The King, in

warrant, after proceedings upon it? judgment of law, is a body politic, to prevent an interregnum. The powers of government ledged in the crown do not drop upon a demise,but are instantaneously handed to the successor, without any cessation or intermission the power, therefore, to summon, prorogue, · and dissolve the parliament, devolves as a subsisting power undetermined,

Before the act of William, cap. 27. the powers of gov. ernment delegated to the Governor, upon the death of the King determined with the commission and of consequence the power to summon, prorogue, and dissolve assembly, ceased. After the above act of William, the commission of the Governor did not fall upon the demise of the King, but remained in force for six months. Upon the event, then, of King William's death, the power to summon, prorogue, and dissolve the assembly did not fail, but survived and existed in the Governor as a subsisting power undetermined.

The power to summon, prorogue, and dissolve the parliament is handed, by the common law, as a subsisting power to the succeeding monarch: the power to summon, prorogue, and dissolve the assembly of this prov ince, was handed by statute law, upon the demise of the King, as a subsisting power to the Governor.

But the succeeding monarch, notwithstanding the subsistence of the power to summon, prorogue, and dissolve, cannot, by common law, proceed upon the writ of summons issued by his predecessor: a fresh writ of summons must issue, and a new parliament must be called. Did the statute of William give a greater latitude to the subsisting power of the Governer?

The statute of William, cap. 27. is enacted in general

retrospect; they look forward only and prescribe for the time to come; for, upon no principle of natural justice, can a man's actions fall within the conusance of a law made and enacted ca post facto; but, when an act, originally void,is confirmed by an after act, the act, thus confirmed operates ab initio andattaches upon the time mesne, the commenc't, and confirmation of it; and, therefore, the act confirming has a clear retrospective effect. By the act of 1701-2 many pains and penalties are imposed: the first act, relied upon as a confirmation, is the act of 1704; three years and upwards then, had the act of 1701-2 slept without the sanction of a law in that interval of time, upon a supposition of the nullity of the act originally, every precept might have been lawfully broke without apprehension of pains and penalties; but if the act of 1704 operates as a confirmation, every such breach in the interval, though clearly a legal act at the time, becomes criminal aud subject to the punishment imposed: this is contrary to natural justice. Hence the maxim, Nova constitutio futuris formam debet imponere non praeteritis, which, in substance is, statutes have no retrospect: when an act, therefore, is originally void, the law will never work a confirmation, by construction or implication.

An act of parliment, indeed, when express upon the point, I admit will bear down the law and principles of justice; but, when an act is not plain and express, no exposition can prevail which is repugnant to natural right and established maxims.

Among the old statutes we meet with acts recognized that are not to be found on record; the recognition of them by succeeding law is good evidence that such statute once existed; they are received and prevail as statutes,

not as lifted up or animated by the statutes which recognize them, but as original statutes, made and enacted upon a constitutional foundation; the recognition operates only as presumptive evidence of the fact. But when we can go back and lay our hands upon the very statute itself; when we can trace the foundation of it and show it originally void from the clearest grounds, what avails a naked recognition? Every presumption ceases when the contrary is proved.

mg:

It has been objected, that, upon a supposition of the nullity of the act of 1701-2 the act of 1700 must be existing I have no such conception. If the act of 1701-2 was void ab initio, the act of 1700 was in force when the act of 1704 was made, and therefore expressly repealed. But then it is objected, that the saving clause of the act of 1704 prevents the repeal. This objection scarce demands the ceremony of a refutation. The saving clause expressly extends to such rights and benefits olny had accrued, and were then actually vested. Was the present claim of the forty per poll by the present clergy, a right and benefit which had then accrued and actually vested? Surely the clergy of this province are not a body politic with a capacity to take by succession; nor is the forty per poll a transmissible right. The saving clause, with respect to the rights of the clergy, was spent upon the dropping of the appointments or inductions which were then in being.

My opinion then is, that, upon the demise of King William, the assembly of this province was dissolved; that the assembly which afterwards met and enacted

the contested forty per poll law, being called without a fresh writ of summons, was illegally and unconstitutionally convened; that, therefore, no obligation can result from the said forty per poll act, as a law,

August 15, 1772.

Fifth.

WILL. PACA,

Of the want of sovereignty, in the Governor and Council, and Representative body, when met in Assembly.

(1.) The opinion of the Attorney-General Harcourt, on the impropriety of an act of recognition of Queen Anne, by the Assembly of Maryland,

As to the act entitled "an act of recognition," altho' the said act be an instance of the fidelity of the inhabitants of this province; yet, in regard the said province is entirely dependent on the Crown of England, and no such law has been thought proper to pass in England, since Her Majesty's accession to the Crown; I humbly conceive such a law was improper to be passed by the assembly of this province.

Sept. 17, 1707.

SIM. HARCOURT,

(2.) The opinion of the Solicitor-General Thomson, on the limited effect of an act of naturalization by an Assembly.*

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

May it please your Lordships;

In obedience to your Lordships' commands, signified to me by William Popple Esq., the 10th of December last, I have considered the bill to naturalize Jacob Arents and his three children in New Jersey; and as such naturalization can have the effect to give them a right to enjoy the privileges of natural born subjects in that province only, I do not see any objection to the passing this act, since the assembly there think them proper objects of that favor,

March 5, 1718-19,

WILL. THOMSON.

(3.) The opinion of the Attorney-General Murray, on the question, whether au assembly can impose a duty on the importation of convicts into a colony.

This statute, 4th Geo, I. c. 11, for the more effectual transportation of felons, after reciting, that it had been

* In 1698, Governor Nicolson, of Maryland, wrote the board of trade, "that he always caused a proviso to be inserted in the acts of naturalization, that they should not operate against the statute of 7 and 8 Will. III." Governor Seymour, of the same province, observed to the board of trade, upon an act of naturalization, of the Maryland assembly, 1704, this is only intended to enable the parties to purchase lands, but not to qualify them to trade, or to be owners, or masters of ships, it being always acknowledged, that any act of naturalization, made in this province, extends not beyond it, being circumscribed by the 7 and 8 Will. 3. for preventing frauds in the plantation trade."