Background
In 1691, Nicholas Bayard, who had been a force behind the trial and execution of Jacob Leisler for treason, sponsored a law which provided that any person who endeavored, by force of arms or otherwise, to disturb the peace of government, would be deemed a traitor. It was under this act that, in 1702, he was tried on charges of treason.
When Richard Coote, 1st Earl of Bellomont, was appointed Governor of the Province of New York in 1698, the faction to which Bayard belonged fell out of favor. Lord Bellomont was a strong supporter of William of Orange and, on arriving in the Province, found himself in sympathy with the Leisler faction. He did much to redress the harm suffered by Leisler’s family following the execution. Lord Bellomont died on March 5, 1701 and when word reached the Province that Queen Anne had appointed her cousin, Edward Hyde (Viscount Cornbury) to replace him, Nicholas Bayard and other prominent anti-Leislarians determined to win the support of the new Governor. They drew up three petitions (to the Crown, the House of Commons and Lord Cornbury) charging Lieutenant-Governor Nanfan, Chief Justice Atwood, the General Assembly and the late Lord Bellomont with bribery and oppression. Word of the petition reached Lieutenant-Governor Nafan (still acting Governor of the Province pending the arrival of Lord Cornbury) and Nanfan convened a meeting of the Governor’s Council. On January 16th, 1702, the Council ordered Alderman John Hutchins to appear before it the following morning with the petitions. Hutchins refused to deliver the documents and on January 19, 1702, he was arrested and jailed “for the signing of libels said to be against the administration of the government.” Col. Nicholas Bayard, Rip Van Dam, Philip French, and Thomas Wenham immediately sent a memorial to the governor seeking the release of Alderman Hutchins on the ground that they, and not he, had possession of the documents. The four men were ordered to hand over the petition to Nanfan who then sent it to the attorney-general for “his opinion in law therein.” The next day, Attorney-General Broughton delivered his opinion that there was nothing criminal or illegal in the document. Nevertheless, Governor Nanfan and five of his council issued a warrant to the sheriff for the arrest of Col. Bayard for conspiracy with Hutchins to disturb the peace, and “render the past and present administration vile and cheap in the eyes of the people.”
The Grand Jury Proceedings
On February 12, a special session of the Court of Oyer and Terminer was convened. William Atwood was appointed the presiding judge and the associate judges were Abraham De Peyster and Robert Walters. All three men were members of the Governor’s Council and had signed the warrant for Col. Bayard’s arrest. Attorney General Broughton refused to prosecute, and was not present at the trial. The prosecution was conducted by Thomas Weaver, the Solicitor-General and the attorneys for the defense were James Emott and William Nicoll.
In the course of the grand jury proceedings, four jurors objected to the presence of solicitor-general Weaver during the panel’s deliberations and Weaver threatened them with a “trouncing.” When the court met that afternoon, Chief Judge Atwood discharged the four persons from further service. The remaining jurors failed to bring in an indictment that day and as he adjourned the court until the following morning, Judge Atwood reputedly stated that “if the grand jury will not find a bill against Col. Bayard, I will bring an information against him of high treason, and try him upon that.” On February 21, 1702, the foreman of the grand jury returned an indictment. Judge Atwood immediately discharged the jury. Defense counsel challenged the indictment as defective because eight of the nineteen jurors had not voted in favor of it. The court held that the indictment had been regularly returned, that it was now a matter of record and that it could not be challenged.
The Trial
On March 2, 1702, Bayard was charged under the 1691 treason act that he had sponsored in the Assembly. Testimony was offered that Col. Bayard had signed the three addresses, had offered them to others to sign, had them still in his possession, and refused to deliver them up to the lieutenant-governor and his council. After much deliberation and a request for further instructions, the jury rendered a guilty verdict on March 9, 1702. Bayard was sentenced to be hung, drawn, and quartered, but his application for a reprieve until the pleasure of the Crown might be known was granted. On Lord Cornbury’s arrival in the Province, the attainder was reversed by an act of Assembly, and confirmed by Queen Anne, Bayard was reinstated in all honor and estate “as if no such trial had been.”
Aftermath
In November, 1702, Atwood was suspended from office by the Governor, Lord Cornbury. Atwood, the Chief Justice, and Weaver, the Solicitor-General, fled to England where Atwood sought, without success, to justify his actions and be restored to office as Chief Judge of the Province.
Sources
John Davison Lawson (ed). American State Trials, Volume 10 (1920)
William W. Williams, James Harrison Kennedy. The Administration of Lord Cornbury,1702-1708. 17 The National Magazine 95 (1892)