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The Massachusetts Body of Liberties


1641

Old South Leaflets
(Boston: Directors of the Old South Work), 7: 261-267



Editor's Notes: History of the Manuscript and Background to the Creation of The
Body of Liberties

THE LIBERTIES OF THE MASSACHUSETS COLLONIE IN NEW ENGLAND, 1641.

The free fruition of such liberties Immunities and priveledges as
humanitie, Civilitie, and Christianitie call for as due to every man in his
place and proportion without impeachment and Infringement hath ever bene and
ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And
the deniall or deprivall thereof, the disturbance if not the ruine of both.
We hould it therefore our dutie and safetie whilst we are about the further
establishing of this Government to collect and expresse all such freedomes as
for present we foresee may concerne us, and our posteritie after us, And to
ratify them with our sollemne consent.

Wee doe therefore this day religiously and unanimously decree and confirme these
following Rites, liberties and priveledges concerneing our Churches, and Civill
State to be respectively impartiallie and inviolably enjoyed and observed
throughout our Jurisdiction for ever.

1. No mans life shall be taken away, no mans honour or good name shall be
stayned, no mans person shall be arested, restrayned, banished, dismembred, nor
any wayes punished, no man shall be deprived of his wife or children, no mans
goods or estaite shall be taken away from him, nor any way indammaged under
colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie
of some expresse law of the Country waranting the same, established by a
generall Court and sufficiently published, or in case of the defect of a law in
any parteculer case by the word of God. And in Capitall cases, or in cases
concerning [Page 262] dismembring or banishment according to that word to be
judged by the Generall Court.

2. Every person within this Jurisdiction, whether Inhabitant or forreiner shall
enjoy the same justice and law, that is generall for the plantation, which we
constitute and execute one towards another without partialitie or delay.
3. No man shall be urged to take any oath or subscribe any articles, covenants
or remonstrance, of a publique and Civill nature, but such as the Generall Court
hath considered, allowed and required.

4. No man shall be punished for not appearing at or before any Civill Assembly,
Court, Councell, Magistrate, or Officer, nor for the omission of any office or
service, if he shall be necessarily hindred by any apparent Act or providence of
God, which he could neither foresee nor avoid. Provided that this law shall not
prejudice any person of his just cost or damage, in any civill action.

5. No man shall be compelled to any publique worke or service unlesse the presse
be grounded upon some act of the generall Court, and have reasonable allowance
therefore.

6. No man shall be pressed in person to any office, worke, warres or other
publique service, that is necessarily and suffitiently exempted by any naturall
or personall impediment, as by want of yeares, greatnes of age, defect of minde,
fayling of sences, or impotencie of Lymbes.

7. No man shall be compelled to goe out of the limits of this plantation upon
any offensive warres which this Comonwealth or any of our freinds or confederats
shall volentarily undertake. But onely upon such vindictive and defensive warres
in our owne behalfe or the behalfe of our freinds and confederats as shall be
enterprized by the Counsell and consent of a Court generall, or by authority
derived from the same.

8. No mans Cattel or goods of what kinde soever shall be pressed or taken for
any publique use or service, unlesse it be by warrant grounded upon some act of
the generall Court, nor without such reasonable prices and hire as the ordinarie
rates of the Countrie do afford. And if his Cattle or goods shall perish or
suffer damage in such service, the owner shall be suffitiently recompenced.
9. No monopolies shall be granted or allowed amongst us, but of such new
Inventions that are profitable to the Countrie, and that for a short time.

10. All our lands and heritages shall be free from all fines and licenses upon
Alienations, and from all hariotts, wardships, Liveries, Primer-seisins, yeare
day and wast, Escheates, and forfeitures, upon the deaths of parents or
Ancestors, be they naturall, casuall or Juditiall.

11. All persons which are of the age of 21 yeares, and of right understanding
and meamories, whether excommunicate or condemned shall have full power and
libertie to make there wills and testaments, and other lawfull alienations of
theire lands and estates.

12. Every man whether Inhabitant or fforreiner, free or not free shall have
libertie to come to any publique Court, Councel, or Towne meeting, and either by
speech or writeing to move any lawfull, seasonable, and materiall question, or
to present any necessary motion, complaint, petition, Bill or information,
whereof that meeting hath proper cognizance, so it be done in convenient time,
due order, and respective manner.

13. No man shall be rated here for any estaite or revenue he hath in England, or
in any forreine partes till it be transported hither.

14. Any Conveyance or Alienation of land or other estaite what so ever, made by
any woman that is married, any childe under age, Ideott or distracted person,
shall be good if it be passed and ratified by the consent of a generall Court.
15. All Covenous or fraudulent Alienations or Conveyances of lands, tenements,
or any heriditaments, shall be of no validitie to defeate any man from due debts
or legacies, or from any just title, clame or possession, of that which is so
fraudulently conveyed.

16. Every Inhabitant that is an howse holder shall have free fishing and fowling
in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and
flowes within the presincts of the towne where they dwell, unlesse the free men
of the same Towne or the Generall Court have otherwise appropriated them,
provided that this shall not be extended to give leave to any man to come upon
others proprietie without there leave.

17. Every man of or within this Jurisdiction shall have free libertie,
notwithstanding any Civill power to remove both himselfe, and his familie at
their pleasure out of the same, provided there be no legall impediment to the
contrarie.

