ON the 16th of January, 1701. Capt. John Nanfan, Lieut. Gover­nour, and the Council made the following Order, viz.

Whereupon Mr. Hatchins appeared, and for neglecting or refusing to deliver up the said Addresses, on the 19th of January was committed to the common Goal of the City of New-York, for signing of Libells, said to be against the administration of the Government.

On the 20th [...]oll. Bayard, Mr. Rip van Dam, Mr. Phillip French and Mr. Thomas Wenham addressed the Lieut. Governour and Council in writing, as followeth, viz.

Coll. Bayard and the other three Gentlemen having Personally delivered this Writing, and refusing to surrender the Copies of the said Addresses, had time given them, on their Parol, to appear next day. And afterwards, the same day, the Lieut Governour did deliver the above Address to his Maje­sti [...] Attorney General of this Province, for his Opinion in Law therein, which the said Attorney General did conceive in writing. And on the 21st day came into the Council Chamber, and there delivered it to the Lieut. Go­vernour, which was read, and ordered to be entered in the Council Book, in h [...] Verba,

And afterwards the said Persons appeared, and continuing their Refusal to surrender the said Copies, notwithstanding the Opinion of the Attorney General, the said Lieut. Governour and Council issued the following War­rant.

Which Act of Assembly mentioned in the Warrant of Commitment, followeth in these Words, viz.

Upon Coll. Bayards Commitment, the City Militia were by beat of Drum called to Arms, and a whole Company daily appointed to guard the Prison for about a week following, and Defaulters strictly punished, which was [...]r [...]ensom to the People, and occasioned great Clamour; whereupon it was taken off.

The Prisoners being informed that a special Commission was ordered for their speedy Tryal, petitioned the Lieut. Governour and Council on the sixth of February, in these words,

To which a verbal answer was given to Coll. Bayard's Son, That out of meer Grace the Court should be deferred for five days.

On the 19th of February the Commissioners sate, and published their Commission in these words, viZ.

[Page 6] And Proclamation being made in the usual manner, the Pannel of the Grand Jury was called over; those who appeared and were Sworn, were

• Johannis D' Peyster, Fore-man,
• David Provoost,
• Martin Clock,
• Leendert Huygen,
• Barent Reynd [...]rs,
• Johannis vander Spiegell,
• Johannis Outman,
• Hendrick Gillissen,
• Peter van Tillburgh,
• Johannis van Giesen,
• Abraham Keteltas,
• Aryen Hogelant,
• William Jackson,
• John Corbitt,
• Johannis van Cortland [...],
• Caleb Cooper,
• John van Hoorn,
• Burger Mynders,
• Gerret van Hoorn,
• Jacobus D' Key,
• Abraham Kipp.
• Johannes van Santa.

Jacob Boelen and Johannes Hardenbrook did not then appear.

Before the Jurors were Sworn, the Council for the Prisoner objected against some of them for declaring before several Witnesses, then ready to be produced in Court, That if Bayard's Neck was made of Gold, he should be Hanged at the same time boasting that they were of the Jury; and prayed, That since that Jury was summoned upon that special Matter, such might not be Sworn. Which the Court Over ruled.

Mr. Atwood, the first Commissioner give a long Charge to the Jury, aggravating the Facts supposed against the Prisoner, & positively asserting, That those Facts not only were Person within the words of this Act of Assembly, but also by the Common Law before the Statute of the 25 E. [...].

The Jurors having received the Charge, the Court adjourned till next Day.

The Court being met the 20th, the Indictment against Coll. Bayard was delivered by the Court to the Grand Jury, and Mr. Weaver, appointed Solicitor General for this Servicee, attended them with the Proofs, and insisted to be present with the Grand Jury, and that no Person should be sent for but whom he should Name, and that no Question should be asked them but such as he should approve of. On the other hand, John Corbitt, Caleb Co [...]per, John Cortland and Jacoh d' Key insisted that the Kings Council ought not to be pre [...]ent with them at their private Debates, and that they had a Right to send for what Persons, and ask what Questions for their Information, as they should think needful. Whereupon Mr. Weaver did threaten them, and (to use his own Expression) would cause them to be Trounced, taking down their Names. And the Grand Jury broke up without acting.

The Court in the after-noon met according to Adjournment, and the Grand Jury being sent for, Mr. Weaver made complaint, That he was obstructed by some of the Grand Jury, who would not acquiese to his being present at the Examination of the Kings Evidence, and would have other Evidences sent for, than what were by him produced. And thereupon [Page 7]Mr. Atwood did discharge the above said our Persons from their further Service; and caused Jacob [...]elen, who was absent when the others were [...], to be sent [...]or from his House, Sworn and added to the Grand Jury; and the Court adjourned till seven a Clock that Evening, but did [...] till about Midnight, when lending to know if the Jury had found the [...], and being informed, that they were seperated, he adjourn'd the Court till next Morning at eight of the Clock, and in the way from the Court, in Passion said [If the Grand Jury will not find the Bill against Coll. Bayard, I will bring an information against him of High Treason, and Try him upon [...]]

February 21. The Court met, and the Grand Jury appearing in Court, [...] Indictment was brought in by the Fore-man endorsed Bill [...] Vera, and signed with his Name. Upon which Mr. Atwood immediately di [...]c [...]ged the Jury.

Whereupon the Council for the Prisoner informed the Court that the Bill was not found by Twelve Jurors And upon Examination it appeared to the Commissioners that of such of the Jurors who remained in Court, Eight of the Nineteen were against finding the Bill, as appears by the Minutes of the Court, entered by order, viz.

• Jacob Bo [...]len,
• Abraham K [...]p,
• John Van Hoorn,
• Gerr [...]t Van Hoorn,
• Johannis van Santen,
• William Jackson,
• Barger Mynderts,
• Johannis Vanderspiegel.

Which Eight importuned the Court that the Fore-man might be brought upon his Oa [...]h, and the res [...] sent for to witness the Truth, That they only [...]ound the signing the Addresses, and not the Treason. To which Mr. Atwood made answer. They were no longer Jurors, they had presented the Bill, and the Court was posse [...] of it, it was now a Record, and there is no averment against a Record.

Ordered, The Prisoner come to Tryal on Monday next come seven Night, to which day the Court adjourned accordingly.

On Monday, the 2d of March, the Commissioners met according to adjournment.

Mr. Nicoll, (Council assigned for Coll. Bayard) moved that the Indictment might be quashed, not being found by Twelve Men: and to prove the ma [...]ter of Law, offered to produce Authorities; and to prove the matter of Fact, offered to produce Evidences in Court, if either were insisted on, the Grand Jury being then by [...] in Court.

Mr. Sollicitor General, What is moved in behalf of the Prisoner is most improper, for asmuch as the Indictment is found, and signed by the Fore­man Billa Ve [...]a; there can be no Averment allowed against a Record brought in by the Body of a Grand Jury, and therefore I desire the Prisoner may be sent for and arraigned.

Nicoll, This is a matter of great Weight and Moment, and concerns not only the Life and fortune of the Prisoner and his Posterity, but the Right of every English Man in the Province: It is not only lawful, but highly reasonable that an Indictment for High Treason should be found by [Page 8]Twelve Men at least. By the Statute 13 E 1 W. 2 cap. 13. Sheriff [...] feigning Persons to be indicted of Fellonies and other Trespasses, take Men not culpable nor lawfully indicted.

‘Whereas they were not lawfully indicted by Twelve Jurors, ordained, That Sheriffs, where they have power to enquire of Trespasses by the Kings Precept, or by Office, shall cause Inquests, &c to be taken by lawful Men, and by Twelve at least, which shall put their Seals to such Inquisitions.’ [Here it is observable, That there is twice legi [...]mo modo in few Lines.

Coo. Inst. [...]. part 387. says he, Things are provided, or rather declared by this Act,

[...]. Per legales homines ad minus D [...]od [...]im faciant Inquisitiones.

C [...]. Inst. 1. fol 126 Indictment is defin'd, an Accusation found by an Inquest of Twelve, or more, upon their Oath.

Poulton de pace, &c. An Indictment of Treason, Fellony, Trespass, or other Offence, is an Inquisition taken and made by Twelve Men at least.

West Symbo, part 2 86. An Indictment is a Declaration made in form of Law, for the benefit of the Common Wealth, of an Accusation for some Offence either Criminal or Paenal, exhibited unto Jurors, and by their Ver­dict found and presented to be true.

Coo. 3. to. 30. No Peer of the Realm, or other Subject, shall be con­victed by Verdict, but the said Offence must be found by above four and Twenty, that is, by Twelve, or above, at his Indictment. &c.

11 H. 4 9. Inquests had been taken of Persons named to the Justices, without due Return of the Sheriff of which some Out lawed before the said Justices of Record; some fled to Sanctuary, &c for Treason, some for Fellony Granted that hence-forth no Indictment be made by such Persons, but by Inquests of the Kings lawful Leige People, in such manner as was used in the time of his Noble Progenitors.

Without any Denomination to the [...]heriffs, &c except by Officers of said Sheriffs and Bayliffs of [...]anchize, sworn and known, &c. and if any In­dictment be made hereafter in any point to the contrary, that the same In­dictment be also void, revoked, and forever holden for none.

Cok. 3 pag 33. In [...]corlet's case, adjudged accordingly.

Crook Eliz. 654 Clynca [...]rd was indicted on the 8 H. 6. the Record was, Ad [...] Pa [...]is, &c. per Sacramentum A. B. C. D. [...]t a [...]iorum legalium homi­ [...]um in Comitatu pradi [...] presentat [...] exissi [...], &c. and it appeareth not that it was per Sacramentum Duodeci [...], for if it were presented by a lesser Number it was clearly ill, therefore it was revoked.

13 Eliz. B. R. Robert Co [...]nt d' Leyster against Sir Christopher Ke [...]do [...]. Plo [...]d [...]n 385 Predictus Robertus Com [...]s Leyster per nomen Roberti Dud [...]ey [...]per de Lond. militis [...]ly Johannis nuper Duns Northumbrie nuper de, Lond. per Veredictum Duode [...]m liberalium & legalium homin [...] di [...]i Comitatus Nor­folkie indicta [...]s f [...]t, &c. By all which it clearly and undoubtedly appears that as Indictment is not good unless it be found by Twelve Jurors as least.

There can be no averment against a Record, if you [...] pro­duce any Authority that it was ever all [...]ed to make an averment against a Record, and speak to that head, you shall be heard, but to go on upon [Page 9]this Head, whether or no the Grand Jurors are or can be brought to reveal the Counsel which they are sworn to keep secret, cannot be allowed

The Grand Jury Consisted of Nineteen Persons, whereof Eight have openly in [...]ourt protested that they found no Treason.

I have by me the Oathes of two men, that the Bills were found by fourteen Bill [...] Vera, they are so endorsed, have been publickly read in Court, and are of Record, for which reason I, nor no body else can enquire further of it.

This concerns the Subjects Life, and your Honour ought to be Council for the Prisoner, and if a Mis-understanding happens by the igno­rance of the Jurors, so that the Bill is returned contrary to their intend­ment, the Prisoner ought to be assisted.

Pray shew us any Authority where an Averment has been offered against a Record.

