the subject in the colony, without their authority; for the preventing of which in the future, it declared that there could be no power exercised in the province but which must be derived from them and their suc cessors, and it recognizes and acknowledges that William and Mary, who had then been in the exercise of the regal authority for two years, were the lawful sovereigns of the British dominions and alone had the right to rule in the province; after which followed an enactment that any one who should there after by force of arms or otherwise endeavor to disturb the peace and quiet of the government as then established, should be deemed rebels and traitors and incur the pains, penalties and forfeitures that the laws of England had provided for " such of fences "; plainly showing that the criminal act that was meant was the setting up of a power over the subject in the colony with out the sovereign's authority, as Leisler and his associate had done, for which they were lawfully convicted of high treason. There was nothing in the act of Assembly denoting any intention to interfere with the statute of Edward III or to make any thing high treason that was not made so by its provisions. Nothing giving a judge in the colony the power to declare that the sign ing^ or inducing others to sign a petition to the House of Commons reflecting injuriously upon those charged with the administration of the colonial government was high treason for which those who signed such a petition, or got it up, could be hanged, drawn and quartered. The interpretation that Atwood put upon this act of 1691, his ruling in re spect to the statute of Edward III, and his whole conduct from the beginning, was to give his design to destroy a political rival the color and sanction of a judicial proceed ing, by whatever means -that formality could be obtained. Emot raised another important point, which was that upon the trial of all in dictable offences, the jury are the judges
as well of the law as of the facts; that hav ing in all such cases an absolute power to acquit, they were necessarily judges of the law, for the reason that, after an acquittal by a jury, the accused could never again be put upon trial for the same offence.1 This involved a question of great interest from the long legal controversy to which it gave rise both in England and in this coun try, especially in criminal prosecutions for libel, to which I shall have occasion here after to refer' in a more celebrated case that arose in the colony, that of Peter Zenger, in which this point was raised and sustained by the verdict of the jury. Some few years previously, that is in 1680, Sir John Haines published, in Eng land, a pamphlet advocating this right on the part of the jury in criminal cases that was much read at the time, and which Emot may have seen. But the question had been agitated before the publication of this pamphlet,3 and the controversy was kept up long afterwards. Atwood undoubtedly knew that a jury had the right in any in dictable offense to render a general verdict of not guilty, whatever might be the law or the evidence. Thirty years before " it was determined in a case of great notoriety growing out of the prosecution of William Penn, that upon the trial of an indictable offense the jury have a right to give a verdict of not guilty although the court may direct them as matter of law to find a verdict of guilty, and that a judge has no authority, as was done in that case, to fine and imprison jurors because they did not return such a verdict as he had directed." The question was regarded as of such im portance that it was heard before fifteen judges sitting in the Exchequer as a court of review, fourteen of whom concurred in the judgment.4 As Atwood was a lawyer 1 The King and Mowbery, 6 T. R. 638. 2 In a forthcoming work on the judges and lawyers of the Colony of New York. 3 Buschel's Case, Vaughan's Reports, 1670. 4 liuschel's Case, Vaughan's Reports.
