Debates of the last Convention, that the question of the previous question came up, and Mr. Randall moved to change the ordinary rule reported by the committee similar to the 23d Rule of the House of Delegates. He says, on page 57 of the Debates: "I rise to give notice that I shall propose a change of the 17th Rule, which declares that the previous question shall be always in order, if seconded by a majority, &c, &c., and that the main question shall be on the adoption of the proposition under consideration; and that in cases where there shall be pending amendments, the question shall be first taken on such amendments, in their order, and without further debate on amend ment. "Now I understand by the construction given to this rule, and under the Parliamentary law, that the effect of the previous question, if sustained, is not only to cut off all debate and amendments on the question then before the Couvention, but to cut off all debate and amendments on the whole subject matter. That is to say, we have to vote upon the whole bill and amendments, at one time." That is, if a motion is under consideration and the previous question is moved, it operates upon the whole bill or the whole report. He proceeds: "I suggest to the consideration of gentlemen that every desirable object will be effected by confining the operation of previous questions to the actual question under consideration, and to nothing else, Many friends more experienced than myself in such matters, have intimated their opinion that such a change would have a happy effect; and I propose so to amend the motion as to give it that operation." The 54th Rule was framed by the commit tee to carry out the idea here suggested. will be the amendment? Mr. CLARKE. The rule provides that there shall be upon the second reading, no main question, but that there shall be a previous question; and the rule defines what the previous question is; that it shall apply to pending amendments before the Convention, and shall prevent further debate or amendment until the pending amendments are disposed of, and then other amendments may be offered. The main question, as explained by Mr. Randall, always applies to the whole bill, so that when a bill is under consideration the vote must be taken on the entire bill; and if we adopt the same rule, the vote must be taken on the whole report of a committee. It was to make that distinction that the rule was drawn in the form in which the committee have reported it. under consideration, and not upon the whole report. Mr. STOCKBRIDGE. It appears to me that this amounts to nothing else than merely providing two forms of the previous question. Ordinarily the previous question is called at any s age of the proceedings, whenever gentlemen see fit. Under the apprehension that it may be called before the article under consideration is matured, this provides for a previous question upon the second reading under the title of the previous question. And when it gets to the third reading, when the article has been passed upon, there is a previous question under the name of the main question; and it amounts to nothing else as I understand it. Mr. CLARKE. Then here is the third section: "The rules of parliamentary practice on the call of the previous question on all other subjects shall govern the Convention." It is simply on the consideration of reports on their second and third readings that a distinction is drawn between the previous question and the main question, in order to apply to this particular case, which had to be done to make those rules apply to a report which would otherwise have applied to bills. The PRESIDENT. In parliamentary practice can there be a distinction drawn between the previous question and the main question? Is not the previous question in parliamentary practice the main question. Mr. CLARKE. Then upon the second reading there can be no previous question at all under the usual parliamentary rules. Mr. DANIEL. I rose to suggest the same thing which has just been suggested by the Chair. It seems to me that the previous question is nothing else but the main question; and the question merely is, Shall the debate stop, and shall the vote upon the question be now taken? Then we shall vote upon the question, whether it is an amendment or some other question. The CHAIR. The main question applies to the voting upon the original proposition rather than to the disposition of the amendments pending. Mr. DANIEL. I do not see any difficulty in the rule as I understand it to be suggested by the amendment, and as it is usually framed in parliamentary rules. It cuts off all debate and brings the vote upon the several amendments as they are offered, and then upon the main question. If the previous question is ordered upon the second reading you would be obliged to stop there after having disposed of the amendments. This I think meets the difficulty, if there is any difficulty. You would go on until obliged to stop by another rule, which requires no Mr. HEBB. The gentleman misunderstands provision to be inserted in the Constitution the meaning of the rule as I offer it. It re-except upon the third reading, and then the quires a vote upon the section of the report main question would go over to the third reading. I do not see under the usual parliamentary rule that it will be necessary to make any distinction, or that there will be any