USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 54
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THE PRIVILEGES AND DISABILITIES OF [Hist. View.
the process issued, or by habeas corpus, or by the order of the House of which he is a member. (6)
(2) Freedom of debate.
This privilege, so essential to the independence of the Legisla- ture, and the free and full discussion of all questions which may arise in it, is protected in all its proper extent by the 8th article of our Bill of Rights, which declares " that freedom of speech, and debates or proceedings in the legislature, ought not to be im- peached in any other court or judicature."
(3) The exemption from military duty, and from service as jurors.
The members of Assembly, during its session, are exempt from service as jurors, and also from attendance on military parades : yet they are still liable to draughts for actual service. (7)
The Disabilities of Members of Assembly.
The members of either House of Assembly, if they qualify as such, are expressly inhibited from holding any office or place of profit under the State Government, or receiving directly or indirectly, the profits, or any part of the profits of any office ex- ercised by any other person, during the time for which they are respectively elected. They are also prohibited from taking a seat in the Congress of the United States; accepting any office of profit or trust under the government of the United States, or that of any of the States; or receiving any present from any foreign power or State, or from the United States, or any of the States, without the approbation of this State, through its Assembly. (8)
There are other disabilities under the 37th Article of the Con- stitution, which are now inoperative. It incapacitates for a seat
(6) 2d Strange, 985, 1st Johnson's cases in Sup. Court of N. Y. 415. Const. of Maryland, art. 12th. See also 5th Wilson's Bacon's Abridg't, 637, which seems to be against the power of the House to discharge by its order : yet I apprehend there can be no doubt as to its existence here, in all cases desig- nated as contempts, by the 12th article of the Constitution.
(7) 1715, chap. 37, sec 4th, and acts of 1811, chap. 182, sections 1st and 12th-June, 1812, chap. 9th, and 1822, chap. 188. Yet, under the latter Acts, their exemption even from military parades must be purchased by the payment of three dollars annually, except in the city of Baltimore, they fall- ing within the class of persons described by the 12th section of the Act, 23 persons exempt only by that Act.
(8) Constitution, art. 37th as amended by Act of 1791, chap. 80, 38th and 39th ; and 32d art. of Bill of Rights.
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MEMBERS OF ASSEMBLY.
. Chap. XII.]
in the General Assembly, all persons receiving the profits, or any part of the profits, arising from any agency for the supply of clothing or provisions for the army or navy, or holding any em- ployment in the regular land or marine service of the State. These incapacities not only render those subject to them, inca- pable of taking seats in either House before their removal, but they also vacate the office when they attach upon members after election and qualification. Yet since the adoption of the Federal Constitution, the national defence has been en- trusted to the national government ; and the several States have been prohibited from keeping up troops or ships of war in time of peace, or engaging in war, unless actually invaded, without the consent of Congress; so that the regular forces of the State, although they may always be revived in a state of war, do not now exist. The prohibited participation in contracts for supplies, manifestly refers to the regular army and navy of the State, and can only operate when these are in existence.
No doubts have arisen, or can arise, as to the existing and operative disabilities above alluded to, except that excluding from State offices of profit. The terms and purposes of the latter exclusion, appear to be as definite, as those of the former : yet they have been involved in some obscurity, by the mysticism of modern days. Many exceptions have already been engrafted upon it by construction, and others have been contended for, which, if established, would leave it but little efficacy. Like other provisions of our Constitution, as plain and specific as language can make them, it has been innovated upon by subtle constructions, always striving to escape from the express letter of the Constitution, by taking refuge under some imagined in- tention of its framers. This is what is termed, in modern phrase, or at least in a modern application of the phrase, " con- struing the Constitution by its spirit." Ingenuity thus released from the obvious import of language, is left free to range through the wide field of imaginary intentions; and the Constitution becomes, a problem to be solved in each mind by the intents best adapted to its wishes, or a species of cypher for which every man has his own key. The result has been, that constitutional pyrrhonism has become very fashionable, as it were for its very novelty, and has therefore not scrupled to draw into doubt,
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THE PRIVILEGES AND DISABILITIES OF [Hist. View.
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the plainest provisions of our form of government. Yet what renders still more extraordinary these constructions of the Con- stitution by its spirit against its letter, they all proceed upon one general principle, entirely inapplicable to the nature of the in- strument they would explain. They seem to regard it as a system of harsh and odious restrictions upon the people, and their representatives, which ought to be construed as narrowly as possible; and from which every case ought to be excepted, that in its particular circumstances does not, in fact, bring with it the mischiefs intended to be suppressed. Yet this constitution is one of the people's choice, is at all times open to amendment by them, and by their will restricts men in authority so as to guard against all possible abuses of power; and, as such, it should have full and liberal operation; not that operation, which waits for the actual occurrence of abuses, but that which lies at the threshold to prevent the possibility of their entrance.
In reference to the disability we are now considering, it was certainly competent to the framers of the Constitution to have given it the widest range, not only over all State offices then in existence, but also over all which might thereafter be established; and such seems to have been their purpose. We find the reasons for this widely extended restriction, in the nature of the executive, which is the creature of the legislature: and it cer- tainly would be more consonant both with the spirit and letter - of the Constitution, to consider members of Assembly as exclu- ded by it from all offices in the gift of the Governor and Coun- cil, or of the Assembly. Yet in practice, it has received a much narrower construction, excluding from its operation all offices of a local and subordinate character, which have been established, since the formation of the Constitution, by acts of Assembly. The general principle of this usage cannot be better stated than in the language of Mr. Pinkney : "Ac- cordingly (says he) it is known to every body in any degree acquainted with public affairs in Maryland, that the 37th section of the Constitution has never been extended, by usage, to sub- ordinate and local employments, neither mentioned in the Con- stitution, nor adopted in the Provincial establishments from the common law, and continued under the new government as es- sential means for the general administration of justice, the col-
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MEMBERS OF ASSEMBLY.
