taken upon the amendment of the gentleman
from Baltimore city (Mr. Stirling.)"
The amendment of Mr. STIRLING was to
strike out the words, "has a substantial
ground of action or defence, and"—so, that
it will read—"shall make it satisfactorily ap-
pear to the court that such party cannot have
a fair and impartial trial," &c.
The question being taken, upon division—
ayes 27, noes 20—the amendment was adopted,
The question was then taken upon the
amendment of Mr. BELT, and upon a division
—ayes 22, noes 28—it was rejected.
Mr. STIRLING. There is one other amend-
ment which perhaps should be made. I do
not know but that the same construction
would be put upon it by the court, whether
the amendment be made or not. It now
reads: "The judge or judges of any court of
this State, except the court of appeals, may
order and direct the record of proceedings
* * * * * * * * * to be trans-
mitted to some other court," &c. I suppose
that if it shall satisfactorily appear to the
court that a party cannot have a fair and im-
partial trial there, it must order a removal. It
seems to me that to rid the matter of all doubt
the word " shall " should be substituted for
the word "may." However, I will not move
the amendment.
Mr. SANDS. Well, I will make the motion
to strike out "may," and insert "shall."
I would just say that if you leave the word
" may " here, then even after proof has been
made to the satisfaction of the judge that the
party cannot have a fair and impartial trial
there, the removal is left entirely to the dis-
cretion of the judge. If the party has made
satisfactory proof is it not his right to have
his case removed? And shall we leave it
in the discretion of the judge to say, " even
though you have made your case you shall
not have your right? " It seems to me that
it is monstrous to make such a provision as
that. For whom are we legislating? For
the citizens of the State. Are we trying to
protect them in their property and their
lives, or are we simply trying to lodge arbitrary
power in the hands of the judges?
The question was upon striking out the
word "may" and inserting the word
"shall."
The question being taken, upon a division
-—ayes 25, noes 19—no quorum voted.
Mr. TODD called for the yeas and nays on
the question, and they were ordered,
The question being then taken, by yeas
and nays, upon striking out " may " and in-
serting "shall," it resulted—yeas 30, nays
24—as follows :
Yeas—Messrs. Billingsley, Blackiston,
Brown, Carter, Crawford, Davis, of Wash-
ington, Dent, Edelen, Galloway, Hodson,
Hopkins, Jones, of Somerset, King, Lansdale,
Lee, Markey, Mayhugh, McComas, Mitchell,
Mullikin, Nyman, Parran, Pugh, Robinette, |
Sands, Smith, of Carroll, Smith, of Worces-
ter. Stirling, Wickard, Wooden—30.
Nays—Messrs. Goldsborough, President ;
Abbott, Annan, Audoun, Cunningham, Daniel,
Earle, Ecker, Hopper, Keefer, Kennard,
Marbury, Miller, Murray, Negley, Parker,
Purnell, Russell, Schley, Schlosser, Stock-
bridge, Swope, Thruston, Todd— 24.
The amendment was accordingly adopted.
Mr. MILLER, when his name was called,
said; I shall vote against this proposition,
because I conceive that the word " may " in
this connection implies an obligation on the
part of the judge to order the removal, if the
satisfactory proof is made out before him
It means the same as it would if the word
" shall " were put in. I vote "no."
Mr. SANDS. In the clause which reads:
"shall make it satisfactorily appear," &c.,
I move to insert after the word "shall" the
words "by affidavit or otherwise."
Mr. PUGH. it does not seem to me that
this is necessary. According to my under-
standing of the section as it now reads, the
party, by affidavit or otherwise, can make it
appear to the satisfaction of the court that be
has a substantial ground of action, etc., and
he can do no more if the words proposed are
inserted.
Mr. SANDS. No, he cannot. If the gen-
tleman will read the section in the old con-
stitution, and the proposed section here, he
can see the difference at once. I wish to
have it definitely fixed that if the party
makes affidavit he shall have the removal.
Mr. PUGH. This will not do it. The gen-
tleman proposes to insert the words "by
affidavit or otherwise."
Mr. SANDS, As it is now the court may-
allow him to make affidavit or not, as it
pleases.
Mr. STOCKBRIDGE. With that explanation
of the meaning of this amendment, is it not
the same as the one proposed by the gentle-
man from Prince George's (Mr. Belt,) and
voted down by the convention ?
The PRESIDENT. The chair is of opinion
that it is not the same proposition.
The question was upon inserting the words
" by affidavit or otherwise " before the words
" make it satisfactorily appear," etc,
Upon this question Mr, EDELEN asked for
the yeas and nays, which were ordered
The question was then taken, by yeas and
nays, and resulted—yeas 20, nays 23—as
follows:
Yeas—Messrs. Billingsley, Blackiston,
Crawford, Dent, Edelen, Galloway, Hopkins,
Jones, of Somerset, King, Lansdale, Lee,
Marbury, Markey, Mayhugh, Mitchell, Miller,
Parran, Sands, Schlosser, Stirling—20.
Nays— Messrs. Goldsborough, President ;
Abbolt, Annan, Audoun, Brown, Carter,
Cunningham, Daniel, Davis, of Washington,
Earle, Ecker, Hodson, Hopper, Keefer, Ken-
nard, Mullikin, Murray, Negley, Nyman, |
