Part 3 of our series on the 1641 Massachusetts Body of Liberties takes us to section 2, which focuses on judicial proceedings. It’s the longest section of the Body: 40 of the 100 laws in the Body are contained here. As Puritans enjoyed leisurely writing, we’ll paraphrase each of the laws, but 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.
Liberty 18 allows people to post bail so they don’t have to stay in prison while they await trial.
Liberties 19 and 20 address midconduct by judges, establishing fines for “miscarriage” by a justice and censure for those who demonstrate misconduct in court (“demean themselves offensively in the Court”).
Liberty 22 sets fines for false claims and nuisance lawsuits. This ties in with Liberty 24, which states that if you bring a suit against someone and then are found to be at fault yourself, your suit will be dismissed, and with Liberty 37, which reiterates fines for false claims (“false complaint or clamor”).
Liberty 26 is interesting because it says that if you are unfit to plead your own case in court you can ask someone to represent you. When you study the Puritans you quickly learn that they were a litigious people, constantly bringing suits to court, and often very complex ones, but you might fail to register that there were no lawyers in Puritan Massachusetts. Many of the Puritans, including founder and governor John Winthrop himself, had been lawyers in England. But in their new world, they did not have lawyers. Everyone argued their own case in court. The Puritans had seen and bewailed the corruption of the English court system, and protested the use of legalese that average people could not understand. In Massachusetts, they rid themselves of both problems by getting rid of lawyers. Liberty 26 allows people to have someone else plead a case for them—with one significant detail: that person can’t be paid for his service (“Provided he give him no fee or reward for his pains”). There would be no professional lawyer class in Massachusetts if the original settlers had their way.
Liberty 30 says jurors can be challenged by both plaintiff and defendant in any case. “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 [to have a new jury called].” This is a liberty no one had in England.
Liberties 32-35 are protections of individual liberty. The first allows a defendant whose goods have been seized to recover them, and the last forbids a court to seize crops that would be spoiled and ruined by the time a defendant is able to recover them. The other two make imprisonment a last resort (“no man [shall be] arrested or imprisoned upon execution of a judgment… if the law can find competent means of satisfaction otherwise from his estate”) and punish constant nuisance litigation (“vexing others with unjust frequent and endless suits”). The image many people have of scores of Puritans languishing in prison, victims of irrational laws or charges of witchcraft, are unfounded.
In fact, you may be noting that we are a good way into the Body without one mention of witchcraft, which many Americans today take to be the only crime Puritans acknowledged or cared about. We will see that there is only one mention of witchcraft in the entire body, and it is a passing mention. The Puritans, as we’ve mentioned elsewhere, believed in witchcraft but very rarely believed someone was a witch. Their courts were scenes of countless arguments over land, boundaries, and livestock, but rarely over witchcraft.
Liberty 36 allows for appeals by defendants found guilty in court, Liberty 41 demands a speedy trial (“…cases shall be heard and determined at the next Court”), and Liberty 42 says no one may be tried twice for the same offense—a pillar of our own justice system.
Liberties 43, 45, and 46 forbid cruel and unusual punishment—no whippings of more than 40 stripes, and no torture to force a confession… in most cases. If someone was found guilty of a capital crime, and it seemed clear he had partners in that crime, then that person might be tortured to give up the names of his partners, “yet not with such tortures as be barbarous and inhumane.” It’s not clear what a humane torture may be, but it is clear that the Puritans knew what they meant, and drew a line between humane and inhumane torture, for they reiterate in the next Liberty, 46, “For bodily punishments we allow amongst us one that are inhumane, barbarous, or cruel.”
Liberty 48 established a Sunshine policy, stating that every inhabitant of the colony had the right to “search and view” all court records, and to request written transcripts for a small fee.
Jury duty is covered in Liberties 49 and 50, saying no one can be forced to serve for more than two years in a row, and that all jurors will be chosen by the freemen of their towns (and not by the government in Boston).
The section wraps up with Liberty 57 saying that if there is a suspicious sudden death in a town, the constables of the town will summon a 12-person jury to carry out an inquiry, and present their findings and conclusions at the next Court.
Judicial proceedings were so important to the Puritans for a few reasons. As we’ve mentioned above, they chafed at the inefficiency and corruption of the legal system in England, and they wanted to create a truly just system in their own society in America. They also had a practical necessity for a clear, fast-moving legal process because they were constantly embroiled in lawsuits over land. As new settlers came in, people moved from place to place, bought land, left land in wills, etc., disputes over borders and plots, who had rights to use common land and wood lots, and a plethora of other issues came up continually. If justice did not move swiftly, violence could break out, as people took the law into their own hands. That’s why the Body sets up clear laws and clear procedures for bringing cases to court, and enforces swfit justice—every case being heard at the next Court session being held.
Note the practicality of these judicial liberties and you’ll find the myth of the rigid, all-powerful, and unjust Puritan court is exploded. These Puritan courts had juries elected by freemen, whose members could be challenged and dismissed by defendants in court. The judges could be fined and removed for miscarriage of justice. People had the right to appeal. People’s goods could be seized, but had to be returned to them if they were found innocent, and imprisonment was to be a last resort, not the norm. Many of the liberties of 1641 were new to the western world, and many clearly influenced the Founders of the United States, and are tenets of our own judicial system today.
We’ll turn next to “Liberties more particularly concerning the freemen”, or, more protections of individual liberty, as well as the divisions between church and state.
The Historic Present 
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