Puritan law, oligarchy, and the Body of Liberties

Posted on September 11, 2012. Filed under: 17th century America, Politics, Puritans, Revolutionary War, U.S. Constitution | Tags: , , , |

Part the last of our series on the 1641 Massachusetts Body of Liberties, the first codification of law in Puritan New England, in which we wrap up our look at this groundbreaking American political document with some thoughts on its meaning in its own time, and in ours.

This first codification of Massachusetts law was, as we saw in part 1, not easily drafted, as the people of the colony resisted doing so for two reasons: first, they felt a body of laws should develop naturally over time, as it had done in England, allowing precedent rather than law-makers to rule the day; and second because their colonial charter forbid them to create any laws “repugnant” to the laws of England, and they were not certain whether the laws they drafted would violate that tenet.

The uncertainty sprang, of course, from the fact that there was no written code of law in England at that time—its famously unwritten constitution was composed of centuries of local custom. But the Puritan leaders, and a growing number of freemen, in Massachusetts were worried about following that tradition in the New World. They worried that legal and court decisions would be made based on opinion, prejudice, or personal agenda rather than an objective striving toward justice. Just four years after landing in America, the Puritans began the lengthy process of drafting a code of laws with input from all the towns, and after six years of canvassing, drafting, reviewing, and revising, the Body of Liberties was published, with copies sent to all the towns to be read aloud and voted on.

The Body was only the first of many Massachusetts codes of law. In 1660 the Body was updated and enlarged (and renamed “Laws and Liberties”), with addenda added each year from 1662-6, and again in 1668. The Laws were revised and rewritten again in 1672, and would evolve over the decades into the state law of Massachusetts.

In its own time, the Body of Liberties was daring and innovative. Daring in that it established an independent government for the colony, with laws clearly not part of English law. The Puritans broke their charter to create their laws, and this is just one example of the commitment the Puritans of the Massachusetts Bay Colony made to independence almost from the moment of their arrival. As we’ve seen elsewhere in Puritan New England on the Edge, 1637, the people of the MBC feared a royal takeover of their colony, expecting warships from England to arrive in Boston harbor at any moment. Their response was to build forts overlooking the harbor and arm them with cannon, making the decision to fight to the death to preserve their religion, their laws, and their liberty.

The Body was innovative in that it set out a relatively brief yet comprehensive set of laws that reinforce a) the rights of freemen; b) the principle that no one is above the law; c) the right to a fair day in court; and d) the need for buy-in from the people themselves, who  first helped draft and then voted to approve and accept these laws. This was proto-democracy, and it was not being practiced in any other American colony—or many other places anywhere else in the world.

Today, the Body is mostly unknown to Americans. Most Americans, if asked what they think Puritan laws were like, would come up with the most repressive, draconian, irrational suggestions imaginable. (One example: on a recent tour of sites along the Freedom Trail in Boston, an acquaintance was told by the tour guide that Puritans put people in the stocks for sneezing on a Sunday. The Body, as readers of this series will note, contains no references to sneezing.) Modern-day Americans think of Puritans as witch-crazy religious nuts whose only goal was to oppress people. But we see from our study of the Body that to say this image is unfair is an understatement.

Why the Puritans continue to get such a bad rap is fairly clear: very few people actually read their documents. They read The Scarlet Letter in high school, hear the term “city upon a hill” used to refer to smug arrogance, and learn that Anne Hutchinson was persecuted, along with Quakers, for trying to spread religious tolerance. The overall effect is a rejection of the Puritans as unpleasant and even evil people, a fleeting example of intolerance that was stamped out by later Americans who created a fair Constitution.

Those who actually read what the Puritans wrote, and know what their beliefs and ideals and goals were, may not always come away happy and approving, but they have a much more accurate understanding of these revolutionary people, whose laws, and ideas of justice, in having shaped the political consciousness of Massachusetts, played an important role on the road to American independence and the Constitution we revere today.

