BOSTON
PUBLIC
LIBRARY
THE
COLONIAL LAWS
OF
MASSACHUSETTS.
EEPEINTED FEOM THE EDITION OE
16 6 0,
WITH THE SUPPLEMENTS TO 1672.
CONTAINlNd AI.RO,
THE BODY OF LIBERTIES OF
1641.
PUBLISHED BY ORDER OF THE CITY COUNCIL OF BOSTON, UNDER
THE SUPERVISION OF WILLIAM H. WEITMORE,
RECORD COMMISSIONER.
WITH A COMPLETE INDEX.
Littleton, Colorado 1995
Library of Congress Cata1ag1ng-1n-Pub] Icatlon Data
Massachusetts.
[Laws, etc. (Colonial laws of Massachusetts)]
The colonial laws of Massachusetts : reprinted from the edition of 1660, with the supplements to 1672 : containing also, the Body of Liberties of 1641. p . cm . Originally published: Boston, 1889.
"Published by order of the City Council of Boston, under the supervision of William H. Hhltmore, Record Coram 1 ss loner . " Includes indexes. I
HI 1 1 lam Henry, 1836-1900. 1 Ibertles). III. Title.
94-46407 CIP
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ISBN 0-8377-2053-2 |
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1. Law — Massachusetts. |
I. Hhltmore, |
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II. Massachusetts. Laws. |
etc. (Body of |
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KFM2430 1660 .A23 |
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346.744' 022— dc20 |
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[347.440822] |
Printed in United States of America
The paper used in this publication meets the minimum iQQi requirements of American National Standard for Information Sciences — Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984.
THE
COLONIAL LAWS
OF
MASSACHUSETTS.
REPEINTED FROM THE EDITION OF
16 6 0,
WITH THE SUPPLEMENTS TO 1672.
COKTADONG ALSO,
THE BODY OF LIBERTIES OF
1641.
PUBLISHED BT ORDER OF TEE CITY COUNCIL OF BOSTON, UNDER
THE SUPERVISION OF WILLIAM H. WHITMORE,
RECORD COMMISSIONER.
•V7ITH A COMPLETE INDEX.
BOSTON:
1889.
Printed bt ]&ocklDeIl & eijutctjlll,
ClTT I'KINTEKS, BOETOM.
TABLE OF CONTENTS.
Pages
Preface ............ v-xvi
Introduction 1-117
containing also,
The Body of Liberties of 1641 29-68
Laws of 1660 119-208
Index thereto 209-216
Supplements, 1660-1672 217-262
Index of General Subjects ........ 263-270
Index of Laws ........... 271-312
PREFACE
By authority of the City Council of Boston I am enabled to make accessible to the public two books of great rarity, which possess a great value in the history of our laws. These are the Body of Liberties of 1641, and the Revised Laws of the Colony issued in 1660. Taken in connection with the Colonial Laws of 1672 and Supplements, which were reprinted last year under the sanction of the City Council, it is now possible for every lawyer to study conveniently the progress of legislation from the foundation of the colony.
Although the State has published the Records of the Massa- chusetts Colony from 1629 to 1686, these do not supply the neces- sary information in regard to the laws. The entire code known as the Body of Liberties was enacted in 1641, but not entered on the Records. Again in each Revision changes were made in codifying and condensing, and of course such revision superseded the older forms of the separate acts. Hence it is most desirable to have easy access to copies of the Laws of 1660, because from that date onward they embodied all the active general legislation. It must be conceded that any law of a general nature which was not included by Secretary Rawson and the committee in such codifi- cation, must be considered as repealed and null after that date.
Owing to the scarcity of copies of the Laws of the Colony and Province, the Legislature, in 1812, appointed Nathan Dane, "William Prescott, and Joseph Story a committee " at the expense of the Commonwealth to collect the Charters and the public and general Laws of the late Colony and Province of Massachusetts Bay; and to add in an appendix any other docu- ments or laws which they may deem proper to explain the jurispru- dence of this Commonwealth." One thousand copies were issued at the public expense, and this is the volume so often quoted in deci- sions as " Ancient Charters and General Laws."
Useful as this compilation has proved, it vf'dl be of necessity
VI Preface.
entirely superseded by recent publications. The State has com- menced and neai'ly concluded the liublication of all the General Laws of the Province from 1G92 to the Revolution, a work which is enriched with every kind of illustrative notes gathered by the industry of the indefatigable editor, A. C. Goodell. It has also published all of the Records of the Great and General Court and the Assistants, prior to 1G86, carefully reproduced under the care of the late Dr. IST. B. Shurtleff. :N"ow the City of Boston has supplemented these by these two volumes of Laws, viz., the Lib- erties of 1641 and Revision of IGGO, and the Revision of 1G72 and Supplements.
The student will therefore have, in print, everything which the Commissioners of 1812 had to use mainly in manuscript. One suggestion indeed is made with the utmost diffidence by the present editor. In the Preface to Ancient Charters the editors say: "A number of colony acts of importance, especially in a historical view of our laws, have been found in the original I'ecords, not included in the edition of 1G72; these have been selected and printed in this volume wherever found to have remained a material part of the colonial system."
