1641
As the only constitution of the Massachusetts Bay Colony was its corporate charter, there was no limit whatever to the authority of its all but self-appointed magistrates. In most cases, the administration of justice was equitable enough-no less so, at any rate, than what prevailed in England at the time. However, the grievances of the deputies in the General Court were serious enough to bring about a movement for a code of laws defining the liberties of the people. The first code of Massachusetts was based on a model drawn up by Nathaniel Ward and was adopted as law on December 10, 1641. The "Body of Liberties" was based for the most part on English common law and still retained a great deal of authority for the magistrates. The effect of this document was not at first very great, because Governor John Winthrop opposed any premature codification of the people's liberties, and the clergy were also hostile, insisting the "judges are Gods upon earth." But the code at least circumscribed their authority as far as it went, and it led in 1648 to the adoption of The Book of the General Lawes and Libertyes, a more popular code of laws that further increased the power of the people.
The free fruition of such liberties, immunities, and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement, has ever been and ever will be the tranquillity and stability of churches and commonwealths; and the denial or deprival thereof, the disturbance if not the ruin of both.
We hold it, therefore, our duty and safety, while we are about the further establishing of this government, to collect and express all such freedoms as for [the] present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent. We do, therefore, this day, religiously and unanimously decree and confirm these following rights, liberties, and privileges concerning our churches and civil state, to be respectively, impartially, and inviolably enjoyed and observed throughout our jurisdiction forever.
1. No man's life shall be taken away; no man's honor or good name shall be stained; no man's person shall be arrested, restrained, banished, dismembered, nor any ways punished; no man shall be deprived of his wife and children; no man's goods or estate shall be taken away from him, nor any way endamaged under color of law or countenance of authority unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or in case of the defect of a law in any particular case, by the Word of God; and in capital cases, or in cases concerning dismembering or banishment, according to that Word to be judged by the General Court.
2. Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation, which we constitute and execute one toward another without partiality or delay.
3. No man shall be urged to take any oath or subscribe any articles, covenants, or remonstrance of a public and civil nature, but such as the General Court has considered, allowed, and required.
4. No man shall be punished for not appearing at or before any civil assembly, court, council, magistrate, or officer, nor for the omission of any office or service, if he shall be necessarily hindered 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 and damage in any civil action.
5. No man shall be compelled to any public work or service unless the impressment be grounded upon some act of the General Court, and have reasonable allowance therefor.
6. No man shall be impressed in person to any office, work, wars, or other public service that is necessarily and sufficiently exempted by any natural or personal impediment, as by want of years, greatness of age, defect of mind, failing of senses, or impotency of limbs.
7. No man shall be compelled to go out of the limits of this plantation upon any offensive wars which this Commonwealth or any of our friends or confederates shall voluntarily undertake; but only upon such vindictive and defensive wars in our own behalf or the behalf of our friends and confederates as shall be enterprised by the counsel and consent of a General Court, or by authority derived from the same.
8. No man's cattle or goods of what kind soever shall be impressed or taken for any public use or service, unless it be by warrant grounded upon some act of the General Court, nor without such reasonable prices and hire as the ordinary rates of the country do afford. And if his cattle and goods shall perish or suffer damage in such service, the owners shall be sufficiently recompensed.
9. No monopolies shall be granted or allowed among us, but of such new inventions that are profitable to the country, and that for a short time.
10. All our lands and heritages shall be free from all fines and license upon alienations, and from all heriots, wardships, liveries, primer-seisins, year day and waste, escheats, and forfeitures, upon the deaths of parents or ancestors, be they natural, casual, or judicial.
11. All persons which are of the age of twenty-one years, and of right understanding and memories, whether excommunicate or condemned, shall have full power and liberty to make their wills and testaments, and other lawful alienations of their lands and estates.
12. Every man, whether inhabitant or foreigner, free or not free, shall have liberty to come to any public court, council, or town meeting, and, either by speech or writing, to move any lawful, seasonable, and material question, or to present any necessary motion, complaint, petition, bill, or information, whereof that meeting has proper cognizance, so it be done in convenient time, due order, and respective manner.