Rites Rules and Liberties concerning Juditiall proceedings.

18. No mans person shall be restrained or imprisoned by any authority
whatsoever, before the law hath sentenced him thereto, if he can put in
sufficient securitie, bayle or mainprise, for his appearance, and good behaviour
in the meane time, unlesse it be in Crimes Capitall, and Contempts in open
Court, and in such cases where some expresse act of Court doth allow it.

19. If in a general Court any miscariage shall be amongst the Assistants when
they are by themselves that may deserve an Admonition or fine under 20 sh. it
shall be examined and sentenced amongst themselves, If amongst the Deputies when
they are by themselves, it shall be examined and sentenced amongst themselves,
If it be when the whole Court is togeather, it shall be judged by the whole
Court, and not severallie as before.

20. If any which are to sit as Judges in any other Court shall demeane
themselves offensively in the Court, The rest of the Judges present shall have
power to censure him for it, if the cause be of a high nature it shall be
presented to and censured at the next superior Court.

21. In all cases where the first summons are not served six dayes before the
Court, and the cause breifly specified in the warrant, where appearance is to be
made by the partie summoned, it shall be at his libertie whether he will appeare
or no, except all cases that are to be handled in Courts suddainly called, upon
extraordinary occasions, In all cases where there appeares present and urgent
cause any assistant or officer apointed shal have power to make out attaichments
for the first summons.

22. No man in any suit or action against an other shall falsely pretend great
debts or damages to vex his adversary, if it shall appeare any doth so, The
Court shall have power to set a reasonable fine on his head.

23. No man shall be adjudged to pay for detaining any debt from any Creditor
above eight pounds in the hundred for one yeare, And not above that rate
proportionable for all somes what so ever, neither shall this be a coulour or
countenance to allow any usurie amongst us contrarie to the law of god.

24. In all Trespasses or damages done to any man or men, If it can be proved to
be done by the meere default of him or them to whome the trespasse is done, It
shall be judged no trespasse, nor any damage given for it.

25. No Summons pleading Judgement, or any kinde of proceeding in
Court or course of Justice shall be abated, arested or reversed upon any kinde
of cercumstantiall errors or mistakes, If the person and cause be rightly
understood and intended by the Court.

26. Every man that findeth himselfe unfit to plead his owne cause in any Court
shall have Libertie to imploy any man against whom the Court doth not except, to
helpe him, Provided he give him noe fee or reward for his paines. This shall not
exempt the partie him selfe from Answering such Questions in person as the Court
shall thinke meete to demand of him.

27. If any plantife shall give into any Court a declaration of his cause in
writeing, The defendant shall also have libertie and time to give in his answer
in writeing, And so in all further proceedings betwene partie and partie, So it
doth not further hinder the dispach of Justice then the Court shall be willing
unto.

28. The plantife in all Actions brought in any Court shall have libertie to
withdraw his Action, or to be nonsuited before the Jurie hath given in their
verdict, in which case he shall alwaies pay full cost and chardges to the
defendant, and may afterwards renew his suite at an other Court if he please.
29. In all actions at law it shall be the libertie of the plantife and defendant
by mutual consent to choose whether they will be tryed by the Bensh or by a
Jurie, unlesse it be where the law upon just reason hath otherwise determined.
The like libertie shall be granted to all persons in Criminall cases.

30. It shall be in the libertie both of plantife and defendant, and likewise
every delinquent (to be judged by a Jurie) to challenge any of the Jurors. And
if his challenge be found just and reasonable by the Bench, or the rest of the
Jurie, as the challenger shall choose it shall be allowed him, and tales de
cercumstantibus impaneled in their room.

31. In all cases where evidences is so obscure or defective that the Jurie
cannot clearely and safely give a positive verdict, whether it be a grand or
petit Jurie, It shall have libertie to give a non Liquit, or a spetiall verdict,
in which last, that is in a spetiall verdict, the Judgement of the cause shall
be left to the Court, And all Jurors shall have libertie in matters of fact if
they cannot finde the maine issue, yet to finde and present in their verdict so
much as they can, If the Bench and Jurors shall so suffer at any time about
their verdict that either of them cannot proceede with peace of conscience the
case shall be referred to the Generall Court, who shall take the question from
both and determine it.

32. Every man shall have libertie to replevy his Cattell or goods impounded,
distreined, seised, or extended, unlesse it be upon execution after Judgement,
and in paiment of fines. Provided he puts in good securitie to prosecute his
replevin, And to satisfie such demands as his Adversary shall recover against
him in Law.

33. No mans person shall be arrested, or imprisoned upon execution or judgment
for any debt or fine, If the law can finde competent meanes of satisfaction
otherwise from his estaite, and if not his person may be arrested and imprisoned
where he shall be kept at his owne charge, not the plantife's till satisfaction
be made, unlesse the Court that had cognizance of the cause or some superior
Court shall otherwise provide.

34. If any man shall be proved and Judged a commen Barrator vexing others with
unjust frequent and endlesse suites, It shall be in the power of Courts both to
denie him the benefit of the law, and to punish him for his Barratry.
35. No mans corne nor hay that is in the feild or upon the Cart, nor his garden
stuffe, nor any thing subject to present decay, shall be taken in any distresse,
unles he that takes it doth presently bestow it where it may not be imbesled nor
suffer spoile or decay, or give securitie to satisfie the worth thereof if it
comes to any harme.

