William A (wood. was intended for England alone, as any thing that would be treason at common law that was not provided for in it had to be, to use his expression, " adjourned into Parlia ment"; that this meant the Parliament of England, and that this provision therefore showed that the Statute had no application in the colonies. The prisoner, he said more over, had not been indicted under the act of Edward III, but under a colonial act passed by the New York Assembly in 1691, which had been approved by King William, who had the right under his prerogative to make anything he thought proper to be high treason in the colony, his power in that re spect being as great as that of Parliament; by which ruling Atwood relieved himself from all restraint and was enabled to do the very thing that this statute of Edward III was enacted to prevent, a judge declaring whatever he thought proper to be high treason. The act of Edward III had been passed a hundred and fifty years before North America was discovered, and to suppose it was not meant to apply to any territory over which the dominion of England might thereafter extend, if applicable, was an idea to occur only to a man in the position of Atwood, who was determined to find some excuse for evading it. The limitations it imposed were of such value to the liberty and life of a British subject, that Coke calls it " this blessed act," and says that all subsequent statutes upon the subject "agree in magnifying and extolling it."' It was then and has always been the doc trine in England that statutes that were in force when a territory is conquered and made a part of the British dominion are thereafter in force there, if applicable, and that this important statute was then in force in New York did not admit of question. Ten years previously Leisler and Milborne were indicted and convicted under it 1 Coke's Institutes.
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for high treason. After they had been ex ecuted Leisler's son brought the proceedings upon their trial and execution before the British government in the form of a com plaint. It was referred to the Lord Com missioners whose duty it was to investigate such applications, and they, after " hearing the whole matter," reported to William III that in their opinion Leisler and Milborne had been tried and condemned according to law, which, it may be assumed, the legal advisers of the Crown would not have done if they had had any doubt as to whether the statute of Edward III was in force in the colony. They upheld the regularity and validity of the conviction, but "as an act of mercy " recommended that the attainder be removed, so that the estates of Leisler and Milborne might be restored to their heirs, with which King William complied.1 When Leisler and Milborne were tried, the act of Assembly, under which as Atwood held Bayard was indicted, had not been passed. It was enacted about a month afterwards. But this act could in no way affect the statute of Edward III or make it inapplicable thereafter in the colony, for it was not in the power of the Assembly nor in the power of the King, by approving an act passed by it, to establish any law in the colonies in conflict with so fundamental a statute as that of Edward III, which, like Magna Charta and the Bill of Rights, had become a part of the English Constitution and one of the bulwarks of English liberty, even if there had been any intention to do so, which it was evident there was not. The title stated the purpose for which this act of the Assembly was passed: "An act for the quieting and settling of the disorders that have lately happened in this province and for securing their Majesties' government from like disorders." It had a long pre amble referring to the late violation of the true faith and allegiance that was due to their Majesties by setting up a power over 'Smith, History of New York, Vol. I, 118-119, 1830.
