foundational rights and freedoms: the 1641 body of liberties
The figure of justice, one of the cardinal virtues. Unknown engraver, published by Thomas Jenner, London, ca. 1660. Wellcome
Were the Puritans Christian nationalists?
Was there separation of church and state?
Did the Puritans rule as authoritarians, regardless of law?
The answers to these questions lie in the history and content of the 1641 Massachusetts Body of Liberties, the first codification of legal rights that the English colonizers called Puritans created in Woodland New England, in the Massachusetts Bay Colony. Contrary to widespread myths about theocratic rule and copious and arbitrary burnings of witches, law in Massachusetts would build on this statement of individual rights up to the founding of the United States.
Let’s take a quick look through the Body of Liberties’ 100 laws to get a better picture of what Puritan government was really like, to understand our history better and to counter the loud voices of the 21st century that maintain the Puritans were Christian nationalists who created an oligarchy or a theocracy.
First, what do these words really mean?
Oligarchy is a system of government that keeps power in the hands of a tiny minority of the people, generally the wealthiest, who dominate the majority to keep themselves wealthy and in power. The last thing an oligarch wants is democracy, or the common voice helping to shape the law.
Theocracy means no separation of church and state. Members of the government must be members of the state religion, and religious leaders are appointed to positions in the government by the head of the church - either the global head (the Pope, for instance), or the local head (the monarch).
In this blog, divided into six parts, I explore the meaning of key sections of the Body of Liberties, their meaning at the time - and their meaning today.
“Were the puritans christian nationalists? not according to massachusetts law”
Spoiler alert: The Massachusetts Bay Colony was not an oligarchy, nor was it a theocracy. It was a proto-democracy in which the common people not only voted, but were actually recruited by the magistrates in Boston to review and help draft the first body of laws.
Part I: a charter for government
When the Puritans stepped foot on the shores of the Eastern Woodlands, they carried with them a basic framework for establishing a colonial government. The Massachusetts Bay Colony’s charter, granted by Charles I in 1629, outlined it concisely:
· The colonial government should include a governor, deputy governor, and 18 assistants, or magistrates.
· The freemen (white men) would choose the assistants.
· The assistants would elect two of their members to be governor and deputy governor.
· The assistants would hold a monthly Assistants’ Court to hear cases and complaints of the people.
· The General Court would be held four times a year.
This is where freemen from the towns would meet to draft laws.
One of Governor John Winthrop’s first acts was to expand the definition of freeman in May 1631 to include basically all adult males in the colony – leaving it, unlike most of England, with no property ownership requirements.
The problem was that between 1630-1634, the General Court did not meet regularly. This meant the Assistants’ Court was drafting laws without the freemen.
Realising that their right to draft laws was being denied, the freemen demanded to see the charter at a May 1634 meeting of the General Court. John Winthrop pointed out that there were too many freemen for all of them to attend the court - the Great Migration was in full swing, and the number of people attending would indeed have been pushing 1,000.
Did this settle the question? Did the governor, assistants, and freemen agree to give up representative government and form an oligarchy?
They did not. Winthrop suggested that the freemen of each town elect deputies to attend the General Court and review the laws drafted by the Assistants’ Court (like the Supreme Court reviews laws made by Congress).
The freemen made one amendment: on May 14, they voted to elect three deputies from each of their eight towns to the General Court to both vote for the assistants and to draft laws.
The freemen of the Massachusetts Bay Colony were voting for their representatives and drafting their own laws. This alone is astonishing: it’s hard to find examples of this type of proto-democracy anywhere else in Europe or the places it colonized in 1634.
Creating the Body of Liberties
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 people 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.
“should the deputies ‘proceed according to their discretions’? the freemen said no”
It wasn't simple, though. Who should draft it? The deputies, with their subjective opinions? The Assistants, who might establish an oligarchy by writing laws that gave them more power?
The Court voted in May 1636 that any law drafted had to have the support of both the Assistants’ Court and the deputies of the General Court. The Court also voted that a mix of laymen and ministers draft the code of law.
Why were ministers included? 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. Yes, the colony was a religious society founded with a religious mission. Its government would always invite the advice of ministers. But it didn’t have to take it - and it usually didn’t. The drafts this committee submitted were all rejected. Another committee also tried and failed.
Finally, in March 1638, the General Court sent a letter to the freemen of the eight towns asking them to assemble in their towns and write up their own codes of law and send them 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.