difficulty; but some confusion may grow up if we separate it. Mr. BERRY of Baltimore county. I know how perplexing is this previous question; and although I have somewhat hastily looked at the authorities with regard to it, my mind is not yet clear with regard to it, nor do I fully understand the amendment proposed by my friend from Allegany. I think that it is a question of so much importance, just at this time, that the consideration of the rule would better lie over until to-morrow, until we can see the amendment, and can examine the matter; and for that reason I move that the Convention adjourn. The motion was agreed to, and Messrs. Goldsborough, President; Abbott, Annan, Audoun, Baker, Barron, Berry of Prince George's, Blackiston, Briscoe, Brooks, Brown, Carter, Clarke, Crawford, Cunningham, Cushing, Daniel, Davis of Washington, Dellinger, Earle, Ecker, Edelen, Gale, Galloway, Greene, Harwood, Hatch, Hebb, Hoffman, Hollyday, Hopkins, Hopper, Johnson, Jones of Cecil, Jones of Somerset, Kennard, King, Lansdale, Lee, Marbury, Markey, Mayhugh, McComas, Mitchell, Miller, Morgan, Mullikin, Murray, Negley, Noble, Nyman, Parker, Parran, Peter, Pugh, Purnell, Robinette, Russell, Sands, Schley, Schlosser, Scott, Smith of Carroll, Smith of Dorchester, Sneary, Stockbridge, Swope, Sykes, Thomas, Thruston, Todd, Valliant, Wickard, Wilmer, Wooden-75. The proceedings of yesterday were read. On motion of Mr. Galloway, Ordered, That the Committee on Accounts be directed to examine and settle the accounts for repairing and fitting up the Hall for the use of the Convention, under an order of the Legislature. Mr. PURNELL Submitted the following preamble and resolutions: is hereby directed and required, in giving a certificate of payment to such member or officer, to deduct from his account such time as he may have been absent, unless occasioned by actual indisposition, or some other unavoidable circumstance. Resolved, That for the purpose of ascertaining the time lost by the members and officers the Secretary of this Convention be required to keep a weekly list, on which he shall note the respective days when each of said members or officers shall be absent, and file the same weekly with the Clerk of the Committee on Accounts, who shall deduct the same from the allowance of each member and officer, so that, at the end of the session, the number of days each member or officer has been absent, except from actual indisposition or other unavoidable cause, may be ascertained and entered upon the Journal of Proceedings. Resolved, That every member shall be considered and noted as absent unless his name be entered on the Journal at the opening of each day's session, and also entered among the yeas and nays, that shall be taken on every proposition to adjourn, unless his absence be occasioned by actual indisposition or other unavoidable circumstance. Which were read. Mr. TODD submitted the following order: Ordered, That the Treasurer of the State of Maryland, upon the order of the President of this Convention, pay to Thomas J. Corkran, who temporarily discharged the duties of Page, in the beginning of the sessions of this Convention, the per diem and mileage allowed to the permanent Pages, for the number of days of service rendered by him. Mr. TODD moved the reference of this order to the Committee on Accounts, but at the suggestion of the President withdrew the motion. The order was adopted. ORPHANS' COURT. Mr. MARKEY Submitted the following order: Ordered, That the Committee on the Judiciary inquire into the expediency of changing or amending the Testamentary System, in cases where a testator has devised his property to his executors to be sold,, or has directed his real estate to be sold by his executors, for the payment of debts and legacies, or for any other purpose; so as, in the event WHEREAS, It is a matter of great import- of the death of both executors or the surance that there should be a prompt and faith-vivor, or the death of a sole executor, to give ful attendance of the members and officers of this Convention, for the performance of the duties entrusted to them in their respective committees, as well as during the sessions of this body; therefore, be it Resolved, That hereafter no member or officer of this Convention shall receive any per diem for such time as he may be absent from the said Convention; and that the President power to the Orphans' Court of the county or city of Baltimore, where letters testamentary have been granted, to appoint an administrator de bonis non, with the will annexed, and invest him with power to sell such real estate and administer the proceeds according to the will of the testator. Mr. BRISCOE. From the casual hearing of that order it seems to me that it would more Mr. BRISCOE. My suggestion is whether that would not be a measure more directly coming under the legislative department of the Government. Would it not be perfectly competent for the Legislature to accomplish this when the courts are organized? properly come before the legislative depart- | tee fails, under our system, and there is no ment of the Government The adoption of other authority, the Court of Equity has juorders of this character will have the effect, risdiction to supply it. although I would not object to it merely upon that ground, to increase the expense of printing the Jourual; but there are other reasons why the entering