Were Puritan laws harsh? A look at individual rights

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

Puritan oligarchy? A look at the 1641 Body of Liberties

Welcome to a short series on the first (but far from the last) codification of laws in the Puritan Massachusetts Bay Colony, the 1641 Body of Liberties. We’re going to look through this set of 100 laws to get a better picture of what government was really like in Puritan Massachusetts, and to counter the standard mantra that the colony was an oligarchy, with no separation of church and state. We will also disappoint most readers by showing that there is only one mention of witchcraft in the whole Body, and it is mentioned only in passing.

An oligarchy, of course, is a system of government that keeps power in the hands of a tiny minority of the people, generally the wealthiest, who basically oppress everyone else to keep themselves wealthy and in power. The last thing an oligarch wants is democracy, or the common voice helping to shape the law.

As we shall see, the Massachusetts Bay Colony was not an oligarchy at all, but a proto-democracy in which the common people not only helped shape the law, but were actually recruited by the magistrates in Boston to draft the first body of laws. Let’s look at the process by which the Body was created:

The MBC had as its governing document its charter of 1629, which stated that there should be a governor, deputy governor, and 18 assistants (magistrates). The assistants were to be chosen from the freemen of the colony. (One of the first acts of John Winthrop was to expand the definition of freeman to include basically all adult males in the colony.) The assistants would elect the governor and deputy governor from amongst themselves. The charter also stipulated that the assistants hold a court every month (to hear cases and complaints of the people) and that a General Court be held four times a year (where the freemen from each town drafted laws).

But the General Court did not meet four times a year, and the Assistants’ Court was drafting laws without the oversight of the freemen’s deputies, so in May 1634 at a meeting of the GC the deputies asked to see the patent. They demanded that they be allowed their proper role of drafting laws, but Winthrop said the number of freemen was too large to allow meeting—the Great Migration was in full swing, and the number would indeed have been pushing 1,000. Winthrop suggested that the freemen should elect deputies to attend the GC; each town could send deputies to Boston. Winthrop pictured these deputies reviewing laws drafted by the Assistants’ Court (like the Supreme Court reviews laws made by Congress).

The freemen, however, voted on May 14 to send three deputies from each of the eight towns then existing to the General Court to vote for the assistants and to draft laws. So now the freemen of Massachusetts were voting for their representatives and drafting their own laws. This itself is fairly astonishing to the student of history, for one would be hard-pressed to find an example of this type of proto-democracy anywhere else in the world in 1634.

But the people went further, and this is where the Body of Liberties comes in. The General Court made laws on an ad-hoc basis, hearing each individual case and deciding it. But many in the Court and outside it were worried that this could lead to injustice—to deputies “proceeding according to their discretions”; that is, letting their personal opinions sway their decisions. The colony needed an objective code of law that would not change from case to case. In May 1635 the deputies at the General Court voted to draft that code of law.

It wasn’t simple, though. Who should draft it? The deputies, with their subjective opinions? The Assistants, who could possibly establish an oligarchy by writing laws that gave them more power? While these questions were ironed out, the Court voted in 1636 that any law drafted had to have the support of both the Assistants’ Court and the General Court. The General Court also voted that three clergymen—Cotton, Peters, and Shepherd—submit drafts of laws. Why clergymen? In part, because they were seen to be objective; no minister was allowed to hold a government position, and so had nothing to gain by giving the government certain powers. In part, the colony was a religious society and valued the opinion of its ministers. That said, none of the three drafts was accepted, not even John Cotton’s; as the most respectd and celebrated minister in the colony, perhaps in all New England, he might have seemed a shoo-in, but he was not.

In March 1637, the GC was at an impasse, and so it drafted a letter to the freemen of the eight towns asking them to assemble in their towns and write up a code of laws they felt was just and send it to Boston by June 5. The governor and Assistants would then review them all and create “a compendious abridgement of the same” to give to the GC, which would have final review and approve or reject it. Again, this is a pretty surprising exercise of democracy for the time, but we find in November 1639 there’s still no progress. What caused the delay? Winthrop details two main reasons in his diary, a compendious abridgement of which follows here:

1. The people felt that rather than write laws to use in the future, laws should develop naturally over time and custom, as they had done in England. England never had a written constitution, of course, and the English emigrants in Massachusetts believed their laws should develop the same way.

2. Following on from the lack of a written English body of laws, many Puritans felt they were breaking a key tenet of their charter if they wrote a body of laws. The charter said the colonists could govern themselves as necessary, but should make no laws “repugnant” to the laws of England. Even writing out a body of laws was, in a way, repugnant to English law because English law was not codified. Aside from that, the risk of codifying something that wouldn’t jibe with English law was just too great.

So while the people of the colony wanted an objective body of laws, they were worried about just creating one on the spot, and worried about the consequences of codifying laws that did not exist in England. In the end, the need for a code overcame this resistance, first for the govenrment and then for the people. In 1639, two different codes were drafted by two ministers, and each was sent to the towns to be read to the people, who could revise as they saw fit. Knowing that there would be a code of law, consequences and custom be damned, led the people to at last act. They ended up approving a draft by Rev. Ward. This was revised several times by the governor and the courts, and at last on December 10, 1641—six years after the initial request to draft a code of laws—the Body of Liberties was copied and sent to all the towns, “and voted to stand in force.”

It’s an amazing background for a body of laws in the 17th century, and just this lead-up to the Body puts the lie to claims of oligarchy or dictatorship, and poor citizens being oppressed by laws they did not support, which is the usual picture of Puritan Massachusetts. We’ll look at a few of the 100 laws in the Body over the next few posts. The original Body was given a three-year trial, after which it could be either yanked or “established to be perpetual.” It would be established, and used as the basis for later bodies of law for the colony.

Next time: Life, Liberty, and the Pursuit of Happiness