Chap. XII.]
lection of the public revenue, or the management of the general concerns of the community; and that every subordinate and local employment, which owed its creation to Acts of Assembly passed subsequently to the Constitution, has, in practice, been held to be out of the contemplation of the convention, and there- fore out of the purview of the Constitution." (9) The usage, as interpreted by Mr. Martin, has also exempted from the opera- tion of this article, all offices of whatever character, whose com- pensation consists in a per diem allowance, "which (says he,) has never been considered as constituting an office of profit;" and hence in an opinion given by him to the Governor and Council, (whilst he was Attorney General) he held that the mem- bers of Assembly were capable of holding the office of judge of the Orphans Court, although he regarded those judges "as reg- ular constitutional officers of the government, forming a constit- uent part of its system, and introduced to supply the place of the commissary general." (10) Yet.all these are usages "more honored in the breach than in the observance." The appoint- ments which they would exempt, spring from the same source with those acknowledged to be within the disqualification; and the discrimination they establish, is founded merely upon the quan- tum of temptation. There is no warrant in the Constitution for any such distinction, nor is there any general rule to determine the exact degree of temptation which might influence. Mere local offices, which seem minor to some, have yet charms enough to seduce others from duty ; and the per diem allowance incident to a public station, not only renders it, in legal acceptation, an office of profit, but in fact often brings with it more actual profit than regular salaries. Such distinctions are mere evasions of the general restriction, and cannot be too soon abandoned. The departure from them will work no prejudice, will impair no rights, and will place the legislator where he should be, not only beyond temptation, but above suspicion.
(9) See the Opinion of Mr. Pinkney, upon the question of Mr. Kell's eligibility as a member of the House of Delegates, whilst holding the office of Commissioner of Insolvent Debtors for the city of Baltimore.
In Council Chamber Records.
(10) Opinion of Luther Martin (when Attorney General) upon certain queries propounded to him by the Governor and Council, on the 22d January, 1819 .- In Council Chamber Records. 68
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THE PRIVILEGES AND DISABILITIES OF [Hist. View.
Attempts have been made to render even the high offices of Governor and Executive Council, offices filled by the appointment of the members themselves, an exception to this general restric- tion. These have been predicated upon the language of the 7th and 19th articles of the Constitution, which enumerate the elec- tion of a Senator or Delegate as governor or member of the council, amongst the modes by which vacancies may arise in either House; and hence it has been contended, that these ar- ticles, by necessary implication, create the eligibility which they pre-suppose. We shall examine this doctrine more particularly, in treating of the supreme executive power. It will suffice here to remark, that under the 37th article, as it stood in the original draught of the Constitution, members of Assembly were excluded from other offices, only during the time of their actual service as members; and that when the 37th article was amended by the Convention, so as to extend the disqualification over the whole term for which the member was elected, no change was made in the preceding articles. (11) Hence might have arisen some in- congruity between these articles ; but in fact there is none. The 37th article operates only after the qualification of the member, and the 7th and 19th articles are fully gratified by his eligibility as to other offices, after election, and before qualification. It is sur- prising that there ever should have been any doubts upon the question "whether members were eligible to these offices," inasmuch as it was solemnly decided, by the almost unanimous vote of the first House of Delegates assembled under the State Constitution, and in reference to the election of the first gover- nor of Maryland, that they were ineligible. (12) Yet in 1825, the question was again agitated in this State, and much of its talent and influence was enlisted in defence of these alleged exceptions: yet all the parties to the discussion which ensued, appear to have been unaware of the decision in 1777. It was
(11) Journals of the Convention of 3d and 5th of November, 1776.
(12) It was decided by a vote of 39 to 7, that they were ineligible to the office of Governor ; but there was a larger vote in favor of their eligibility to the office of councillor. It seems singular, that these votes should have I rea different, relating as they did, in fact, to the same question. Many of the ยท members by whom these decisions were made, were members of the Conven-
1 tion that adopted the Constitution ; and hence, as precedents, the decisions are entitled to the highest respect.
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MEMBERS OF ASSEMBLY.
Chap. XII.]
therefore brought before the House of Delegates, as a new ques- tion, at December session, 1825, when it was again decided by a large majority, that these offices were embraced by the 37th article, and that members of Assembly were therefore ineligi- ble to them. It is then to be hoped, that the question may now be considered as for ever at rest.
The sanctions which sustain these disabilities, are of the most effective character. The member is precluded, by his oath of office, from holding any other office of profit embraced by the 37th article, or receiving any part of its profits; and if he violates this restriction, he is guilty of perjury, and upon con- viction of it, his scat is vacated, and he shall either suffer the punishment allotted to wilful and corrupt perjury, or be banished for ever from the State, or for ever disqualified from holding any office or place of profit and trust under the State, as the Court may adjudge. (13) If the member shall take a seat in Congress, or accept of an office of profit or trust under the United States; or being elected to Congress, or appointed to such office of profit or trust, he does not resign his seat in Congress, or office under the United States, within thirty days after notice of his election or appointment, his office as State Senator or Delegate becomes vacant. (14)
(13) Constitution, art. 33. The amendment of the constitutional oaths in 1823, by the Act of 1822, chap. 204, has, in terms, repealed every part of the 'constitution, that relates to the oaths of members ; yet it was not in- tended, and would be scarcely be held to have repealed, these alternative punishments.
(14) Constitution, as amended by act of 1791, chap. 80.
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