May it please your Honour, I am joyned with Mr. Nicoll as Counsel for the Prisoner: The Question that now seems to lye before your Honour is, whether there can be any Averment offered against a Record; there is an Act of Parliament of the [...] of H 4. wherein it is [...]acted, That a grand Jury shall consist De [...] & legal [...]us h [...] n [...]bu [...], and so likewise runs the tenor of the Writ of Ven [...]; for want of such Persons the same Statute does declare the Indictment void; so that it is a good Exception to an Indictment to aver, That any one of the Grand Jury was an [...], which is matter of fact how, shall this Averment be made, it so be the [...] be no Averment against a Record? and what benefit has the Prisoner of this Act, unless an Averment be allowed against the Record of this Indict­ment, if it should so happen that some of the Grand Jury are not so qua­lified as the Act requires, which seem to me sufficient proof that an Aver­ment in the case at the Bar, is good against a Record.

The Statute gives the Part [...] that may be averred, and no other can be allowed.

Its very hard upon the Subject, the Court appoints the Fore-man of the Grand Jury, and he may chance to be a Person prejudiced against the Prisoner, who may sign and return the Bill B [...]ll [...] V [...]ra, without the consent of his Fellows, or a sufficient Number, and because its Matter of Record, shall no Argument be allowed against the Bill?

A Grand Jury, in a certain Case, on an Indictment for words spoken, found B [...]lla Vera, but as to the M [...]l [...]tiose, Ignoramu [...], which made the Bill void; so in this Case, if the Jury, as to the Fact in the Indictment, had found Billa Vera, and as to Treason, Ignoramu [...], the Bill had been void, and the Court must have taken Notice of it; but to this Bill there is no Endorsement but Billa Vera, the Court has received and published the Verdict, and therefore will proceed.

But the Matter of Fact only appeared to the Jury, and when they understood the Bill to be laid Treasonable, they immediately objected against it.

The Bill is sound, and appears to the Court matter of Record, so that you need not insist any further upon that Head, a Grand Jury is an Inquest of Office, and an Inquest of Office may be found by a less [Page 10]Number than Twelve. Mr. Sheriff, bring your Prisoner to the Bar.

I have something else to offer.

Sheriff, stay a little.

I have a second Objection in behalf of the Prisoner, and it is that the Jurys should have been returned by Precepts under the Hands and Sea [...]s of the Commissioners, which we understand was not.

This appears in H [...] Pleas of the Crown, pag 134. Sr. Edw. Cool 4 part of the Institutes, Title Oyer and [...]miner, says the same, there is a special Clause in the Writ of [...] and [...], which says. We have commanded our Sheriff to summons as such days and places, as you shall appoint, such good and lawful [...], by whom the Truth may be the better [...]. How shall the Sheriff know those days and places but by the Commissioners Precept? and how shall the Truth be known, if the Grand Jury are permitted to have no other Evidence but what are brought ex parte Regis?

The Grand Jury are only to enquire for the King, and to receive or send for no other Evidence than what are brought for the King?

You may tell that some body else, no [...] to me; that is contrary to their Oath, which is, That they shall diligently enquire and true Pre­sentment make.

All the Books speak of the Kings Evidence only, and agree that the Grand Jury may and ought to find upon probable Evidence, as appeals in Babbington.

Sir E. Cooksays a part of the Institutes, Title Oyer & Terminer, that the Jurys ought to be returned by Precepts under the Hands and Seals of the Commissioners: There is no Distinction made between the Grand Jury and the Petty Jury, so that the Ven [...]es as well for one as the other, ought to have been under the Hands and Seals of the Commissioners.

Dr. [...], when you had the Government) had a Bill found against him by eight Men of a Jury of fifteen.

A private Person opposed the assertion, but was commanded Silence.

I never heard of it, nor believe it to be true; but that is not to be taken for a President, were it true.

Gentlemen. You seem to mistake the Lord Chief Justice Cook, Where he says, There shall be Twenty four Peers upon the Arraignment of a Pe [...], &c. for if there be but thirteen Peers, and the Majority agree to it, it is understood to be found by Twelve of them.

There is something in that which you offer of the Precept being under the Hands and Seals of the Commissioners, in the Return of the Pety Jury, but this does not at all affect the Grand Jury; for which reason, if you see cause to move it, time may be granted to mend that Mistake. Is there no­thing else you have to offer?

Nothing at present.

Mr. Sheriff, bring the Prisoner to the Bar.

Which was done accordingly.

Nichol [...] Bayard, hold up thy hand. You stand In­di [...]ed, &c.

What say you, are you Guilty or not guilty of the Indictment?

Not Guilty. And puts himself upon God and the Country, &c.

I desire I may be allowed two Clerks to take the Minutes of the Tryal.

No: You have a Solicitor allowed, he may take Notes; any other will not be suffered to do it.

I find it was allowed my Lord Russel and others, to imploy Clerks to take their Tryals: I pray the same liberty.

It was allowed my Lord Russel, but you would not be willing to meet with the hardships of his Tryal.

Perhaps the Council will not insist upon the Mistake of the Venire.

We shall not insist on that.

But we will have it amended

And thereupon ordered a Pre­cept to be directed to the Sheriff, under the Hands and Seals of the Com­missioners, to return a Pety Jury the 6th Instant. To which Day the Court adjourned.

March the 6th. The Commissioners met. The Prisoner was brought to the Bar. And the Petty Jary being called, consisting of Eighty, some of them did not appear. Whereupon it was ordered, That the Defaulters of the Petty Jury be amerced Ten Pounds each, if they did not appear in the after-noon, or shew a reasonable Cause. And the Court adjourned till three in the after-noon, when they met again.

[Page 13] Solicitor General moved, That the Court might be adjourned till to morrow morning, the Kings Evidences being disguised with Drink. Which was granted.

Nicoll moved, That it would be a favour to the Prisoner to put off the Tryal till Monday.

No, I will take care to do my Duty, whatever other People do. We shall not give Mr. Ve [...]sy the opportunity of another Sermon against us.

I observe Mr. Jamison to have Pen and Ink. Mr Jamison, you are not permitted to write.

I only take Minutes for my private Satisfaction.

I [...] is true, an A [...]torney or Practitioner of the Court may take Notes for his private use, but you are no longer an Attorney of this Court, nor shall your be permitted to practise until you purge your self. Put up your Pen and Ink.

March 7. The Commissioners met, and the Attorney General was called, but did not appear.

Mr. Secretary, let a Minute be made, That it appears to this Court that the Attorney General hath neglected his Majesties Service. It is no wonder the People here contemn his Majesties Authority, since the Attorney General, though commanded to prosecute by the Government, hath neglected to do the same, and hath given a Judgment and Opinion directly contrary to the Lieut. Governour and Council.

Sheriff, [...] the Prisoner.

Which was done.

Mr. Secretary, before we proceed, read the Petition which was given me this this Morning by Coll. Bayards Son.

Which was read in h [...] Verba,

Let a M [...]nute to entered that the Petition was read [...] and that it does appear to the Court that the Bill was [...] by more than twelve of the Grand Jury.

Coll Bayard, The Laws do indulge you with Council, did you advise with them concerning this Petition?

No, I did not.

'Twere better you had, for you have acted very indiscreetly in this matter to arraign the Justice of the Grand Jury.

The Jury being call'd, appeared.

Timon van Bursent. Prisoner, Accepts.

I challenge him for the King.

You are not to Challenge, Mr. Solicitor, without cause, by the Statute 33 [...].

By the common Law the King could Challenge without cause, but by the Statute that was taken away, and in the late [...] of [...] it is laid by Lord Chief Justice Tr [...]y, That the King should shew [...] if [Page 15]not enough on the Pannel to serve, but not else.

It is a thing so plain, I wonder you will insist on it.

We say the King should shew cause, but do not say when.

Gysber van Inbrough. Prisoner Accepts.

Challenges for the King.

Gerryt Ʋnckle. Prisoner Accepts.

Challenges, &c.

William Janeway. Prisoner Accepts.

Challenges, &c

[...] Stou [...]enburgh [...] Prisoner Accepts

I don't Challenge him, but desire he may be sworn on a V [...] dire whether any person hath been with him on behalf of the Prison [...] desire him to be favourable to the Prisoner on this Tryal. [who was sworn upon a Voir dire, and afterwards for the Tryal.

Richard Sacket.

I make no Challenge.

I desire to know whether I may not first have him sworn upon a Voir dire, and afterwards Challenge him?

No, you must challenge perem [...]torily first.

I pray the Solicitor may first make all his Challenges, and only have not a Pan [...]el of forty eight Jurors.

No, that must not be.

[Memorandum. The rest or the Eight Jurors in the Pannel were in like manner challenged by the Prisoner [...], till the Number of Twelve were [...] viz one of the [...], two no [...], and all the test [...], [...] of Dutch extraction born [...] ignoran of the English Language, and of [...] Capacities to an ex­tream degree.]

The Names of the Petty Jurors were as follows viz.

• [...] S [...]ont [...]nburgh,
• Jacobu [...] Vander [...]pe [...]gel,
• And [...]es Mars [...]alk,
• Gerret V [...]lt,
• Thomas Saunders,
• Jacob Cornelisse,
• Barent Ko [...]l,
• Goert Olpherts,
• Samuell Beekman,
• Cornelis [...]lopper,
• Con [...]art T [...]n [...]ck
• Jacobus Gotler.

Mr. Solicitor made an Introductory Discourse and Harrangue of about an hour long, and had some Sheets of Paper in his hand out of which he read several scurrilous and [...] Reflections on the English Inhibitants of this Colony, with the French and principal Dutch; having Re [...]ro [...]pection or many years past, only designed to Incense and Inflame the Jury, charging the Prisoner to be the Head of a Faction, a Malignant Party, who had en­deavoured to introduce P [...]pery and Slavery Disturbers of our Israel, as they had been that of Capt L [...]s [...]rs Government, which [...]he said was now justified at home to be [...] That the said Party was a Nest of Pyrats, Betrayers of our Prince and his Laws, a parcel of Banditt [...]'s, who had offered the late Earl of Bellomont a Reward of Ten Thousand Pounds to connive at Pyracy's, and One Thousand Pounds to himself to solicite it. That some mean and broken Merchants in London had made Complaints in their behalf [Page 16]to the Lords of Trade and Plantations, and to the Parliament against the said Earl, but that the said Earl's Proceedings were approved of And used scandalous Reflections on Mr. Veasy the Minister of Trinity Church, and against Coll. Smith, the first Member of Council, tho' nothing relating to this Tryal; and owned himself of the Leys [...]erian Party, and that he would stand and fall by it, &c.

Then called his Witnesses, who gave their Evidences in the following words, as they were taken in open Court, and since agreed unto by all of them respectively, as followeth.