13. No man shall be rated here for any estate or revenue he has in England, or in any foreign parts till it be transported hither.
14. Any conveyance or alienation of land or other estate whatsoever made by any woman that is married, any child under age, idiot or distracted person shall be good if it be passed and ratified by the consent of a General Court.
15. All covenous [deceitful] or fraudulent alienations or conveyances of lands, tenements, or any hereditaments shall be of no validity to defeat any man due debts or legacies, or from any just title, claim, or possession, of that which is so fraudulently conveyed.
16. Every inhabitant that is a householder shall have free fishing and fowling in any great ponds and bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town or the General Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others' property without their leave.
17. Every man of or with this jurisdiction shall have free liberty, notwithstanding any civil power, to remove both himself and his family at their pleasure out of the same, provided there be no legal impediment to the contrary. ...
26. Every man that finds himself unfit to plead his own cause in any court shall have liberty to employ any man against whom the court does not except to help him, provided he give him no fee or reward for his pains. This shall not exempt the party himself from answering such questions in person as the court shall think meet to demand of him. ...
29. In all actions at law it shall be the liberty of the plaintiff and defendant by mutual consent to choose whether they will be tried by the bench or by a jury, unless it be where the law upon just reason has otherwise determined. The like liberty shall be granted to all persons in criminal cases.
30. It shall be in the liberty of plaintiff and defendant, and likewise every delinquent (to be judged by a jury), to challenge any of the jurors. And if his challenge be found just and reasonable by the bench, or the rest of the jury, as the challenger shall choose it shall be allowed him, and tales de circumstantibus [alternate jurors] impaneled in their room [stead]. ...
36. It shall be in the liberty of every man cast, condemned, or sentenced in any cause in any inferior court to make their appeal to the Court of Assistants, provided they tender their appeal and put in security to prosecute it before the court be ended wherein they were condemned, and within six days next ensuing put in good security before some assistant to satisfy what his adversary shall recover against him; and if the cause be of a criminal nature, for his good behavior and appearance. And every man shall have liberty to complain to the General Court of any injustice done him in any Court of Assistants or other. ...
42. No man shall be twice sentenced by civil justice for one and the same crime, offense, or trespass.
43. No man shall be beaten with above forty stripes, nor shall any true gentleman, nor any man equal to a gentleman, be punished with whipping, unless his crime be very shameful and his course of life vicious and profligate.
44. No man condemned to die shall be put to death within four days next after his condemnation, unless the court see special cause to the contrary, or in case of martial law; nor shall the body of any man so put to death be unburied twelve hours unless it be in case of anatomy [autopsy].
45. No man shall be forced by torture to confess any crime against himself nor any other unless it be in some capital case, where he is first fully convicted by clear and sufficient evidence to be guilty, after which, if the cause be of that nature that it is very apparent there be other conspirators or confederates with him, then he may be tortured, yet not with such tortures as be barbarous and inhumane.
46. For bodily punishments we allow among 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. ...
LIBERTIES OF WOMEN
79. If any man at his death shall not leave his wife a competent portion of his estate, upon just complaint made to the General Court she shall be relieved.
80. Every married woman shall be free from bodily correction or stripes by her husband, unless it be in his own defense upon her assault. If there be any just cause of correction, complaint shall be made to authority assembled in some court, from which only she shall receive it.
LIBERTIES OF CHILDREN
81. When parents die intestate, the elder son shall have a double portion of his whole estate, real and personal, unless the General Court upon just cause alleged shall judge otherwise.
82. When parents die intestate having no heirs [males] of their bodies, their daughters shall inherit as copartners, unless the General Court upon just reason shall judge otherwise.
83. If any parents shall willfully and unreasonably deny any child timely or convenient marriage, or shall exercise any unnatural severity toward them, such children shall have free liberty to complain to authority for redress.
84. No orphan[s] during their minority which [were] not committed to tuition or service by the parents in their lifetime shall afterward be absolutely disposed of by any kindred, friend, executor, township, 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 tyranny and cruelty of their masters to the house of any freeman of the same town, they shall be there protected and sustained till due order be taken for their relief; provided due notice thereof be speedily given to their masters from whom they fled, and [to] the next assistant or constable where the party fleeing is harbored.