In 1639, two different codes were drafted by new committees using town inputs, and each was sent to the towns to be read to the people, who could revise as they saw fit.
“The body of liberties’ origin story debunks claims of puritan oligarchy'“
They ended up approving a draft by lawyer and minister Nathaniel Ward that incorporated parts of the drafts sent in by the towns. Ward’s draft was revised several times by the governor and the courts, and at last on December 10, 1641, the Body of Liberties was copied and sent to all the towns to be read out loud at a town meeting. The results came in: it was “voted to stand in force” for three years, as a trial, after which it could be either revised or “established to be perpetual.”
It would be established, and used as the basis for later bodies of law for the colony. This is an amazing background for a body of laws in the 17th century. The Body of Liberties’ origin story alone debunks claims of Puritan oligarchy or dictatorship.
PART II: HOW HARSH WERE PURITAN LAWS?
Many think of the Puritans as burners of witches, the grim overseers of a rigid, punitive society - in brief, a religious autocracy. The Body of Liberties suggest otherwise - strongly.
Let’s look at the first section of the Body of Liberties’ 100 laws, of which 17 laws cover individual rights. We’ll pull out the laws that are most emblematic of its spirit. The spelling has been modernized.
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. You can also read it here, courtesy of the Massachusetts state government.
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. No one will be punished in any way unless they have broken a law that has been made publicly known – that is, there can be no arbitrary rule. Judgments will not be made according to some magistrate’s whim or personal feelings. People will know the law, 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.
“at the heart of the body of liberties is that there will be no arbitrary rule. judgements are not made according to whim, people know the law”
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, regardless of race or legal status, which means African and Indigenous people were included. No one was above the law, and an early expression of the idea that justice delayed is justice deferred. No immigrants can be seized on the streets and taken to a secret prison.
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.”
Everyone has 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.
Other liberties in this section:
· People cannot be fined for not responding to a court summons if they are incapable of getting to court.
· Mandatory military service is outlawed.
· No one can be forced to work on a government project.
· The government cannot seize people’s personal goods.
· People the right to move out of the colony whenever they like.
In essence, section 1 limits the power of the colonial government and secures individual liberties, including 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.
Part III: a fair day in court: Judicial laws
This is the longest section of the Body of Liberties, with 40 of its 100 liberties.
Liberties 32-35 protect individual liberty. Section 33 makes 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”). This is a concept being fundamentally challenged in the U.S. today by the imprisonment of citizens and immigrants for minor visa infractions or alleged crimes.
Liberty 33 also proves that the image many Americans have today of scores of Puritans languishing in prison, victims of irrational laws or charges of witchcraft, are unfounded.
In fact, we are a good way into the Body of Liberties without one mention of witchcraft, which many Americans today take to be the only crime Puritans acknowledged or cared about. We’ll see in a later post that there is only one mention of witchcraft in the entire body, and it is a passing mention.
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.
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.
The practicality of these judicial liberties really busts the myth of the rigid, all-powerful, and unjust Puritan court made up of self-appointed ministers ready to hang everyone in sight. Judges could be fined and removed for miscarriage of justice. People had the right to appeal. Imprisonment was to be a last resort, not the norm.
“the practicality of these liberties busts the myth of the all-powerful, unjust puritan court ready to hang everybody in sight.”
Although the 1641 Body of Liberties built on the Magna Carta and English law, many of the liberties were new to the western world. Many also influenced the Founders of the United States; can see their traces in the Bill of Rights. The Body of Liberty’s principles of the rule of law, due process, and equality for all before the law form the bedrock of the U.S. judicial system, but are being challenged and dismantled today.
Part iV: Separation of church and state
The Massachusetts Bay Colony is often described as a theocracy – a polity with no separation of church and state. In a theocracy, members of the government must be members of the state religion, and religious leaders are appointed to positions in the government by the head of the church - either the global head (the Pope, for instance) or the local head (the monarch).
Nothing could be further from the truth, as this section shows.
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 seems to blur the line between church and state, but in fact it’s the opposite. What it says is that the civil government does not have authority to govern the churches—it can’t exercise power “in an ecclesiastical way”. The civil government can intervene if a problem in a church is causing a civildisturbance, but it can’t step in to meddle with or dictate how a church operates internally.
“ministers and pastors are under civil authority and cannot hold political office”
The main message is that 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 when 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, so this would apply only to men who held lower positions in a church, like a deacon.
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.”
