Welcome to part 6 of our series on the 1641 Massachusetts Body of Liberties, in which we wrap up this 100-law codification of Puritan law with the section on capital crimes and the section on churches. We won’t look at each of the laws in these sections, 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 once again that “man” is used pretty consistently, except in the short section devoted to the liberties of women and minority populations. 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.
Some might assume that the Puritans assigned capital punishment to all infractions, including sneezing; the truth, of course, is that the section on Capital Laws is very short—12 laws. As we read, we need to keep in mind that relatively few people were executed in Puritan Massachusetts, and that like capital laws in England in the 18th century, these laws were meant to scare people straight, and were often bent to prevent an actual execution. Let’s take a look. (All spelling has been modernized in the following excerpts.)
94. Capital Laws
1. “If any man after legal conviction shall have or worship any other god but the lord god, he shall be put to death.”
—You get one strike on worshipping false idols, then you are put to death. This is straight out of the Ten Commandments—thou shalt have no other gods before me. Law 3 in this section also dips into the Commandments, punishing blasphemy—“high-handed blasphemy”.
2. “If any man or woman be a witch (that is hath or consults with a familiar spirit), they shall be put to death.”
—Yes, at last it’s a law about witchcraft! and the only one in the Body. Note that it applies to men and women equally, and that it narrowly defines witchcraft as communicating with a “familiar”, or evil spirit. This would be very hard to prove, and there would be few cases of witchcraft that made it through court in Massachusetts (see Puritans and Witchcraft: more method, less madness and Did the Puritans believe in witchcraft? for a more in-depth study).
4. “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.”
—This is the first of three laws about murder. #4 states that premeditated and cold-blooded murder will be punished with death. Self-defense and accidentally killing someone (“mere casualty against his will”) do not count. This definition is enhanced in the next law, #5, which states that slaying someone “suddenly in his anger or cruelty of passion” is a capital offense, making crimes of passion capital crimes. Law 6 in this section spells out that killing someone “through guile, either by poisoning or other such devilish practice” is a capital offense.
The next three laws are about sex. #7 forbids bestiality, and orders that the human culprit be killed and the animal be “slain and buried and not eaten.” #8 forbids homosexuality; interestingly it is only applied to men—“If any man lies with mankind as he lies with a woman”. In actual fact, Puritan records show cases where men repeatedly had sex with animals (generally cows) or other men and were not executed because they confessed their “sin” and vowed to repent. It generally took several occasions for someone to finally be executed. #9 addresses men who commit adultery with “a married or espoused wife”, saying “both of them have committed abomination [and] both shall surely be put to death.” Again, these cases came up fairly often and were often handled without recourse to execution (the offending parties were given a chance to repent), but unrepentant adultery was met with execution in most cases.
10. “If any man steals a man or mankind, he shall surely be put to death.”
—This oddly worded law seems to apply to enslaved or indentured people.
11. “If any man rise up by false witness, wittingly and or purpose to take away any man’s life, he shall be put to death.”
—This hearkens back to the sections on freemen’s rights and judicial proceedings, where committing perjury in court is punished.
#12 is about treason: “If any man shall conspire and attempt any invasion, insurrection, or public rebellion against our commonwealth, or shall endeavor to surprise any town [or] fort therein, or shall treacherously and perfidiously attempt the alteration and subversion of our frame of polity of government fundamentally, he shall be put to death.”
—It’s telling that this law equates an actual, physical invasion or rebellion with attempting to alter the colonial government. The Puritans of Massachusetts believed passionately in their proto-democracy, which they had created basically out of whole cloth, on their own, and it was a powerful component of their identity. They would fight and, later, die to protect the liberties they had established for themselves, and anyone who threatened them was a traitor.
So ends the section on capital punishment. Now to the final section, “A Declaration of the Liberties the Lord Jesus hath given to the Churches”. Notice that these liberties are given by Jesus, as opposed to the 97 other liberties in the body, which are given by the General Court. This interesting division of labor means that the liberties in this section are purely theological; they describe how Congregational churches in Massachusetts operated. Four years after the Body was published, in 1645, minister John Cotton would spell out the basics of Congregational doctrine in The Way of the Churches of Christ in New England… a book that led to a codification of church law known as the New England Way. For now, the Body gives a brief overview of purely church law, outside civil law.
