against the aggressions of the crown : and hence it is feared, that if they were once minutely defined, . it would be easy for the crown to devise some mode of violating them, not falling within the defined cases. The expansive na- ture of parliamentary privilege has therefore been considered as its only effectual security : and the manner in which the Eng- lish Parliament has obtained its privileges, gives great force to the doctrine, as applied to that body. They have all been ex- torted, 'and were originally regarded as encroachments. To use the language of Mr. Jefferson, "they have been advanc- ing for centuries with a firm and never yielding pacc. Claims have been brought forward from time to time, and repeated until some example of their admission enabled them to build law on that admission." There may, therefore, be some show of reason in this doctrine, as applied to the English parlia- ment; but there is none, in reference to our constitution. The Executive here is the mere dependant of the Legisla- ture; and has neither the will nor the power to encroach upon its liberties. Hence, as all rules of action in republican govern- ments, they should be expressly granted and well defined.
1.
The common privileges of the members of Assembly consist in-(1) Exemption from legal process in certain cases-(2) Free- . dom of debate -- (3) Exemption from military duty, and from ser- vice as jurors.
(1) Their exemption from legal process.
This exemption is not expressly granted by any part of our Constitution or laws. The 12th section of the Constitution em- powers each house of Assembly to punish by imprisonment, any person guilty of a breach of privilege, by arresting on civil pro- cess any of its members, during its session, or whilst they are on their way to or from it. This power, of itself, operates as a grant of privilege to that extent : but does it also operate as a restric-
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tion of it to the cases in which the house may punish? It is certain, that if our Constitution had been silent as to this pri- vilege, it would yet have existed as the necessary incident of the office. It results from it because it is necessary to its exercise; and if it were denied, a state of things might be imagined, in which, for the promotion of private interests, or the gratification of individual feeling, the business of legislation would be wholly suspended. Although it would require an ex- traordinary concurrence of circumstances to produce such a result, yet even the possibility of it must be guarded against, when fraught with such alarming consequences. The arrest and detention of a single member, is the loss of his vote and influ- ence on behalf of those whom he represents. Hence the privi- lege has arisen, and it has been held to extend, by implication, not merely to ordinary legislatures, but also to extraordinary le- gislative assemblies, such as conventions to reform or adopt con- stitutions. (1)
Yet, although it would arise by necessary implication, it is equally true, that where there is an express grant, the implica- tion ceases, and the grant operates as a denial of all not grant- ed : and it therefore only remains to inquire, whether the grant of the power to punish in these defined cases produces the same effect, as would an express grant of privilege limited to them. If so, the only exemption of the member from legal process, relates to arrests eundo, redeundo, et morando. It is true that in general the privilege of the member is the privi- lege of the House ; but the 12th section relates only to the power to punish. The privilege, or the infractions of it, may not be of such a nature as to require the interposition of the House. The member may be summoned as a witness, or as a party to a suit : and although the service of the summons may violate his privilege, yet, as it is not compulsory until fol- lowed up by attachment, it is unnecessary for the House to interfere until the attachment comes. He may be arrested on civil process before the meeting of the Assembly, and detained in custody after its session commences. In such cases as the latter, the original arrest is legal, and the House has no power to
(1) Ist. Dallas's Rep. 297.
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punish : yet, after the session commences, the consequences and mischiefs are the same as if the member were arrested during the session. This is a case without the strict letter of the Constitu- tion ; and if the privilege is thus limited, the member might re- main in custody. These possible cases lead us to the infer- ence, that the power of the Houses to punish exists only to reach the extreme and urgent cases : and that it does not ne- cessarily limit this privilege, but leaves us at liberty to give to it the latitude, which reason and precedent indicate as essential to the proper exercise of the office.
The privilege does not, and never should extend, to exemption from criminal process of any kind. In such cases, public interests are in conflict ; and the superior interest of society, is that which is maintained by the punishment of the member for offences against its security, peace, or good order. He has, therefore, no privilege : and the only privilege of the House is its right to be informed of his detention, and of the causes of it. (2)
In civil cases, there is some contrariety of opinion as to its extent. As it existed in England about the commencement of the eighteenth century, it exempted members of Parliament not only from arrest, but also from the service of any legal process in civil cases, during the time of privilege. It has been so restricted by various statutes, that it now merely exempts from arrest on civil process : and leaves them subject to all process not requiring an arrest. But the abuses which occasioned this restriction in England, could never flow from the privilege in this State. The original exemption of members of Parliament, almost operated as a perpetual bar to all civil process against them. The duration of the Parliament then depended upon the pleasure of the king : and the privilege subsisted for such a time after its prorogation or adjournment, and before its re-assemblage, as generally to cover the whole interval between its sessions. But here it operates only during the session of Assembly, and the time necessary in going and returning from it, which never exceeds three months. This temporary suspension of private right, cannot be put in competi- tion with the public inconvenience which might arise from subject- ing the member to civil process, even where it did not occasion an
(2) 1st Black, 169 ; Jefferson's Manual, 25.
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Chap, XII.]
arrest. Privilege is odious, only when it confers a personal right for personal advantage : but where it exists for the public benefit, it is but the result of the acknowledged doctrine, " that the safety of the people is the supreme law." In this instance it is established, that private interests may not interfere with legislation : and that the member, during the incumbency of his public duties, may not be forced away from them by private obligations. By the accep- tance of the office, he has consented to abandon his private con- cerns, during his attendance in Assembly : and the privilege, there- fore, comes in to prevent a clashing between his public duties and his private interests. To obviate this, regard must be had as well to moral as to physical necessities. The member who is actually under arrest, may not be more imperatively called away from his public duties, than he against whom suits are instituted, or upon whom process is served not occasioning arrest. In the State of Pennsylvania, this necessity has been considered sufficient to es- tablish the doctrine, " that a member of Assembly is not only exempt from all civil process ; but that even suits, to which he is a party, cannot be forced to trial during its session." (3) This, perhaps, carries the privilege too far : but, both upon reason and authority, it seems to extend in this State, to exemption not only from arrest, but also from all process which, if disobeyed, may be enforced by arrest, such as a subpæna to testify, or a subpæna from Chancery. (4) It seems also to reach all cases of arrests be- fore the session of Assembly, so as to release the member from cus- tody when the session commences, and in time to attend it. (5) It is scarcely necessary to remark, that it endures not only during the session, but also for such time as may be deemed reasonable, under the circumstances of each case, for going to and returning from it. Arrests of members during the time of privilege, are absolutely void : and the member so ar- rested, or detained in custody under an arrest before the time of privilege, may be released, upon motion to the Court out of which
(3) 4th Dallas, 107.
(4) See Jefferson's Manual, 17, but sce contra, opinion of Judge Chase, in 4th Dallas, 341.
(5) Jefferson's Manual, 13. See, however, 16th Viner's Abridgment, tit. Parliament, pl. B. and 5th Wilson's Bacon's Abridg't, 631, which seem to establish the position, that members arrested, or in execution, before their election, shall not have privilege. See also 3d Dallas, 478.
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