Samuell Clows Sworn, saith,

Gentlemen, When I come to speak of the Addresses, I must pray you to take Notice, that I can speak positively to but very few things that is [...] them, what I say is to the best of my Remembrance and Understanding, for I may be mistaken in both. 'T was about a fortnight or three Weeks before Coll. Bayards Commitment that I happened to come to his House about some business not at all relating to this matter, concerning which as we were talking, Coll Bayard ask' [...] me if I had seen the Addresses? I answered, No. He then shewed me three Addresses the first was to my Lord Cornbury, the Persons addressing in it, called themselves Inhabitants of New York, and others distant from it, and being some of them could not perhaps be present at his Lordships arrival here, did by way of Address Congratulate his Lordship into this Government, wishing him all Health and Prosperity here, and that the Name of Party might be banish't from among us. After I had read it, Coll. Bayard ask't me [...] any thing to say against it? I answered, No, and then signed it. The other two Ad­dresses were one to the King, and the other to the House of Commons [...] to the Parliament, (I am not positive which) as I had read them. I remem­ber I made this Observation in my self, that they contained nearly both the same things, and in them, or one of them, to the best of my remembrance, were contained these things. The Persons addressing called themselves English Men, and others who tho' Forreigners, yet enti [...]uled to the Pri­viledges of English Men here: It speaks concerning the late Revolution here, of which I have but a confused Idea, and can remember nothing particular; afterwards it speaks concerning my Lord Be [...]mont's Admini­stration, in several Articles of which I can remember but one, which is, That the Hottest and Ignorantest of the People were put into places of Trust. Then it speaks concerning the late Assembly here and tells you, that after this Assembly had chose their Speaker, some of the Representatives were informed that he was an Alien, upon which they made a Motion to the House, that that matter might be enquired into, but that Motion being refused, one halt of the Representatives, or Ten of them left the House, notwithstanding which the remaining part of the Representatives, with some others they took in, did proceed to make Acts, in one of which Acts they gave a Sum of Money to the Lieut. Governour to tempt him to pass these Acts, and likewise a Sum to the chief Justice of this Province to find Law and Form for their Proceedings; and that these things tended to the rendering the Government Vile and Cheap in the eyes of the People.

What Names do you remember you saw to the Addresses?

I saw several Names there, but whether to all there or to two of them or only to that of my Lord Cornbury, I [...] o [...] [...]ay, but I did, to the best of my remembrance, see the Names of R [...]p [...] Dem, Matthew Ling, [...]ha [...]les Wooly Robert Livingstone and Mr. [...] but I am not certain whether I saw Mr. Jam [...]son's Name there, or [...] When I had read them I told C E. Bayard they contain'd things done before my Time, and I did not [...] h [...]k it proper for me to sign them, upon which he replyed, Then don't sign them.

I shall [...]ad what you said before the Council.

D [...] if you please

Don' [...] you remember that it was said, That my Lord B [...]lle­mont had put the most I [...]genious and Honestest Men of the Province out of all Places of Trust?

No, I cannot remember that.

I think you said so before the Council.

Perhaps I might say something like to when I was before the Council, though I don' [...] believe there is any essential difference between what I now say, and what I said to the Council; [...]et if there [...]. I hope what I then said will not be taken to my Prejudice; I was then sent for by the Governours, Letters which seemed to import that [...] with me of a [...] different Nature than to examine me about this matter, so that I was then [...] a Surprize

But you believe what you then sp [...]ke was true.

Without doubt, and I hope Mr Cos [...]ns took [...] truly to write down what I then delivered; but whether he did express my meaning right or no, I know not; for I did not look over his Notes till the Day I saw them at your Chamber

Was not the assembly called an Illegal Assembly? and that they had made Acts prejudicial to the Country.

No, I no not remember that?

Was it not said that the [...]cum of the People were put into all places of Trust?

Perhaps I might before the Council useth, word Scum, but I now think it was, That the Hottest & Ignorance [...] were put [...] of Trust.

Mr. Clows, pray tell us what was the reason you did not [...]ign the other two Addresses?

I think I am not at this time obliged to tel [...] that, being it does not at all affect the matter.

Yes, but it does, you must tell us.

On of the chief Reasons was because I then thought that the saying the Assembly had given a Gift to the Lieut. Governour to tempt him to pass their Acts. was a Reflection upon the Lieu [...]. Governour, but it is my judgment now that it was [...]n Reflection at all upon him.

How! and don't you think so now?

He only speaks it as his Judgment

Don't you remember that the Assembly was call'd he pretended Assembly?

No.

Don't you remember 'twas said, their Illegal Proceedings! Don't you remember the word Illegal?

No, I cannot remember that; and I did desire you at your Chamber to put that word out of the Clerks Notes.

Did I ever ask you to sign them?

No, you did not, you was so far from doing that, that you rather perswaded me not to sign them, and so did Madam Bayard who was then in the Room.

Do you remember any thing of the word Oppression in the Address? Clows. No. I do not remember that word.

That the Kings Subjects were oppressed here?

Was the Assembly called an Ʋnlawful Assembly?

No. Gentlemen, I can speak positively to but few of these things; what I say, is to the best on my Remembrance and Under­standing.

Peter Odyr [...], a French Man, Sworn, and for that he could speak no English, Mr. Br [...]sack Chaplain to the Garrison, was sworn to be his In­terpeter.

What do you know of the Papers that were at Coll. Bayards, [...] did you sign them, or who desired you in to do?

Going by Coll. Bayards House, [...] Mr. [...] told me I must step into Coll. Bayards and sign an Address to the King; and [...] I was going in I met Coll. Bayard coming forth of his House, and going in I saw the Addresses lying on the Table.

D [...]d Coll. Bayard then perswade you to sign them, or did he tell you it was for your good to sign them?

Coll. Bayard then told me, I might sign if I would, or that I might not; and the Coll. also told me it was for the good of the Country, and that if I was willing I might sign them, it not, I might let them alone, and then went away.

I will now prove the Addresses signed at the Coffee-House, and that Coll. Bayard attended there for that purpose.

W. Richardson, Inhabitant and House keeper in the City, Sworn.

What do you know Mr. Richardson concerning the signing the Papers at the Coffee-House?

One day drinking at one Spe [...]cers, I was desired to go to the Coffee House, which I did, and when there [...] saw a great many People. I believe near a hundred, & coming above stairs, I saw Papers on the Table, which were call'd Addresses, which I signed with others; and I saw among others [...]. Bayard there, but he learned to [...] more acting or concerned th [...] any other

You are very forgetful of what you Sworn before the [...] and Council, but to put you in mind some what of it, Did as both tell you what Papers were to be signed?

No Body at all

How many Papers did you sign?

I [...] three, but did not know wha [...] were, but was told, they were Addres [...]es to the King, and my Lord Cornbury and the [Page 19]Parliament, but did not read any of them; [...] I think one of them com­plained that the people lay under some Hardships here

You declared much more before the Council.

I was then [...] sudd [...]ly before the Council, and was surprized.

John Bashford Sworn

Mr. Bashford, tell the Court and Jury what you know con­cerning the papers at the Coffee House.

I was at the Coffee-House where I saw the Papers or Ad­dresses, but don't know what they were or contained; and I signed four or five papers there, but did not stay half a quarter of an hour. When I was there I saw Coll. Bayard amongst many others in the Room, but did not see his Name, as I remember, to any the Papers.

[N [...] Thes fi [...]e Papers were the three Addresses, and he two Duplicates.]

These Witnesses are very unwilling or very forgetful, having given a much different account of things upon their Oathes before the Governour and Council.

I have now had time to Recollect my self, but was then under a Surprize, not knowing what I was sent for.

Mr. Michael Christian Sworn.

Mr. Christian What do you know concerning the Papers o [...] Addresses signed at the Coffee-House?

I remember, some time since, about Christmas I believe, I was at the Coffee-House, where I saw the Addresses, vvith many other people, but cant tell hovv many.

Do you believe there vvere more than Tvventy?

No, I believe there vvere not. I found three Addresses there, and signed them all, but the substance thereof I cannot now remem­ber, it is a good while since, and therefore cannot speak positively to it. I remember a Question was asked me at the council, Whether there was any Complaints in the Addresses that the Souldiers wanted their pay? I believe I might then answer something about it but I do not know any such thing in the Addresses, either of the Souldiers or their pay. I remem­ber that Coll. Bayard was then at the Coffee House when I signed the Ad­dresses, but don't remember that any Body desired me to sign.

How many Hands, Mr Christian, did you see to the Addresses?

I cannot tell how many, but remember Coll. Bayard amongst others was there, but he never asked me to sign either of the Addresses, nor can I remember that there was any thing concerning either the Souldiers or their pay in the Addresses.

Certainly these Gentlemen are very unwilling Evidences; Mr. Christian is a Gentleman of good Learning, and its strange that he should be so forgetful that be cannot remember what was given in on his Oath before the Governour and Council; he has either a weak or treacherous Memory.

Mr Hugh Gray Sworn.

Mr. Gray. What do you know concerning the signing of those Papers at the Coffee-House?

About December last being at the Coffee-House, I met there one Mr Scot, who a [...]ed me to go up into the upper Room, which I accordingly did; an when there I saw on the Table some Papers, which afterwards I understood were Addresses to the King, Parliament and Lord Cornbury; some body asked me to sign them, which I did accordingly, but don't know who it vvas, I remember Coll. Bayard vvas there amongst others, sm [...]king a Pipe of Tobacco; I believe there might then be about Ten Hands to the Papers, and about five Men in the Room, that I read all the Addresses, but cannot novv remember the Contents of them.

Mr. Gray, do you remember there was any Complaints against the Government in those Addresses?

No.

Mrs Hannah Hutchins Svvorn.

Now, may it please your Honours, I will prove the Papers signed at another place.

Mrs Hutchins, What do you know concerning these Papers brought to your House?

About Christmass last Coll Bayard brought some Papers to my House, and left them with me, but did not stay at all, but [...] me shew them to my Husband, who was then at Church; These Papers remained at my House about three days, and then I delivered them to a Negro, who was sent [...], but do not remember whose Negro it was; Coll. Bayard was not at our House while the Papers lay there.

Now I shall proceed to prove what sort of People were drawn in to sign these Papers.

John R [...]ad Sworn.

What do you remember concerning any Addresses or Papers at the House of Alder-man Hutchins?

B [...]rg on the 26th of December at Mr. Hutchin's house. I there saw some Papers which one Mr. Burroughs, then [...], telling me they were Addresses to the King, Parliament and Lord Cornbury, ma [...]e for the good of the Country, and vvhich vvere lying on the [...]ed there; and thereupon I signed them, but did not read them; I did not see Coll. Bayard there, but believe I saw his Name to the Papers; I saw a great Number of Names subcribed to the Papers, as near as I can judge about Two Hundred.

Of vvhat Age are you?

About seventeen years of Age.

Edward Marshall Svvorn.

Where did you see these Papers, and vvhat do you knovv of them?

Going one day about Christmas to the House of Mr. Hutchins, to get a Witness to a Letter of Attorney. I savv there five Addresses, vvhich I signed, one vvas to the King, another to the Parliament, and another to the Lord Cornbury, Congratulating his Arrival. I read some of them, but found nothing in any of them that reflected upon the Governour; There vvas some Complaint of the Speaker of the Assembly being an Alien. Looking on the Names of the Subscribers, I saw the Name of Edw. Marshall [Page 21]before I had signed, but I don't know but there may be more Edw. Marshalls than one in the Province. I did not see Coll. Bayard at the House, not his Name to the Papers.

John Beckly Sworn.

What do you know concerning any Papers at the House of Mr. Hutchins?

Coming home from the Fort, and passing by M. Hutchins's House, I was asked to walk in by Mr. Hutchins, which I did, and being some into the upper Room, I saw some Papers there, which were called Addresses, but I did not read any of them but that to my Lord Cornbury, which as I understood was a Complement and Congratulation to him a his arrival here. Mr. Hutchins has asked me to sign it, but I refused it, because being a Lieut. in the Garrison, I was unwilling to do any such thing before any of my elder Officers had done it. But I did not see Coll. Bayard nor his Name there.

Francis Cherm [...] Sworn.

Give an account what you know concerning any Papers or Addresses at the house of Alderman Hutchins.