of such orders, unless pertinent to the deliberations of this Convention, ought to be stopped. It seems to be an order relating not so much to the matters before the committees of this Convention as to the details of legislative action after we shali | have formed a new Constitution. It is a question whether it is necessary to incorporate it in the Constitution we are about to form. I only throw out the suggestion that unless I can see a strong reason why it should go upon our Journal, I should object to it. If the policy is adopted of passing such orders and entering them upon the Journal, we shall have a Journal as large as the ordinary acts of Congress. I merely throw out the suggestion to the other side. I do not know from what source the order comes Mr. MARKEY. I offered that order, for the purpose, if possible, of correcting what I conceive to be an evil in our part of the State. In the event of a party dying, and leaving a will appointing an executor, if that executor should happen to die before he has settled up that estate, real or personal, the only way to dispose of the real estate is that the administrator upon his personal effects must go into the Chancery Court and obtain a decree to sell that property. I want, if possible, to give to the Orphans' Court the same power in relation to real estate that they possess under the law in the case of personal estate. I do not care what committee the order goes to, if it can be brought before some committee which will act upon it. Mr. JONES of Somerset. Unquestionably. Mr. BRISCOE. We are not here to perform legislative duty, in the strict acceptation of the term. Not being a member of the Judiciary Committee it may be impertinenti me to object to this. It is a question for the chairman of the Judiciary Committee to consider, whether that committee ought to be burdened with propositions of this character; and it is for the Convention to say whether our Journal shall be filled, day by day, with propositions like this, offered for the consideration of committees or of the Convention. I know that it is an ordinary courtesy and rule upon the part of committees, when an order is submitted to them, to make a report upon it of some kind or other, and I simply suggest whether we should burden them with orders of this kind. Mr. JONES of Somerset. I think, upon the views entertained by the gentleman from Calvert (Mr. Briscoe) it is entirely unnecessary to cumber our Journal with orders of this character. It is a mere matter of legislative control. Yet in the organization of the Judiciary no doubt provision will be made for the proper distribution of the equity and common law jurisdiction of the courts. Mr. SCHLEY. I think the reference is correct. The organization of the Orphans' Court will properly form a part of the article on the Judiciary. Perhaps it may encumber the Mr. JONES of Somerset. It merely proposes Journal of Proceedings to introduce a multito change the jurisdiction of a court and give plicity of orders from day to day; but all it equity jurisdiction. It is merely the ordi- these orders are suggestive and I think that nary case of the failure of a trust, where the every committee will receive suggestions, Court of Equity must appoint trustees. In from whatever source they emanate, gratethe case referred to, the death of an executor, fully and perhaps with advantage. This there is a failure of the execution of a trust, order has no doubt some legislative features from the death of the executor before the sale; in it; but still it involves a question of the and it necessarily goes before the Court of powers and jurisdiction of the Orphans' Court, Equity, as the ordinary and usual remedy. and may very properly be considered by the The proposition is that that jurisdiction be Committee on the Judiciary; and I am sure given to the Orphans' Court, which I pre- that committee, in so considering, will judge sume is not the practice in this particular for themselves whether it be expedient to incase. The Judiciary Committee have under corporate any legislative action in the Conconsideration the distribution of the judicial stitution or refer it to the legislative departpower of the State among the several courts, ment. They may incorporate the principle, and will no doubt report upon a system in and I hope sincerely that they will But I which the equity powers may possibly be do not propose to discuss the merits of the given to a judge of probate, or a county proposition at all, but merely to state why I judge, and the object of the gentleman from shall support the order of inquiry, that I Frederick (Mr. Markey) may be in that re-think it comes properly before the Committee spect answered. It is only one instance, as I understand it, of the failure of a trust, which may occur under a deed just as well as under a will. Wherever the appointment of a trus on the Judiciary. Mr. BRISCOE. I do not raise any issue at all upon it, I merely threw out the suggestion that it was such an order as did not properly belong to us to consider, as a reason for my vote upon it. Mr. DANIEL. Agreeing with the gentleman that this is strictly within the power of the Legislature, the law-making power, and not so much in our province, it seems to me that a reference is unnecessary. I do not think the Judiciary Committee need act upon all these individual cases. If we were disposed to fill