William Atwood. in London of such standing as to be selected for Chief Justice of one of the colonies, and displayed upon this trial such a familiar knowledge of criminal procedure as to baffle the counsel upon many technical objections which they raised, he could not but have been acquainted with a case of such celebrity, for it had been elaborately reported, and the result of it incorporated in the ordinary treatises of that time. But Atwood had no intention, if he could prevent it, that the jury should understand that they had the power, no matter what might be the evidence, to return a verdict of not guilty. He therefore took no notice of the point when Emot presented it, nor in his charge of the jury, anticipating doubt less from the positive instructions he meant to give them that they would promptly ren der a verdict of guilty. He told them in his charge, as before stated, that the prisoner was indicted not under the statute of Edward III, but was tried solely under the act of the House of Assembly in 1691, that the overt acts al leged in the indictment had been proved, and amounted under this act, to high treason by " the signing of libels against the govern ment of the Colony and thereby enticing the people to cast off and disown it, es pecially by soldiers signing complaints against their superiors, which tended to mutiny and sedition," which was, he said, high treason by the common law; that the prisoner, by bringing the addresses to Hutchins' tavern, had made himself guilty of all that was done there by soldiers and others, and that the jury could not do otherwise than find him guilty. But the earnestness with which Emot had pressed his point that the jury were the judges of the law as well as the fact, which Atwood had not controverted as he had everything else that had been presented in favor of the prisoner, had not escaped the attention of the jury, and instead of promptly
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returning a verdict of guilty as they were instructed to do, they remained out until nine o'clock in the evening, when, being Saturday night, the court adjourned until Monday morning. After the opening of the court on Monday, the jury, upon being brought in, asked for instruction respecting the evidence. The foreman read something from minutes he had taken of the testi mony, upon which it would seem the jury were not agreed. What it was does not ap pear from the report of the trial, but that it related to the crime of high treason is indicated by what followed. The counsel for the prisoner denied that any such testi mony had been given, and Atwood told the jury that after delivering his charge he could give them no direction as to the evidence, but that he could as to the law, and then suggested that if they had any doubt upon the question of high treason, they could find a verdict of guilty, and then the pris oner could be relieved by a motion in arrest of judgment. This was an intentional evasion of his duty, which was to tell them that in a case of doubt they could render a special verdict, finding the facts, and leaving the question of law entirely to the court. The right of the jury, where they were in doubt as to the law, to find this special verdict was given by a statute passed as early as the reign of Edward I. It was enacted for the benefit of the jury, to relieve them of the responsi bility of finding a verdict of acquittal, as there was then a proceeding known as an attaint, in which they could be called to account for their verdict, and punished, if it were adjudged under that proceeding that they had given a false one.. But a special verdict by the jury, simply finding the facts, would have thrown upon Atwood and his two associates the sole responsibility of convicting Bayard of high treason for simply signing or getting up the petitions. With all his audacity, Atwood was too shrewd to take such a responsibility,