Coming a while ago to Mr. Hutchins's House, and going up Stairs. I saw certain Papers there, and some People: Mr. Hutchins asked me to sign those Papers, telling me, they were Addresses to the King and my Lord Cornbury, that they were for the good of the Country and the English, and I expected by it to be made tree of the City, and signed there­fore; but did not see Coll. Bayard there, nor don't remember the Contents of the Papers.

One B [...]tton Sworn.

What do you know concerning these Papers, &c?

Hearing by some of my fellow-Souldiers that there were some Papers or Addresses at Capt. Hutchins's, I was willing to go and see what they were, and coming to the House, i. e. The Three Addresses & [...] Duplicates. there I found five Papers, and signed them all five, but do not remember to whom they were directed: Capt. Hutch­ins was there, but said nothing at all to me about the Papers, or signing them; nor can I remember whether they were Paper or Parchment: I believe there were then about thirty Names subscribed, but saw neither Coll. Bayard not his Name there.

Robert Cr [...]ell Sworn.

What do you know, &c.

Some time since I came to Mr. Hutchins's, and there found five Addresses; I read that to my Lord Cornbury, and some of the two others to the King and Parliament: In one of them, to the best of my remembrance, was contain'd a Complaint that the People of this Province lay under more Hardships than formerly, and that the Speaker of the Assembly of this Province was an Al [...]en. I saw Coll. Bayards Name to that to my Lord Cornbury, but am not acquainted with his hand writing at all. After I had read some part, and been told what the rest o [...] the Papers were, I signed them all five, but no body desired or perswaded me to do it.

Your Evidence is not so full as when you gave in your Infor­mation on Oath before the Council.

But it is, and I know nothing more.

One Griggs Sworn.

What do you know, &c?

I was desired by one Bovell, a Souldier in the Garrison, to go to Mr. Hutchins's House and sign some Papers; I was told and believed it was to make me free of the City; thereupon I went to Mr. Hutchins's and there signed them, but did not see Coll. Bayard there.

One Garnet Sworn.

Tell [...]he Court vvhat you knovv, &c.

A great many of the Souldiers of the Garrison signed, and they expected thereby to be made free of the City, many of them being Trades [...]men.

One Fleming Svvorn.

What do you knovv, &c?

Coming some time since to the House of Mr. Hutchins, I here saw some Ro [...]ls opened with a great many Names thereto, After the Addresses were full, they signed on the back side. but did not see any other writing, to this I put my Name, and also then put dovvn tvvo or three Names for others, at their Request, they having first put their Marks: I and the others expected by this to be made [...] of the City: I believe out of 160 Men novv belonging to the Fort, or there abouts, there may be about thirty that signed.

One Bovell Svvorn.

What do you knovv, &c?

Coming to Capt. Hutchins's, vvas shovvn some Papers which I was told were Addresses to vvhich I put my Mark, vvithout being desired by any body: I cannot vvrite nor read: When I had set for my Mark, Mr. Hutchins told me, That if any of my fellovv Souldiers vvould come and sign al [...]o, they might; if not, they might let it alone. By this signing I expected to be made free of the City, but not from beings a Soul­dier; but never heard Capt. Hutchins say so.

I have novv no more Witnesses against the Prisoner. Here is a Paper signed by him, I desire the Clerk of the Council may be svvorn to prove the same.

Mr. Cosens, the Clerk of the Council Svvorn.

I ovvn that Paper, it is a Petition to the Lieut. Governor and Council on behalf of Alderman Hutchins then in prison, [...]vvning with Mr. French, Mr. We [...]ham, and Mr. Van Dam, That the Copies of the three Addresses to the King, the Parliament and the Lord Cornbury, vvere in our hands.

Then the Petition vvas read, and vvas the same as is entered in pag. 1.

After this the Act of Assembly on vvhich the Mittimus is grounded, (vid. pag. 3.) vvas read. And after that the Commission to the Lord Bellomont at large, and the Lieut. Governours Commission.

I desire Mr. Emot may be Sworn, whether he did not give advice to a certain Person about that clause in the Address to the Lieut. Go­vernours; [Page 23]in favour of Alderman Hutchins, viz. That the Lord Cornbury succeeded the Earl of Bellomont as Governour in New York?

Emot was commanded by Mr. Atwood to be sworn; and being sworn, said, I told Mr. French, These words in said Address did not run [...]ur cur­rent, and might give ground of exception to some who would be apt to strain every word to the Prisoner's Disadvantage. To which Mr. French replyed, They had drawn the Address themselves, and believed it was well enough.

I have novv proved by the Witnesses these false & scandalous Libells set forth to the Indictment, vvhereby the good, peace and quiet of the Government has been disturbed, vvhich by this Act of Assembly is High-Treason. I have likevvise proved that the souldiers vvere dravvn in to sign those scandalous Libells, and that some did sign blank R [...]lls, vvhich vvas listing of [...], and is Treason. By the [...]e vvords in Petition to the Lieut. Governour and council, viz. [Who we understand by certain Advice we have received from England, to be nominated by his Majesty to succeed the late Earl of Bell [...]mont as our Governor] is a disovvning and casting off the present Authority and his Majesty's Government.

Your Honour and the Jury vvill please to take Notice, that the Indictment consists of divers [...]eads as, That the prisoner did compass, imagine, contrive, purpose and design to Defame, subvert, &c. the Peace, Good and Quiet of this his Majesties Government.

That he u [...]d divers indirect Practices & Endeavours to procure Mutiny and Sedition amongst the souldiers.

That he drevv in numbers of them the said Souldiers, and others, to sign false and scandalous Libells, and that he had sign [...]d them himself.

That in these [...] [...]eclared. That the Subjects in this Province are and have been, for many Years last past, by those entrusted in the ad­ministration of the Government, Opprest, and that the Government hath been and is rendered Cheap and Vile in the eyes of the People; as also, That the General Assembly of this [...]rovince is not a Lavvful Assembly by which means, &c. he hath incited his Majesties Subjects to cast off their Obedience to his Majesties said Government

The Prisoner is not directly charged here with any Fact except his own signing the said Libels, but for [...] or Endeavours; the rest are for [...]'d Conclusions and strain'd In [...]erences drawn from thence. It is not alledg'd that the Peace of the Government Hath been disturbed, or that any Mutiny or Sedition hath been amongst the Souldiers, or that any one of his Majesties Subjects hath cast off his Obedience to his Majest [...]'s said Government. By the Court of the Evidence it appears there was an Ad­dress to the King, an Address to the House of Commons and an Address to my Lord Cornbury, and a Petition or Address to the Lieut. Governour and Council, but all the Evidence is very Lame and weak as to the three first: I we should admit the making or signing of them to be any fault or crime, more especially if the same should amount to [...]reason; for by none of the Evidence it does appear that those Addresses signed at the Coffee-House were the same Addresses which were at Coll. Bayards, or that the Addresses [Page 24]an Alder-man Hutchins's were the same which were at the Coffee-House, or the same which were at Coll. Bayards: There is no Proof that the Prisoner signed those Addresses; here is not so much as the likeness, or comparison of Hands produced, alledged or proved, tho' if it were, that would not do; in the great Tryal of the Bishops, Mr. Pollexphen there Affirms, pag. 60. That Comparison of Hands is not good in a Criminal Case, and offers the Lady Cars case in & dersi [...]s Reports, pag. 418, 419. where it is so adjudged.

But I shall not dwell upon the Evidence; it is certainly the Right of the Subject to Petition the King whenever he conceives himself agrieved: In the Bishops Tryals, pag. 160. Mr Pollexphen says, I never thought it, nor hath since been thought by any body else to be a Crime to Petition the King. Pag. 121. Serjent Levens affirms. The Subjects have a right of Petitioning the King in all their Grievances: So lay all our Books of Law; so says the Statute of the 13th of Charles th [...]d. They may Petition. Pag. 126 Sit Thomas Powes, then Attorney General, acknowledges access to the King by Petition is open to every Body; The most Inferior Person is allowed to Petition the King. Pag. 135. Mr. Justice H [...]ll [...]way says, It [...] the Birth-Right of the Subject to Petition the King. It its the Birth-rights of the Subject to Petition the King, to procure or draw in men to do what its their birth-Right to do, can never amount to a Crime.

I do not say Petitioning the King is a Crime, but it may be to Petition the House of Commons in the Plantations, where the King governs by his Prerogative.

I cannot think it a Crime for the Subjects of the Plantations to Petition the House of Commons, it is every days Practice; consult the Votes in ever Sessons, you'll find many Addresses, Petitions and Complaints from the Subjects of the Plantations: I [...] seems to be the Right of the Subjects to Petition the House of Commons, the Statute of the 13th or Charles the 2d chap. 5. restrains the common Law, by that in plainly appears to be the Right of the Subject to Petition the House of Commons or the King. The Provis [...] in that Act says. That neither that Act nor any thing therein contained shall be con [...]trued to extend or hinder any Person or Persons, not exceeding the Number of Ten, to present any publick or private Grievance or Complaint to any Member of the House of Commons, after his Election, or to the Kings Majesty. The Act of Rcognition of Prime W. and Mary, declaring the Rights and Liberties of the Subjects, and settling the Succession of the Crown, thereby it is enacted, amongst other things, That it is the Right of the Subject to Petition the King, and all Commitments and Pro­secutions for such Petitioning are Illegal. And they do claim command and insist upon all and singular the [...]re [...]ses as their undoubled Rights and Li­berties; and that no Declaration, Judgment Doings or Proceedings to the prejudice of the People, in any the said Premises, ought in any wise here­after to be drawn into Consequence or Example. More is no grant of any new Priviledge, but a claim and acknowledgement of an antient Right: and Petitions to the Parliament are as ancient as Parliaments themselves; If the Subjects of the Plantations may not Petition and Compalin to their Prince, they are in a worse Condition than Slaves. The Cryes of the Oppressions in the Plantations have gone up to Heaven, and are again come [Page 25]down upon the Earth, and have inspired and moved the King & parliament of England to make a Law to check the exorbitant Actions of Governours in the Plantations, and make them accountable in England for their Mis­carriages abroad; which can never be discovered to the King but by Petition. The Statute is in these words,

This Prosecution seems to be made to frustrate and evade this Act of Parliament. The Subject is oppre [...]t, or conceives himself to be so he complains of this Oppression; this Complaining is made TREASON! Here is a strange and fatal Dilemma on the Subjects of the Plantations; They must either suffer their Oppressions or be hanged for Traytors if they Complain!

What relates to the Act of Assembly of this Country, it can by no Na­tural or Legal Construction be extended to make the Prisoner cu [...]pable: It is plain by the whole purport of the Act, that it has made no New Trea­son, it only Recognizes the King and Queen, and Enacts, That those who shall do any thing distructive to that establishment, by Fore of Arms, or otherwise, shall be Rebels and Traytors, which they would be without this Act. If th [...]s Address and Petition had been to the French King, the thing had been of another Nature. By the same Construction every petty Battery or other little Trespass may be a Treason.

