American Historical Documents, 10001904. The Harvard Classics. 190914.
The Massachusetts Body of Liberties
[The Massachusetts Body of Liberties, the first code of laws established in New England, was compiled by Nathaniel Ward (c. 15781652) a leading English Puritan minister, who had been trained as a lawyer. He came to the colony in 1634, and was for a time pastor at Ipswich. The Liberties were established by the Massachusetts General Court in December, 1641.]
The Liberties of the Massachusets Collonie in New England, 1641
THE FREE fruition of such liberties, Immunities, and priveledges as humanity, Civility, and Christianity call for as due to every man in his place and proportion, without impeachment, and infringement, hath ever been and ever will be the tranquillity and Stability of Churches and Commonwealths. And the denial or deprival thereof, the disturbance if not the ruine of both.
We hold it therefore our duty and safety whilst we are about the further establishing of this Government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, And to ratify them with our solemn consent.
We do therefore this day religiously and unanimously decree and confirm these following Rites, liberties, and priveledges concerning our Churches, and Civil State to be respectively, impartially, and inviolably enjoyed and observed throughout our Jurisdiction for ever.
1. No mans life shall be taken away, no mans honour or good name shall be stained, no mans person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no mans goods or estate shall be taken away from him, nor any way indamaged under colour of law or Countenance of Authority, unless it be by vertue or equity of some express law of the Country warranting the same, established by a general Court and sufficiently published, or in 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.
2. Every person within this Jurisdiction, whether Inhabitant or foreigner, shall enjoy the same justice and law, that is general for the plantation, which we constitute and execute one towards another without partiality or delay.
4. No man shall be punished for not appearing at or before any Civil Assembly, Court, Counsel, Magistrate, or Officer, nor for the omission of any office or service, if he shall be necessarily hindred by any apparent Act or providence of God, which he could neither foresee nor avoid. Provided that this law shall not prejudice any person of his just cost or damage, in any civil action.
6. No man shall be pressed in person to any office, work, wares, or other public service, that is necessarily and sufficiently exempted by any natural or personal impediment, as by want of years, greatness of age, defect of mind, failing of senses, or impotency of Limbs.
7. No man shall be compelled to go out of the limits of this plantation upon any offensive wars which this Commonwealth or any of our friends or confederates shall voluntarily undertake. But only upon such vindictive and defensive wares in our own behalf or the behalf or our friends and confederates as shall be enterprized by the Counsel and consent of a Court general, of by authority derived from the same.
8. No mans Cattle or goods of what kind soever shall be pressed or taken for any public use or service, unless it be by warrant grounded upon some act of the general Court, nor without such reasonable prices and hire as the ordinary rates of the Country do afford. And if his Cattle or goods shall perish or suffer damage in such service, the owner shall be sufficiently recompensed.
10. All our lands and heritages shall be free from all fines and licenses upon Alienations, and from all hariotts, wardships, Liveries, Primer-seisins, year day and wast, Escheates, and forfeitures, upon the deaths of parents or Ancestors, be they natural, casual or Judicial.
11. All persons which are of the age of 21 years, and of right understanding and memories, whether excommunicate of condemned shall have full power and liberty to make there wills and testaments, and other lawful alienations of their lands and estates.
12. Every man whether Inhabitant or foreigner, free or not free shall have liberty to come to any public Court, Counsel, 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 hath proper cognizance, so it be done in convenient time, due order, and respective manner.
14. Any Conveyance or Alienation of land or other estate what so ever, 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.
15. All Covenous or fraudulent Alienations or Conveyances of lands, tenements, or any hereditaments, shall be of no validity to defeat any man from due debts or legacies, or from any just title, claim or possession, of that which is so fraudulently conveyed.
16. Every Inhabitant that is an house holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so fare as the sea ebbes and flowes within the precincts of the town where they dwell, unless the free men of the same Town or the General Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others property without there leave.
17. Every man of or within this Jurisdiction shall have free liberty, notwithstanding any Civil power to remove both himself, and his family at their pleasure out of the same, provided there be no legal impediment to the contrary.
Rites, Rules, and Liberties concerning Judiciall proceedings
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 security, bail or mainprise, for his appearance, and good behaviour in the mean time, unless it be in Crimes Capital, and Contempts in open Court, and in such cases where some express act of Court doth allow it.
19. If in a general Court any miscarriage shall be amongst the Assistants when they are by themselves that may deserve an Admonition or fine under 20 sh. it shall be examined and sentenced amongst themselves, If amongst the Deputies when they are by themselves, it shall be examined and sentenced amongst themselves, If it be when the whole Court is together, it shall be judged by the whole Court, and not severally as before.
20. If any which are to sit as Judges in any other Court shall demean themselves offensively in the Court, The rest of the Judges present shall have power to censure him for it, if the cause be of a high nature it shall be presented to and censured at the next superior Court.
21. In all cases where the first summons are not served six days before the Court, and the cause briefly specified in the warrant, where appearance is to be made by the party summoned, it shall be at his liberty whether he will appear or no, except all cases that are to be handled in Courts suddenly called, upon extraordinary occasions, In all cases where there appears present and urgent cause any assistant or officer appointed shall have power to make our attachments for the first summons.
22. No man in any suit or action against an other shall falsely pretend great debts or damages to vex his adversary, if it shall appear any doth so, The Court shall have power to set a reasonable fine on his head.
23. No man shall be adjudged to pay for detaining any debt from any Creditor above eight pounds in the hundred for one year, And not above that rate proportionable for all somes what so ever, neither shall this be a colour or countenance to allow any usury amongst us contrary to the law of god.
24. In all Trespasses or damages done to any man or men, If it can be proved to be done by the mere default of him or them to whom the trespass is done, It shall be judged no trespass, nor any damage given for it.
25. No Summons pleading Judgement, or any kind of proceeding in Court or course of Justice shall be abated, arrested or reversed upon any kind of circumstantial errors or mistakes, If the person and cause be rightly understood and intended by the Court.
26. Every man that findeth himself unfit to plead his own cause in any Court shall have Liberty to employ any man against whom the Court doth not except, to help him, Provided he give him no fee or reward for his paines. This shall not exempt the party him self from Answering such Questions in person as the Court shall think meet to demand of him.
27. If any plaintiff shall give into any Court a declaration of his cause in writing, The defendant shall also have liberty and time to give in his answer in writing, And so in all further proceedings between party and party, So it doth not further hinder the dispatch of Justice then the Court shall be willing unto.
28. The plaintiff in All Actions brought in any Court shall have liberty to withdraw his Action, or to be nonsuited before the Jury hath given in their verdict, in which case he shall always pay full cost and charges to the defendant, and may afterwards renew his suite at an other Court if he please.
29. In all actions at law it shall be the liberty of the plaintiff and defendant by mutual consent to choose whether they will be tried by the Bensh or by a Jury, unless it be where the law upon just reason hath otherwise determined. The like liberty shall be granted to all persons in Criminal cases.
30. It shall be in the liberty both of plaintiff and defendant, and likewise every delinquent (to be judged by a Jury) to challenge any of the Jurors. 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, and tales de cercumstantibus impaneled in their room.
31. In all cases where evidences is so obscure or defective that the Jury cannot clearly and safely give a positive verdict, whether it be a grand or petit Jury, It shall have liberty to give a non Liquit, or a special verdict, in which last, that is in a special verdict, the Judgement of the cause shall be left to the Court, And all Jurors shall have liberty in matters of fact if they cannot find the main issue, yet to find and present in their verdict so much as they can, If the Bench and Jurors shall so suffer at any time about their verdict that either of them cannot proceed with peace of conscience the case shall be referred to the General Court, who shall take the question from both and determine it.
32. Every man shall have liberty to replevy his Cattell or goods impounded, distrained, seised, or extended, unless it be upon execution after Judgement, and in payment of fines. Provided he puts in good security to prosecute his replevin, And to satisfy such demands as his Adversary shall recover against him in Law.
33. No mans person shall be arrested, or imprisoned upon execution or judgment for any debt or fine, If the law can find competent means of satisfaction otherwise from his estate, and if not his person may be arrested and imprisoned where he shall be kept at his own charge, not the plaintiffs till satisfaction be made, unless the Court that had cognizance of the cause or some superior Court shall otherwise provide.
34. If any man shall be proved and Judged a common Barrator vexing others with unjust frequent and endless suites, It shall be in the power of Courts both to deny him the benefit of the law, and to punish him for his Barratry.
35. No mans corne nor hay that is in the field or upon the Cart, nor his garden stuff, nor any thing subject to present decay, shall be taken in any distress, unless he that takes it doth presently bestow it where it may not be imbeciled nor suffer spoil or decay, or give security to satisfy the worth thereof if it come to any harm.
