6 HARVARD LAW REVIEW. 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^ we find that It is ordered that the accusation, information, or testimony of any Indian or other probable circum- stance, 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.^ While, as in Allen's case, it might be com- bined 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, i Met. 108, no (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,^ 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, 256; Plym. Col. Laws, 152 ; 4 Mass. Rec, Part II., 297 ; Whitmore's edition of Mass. Laws of 1660 and Supplements, Part IL, 236; i Prov. Laws, 151.
- 5 Harvard Law Review, 57-63.
^ Plym. Col. Records, xi. 236 ; Plym. Col. Laws, 171.
