What the Puritans said about sexual harassment

Posted on November 27, 2017. Filed under: Colonial America, Puritans | Tags: , , , , , , |

The ongoing “revelations” (which were common knowledge but hushed up and/or tolerated and/or accepted and encouraged and celebrated) about sexism, harassment, assault, and rape in the U.S. today came to mind as we were searching in the Body of Liberties published in 1647 Laws and Liberties of the Massachusetts Bay Colony and found this item in the section on capital crimes:

15. If any man shall RAVISH any maid or single woman, committing carnal copulation with her by force, against her own will; that is above the age of ten years he shall be punished either with death, or with some other grievous punishment according to circumstances as the Judges or General court shall determine.

The Laws and Liberties were an update of the 1641 Body of Liberties, the first legal code written by English settlers in North America. It’s interesting that the Puritans added a law against rape in 1647; while we have to despair at age 10 being made the age of consent, it is heartening to see that women had the right to resist sex—they could not be forced into sex against their will. And only the man is punished, which is an improvement from our own situation in the 21st century, where women are usually punished for coming forward to attest to sexual harassment, assault, or rape, whether by losing their jobs and/or their credibility, or being blamed for “asking for it,” or by seeing the male perpetrator walk off with a slap on the wrist at best.

The caveat that it is only a single or unmarried woman who cannot be raped is explained by the Puritan laws against adultery. A married woman was in a different legal category, which is addressed in #9 below from the 1647 Laws:

7. If any man or woman shall LIE WITH ANY BEAST, or bruit creature, by carnall copulation; they shall surely be put to death: and the beast shall be slain, & buried, and not eaten. Lev. 20. 15. 16.

8. If any man LIETH WITH A MAN-KIND as he lieth with a woman, both of them have committed abomination, they both shall surely be put to death: unless the one partie was forced (or be under fourteen years of age in which case he shall be severely punished) Levit. 20. 13.

9. If any person commit ADULTERY with a married or espoused wife; the Adulterer & Adulteresse shall surely be put to death. Lev. 20. 19. & 18. 20 Deu. 22. 23. 27.

These are the original three laws regarding sexual activity from the 1641 Body of Liberties. #7 is unchanged, but #8 has an update: originally, it ended with both men being put to death. The clause on being forced against one’s will into a homosexual act, or being underage, was added in 1647. Why is the age of consent for homosexuality so much higher (14) than heterosexuality (10)? It’s not clear, but it might be that heterosexuality,  being considered “normal,” was perceived to be natural and even attractive to people at a younger age than “abnormal” homosexuality, so a child of 10 might “consent” to a heterosexual sex act. Again, disturbing as this 10 year-old age of consent is (or even a 14 year-old threshold), it is a step forward to see an early American society codifying the idea that a) consent is necessary for sex, and b) homosexuality is not immediately punishable by death for both parties. (And in fact, Roger Thompson’s Sex in Middlesex: Popular Mores in a Massachusetts County, 1649-1699 shows on pp 72-75  that, despite known homosexual incidents and even relationships, no man was ever executed for homosexuality in Puritan Massachusetts.)

#9 addresses adultery, circling back to the “ravishment” law and its application only to single women. This is unchanged from 1641. “Adultery” had a specific meaning to the Puritans—it was a synonym for “consensual.” “Ravishment” meant non-consensual, which meant only one party, the ravisher, was guilty and should be punished. But “adultery” meant two guilty parties—two equally guilty parties who must face equally harsh punishment. Notice that the man’s marital status does not matter; it is the woman’s marital status that matters, because she is the one who can get pregnant. A married woman who commits adultery and becomes pregnant with a child outside of marriage creates legal mayhem when it comes to her husband’s will. Even if the husband never knew the child was not his, it was the principle of the thing: a man should not leave his estate to a child that is not biologically his (unless of course he has acknowledged step-children, or adopted children, or legal heirs “not of his body,” like nephews or cousins, all of which were common). The point was that a married man should leave his estate to the child of his choosing, not to his wife’s bastard. And so a married woman consenting to sex with a man was adultery and was punishable by death.

What about a married woman being forced into sex, i.e., raped? This is not addressed in the 1647 Laws. Again, the idea was that a married woman was a sexually experienced adult who should be well able to a) stay out of dangerous sexual situations, and b) fight off the preliminary advances of a man, and then c) alert her husband and the authorities so the offender could be punished before he did anything more than preliminary. It was very unlikely, the thinking went, that a man would rape a woman immediately. It was far more likely that he had many flirtatious and then sexual contacts with the woman (kissing, etc.) that she did not turn down, and one thing naturally led to another. A married woman had to be complicit in sex outside marriage, according to this thinking, and therefore she was as guilty as the man. And those cases of adultery that went to court proved this to be true, insofar as women would recount many sexually charged conversations or physical encounters over time that led to sex.