Advertisements

Make a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

8 Responses to “Puritan law, oligarchy, and the Body of Liberties”

RSS Feed for The Historic Present Comments RSS Feed

I have really enjoyed this series! The misrepresentations you cite seem all too typical of how history is elided and edited today. The Puritans in England itself were viewed more ambiguously, probably because they represented dissenting minority opinions there; I’m thinking of their reception in the Elizabethan and Jacobean reigns. Most of my study of them is in the context of their often vociferous opposition to the theatre (via pamphlets and preaching), but even there, it was probably a significant minority of dissenters engaged in these attacks. One of the problems with viewing Puritans today is one of anachronism, I think. There were NO religious leaders at the time, mainstream C of E, dissenters, Catholics, etc. who would not have shared the Puritan positions on standard matters of Christian morality and the modern concept of religious tolerance existed nowhere (with the possible exception of Amsterdam, and even there one had to be very careful [i.e., Spinoza]).

Like

Thanks for writing! It’s true that the Puritans suffer from their fame—they are the most well-known religious group in early America, and have gained an infamy from that status that is undeserved. They were, in the ways you cite, not different from other religious practitioners of their time, and hewed to a norm that we don’t always acknowledge.

Like

Do you have a post that expands on your comments about the Puritan’s views towards religious liberty? I heard the same comments about the Puritans recently on the “Freedom Trail” and am looking to know more about the truth.

Like

Hello–thanks for writing. Our basic post on this topic is The Puritans and Freedom of Religion, at https://thehistoricpresent.wordpress.com/2008/10/27/the-puritans-and-freedom-of-religion/

Like

Education in the liberal arts develops critical thinking skills and the ability to spot straw men and not be suckered into those debates that are not meant to further dialog but rather to end rational discourse. But three lines in a comments section on a blog will not develop critical thinking skills in these people either.LikeLike

Like

It is always good to reflect on the Body of Liberties but I think you have overlooked two important sources. John Gorham Palfrey’s “History of New England” contains what I find to be a reliable history of the Liberties in vol. II (1858) beginning on page 22. Palfrey believes that the impulse to create a Magna Carta for New England arose from the settlers and townsmen not the magistrates, who were reluctant to have their authority limited by a document in the nature of a constitution. Palfrey’s “History” is available on line. While Palfrey’s History becomes less and less objective after 1660 and becomes more a history of what came to be known as the “Codfish Aristocracy,” volumes I, II and most of volume III I find to be very, very good.

Also, the Collection of the Massachusetts Historical Society, Third Series, Vol. VIII (1843) contains the definitive history of the Body of Liberties (which were lost after the Charter of 1629 was revoked in 1690) by F.C. Grey, LL D, etc, beginning on page 191.

https://babel.hathitrust.org/cgi/pt?id=njp.32101076467503;view=1up;seq=199;size=125

Further, I think you have misread ¶ 91 of the Liberties regarding bond slavery. Paragraph 91 accurately restates the English common law on slavery where “slave” was a civil status like villain, freeman, gentleman, noble and married. Correctly understood, the only lawful common law slaves were person taken in just wars and individuals who had voluntarily sold themselves into slavery. Nevertheless, such individuals did retain rights their master was bound to respect [compare: Scott v. Sanford (1857) dealing with bond slavery in the US ca. 1860] and it is not clear that they could be freely sold from one master to another. As you note, the Liberties clearly state that all residents of the MBC retained the right to petition for redress of their grievances either to the town meeting or to the Great and General Court.

The status of slave in the English common law dates from Anglo-Saxon times when, in times of famine or want, free men did sell themselves to a master in exchange for food and shelter. It is not clear that such individuals could then be sold to another but rather it seems most likely that they became serfs bound to land or manor who could not then be sold and removed from the manor.

The second category of slave deals with captives taken in the course of a just war. This is illustrated in the way Cromwell disposed of Scottish “Engagers” taken prisoner after Preston in 1648. He sold some of them into slavery in the West Indies, which is likely how Alexander Hamilton’s ancestor arrived in Nevis, BWI. It is important to note that such slavery did not seem to result in a corruption of blood because I am not aware that the children of such slaves were themselves slaves. Also, in 1646, the MBC seized six Africans who Dutch traders were offering for sale off the docks in Boston and returned them to Africa with the a note of apology explaining that the MBC did not tolerate “man stealing,” which I take to be a synonym for kidnapping.

