c. 127 (February, 1811), Quakers were allowed to affirm on all

occasions.

How was it with him who was not a Quaker, but had like scruples? After the familiar way of legislators, no general principle was applied till later. Probably there were few cases of trouble. One such occurred as late as 1815,1 when Judge Story committed for contempt a witness, not a Quaker, who refused from conscientious scruples to take the oath. It was the St. 1824, c. 91 (P. S. c. 169, s. 16), which first allowed to others the liberty earlier gained by the Quakers, whenever "required to take any oath on any lawful occasion." The constancy of that God-fearing people had its final victory at last, in working out freedom of conscience for all.

The case of that other class of persons mentioned above, the native Indians, was also a troublesome one. They could not be expelled; they also must be lived with. The religious condition of these people, "the veriest ruins of mankind upon the face of the earth," as one of the clergy called them, was a puzzle to the colonists.2 Saving the scanty converts, they seem to have been regarded either as wholly destitute of religion or as worshippers of false gods, and even of that peculiarly dangerous false god, the devil. How could an oath be administered to such persons? Could the Pilgrim or the Puritan allow before his magistrates the invocation of Baäl or of Satan? or the swearing in of one who knew no God at all?

...

juries; and in some cases, apparently, without taking the oath: "13th Wednesday, in the morning about ten, in Mr. White's meeting-house, began the trial of Abia. Comfort, an Indian woman, against whom a bill of indictment was drawn up and presented to the Gr. Jury, whereof Joseph ... was appointed foreman, with eleven more Englishmen, but he and most Quakers; yet on the Court's having their hats off, and manifesting the decency of their's too, they, some of themselves, and others easily submitted to their being taken off, and had the Gr. Jury's oath or declaration administered to them, some holding up their hands."

1 U. S. v. Coolidge, 2 Gallison, 364. A similar case in England is mentioned as occurring in 1854. Powell, Evidence (3d ed.), 29.

2 Palfrey, Hist. New Eng. i. 43-50.

3 "And it is ordered that no Indian shall at any time Powaw or perform outward worship to their False Gods or to the Devil, in any part of our jurisdiction, whether they shall be such as shall dwell here or shall come hither; and if any shall transgress this law, the Powawer shall pay five pounds, the procurer five pounds, and every other countenancing by his presence or otherwise (being of age of discretion), twenty shillings; and every town shall have power to restrain all Indians that shall come into their towns from profaning the Lord's day." This was a Massachusetts statute of 1633, preserved in the "Laws of 1660" (Whitmore's ed., Boston, 1889), Part II., 163. A similar pro vision is found in the Plymouth Col. Laws, 298, " Laws of 1671."

"1

Evidently not. And yet there was constant occasion for Indian testimony. For example, Zachariah Allin, of the Plymouth Colony, was convicted, in 1679, "by the testimony of sundry Indians," of having supplied them "with some quantities of strong liquors." Although this was a trial by jury, yet it is expressly said to have been according to "Chapter 14th of our Book of Laws, section the 7th.” Turning to this 2 we find that "It is ordered that the accusation, information, or testimony of any Indian or other probable circumstance, shall be accounted sufficient conviction of any English person or persons suspected to sell, trade, or procure any wine, cider, or liquors above said, to any Indian or Indians, unless such English shall, upon their oath, clear themselves from any such act of direct or indirect selling; . . . and the same counted to be taken for conviction of any that trade any arms or ammunitions to the Indians." This procedure was enacted in the Massachusetts Colony in 1666, in the Plymouth Colony in 1667, and later in the Province, in 1693-4.3 While, as in Allen's case, it might be combined with a jury trial, this was really "trial by oath," a very ancient thing. A touch of it may be seen, in Massachusetts, under a statute relating to usury, Stat. 1783, c. 55, as explained by Shaw, C. J., in Little v. Rogers, 1 Met. 108, 110 (1840).

What was thus called in the books Indian "testimony," was probably not under oath. In the sort of case just referred to, the Indian merely made a criminal accusation. How was it in civil cases? An answer is found in a Plymouth law of 1674,5 where, after reciting that many controversies arise between English and Indians, and that Indians "would be greatly disadvantaged if no testimony should, in such case, be accepted but upon oath," "it is ordered that any court of this jurisdiction before whom such trial may come, shall not be strictly tied up to such testimonies on oath as the common law requires, but may therein act and determine in a way of Chancery, valuing testimonies not sworn on both sides. according to their judgment and conscience." In March 1679-80, in Dexter & wife v. Lawrance, (7 Plym. Col. Records, 222, 223) in an action of trespass on land of the female plaintiff, purchased 1 Plym. Col. Records, vii. 242, 247.

2 Plym. Col. Laws, 290; Plym. Col. Rec., xi. 234, 235.

8 Plym. Col. Rec., xi. 219, 2:6; Plym. Col. Laws, 152; 4 Mass. Rec., Part II., 297 ; Whitmore's edition of Mass. Laws of 1660 and Supplements, Part II., 236; 1 Prov. Laws, 151.

4 5 HARVARD LAW REVIEW, 57-63.

5 Plym. Col. Records, xi. 236; Plym. Col. Laws, 171.

by her of an Indian, the jury's verdict ran thus: "If Indian testimony be good in law, we find for the plaintiff five shillings damage and the cost of the suit; but if not good in law, we find for the defendant." It is added: "The charges of the suit is three pound, which was ordered by the court to the plaintiff." It seems a fair interpretation that this means judgment for the plaintiff, and so a holding that "Indian testimony" was good in law. It will be observed that the suit was between white persons, and that the statute related only to controversies between whites and Indians.1 In Smith v. Freelove (7 Plym. Col. Rec. 255, 256), in 1682, in an action of trespass relating to Hog Island in Plymouth, while John Alden," aged eighty-two years, . . . being one of the first comers into New England to settle at or about Plymouth, which now is about sixty-two year since," in giving his testimony is regularly sworn, - four "ancient Indians . . . do affirm and testify" merely, the magistrate certifying that these "testimonies was subscribed to and declared to be the real truth."

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There are instances, and probably many of them, in the court records of the Province, in the eighteenth century, where Indian testimony was introduced. In some the memorandum is added, "Sworn in court," and "Attested in court." In some it is merely described as "testimony." And again, as in the deposition of Hepsabe Seeknout, widow of Joshua Seeknout, late Sachem of Chappaquiddick, dated Oct. 1, 1717, it is said to be "taken in court and spoken as in the presence of God." We may observe this same form of injunction formerly given in England to witnesses brought forward by one on trial for treason or felony, none of whom could be sworn until 1695, in high treason, and 1702 in felony.2 "Look you here, friend," said Chief Justice North, in 1681, at the trial of College for high treason, when the accused called one of his witnesses, "you are not to be sworn; but when you speak in a court of justice you must speak as in the presence of God, and only speak what is true." 8

It may be added, that in criminal trials and inquests where

1 In Rhode Island, in 1673, the General Assembly, after directing the trial of an Indian charged with murdering another Indian, by a jury of "six Englishmen and six Indians," ordered "that, in all cases of this nature wherein one Indian hath a complaint against another Indian, the testimony of an Indian may be taken, and in the judgment of the jury to accept or refuse the evidence as it were the testimony of an Englishman." -2 R. I. Col. Rec. 509.

2 Stat. 7 Wm. III. c. 3, and Stat. 1 Ann, c. 9; 2 Hale, Pl. Cr. 283.

8 8 How. St. Tr. 626.

Indians were concerned, there was a common practice of adding Indians to the jury, much as witnesses to deeds were added to juries in the old days of the English law, but for a different reason.1 In June, 1675, in the Plymouth Colony, three Indians were tried for the murder of another Indian and convicted. The names of the twelve jurors are given,2 and it is added: "It was adjudged very expedient by the court that together with the English jury above named, some of the most indifferentest, gravest, and sage Indians should be admitted to be with the said jury, and to help to consult and advise with, of, and concerning the premises. [Then follow their names.] These fully concurred with the above written jury." The verdict was guilty; it began: "We of the jury, one and all, both English and Indian, do jointly and with one consent agree upon a verdict," &c.3

