Introduction. xvii

Yet these were not choices between empty pomp and circumstance of the
councillor's position and the abrasive creativeness of the legislative branch.
For the councillor's duties were exacting of both time and talent. Above all
the broad appointive powers required wide knowledge of people and nice judg-
ment of their capacity to serve the public. The mere catalogue of appointments
assigned to the Council indicates the magnitude of the task. The Council
appointed the chancellor, all judges and justices, the attorney-general, naval
officers, officers in the regular military service, officers of the militia, registers
of the land office, surveyors, and "all other civil officers of government (as-
sessors, constables, and overseers of the roads only excepted)." For a large
county like Prince George's the justices of the county court numbered eighteen
and the judges of the orphans' court seven. To be sure the personnel of both
courts overlapped not only in Prince George's but in the other counties as well.
Still appointments to the county courts and orphans' courts of the seventeen
counties became the chief, almost the only business of the council for an entire
month. Witness the year 1786 when the councillors worked from February 15
to March 13 drawing up these panels. Not surprisingly the Council recom-
mended to the General Assembly a reduction in the number of justices
(March 6, 1786).

Such formal recommendations were rare. The Council carried out its duties
almost entirely within the established frame of government and statutes made
under it. Even so interpretation and establishment of precedent are among the
most instructive features of the proceedings before us. As watchdogs of the
Constitution the State Council kept a sharp eye on justices of the inferior
courts to insure adherence to letter and spirit of the Constitution. Elections in
particular created problems for county court justices. In late 1785 the State
Council reviewed several cases which established precedents followed there-
after a difficulty perpetually confronting the justices at elections grew out
of a constitutional provision (Article XLII) requiring them to certify two
names from each county for the office of sheriff. These two persons were to be
those of the duly qualified candidates receiving the highest number of votes.
To qualify the candidate had to be twenty-one years of age, a resident of the
county, and possessed of an estate, real and personal, valued at £1000 current
money. The double return had practical value. The governor commissioned the
person receiving the highest number of votes for a three year term. But in the
event of his death, refusal to serve, or disqualification the governor then com-
missioned the other person, second on the return, to complete the three year
term. This arrangement had two advantages. It eliminated the necessity for a
special election when the successful candidate would not or could not serve;
it also prevented the important office of sheriff from remaining vacant longer
than a few days in such cases. But for all the excellence of Article XLII it
was silent on one point: what the judges should do when only one person in the
field of candidates in an election could qualify?

Such a case arose in October 1785 when the justices certified a single name
for sheriff of St. Mary's County with the explanation that the two other candi-
dates receiving votes lacked "property sufficient to render them eligible to the