In other words, the committee of 1812 did not I'eprint either the edition of Laws of IGGO or of 1G72 complete, but they made a new compilation with a new arrangement of chapters, and inserted such general laws, evidentl}', as they considered " to have remained a material part of the colonial system."
With the utmost deference to the honored memory of Dane, Prescott, and Story^ it is certain that we now know much more of the history of Massachusetts as a colony than was known in 1812. Such antiquaries as Farmer, Savage, Winthrop, Palfrey, Trumbull, Dextei-, and Ellis, with the innumerable lesser historians, have added immensely to the true knowledge of the events of that period. Hence it may not be presumptuous to suggest that the selections made in 1812, even by such eminent lawyers, were not always wise, and by no means complete. ^
'One instance may be citeil. The present editor, after the Laws of 1G72 was issuoJ, re- ceived an inquiry from a prominent lawyer, asking for the reason for the omission of Section 19 of Chapter XVIII., of Ancient Cliartcrs. It will be found therein on p. Gl, and refers to tlie punish- ment for Blasphemy. Now, it will be found that in 1041, Liberty No. 9-1, § 3, gave the first simple act punishing blasphemy. In 1G4G (Records, II., 17G-177), this Section 19 was passed as printed. But in IGGO (and presumably in 101!>), the Revised Statutes cut down the act to the form printed as Section 3 of this very cliapter in .Vnc. Char., p. 58. 'Tlie editors in 1812 reprinted the first Act of 1G4G as well as the revised form, but surely thereby they darkened counsel instead of aiding the student, \i\\a would suppose this §19 to be a ditferent and continuing statute. — W. II. W.
Preface. vii
The editors of 1812 pointed out that the Revision of 1072 is little more than an extension of that of 1G(30; and it is probnl)le that the first Revision of 1649, of which no example lias survived, was the prototype of that of 1(5(30. It is certain that the Body of Liberties of 1G41 was incorporated, almost without change, into the Revision of 16G0.
It was also pointed out, in 1812, that the marginal notes, both in 1G60 and 1672, of the style " A. 46," "A. 54," etc., are abbreviations for "Anno 1646," etc. Other side-notes in both were appar- ently almost inexplicable. I refer to those of the form " L. 1, p. 8 ; " "L. 1, p. 49; " " L. 2, p. 1;" " L. 2, p. 8," etc. Of course these are Liber 1 and 2, respectively, and their identification is discussed later. The manuscript volumes of the Records from 1628 to 1686, now preserved at the State House, are five in number, Avhereof volume three is a duplicate for the years 1644-1637, con- taining only the proceedings of the House of Deputies. There are various consecutive marginal numbers in these volumes, but none to be identified with those used in the printed Laws. I find references in the latter to Liber 1, pp. 2, 4, 9, 14, 15, 16, 22, 23, 24, 28, 30, 31, 32, 35, 36, 38, 45, 46, 47, 49, 50, 51, 52, 53, 57; to Liber 2, pp. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 24, 31, 32; and one reference to Liber 3, p. 5, which may be a misprint.
As to the Body of Liberties, I have devoted much time to it, as it has hitherto not received the recognition to which its impor- tance entitles it. This Code Avas first rediscovered by the late Francis Galley Gray, and printed by him in 1843. But lieing pub- lished only in a volume of the Collections of the Massachusetts Historical Society, a knowledge of it has been confined to very few persons. I have merely followed out Mr. Gray's line of unansAver- able arguments proving the certainty of the identification of his copy of this Code, but I have added a Table of Contents, Index, and Notes, which may assist the student in using it.
The Laws of 1660 are reproduced by the same process of pho- to-electrotypiug which was used so successfully in the reprint ofthoseof 1672. The exemplar used was the fine copy preserved in the State Library; — other copies were kindly tendered me liy the Boston Atheufeum and the Massachusetts Historical Society.
For the Supplements from 1660 to 1672 I am indebted to the courtesy of the American Antiquarian Society, of Woi-cester. They own the copy which belonged to Secretary Edward Rawson, and the supjilementary leaves seem to be nearly complete, lacking
vm Preface.
only a final page. iNo other copy known to me has any consider- able portion of these pages, and I esteem it a most fortunate chance that this perfect volume has been preserved, a fit companion to the Hutchinson copy of the edition of 1672. I need hardly state that copies are extremely rare, and that the price of one is estimated at three to five hundred dollars. This reprint is made not on account of the cost of the original however, but in view of the intrinsic value of the work to lawyers and antiquaries, which renders it desirable that a reasonable number of copies should be distributed in this community. In the Introduction and !Notes I have endeav- ored to give only facts, and to cite the authorities in full.
The indexes were prepared by F. E. Goodrich, Esq.