36. It shall be in the libertie of every man cast condemned or sentenced in any
cause in any Inferior Court, to make their appeale to the Court of Assistants,
provided they tender their appeale and put in securitie to prosecute it, before
the Court be ended wherein they were condemned, And within six dayes next
ensuing put in good securitie before some Assistant to satisfie what his
Adversarie shall recover against him; And if the cause be of a Criminall nature
for his good behaviour, and appearance, And everie man shall have libertie to
complaine to the Generall Court of any Injustice done him in any Court of
Assistants or other.

37. In all cases where it appeares to the Court that the plantife hath wilingly
and witingly done wronge to the defendant in commenceing and prosecuting an
action or complaint against him, They shall have power to impose upon him a
proportionable fine to the use of the defendant or accused person, for his false
complaint or clamor.

38. Everie man shall have libertie to Record in the publique Rolles of any Court
any Testimony given upon oath in the same Court, or before two Assistants, or
any deede or evidence legally confirmed there to remaine in perpetuam
rei memoriam, that is for perpetuall memoriall or evidence upon occasion.

39. In all actions both reall and personall betweene partie and partie, the
Court shall have power to respite execution for a convenient time, when in their
prudence they see just cause so to doe.

40. No Conveyance, Deede, or promise whatsoever shall be of validitie, If it be
gotten by Illegal violence, imprisonment, threatening, or any kinde of forcible
compulsion called Dures.

41. Everie man that is to Answere for any criminall cause, whether he be in
prison or under bayle, his cause shall be heard and determined at the next Court
that hath proper Cognizance thereof, And may be done without prejudice of
Justice.

42. No man shall be twise sentenced by Civill Justice for one and the same
Crime, offence, or Trespasse.

43. No man shall be beaten with above 40 stripes, nor shall any true gentleman,
nor any man equall to a gentleman be punished with whipping, unles his crime be
very shamefull, and his course of life vitious and profligate.

44. No man condemned to dye shall be put to death within fower dayes next after
his condemnation, unles the Court see spetiall cause to the contrary, or in case
of martiall law, nor shall the body of any man so put to death be unburied 12
howers unlesse it be in case of Anatomie.

45. No man shall be forced by Torture to confesse any Crime against himselfe nor
any other unlesse it be in some Capitall case, where he is first fullie
convicted by cleare and suffitient evidence to be guilty, After which if the
cause be of that nature, That it is very apparent there be other conspiratours,
or confederates with him, Then he may be tortured, yet not with such Tortures as
be Barbarous and inhumane.

46. For bodilie punishments we allow amongst us none that are inhumane Barbarous
or cruel.

47. No man shall be put to death without the testimony of two or three witnesses
or that which is equivalent thereunto.

48. Every Inhabitant of the Countrie shall have free libertie to search and
veewe any Rooles, Records, or Regesters of any Court or office except the
Councell, And to have a transcript or exemplification thereof written examined,
and signed by the hand of the officer of the office paying the appointed fees
therefore.

49. No free man shall be compelled to serve upon Juries above two Courts in a
yeare, except grand Jurie men, who shall hould two Courts together at the least.
[Page 268] 50. All Jurors shall be chosen continuallie by the freemen of the
Towne where they dwell.

51. All Associates selected at any time to Assist the Assistants in Inferior
Courts, shall be nominated by the Townes belonging to that Court, by orderly
agreement amonge themselves.

52. Children, Idiots, Distracted persons, and all that are strangers, or new
comers to our plantation, shall have such allowances and dispensations in any
cause whether Criminal or other as religion and reason require.
53. The age of discretion for passing away of lands or such kinde of
herediments, or for giveing, of votes, verdicts or Sentence in any Civill Courts
or causes, shall be one and twentie yeares.

54. Whensoever any thing is to be put to vote, any sentence to be pronounced, or
any other matter to be proposed, or read in any Court or Assembly, If the
president or moderator thereof shall refuse to performe it, the Major parte of
the members of that Court or Assembly shall have power to appoint any other
meete man of them to do it, And if there be just cause to punish him that should
and would not.

55. In all suites or Actions in any Court, the plaintife shall have libertie to
make all the titles and claims to that he sues for he can. And the Defendant
shall have libertie to plead all the pleas he can in answere to them, and the
Court shall judge according to the intire evidence of all.

56. If any man shall behave himselfe offensively at any Towne meeting, the rest
of the freemen then present, shall have power to sentence him for his offence.
So be it the mulct or penaltie exceede not twentie shilings.

57. Whensoever any person shall come to any very suddaine untimely and
unnaturall death, Some assistant, or the Constables of that Towne shall
forthwith sumon a Jury of twelve free men to inquire of the cause and manner of
their death, and shall present a true verdict thereof to some neere Assistant,
or the next Court to be helde for that Towne upon their oath.

Liberties more peculiarlie concerning the free men.

58. Civill Authoritie hath power and libertie to see the peace, ordinances and
Rules of Christ observed in every church according to his word. so it be done in
a Civill and not in an Ecclesiastical way.

59. Civill Authoritie hath power and libertie to deale with any
Church member in a way of Civill Justice, notwithstanding any Church relation,
office or interest.