36. It shall be in the liberty of every man cast condemned or sentenced in any cause in any Inferior Court, to make their appeal to the Court of Assistants, provided they tender their appeal and put in security to prosecute it, before the Court be ended wherein they were condemned, And within six days next ensuing put in good security before some Assistant to satisfy what his Adversarie shall recover against him; And if the cause be of a Criminal nature for his good behavior, and appearance, And every man shall have liberty to complain to the General Court of any Injustice done him in any Court of Assistants or other.
37. In all cases where it appears to the Court that the plaintiff hath willingly and writingly done wrong to the defendant in commencing and prosecuting an action or complaint against him, They shall have power to impose upon him a proportionable fine to the use of the defendant or accused person, for his false complaint or clamor.
38. Every man shall have liberty to Record in the public Roles of any Court any Testimony given upon oath in the same Court, or before two Assistants, or any deed or evidence legally confirmed there to remain in perpetuam rei memoriam, that is for perpetual memorial or evidence upon occasion.
41. Every man that is to Answer for any criminal cause, whether he be in prison or under bayle, his cause shall be heard and determined at the next Court that hath proper Cognizance thereof, And may be done without prejudice of Justice.
43. No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equal to a gentleman be punished with whipping, unless his crime be very shameful, and his course of life vetoes and profligate.
44. No man condemned to die shall be put to death within power days next after his condemnation, unless the Court see special cause to the contrary, or in case of martial law, nor shall the body of any man so put to death be unburied 12 howers unless it be in case of Anatomy.
45. No man shall be forced by Torture to confess any Crime against himself nor any other unless it be in some Capital case, where he is first fully convicted by clear and sufficient 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.
48. Every Inhabitant of the Country shall have free liberty to search and view any Roles, Records, or Registers of any Court or office except the Council, And to have a transcript or exemplification thereof written examined, and signed by the hand of the officer of the office paying the appointed fees therefore.
52. Children, Idiots, Distracted persons, and all that are strangers, or new comers to our plantation, shall have such allowances and dispensations in any cause whether Criminal or other as religion and reason require.
54. Whensoever any thing is to be put to vote, any sentence to be pronounced, or any other matter to be proposed, or read in any Court of Assembly, If the president or moderator thereof shall refuse to perform it, the Major part of the members of that Court or Assembly shall have power to appoint any other meet man of them to do it, And if there be just cause to punish him that should and would not.
55. In all suites or Actions in any Court, the plaintiff shall have liberty to make all the titles and claims to that he sues for he can. And the Defendant shall have liberty to plead all the pleas he can in answer to them, and the Court shall judge according to the entire evidence of all.
56. If any man shall behave himself offensively at any Town meeting, the rest of the freemen then present, shall have power to sentence him for his offence. So be it the mulct or penalty exceed not twenty shillings.
57. Whensoever any person shall come to any very sudden untimely and unnatural death, Some assistant, or the Constables of that Town shall forthwith summon a Jury of twelve free men to inquire of the cause and manner of their death, and shall present a true verdict thereof to some near Assistant, or the next Court to be held for that Town upon their oath.
61. No Magistrate, Juror, Officer, or other man shall be bound to inform present or reveal any private crime or offence, wherein there is no peril or danger to this plantation or any member thereof, when any necessary tie of conscience binds him to secrecy grounded upon the word of god, unless it be in case of testimony lawfully required.
62. Any Shire or Town shall have liberty to choose their Deputies whom and where they please for the General Court. So be it they be free men, and have taken there oath of fealty, and Inhabiting in this Jurisdiction.
63. No Governor, Deputy Governor, Assistant, Associate, or grand Jury man at any Court, nor any Deputy for the General Court, shall at any time bear his own charges at any Court, but their necessary expenses shall be defrayed either by the Town or Shire on whose service they are, or by the Country in general.
64. Every Action between party and party, and proceedings against delinquents in Criminal causes shall be briefly and distinctly entered on the Roles of every Court by the Recorder thereof. That such actions be not afterwards brought again to the vexation of any man.
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 a Criminal, but only of a prudential nature, And that their penalties exceed not 20 sh. 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 shall have power to levy the appointed penalties by distress.
67. It is 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 them 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, General of our wares. And our Admiral at Sea, and such as are or hereafter may be of the like general nature.