[Page 26] The Petition of Coll. Bayard and the other three, is so far from disown­ing the Government, that it is a direct acknowledging of the same: The Direction of the Petition is, To the Lieut. Governour and the Council. The Expression. (That they have Advice that the Lord Cornbury is to succeed the Earl of Bellomont) can with no Jusitice or common Sence be construed to be a disowning and casting off o [...] the Government. I think it will hardly be affirmed that the Council succeeded the Earl of Belloment, and Capt. Nanfan the Council: If so after the Earl of Bel­lomont who was Cap. General Some time after the Earl of Bellamont's Death Capt. Nanfan the Lieut. Governour was at Barbadoes.? We had seven Capt. Generals; which is an A [...]rdity I suppose none will alledge. A familiar Example will demon­strate the weakness & falsity of this Construction: If a Capt. of a Company be killed or absent, the Lieutenant or next Office has the full Command of the Company, as the Capt. had, or could have; but I think no man will say he succeeds the Capt. or that when another Capt. is appointed, be succeeds that Lieut. or other Officer. So that I cannot think there is any Fact or Crime alledged or proved against the Prisoner, to charge him with this high Crime of Treason, or indeed with any other Crime whatsoever.

By your Honour's permission I am of Council for Coll. Bayard the Prisoner at the Barr, but by reason I am unwilling to spend too much of your time, this Tryal already having been very long, and Mr. Nicoll, who is also of Council of the same side, having amongst other things made it very evident, that for the Subject to Petition his Majesty, is their antient and undoubitable Right.

I shall therefore make it may business only, as near as I can, to demon­strate to this Court and Jury, That had the King's Council made [...]mple proof of all the Matters of Fact alledged in the Indictment, as the signing the Addresses, and other things therein contained, to have been true; yet in point of Law they cannot amount to that grand Crime of High [...]reason

In order to this, shall with as much brevity as I can, examine into, and put your Honours in mind, and withal inform the Gentlemen of the Jury what the Law of England by which we are or ought to be govern'd here) hath been, for near the space of four hundred years last past, relating to this grand Crime of High-Treason: whereby it will manifestly appear how cautious the Parliaments of England have been, in making and increasing the Laws to take away me [...]s lives, and particularly for High-Treason. And shall begin with the Statute of 25 Edw. 3. a Statute to which the greatest Regard has been paid, of any Act of Parliament what­soever, unless Magne Charta, as hereafter I shall briefly shew

I must also observe to your Honours, that before the making of this Act of Parliament of the 25 E. 3. which was in Anno 1350 and which was the very first Act relating to Treasons, so many things were charged as High-Treason by the common Law, and there were so many Ambiguities and Diversities of Opinions, that both History and our Books of the Law sufficiently inform us, that scarcely any man knew how to behave himself. But now by this Statute the particulars and Species of this grand Crime are reckoned up, and all others excluded, till declared by Parliament. [Page 27] For though nothing can concern the King, his Crown and Dignity more immediately than High-Treason, which our Law calls Crimen [...]Maje­s [...]atis, a Crime wronging Majesty; yet this good King Edward the 3d. at the request of the Lords and Commons of England, in a Parliamentary way, and to make all after Ages happy, makes a plain Declaration of such Offences as should for the future be deem'd for High-Treason, and none other, unless declared by Parliament.

This Act of Parliament is branch't out by Sir Edw. Cook in the 3d part of his Institutes, into fix Classes or Heads, which I shall the rather take Notice of, for that Tryals of this Nature are very rare in the Plantations; and they are these,

• 1. The Compassing or Imagining the D [...]ath of the King, Queen or Prince, and declaring the same by some [...]vert [...]ct.
• The Killing or Murthering of the Chancellor, Treasurer, Justices, &c. in their Place doing their Office, &c.
• 2. To violate, or carnally to know the Kings Consort or Queen, the Kings Elde [...] Daughter unmarried, or Princes Wife.
• 3. Levying of War against the King.
• 4. Adhearing to the Kings Enemies, and declaring the same by some Overt Act; and this must not be luimieus sed Hosi [...]s.
• 5. Counterfeiting of the Great Seal, Privy Seal, or Kings Coin, &c.
• 6. And Lastly, Bringing into the Realm Counterfeit Money, to the likeness of the Kings Coin, &c.

Now if there is any other Offence, which was not comprehended within one of these Classes, the same was thereby declared to be no Treason.

In the Clause of which Act of Parliament, we find these words, which I shall the rather read, because I apprehend it will very much concern this ensuing Tryal

‘And because that many other like Cases may happen [...] to come, which a Man cannot think of [...]are at this present time. It is O [...]dained, That if any other case, supposed Treason, which is not above [...], do happen, before an Justices, the Justices shall carry, withou [...] any going to Judgment of the Treason, till the cause be shewed and declared [...] the King and his Parliament, whether it be judged Treason, or other Fellony.’

By this we may easily perceive, and its very obvious, that this cause was made to prevent the Judges from taking upon them [...] declare any thing to be High-Treason, but such as are particularly exprest by this Sta­tute of 25 Ed 3. or by some other subsequent Act.

Again, in the Reign of Richard 2d. we find sundry other things were decla [...]d by Parliament to be High-Treason, which were not comprehenced within the S [...]. 25 Ed 3. But yet upon the coming in of Hen 4. It was again enacted and declared, That nothing should for the future be adjudg­ed High-Treason But what were so ordained by the aforesaid [...]. 25 [...] The words are these,

[Page 28] 1 [...]. 4. cap 10. ‘That whereas in Parliament, in the [...]th year of the [...] King Richard, divers pains of Treason were ordained by Statute; in­asmuch as there was no man which knew how he ought to behave him­self, to do, speak or say, for doubt of such Pains. Its accorded and assented by the King, Lords and Commons, That in no time to come any Treason be adjudged otherwise, than it was ordained by the Statute in the time of his Noble Grand-father King Edw. 3.’

Now this Statute, I am humbly of Opinion, is directly in the Negative, which says. That for the future nothing shall be adjudged Treason, other­wise than it was ordained by the aforesaid Statute 25 Edw. 3

Yet nevertheless this indictment is grounded up [...] an Act of Assembly of this Province, which is, I am humbly of Opinion, not only contrary to, but directly repugnant to the aforesaid Statute (which appeareth to me to limit all new Species of Treason to be declared in Parliament, and [...] else where) Which if it should admit of such a Construction, as is now intended, I think I may modestly say, it will introduce five hundred several new species of Treason, [...]o that his Majesties good Subjects of this Province would fall under much greater Hardships than whatever the People of England were sensible of before the making of this Act, which I cannot to [...] often mention, the 25 Edw. 3.

If we look further downward upon the coming in of Edw 6 which was in the Year 1546. sundry new species of Treason having been again introduced by Act of Parliament, it was in the very first Year of his Reign Enacted, That no Offence made Treason by any Statute, should be [...]o deemed and adjudged for the future, but such as were made Treason by the aforesaid S [...]at. 25 Edw. 3. other than such as were by that present Statute ordained and declared.

But yet in Queen Mary's Time, in the first year of her Reign, this grand Crime was brought to its an [...]ient Standard, and it was then declared in Parliament. That no Act [...] whatsoever should be [...] Treason or Mispr [...]sion of Treason but such as were decla [...] by the Statute 25 Edw. 3. and the most [...] of the Preamble is this, That the state and safety of the King standeth more assuredly by the Love of his Subjects than [...] of his Laws

So that upon Examination, we find how careful and cautious the People & Parliament of England have been in introducing and increasing of Sangui­ [...]ary Laws, and that through the Revolution of many Ages. And hereby [...] very remarkable what a great Regard has been in all Ages paid to this ve [...]e [...]able Statute 25 Edw. 3. which with great c [...]re has been consisted down to us to this very time, and is now in its full force. Sir Edw. Cook treating thereof tells us, That the Parliament in which this Act was made [...] many years afterwards was called, [...] Parliamentum, The Blessed Parliament

If we look but into the Bill of Attainder of Thomas Earl of Strafford, in the year 1640, & 41. even in those times, what Regard was paid to this Statute, which I have so often mentioned, wherein it was provided, That the Judgment against said Earl should never be drawn into Presi [...]ent. And the words are those, ‘Provided, That no Judge or Judges, Justice or Justices whatsoever shall adjudge or interpret any Act of Thing to be [Page 29]Treason, nor hear or determine any Treason in any other manner than he or they should or ought to have done before the making of this Act.’

Now, if we do but Reflect upon the great Concern and Care that has been taken through all Ages, by the wise People of England, in preve [...]g, the Judges from in [...]erpre [...]ing any A [...]t or Thing whatsoever to be Treason, but such only as are enumerated in the Statute 25 Edw 3.

And at the sometime give ourselves leave to think how industrousl [...] we labour to introduce an Act of Assembly of this Province, to make, as I said before, even five [...]undred New & Never-heard-of Species of Treason, [...], if we do bu [...] consider this, 'tis matter of great Amazement, and more especially in such an Age as this, and in so happy a Reign, where no man over qu [...]stioned or at the least doubted of the true enjoyment of our Laws and Liberties, tho' never so remove from the Fountain b [...]d.

I am afraid I have already Trespass'd upon your Honour's Patience, shall therefore conclude with some Observations upon the A [...] of Assembly, upon which this Indictment is laid.

Now both the T [...]le, Preamble and Words of this Act of Assembly, and the cause of making thereof, is very obvious (however the same may be now interpreted) which were these two.

1st. For the future to prevent the setting up a Power over his Majesties Subjects in this Province, without Authority from the Crown England, which was found to be of fatal consequence in the late unhappy Disorders in this Province.

2dly. To express the Love, Loyalty and hearty Affection of the People to their Majesties. King William and Queen Mary, and as [...] as in them lay to Recognize them their Soveraign L [...]ge Lord and Lady. I doubt not but your Honour will see cause to recommend the same to the Jury in de­livering the Charge. And that no strain'd Construction of this [...] of As­sembly [...] ever affect the P [...]isoner, Coll. Bayard or at the least blest his long experienc'd Loyalty to the Crown or England, and in a special manner to his present M [...]jesty King William.

I had almost [...] to beg leave of the Court to apply my self to the Gentlemen [...] the Jury, to obviate some Objections or rather a vulgar Error that usually hath [...]ept in amongst them, upon Tryals, and particularly upon Indictments, which is, [...] do be [...]ve,

That it the matters of Fact alledged in the Indictment, be but proved, they are to have no regard to [...] of Law. Which I take to be a very great and dangerous [...] [...]or in them.

For tho' it be true and mu [...]t be granted, that Matters of Fact are the most common and p [...]oper Object [...] Jury's Determination, and Mat­ters of Law that of the Judges; [...] ariseth cut of, and is inter wo­ [...]n and complicated with Fact, it cannot but fall under the Jury's Consi­deration. For should it be otherwise, if a Person should be indicted for doing any common [...] Act, if it be but cloathed and dis­guised in the Indictment with the Name of Treason, or some other high Crime, and proved by Witnesses to be done, then the Jury would lie under a Necessity of finding the [...]one [...] guilty. No.

Do we not find in most general Issues, upon Not Guilty pleaded, as [Page 30]upon Indictments of Trespasses, Breach of the Peace, Fellony, and even [...] Cases of High Treason, yet the Jury do not find the Fact of the Case by it self, leaving the Law to the Court, but findeth the party Guilty or Not Guilty.

And this will more evidently appear upon Indictments of Murther, that the Jury are Judges as well of Matter of Law as of Fact. For is it not every Days Practice, where Persons are indicted of Murther, the Jury doth not only find them Guilty or Not Guilty. But many [...] upon hearing and weighing of Circumstances, the Jury brings in the Prisoner not only Guilty or Not Guilty in general, but brings them in either Guilty of Murther or Manslaughter by [...] adventure, or se Defendendo, &c.