60. No church censure shall degrade or depose any man from any Civill dignitie,
office, or Authoritie he shall have in the Commonwealth.

61. No Magestrate, Juror, Officer, or other man shall be bound to informe
present or reveale any private crim or offence, wherein there is no perill or
danger to this plantation or any member thereof, when any necessarie tye of
conscience binds him to secresie grounded upon the word of god, unlesse it be in
case of testimony lawfully required.

62. Any Shire or Towne shall have libertie to choose their Deputies whom and
where they please for the Generall Court. So be it they be free men, and have
taken there oath of fealtie, and Inhabiting in this Jurisdiction.

63. No Governor, Deputy Governor, Assistant, Associate, or grand Jury man at any
Court, nor any Deputie for the Generall Court, shall at any time beare his owne
chardges at any Court, but their necessary expences shall be defrayed either by
the Towne or Shire on whose service they are, or by the Country in generall.
64. Everie Action betweene partie and partie, and proceedings against
delinquents in Criminall causes shall be briefly and destinctly entered on the
Rolles of every Court by the Recorder thereof. That such actions be not
afterwards brought againe to the vexation of any man.

65. No custome or prescription shall ever prevaile amongst us in any morall
cause, our meaneing is maintaine anythinge that can be proved to be morrallie
sinfull by the word of god.

66. The Freemen of every Towneship shall have power to make such by laws and
constitutions as may concerne the wellfare of their Towne, provided they be not
of a Criminall, but onely of a prudential nature, And that their penalties
exceede not 20 sh. for one offence. And that they be not repugnant to the
publique laws and orders of the Countrie. And if any Inhabitant shall neglect or
refuse to observe them, they shall have power to levy the appointed penalties by
distresse.

67. It is the constant libertie of the free men of this plantation to choose
yearly at the Court of Election out of the freemen all the General officers of
this Jurisdiction. If they please to dischardge them at the day of Election by
way of vote. They may do it without shewing cause. But if at any other generall
Court, we hould it due justice, that the reasons thereof be alleadged and [Page
270] proved. By Generall officers we meane, our Governor, Deputy Governor,
Assistants, Treasurer, Generall of our warres. And our Admirall at Sea, and such
as are or hereafter may be of the like generall nature.

68. It is the libertie of the freemen to choose such deputies for the Generall
Court out of themselves, either in their owne Townes or elsewhere as they judge
fitest. And because we cannot foresee what varietie and weight of occasions may
fall into future consideration, And what counsells we may stand in neede of, we
decree. That the Deputies (to attend the Generall Court in the behalfe of the
Countrie) shall not any time be stated or inacted, but from Court to Court, or
at the most but for one yeare, that the Countrie may have an Annuall libertie to
do in that case what is most behoofefull for the best welfaire thereof.

69. No Generall Court shall be desolved or adjourned without the consent of the
Major parte thereof.

70. All Freemen called to give any advise, vote, verdict, or sentence in any
Court, Counsell, or Civill Assembly, shall have full freedome to doe it
according to their true Judgements and Consciences, So it be done orderly and
inofensively for the manner.

71. The Governor shall have a casting voice whensoever an Equi vote shall fall
out in the Court of Assistants, or generall assembly, So shall the presedent or
moderator have in all Civill Courts or Assemblies.

72. The Governor and Deputy Governor Joyntly consenting or any three Assistants
concurring in consent shall have power out of Court to reprive a condemned
malefactour, till the next quarter or generall Court. The generall Court onely
shall have power to pardon a condemned malefactor.

73. The Generall Court hath libertie and Authoritie to send out any member of
this Comanwealth of what qualitie, condition or office whatsoever into forreine
parts about any publique message or Negotiation. Provided the partie sent be
acquainted with the affaire he goeth about, and be willing to undertake the
service.

74. The freemen of every Towne or Towneship, shall have full power to choose
yearly or for lesse time out of themselves a convenient number of fitt men to
order the planting or prudentiall occasions of that Towne, according to
Instructions given them in writeing, Provided nothing be done by them contrary
to the publique laws and orders of the Countrie, provided also the number of
such select persons be not above nine.

75. It is and shall be the libertie of any member or members of [Page 271] any
Court Councell or Civill Assembly in cases of makeing or executing any order or
law, that properlie concerne religion, or any cause capitall, or warres, or
Subscription to any publique Articles or Remonstrance, in case they cannot in
Judgement and conscience consent to that way the Major vote or suffrage goes, to
make their contra Remonstrance or protestation in speech or writeing, and upon
request to have their dissent recorded in the Rolles of that Court. So it be
done Christianlie and respectively for the manner. And their dissent onely be
entered without the reasons thereof, for the avoiding of tediousnes.

76. Whensoever any Jurie of trialls or Jurours are not cleare in their Judgments
or consciences conserneing any cause wherein they are to give their verdict,
They shall have libertie in open Court to advise with any man they thinke fitt
to resolve or direct them, before they give in their verdict.

77. In all cases wherein any freeman is to give his vote, be it in point of
Election, makeing constitutions and orders or passing sentence in any case of
Judicature or the like, if he cannot see reason to give it positively one way or
an other, he shall have libertie to be silent, and not pressed to a determined
vote.