It is reasonable to think that the ground covered by these two volumes is now completely covered, even should some fortunate chance restore to us a copy of the edition of 1649. But there is room, and almost a necessity, for some qualified person to work up this material into a concise and well-digested history of the juris- prudence of Massachusetts. A thorough consideration of the Body of Liberties will prove that our ancestors were far more enlightened than their English contemporaries, and that the influence which they sent forth has continued to afiect most powerfully our laws, customs, and thoughts to the present time.
Especially to be forever remembered, for their pious care and intuitive perception of the value of these records, are Edward Rawson, Elisha Hutchinson, and Francis Galley Gray.
THE PRmTED RECORDS.
In 1853 (Resolves, chap. 63) the Governor was directed to have jirinted one hundred copies of the first two volumes of the General Court's Records. By chap. 5 of Resolves of 1854, eleven hundred more copies were ordered, and twelve hundred copies of Volumes III., rV^., and V. The work was done under the super- vision of the late Dr. N. B. Shurtleff", the first two voliunes bearing the imprint 1853, and the others that of 1854,
In 1855 (Resolves, chap. 19) the Governor was directed to have printed five hundred additional copies of the first volumes of said Records.
In 1856 (Resolves, chap. 9) the Secretary was empowered to allow the State printer to publish an edition for public sale, as a private enterprise, the permission being for three years from June 4th. (Resolves, chap. 87, 1856.)
Preface. IX
In the "Boston Dally Advertiser" for March 6, 1865, Dr. Shurtleff published a letter in regard to certain changes made by him in the stereotype plates after the first edition was issued. The following extracts cover the main point : —
" Soon after the issue of the edition ordered by the Legislature in 1853, my excellent friend, Col. Thomas Aspinwall, came back to his American home, bringing, with his historical treasures collected during a IcJng residence in London, a manuscript copy of the first volume of the old records, and of a portion of the second volume, extending, I think, to the year 164G. This manuscript contained a large portion of the lost records, namely, a portion of the proceedings of the 23d of March, 1628-9, the proceedings of the 30th March, 2d, 6th, 8th, 13th, 16th, 27th, and 30th of April, 1629, and also portions of the proceedings of the 10th of December, 1641 (being part of Volume L), and the commencement of the record of the General Court of Elections, commencing on the 13th of May, 1642, being the beginning of Volume 11."
" Fortunately the succeeding Legislature passed an order for the issue of another edition of Volumes L and II. ; and, conse- quently, an opportunity was afforded for completing the printed volumes of records from the material furnished so opportunely by Colonel Aspinwall's copy. Tlie stereotype -plates were revised, and the lost parts of the original records were artistically supjjlied, so that the second impression from the stereotype plates contains all that exists of the old colonial records of Massachusetts."
Dr. Shurtleff" proceeds to copy a note in the Aspinwall manu- script, showing that it had been in the possession of Gov. Thomas Hutchinson. He adds : " The manuscript is not so old as the year 1653, but is in a later style of chirography."
Subsequently this precious manuscript was purchased by Hon. Samuel L. M. Barlow, of New York city, in whose extensive and valuable library it now remains.
It appears that the changes made in the stereotype plates after the first edition was printed were as follows: In Volume I. ten pages were inserted, marked 37 a to 37 y, inclusive, and on p. 3J6 enough was added to complete that page. In Volume II. (which begins, in the first edition, with p. 3), two whole pages were inserted, numbered 1 and 2, and the first haif of page 3. The former page 3 was cancelled, the two bottom lines (concerning one Gregory Taylor) being carried over to page 4, and the spaces on page 4 being readjusted, so that page 4 ends alike in both editions.
X Preface.
I believe that I am correct in saying that no change was made in the title-pages to this second edition of Volumes I. and II., that no notice was given of the corrections and additions (except a short note on p. 344 of Volume I.), and that no alterations were made in the Index of either volume.
As to the additions made in the first volume, their value is merely antiquarian. But the pages added in the second volume contain the organization of the government for 1642, an order about votes in the General Court, and a law respecting constables, (which is in the Code of 1660, the first clause of section 2, and not cited in the margin as passed in 1642, the whole section being referred to Anno 1646). There are also two laws, one relating to the pay of the Elders when employed by the General Court, and the other empowering any Court having two magistrates to admit church members to be freemen : both laws copied into the Code of 1660.
For these two laws I spent many hours in fruitless search, till I learned the fact of there being two editions. In the lack of any definite information of the number of copies printed by the State printer under his license, I conclude that fully two-thirds of the copies of the first two volumes of the Records now in circula- tion and use are defective. The stereotype plates of these books were destroyed in the great fire in Boston in 1872, and I have therefore reproduced the four pages, one (p. 346) of Volume I., and three pages of Volume II., in order that any one who wishes to verify my citations, and who is unfortunately the owner of the first edition only, may have the full copy before him.