Freemen elect all civil officers; this is a liberty found in very few places in the world at this time. Anyone can be voted out of office without explanation, but once someone is elected they can’t be removed from office without proof of misconduct.
"all freeman shall have the full freedom to vote according to their true judgments and consciences”
Liberty 69: “No General Court shall be dissolved or adjourned without the consent of the major part thereof.”
England in 1641 was on the verge of civil war, in large part because King Charles I refused to allow Parliament to meet. In Massachusetts in 1641, the people took the step of making their Parliament, the General Court, incapable of dissolution without their consent.
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.
This 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.
Part v: The rights of minorities
The section establishing the rights, or liberties, of minority populations - women, children, servants, “foreigners and strangers”, and “brute creatures” - is short. In this special section, the Puritans addressed issues that could only apply to the groups named, issues they wanted to call out and address in the law. Let’s look at a few highlights.
Liberties of women
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 assault his wife (“stripes” meant 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
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 stereotype of the all-powerful 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.
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 physically harmed. 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.
“any people professing christianity who flee to us from tyranny shall be succored among us”
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”.
Let’s remember this in the US today.
Liberties of animals
92. “No man shall exercise any tyranny or cruelty towards any brute creature which are usually kept for man’s use.”
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.”
We see that these sections aren’t the only laws that applied to these categories of people and creatures. These are the 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.
Part VI: Capital offenses
This section, which one might expect that to be the longest section of a Puritan body of law, is actually very short. Most Americans today assume that the Puritans used capital punishment to punish every crime, from murder to sneezing. But the section on capital laws is very short - 12 laws.
Relatively few people were executed in Puritan Massachusetts. Like capital laws in England in the 18th century, these laws were meant to scare people straight, and were often bent to prevent an actual execution.
It does, however, at last provide us with the single mention of witchcraft.
1. “If any man after legal conviction shall have or worship any other god but the lord god, he shall be put to death.”
You get one strike on worshipping false idols, then you are put to death. Liberty 3 in this section also dips into the Ten Commandments, punishing blasphemy - “high-handed blasphemy”.
2. “If any man or woman be a witch (that is hath or consults with a familiar spirit), they shall be put to death.”
At last here’s a law about witchcraft! Note that it applies to men and women equally, and that it narrowly defines witchcraft as communicating with a “familiar”, or evil spirit. This would be very hard to prove, and there would be few cases of witchcraft that made it through court in Massachusetts.
4. “If any person commit any willful murder, which is manslaughter committed upon premeditated malice, hatred, or cruelty, not in a man’s necessary and just defense, nor by mere casualty against his will, he shall be put to death.”
This is the first of four liberties about murder:
· No. 4 states that premeditated and cold-blooded murder will be punished with death. Self-defense and accidentally killing someone (“mere casualty against his will”) may not.
· No. 5 states that slaying someone “suddenly in his anger or cruelty of passion” is a capital offense, making crimes of passion capital crimes.
· No. 6 spells out that killing someone “through guile, either by poisoning or other such devilish practice” is a capital offense.
Liberty 98 states that every law in the Body be “read and deliberately weighted at every General Court that shall be held within three years, and such of them as shall not be altered or repealed they shall stand so ratified.”
And so we come to the end of the 1641 Body of Liberties. Next, we’ll evaluate what it meant in the 17th century and what it means in the 21st century.
What does the Body of Liberties say to us today?
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 different from 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.
The Body of Liberties was also innovative, in that it set out a relatively brief yet comprehensive set of laws granting fundamental rights:
· the rights of individual freemen
· a representative government
· separation of church and state
· the principle that no one is above the law
· 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 indeed anywhere else in the English-speaking world.
“the puritans made a start on the long road to democracy. righting the things they got wrong is an american struggle of 400 years.”
That said, the Body of Liberties includes what today is abhorrent - protections for slavery, for instance, which it recognized as a legal institution. It bracketed women, animals, and “idiots” in the same category. It reserved the right to representation to free men. We would not wish to live by all 100 of its rules today.
For all their innovation and daring, the Puritans made only a start on the long road to democracy that we’re still on today. Righting the things they got wrong has been the American struggle for nearly 400 years. We don’t honor the Puritans’ proto-democracy by returning to their primitive political state. We honor it by expanding and perfecting our partial but hard-earned democracy by maintaining and strengthening what they got right - separation of church and state, protection of “foreigners”, and representative government - and abandoning what they got wrong.