the defenders of property, they who have borne the heat and burden of the day, are then found amongst those who have interest enough in the general welfare to stake their lives or liberty in its defence, but are not presumed by such a qualification to have enough to entitle them to a vote.

These notions arise from a misapprehension of the proper basis, upon which the right of representation must rest in republican governments. Such governments have but one surety for the pure and proper exercise of the elective franchise: and that consists in the virtue and intelligence of the people. These are not peculiar to any rank or condition in life and whilst it is the progressive tendency of our institutions to render intelligence as diffusive as the right of suffrage itself, we shall have reason to rejoice at its extension." He and he only is the freeman whom the truth makes free." Secured by the nature of our institutions against the abuses of this right, we shall find in it the firmest bonds of affection which can bind the allegiance of the citizen. He does not feel himself a stranger in his own land. He sees no privileged orders around him, exclusively directing and controlling a government which is his only for the purposes of submission. He sees, and feels, and knows that is his, at every return of the day which calls upon him to exercise his rights as a free voter. Such days come as political sabbaths, to teach all men the great equality, and to bow down every heart in thanksgivings to the common government which sheds over all its kindly influences: and when the hour of danger to the state arrives, the recollection of these days comes rushing on the freeman's soul, to nerve it for the encounter, and to bare his arm for the defence. (2) Qualifications for the office of delegate.

The qualifications for this office, originally prescribed by our constitution, as to the elections in the counties and in Baltimore, were, that the delegate should be above the age of twenty-one years should have resided in the county or in Baltimore town, for which chosen, for one year next preceding his election-should have real or personal property within the state above the value of five hundred pounds-was not a minister or preacher of the gospel of any denomination-did not hold any other place of profit, nor receive any part of the profits thereof, (except of justice of the peace) nor receive the profits, nor any part of the profits of

any agency for the supply of clothing or provisions for the army or navy-did not hold any office under the United States or any of them-was not employed in the regular land or marine service of this State or of the United States-was not a field officer of the militia-had not been convicted of holding or executing any other office of profit, or of receiving directly or indirectly the profits, or any part of the profits, of any office exercised by any other person, whilst acting as a delegate, senator, member of the council, or delegate to congress-had not been convicted of giving any bribe, present, or reward, or any promise or security for the payment or delivery of money or any other thing, to obtain a vote. to be governor, senator, delegate to congress or Assembly, councillor, or judge, or to be appointed to any of these offices, or to any office of profit or trust then created or thereafter to be created in the State. (8)

(8) Constitution, Arts. 2d, 5th, 37th, 38th, 39th, 45th, and 54th. The origin of these disqualifications can be traced either to the antecedent proprietary government, or to the experience of the colony under the provisional government of 1775.

From the colonization until 1650, the right of representation had no regular character. Sometimes the assemblies had the nature of the "Ecclesia" of the Athenians. They were assemblies of the freemen generally, rather than of representatives. Every freeman had a right to be personally present; and this right being a personal privilege, like that of a member of the English House of Peers, he might either appear in person or by proxy, or join in the election of delegates, at his option. When the assemblies were so constituted, the government was a pure democracy; being administered by the people in person. At other times, the freemen were permitted to appear only by delegates or deputies, elected in the manner prescribed by the warrants of election. The three sessions of 1640, and those of July, 1641 and 1642, were of the latter character: the other sessions were of the former, which was the prevailing character. After the commotions of the civil war had ceased, and the government was restored to the proprietary by Cromwell's commissioners, viz, from 1659, the Assembly consisted only of delegates; and from that period, the right of making proxies or appearing per sonally, wholly ceased. Yet it was not until 1681, that any restrictions appear to have been imposed upon the people in the choice of delegates. By the proprietary's ordinance of 6th September, 1681, the same qualifications were required for delegates as for voters; and these were kept up, as to both, by the same acts, until the revolution. [Supra notes 3d and 4th.]

The exclusion of the clergy was founded upon the jealousy of church establishments imbibed under the proprietary government, and the apprehen