It is useless to criticise Dr. ShurtleflTs peculiar method of altering the plates of such an important book. Any one taking up a copy of State Records issued by authority of the Legislature naturally relies upon its entire accuracy. I am sorry to say that this reliance is misplaced in many small matters of textual correct- ness, as I have discovered ; but the fact that three or four pages of proceedings are to be found in one edition, and not in another, is one which calls for the greatest publicity. I fear that many of the highly valued copies of the first edition were placed in public libraries, and are the only ones accessible to many students.
The legislation of the Andros or Inter-Charter period remains still in manuscript, and deserves to be printed as the only missing link in the chain of entire continuity from A.D. 1629 to the present time.
"William II. Whitmore.
City Hall, Boston, February, 1889.
ADDITIONS MADE IN THE SECOND PRINTED
EDITION OF THE RECORDS OF
MASSACHUSETTS,
AND NOT TO BE FOUND IN THE FIRST EDITIONS.
[P. XIII. IS p. 346 OP Volume l.J
[Pp. XIV.-XVI. are the beglnnixg op VoLnME II.]
Prtfaet.
xiir
346
THE RECORDS OF THE COLONY.
3000 ac'8.
16 41. M" ^raig' Winthiope hath her 8000 acres of land formerly granted her,
^ "^ to bee assigned about the lower end of Concord Ryver, near Merrimack, to M" Winthropi ^^® layde out by M' Flint & Leif ? Willard, w"» M'' Oliver, or some other skilfull in measuring, so as it may not hinder a plantation ; & any pt thereof they may purchase of any Indians that have light to it./
Upon the petition of M' Willi : Tynge, it was ordered, that M' Barthol- omew, George Giddings, & John Whipple should set a dewe valuation upon the house & ground W^"" Willi : Whitred did effeofe to M' Tyng aforenamed./
It was ordered, that Sara, the late wife of James Hubberd, should have fourty pound of the estate of her said late husband, & the use of the chil- drens stock till they come to the ages mentioned in the will, & then the eldest Sonne./
At this Court, the bodye of laucs formerly sent forth amonge the ffreemcn, ((?, was voted to stand in force, {Q.j
[The last paragraph is in the handmiting of Governor Winthrop. The following is restored from an eaily copy of the records in the possession cf Thomas Aspinwall, Esq.]
M' Atherton Hoffe is graunted foure hundred acres of land in regard of fiftie pounds disburssed in the ioint stocke.
M' Davies was denied Fibertie to sell diinkc, or ale, or to keepe a cookes shopp, because there are others sufficient in the towne of Boston, and his carriage hath bin formerlie offensiue.
M" Dunster is graunted hlr farme with the bondaries from Sudburie bounds, a straife line running south easterlie and north westerlie to the great ponnd over against that place, where the river issueth outt of itt on the other side, the line cutting y* said pond over unto the said issue, then following the streames vnto the place where Sudburie cutteth againe the river, & soe along by the river within Sudburie line, as itt is agreetl betweene the towne of Sud- burie and hir : the line lying in forme is described in the plott subscribed by M' Thorn Flintt & Thorn Mayhewe.
M' Samuell Mavericke is remitted 40" of his fine of 100", formerlie sett vpon him, if hee pay y« remaining CO'' in due valuation.
M' Mayhewe his accounts were referred to the Treasure' & M' Duncum ; & for the bridge by the mill over the Charles River, the Co't doth concelue itt to belong to the towne or townes in w"^*" jtt lyeth.
Thomas Bartlett is appointed leivetenant & Hugh Mason ensigne to Captaine Jeanison, Waterton.
M> HoTcs
400 acres. W" Davies.
M' Dunster farme.
M' Sam ; Mav' erirke fine re- mitt.
Military ufficers.
XIV
Preface.
MASSACHUSETTS RECORDS.
THE RECORDS OF THE COLONY OF THE MASSACHUSETTS BAY IN NEW ENGLAND.
[The manuscript of the second volume of the Massachusetts Colony Records commences on the third page, at the place indicated by an asterisk. The first portion of the volume is lost, and the first eighteen pages of what remains are in a very decayed condition. By the aid of ancient transcripts of the volume, made apparently very early, and by a duplicate leaf in the handwriting of the Secretary who wrote the volume, the decayed portions have been restored. The volume is mainly in the chirography of Secretary NowcU, although occasionally passages, and sometimes pages, are in that of Mr. Edward Rawson, who succeeded Mr. Nowell as Secretary in 1650.]
\Th£ Generall Court of Elections, the IS'" Day of y' B' Mon'*, 1642. 1642.
Present, The Governo"',
The Dep"' Governo'', M' Dudley, M' Bellingham, M' SaltoDStall,
M' Biadstreet, M' Staughton, M' Flintt, M' Increase Nowell.
