Hello and welcome to part 2 of our series on Puritan law—specifically the 1641 Body of Liberties created by the Massachusetts Bay Colony. Last time we looked at the proto-democratic process by which these laws were created; here we focus on the first section of this body of 100 laws, which covers individual rights. We won’t look at each of the 17 laws in this section, for time’s sake, but pull out the laws that are most indicative of the nature or gist of the Body. If you’d like to read the whole Body of Liberties, and the codes of law that followed it and incorporated it, you can find it in libraries or for sale online under the title The Colonial Laws of Massachusetts: reprinted from the edition of 1660, with the supplements to 1672, containing also the Body of Liberties of 1641.
We should note here that “man” is used pretty consistently, except in the short section devoted to the liberties of women. That section, which we’ll cover later in this series, specifies a woman’s treatment by her husband, disallowing abuse and mandating that a wife be fairly treated in her husband’s will. Otherwise, it’s all about “men” in the Body. This does not mean that the laws that follow did not apply to women. It means two things: “man” was used to mean people; and some of the laws were about men only (such as the laws about military service). Women could be banished and fined just like men, so laws about those things applied equally to both sexes.
(All spelling has been modernized in the following excerpts.)
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 or children, no man’s goods or estate shall be taken away from him, nor any way indemnified 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 the 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.”
—This is the heart of the Body of Liberties; as discussed in part 1 of this series, the whole purpose of creating the Body was to have a set of laws to go by. No one is going to be sentenced to anything unless he has broken an actual law that has been made publicly known. Judgments will not be made according to some magistrate’s whim or personal feelings. People will know what the law is, and what the penalties are for breaking laws. The last part, regarding “the defect of a law in any particular case”, means that if there is some problem for which no law has been written as yet, the magistrates will turn to the Bible for guidance; however, if someone does something that seems to call for capital punishment in the Bible, the General Court will step in and “that word [of God] will be judged”. Here we see that when push comes to shove, human reason ranks above the word of God for the Puritans.
2. “Every person within this Jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation [the colony], which we constitute and execute one towards another without particularity or delay.”
—One law for all, no one above the law, and an early expression of the idea that justice delayed is justice deferred.
…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.”
—The law is open to all, no matter their status, and all men have the right to attend public meetings and participate in them, so long as their participation is respectful and the ideas or complaints they have are relevant to the body they’re addressing—that is, if you are in town meeting, you bring up town business and not colony-level business, and vice-versa.
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.”
—While it is distressing to see women, children, and “idiots” lumped together as one category, this law actually states that it is not only men who may buy and sell land or goods (“estate”), and that is crucially important in a colony where land is the chief source of wealth. A woman may do what she sees fit with land she is left by her husband. (Women can also make their own wills, as guaranteed in liberty 11.) Underage children may make decisions about land left to them. The clause on “idiot or distracted persons” likely refers to people who made out wills when they were of sound mind but did not die of sound mind; those wills and the decisions in them will be upheld. All this is contingent on the General Court looking the decisions over and confirming them, but looking through the records of the colony shows that in most cases decisions made by this group were upheld.
We skipped laws in this section that prevent people from being fined for not responding to a court summons if they are incapable of getting to court, outlaw mandatory military service, ensure that no one can be forced to work on a government project, ban estate taxes, keep the government from seizing goods, and give people the right to move out of the colony whenever they like. Basically section 1 limits the power of the colonial government and secures individual liberties, that among these are life, liberty, and the pursuit of happiness. Yes, that line comes from a later document and another time, but we see here in section 1 of the Body of Liberties of Massachusetts early forerunners of those guarantees in our Declaration of Independence.
In section 2, we’ll look at Rights, Rules, and Liberties concerning Judicial Proceedings.