86. No servant[s] shall be put off for above a year to any other, neither in the lifetime of their master nor after their death by their executors or administrators, unless it be by consent of authority 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 maim or much disfigure him, unless it be by mere casualty, he shall let them go free from his service; and shall have such further recompense as the court shall allow him.
88. Servants that have served diligently and faithfully to the benefit of their masters seven years shall not be sent away empty. And if any have been unfaithful, negligent, or unprofitable in their service, notwithstanding the good usage of their masters, they shall not be dismissed till they have made satisfaction according to the judgment of authority.
LIBERTIES OF FOREIGNERS AND STRANGERS
89. If any people of other nations professing the true Christian religion shall flee to us from the tyranny or oppression of their persecutors, or from famine, wars, or the like necessary and compulsory cause, they shall be entertained and succored among us, according to that power and prudence God shall give us.
90. If any ships or other vessels, be it friend or enemy, shall suffer shipwreck upon our coast, there shall be no violence or wrong offered to their persons or goods. But their persons shall be harbored and relieved, and their goods preserved in safety till authority may be certified thereof, and shall take further order therein.
91. There shall never be any bond slavery, villenage, or captivity among us unless it be lawful captives taken in just wars, and such strangers as willingly sell themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of God, established in Israel concerning such persons, does morally require. This exempts none from servitude who shall be judged thereto by authority.
OF THE BRUTE CREATURE
92. No man shall exercise any tyranny or cruelty toward any brute creature[s] which are usually kept for man's use.
93. If any man shall have occasion to lead or drive cattle from place to place that is far off, so that they be weary, or hungry, or all sick, or lame, it shall be lawful to rest or refresh them, for competent time, in any open place that is not corn, meadow, or enclosed for some peculiar use.
94. Capital Laws:
I. If any man after legal conviction shall have or worship any other God but the Lord God, he shall be put to death (Deut. 13:6, 10; Deut. 17:2, 6; Ex. 22:20).
II. If any man or woman be a witch (that is, has or consults with a familiar spirit), they shall be put to death (Ex. 22:18; Lev. 20:27; Deut. 18:10).
III. If any person shall blaspheme the name of God, the Father, Son, or Holy Ghost, with direct, express, presumptuous, or high-handed blasphemy, or shall curse God in the like manner, he shall be put to death (Lev. 24:15, 16).
IV. If any person commit any willful murder, which is manslaughter, committed upon premeditated malice, hatred, or cruelty, not in a man's necessary and just defense, nor by mere casualty against his will, he shall be put to death (Ex. 21:12; Num. 35:13, 14, 30, 31).
V. If any person slay another suddenly in his anger or cruelty of passion, he shall be put to death (Num. 25:20, 21; Lev. 24:17).
VI. If any person shall slay another through guile, either by poisoning or other such devilish practice, he shall be put to death (Ex. 21:14).
VII. If any man or woman shall lie with any beast or brute creature by carnal copulation, they shall surely be put to death. And the beast shall be slain, and buried and not eaten (Lev. 20:15, 16).
VIII. If any man lies with mankind as he lies with a woman, both of them have committed abomination, they both shall surely be put to death (Lev. 20:13).
IX. If any person commits adultery with a married or espoused wife, the adulterer and adulteress shall surely be put to death (Lev. 20:19 and 18:20; Deut. 22:23, 24).
X. If any man steals a man or mankind, he shall surely be put to death (Ex. 21:16).
XI. If any man rise up by false witness, wittingly and of purpose to take away any man's life, he shall be put to death (Deut. 19:16, 18, 19).
XII. If any man shall conspire and attempt any invasion, insurrection, or public rebellion against our Commonwealth, or shall endeavor to surprise any town or towns, fort or forts therein, or shall treacherously and perfidiously attempt the alteration and subversion of our frame of polity or government fundamentally, he shall be put to death.
SourceCollections, Massachusetts Historical Society, Cambridge and Boston, 1795, 3rd series, VIII, pp. 216-237.