up our Constitution with provisions to meet particular cases, this order, as suggested by the gentleman from Somerset (Mr. Jones) would not meet the case. To show that it is strictly within the power of the Legislature, I will say that the Legislature has already acted upon this very subject; and it is only to provide for an omission in the law as it now exists, for its not going quite far enough, that the order is proposed. There is now upon our statute book a law covering this. You can vest the power to sell real estate in an executor by will; and if the executor dies without having executed the power, then it is considered, I believe, that the power dies with him; and then the Court of Chancery must appoint. The Legislature having already acted upon that, it is very easy for the Legislature to say just what this gentleman wants us to say that in case the executor dies without having executed the trust, the administrator de bonis non shall execute the power. It seems to me therefore simply a question for the Legislature. I think we detract from the dignity of this body if we attempt to take into consideration every individual matter which would properly come before the Legislature, the law-making power. I think it would rather show that we do not understand our business. Mr. BERRY of Prince George's. I do not at all agree with the gentleman from Baltimore city (Mr. Daniel) that this comes within the purview of general legislation. When a testator makes a will and directs by that will the executor appointed therein to make a sale of real estate, if he dies the power to sell dies with him, and the only possible means by whieh a sale of that real estate can be made is through the interposition of a Court of Equity. Now the Committee on the Judiciary System, will, as a matter of course, in arranging the jurisdiction of the different courts, set forth what their peculiar jurisdiction is to be. The Orphans' Court of our State has no chancery jurisdiction except that specially given to it by law. I think by reference to the present Constitution, that the particular duties and jurisdiction of each of the courts of the State will be found to be there defined; but you will not find that duty enumerated in our present Constitution as a duty of the Orphans' Court. The courts, therefore, being limited in their jurisdiction, they can exercise no other jurisdiction than that expressly given them by the Constitution. I think therefore that this is a proper subject to go to the committee for their consideration, whether the Orphans' Court of the State shall be vested with a jurisdiction of that sort, to enable them to appoint an administrator de bonis non clothed with the same powers the executor was clothed with under the will of the deceased party. For these reasons I shall vote for the reference to the Judiciary Committee. Mr. SANDS. I do not propose to discuss the merits of the order at all but only to make a suggestion. It has hitherto been our practice, as a matter of courtesy, when an order is offered simply to be referred to a committee, to allow that reference. I agree entirely with the view of the gentleman from Prince George's (Mr. Berry) upon the merits; but I really think, as a matter of mere expense, that the time we shall consume in discussing the merits-for we must either adopt the general rule of refusing all orders of this sort or admitting all, or else we must discuss the merits of every individual order that comes up, and decide upon its merits-will cost far more than the printing, paper and ink, in putting them upon the Journal, outside of the question of courtesy to the member offering a mere order of reference. While therefore I entirely concur with the views of the gentleman from Prince George's upon this order, I think we shall save much time and expense in simply referring all orders of inquiry irrespective of their individual merits. Mr. BRISCOE. I do not undertake to object at all to the adoption of the order as a matter of courtesy; for upon that ground I should prefer that this should go to the commmittee. I only want to reply to my friend from Prince George's in his statement that the Constitution says what shall be the jurisdiction of the Orphans' Court, or the Equity Court, or any civil court. The Constitution of Maryland does not say what the jurisdiction of the Orphans' Court shall be, or describe the extent of its jurisdiction at all. I will read that clause of the Constitution in reply to my friend : : "They shall have all the powers now vested in the Orphans' Court of this State, subject to such changes therein as the Legislature may prescribe." The As I at first intimated, it is simply and exclusively, so far as their powers are concerned, a question for the exercise of the discretion of the legislative department of the government. This Constitution has, by its own words, given the Legislature the right to prescribe the jurisdiction of that court. question covered by the, order before us is simply a question of enlarging or circumscribing the jurisdiction of that court; and it is competent for the Legislature hereafter to do that. do that. I am not arguing upon the question of expense, or of economy, for I do not raise issues of that kind before a body like this; but if because a gentleman desires a change in the laws he comes here with his proposition and presents it to the Convention, I