year), without disturbing his commission of one and one-half percent on all
transactions, and to compensate him from time to time "for any services which
contrary to present expectation he may be enabled to perform." The motion
lost on a tie vote, whereupon Kilty "agreeably to his constitutional privilege
requires that the opinions of the members on the Subject be given in writing
and filed among the records of the Board." It was so done (April 18, 1787).
Perhaps a note of animus crept into Kilty's relations with Jenifer in 1786-87.
The times were hard, the political kettle was boiling in state and nation. But
nothing of the partisan spirit appears in Kilty's last dissent reported in this
volume. The moment was important, one of the rare ones when actions of the
Council of State touched on national affairs of great import. Maryland had
ratified the constitution of the United States some eighteen months previously.
Now on January 21, 1789 before the Council of State lay returns from all Mary-
land constituencies for representatives to the congress and for electors who
were to choose the first president and vice-president of the United States. How
were these results to be signified to the federal congress that had not yet even
come into existence ?
The Council of State gave its answer: by proclamation issued over the
signature of John Eager Howard, Governor of the State of Maryland. The
proclamation recited that the Governor and Council, having examined the
returns, find that the following six persons are duly elected Representatives of
this state in the Congress of the United States and the following eight persons
duly elected Electors. "Given in Council at the city of Annapolis under the
Seal of the State of Maryland this twenty-first Day of January seventeen
hundred and eighty nine, J. E. Howard. GOD SAVE THE STATE."
Kilty evidently spent some time working out his dissent, befitting an action
that touched national concerns, bound to establish precedent and, as he thought,
precedent unfortunately for ill. He waited until February 6 before filing
his argument. In effect, Kilty said, the Council should have transmitted the
papers (i.e. the election returns themselves), not merely a proclamation, to the
House of Representatives. How, he asked, can the Federal House of Repre-
sentatives act as judge of the election returns and the qualifications of its
members without every material document? Kilty's elaboration of his theme
leaves no doubt that here is a Federalist in the making. His paper leaves no
room for doubting his abilities as a constitutional lawyer.
With these February days, the last under the moribund government of the
Articles of Confederation, the present volume ends. It ends appropriately on
matters of national concern, at a time when the new government was organizing
for the continuous effort that has been our national history down to the present
year of grace. Even thus does our remote past form a part of the figure in the
seamless web of history.
The editor of this volume of the Archives has aimed at establishing a reliable
and understandable text from the manuscript materials. This task presented
problems, as the Publications Committee had recognized in its early discussions