68. It is the liberty of the freemen to choose such deputies for the General Court out of themselves, either in their own Town or elsewhere as they judge fittest. And because we cannot foresee what variety and weight of occasions may fall into future consideration, And what counsels we may stand in need of, we decree. That the Deputies (to attend the General Court in the behalf of the Country) shall not any time be stated or enacted, but from Court to Court, or at the most but for one year, that the Country may have an Annual liberty to do in that case what is most behooffull for the best welfare thereof.
70. All Freemen called to give any advise, vote, verdict, or sentence in any Court, Counsel, or Civil Assembly, shall have full freedom to do it according to their true judgements and Consciences, So it be done orderly and inoffensively for the manner.
71. The Governor shall have a casting voice whensoever an Equi vote shall fall out in the Court of Assistants, or general assembly, So shall the president or moderator have in all Civil Courts or Assemblies.
72. The Governor and Deputy Governor Jointly consenting or any three Assistants concurring in consent shall have power out of Court to reprieve a condemned malefactor, till the next quarter or general Court. The general Court only shall have power to pardon a condemned malefactor.
73. The General Court hath liberty and Authority to send out any member of this Commonwealth of what quality, condition or office whatsoever into foreign parts about any public message or Negotiation. Provided the party sent be acquainted with the affair he goeth about, and be willing to undertake the service.
74. The freemen of every Town or Township, shall have full power to choose yearly or for less time out of themselves a convenient number of fit men to order the planting or prudential occasions of that Town, according to Instructions given them in writing, Provided nothing be done by them contrary to the public laws and orders of the Country, provided also the number of such select persons be not above nine.
75. It is and shall be the liberty of any member or members of any Court Council or Civil Assembly in cases of making or executing any order or law, that properly concern religion, or any cause capital, or wares, or Subscription to any public Articles or Remonstrance, in case they cannot in Judgement and conscience consent to that way the Major vote or suffrage goes, to make their contra Remonstrance or protestation in speech or writing, and upon request to have their dissent recorded in the Roles of that Court. So it be done Christianly and respectively for the manner. And their dissent only be entered without the reasons thereof, for the avoiding of tediousness.
76. Whensoever any Jury of trials or Jurors are not clear in their Judgments or consciences concerning any cause wherein they are to give their verdict, They shall have liberty in open Court to advise with any man they think fit to resolve or direct them, before they give in their verdict.
77. In all cases wherein any freeman is to give his vote, be it in point of Election, making constitutions and orders or passing sentence in any case of Judicature or the like, if he cannot see reason to give it positively one way or an other, he shall have liberty to be silent, and not pressed to a determined vote.
78. The General or public Treasure or any part thereof shall never be expended but by the appointment of a General Court, nor any Shire Treasure, but by appointment of the freemen thereof, nor any Town Treasury but by the freemen of that Township.
80. Every married woman shall be free from bodily correction or stripes by her husband, unless it be in his own defence 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.
83. If any parents shall wilfully and unreasonably deny any child timely or convenient marriage, or shall exercise any unnatural severity towards them, such children shall have free liberty to complain to Authority for redress.
84. No Orphan during their minority which was not committed to tuition or service by the parents in their life time, 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.
85. If any servants shall flee from the Tyranny and cruelty of their masters to the house of any freeman of the same Town, they shall be there protected and sustained till 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.
86. No servant shall be put of for above a year to any other neither in the life time of their master nor after their death by their Executors or Administrators unless it be by consent of Authority assembled in some Court or two Assistants.
87. If any man smite out the eye or tooth of his manservant, or maid servants otherwise, mime or much disfigure him, unless it be by mere casualty, he shall let them go free from his service. And shall have such further recompense as the Court shall allow him.
88. Servants that have served diligently and faithfully to the benefit of their masters seven years, shall not be sent away empty. And if any have been unfaithful, negligent or unprofitable in their service, notwithstanding the good usage of their masters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authority.
89. If any people of other Nations professing the true Christian Religion shall flee to us from the Tyranny or oppression of their persecutors, or from famine, wares, or the like necessary and compulsory cause, They shall be entertained and succored amongst us, according to that power and prudence, god shall give us.
90. If any ships or other vessels, be if friend or enemy, shall suffer shipwreck upon our Coast, there shall be no violence or wrong offered to their persons or goods. But their persons shall be harbored, and relieved, and their goods preserved in safety till Authority may be certified thereof, and shall take further order therein.
91. There shall never be any bond slavery, villenage or Captivity amongst us unless it be lawful Captives taken in just wares, 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 doeth morally require. This exempts none from servitude who shall be Judged thereto by Authority.