do not think it should be therefore referred to one of our committees. We are here for the purpose of establishing the fundamental and organic law of the State; and if we are to prescribe the powers of the legislative, judicial, and executive branches of the government, go into all the details of those powers, I doubt whether we shall be through our work before the end of the year. I have no disposition to be captious when any gentleman offers a proposition for a mere inquiry, but I want this question settled; for if gentlemen are to be allowed to come here day after day and ask committees to consider the expediency of adopting propositions which properly belong to the Legislature, I think we shall be unnecessarily cumbering our journal. As to the question of expense I shall not speak of that, for it is not proper to talk about that! now. I only wish now to show my friend from Prince George's that he is wrong about this. I know very well that the Legislature has this power, and has exercised it, and my friend the chairman of the Judiciary Committee, (Mr. Chambers) will testify that the Legislative department has always exercised that power. It would be a very strange circumstance if it were not to exercise the power to regulate the jurisdiction of the court. I do not say this to consume the time but merely to say that we establish a very bad precedent if we cumber the committees with such orders as this. While as a mem ber of a committee I would not seek to avoid the labor merely, I think we ought not to impose upon the committees the consideration of too many subjects at a time. Mr. CHAMBERS. I will merely say to my friend that I am not the chairman of any committee. Mr. BERRY of Prince George's. I still insist that I am right, and that the Orphans' Court has no such power as that which it is contemplated by the order of the gentleman from Frederick (Mr. Markey) shall be given to them. I think my friend from Calvert (Mr. Briscoe) read this article of the Constitution with very little effect in making the allegations he made as to the powers of the Orphans' Court. I will read it now and give my construction of it: "They shall have all the powers now vested in the Orphans' Courts of this State." Does this give them an additional jurisdiction? The Constitution provides that the jur isdiction that they have may be changed by the Legislature, but it does not allow the Legislature to extend their jurisdiction. The provision of the Constitution will not admit of the construction placed upon it by the gentleman from Calvert (Mr. Briscoe.) They have no such power under the law. They have no such power under the Constitution. The object of the order of the gentleman from Frederick is to extend their powers, so that when an executor shall die vested with power under a will to sell real estate, it may not be necessary to make application to Courts of Equity in order to carry out the view of the intestate. Mr. SANDS. I still entirely agree with my friend from Prince George's (Mr. Berry) in his view of the law. The order was agreed to. IMMIGRATION OF FREE NEGROES AND MULATTOes. Mr. CLARKE. Before the order is read which I propose to offer, I desire to say with reference to the remarks of the gentleman from Calvert (Mr. Briscoe) that the subject embraced in this order may be considered by some a matter of legislative power. It may embrace, to a certain extent, matter which has been heretofore a subject of legislative action. But, as I understand, it is perfectly competent for a sovereign convention to say whether they will regulate the matter by organic law or leave it in the power of the Legislature to regulate it hereafter. The present Constitution embraces matters which are sometimes left to mere legislation, as with reference to usury, a subject which might have been left to the legislative department but which it was thought proper to fix in the Constitution. So in respect to the creation of a public debt, &c. This proposition embraces a matter which has been heretofore a matter of State legislation, but which I desire shall be submitted to the consideration of the proper committee to be incorporated in the organic law. With reference to the propriety of offering such propositions, I will say that many of us are members of one or two committees, and have no opportunity of knowing what is going on in other committees at all; and although the committees are very competent to take charge of the subjects committed to them for investigation, yet it may so happen that a gentleman may have a proposition which he wishes passed upon by some other committee; and I think it not improper that he should They had the general supervision of the es- offer such a proposition and refer it to the aptates of deceased parties, and the general su-propriate committee, which will give him an pervision of the estates of minors. These opportunity of having his views passed upon. were the principal duties confided to the Or- I offer the following order: phans' Court when this Constitution was adopted. It proceeds: What were the powers vested in the Orphans' Courts of this State at the time of the adoption of the Constitution? Ordered, That the Committee on the Legislative Department be instructed to inquire "subject to such changes therein as the into the expediency of inserting the followLegislature may prescribe." ing articles in the Constitution: |