W» Hilton, W" Walderne, W" Hayward, John Saunders, Edward Rawson, Matthew Boyse, Maximi: Jewett, M' Sam: Simonds, John Whipple, M' Ema: Downing, Edm: Batter, Edw: HoUioke,
Deputies ^seut :
Robert Bridges, Mr w- Ting, Cap^ Edw: Gibbons, Ralph Sprague. Thomas Line, Cap! Geo: Cooke, M"' Nat: Sparhawke, Capt W" Jeanison, M' Simon Eyres, Sywon Willard, Peter Noyse, Edw: Allen,
Eiea: Lusher, W" Heath, W" Parkes, M' John Glover, M' Nat: Duncum, Alex: Winchester, W"" Cheesborough, James Parker, Edw: Bates, Jos: Pecke, Edm: Hubberd.
18 May.
'OHN WINTHROPP, Esq', was chosen Governo' for this yeare and till Govemf new bee chosen, and tooke his oath.
John Endicott, Esq , was chosen Dep""^ Governo', & tooke his oath. Thorn: Dudley, Esq', was chosen an Assistant, & tooke his oathe. Rich: Bellingham, Esq', was chosen an Assistant, & tooke his oath. VOL II. 1 CI)
Dep. G.
Assistants.
Preface. THE RECORDS OF THE COLONY OF
3CV
1642.
— » — — '
18 May.
Tresurer. Deputye.
Pressinge of horses.
Gloster.
Oibson.
Waterton. Shawin.
Soolh ine.
487-
Charg-8. 20 May.
Fcmbleton.
488-
FUiteseed, 12> bush. Repeale.
489-
Freemen, admission.
Rich: Saltonstall, Esq', was chosen an Assistant, & tooke his oath.
M' Symon Bradstreet was chosen an Assistant, & tooke his oath.
M' Increase Nowell was chosen an Assistant, & tooke his oath.
M' Israeli Staughton was chosen an Assistant, & tooke his oath.
M' John Winthrop was chosen an Assistant.
jf r -yvm pinchen was chosen an Assistant, and tooke his oath.
M' Thomas Flintt was chosen an Assistant, and tooke his oath.
M? Tyng was chosen Treasm*er.
It was ordered that a warrant should bee sentt to Salem for a new election of a new deputie to be ioined with M' Downing, because the Coiut is doubt- full of y* choyse, & M' Edmund Batter was sent.
M' Staughton & M' Ting, Treasiiro', were appointed a coiuittec to advise Goodman Johnson aboutt y* amunitiou.
An order was made for the ^ssing 4 horses, to goe w"' M' Collccott and his companie (if they cannot hire w"'out fssing) to helpe them to carric neces- saries to run the south line.
Cape Anne is to bee called Gloscester ; John Sadler is chosen constable thereof, and tooke his oath.
John Sadler had coinission to traine the men att Gloscester.
Obadiah Brewen is appointed Surveyer of y^ Armes att Gloscester.
George Norten is appointed to keepe an ordinarie*att Gloscester.
Richard Gibson was coiiiitted to the marshall for his seditious practises, & vpon his submission & acknowlegement of his fault vnder his hand hee was dismissed with an admonition.
Watertowne delivering in a transcript of thier lands, nott being perfect was lent them backe againe.
Leivetenant Symon Willard & Edward Converse arc appointed to view Shawshins, & to certifie whether the land that is free bee fitt for a village or nott.
Goodman John Johnson had order to lend six carabines to M' Collecott & his companie w*^*" are to run the south lii>e.
Itt was ordered, that the Treasuro' should defray the charges of the elders, when they are imploycd vpon anie spcciall order from the General Co''t.
The lawes were read over the 20''' of the 3'' month.
John Pemberton was bound in 20" to appeare att the nextt Coiut att Ipswich.
The order for hempe & flax seed to passe att twelve shillings the bushell is repealed.
The orders for restraint of wheat are repealed.
There is power given to evcrie Co't w^'in o' jurisdiction y' hath two
XVI Prtjace.
THE MASSACHUSETTS BAY IN NEW ENGLAND. 3
magistrates to admitt anie church members that are fitt to bee free, & to give 1 G42. them the freemens oath, & to certifie thier names to the .Secretarie att the "~
next Generall Courtt. =^" ""y-
The order formerlie made for writeing things before they bee voted, is 490-
dcclared nott to conceme matter of forme, butt to bee meant of things that courtV" we to bee matters of record. Repeaie.
Phillip White, for drunkenesse, was fined 10', & for misdeameno', •w'='» White. 10' Richard Wayte vndertooke for White.
The Deputy Governo', M' Staughton, Cap! Gibbons, Captaine Jeanison, Posture of Capt Cooke, M' Rawson, Leiveten' Willard, & M' Parker, these or the greater ^^*"*' number of them, are appointed to putt the countrey in a posture of warre.
Itt is ordered, y' when anie person shall bee tendred to anie officer of 491-
this jiuisdiccttn by anie constable or other officer belonging to anie forreigne 0*"^^" duly to
.... receiue forraine
jurisdiction m this countreVj or by warrant from anie such authoritie, hee or prisoners.
shee shall bee presentlie receiued and conveyed forthwith from constable to
constable till the partie bee brought to the place to which hee or shee is sentt,
or before some magistrate of this juiisdiction, who shall soe dispose of the Hue & cry.
partie as occasion & the justice of the cause shall require^ &-thatt all hew
and cryes shall bee dilligcntlie receuived & piu-sued to full effect.]