Of these, the original qualifications for this office, some have been wholly removed, and others superseded by new restrictions, aiming at the same object. Those wholly removed are, the property qualification, and the exclusion of field officers of the mili. tia; both of which were abolished in 1810. (9) That which excludes for conviction of having held another office or received its profits, whilst a delegate to congress, has ceased to exist; for no such conviction can now take place. Such delegates were then appointed by the Assembly, and were required to qualify, by taking an oath or affirmation not to hold or execute another office, or receive its profits; and the disqualifying conviction was founded upon a prosecution for the breach of this oath of office. Since the adoption of the present federal government, the office of delegate to congress, in the contemplation of the constitution, has wholly ceased: the qualifications of representatives under the new federal government, are prescribed by the constitution of the United States; and the oath of office, on which alone such conviction could be founded, is no longer taken. It seems also that the disability, because of conviction for bribery, does not apply to bribery to obtain the present office of representative in congress; which is entirely distinct in its nature, qualifications and incidents, from that of delegate to congress, as established by the constitution. Those which have given place to substitutes, relate to holding offices under the United States, or being employed in its service. Upon the adoption of the States, it might have been

present constitution of the United questioned whether they could follow with the change, and attach to offices or employments under the new government To obviate all doubts, an amendment was therefore engrafted upon our

sion that these might be promoted by permitting them to sit in the Assembly, This restriction, although still strictly enforced, now rests upon different reasons. They are now excluded upon the doctrine, which they themselves will approve, that those whose high and holy office is the care of souls, should be wholly secluded from all the turmoils and corrupting influences of political life. The propriety of the other exclusions had been fully manifested in the experience of the colony.

(9) The property qualification, by the acts of 1809, chap. 198, and 1810, chap. 18; and the exclusion of field officers, by the acts of 1809, chap. 65, and 1810, chap. 78.

State constitution in 1792, which provides "that no member of congress, or person holding any office of profit or trust under the United States, shall be capable of having a seat in the General Assembly. (10)

A qualification of an entirely new character was created in 1816, by the act for the suppression of dueling: which provides, that if any person shall challenge another to fight a duel, with any weapon, or in any manner whatsover, the probable issue of which may be death, or shall accept a challenge to fight, or actually fight a duel, with any such weapon or in any such manner, he shall be incapable of holding, or of being elected to, any office of profit, trust, or emolument within the State. (11) This act has never been adopted as an amendment of the constitution; and as a mere act of ordinary legislation, can have no operation upon offices, such as that of delegate to the Assembly, for which the constitution has prescribed qualifications. Such disabilities. as that created by the act of 1816, are not merely disabilities of the offender. They operate as restrictions of the people's right of choice, imposed for reasons personal to the offender. Now the constitution expressly empowers the people to select, as delegates, all persons having the qualifications which it prescribes; yet this law declares, that even these shall not suffice, if such persons have offended against its provisions. It therefore superinduces a qualification unknown to the constitution, and in direct conflict with the right to elect there given. Affirmative provisions in our constitution are always negative and exclusive of all mere laws, which alter or deny the rights they affirm. And in the present instance, as the law of 1816, if valid, would intervene to declare, that although the person proposed has all the qualifications of a delegate required by the constitution, yet the people shall not elect him, unless he is also free from the offences it creates, and thus controls a constitutional privilege of the people by the provisions of a mere law: it can have no efficacy as to this office. It would operate as an amendment to the constitution, and must therefore be adopted as such, before it can be valid.

(10) 1791, chap. 80; and 1792, chap. 22. (11) Act of 1816, chap. 219.

Upon the above summary of the qualifications for this office it must be remarked, that they fall under two general classes. The first class includes all the cases in which the person is rendered absolutely ineligible: and to this belong the several existing qualifications, which require age and residence, which exclude members of congress and persons holding offices of profit or trust under the present government of the United States, and which disable because of conviction of bribery, or conviction of holding, or executing, or receiving the profits of another office. In all these instances, the persons lying under these disqualifications or disabilities, are declared incapable of being elected to, or holding the office of delegate; and therefore the election of such persons is merely void, and not susceptible of confirmation, by any removal of the disqualifications, before the person elect takes his seat in the house of delegates, or before it is vacated. The disabling consequences of the convictions alluded to, are expressly declared to be permanent; and therefore, under these, no such question can arise: but if the person elect, being under age, or not having the necessary residence, or holding an office under the United States, arrives to full age, or obtains the necessary residence, or resigns his office under the United States, before he takes his seat, or before his seat is vacated, it will not suffice. He was originally ineligible; and no change in his condition can operate to render valid his election. The latter class includes all those causes of disqualification, which merely declare that the person subject to them "shall not have a seat in the General Assembly;" and do not expressly render him ineligible Of this kind are the disabilities which exclude ministers or preachers of the gospel, and persons holding other places of profit, or receiving any part of their profits, or receiving any of the profits arising on any agency for the supply of the army or navy of the State, or being employed in its regular land or marine. service, (although such cases as the latter can rarely arise under the constitution of the United States.) In all these cases, it may be contended, with great force, that if the disability ceases or is removed, after the delegate is elected, and before he qualifies as such, (which constitutes what is called "taking his seat,") the objection ceases with it. These disabilities are now considered merely as creating qualifications consisting in freedom from them: