The Massachusetts Body of Liberties

December 1641 | Nathaniel Ward and the General Court of Massachusetts | Boston, Massachusetts Bay

This is an excerpt. What was left out, and why, is set out at the foot of the page.

Headnote, written for Huzzah

Massachusetts wrote down a hundred and ten provisions in December 1641, mostly drafted by Nathaniel Ward, a minister who had trained as a lawyer in England. Ninety eight are numbered as liberties and twelve are capital laws. It is the earliest code of its kind in English America, and it is far better than its reputation suggests in some places and far worse in others.

The protections are real. No man is to be imprisoned before sentence if he can give bail. No man is to be sentenced twice for one offence, or put to death on fewer than two witnesses. A married woman is free from beating by her husband. Liberty 26 is often called a right to counsel, and it is narrower than that: a man unfit to plead may get anyone the court does not object to, provided he pays him nothing. Liberty 46 forbids punishments that are inhumane, barbarous or cruel, a hundred and fifty years before the Eighth Amendment, and liberty 45 permits torture anyway, after conviction, to make a man name his confederates.

And liberty 91 legalises slavery. It says there shall never be bond slavery among us, and then admits lawful captives taken in just wars and strangers sold to us. Massachusetts wrote its protections and its slave law into the same document, in the same hand, in the same month. It is the contradiction the Virginia Declaration carries too, a hundred and thirty five years earlier and already fully formed.

The capital law printed here is the tenth, taken from Exodus 21:16. Stealing a man is a hanging offence. Samuel Sewall would quote that verse back at Massachusetts in 1700, in this same library, and lose the argument.

The document

The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion without impeachment and Infringement hath ever bene and ever will be the tranquillitie and Stabilitie of Churches and Commonwealths. And the deniall or deprivall thereof, the disturbance if not the ruine of both.

We hould it therefore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent.

Wee doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties and priveledges concerneing our Churches, and Civill State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.

[Selected liberties follow. See the note at the foot of this page.]

1. No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any parteculer case by the word of God. And in Capitall cases, or in cases concerning dismembring or banishment according to that word to be judged by the Generall Court.

2. Every person within this Jurisdiction, whether Inhabitant or forreiner shall enjoy the same justice and law, that is generall for the plantation, which we constitute and execute one towards another without partialitie or delay.

18. No mans person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.

26. Every man that findeth himselfe unfit to plead his owne cause in any Court shall have Libertie to imploy any man against whom the Court doth not except, to helpe him, Provided he give him noe fee or reward for his paines. This shall not exempt the partie him selfe from Answering such Questions in person as the Court shall thinke meete to demand of him.

29. In all actions at law it shall be the libertie of the plantife and defendant by mutual consent to choose whether they will be tryed by the Bensh or by a Jurie, unlesse it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in Criminall cases.

42. No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.

43. No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping, unles his crime be very shamefull, and his course of life vitious and profligate.

45. No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case, where he is first fullie convicted by cleare and suffitient evidence to be guilty, After which if the cause be of that nature, That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.

46. For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruel.

47. No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.

80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt. If there be any just cause of correction complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.

91. There shall never be any bond slaverie, villinage or Captivitie amongst us unles it be lawfull Captives taken in just warres, and such strangers as willingly selle themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie.

94. Capitall Laws.

10. (Ex. 21. 16.) If any man stealeth a man or mankinde, he shall surely be put to death.

98. Lastly because our dutie and desire is to do nothing suddainlie which fundamentally concerne us, we decree that these rites and liberties, shall be Audably read and deliberately weighed at every Generall Court that shall be held, within three yeares next insueing, And such of them as shall not be altered or repealed they shall stand so ratified, That no man shall infringe them without due punishment.

And if any Generall Court within these next thre yeares shall faile or forget to reade and consider them as abovesaid. The Governor and Deputy Governor for the time being, and every Assistant present at such Courts, shall forfeite 20sh. a man, and everie Deputie 10sh. a man for each neglect, which shall be paid out of their proper estate, and not by the Country or the Townes which choose them, and whensoever there shall arise any question in any Court amonge the Assistants and Associates thereof about the explanation of these Rites and liberties, The Generall Court onely shall have power to interprett them.

What was left out

The full document runs to ninety eight numbered liberties, twelve capital laws and a declaration of church liberties. Printed here are the preamble, twelve of the liberties, one of the capital laws, and the closing provision that required the whole code to be read aloud at every General Court for three years. Everything else is omitted for length. The omission is not neutral, because a selection decides what a reader sees, so the selection was made to include the protections the code is praised for and the provisions it is not, side by side. The complete text is linked in the source note below.

Source and provenance

Text from Old South Leaflets, general series, volume 7, numbers 261 to 280, Directors of the Old South Work, Boston, read from the scan at https://archive.org/details/oldsouthleaflets0007unse and checked line by line against the transcription in the Hanover Historical Texts Collection at https://history.hanover.edu/texts/masslib.html, which prints the same leaflet. The two agree throughout. The manuscript was found in the Boston Athenaeum by Francis C. Gray and first printed in Collections of the Massachusetts Historical Society, third series, volume 8, 1843. The spelling and the numbering are the source’s own. The General Court adopted the code in December 1641 and the day is not given in the text, so the library shows the month and sorts on the first of it. The numerals are the source’s own. They are set in bold and run into the first line here, which is a change of layout and not of text.

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