being called to assist our captain-general, and governor-in-chief of our province, &c. in general assembly, &c. though it dissolve on the demise of the king, in whose name the writ issued, the governor being not longer our governor, that is, the governor appointed by the king, in whose name the writ issued; yet should there be ten succeeding governors, during the reign of one king, the tenth would be as much our governor, that is, the governor of that king, in whose name the writ issued, as the first was; and the assembly being continued by prorogation, or adjournment, might, by virtue of that writ, as legally assist the tenth, as the first.

Some persons may, perhaps, be of opinion, that, by our governor, is meant the person of the governor, testing the writs, and that the assembly is to meet him, as the parliament is to meet the person of the king, who calls them together. If this opinion be true, then the death, or removal of the governor will be equal (in that case, at least) with the demise of the king, and no lieutenant-governor, or president of council, could meet with such an assembly; and it was to no purpose, to direct the president here to continue the present assembly: but every day's practice, in this, and all the other plantations, shews the weakness of such a notion, and that they may meet, and act, with other persons, than the person of the governor, testing the writ. Since, then, the person of the governor is no otherwise to be considered, in this

case, than as the servant of the king that sent him, and the assistance intended by the writ, is not for his own, but the benefit of his master, whom he here represents, it is plain, both from the words, and intent, of the writ, that the assembly may as legally act with the tenth governor, and he with them, (the same king continuing,) as with the first; so that the determination of a governor's commission cannot operate to dissolve an assembly, as the demise of a king does to dissolve a parliament, there being nothing like the same reason, or one of equal force, the nature, and intent of the writs being entirely different.

As by the case of Paston, it was a point agreed, that, upon the demise of a king, the parliament discontinued, the reasons of which I have shewn, and, that they do not at all concern the determination of a governor's commission: so another point, by that case agreed, is, that the choice of them is a judicial act of record, and that judicial acts of record remain. If, then, the death, removal, or determination, of a governor's commission does not affect this province, and the assembly, in the same manner, that the demise of the king doth, then it will follow, that an assembly, regularly chosen, and returned, into the chancery here, is such a judicial act of record, as will remain, notwithstanding the determination of the governor's commission, or such death, or removal, of a go

vernor.

That the death, or removal, of a governor has not that effect, is agreed on all hands, for that does not determine his own commission, a lieutenantgovernor, or president of the council, being directed and enabled to execute the powers of it; so that the matter must rest solely on the determination of the patent, and if that has not such an ef fect, the case will be pretty clear, that the determination of such commission does not dissolve the general assembly. First, the determination of the governor's patent does not determine the office of any person holding, by patent, under the great seal of England, because such officer holds his office by the same authority, that the governor holds his ; and if it can be supposed, that the determining of one patent can determine another independent on it, the determining any other patent in the government, may equally conclude the rest, and the determining the secretary's patent, as effectually determine the governor's, and dissolve the assembly, as the governor's can. Secondly, neither does it determine any office, held by the seal of this province: for patents, under the seal here, are often given by the king's especial directions, and commands, in which the governor is always ministerial; and patents, under the great seal here, are as effectual, for all the purposes intended by them, as if they had been under the great seal of England, being derived from the same authority, viz. the king; for what he does by another, is of equal vali

dity, as if done by himself, and only to be set aside the same way: therefore, offices held under the seal of this province are no more voided by the determination of the governor's patent, than if the same offices had been held under the great seal of England. Thirdly, if the determination of a governor's patent, has the same effects, with respect to offices, &c. here, as the demise of a king, such effect must be occasioned either, 1st, by the nature of the thing, or 2dly, by the express words of the patent to the new governor, or some other patent, signifying such to be his majesty's plea

sure.

First, if, from the nature of the thing, (viz. that, upon the determining of a derivative power, all offices become void, that are held by patents or commissions, tested by the person or persons ex. crcising such derivative power,) then the present. governor's patent will become void, upon the king's return into England, and, for any thing we know, may be void at present, which it is ridiculous to suppose, and of dangerous consequence to the public administration, and peace, to maintain : it is therefore very clear, no such effect can arise, from the nature of the thing; and it will be as evident to any body, that reads the governor's patent, that no such direction is contained in the words of that patent, nor is there any other letters patent, signifying such to be his majesty's pleasure.

If, then, the determination of a governor's patent

does not affect this province, in such manner as the demise of a king would do, in the determining of offices, and commissions, which is the less thing, à fortiori, it cannot affect it so as to make a judicial act not to operate, i. e. to dissolve, an assembly, which is the greater. I shall, therefore, lay it down as a true position in law that every judicial act of record remains, notwithstanding the death or removal of a governor, or determination of the powers, by which he acts; an assembly, chose by virtue of the king's writs, and the returns made into the chancery, or office here, is a judicial act of record; therefore, an assembly so chose, &c. remains, notwithstanding the determination of the governor's patent. 4 E. P.

When any question arises here, concerning a governor, or assembly, many are ready to ask, what the king, or parliament, of England does on a like occasion: vainly thinking, that whatever is done by a king, or parliament, is fit to be drawn into example for this place. However extensive that notion may be in America, it is rather to be laughed at than argued with; not but that the wisdom and regularity of a British parliament are very fit patterns, so far as they are imitable by us. But, as my lord Vaughan observes, under title process into Wales, when the question is of the jurisdiction in a dominion, or territory, belonging to England, the way to determine it, is to examine the law in dominions, the same, in specie, with