Whereas the country is put to great charge by the Courts attendance [*1.] vpon suites coiSenced or renewed by either appeales, petition, ^(?, it is 492—
ordered, that in all such cases, if it shall appeare to the Co't that the Ord' about
hue Bncrv'
plain? in any such action of appeale, petition, ^6, in any Co't, hath no iust cause of any such proceeding, they.shall take order that the said plain- tiff shall beare all the charges of the Co't w"^*" they shall iudge to have beein expended by his occation, & may further impose a fine vpon him if the merrit of the cause shall so requiie ; & if they shall finde the defendant in fault, they shall Impose the charges vpon such defendant./
William Aspinwall, upon his petition & cirtifficat of his good carriage, is restored againe to his former liberty & freedome./
The Court left it to the liberty of the townes to send but a deputy a peece, if they please, to the next session of this Court/.
The marshall hath leave to go to Coiiecticut, leaning a deputy./
The beaver trad's are appointed to bring in what is due to the countrey at the next session./
Edward Bcndall hath liberty to make vse of any of the cables, & other^ things belonging to the worke, as he needeth, alowing for the hurt of them./
Gregory Taylo', being chosen constable of Water Towne, tooke his oath to discharge that place./
INTRODUCTION.
The history of the published Laws of the Colony of Massa- chusetts is naturally divided into four periods. First, the publica- tion of the Body of Liberties in 1611; secondly, the issue of the first collection of Laws, in 1649; thirdly, the revision of 1660; fourthly, the further revision of 1672, with its supplements through 1686.
Having already been able to reprint the edition of the Laws of 1672, with its supplements, I now have the satisfaction of presenting in this volume two of the other earlier documents, namely, the Body of Liberties of 1641 and the revision of the Laws as printed in 1G60. The other edition, that of 1649, is doubtless hopelessly lost, no copy being now known. "\Ve may, however, conclude that its title was the same as the first part of that prefixed to the edition of 1660; and we are assured by the preface to the last-named book that the edition of 1649 was arranged " in an alphabetical order," that it had a preface or " epistle " telling " there would be need of alterations and additions." It is also clear that the editions of 1660 varied from that of 1649 by the omission of such laws as had been repealed and the addition of such laws as had since been enacted. Those which were omitted cannot be recovered, but by comparing the Body of Liberties with the edition of 1660, and by striking out of the latter also all the laws dated after 1649, it would still be possible to reconstruct the edition of 1649 in almost perfect form.
It is perhaps as well to state here that for a long time a spurious Code of Laws has been cited as the genuine Body of Liberties of 1641. I refer to the pamphlet issued in 1641 in Lon- don, which was undoubtedly the work of Rev. John Cotton. It was reprinted there in 1655 under the care of William Aspiuwall, and has in later years been reprinted, in 1798, in the fifth volume of the first Series of the Collection of the Massachusetts Historical Society, and, in 1844, in the third volume of Force's Tiacts. It was also printed in Hutchinson's Collections of Papcis (IJoston, 1769),
2 Inlroducdon.
and rcpi'inted with notes in the re-issue of that book by the Prince Society (Albany, 1863).
Althoug-h, as will be shown, the evidence is conclusive that Cotton's Code was only proposed and never accepted, while a totally different set of laws was actuall}' enacted in ]6Jl.this error has obtained in many quarters, and needs to be authoritatively denied and disproved.
Reverting thei-efore to the facts which can be ascertained, it is well to remember that our system of making laws by a repre- sentative body was not coincident with the settlement of the colony of Massachusetts. The Charter of March 4, 1629, provided for a governor, a deputy-governor, and eighteen^ assistants to bo chosen from time to time out of the freemen of the company, whereof seven assistants, together with the two officers, were to be a quorum. They were to meet once a month or oftencr at their pleasure, and four times in each year, viz., upon every last Wednes- day in Hilary, Easter, Trinity, and Michaelmas terms, were to hold a CJreat and General Couit. In the General Court new members could be admitted, and at that time they could " make laws and ordinances for the good and welfare of the said Company, and for the govei-nment and ordering of the said lands and plantation and the i)eople inhabiting and to inhabit the same, as to them from time to time shall be thought meet. So as such laws and ordi- nances be not contrary or repugnant to the laws and statutes of this our realm of England." (Records, p. 12.)
In fact, for several years after the settlement here the powers of the General Court wei-e allowed to lie dormant. The Court of Assistants met from time to time, as seemed necessary, but the General Court met only as follows: —
|
1630. |
October |
19. |
(Recoi |
■ds, |
, i. p. 79, printed edition.-) |
|
1631. |
May 18. |
« |
i. p. 86. |
||
|
1632. |
ISIay 9. |
a |
i. p. 95. |
||
|
163:5. |
May 29. |
« |
i. p. 101. |
||
|
1631:. |
May U. |
(( |
i. p. 116. |
The Records as preserved show both the extent of the powers exercised by the Assistants, and the insignificaiice of the action of
' This number w:is not observed until 1080. Before this twelve was the highest nunihtT actually serving, and eight or nine more usual. — W. H. W.