78. The Generall or publique Treasure or any parte thereof shall never be
exspended but by the appointment of a Generall Court, nor any Shire Treasure,
but by the appointment of the freemen thereof, nor any Towne Treasurie but by
the freemen of that Township.

Liberties of Women.

79. If any man at his death shall not leave his wife a competent portion of his
estaite, upon just complaint made to the Generall Court she shall be relieved.
80. Everie marryed woeman shall be free from bodilie correction or stripes by
her husband, unlesse it be in his owne defence upon her assalt. If there be any
just cause of correction complaint shall be made to Authoritie assembled in some
Court, from which onely she shall receive it.

Liberties of Children.

81. When parents dye intestate, the Elder sonne shall have a doble portion of
his whole estate reall and personall, unlesse the Generall Court upon just cause
alleadged shall judge otherwise.

82. When parents dye intestate haveing noe heires males of their bodies their
Daughters shall inherit as Copartners, unles the Generall Court upon just reason
shall judge otherwise.

83. If any parents shall wilfullie and unreasonably deny any childe timely or
convenient mariage, or shall exercise any unnaturall severitie towards them,
such childeren shall have free libertie to complaine to Authoritie for redresse.

84. No Orphan dureing their minoritie which was not committed to tuition or
service by the parents in their life time, shall afterwards be absolutely
disposed of by any kindred, freind, Executor, Towneship, or Church, nor by
themselves without the consent of some Court, wherein two Assistants at least
shall be present.

Liberties of Servants.

85. If any servants shall flee from the Tiranny and crueltie of their masters to
the howse of any freeman of the same Towne, they shall be there protected and
susteyned till due order be taken for their relife. Provided due notice thereof
be speedily given to their maisters from whom they fled. And the next Assistant
or Constable where the partie flying is harboured.

86. No servant shall be put of for above a yeare to any other neither in the
life time of their maister nor after their death by their Executors or
Administrators unlesse it be by consent of Authoritie assembled in some Court or
two Assistants.

87. If any man smite out the eye or tooth of his man-servant, or maid servant,
or otherwise mayme or much disfigure him, unlesse it be by meere casualtie, he
shall let them goe free from his service. And shall have such further recompense
as the Court shall allow him.

88. Servants that have served deligentlie and faithfully to the benefitt of
their maisters seaven yeares, shall not be sent away emptie. And if any have
bene unfaithfull, negligent or unprofitable in their service, notwithstanding
the good usage of their maisters, they shall not be dismissed till they have
made satisfaction according to the Judgement of Authoritie.

Liberties of Forreiners and Strangers.

89. If any people of other Nations professing the true Christian Religion shall
flee to us from the Tiranny or oppression of their persecutors, or from famyne,
warres, or the like necessary and compulsarie cause, They shall be
entertayned and succoured amongst us, according to that power and prudence, god
shall give us.

90. If any ships or other vessels, be it freind or enemy, shall suffer shipwrack
upon our Coast, there shall be no violence or wrong offerred to their persons or
goods. But their persons shall be harboured, and relieved, and their goods
preserved in safety till Authoritie may be certified thereof, and shall take
further order therein.

91. There shall never be any bond slaverie, villinage or Captivitie amongst us
unles it be lawfull Captives taken in just warres, and such strangers as
willingly selle themselves or are sold to us. And these shall have all the
liberties and Christian usages which the law of god established in Israell
concerning such persons doeth morally require. This exempts none from servitude
who shall be Judged thereto by Authoritie.

Off the Bruite Creature.

92. No man shall exercise any Tirranny or Crueltie towards any bruite Creature
which are usuallie kept for man's use.

93. If any man shall have occasion to leade or drive Cattel from place to place
that is far of, so that they be weary, or hungry, or fall sick, or lambe, It
shall be lawful to rest or refresh them, for competant time, in any open place
that is not Corne, meadow, or inclosed for some peculiar use.

94. Capitall Laws.

1.

(Deut. 13. 6, 10. Deut. 17. 2, 6. Ex. 22.20)
If any man after legall conviction shall have or worship any other god, but the
lord god, he shall be put to death.

2.

(Ex. 22. 18. Lev. 20. 27. Dut. 18. 10.)
If any man or woeman be a witch, (that is hath or consulteth with a familiar
spirit,) They shall be put to death.

3.

(Lev. 24. 15,16.)
If any person shall Blaspheme the name of god, the father, Sonne or Holie Ghost,
with direct, expresse, presumptuous or high handed blasphemie, or shall curse
god in the like manner, he shall be put to death.

4.

(Ex. 21. 12. Numb. 35. 13, 14, 30, 31.)
If any person committ any wilfull murther, which is manslaughter, committed upon
premeditated malice, hatred, or Crueltie, not in a mans necessarie and just
defence, nor by meere casualtie against his will, he shall be put to death.

5.

(Numb. 25, 20, 21. Lev. 24. 17)
If any person slayeth an other suddaienly in his anger or Crueltie of passion,
he shall be put to death.

6.

(Ex. 21. 14.)
If any person shall slay an other through guile, either by poysoning or other
such divelish practice, he shall be put to death.

7.

(Lev. 20. 15,16.)

If any man or woeman shall lye with any beaste or bruite creature by Carnall
Copulation, They shall surely be put to death. And the beast shall be slaine,
and buried and not eaten.