Our own evolving view that a woman may encourage as much sexually charged interaction as she likes but draw the line at actual sex and have that decision honored by the man was non-existent in the 17th century, and is still regularly challenged in court today. When we look back at Puritan sexual laws, we see the beginnings of a more just system. We are still working to provide real justice in the realm of sexual crime today.

 

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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.

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The rights of minority populations in Puritan Massachusetts

Posted on August 29, 2012. Filed under: 17th century America, Puritans, The Founders, Truth v. Myth | Tags: , , , |

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.

Next time: capital offenses

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

Posted on August 27, 2012. Filed under: 17th century America, Puritans, The Founders | Tags: , , |

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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Puritan justice—a fair day in court

Posted on August 20, 2012. Filed under: 17th century America, Puritans, Truth v. Myth | Tags: , , |

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.

Next time: more liberties of the freemen

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Were Puritan laws harsh? A look at individual rights

Posted on August 15, 2012. Filed under: 17th century America, American history, Puritans, Truth v. Myth | Tags: , , , , , |

Hello and welcome to part 2 of our series on Puritan law—specifically  the 1641 Body of Liberties created by the Massachusetts Bay Colony. Last time we looked at the proto-democratic process by which these laws were created; here we focus on the first section of this body of 100 laws, which covers individual rights. We won’t look at each of the 17 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.

We should note here that “man” is used pretty consistently, except in the short section 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 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.

(All spelling has been modernized in the following excerpts.)

1. “No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor any way indemnified under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or in the case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.”

—This is the heart of the Body of Liberties; as discussed in part 1 of this series, the whole purpose of creating the Body was to have a set of laws to go by. No one is going to be sentenced to anything unless he has broken an actual law that has been made publicly known. Judgments will not be made according to some magistrate’s whim or personal feelings. People will know what the law is, and what the penalties are for breaking laws. The last part, regarding “the defect of a law in any particular case”, means that if there is some problem for which no law has been written as yet, the magistrates will turn to the Bible for guidance; however, if someone does something that seems to call for capital punishment in the Bible, the General Court will step in and “that word [of God] will be judged”. Here we see that when push comes to shove, human reason ranks above the word of God for the Puritans.

2. “Every person within this Jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation [the colony], which we constitute and execute one towards another without particularity or delay.”

—One law for all, no one above the law, and an early expression of the idea that justice delayed is justice deferred.

…12. “Every man whether inhabitant or foreigner, free or not free, shall have liberty to come to any public court, council, or town meeting, and either by speech or writing to move any lawful, seasonable, and material question, or to present any necessary motion, complaint, petition, bill, or information, whereof that meeting has proper cognizance, so it be done in convenient time, due order, and respective manner.”

—The law is open to all, no matter their status, and all men have the right to attend public meetings and participate in them, so long as their participation is respectful and the ideas or complaints they have are relevant to the body they’re addressing—that is, if you are in town meeting, you bring up town business and not colony-level business, and vice-versa.

14. “Any conveyance or alienation of land or other estate whatsoever, made by any woman that is married, any child under age, idiot or distracted person, shall be good if it be passed and ratified by the consent of a General Court.”

—While it is distressing to see women, children, and “idiots” lumped together as one category, this law actually states that it is not only men who may buy and sell land or goods (“estate”), and that is crucially important in a colony where land is the chief source of wealth. A woman may do what she sees fit with land she is left by her husband. (Women can also make their own wills, as guaranteed in liberty 11.) Underage children may make decisions about land left to them. The clause on “idiot or distracted persons” likely refers to people who made out wills when they were of sound mind but did not die of sound mind; those wills and the decisions in them will be upheld. All this is contingent on the General Court looking the decisions over and confirming them, but looking through the records of the colony shows that in most cases decisions made by this group were upheld.

We skipped laws in this section that prevent people from being fined for not responding to a court summons if they are incapable of getting to court, outlaw mandatory military service, ensure that no one can be forced to work on a government project, ban estate taxes, keep the government from seizing goods, and give people the right to move out of the colony whenever they like. Basically section 1 limits the power of the colonial government and secures individual liberties, that among these are life, liberty, and the pursuit of happiness. Yes, that line comes from a later document and another time, but we see here in section 1 of the Body of Liberties of Massachusetts early forerunners of those guarantees in our Declaration of Independence.

In section 2, we’ll look at Rights, Rules, and Liberties concerning Judicial Proceedings.

Next time: the longest section

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