Finally, I think you are too hard on Anne Hutchinson. While it is clear that her extreme views on the Covenant of Grace often led to anarchy and Ranters, Anne had considerable support in the MBC amongst the Independents who were not happy with the overly dogmatic Presbyterian leanings of a bare majority of the Magistrates in the 1630s. Many of these Independents returned to England after 1642 They joined the New Model Army and tended to favored the radical democratic-republican Leveller positions at the Putney Debates and during the Commonwealth. These included Israel Stoughton, Hugh Peter, Thomas and William Rainborowe (John Winthrop’s brothers in law just before his death in 1649) and John Leverett, governor of the MBC between 1673-79.

Like

Thanks for writing, and for your helpful clarification of item 91. We’ll quarrel with your interpretation of the MBC magistrates as Presbyterian until we see some primary source confirming it; there was no Independent movement in the MBC in the 1630s, whatever positions some of the returnees may have taken once they returned to England and the very different socio-political environment there.

Like

In the MBC, Presbyterians and Independents differed only on matters of church governance or polity.

Quite technically, the established church in the MBC was “Independency” or “Congregational.” The four minister first recruited for the MBC were Thomas Hooker, John Cotton, Roger Williams and Samuel Skelton, all Independents. It is clear from ¶ 95 of the Liberties that Independent or Congregational churches were not subject not presbyterian polity. Aside from that, however, there was no real difference in theology between Presbyterians and Independents in the MBC – they were all hot Puritans. For example, Nathaniel Ward was pastor of the Ipswich church in the MBC which had an Independent polity. Upon his return to England he became pastor of a Presbyterian congregation in Shenfield, Essex. Hugh Peter, then pastor at Salem, voted to expel Anne Hutchinson but a few years later he was the favorite preacher of the radical sectaries in the New Model Army and strong supporter of Cromwell’s brand of latitudinarianism.

Throughout the 1640s, it was not clear which faction would ultimately prevail in the English civil wars; the royalists, the presbyterians or the independents. Accordingly, the magistrates in the MBC took great pains to ensure that the churches in the MBC did not separate from the CoE and lived in hopes that the Westminster Assembly of Divines would produce a confession that Presbyterians, Independents and Anglicans could endorse.

Of course all this had secular political implications because, back in England, English Presbyterians had differences with their allies, the Scottish Presbyterian Covenanters, and they both had differences with the Independents and high church Anglicans. In a nutshell, the English and Scots Presbyterians and the Anglicans, insisted upon an established church but differed on the details of theology and church government; particularly a presbytery versus an episcopacy. The Independents rejected both a presbytery and episcopacy. The Independents favored gathered churches and consistently demonstrated a high tolerance for lay or mechanic preachers – such as Anne Hutchinson. The MBC’s experience with Roger Williams and Anne Hutchinson was typical of the experience of Independent congregations in England in the 1640s; particularly in the gathered congregations that were a feature of Cromwell’s the New Model Army.

In 1646, in Gangraena, Thomas Edwards articulated the Presbyterian Parliamentarians’s position leading up to Pride’s Purge and labeled Independency the mother of heresy. David Underdown’s “Pride’s Purge: Politics in the Puritan Revolution” (1971) discusses the political differences between the Presbyterians and Independents in some detail. The same differences are easily seen in the MBC in the 1630s where strong Independents like Thomas Hooker, John Cotton, Roger Williams and John Wheelwright were either removed from the MBC or marginalized. Hooker removed his congregation to Connecticut, Williams was banished and founded Rhode Island and Wheelwright was banished to New Hampshire. Cotton was simply marginalized after 1637.

The very close election of 1637, where Henry Vane lost to John Winthrop, demonstrates that there was a strong Independent faction in the MBC, particularly in the First Church of Boston, as the magistrates felt they had to disarmed Hutchinson’s and Wheelwright’s supporters after the election. The next year, these same supporters formed the Artillery Company (The Ancient and Honorable Artillery Company) and took steps to insure that dissenters would not be disarmed in the future. After 1642, the Artillery Company acted as something of a recruit depot for the regiments of the Eastern Association and later the New Model Army. William Rainborowe and Israel Stoughton were founding members of the Artillery Company and the Company enjoyed strong support amongst the Boston merchants and the town militia companies all across the MBC. Of course, Col. Thomas Rainborowe was the highest ranking Leveller in the New Model Army.

Like


Where's The Comment Form?

Liked it here?
Why not try sites on the blogroll...

%d bloggers like this: