was encountered in eliciting an opinion. 620 Finally, the Attorney and Solicitor 
Generals on June 2, 1759, represented that the assembly could not take cognizance, 
on the grounds of contempt, of a libel upon a former assembly and 
that the denial of habeas corpus was an unwarranted invasion of the royal 
prerogative and the liberty of the subject. 621 The Council thereupon directed 
petitioners to seek judicial redress for illegal commitment in the colony and 
of Commons had no such power as the assembly 
had assumed, that the assembly was 
not a parliament and had nowhere near as 
much power as the House o£ Commons. Even 
if it had sufficient jurisdiction, it had acted in 
an arbitrary and unjust manner; the King by 
sovereignty had full power to order the appellant's 
release, and such power had been 
exercised in Pennsylvania and other colonies. 
Counsel for the assembly, instructed by 
Benjamin Franklin, put the whole matter on 
the footing that the assembly had as much 
power as the House of Commons. Paris remarked 
that such an argument would not 
have been insisted upon or tolerated before a 
superior jurisdiction (Paris to Allen, May 13, 
1758 [9 MS Penn Official Corres., 1758-64, 
35]). Cf. 5 MS Penn Letter Boo\s, 1757, 318. 
For arguments of the assembly see 1 Smith, 
hije and Correspondence of Rev. Wm. Smith, 
205-6. For the Case of Smith, see Penn MSS, 
Smith and Moore v. Assembly, 1758-59, 201- 
35; for the Brief of the Assembly see MS Pa. 
State Doc., 1754-58 (NYPL). It was argued 
inter alia that "we do not see how any application 
can lye in this summary way to the 
crown, no appeal lyes in any case from commitments 
for contempts" {Brief of the Assembly, 
p. 13). 
020 Solicitor Ferdinand John Paris reported that 
after the hearings he had found the Solicitor 
General most ready and most clear in his opinion 
that the commitment was arbitrary and illegal, 
but doubtful as to how and in what 
manner the King could order the appellants 
released. Attorney General Pratt delayed giving 
his opinion; although agreeing that the 
King could release the prisoners, he was unwilling 
that release should be ordered upon his 
written report. Paris conjectured that Pratt 
feared that there was some political intention 
in making the Committee reference for an opinion 
on a matter of so high a nature. Pratt acknowledged 
the force of precedents showing 
the authority of the crown in the plantations 
in ordering prisoners released who were arbitrarily 
and irregularly committed by governors 
and courts, but desired a precedent of a 
crown order in a case of assembly commitment. 
Being a case of novel impression, Paris could 
produce no such precedent. Paris, who was 
au courant with palace gossip, further declared 
that Pratt's promotion had not been pleasing 
to all and that it was rumored that there was 
an intention to replace him. He believed, therefore, 
that Pratt entertained some suspicion that 
the reference was made as a means to found 
or to assist removal from office. Paris insisted 
that some report should be made, but when 
news of the prisoners' release arrived, Richard 
Partridge asked that no report should be made. 
Then came the further news that when the 
assembly reconvened Smith and Moore had 
been recommitted, and Paris threatened to apply 
to the Committee to hear the matter. In case 
the question was avoided by the crown law 
officers, Paris urged an action for false imprisonment 
against the sheriff with a special verdict 
and then an appeal to England for a 
judicial determination by tire Privy Council 
(Paris to Allen, June 10, 1758 [9 MS Penn 
Official Corres., 1758-64, 36-37]). For a list 
of the precedents laid before Pratt to show the 
exercise of sovereignty in Pennsylvania and 
other provinces see Penn MSS, Smith and 
Moore v. Assembly, 1758-59, 157. The proceedings 
in the case of the Jamaican imprisonment 
of Francis Delap were also probably 
utilized; see Penn MSS, Acts of Parliament, 
Orders in Council . . . ,58. For the efforts of 
Smith to bestir the crown law officers see 1 
Smith, Life and Correspondence of Rev. Wm. 
Smith, 203-5. Riddell naively accredits the delay 
to the fact that the referees were "very 
busy men" (Libel on the Assembly, 278, note 
52). Benjamin Franklin wrote that the matter 
would have been dropped by the crown law 
officers, but for the report of recommitment of 
the petitioners (3 Writings of Benjamin Franklin 
[ed. by A. H. Smyth, 1905], 443-44). 
021 p enn MSS, Smith and Moore v. Assembly, 
1758~59, 193-