While converted Indians might of course be sworn, it is, I believe, matter of conjecture how far, if at all, unconverted Indians were formerly admitted to the oath in Massachusetts. They were either "worshippers of false gods" or atheists. The latter could not testify here until 1859. The former, after the case of Omichund v. Barker, in 1744-45, might have testified under the forms recognized in their religion, when they had any; and it may be that a search in our Judicial Records under the Province will reveal instances of that practice. I know of no clear case.5

8 A like case, in 1682, is found in Plym. Col. Rec. vi. 98, the case of an Indian indicted for rape on a white girl. The names of the twelve jurymen are given; "unto which English jury four Indian men present were added, viz;" etc. In Chief Justice Lynde's Diary, under date of June 14th, 1732, he speaks of holding court at Nantucket with a "grand jury of eighteen, a 3d Indians." Bills of indictment against several Indians were under investigation. Again, on July 13, 1737, it appears that the grand jury of twelve, mostly Quakers, above mentioned (p. 4, n. 5), had also four Indians added to their number, and they found billa vera against an Indian woman charged with murder for concealing the death of a bastard child.

4 1 Atk. 21; s. c. 2 Eq. Cas. Ab. 397; Willes, 538.

5 The opportunity for such a search will soon exist when the thorough and admirably devised work of collecting, arranging, and indexing our early judicial records, now going forward under the direction of John Noble, Esq., Clerk of the Supreme Judicial Court for the County of Suffolk, shall have been completed. To his courtesy I am indebted for a number of the references here used. I must not omit to mention that courts were established among the Indians, in some cases, at their request, and Indians were appointed to try small causes among their people. Mass. Records, ii. 188 (1647). Chief Justice Lynde in his Diary (p. 28) speaks of visiting an Indian magistrate at Nantucket, in 1732, - Corduda, "a good and strict old man." It is not necessarily to be concluded that any oath was administered to the unconverted. But I observe

In Omichund v. Barker, it was declared to be the common law of England that heathens (in that case, native Hindoos) might testify when sworn according to the forms and ceremonies required by their own religion; on the principle that no more was essential for an oath, than that witnesses should "believe in a God, and that he will punish them if they swear falsely." The doctrine was there laid down that it was not necessary to believe in a future existence, but only in a God who will punish in the present state; that greater credit might be given to a witness who believed in divine punishments hereafter; 2 and that "such infidels, if any such there be, who either do not believe in a God,3 or, if they do, do not think that he will either reward or punish them in this world or in the next, cannot be witnesses in any case nor under any circumstances." This case, therefore, disposed of all difficulties, growing out of the form of the oath, or the ceremonies accompanying it, in the case of all sorts of persons whose religious belief made them amenable to any kind of an oath.

It is to be remembered, of course, that before the case of Omichund v. Barker, and even long before it, the practice of the courts may have conformed to the doctrine there laid down. That case itself only confirmed the action of Lord Hardwicke in ordering the taking of a deposition in 1739. And another instance of the same sort in the Privy Council is reported by Sir John Strange, as of Dec. 9, 1738.4 "On a complaint of Jacob Fachina against General Sabine as Governor of Gibraltar, Alderman Ben Monso, a Moor, was produced as a witness and sworn upon the Koran. I made no objection to it." 5

6

After the Revolution, a statute was passed that "In the administration of oaths in this Commonwealth, the ceremony of lifting up

that where Indians were a part of coroners' juries, upon the death of an Indian, the verdict in some cases expressly says that it is under oath, and no qualification is made as to the Indians. Such a case occurred at Barnstable in 1720, and at Yarmouth about the same time. It may be conjectured that, as time went on, Indians would generally be admitted to the oath when they did not object, on a presumption of their being converted, or, at any rate, of their recognizing its obligation.

1 Per Willes, C. J., Willes Rep. at p. 549.

2 And so Hunscom v. Hunscom, 15 Mass. 184 (1818). Compare the note to that case, as to the English law.

So Thurston v. Whitney, 2 Cush. 104.

4 2 Strange, 1104.

5 Compare a case of swearing a Jew on the Old Testament, in 1667-8, Robely v. Langston, 2 Keble, 314.

6 Stat. 1797, c. 35, s. 10.