' I cite Savage's edition of AVintliro]!. I'xivton, IS.iS; and in all cases the piinted edition of tlie Itecords, issued by the State. — W . H. W.
Introduction. 3
the body of freemen assembled in the annual General Court. The Assistants acting as a Court had during these three years inflicted fines, whippings, and imprisonments, had levied taxes and granted lands. In fiict, at the first General Court on Oct. 19, 1G38, it was voted " by the general vote of the people and the erection of hands," that the Governor and Deputy Governor with the Assistants, " should have the power of making laws and choosing ofiicers to execute the same." (Records, p. 79.)
Winthrop indeed records (Hist. i. 84) that in February, 1GI51-2, the settlers at Watertown objected to paying £8 as their part of a rate for £60 for fortifying the new town, on the groimd that the government was like that of a mayor and aldermen. But they wei-e convinced by the Governor and Council " that this government was rather in the nature of a Parliament."
In 1G34, however, the freemen of the colony showed a desire to take a part in the government. Winthrop (i. 152-3) thus in- troduces the matter: —
" Notice being sent out of the General Court to be held the 14th day of tlie third montli called May, the freemen deputed two of each town to meet and consider of such matters as they were to take order in at the same General Court ; who having met, desired a sight of tlie patent, and, conceiving thereby that all their laws should be made at the General Court, repaired to the Gov- ernor to advise with hiin about it, and about the abrogating of some orders formerly made, as for kilUng of swine in corn, &c. He told tiiem, that wiien the patent was granted, tlie number of freemen was supposed to be (as in like corporations) so few, as they might well join in making laws ; but now they were grown to so great a body, as it was not possible for them to make or exe- cute laws, but they must choose others for that purpose : and that howsoever it Mould be necessary hereafter to have a select company to intend that work, yet for the present they were not furnished with a sufficient number of men qualified for that business, neither could the company bear the loss of time of so many as must intend it. Yet this they might do at present, viz. they might at the Gen- eral Court make an order, that once in tlie year, a certain number should be appointed (upon summons from the Go\ernor) to revise all laws, &c. and to reform what they found amiss therein ; but not to make any new laws, but pre- fer their grievances to the Court of Assistants ; and that no assessment should be laid upon the country without the consent of such a committee, nor any lands disposed of."
At the meeting of the General Court, May J 4, 1G34, there were present, besides the Governor, Deputy, and six other assist-
4 Introduction.
ants, twenty-four deputies, undoubtedly sent by Newtown (i.e., Cambridge), AVatertown, Charlestown, Boston, Roxbury, Dor- chester, Saugus {i.e., Lynn), and Salem; three from each place.^
This regular Legislature proceeded to vote (Records, i. 117), that none but the General Court had power to choose and admit freemen, nor to make and establish laws, to appoint or remove offi- cers and fix their duties, nor to i-aise money and taxes, nor to dispose of lands. It was also ordered (p. 118), that there should be four General Courts yearly, to be summoned by the Governor, and not to be dissolved without the consent of the major part of the Court. Lastly, they ordered that the freemen of every town might choose two or thiee men to prepare business to be submitted to each Court, — a provision which Avas soon neglected, — and also the following system which has continued ever since.
" Such persons as sliall be hereafter so deputed'' by the freemen of the several plantations, to deal in their behalf in the public affairs of the common- wealth, sJiall have the full power and voices of all the said freemen, derived to them for the making and establishing of laws, granting of lands, &c., and to deal in all other affairs of the commonwealth wherein the freemen have to do, the matter of election of magistrates and other officers only excepted, wherein every freeman is to give his own voice."
From this time on, the records of the General Court show that this body exercised its powers vigorously and extensively, but at the beginning without much idea of theoretical legislation. Gen- eral laws were often passed, but they related to special subjects, often to trivial ones. No constitution and no general code of system of laws was enacted, though of course the laws of England were supposed to be the authority on which all orders or sentences were founded.
In 1635 a step Avas taken as foUoAvs: At a General Court held at New Town, May 6, 1635, it Avas voted (Records, i. 147) : —
"The Governor [John Hayncs], the Deputy Governor [Richard Belling- ham], John Winthrop and Thomas Dudley, fisfpiires, are deputed by the Court to make a draught of such laws, as they shall judge useful for the well ordering of this Plantation, and to present the same to the Court."
^ Savage (Winthrop, i. 1.j4) writes that he identified the residences of all but one or two. He ad<ls, that Ipswich sent deputies on March 4, IG35, AVeyinouth in September, 1G35, Hing- liam in May, l(i36, Newbury in September, 1636, and Concord in April, 1637. — AV. H. W.
