Part 5 of our series on the 1641 Body of Liberties of the Massachusetts Bay Colony leads us to the rights, or liberties, of minority populations—women, children, servants, “foreigners and strangers”, and “brute creatures”. As we’ve mentioned in earlier posts, the fact that there are special sections for these categories within the Body does not mean that the other liberties described in the document do not apply to women, children, etc. It means that while some of the laws in the Body were about men only (such as the laws about military service), women, servants, and others had recourse to the law—they could bring law suits and defend themselves in court, they could be banished and fined just like men, and so laws about those things applied equally to all people. In these special sections, however, the Puritans addressed issues that could only apply to the groups mentioned, issues they wanted to call out and make clear within the law.
We can actually look at each of the laws in these sections, because there aren’t many. This is a sign that the Puritans of Massachusetts saw all its people as covered by the Body in general, with only a few occasions where special populations needed special protections. 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.
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.”
—Men have to provide for their widows. Some men would leave all their estate to their children—their sons or sons-in-law—in order to pass down the estate intact to their line, reckoning that their widows would remarry and benefit from some other man’s property and goods. But the Body shows an understanding that this may not be the case, and that every husband has a duty to provide for his wife, and thus allows wills to be contested in the widow’s favor.
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.”
—No husband can beat his wife (“stripes” meaning whipping). A man bodily attacked by his wife can defend himself, but in all other cases, if a husband has a complaint against his wife (a “just cause of correction”) he can go to court and present his case. If the court finds a wife guilty of an offense—of breaking a law in the Body—the court will fine or otherwise punish her. Domestic disputes are the domain of the law, not the whip.
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 alledged shall judge otherwise.”
—This is fairly clear: an estate will be broken out amongst the surviving children, with the eldest son, if there is one, receiving a double share. The chances of a law- and lawsuit-loving Puritan dying without a will were likely small, but it could happen.
82. “When parents die intestate having no heirs male of their bodies, their daughters shall inherit as co-partners, unless the General Court upon just reason shall judge otherwise.”
—Women, even girls, can inherit land and estate from their parents. As we’ve mentioned before, it was rare for the Court to overturn a legal will, so women who inherited land and estate generally kept it.
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.”
—The old image of the stern, horrid Puritan father refusing to let his child marry—or forcing her to—is undone here, along with the image of the Puritan constantly beating his child. While children were not allowed to bring suit to or testify in court, they could be represented in court by an adult, and could give their testimony to that representative.
84. “No orphan during their minority which was not committed to tuition or service by the parents in their lifetime shall afterwards be absolutely disposed of by any kindred, friend, executor, township, or church, not by themselves without the consent of some court, wherein two Assistants at least shall be present.”
—A child whose parents die can’t be abandoned to a life of indentured service by uncaring relatives, their town government, or even their church. Unless a parent arranged for a child to go into service, that child had to be taken in and cared for by some family. This was so important that we see that not even a court could send an orphan into service without at least two Assistants—members of the governor’s council—hearing the case and agreeing. The Puritans believed in the necessity of nurture to raise up a godly child, and did not want extended families shirking their duty to orphaned nieces, cousins, grandchildren, etc.
Liberties of Servants
85. “If any servants shall flee from the tyranny and cruelty of their masters to the house of any freeman in the same town, they shall be there protected and sustained til due order be taken for their relief. Provided due notice thereof be speedily given to their masters from whom they fled. And the next Assistant or constable where the party flying is harbored.”
—No servant has to endure harsh treatment, and all servants, male and female, have the right to leave a house where they are physcially harmed. Masters have to be told where the servant fled to, and the town constable (or, if in Boston, an Assistant) has to be told about the situation as well. Liberty 87 is also about violence against servants, specifically stating that a servant who is maimed or disfigured by a master’s abuse is immediately free from that master’s service and may be entitled to a cash settlement.
Liberties 86 and 88 deal with fair treatment of servants. 88 says diligent servants who have served for at least seven years can’t be dismissed without pay (“shall not be sent away empty”), and, conversely, bad servants can’t be dismissed until they have “made satisfaction” to their masters.
Liberties of Foreigners and Strangers
Liberty 89 protects religious and other refugees (“any people of other nations professing the true Christian religion [who] flee to us from the tyranny or oppression of their persecutors, or from famine, war, or the like… they shall be entertained and succored amongst us”); and Liberty 90 states that shipwrecks or foreign ships will not be looted but the goods “preserved in safety”.
Liberty 91 states that “there shall never be any bond slavery, villainage, or captivity amongst 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 allows prisoners of war and Africans to be enslaved. The boggling clause in this liberty is “such strangers as willingly sell themselves or are sold”—thus equating voluntary entry into slavery and being forcibly sold as a slave. This is the first liberty in the Body to contain such a bald, disturbing contradiction, and keeps this liberty from truly limiting slavery to those, like enemy soldiers, who might possibly “deserve” it.
Of the Brute Creature
92. “No man shall exercise any tyranny or cruelty towards any brute creature which are usually kept for man’s use.”
—The same phrase used in the liberties concerning servants, “tyranny or cruelty”, is used here to prevent cruelty to animals.
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 fall sick, or lame, it shall be lawful to rest or refresh them, for a competent time, in any open place that is not [a corn field], meadow, or enclosed for some particular use.”
—Land ownership was the be-all and end-all of the Puritans. Disputes over land were unending, as borders were disputed and people fought over who had rights to use common land (which was not purely common; people paid to use it). There were many disputes over livestock, as people sued for crop damage and destruction of property caused by animals allowed to stray off their own land. So to have a liberty here that says any animals who are being exhausted and endangered by a long journey have the right to graze and drink water on land that is not being used is a big deal. People at this time did not see any land as totally free—if land was not being used, it was fair game to be claimed. Travelers who rested animals on open land ran the risk of someone suing them because he had informally claimed that land. So long as animals did not trespass onto land that was clearly being tilled, they had the right to use the land themselves.
Thus end the special sections of the Body. We see that these sections do not represent every law or the only laws that applied to these categories of people and creatures, but are special cases that could only apply to these categories. There are many instances in the Body’s other sections where it is stated that the liberties being described apply to all inhabitants, be they strangers or servants or women or children. These sections, then, are like a little Bill of Rights for the minority populations, expressly stating liberties that are not made explicit within the other, general sections.
In the next post we’ll look at a very short section on capital crimes—one might expect that to be the longest section of a Puritan body of law, but it is not. It does, however, at last provide us with the single mention of witchcraft in the Body… which applies to men and women equally.