that that amendment was practically covered
or really covered by article 31. As I stated
the other day, so long as I think the old bill
of rights declares truly the principles of right
and law as belonging to the citizen, I am
opposed to changing the phraseology at all,
whether it has been changed in other States
or not. If we in our old bill of rights as-
sumed the right doctrine in proper language,
I prefer, simply because it is Maryland lan-
guage, that it should remain there, rather
than have any change. Article 31 as reported
says, "that no person except regular sol-
diers, mariners and marines, in the service of
this State, or militia when in actual service
ought in any case be subject to or punisha-
ble by martial law." I do not know how a.
regular soldier can be in the service of this
State. It is only the United States that can
keep a regular standing army; and therefore
really this provision is a contradictory ex-
pression. The State of Maryland has no
mariners and marines. Practically, therefore
the first clause of the article amounts to
nothing; for there can be no regular soldiers,
mariners or marines in the service of this
State. The militia when in actual service
may be under State authority or Federal au-
thority. If they are under Federal authority
our Constitution has no jurisdiction over
them. If they are under State authority,
this article only reaches a small class of
cases.
My amendment adopts the language of the
5th amendment to the Constitution of the
United States, which is in these words :
"No person shall be held to answer for a
capital or otherwise infamous crime, unless
on a presentment or indictment of a grand
jury, except in cases arising in the land or
naval forces, or in the militia when in actual
service in time of war or public danger.' '
We have already heretofore provided in
reference to presentments by the grand jury,
and therefore it is unnecessary here to make
provision for that; my amendment there ex-
cepts "cases arising in the land and naval
forces of the United States, or in the militia
of the State when in actual service in time of
war or public danger." My amendment ex-
cepts the militia of the State when in actual
service, covering all cases when they are in
the service of the United States or of the
State; and therefore according to my under-
standing, includes all that is practically pro-
vided for in the article as reported, while it
does not bring in classes to which it never
can be applicable. It is also preferable in
consequence of its adopting the language of
the Constitution
This bill of rights was originally adoptee
prior to the formation of the Federal Consti-
tution; and that explains this singular con-
tradiction which must have been overlooked
I think when our Constitution was amended
At the time our original bill of rights was
24 |
adopted, the State of Maryland had regular
soldiers, mariners and marines. Therefore
the provision was then right and proper. But
when Maryland became one of the United
States, it could no longer have regular sol-
diers, mariners, or marines. I think that
this must have been undoubtedly passed over
by the last Convention when they adopted
the bill of rights, because it certainly bears
inconsistency upon its face.
Mr. CLARKE demanded the yeas and nays
upon the adoption of his amendment; and
they were ordered.
The question being taken the result wag—
yens 16, nays 34—as follows :
Yeas— Messrs. Berry of Prince George's,
Clarke, Cunningham; Davis of Charles, Du-
vall, Hodson, Horsey, Jones of Somerset,
Marbury, Miller, Morgan, Parker, Peter,
Stockbridge, Thomas, Wilmer—16.
Nays—Messrs. Goldsborough, President ;
Abbott, Annan, Audoun, Baker, Cushing,
Daniel, Davis of Washington, Dellinger,
Earle, Farrow, Hebb, Hopper, Keefer, Markey,
McComas, Mullikin, Murray, Negley, Nyman,
Pugh, Russell, Schlosser, Scott, Smith of Car-
roll, Smith of Worcester, Sneary, Swope,
Sykes, Thruston, Todd, Valliant, Wickard,
Wooden—34.
So the amendment was rejected.
Mr. STOCKBRIDGE, There is a slight gram-
matical error that I wish to have corrected.
I move to insort the word " to" after " case,"
so as to read " ought in any case to be sub-
ject to."
Mr. CLARKE. Cain the gentleman explain
to me how there can be regular soldiers, ma-
riners, or marines, in the service of the
State ?
Mr. HEBB. The article is an exact copy of
the article in the Constitution of 1850. As
we went along reading the different articles,
if no objection was made to any article it
stood unchanged. We only talked about
articles to which objection was made. The
minority heard this article read in the Decla-
ration of Rights and did not propose any
change.
Mr. CLARKE, Since the point has been
raised, I should like to know how gentlemen
get out of this difficulty. I understand that
the minority did not go over these articles
with the majority.
Mr. JOKES, of Somerset. It must have been
overlooked by the Convention of 1850. This
31st article was adopted in 1776, before the
formation of the Articles of Confederation,
when the State of Maryland had regular sol-
diers, mariners and marines in the service of
the State as well as militia in its service, it
was when she was in the full exercise of all
her power of sovereignty without any con-
nection with anybody else except voluntarily.
It is certainly, as the gentleman from Prince
George's, (Mr. Clarke,) has said, not appli-
cable to the present condition of the State. |
