Page:Harvard Law Review Volume 9.djvu/35

7 A CHAPTER OF LEGAL HISTORY. 7 by her of an Indian, the jury's verdict ran thus: " If Indian testi- mony 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.^ 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." 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. I, 171 7, 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.^ " 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."^ 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 maybe 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, i Ann, c. 9 ; 2 Hale, PI. Cr. 283. 8 8 How. St. Tr. 626.