8.

(Lev. 20. 13.)
If any man lyeth with mankinde as he lyeth with a woeman, both of them have
committed abhomination, they both shall surely be put to death.

9.

Lev. 20. 19. and 18, 20. Dut. 22. 23, 24.)
If any person committeth Adultery with a maried or espoused wife, the Adulterer
and Adulteresse shall surely be put to death.

10.

(Ex. 21. 16.)
If any man stealeth a man or mankinde, he shall surely be put to death.

11.

(Deut. 19. 16, 18, 19.)
If any man rise up by false witnes, wittingly and of purpose to take away any
mans life, he shall be put to death.

12.

If any man shall conspire and attempt any invasion, insurrection, or publique
rebellion against our commonwealth, or shall [Page 275] indeavour to surprize
any Towne or Townes, fort or forts therein, or shall treacherously and
perfediouslie attempt the alteration and subversion of our frame of politie or
Government fundamentallie, he shall be put to death.

95. A Declaration of the Liberties the Lord Jesus hath given to the
Churches.

1.

All the people of god within this Jurisdiction who are not in a church way, and
be orthodox in Judgement, and not scandalous in life, shall have full libertie
to gather themselves into a Church Estaite. Provided they doe it in a Christian
way, with due observation of the rules of Christ revealed in his word.

2.

Every Church hath full libertie to exercise all the ordinances of god, according
to the rules of scripture.

3.

Every Church hath free libertie of Election and ordination of all their officers
from time to time, provided they be able, pious and orthodox.

4.

Every Church hath free libertie of Admission, Recommendation, Dismission, and
Expulsion, or deposall of their officers, and members, upon due cause, with free
exercise of the Discipline and Censures of Christ according to the rules of his
word.

5.

No Injunctions are to be put upon any Church, Church officers or member in point
of Doctrine, worship or Discipline, whether for substance or cercumstance
besides the Institutions of the lord.

6.

Every Church of Christ hath freedome to celebrate dayes of fasting and prayer,
and of thanksgiveing according to the word of god.

7.

The Elders of Churches have free libertie to meete monthly, Quarterly, or
otherwise, in convenient numbers and places, for conferences, and consultations
about Christian and Church questions and occasions.

8.

All Churches have libertie to deale with any of their members in a church way
that are in the hand of Justice. So it be not to retard or hinder the course
thereof.

9.

Every Church hath libertie to deale with any magestrate, Deputie of Court or
other officer what soe ever that is a member in a church way in case of apparent
and just offence given in their places, so it be done with due observance and
respect.

10.

Wee allowe private meetings for edification in religion amongst Christians of
all sortes of people. So it be without just offence for number, time, place, and
other cercumstances.

11.

For the preventing and removeing of errour and offence that may grow and spread
in any of the Churches in this Jurisdiction, And for the preserveing of trueith
and peace in the severall churches within themselves, and for the maintenance
and exercise of brotherly communion, amongst all the churches in the Countrie,
It is allowed and ratified, by the Authoritie of this Generall Court as a
lawfull libertie of the Churches of Christ. That once in every month of the
yeare (when the season will beare it) It shall be lawfull for the minesters and
Elders, of the Churches neere adjoyneing together, with any other of the
breetheren with the consent of the churches to assemble by course in each
severall Church one after an other. To the intent after the preaching of the
word by such a minister as shall be requested thereto by the Elders of the
church where the Assembly is held, The rest of the day may be spent in publique
Christian Conference about the discussing and resolveing of any such doubts and
cases of conscience concerning matter of doctrine or worship or government of
the church as shall be propounded by any of the Breetheren [Page 277] of that
church, will leave also to any other Brother to propound his objections or
answeres for further satisfaction according to the word of god. Provided that
the whole action be guided and moderated by the Elders of the Church where the
Assemblie is helde, or by such others as they shall appoint. And that no thing
be concluded and imposed by way of Authoritie from one or more churches upon an
other, but onely by way of Brotherly conference and consultations. That the
trueth may be searched out to the satisfying of every mans conscience in the
sight of god according his worde. And because such an Assembly and the worke
thereof can not be duely attended to if other lectures be held in the same
weeke. It is therefore agreed with the consent of the Churches. That in that
weeke when such an Assembly is held, All the lectures in all the neighbouring
Churches for that weeke shall be forborne. That so the publique service of
Christ in this more solemne Assembly may be transacted with greater deligence
and attention.

96. Howsoever these above specified rites, freedomes Immunities, Authorites and
priveledges, both Civill and Ecclesiastical are expressed onely under the name
and title of Liberties, and not in the exact forme of Laws or Statutes, yet we
do with one consent fullie Authorise, and earnestly intreate all that are and
shall be in Authoritie to consider them as laws, and not to faile to inflict
condigne and proportionable punishments upon every man impartiallie, that shall
infringe or violate any of them.

97. Wee likewise give full power and libertie to any person that shall at any
time be denyed or deprived of any of them, to commence and prosecute their
suite, Complaint or action against any man that shall so doe in any Court that
hath proper Cognizance or judicature thereof.