93. If any man shall have occasion to lead or drive Chattel from place to place that is far of, so that they be weary, or hungry, or fall sick, or lamb, It shall be lawful to rest or refresh them, for competent time, in any open place that is not Corne, meadow, or enclosed for some peculiar use.
If any person shall Blaspheme the name of god, the father, Son or Holy Ghost, with direct, express, presumptuous or high handed blasphemy, or shall curse god in the like manner, he shall be put to death.3
If any person commit any willful murder, which is manslaughter, committed upon premeditated malice, hatred, or Cruelty, not in a mans necessary and just defence, nor by mere casualty against his will, he shall be put to death.4
If any man shall conspire and attempt any invasion, insurrection, or public rebellion against our commonwealth, or shall endeavor to surprise any Town or Towns, fort or forts therein, or shall treacherously and perfidiously attempt the alteration and subversion of our frame of polity or Government fundamentally, he shall be put to death.
95. A Declaration of the Liberties the Lord Jesus hath given to the Churches
All the people of god within this Jurisdiction who are not in a church way, and be orthodox in Judgement, 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.
Every Church hath free liberty of Admission, Recommendation, Dismission, and Expulsion, or deposal of their officers, and members, upon due cause, with free exercise of the Discipline and Censures of Christ according to the rules of his world.
The Elders of Churches have free liberty to meet monthly, Quarterly, or otherwise, in convenient numbers and places, for conferences, and consultations about Christian and Church questions and occasions.
Every Church hath liberty to deal with any magistrate, Deputy of Court or other officer what so ever that is a member in a church way in case of apparent and just offence given in their places, so it be done with due observance and respect.
For the preventing and removing of error and offence that may grow and spread in any of the Churches in this Jurisdiction, And for the preserving of truth and peace in the several churches within themselves, and for the maintenance and exercise of brotherly communion, amongst all the churches in the Country, It is allowed and ratified, by the Authority of this General Court as a lawful liberty of the Churches of Christ. That once in every month of the year (when the season will bear it) It shall be lawful for the ministers and Elders, of the Churches near adjoining together, with any other of the brethren with the consent of the churches to assemble by course in each several Church one after an other. To the intent after the preaching of the word by such a minister as shall be requested thereto by the Elders of the church where the Assembly is held, The rest of the day may be spent in public Christian Conference about the discussing and resolving of any such doubts and cases of conscience concerning matter of doctrine or worship or government of the church as shall be propounded by any of the Brethren of that church, will leave also to any other Brother to propound his objections or answers for further satisfaction according to the word of god. Provided that the whole action be guided and moderated by the Elders of the Church where the Assembly is held, or by such others as they shall appoint. And that no thing be concluded and imposed by way of Authority from one or more churches upon another, but only by way of Brotherly conference and consultations. That the truth may be searched out to the satisfying of every mans conscience in the sight of god according his word. And because such an Assembly and the work thereof can not be duly attended to if other lectures be held in the same week. It is therefore agreed with the consent of the Churches. That in that week when such an Assembly is held, All the lectures in all the neighbouring Churches for that week shall be forborne. That so the public service of Christ in this more solemn Assembly may be transacted with greater diligence and attention.
96. Howsoever these above specified rites, freedoms Immunities, Authorities and privileges, both Civil and Ecclesiastical are expressed only under the name and title of Liberties, and not in the exact form of Laws or Statutes, yet we do with one consent fully Authorize, and earnestly intreat all that are and shall be in Authority to consider them as laws, and not to fail to inflict condign and proportionable punishments upon every man impartially, that shall infringe or violate any of them.
97. We likewise give full power and liberty to any person that shall at any time be denied or deprived of any of them, to commence and prosecute their suite, Complaint or action against any man that shall so do in any Court that hath proper Cognizance or judicature thereof.
98. Lastly because our duty and desire is to do nothing suddenly which fundamentally concern us, we decree that these rites and liberties, shall be Audibly read and deliberately weighed at every General Court that shall be held, within three years next ensuing, 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 General Court within these next three years shall fail or forget to read and consider them as abovesaid. The Governor and Deputy Governor for the time being, and every Assistant present at such Courts, shall forfeit 20sh. a man, and every Deputy 10sh. a man for each neglect, which shall be paid out of their proper estate, and not by the Country or the Towns which choose them, and whensoever there shall arise any question in any Court among the Assistants and Associates thereof about the explanation of these Rites and liberties, The General Court only shall have power to interpret them.