Separation of Puritan church and state – the 1641 Body of Liberties

Welcome to part 4 of our series on the 1641 Body of Liberties of the Massachusetts Bay Colony. Last time we looked at judicial laws; this time we focus on freemen’s liberties. One of the first things John Winthrop did, at the second Court in May 1631, was expand the definition of “freeman” in the colony to include almost all adult males—there were no property-ownership requirements. So the liberties we’re about to examine applied to 99% of the adult males in the colony.

Did they apply to the women of the colony? As we pointed out in part 2, there is a short section in the Body 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 none of the laws applied 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. In this section, however, we are dealing with voting rights and jury rights, and so these apply strictly to men.

We won’t look at each of the 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.

Modern spellings are used throughout.

Liberty 58: “Civil authority has power and liberty to see the peace, ordinances, and rules of Christ observed in every church according to his word, so it be done in a civil and not in an ecclesiastical way.”

—This reminds us of Liberty 1, in that it seems to blur the line between church and state, but in reality it is once again mandating that separation by saying that the civil government does not have authority to govern the churches—it can’t exercise power “in an ecclesiastical way”. This means that the civil government can intervene if a problem in a congregation is causing civil disturbance, but it can’t step in to meddle with or dictate how a church operates. On the other hand, church disputes will not be allowed to interfere with civil government or the peace of the colony. This is most likely hearkening back to the Antinomian crisis of the 1630s involving Anne Hutchinson, where problems in the Boston church led to near civil war, as the elections for governor were disrupted and rioting broke out.

Liberty 59: “Civil authority has power and liberty to deal with any church member in a way of civil justice, notwithstanding any church relation, office, or interest.”

—Another separation of church and state, this one saying no one can be above the law, no matter how high a position they may hold in a church. Church officials, ministers, and pastors are under civil authority…

Liberty 60: “No church censure shall degrade or depose any man from any civil dignity, office, or authority he shall have in the Commonwealth.”

—…and vice-versa: if a church member or official is removed from his church office, or is censured for a religious matter, he will not also be removed from any government position he may hold. Remember that ministers and pastors were not allowed to hold political office; this would apply only to church members or men serving as deacons.

Liberty 66: “The Freemen of every township shall have power to make such by-laws and constitutions as may concern the welfare of their town, provided they be not of a criminal, but only of a prudential nature, and that their penalties [shall not exceed] 20 shillings for one offence. And that they be not repugnant to the public laws and orders of the country. And if any inhabitant shall neglect or refuse to observe them, they sall have the power to levy the appointed penalties by distress.”

—Towns are semi-independent: each makes its own laws, so long as they do not assess unfairly high fines and so long as they don’t go against the laws of the colony. This tradition of town meeting, where each town made its own laws and public comments on colony affairs, was a powerful galvanizing force during the run-up to the revolution, and continues in Massachusetts today.

Liberty 67: “It is the constant liberty 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 discharge [these officers] at the day of election by way of vote they may do it without showing cause. But if at any other General Court we hold it due justice that the reasons thereof be alleged and proved. By general officers we mean our governor, deputy governor, assistants, treasurer, [and military] general. And our admiral at sea, and such as are or hereafter may be of the like general nature.”

—Freemen elect all civil officers; this is a liberty found in very few places in the world at this time. Elections were annual, held each spring at the General Court (the Court in October was for writing laws). This liberty says that anyone can be voted out of office without explanation, but once someone is elected they can’t be removed from office without some cause; they have to be accused and then proved of some wrongdoing. So you can’t be elected in May, show up for duty in October and suddenly be told you’re out.

Liberty 69: “No General Court shall be dissolved or adjourned without the consent of the major part thereof.”

—England in 1641 was about to collapse into civil war, in large part because King Charles I refused to allow Parliament to meet. He had dismissed Parliament in 1629 and refused to call it until 1640. This “Eleven Years’ Tyranny” was unpopular amongst the small but growing number of English people who believed Parliament should be a permanent partner—and counterweight—to monarchical rule. In Massachusetts in 1641, the people took the step of making their Parliament, the General Court, incapable of dissolution without its consent. No governor could ever exercise “personal rule” by shutting out the freemen from their government, as Charles did.

Liberty 70: “All freemen called to give any advice, vote, verdict, or sentence in any court, council, or civil assembly shall have full freedom to do it according to their true judgments and consciences, so it be done orderly and inoffensively for the manner.”

—The participation of freemen in their government was not figurehead. They were meant to truly advise and shape their government without any pressure, and their only obligation was to act honestly and according to their own judgment, and to conduct themselves in an orderly fashion.

Liberty 75 is quite lengthy, so we’ll paraphrase here to say that it states that if a Court makes any laws that concern religion, lead to war, or result in a public Article, and there are members of the Court who disagree with the majority vote, they are to publish their dissenting decision (their “contra remonstrance”) and have it recorded in the records of the Court.

—This is a voice for the minority that makes governing by precedent more informed, and makes the members of the public aware of the dissenting opinions in the Court.

The section on the liberties of the freemen, then, secures separation of church and state, the right of freemen to vote for their politicians, the independence of town governments, a voice for dissent, and the right of the legislature (General Court) to exist, thus preventing tyranny by the governor and his assistants. The rights and duties of juries are also covered in this section.

We’ll look next at the sections on women, children, “foreigners and strangers”, and brute creatures. As we shall see, these are positive laws and are called out in separate sections only to emphasize that these populations had rights as well.

Next time: wills, physical violence, and “smiting”

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