98. Lastly because our dutie and desire is to do nothing suddainlie which
fundamentally concerne us, we decree that these rites and liberties, shall be
Audably read and deliberately weighed at every Generall Court that shall be
held, within three yeares next insueing, And such of them as shall not be
altered or repealed they shall stand so ratified, That no man shall infringe
them without due punishment.

And if any Generall Court within these next thre yeares shall faile or forget to
reade and consider them as abovesaid. The Governor and Deputy Governor for the
time being, and every Assistant present at such Courts, shall forfeite 20sh. a
man, and everie Deputie 10sh. a man for each neglect, which shall be paid [Page
278] out of their proper estate, and not by the Country or the Townes which
choose them, and whensoever there shall arise any question in any Court amonge
the Assistants and Associates thereof about the explanation of these Rites and
liberties, The Generall Court onely shall have power to interprett them.

History of the Manuscript

A MS. copy of "The Body of Liberties" of the Massachusetts Colony, the first
code of laws established in New England, and therefore in a very real sense our
"Magna Charta," was discovered in the Boston Athenaeum by Francis C. Gray, and
published in the Collections of the Massachusetts Historical Society, Third
Series, vol. viii., in 1843; and the student should read Gray's valuable essay
on the Early Laws of Massachusetts accompanying it. He shows the absurdity of
prevalent notions that the first Massachusetts code was deduced almost literally
from the Books of Moses. On the contrary, the code evinces not only the fathers'
"acknowledged love of liberty," but a noteworthy degree of "practical good sense
in legislation and liberality of sentiment." The code was far in advance of the
time.

In 1889 William H. Whitmore printed the MS. discovered by Mr. Gray in facsimlie
in the introduction to his reprint of the "Colonial Laws of the Massachusetts
Colony," and again with his "Bibliographical Sketch" of those laws, which is
worthy of careful study.

A significant defence of the early Massachusetts laws, prepared by a committee
including Winthrop, Dudley, and Bellingham, was embodied in a declaration of the
General Court in 1646 concerning a remonstrance of Robert Child, Thomas Fowle,
Samuel Maverick, and others against certain features of this legislation. This
Declaration, which includes parallels between "The Body of Liberties" and Magna
Charta and the Common Law of England, is printed in Hutchinson's "Original
Papers relative to Massachusetts," 1760, pp. 196-218, following the
remonstrance. There is much concerning this in Winthrop's History (vol. ii.),
the section covering 1646. See Barry's History of Mass., i. 275, Palfrey, etc.
Nathaniel Ward, the compiler of "The Body of Liberties," was born about 1578 at
Haverhill in England, and was the son of Rev. John Ward, an eminent Puritan
minister. He was graduated at Emmanuel College, Cambridge, in 1603, studied law,
and became a barrister. Travelling extensively on the Continent, he met at
Heidelberg the celebrated writer, David Pareus, who induced him to enter the
ministry. He served as a clergyman for a time at Elbing in Prussia, then
returning to England, lecturing in London, and then settling in Essex, where he
became a Puritan leader, and in 1631 was brought before Laud. In 1634 he came to
New England, and became the colleague of Rev. Thomas Parker at Ipswich. After
two years, owing to feeble health, he resigned his pastorate, but continued to
reside at Ipswich. Here he compiled "The Body of Liberties," which was adopted
by the General Court of Massachusetts in December, 1641. In 1646 he published
"The simple Cobbler of Agawam," which at once became so famous. See the review
of it and of Ward's general work by Professor Moses Coit Tyler in his "History
of American Literature"; also by Rev. T. Franklin Waters in his edition of "The
Simple Cobbler." Returning to England in 1647, Ward became minister of the
church at Shenfield in Essex, where he remained until his death in 1652. His
sermon before the House of Commons in 1647 and various writings relating to the
conflicts of that stormy time in England were published. Probably few of his
associates in New England had legal abilities and training superior to his. "I
have read almost all the common Law of England," he says in his "simple
Cobbler"; and this was clearly the main source of the Massachusetts "Body of
Liberties." In the defence of the Massachusetts laws by the authorized committee
of the colony in 1646, referred to above, these laws are compared only with
Magna Charta and the Common Law of England.
---Palfrey

Background to the Creation of the Body of Liberties

In the first year that Deputies from the towns took their place in
the General Court, "John Winthrop and Richard Bellingham, Esq. [March 4, 1635]
were desired by the Court to take a view of all orders already made and to
inform the next General Court which of them they judged meet to he altered,
abbreviated, repealed, corrected, enlarged, or explained, &c. (Mass. Rec., I.
137.) The General Court came together May 6, and the business remaining undone,
the Governor [Haynes], Deputy Governor [Bellingham], John Winthrop, and Thomas
Dudley, Esq., were deputed by the Court to make a draft of such laws as they
should judge needful for the well-ordering of this plantation, and to present
the same to the Court." (Ibid., 147; comp. Winthrop, I. 160.)

