166 Proceedings of the Council of Maryland, 1739.

Lib. C. B.

Whether the writing such Letters is such an Assuming an
illegal Authority, or such an Acting as to render the Persons
lyable to any and what criminal Prosecution at Law.

May it please Your Excellency.
In Obedience to Your Excellencys and the Honble Councils
Commands signifyed to me by M^r Ross: I have considered
the within Case
As to the first Question; I conceive that no Members of the
Lower House of Assembly can legally assume any Authority,
or act as a Committee of that House after a Prorogation, and
during the Interval of the Assembly, by Virtue of any Order
of the said House; because all the Orders thereof determine
by a Prorogation
The second Question can't be resolved by any Book Case
that I can recollect, but I think there are some to which it may
be compared, Viz. Where an Officer by Virtue of an Order
of Either House of Parliament, takes a Person into Custody
after a Prorogation (as was the Case of Pritchard in Raymond
120) or keeps a Man in Custody after the Prorogation, who

P. 34

was committed during the sitting of the Parliament. The
Party may be discharged, but I never (that I remember) met
with an Instance of any Prosecution either Criminal or Civil
against any Officer in either of these Cases, tho' both have
frequently happened: Besides as the Governments of the
Plantations are dependent on the Crown, and that the Dernier
Resort of the Inhabitants is to the King in Council, so in Case
of any Application or Complaint to His Majesty, the Person
or Persons complaining may lawfully apply for Copies of
Records or Other Papers, which he or they may apprehend to
be necessary to support such Complaint
In this Case under Consideration, the Persons who wrote
the Letters act as under an Authority, which Authority, I con-
ceive, has no Existence, and that therefore what they do, is to
be considered as done by private Persons; and although they
have demanded Copies, without paying or engaging to pay
the Fees, which Demand I think no Officer is obliged to com-
ply with (and which Copies they may certainly demand and
ought to have on Payment of the fees) yet I don't think the
barely making such Demand, tho' by Pretence of an Authority,
will subject them to a Criminal Prosecution of any kind; for I
conceive that the doing of a thing which is prejudicial to the
Publick or to some private Person by Pretence of Authority,
which could not be done without Authority, is what makes
the Crime; All which is humbly submitted
Dan^l Dulany