95. 1. “All the people of god within this jurisdiction who are not in a church way, and be orthodox in judgment, and not scandalous in life, shall have full liberty to gather themselves into a church estate, provided they do it in a Christian way, with due observation of the rules of Christ revealed in his word.”
—One of the things Puritans railed against in England was that every citizen was required, mandated, to attend their local church, no matter how sinful they were. They were required to take communion, even if they did not believe in God, or blasphemed God. The Puritans wanted their churches to be voluntarily populated by believers only. This liberty states that the godly have the opportunity to go to church, and to gather together to found churches. Only the godly may do this, which means the churches stay pure and membership remains voluntary.
The next eight liberties all deal with the freedom and independence of each congregation to govern itself: “full liberty to exercise all the ordinances of god,” “free liberty of election and ordination of all their officers [ministers, deacons, etc.]”, “free liberty of admission [and] dismission…of their officers and members”, “no injunctions are to be put upon any church”, “every church of Christ has freedom to celebrate days of fasting and prayer”, “the elders of churches have free liberty to meet… for conferences and consultations about [church] questions”, “liberty to deal with any of their members in a church way”, and “liberty to deal with any magistrate, deputy of court or other officer whatsoever that is a member in a church way”.
These liberties do not mean that a congregation was above the law, free to do whatever it wanted. They mean that there would be no over-arching church governing body—no bishops, no regional or national conferences, no governing body of ministers who decided policy for all churches. Unlike the Catholic or even the Anglican churches, the Congregationalist church did not have a small group of high-level officials assigning ministers to churches, settling church disputes, or disciplining churches or ministers. Each church was in complete control of its own affairs. The congregation chose their minister and officials, and each church disciplined its own members. Earlier in the Body it is made clear that when it comes to breaking civil law, no church member, minister, or official is above the law—they can’t get out of their due punishment because of their church standing. But these liberties are about church self-government, covering strictly religious issues. Just as an earlier liberty said a minister can be charged with breaking civil law and punished, so here the last of these liberties states that civil officers (politicians) can be charged with breaking church law and be punished.
Having outlawed any kind of over-arching church governing body, the section clarifies in the next liberty that churches can, if they wish (“with the consent of the churches”), send their ministers and elders to meet once a month to spend a day “in public christian conference about the discussing and resolving of any such doubts and cases of conscience concerning matters of doctrine or worship of government of the church as shall be propounded by the brethren of that church, with leave also to any other brother to propound his objections or answers for further satisfaction according to the word of god.” That is, while ministers can’t hold meetings in which they mandate church policy, they are allowed to gather once a month to debate and come to agreement on issues facing their church members. Crucially, those church members are also allowed to attend these meetings, to speak, and to object publicly if they don’t agree with the solutions the ministers arrive at. This is to help prevent the trampling of individual congregations’ rights—“no thing may be concluded and imposed by way of authority from one or more churches upon another, but only by way of brotherly conference and consultations.” If church A comes up with a solution it likes, but church B doesn’t like it, church B cannot be forced to go along.
In the next liberty, the civil authorities are asked to respect these ecclesiastical liberties, and to allow “full power and liberty to any person that shall be denied or deprived of them, to commence and prosecute their suit”.
Wrapping up, Liberty 98 states that every law in the Body be “read and deliberately weighted at every General Court that shall be held within three years, and such of them as shall not be altered or repealed they shall stand so ratified.” It’s very like the Puritans of Massachusetts to take six years to write up the Body of laws, six years of writing to the towns to get their draft laws, and sending drafts back to the towns to be approved, and then to say, Now that we agree on these laws, there’s still a three-year trial period to confirm that we’re all on board with them. If any General Court failed “or forget” to read them each year, every Assistant would be fined 20 shillings, and every deputy 10 shillings.
And so we come to the end of the 1641 Body of Liberties. In the next and final post, we’ll recap its significance, in its own time, and for us today.