over the prison, to prevent a rescue. This being done, Nanfan issued a commission for a Court of Oyer and Terminer, to be held by the Chief Justice and two of the puisne judges of the Supreme Court, Abraham De Peyster and Robert Walters, who were of the Leislerian party, for the trial of the prisoners, and he appointed Weaver SolicitorGeneral to conduct the prosecution, an office before unknown in the province. The accused petitioned that they might not be brought to trial until the regular sit ting of the Supreme Court, as they wanted the intervening time to get ready for their defense. The request was denied, and only five days were allowed Bayard to prepare for his trial, which was the first, the inten tion evidently being to have him tried and convicted as quickly as possible, as it was not known when Lord Cornbury might ar rive, and it was by no means certain what view he might take of the proceeding. It was doubtful if a grand jury could be got that would find a bill of indictment against Bayard, for an offense the punish ment of which was death. The Leislcrians were chiefly composed of the Dutch and Huguenot part of the population, and Bayard, in addition to being personally popular, was a Dutchman by birth and the son of a Huguenot. Weaver, foreseeing that there might be difficulty, went himself with the proofs before the grand jury, and gave orders that no one should be sent for to appear before them except such as he might name, nor any question asked except such as he should approve. Four of the jurors objected to the presence of the Counsel for the Crown during theirdeliberations. They also claimed the right to send for any persons and to ask any questions they thought proper, and the reply made by Weaver shows the despotic arrogance of officials in that day. It was that he would have these four jurors "trounced/' He took down their names, and Atwood ordered them to be discharged and four others put in their place. But
notwithstanding this, and although Atwood charged them that the facts which the pros ecuting officer of the Crown would lay be fore them amounted to high treason on the part of Bayard, the jury, after long delibera tion, hesitated and adjourned at a late hour on Saturday night until Monday morning, without finding a bill of indictment against him. This incensed Atwood, who declared that if the grand jury did not find a bill, he would have an information lodged against Bayard for high treason and try him in that way. On the following Monday the grand jury came into court, and the foreman, who was the brother of one of the puisne judges, De Peyster, handed up the indictment en dorsed and signed by him as a true bill, which Atwood immediately took, and at once discharged the grand jury. Nicholls and Emot, the defendant's counsel, then informed the court that eight of the nine teen grand jurors were against finding the bill of indictment; and that as the concur rence of twelve at least was necessary to the finding of a true bill, the foreman had no right to present it, and they moved that those of the jury who were present might be examined as to the fact, and the re mainder sent for. Weaver's answer to the motion was in the partisan spirit of the period. " When you had the government, Dr. Staats had a bill filed against him by eight out of eleven," which Nicholls did not admit. But Atwood was more adroit. He knew that the concurrence of twelve jurors was essential to an indictment, and denied the motion upon the ground that the jury had been discharged, and that there was no longer any grand jury. Nicholls then moved to quash the indict ment, offering to produce a written state ment by eight of the jurors that they had not given their consent to the bill, which Atwood met by the subterfuge that the in dictment had then become a matter of record, and that no averment could be re