So the Jury being well apprize [...] of the true Matter of Fact, of which they are sole Judges, can better apply the Matter of Law; for, says my Lord Cook, Its by [...]tly applying Matters of Fact and Law together that the Jury brings forth their Vera [...], which I hope you Gentlemen of the Jury will carefully do.

I desire some of my Evidences may be called to give an account of my Life and Conversation.

Which was granted.

Mr. Ve [...]. Minister of Trimity Church being [...]orn▪ said. I have been for six Years personally acquainted with Coll. Bayard during which time his Life & Conversation recommended him to the Wor [...]d [...] Exemplary Christian. And the frequent expressions of his Zeal and Affection to his Majesty's Person and Government convinced me that he was a good Subject.

Call Capt. John Kipp.

Who being called, was absent.

Call Capt. T [...]dor.

T [...]dor Sworn, said, I have known Coll. Bayard twenty six Years, a moderate civil good Man, has been imployed in almost all Offices of [...]he greatest Trust in the Government, never disaffected, but stood up for the Protestant Religion and King William.

To prove that I have upon sundry Energencyes, during the late War, advanced of my private Fortune, upon loan, without Interest, several considerable Sums of Money, for the Preservation of his Majesty's Interest and Government in New-York of which upwards of 200l. Money in specie l [...], is st [...]ll unpaid. I desire Mr. Jam [...]son, who was them Clerk of the Council, may be Sworn.

Jamison being called, appeared—

Mr. Jamison has refused to purge himself of signing those Ad­dresses and is Particeps Crim [...], for which reason [...] cannot be allowed to be an Evidence.

The Evidence being Sworn and examined, the Solicitor General, with­out answering the Authorities offered by the Prisoner's Council, relating to the Treason, summoned up the Evidence, as to matter of Fact

Mr. Atwood gave the Charge to the Jury, in a long Discourse; and among [...] things insisted, that the Indictment was not laid upon the Act of 25 E. 3 nor any Act of Parliament, but upon an Act of Assembly of this Province, confirmed by his Majesty, which had Power to make Acts [Page 31]for High Treason, as well as the Parliament of England; and that the said Statute was confined to England, because by the said Statute, it is enacted that if any Doubt should arise, the same be adjourned unto Parliament, which must be understood of the Parliament of England.

That it is High Treason by the Act of Assembly, by any manner of ways, or upon any pretence whatsoever by force of [...], or otherwise, to disturb the Peace. Good and Quiet of the Government, as it is now established, which he said was proved by Overt Acts laid in the Indictment, which were by signing [...] L [...]bells against the Government, and thereby enticing the People to cast off and disown the same, and chiefly by the Souldiers signing Complaints against their chief O [...]ers, which tended to Mutiny, and was Treason by the Common Law.

That by bringing the Papers to Hutchins's House the Prisoner had made himself guilty of all that was done [...], by the Souldiers and others sign­ing those Papers.

That the right of Petitioning the King was not in dispute, but the man­ner of doing it made it Criminal.

That it was plain the Address of the Prisoner and [...] three Fellows, was a Disowning of the present Authority, and casting off his Majesty's Government as it was then established; [...] Capt. Nanfan succeeded the Lord Bellomont (as by the Commission appeared) and not my Lord Cornbury, which was a plain Overt Act of Treason, by the meaning and words of the Act of Assembly.

That it appeared undeniable, that the Prisoner and his Son were always by the Papers, and that it was done with a great Number of People to affront the Government.

That the drawing in Souldiers to sign Petitions, is Mutiny and Sedition by the Law, and drawing of them in on false pretences, in hopes of Free­dom in the City, and subscribing their Names on blank Lists, is listing of Souldiers, and may be applyed to invite in any Forreign Power. And thereupon stro [...]uously insisted on the Validity of the Evidence, That the Facts la [...]d in the Indictment were undenyably proved, and that those facts did amount to High-Treason, within the words & meaning of this Act of Assembly, and that therefore the Jury could not do otherwise than bring in the Prisoner Guilty.

The [...]onstable being Sworn to keep the Jury, the Court adjourned till nine a Clock at night. And the Jury [...] not [...]eing agreed, the Court did adjourn till M [...]nday [...], the 9 [...]h of March.

On Monday the 9 [...]h, [...]he Prisoner was brought to the Bar, and the Jury sent for. They were ask' [...] if they were agreed in their Verdict? They answered, They were not agreed, but desired some Direction of the Court. Jacob Goel [...]t appeared a [...] Fore-man of the Jury, and read some Notes of what he said the Witnesses and [...]worn. Which we [...]e denyed to have been Sworn by the Council [...], who prayed Mr. Atwood to satisfie the Jury or the Truth of the Evidence.

To this he answered. That he could not do it after the Charge given; but affirmed, it was no new thing (as some pretended) after Charge given to satisfie the Jury in some Ma [...]ers of Law; and told, That he had received [Page 32]Letters from the Jury, and answered them, which Answers were only his private Opinion That if they were under any Difficulty whether the Matters of Fact alledged in the Indictment, and which were proved to them, were Treason [...] no, they might find the Prisoner Guilty, who had his advantage in moving in Arrest of Judgment, and might be relieved [...]s to Matter of Law.

This is not fair to give the Jury a [...] [...]and [...]e to find the Prisoner guilty, in expectation of Relief in arrest of Judgment; for they are Judges both of Law & Fact, as the case is now circumstanced: If they will [...]nslave themselves and their Posterity, and debar themselves of all Access to their P [...]ince, they will be worse than Negroes.

This is not to be suffered to offer these things to th [...] Jury after they have received their Charge, therefore be silent. Then proceeding, renew'd his Charge to the Jury, aggravating the supposed Crimes for the space of about haft an hour.

I pray your Honour to be heard one word (which he often repeated, and at last was granted him) The Facts laid in the Indictment were not proved, as to the disowning and casting off the Government, encouraging of Mutiny in the Souldiers▪ [...]or Disquieting he Peace of the Government: Addressing the King is the undoubted Right of the Subject, both by com­mon Law and Acts of Parliament. If the Subject for Complaints of Grie­va [...]ces, set forth by Petition▪ shall be attainted for High-Treason, we are in a worse Condition than Slaves

Atwood Check [...] him, and commanded Silence.

The Act of Parliament to punish Governours in [...]he Plantations for Oppressing the Subject, is rendered [...] and of [...]o effect [...] the Sub­jects are deprived of thi [...] Liberty to Complain and set forth [...] Grievances by Petition to their King.

I crave that Jac [...]bus Go [...]let may read over his Paper concerning the Evidence given, and liberty to controu [...] the [...].

This was denyed.

I crave that Coll D' Peyster and Capt Wal [...]er [...], who are joyn'd in the Commission, will declare their Opinions single, [...] they have agreed that to be Treason which Mr Atwood has declared to be [...]. either by the common Law of Act of Assembly, if the Fact laid in the Indictment should be admitted to be proved, as indeed they are not.

To this he received no answer.

After this the Jury were sent out, and the Court adjourn'd till three a Clock in the after-noon.

At which time the Commissioners meeting, the Prisoner was brought to the Bar; the Jury were sent for. And being come, were asked. If they were agreed of their Verdict? Which they answered in the Affimative, and that they found the Prisoner Guilty.

We pray time to offer Reasons in arrest of Judgment.

Let these Reasons be offered to morrow Morning. Court adjourn'd till eleaven a Clock next Morning.

March 10th. The Commissioners met, and the Prisoner being brought to the Bar, he offered the following Reasons, in arrest of Judgment, in [...] Viz.

[Page 33] Bayard. That no Overt Act, alledged in the Indictment, is proved by the Oathes and Testimonies of two lawful Witnesses, as by the [...] of 7 W. 3. is directed.

That if the Overt Act, as alledged in the Indictment, should be admit­ted to be so proved, yet neither by the Law of England, or by any legal genui [...] Construction of the Act of Assembly of this Country, on which the Indictment is grounded, any of the said Overt Acts can amount to High-Treason.

That the special Commission of Oyer and Terminer (to which he humbly refers) whereupon this Court has proceeded, is expresly limitted, On the 19th of February to enquire of whatsoever Treasons, &c. committed by the Pri­soner and john Hutchins, and on the said Day to make Enquiry upon the Pre­mises, and all and singular the Premises to hear and determine. Which hath not been performed accordingly; so that both the enquiry, and the hearing and determing has, and of necessity must be after the expiration of the said Commission.

Though the Reasons offered by the Prisouer's Council, are properly and learnedly offered, I could off hand answer and controul them all, yet I will not do it; let them be left with the Solicitor General.

And adjourn'd the Court until ten a Clock the next morning; which accordingly was done.

March 11. The Commissioners met, and the Prisoner brought to the Bar. Mr. Nicoll offered the following Reasons.

It does not appear that any one Overt Act, alledged in the In­dictment, has been proved by the Oaths of two lawful Witnesses, as by the Statute of 7 W [...]. 3. ought to be done.

The Jury are the sole Judges of the Evidence, and if there has been any omission in that' it is now help't by the Verdict.

Though it is very plain to me, and I suppose to the Court, that what I have affirmed in this matter is Truth, yet I shall [...] much insist upon it, because, if the acts themselves should be admitted to be true, they do not fall under any of the heads or species of Treason so made by the English Laws, or by any Natural and Reasonable Construction of the Act of Assembly of this Government; which being wholly matter [...] Law, I shall leave to your Honours Consideration, and pass to the words of the Com­mission, which are strictly limitted to the 19th of February; so that what­soever hath been done since. [...] humbly conceive has been C [...]ram no [...] Judice, and therefore void. To prove this, there is the great Case between the Earl of Le [...]cester and Sir Christopher H [...]yden in Plowdens. Reports: The Case was thus; Sir Robert D [...]dly was in Arms in open Rebellion against Queen Mary, for [...]etting up the Title of the Lady Jane; he was taken Prisoner, and a Commission issued out to the Duke of Norfolk, and divers others, to enquire of this Treason. [...] eight of those Commissioners an Indict­ment for High-Treason was found against the said Sir Robert Dudly: After­wards a Commission issued to the Lord Mayor of London, and others, to receive an Indictment against the said Robert Dudly for High-Treason, said to be found before Fifteen Commissioners, and the same to Hear, Try and Determine. Upon this the said Dudly was arraigned before them upon [Page 34]this Indictment taken before eight; to which he pleaded Guilty, and had Judgment of High-Treason. After this an Act of Parliament was made to confirm this Attainder, and Queen Mary by her Letters Patents granted the Lands of Dudly to Sir Christopher Heydon. Dudly was afterwards created Earl of Leicester, brings an Action of Trespass against Sir Chr. Heydon; he pleads in Bar the whole matter before recited, to which the Plantiff de­murr'd. It was resolved by the Court, That the Mayor of London, and others, proceeding upon an Indictment found before Eight, where the Commission was to proceed on an Indictment taken before Fifteen, had exceeded the Limits of their Commission, and all what they had done was Cor [...] a [...] non Judice, and void; and that being so, the Act of Parliament did not help it, it making no new Attaindor, and could not confirm, where there was none before, & therefore the Plantiff had Judgment to Recover. The Argument in this Case is strong [...]r, being specially limitted to a Day, which the Commissioners have exceeded.

