8 HARVARD LAW REVIEW. 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.^ 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,^ 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.^ While converted Indians might of course be sworn, it is, I be- lieve, 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 Omi- chund V. Barker,* in 1744-45, might have testified under the forms recognized in their religion, when they had any; and it maybe that a search in our Judicial Records under the Province will reveal instances of that practice. I know of no clear case.^ 1 5 Harvard Law Review, 302. 2 5 Plym. Col. Rec. 1 68. 8 A like case, in 1682, is found in Plym. Col. Rec. vi. 98, the case of an Indian in- dicted 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.
- T Atk. 21 ; s. C. 2 Eq. Cas. Ab. 397 ; Willes, 538.
^ The opportunity for such a search will soon exist when the thorough and admira- bly 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 magis- trate at Nantucket, in 1732, — Corduda, "a good and strict old man." It is not neces- sarily to be concluded that any oath was administered to the unconverted. But I observe
