(11.) The opinion of Mr. Hamilton, an eminent lawyer of Pennsylvania, on the same subject.

[Copy of a letter to Dr. Johnston, one of the council

for the province of New York, from Mr. Hamilton, an eminent lawyer, at Philadelphia.]

Sir;

At your request (though in much haste, this being the time of our Supreme Court), I have considered how far it is agreeable to law, for a succeeding Governor to meet and act with an assembly called by his predecessor; and, upon the whole, it appears to be thus: First, I find it to be the practice of several of the governments under the Crown, to meet the same assemblies called by their predecessor. I also find the justices and judges, appointed by the former Governor, continue to act by the same commission under a succeeding Governor, and that their commissions are never renewed, but when the Governor thinks fit to make some change in the magistracy. Thirdly, that no military officer receives any new commission from a succeeding Governor. These things I know to be facts; and the reason then must be because the writs and commissions by which the persons are called or commissionated, are the King's writs and commissions, and not the Governor's that grants them. These considerations, with the practice of Ireland, who had but one new parliament in the Queen's time, and had six several Lords-Lieutenants, besides ten several Lords-Justices, is full proof to me that the test of a writ of summons for holding an assembly, being changed, does not by any means dissolve the assembly. As to the objection of the parliament of Ireland being summoned by writ under the great seal of England, it is a mistake: for both history and law do

agree, that the parliament is summoned or called by the Lord-Lieutenant, under the great seal of Ireland, who indeed cannot call a parliament until he has obtained licence from the King for so doing under the great seal of England.

Now, a Governor in the plantations is not restrained or tied up, for his commission gives him a power generally to do those things, which, in their nature, are to be done by a Lord-Lieutenant, by special licence. See the manner of calling a parliament in Ireland, (upon a question which arose about the exposition of Poyning act, as it is called,) resolved by the two chief justices, the chief Baron and the King's learned counsel, in 4th Coke's Institutes, fol. 353.

Heylin, in his Cosmography, says the Lord-Lieutenant summons a parliament by the King's appointment.

Collier's Historical Dictionary says the Lord-Lieutenant calls and holds the parliament of Ireland by the King's licence.

The present state of Great Britain, published in the year 1718, the fourth edition, title Ireland, page 58, says the parliament is at the King of England's pleasure, called by the Lord-Lieutenant, or deputy, and by him dissolved. That the test of the writ is in the LordLieutenant's name, appears from the history of that country, and the book called the History of the Reduction of Ireland.

That it must be so, appears from the form of the summons made by a guardian of England in the King's absence, for calling a parliament, 4th Coke's Institutes, fol. 6, at the foot of the page.

Then, if it be so, that the test must be in the name of the officer who calls the parliament, as undoubtedly it

is, see how absurd it is to say that the determining that officer's commission, can dissolve the parliament, when the contrary has always been practised.

In the first year of Queen Anne, the Duke of Ormond was made Lord-Lieutenant in the room of the Earl of Rochester.

In February, 1702-3, he meets the same Parliament that was in being, and acts with them. Ormond continued Lord-Lieutenant till the 7th of April, 1707, and then Pembrooke was appointed in his room: he arrives at Dublin the 24th, and on the 7th of the next month, meets the parliament then in being.

On the 29th of November, he prorogued the parliament to the 6th of May next, and returns to Britain. In October, 1708, the Lord Wharton is made Lord-Lieutenant, in the room of Pembrooke; and April the 21st, arrives at Dublin, and then prorogues the parliament, then in being, to the 5th of May following, at which day it meets; and it appears in the speech of the commons, that that parliament had held many sessions before, so it was not one of his calling. On the 30th of August, 1709, the patliament is prorogued to the 13th of March. On the 19th of May, the Lord-Lieutenant, who had been over in Britain, returns, meets the same parliament and orders the choosing of a new speaker, in room of Allen Broderick, who was called up, to the house of Lords as chief justice of the King's Bench in Ireland, to give his assistance there.

August the 28th, the parliament was prorogued to the 8th of March next, and the Lord-Lieutenant goes for Britain. July, 1711, the Duke of Ormond appointed Lord-Lieutenant and arrives at Dublin, and meets the same parliament the 8th of July. November, 1711,

parliament prorogued to the 2d of September, 1712, and goes for England.

This is a history of matters of fact, by which it appears that the removal of a Lord-Lieutenant or Governor who tests a writ of summons for a parliament or an assembly in his own name, neither does nor ought to dissolve that parliament, or assembly.

These are the grounds of my judgment for the legality of the present assembly meeting the Governor. I have spent as much time as my private affairs would permit, in taking the opinion of the men of the best judgment here, (Philadelphia,) and I have met with none that differ from me in judgment.

But how far it may be convenient for the Governor to take these measures, though lawful, I cannot say; nor can I see what can be objected against his so doing, unless the people say that it is striking at their privilege, in denying them the opportunity of a new choice, and this is fully answered by the arguments in favor of the septennial bill.

September 27, 1720.

W. HAMILTON.

(12.) Mr. Fane's opinion on the nature of the bond to be given by the Governors of Proprietary Governments, for observing the Acts of Trade.

To the Right Hon., the Lords Commissioners for Trade and Plantations.

My Lords;

In obedience to your Lordships' commands, signified to me by Mr. Popple's letter of the 14th of this instant, wherein your Lordships are pleased to desire my opinion

in point of law whether in obligations which are made to the King's Majesty, the word executoribus, or successoribus, ought to be made use of. The act of the 33d of Henry VIII. chap., 39, expressly directs the word executoribus to be used in all obligations to the King, considering him in his natural capacity; and a punishment of imprisonment is by the same act inflicted upon such persons as shall make, or take, such obligations, unless it is in the terms prescribed by that act. Therefore, I am humbly of opinion, since this law has so particularly directed the manner of taking it, the King' remembrancer, who is the proper person for seeing it done in the most regular and legal method, cannot safely act in this matter, but agreeably with this law. But supposing this act was not in force, I apprehend a bond, the conditions of which are of the same nature with

Major Gordon's, should more properly be taken to the King, his heirs, or successors.

Feb 18, 1726-7.

FRAN. FANE.

(13.) The opinion of the Attorney and SolicitorGeneral, Trevor and Hawles, on the trial of a Lieutenant-Governor, and other legal topics.

To the Right Honorable the Lords Commissioners for Trade and Plantations.

In answer to your Lordships' quæries, signified to us by Mr. Popple, the 30th of April last, relating to offences committed by Captain Norton, and against the act for regulating abuses in the plantation trade: we are of opinion that for such offence or wilful neglect, the