A Day in Law is many times construed not according to the vulgar ac [...]eptation or litteral [...]ence, but according to a legal Interpretation, as Judgments given have relation to the first day of the Term, a [...] Acts of Parliament to the first day of the Sessions, tho' passed many Days or Weeks after

If the Commission was in common Form, to construe it ac­cording to usual Practice, were rational; but being wholly our of com­mon Form, to construe it contrary to the express plain words and against the common sence and understanding of those words, seems highly un­reasonable.

With this agrees the Judgment given in Pl [...]dens Reports between Nicolls and Nicolls, and the Rule there given by H [...]pen, in these words. [...] appoint per Commission non [...] ascune poier forsque cio lim [...]t a [...] per Com­mission; Persons appointed by Commission have no other Power but that limited to them by Commission.

In the Execution of an antient Office, which is by the Common Law, a mans Actions shall be construed liberally and favourably, according to usage and custom but the Actions of men proceeding by special Commis­sion, shall be construed strictly, and according to the Letter and Limita­tion of their Commission.

To make any other Construction would be very inconvenient; for should it be admitted that Persons acting by Commission, might extend their Power, limited by their Commissions, never so little, they might by the same Rule extend their Power ad Infinitum.

I very well remember that the Court was pleased to tell the Jury, after they had been together some days, and not being agreed upon the Verdict, That if they were under any Difficulty whether the Overt Acts [...] in the Indictment, if proved, were Treason, of they found the Prisoner Guilty, he had his Remedy by moving the Matter of Law in Arrest of Judgment.

I therefore humbly offer, in arrest of Judgment, That if the Overt Acts laid in the Indictment were admitted to be proved, yet in point of Law they cannot amount to High-Treason, within the meaning of the Act of Assembly upon which the Indictment is laid.

[Page 35] For I take it that all Acts of Parliament, and consequently Acts of As­sembly, are to be understood and taken by reasonable Construction, to be gathered and collected out of the words of the Act only, and that accor­ding to the natural, grammatical, plain and legal Sense thereof, without any forc'd Interpretation.

Then if so, this Act of Assembly both by the Title, Preamble, and the Enacting part thereof, plainly demonstrates the meaning of the Law-makers, and what was thereby designed for the future to prevent. The Title of this Act is in these words, An Act for the Quieting and Settling the Disorders that have lately happened within this Province, and for establishing and securing their Majesties present Government against the like Disorders for the future. Now what these Disorders were, we have great cause to remember, and they are very well known to this Court to have been occasioned by some Persons setting up an Arbitrary Power over the Kings Subjects with­out Authority from the Crown of England as appears from the Preamble of the said Act, part whereof is in these words, And whereas the late has [...]y and inconsiderate Violation of the good and quiet of this Province by the seting up a Power over their Majesties Subjects, without Authority from the Crown of England, both vitiated and deba [...]hed the Minds of many People. &c. For the prevention whereof in time to come, Be it exacted, &c. That whatsoever Person or Persons shall by any manner of ways, or upon any pretence whatsoever, endea­vour by fore of Arms or otherwise to disturb the Peace, Good and Quiet of this their Majestie Government as it is now established, shalt be deemed and esteem [...]d as Rebells and Traytors, &c

From hence it plainly appears, that the Intention of the Law-makers was only to declare such Person or Persons Rebels and Traytors as should, for the future set up a Power over his Majesties Subjects in this Province, with­out Authority from the Crown of England, which undoubtedly is Treason within the Statute of 25 Edw 3

But it can never he understood, (without the greatest of Violence to the reasonable Construction of the said Act of Assembly, & the plain Intention of the Makers thereof) to be construed to extend to the signing the Ad­dresses mentioned in the Indictment, which is the only thing the Prisoner is positively charged withal; for all the rest are only presumtive, construc­tive and accumulative Crimes drawn from thence.

But, says Mr Solicitor, the words of this Act of Assembly are in generals, That if any Person shall endeavour by force of Arms, or Otherwise to disturb the peace, good and quiet of the Government, shall be deemed and esteemed Rebels and Traytors.

Now from the word [Otherwise] Mr. Solicitor would fain insinuate that the Prisoner is within the meaning of the Act of Assembly: A very fine Explanation! for by such a Construction as this every breach of the [...], suddain Quarrel or small Battery shall be d [...]emed Treason. I shall not further add upon this Head, but only offer my humble Opinion. That here in the Plantations we are not capable in our Assemblies to make and declare any new Species of Treason, but such as are comprehended in the Statute 25 [...]dw 3. or some other subsequent Statute.

[...] to the special Commission of [...] and Terminer, that it is long since [Page 36]expired by its own Limitation, is very plain and self evident; for it im­powers your Honours even to meet and make enquiry as the City Hall on the 19th of February, and upon the said Day all and singular the Premises to hear and determine.

This indeed may be call'd a Special Commission, for it is not in the com­mon Form of Commissions of Oyer and Terminer, as our Books direct, for if we look at the form of this Commission in the Register, or in [...] Her­bert's Natar [...] Brevin [...], or in the 4th part of Sir Ed [...]. Cook in his Institutes, they all agree in one Form, and are very different from this Commission; for by those Commissions, the Times and Places of their Meeting are left to the discretion of the Commissioners, and the words are these. [...] Mandamus quod ad [...] Di [...]s & Loc [...] ▪ quod ves vel duo res [...]erm ad hoc Pro­videritis, Inqu [...]s [...]tonem illam factatis.

Yet in this special Commission both the Time and Place of your Meeting, Enquiring, Hearing and Determining are specially limitted to the 19th of February at the City Hall of this City, and not [...]. So that I am of Opinion, that your Honours are strictly [...]yed up by the words of your Commission, and that all your Proceedings against the Prisoner since the 19th of February are Unwarrantable, a [...] being [...] Judice.

In the Case of Nicolls against N [...]colls in Plowd [...]n [...], Commentaries, we see the great Difference and Distruction that is made between Persons acting Virtute Commissionis and Virtute [...].

1st For Persons appointed to act by special Commission only, as in this case, they have no Authority but what is specially given them by the very words of their Commission.

2dly But if Person [...]d [...] any thing by virtue of their Office, as the Chief Justice of the Kings [...]. Common Pleas, the common Law in a great measure, explains their Authority and Power.

But, says Mr. Solicitor, a Day in Law is many times construed not ac­cording to the litteral Sense, but according to a Legal understanding; and that a whole Term (which con [...]s of 28 Days, to some purposes) is but as one Day in the Law. [...] what be infers from his I cannot see. unless he could draw this conclusion, That it wil hold, vice versa, [...] Numerical Day, as the 29th of February, in construction of Law, is taken for 28 Days; which is a great absurdity.

Tho' what already has been offered. I hope will be sufficient to stay and arrest Judgment, yet I have several other things in behalf of the Prisoner (by your Honours permission) to move in arrest of Judgment, and which are not mentioned in the Reasons which were a [...]igned in writing, and pray liberty to offer them Ore [...] [...].

Mr. Emot, you have liberty granted you; go on.

I thank your Honour. And the Reasons that I shall now further assign why Judgment ought not to pass against the Prisoner, according to the Verdict of the Jury, are these Three.

1st. That Andries Marshall, one of the Petty Jury, is an Alien, and of Forreign Birth, born in Zeland, and [...] over into this Province in the Year 1684. and that Jac [...]bus Go [...]les, the Fo [...]-man of the Jury is also an Alien, and [...] lately sent for England to precure a De [...]ization.

[Page 37] 2dly, That the Vis [...]e or Venne in the Precept to summon the Petty Jury, under the hands of the Commissioners, is wrong awarded, or rather not awarded at all.

3dly, That the said Precept is not returned by the Sheriff, or any Endors­ment thereupon, and signed by him, against the known Laws of England, and more particularly the Stat. 12 Edw. 2. cap. 5. called, The Statute of York.

In a long Speech, said, What the Solicitor has offer'd is sufficient to Over-rule the Reasons exhibited in arrest of Judgment; for its evidently proved that the Prisoner has disturbed the Peace, Good and Quiet of the Government, as it is now established, viz.

[...]. By enticing the People to sign scandalous Libells against the Govern­ment, at the Coffee House, and at his own House, by the Oath of Peter Od [...]re, telling him, it was for the good of the Country; and his bringing them to Alder-man Hutchins's makes him equally guilty to the Souldiers signing Complaints against their chief Officers, thereby enticing them to Mutiny; which Souldiers are part of the seven Thousand Men [...]a [...]ed by Act of Parliament for Defence of the Kingdom, which is High Treason by the Common Law, as well as by Act of Assembly.

2dly, By the Prisoners disowning the Assembly to be lawful.

3dly, By charging the Lieut. Governour to be Brib'd to pass their Acts of Assembly.

4thly, By charging the Government to be in the hands of hot & ignorant Men.

5thly, By the Address to the Lieut. Governour, disowning and casting off the present Authority declaring the Lord Cornbury to succeed the late Earl of Bellomont in the Government.

I hope the Prisoner by this time is convinced of his Crime, as well as that Clergy-man who sp [...]ke so much in his Vindication, and that the Pri­soner will now be duly Penitent, and make a true Confession of it.

May it please your Honour, I ever abho [...]'d that hanious and abominable Crime of High-Treason, as much as Death it self; I call God and my Conscience to witness. That I am as Innocent of it as the Child Unborn: I never spoke to any of the Souldiers to make any Complaint, or sign any Addresses, or other Paper whatsoever. I own I was present at the Coffe-House at the signing of an Address to the King, another to the Parliament, and another to the Lord Cornbury; and I own that the two first eontained some Complaints of Grievances we supposed to lie, un [...]er & the latter a Congratulation. I had the best Council [...] could get for so doing, and that it was the Subjects Right to Petition the King, by the Act of the [...] of W. & Mary; and I th [...]nk the Subjects should be worse than Saves, if they shall be arraigned for High-Treason for complaining to their Prince.

I must further beg leave to say, Your Honour was much mistaken in suming up just now what the Witnesses had Sworn; and the Jury by that Paper the Fore-man read in Court) had likewise a wrong Notion of it, which I desired then I might Controul, but your Honour over-ruled it; as not to be allowed after the Charge was given. It was not proved by [Page 38]any of the Witnesses that the Peace of the Government had been disturbed: None of 'em said I had inticed any Person whatsoever to sign the Addres­ses; nor that I was present at the Souldiers signing at Hutchins's, much less that I enticed them to Mutiny. I knew nothing of their signing, I was not at the House all that time; Mr. Solicitor had Mrs Hutchins sworn, who said the same None of 'em say, that in said Address the Assembly was called Ʋnlawful, but only that the Speaker wa [...] an Alien; nor that the Lieut. Governour was [...]ribed, but Tempted: Nor that the Government was in the hands of H [...]t and Ignorant Men, but that h [...]t and ignorant Men were put in Offices, and that thereby the Government was like to be rendered Cheap and Vile. And as for the Address to the Lieut. Governour, it was only [...]aid, We had received advice from England that the Lord Cornbury was to succeed the Earl of Bellomont as our Governour; which by no colour [...] be construed to be a [...]sting off or disowning of the present [...]. And though all had been proved as it is not) what your Honour, as above, has been pleased to say, I humbly conceive it cannot amount to a Misde­meanour, and much less to that hainous Crime of High-Treason.

The Right of Petitioning the King is not in dispute, but the manner of doing it, makes it Criminal; Neither does that Liberty ex­tend to the Parliament.

I humbly move that we may have liberty to offer other Reasons Ore Ten [...]s.

Which the Court granted.

Adjourn the Court till Fryd [...] Morning the 13 [...]h instant.