A year passed. Another General Court assembled; and "the Governor [Vane],
Deputy-Governor [Winthrop], Thomas Dudley, John Haynes, Richard Bellingham,
Esq., Mr. Cotton, Mr. Peter, and Mr. Shepard were entreated [May 25, 1636] to
make a draft of laws agreeable to the word of God, which might be the
fundamentals of this Commonwealth, and to present the same to the next General
Court." (Mass. Rec., I. 174.) Provisionally "the Magistrates and their
associates" were to "proceed in the Courts to hear and determine all causes
according to the laws now established; and where there is no law, then as near
the law of God as they can. The public attention was distracted by the Pequot
war and the Antinomian controversy. Haynes was just going away; the young
Governor had already enough upon his hands; and others of the commission had no
heart for the business. Cotton held a ready pen, and loved a various activity.
At the time appointed he was all prepared, and "did present a copy of Moses his
judicials, compiled in an exact method, which were taken into further
consideration till the next General Court." (Winthrop, I. 202.) It was probably
easy for the quietists to persuade the Court that it would be scarcely decorous
for them to act when one only of their committee had given his advice.

Two years had followed since their last action, and the freemen, . . . patient,
but tenacious of their purpose, tried the virtue of a more formal method (March
12, 1638), and "ordered that the freemen of every town (or some part thereof
chosen by the rest) within this jurisdiction shall assemble together in their
several towns, and collect the heads of such necessary and fundamental laws as
may he suitable to the times and places where God by his providence hath cast
us, and the heads of such laws to deliver in writing to the Governor for the
time being before the 5th day of the 4th month, called June, next, to the intent
that the same Governor, together with the rest of the Standing Council, and
Richard Bellingham, Esq., Mr. Bulkley, Mr. Phillips, Mr. Peter, and Mr. Shepard,
elders of several churches, Mr. Nathaniel Ward, Mr. William Spencer, and Mr.
William Hathorne, or the major part of them, may, upon the survey of such heads
of laws, make a compendious abridgment of the same by the [Page 279] General
Court in autumn next, adding yet to the same or detracting therefrom what in
their wisdoms shall seem meet, so that, the whole work being perfected to the
best of their skill, it may be presented to the General Court for confirmation
or rejection, as the Court shall adjudge."

Fifteen months came and went, but "most of the magistrates and some of the
elders were not forward in the matter" (Winthrop, I. 322); and the General
Court. . . was fain to order (June 6, 1639) "that the Marshal shall give notice
to the Committee about the body of laws, to send unto the next General Court
such drafts of laws as they had prepared, for the Court to take order about them
what to settle." (Mass. Rec., I. 262.)

Still the coveted object did but mock their hopes with the show of having been
approached. The tactics of delay were inexhaustible. Some "drafts of laws"
indeed came in (two only, as far as we know,---Cotton's and Ward's); but the
best that their friends could get done for them was an order (November 5, 1639)
that "the Governor [Winthrop], Deputy-Governor [Dudley], Treasurer [Bellingham],
and Mr. Stoughton, or any three of them; with two or more of the Deputies of
Boston, Charlestown, or Roxbury, shall peruse all those models which have been,
or shall be, further presented to this Court, or themselves, concerning a form
of government and laws to be established, and shall draw them up into one body
(altering, adding, or omitting what they shall think fit), and shall take order
that the same shall be copied out and sent to the several towns, that the elders
of the churches and the freemen may consider of them against the next General
Court." (Ibid., 279.) And the case must have seemed to be getting well-nigh
desperate, when, six months later yet (May 13, 1640), in consideration that "a
breviate of laws was formerly sent forth to be considered by the elders of the
churches and other freemen of this Commonwealth," it was "desired that they
would endeavor to ripen their thoughts and counsels about the same by the
General Court in the next eighth month." (Ibid., 292.) "The next eighth month"
accomplished no more than its predecessors. The Court met, but the question was
kept out of notice.

It came to be differently treated, when, on the one hand, from several years'
experience, the characteristics of a useful jurisprudence had at length
disclosed themselves, and, on the other, Parliament was crowding on the King,
and in Massachusetts the fear of impending hostility from England was dying
away. There had probably grown up a sincere disposition among the guides of
public action to meet the popular wish for a legal code, when (June 2, 1641), in
the place of an interminable consultation of the towns, the service of a learned
lawyer was enlisted, and "the Governor [Bellingham] was appointed to peruse all
the laws, and take notice of what may be fit to be repealed, what to be
rectified, what to stand, and make return to the next General Court." (Ibid.,
320.) And when, sufficient time having been allowed for this examination, "the
Governor and Mr. Hathorne were desired [October 7] to speak to Mr. Ward for a
copy of the Liberties and of the Capital Laws to be transcribed and sent to the
several towns" (Ibid., 341), the order may be held to indicate a general desire
in high quarters that the Deputies might next come together prepared for
definitive action in favor of his code. The session of the General Court which
adopted this vote was continued by adjournments more than two months. And that
the project of a Statute-Book, and of Ward's in particular, was still gaining
favor, may be inferred from the passage of an order (December 10) by which "Mr.
Deputy Endicott, Mr. Downing, [Page 280] and Mr. Hathorne are authorized to get
nineteen copies of the laws, liberties, and the forms of oaths transcribed and
subscribed by their several hands, and none to be authentic but such as they
subscribe, and to be paid for by the constable of each town, ten shillings
apiece for each copy, and to be prepared within six weeks." (Ibid., 344.) At
length, in a session which "continued three weeks" (in December), the General
Court "established the hundred laws which were called The Body of Liberties.
They . . . had been revised and altered by the Court, and sent forth into every
town to be further considered of, and now again in this Court they were revised,
amended, and presented." (Winthrop, II. 55.)
---Palfrey








 

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