Page:Harvard Law Review Volume 9.djvu/33

A CHAPTER OF LEGAL HISTORY. ' 5 c. 127 (February, 181 1), 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 princi- ple was applied till later. Probably there were few cases of trouble. One such occurred as late as 1815,^ when Judge Story committed for contempt a witness, not a Quaker, who refused from conscien- tious 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.^ 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 Baal 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. Com- fort, 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 Eng- lishmen, 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 admin- istered 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. ^ '* 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 Powaiver shall pay five pounds, the procurer five pounds, and every other counte- nancing 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 IL, 163. A similar pro- vision is found in the Plymouth Col. Laws, 298, " Laws of 167 1."