Ad­journ'd accordingly.

On the 12th in the Morning the Prisoner did write a Letter to Coll. De Peyster, some of the Contents whereof were by Mr. Atwood retorted upon the Prisoner in open Court, at the time he passed Sentence against him, for which reason the Prisoner has permitted it to be published, and is as followeth.

March the 13th. The Court being met, according to adjournment, the Prisoner being brought up, moved, That forasmuch as Mr. Nicoll was out of Town, by reason of the Indisposition of his Family, another Council might be assigned in his stead. Which was granted, and the Court ad­journed till Munday the 16th instant, at nine a Clock.

March 16. Before the sitting of the Court the Prisoner sent a Position to Mr. Atwood, and the rest of the Commissioners, viz.

[Page 41] The Court being met, the Prisoner was brought to the Bar, and the Pe­tition last mentioned read.

Mr. Emot, we are ready to hear the Arguments you have to offer for the last three Reasons you have assigned in arrest of Judgment.

I am ready, and shall begin the first. [...]. Andre [...]s [...] one of the Petty Jury, is an Alien; we have two Evidences to prove the same. And—

We cannot admit you any such Proo [...], for tho' this might have been a good exception for cause before he or they had be sworn, but now its too late; therefore go on to the next.

This seems very hard, for we ought to have been tryed by the the Kings lawful Leige People, and we apprehend these [...] not such, but we came not to the knowledge of this till after the Trya [...].

Pray, Mr. Emot, delay the Court no longer, but proceed to the second Reason assigned.

The 2d Reason is, that the Vi [...]s or Ven [...]e in the [...] to summon the Petty Jury, is wrong awarded, or rather not awarded [...]. Our happy Constitution of Government is, That all Tryals of this Nature must be by the Verdict of Twelve Men, and that as near as may be of the Neighbour­hood where the fact ariseth, or is alledged to arise in the Indicment. Yet [...]vertheless the Precept t [...] summon the Jury, we find, is directed to the Sheriff to return Eighty Men of his [...]ailwick, where's he is Sheriff as well of the County of New-York, as of the City; and at the same time, the Matters of Fact alledged in the Indictment are said to be committed in the Dock and East Ward of this City. So that this is a M [...]s-Tryal, upon which no Judgment can be given. And of this we have a multitude [...]o A [...]o [...]i­tion in our Books; and first, [...] Arundals case, Co [...] Re [...]o 6 books, p. 378 It was for the Mu [...]ther of one [...]; and the Case was thus: The M [...]r­ther was alledged to be done at the City of Westmin [...]ter in a certain [...] there, called Kings-street, in the Parish of St. Marg [...]. For he [...] of the Issue a Jury was returned [...] Westm Arn [...]d [...]l being found guilty, moves in arrest of Judgment, assigning for cause, [...] the Jury ought to have been out of the Parish of St. Mar [...]r [...], and not in g [...]e­ral, out of the Neighbourhood of the City of Westmin [...]ter: And it was adjudged a Mis-Tryal, and the Verdict was set-side and the I [...], was done upon a special Consult of the Judges at [...].

So that we see how [...] the Laws of England a [...]e, and the Judges thereof, that all Tryals of this Nature shall [...] the Ven [...] [...]n that the Jury shall be summoned from the Neighbourhood where he [...], And the reason thereof is grounded upon this Supposition and Presump [...], That the Neighbourhood are the best and must proper [...] Ma [...]ers of Fact; for indeed its the Rule in the Law, That Vicinas [...] vicin [...] pre­sumitur s [...]re.

But let me observe to your Honours. That our ease at the Far is much more uncertain, as to the awarding of the Venire sa [...]as or [...] [...]um­mon the Jury; for the fact is alledged to be done at the Dock and [...]a [...]t Ward of this City, and Issue joyned thereupon. Yet the [...]recep is directed to the Sheriff to Summon the Jury of his Ba [...]lwick, which, as I said before, con­tains [Page 42]both the City and County of New York, and without mentioning any Neighbourhood, and therefore may come out of the County, as well as from the [...]ity; and therefore of necessity must be esteemed a Mis-Tryal.

To this it may be objected, by such as are ignorant of our Laws, That notwithstanding the [...] was summoned from the Neighbourhood of the City of New York [...] not from the County; for that they know the Persons to be such But this not appearing to be so upon Record, avails nothing; for the Rule of the Law is, What appears not, is not Existentibus & non apparentibus cadem est ratio.

Crooks Rep. In London, the Parish and Wa [...]d is mentioned and therefore it was adjudged, That it was not good to alledge any thing done generally in London, but it must be laid to be done in some Parish, from which a Venue may be awarded.

In Crooks [...]. p. 39 [...]. T [...]eat against West [...]ome. In this case a Venire fa [...] was awarded from [...]. and not de Vicineto de [...]. Resolved to be ill, and not am [...]dable. Yet in this Precept the Visire is not so much as a Ward of the City of New York, nor of any other Neighbourhood whatsoever, but in general from his Bailwick. So that I humbly pray, that for this Reason the Jury's Verdict may be set aside, this being a Mir [...] T [...]yal, upon which no Judgment can be entered. And shall proceed to the Third Reason assigned.

[...] That the Precept to summon the Jury is not returned by the Sheriff, of any Endorsement thereupon, & signed by him, against the known a Laws of England, and more particularly the Stat. 12 Edw. 2 cap 5. This Statute enjoynes that the Sheriff shall put his Name to every Return made by him, so that the Court may know of whom they took such Return, if need be. And I shall endeavour to prove from sundry adjudged cases, since the making of this Stature, That this Precept to summon [...] not being endorsed [...] the Sheriff, the [...], and not amendable.

The Case of [...] with against Sir Stephen Proctor, in C [...] [...] p. 188. Sir Stephen Proctor moved in arrest or Judgment, for that the [...] of the Sheriff was not endorsed upon the Writ of [...] with [...]; and it was ruled, That the Tryal was ill, and not amendable by any [...] Sta­tutes of J [...]als For says the Judges its all one with the care of a Ve [...]ire facias, where the Name of the sheriff is not thereto; which [...] [...]e­quently over-ruled, as being no Return not helped by any Statute of [...]. For the Stat. 18 Eliz. as I shall shew hereafter from adjudged Cases, and from the best Authorities in Law, doth only help imperfect and insufficient Returns, and that only in cases civil between party and party; but here is no Return at all.

In Ronsands Case in Lord C [...] Rep. 5 Book, p. 41 in Ejectment upon a Verdict for the Plaintiff the Defendant moved in arrest Judgment, for the Venire facias was not returned or endorsed by the Sheriff tho' the Postea made mention that the Jury was returned per Mandatum Justic [...]rum. Yet in this case it was ruled, That that would nor help it: for the Judges [...], That where there is no Return, it cannot be help't by the Statute 18 [...]l [...]z. or any other of the Statutes of Jeofals; for that Statute only helps in imperfect and insufficient Returns, and such as want form, & not such as are not return'd at all.

Again, in Sir Arthur Blackmores Case in said Book, Cov. Rep. p. 162 in [Page 43]this case it was adjudged that Stat. 28 Eliz. doth not help a Tryal where no Return is made upon the Writ of Venire [...] as was formerly, say they, adjudged in Rowlands case before cited. And our Books are full of Autho­rities of this Nature, but shall not give you the trouble to mention any more.

Mr. Emot, These Authorities which you have here cited, its true, are grounded upon the Statute which you have mentioned of 12 Ed 2. but this Statute has only relation to Writs, and in this case the Sheriff sum­moned the Jury not by virtue of a Writ, but a Precept under the hands of the Commissioners, which differs the case.

Mr. Solicitor, Then you say that the case at the Bar is not within the [...]ords of this Stat. 12 Ed 2 for that this is a Precept to summon the Jury, and not a Writ, and to consequently the Sheriff not obliged to sign and return the same. A very wise Distinction.

However, I shall endeavour to shew, that this Precept is within the Reason and Equity of the Statute, and that the same ought to be returned and signed by the Sheriff In order thereto I shall put this Court in mind, how Statutes have from time to time been taken by Equity in divers manners, that those things which are alike in Reason, are alike in Law; and that where an Act of Parliament hath been made to remedy some Mischiefs, that the same hath been extended to other things in like Degree, and that even in Penal Law. As for Example:

Stat. of Gloucester. cap. 5 By this Statute, an Action of Waste is given against one who holds for years; yet by the Equity of this Statute, a man shall have an [...]ction against him who holds but for half a year, notwith­standing the Act be Penal.

Westm 2. cap. 3. This Statute gives an Action of cui in vita, after the Coverture disselved by Death, Yet if the Coverture be dissolved by Divorce; the Wife shall have, by the equity of this Statute, a Writ of cut [...]

And lastly, the Stat. 25 Edw. 3. de proditionibus, This Statute expressly says, That no case shall be taken by equity unless it be adjudged in [...]arlia­ment; and yet by the equity of the words of that Statute, which are, If the Servant kill the Master, it is taken, If the [...]a [...]d kill the Mastress, That this is Petty Treason.

So that from hence I am humbly of Opinion, That we are fairly within the Equity of this Stat. 12 Edw. 2. Besides, a Writ and Precept in this Case are only S [...]nonimous Terms, and signifie one and the same thing.

These Reasons were Over-ruled.

And the Court ordered the Sheriff to make a Return upon the Precept to summon the Jury, conform to the above Stat. 12 Edw. 2. which the Court said they had power to do, and to help that Defect.

I find your Honour has Over-Ruled all the Reasons that we have offered in arrest of Judgment, in behalf of the Prisoner Coll Bayard, why Judgment ought not to pass against him, according to the Verdict of the Jury; but have not as yet observed that either Coll. D' Peyster or Capt. Walters have given their Opinion to all or any of the Reasons we have offered. I humbly therefore pray, that we may have their Opinion, so that we may know by what hands we fall.

Mr. Emot, You which have been assigned Coun [...]el for the Pri­soner, have hitherto, in all the Course of the Tryal, carried your selves li [...]e Men of your own Profession, you must not now therefore begin to menace the Court. You shall have the Opinion of the rest of the Commissioners.

Whereupon Mr. Atwood turning himself to them, and whispering them, they severally did declare, That they were of Opinion with Justice Atwood, In that the Reasons offered were not sufficient to arrest the Judgment.

Coll. Bayard, have you any thing to say why Sentence should not pass against you?

I have nothing more to offer than what my Council have offered, and what is contained in my last Petition.

I am sorry to find you so Impenitent of your Crime, which is so [...]eino [...] and Abominable in the sight of God and Man. You have lately made Reflections upon the Proceedings of this Court against you as if it had been a design to do the Job, comparing your Case to that of Naboth's Vineyard. But I hope God will open your Eye, that you may be convinced, and Repent of the Crime.

Then Pronounced Sentences in those words,

It is considered by the Court here, That you be carryed to the Place from whence you came, That from thence you be drawn upon a [...]urdle to the place of Execution, Tha [...] there you be Hanged by the Neck, and being alive, you be cut down upon the Earth; and that your Bowels be taken out of your Belly, and your Privy Members be cut off, and you being alive, they be burnt before your face; and that your Head be cut off, and that your Body be divided into four Quarters, and that the Head and Quarters be placed where our Lord the King shall assign. And the Lord have Mercy upon your Soul.

I desire to know whether I may have leave to answer to your Honour's Speech made before Sentence?

No.

Then Gods Will be done.

The Prisoner was Remanded.