* " At first the deputies were chosen for each General Court; from 1G39 to 1G40 they were chosen semiannually ; and in 1G42 and ever since ttiat time tliey have been elected once a year." — F. C. Gray.
Introduction . 5
"Winthrop (History, i. 191) confirms this as follows: —
" 6th of 3 J month (May) 1G35. The deputies having conceived great danger to our state in regard that our magistrates, for want of positive laws, in many cases, might proceed according to their discretions, it was agreed, that some men should be appointed to frame a body of grounds of laws, in resem- blance to a Magna Charta, which being allowed by some of the ministers and the general court, should be received for fundamental laws."
At the General Court for March 3tl, 1635-6 (Records, i. 169, 170), the system of Courts to be held by the magistrate was set- tled; and it was ordeied that only two General Courts should be held annually, one in May for elections and other affairs, and one in October for making laws and other public occasions. It was also provided that, since there might be differences in the General Courts between the magistrates and the deputies,
" No law, order, or sentence shall pass as an Act of the Court, without the consent of the greater part of the magistrates on the one part, and the greater number of the deputies on the other part; and for want of such accord, the cause or order shall be suspended, and if either party think it so material, there shall be forthwith a committee chosen, one-half by the magistrates, and the other half by the deputies, and the committee so chosen to elect an umpire, who together shall have power to hear and determine the cause in question."
At the General Court, May 25, 1636, it was ordered as follows (Records, i. 174-5) : —
" The Governor [Henry Vane], the Deputy Governor [John Winthrop] , Thomas Dudley, Joim Haynes, Kichard Bellingham, Esquires, Mr. Cotton, Mr. Peters and Mr. Shepherd are entreated to make a draught of laws agree- able to the word of God, which may he the Fundamentals of this Common- wealth, and to present the same to tiie next General Court. And it is ordered that in the mean time the magistrates and their associates shall pro- ceed in the Courts to hear and determine all causes, according to the laws now established, and wliere tlicre is no law, then as near the law of God as they can ; and for all business out of Court for which tliere is no certain rule yet set down, those of the standing council * or some two of them, shall take order by
' This refers to a carious experiment made in 1C36, in the form of a council for life. March 3, 1U35-6 it was voted that the General Court should, from time to time, elect a certain number of the magistrates for the term of their lives as a Standing Council, to be removed only fur crime, insuflBeiency, or other weighty cause ; the Governor always to he president of the body, and the power to be such as the General Court might indue them with. May 25, IGSG, Gov. Win- throp and Thomas Dudley were so chosen; May 17, 1637, .John Endicott was elected; but none others were ever added. The scheme was connected with certain proposals by Lord Say and
6 Inb'oduclion.
their best discretion, that they may be ordered and ended according to tlie rule of God's word, and to take care for all military affairs until the next General Court."
We have seen that in May, 163G, Mr. Cotton, Mr. Peters, and Mr. Shepherd were asked to assist in ])rejiai-ing- a code, and AVin- throj) gives this further information (Hist., i. 240), under date of Oct. 25, 1G36: —
" Mr. Cotton being requested by the General CoutI, with some other ministers, to assist some of the magistrates in compiling a body of fundamental laws, did, tiiis Court, present a copy of IMoses his judicials, compiled in an exact method, which were taken into further consideration till tlie next General Court."
There is nothing to show that any action Avas taken on Mi\ Cotton's draft of hxws, nor, indeed, that anything was done by the committee of 1035 and 163G.
At the General Court, begun March 12, 1637-8, however, a vigorons show of work was made. The following order was then passed (Records, i. 222) : —
" For the well orderinc: of these Plantations now in the bcffinnincr thereof, it having been found by tiie little time of experience we have here had, tiiat the want of written laws hath put the Court into many doubts and much trouble in many particular cases, this Court liath tlierefore ordered, tliat the freemen of c\cry town (or some pai-t thereof chosen l)y the rest) within this jurisdiction, shall assemble together in their scvcr;il towns, and collect the heads of such necessary and fundamental laws, as may be suitable to the times and places, where God in Iiis providence hath cast us. and the heads of such laws to deliver in writing to the Governor for the time being befjre the 5th day of the 4th month, called June, next, to the intent that the same Governor [John AVin- t'lrop] togctjier witli the rest of tlie standing council, and Iiicliard Bellingham Esfjuirc, Mr. Bulkeley, Mr. Phillips, ilr. Peters and Mr. Shciiherd, elders of several cliurciies, ^Ir. Xathaniel Ward, Mr. William Spencer, and Mr. William Hawthorne, or tlio major part of them, may, upon the survey of such heads of laws, make a compendious abridgement of the same by the General Court in Autumn next, adding yet to the same or detecting therefrom what in their wisdoms shall seem meet, tliat so the whole work being perfected to the best of their skill, it may be presented to the General Court for confirmation or
Sele and others in England to join the colony, if hereditary rank and privileges were conceded. Hutchinson (History, i. 501) copies a letter from Kev. John Cotton to Loid Siiy, in 1G3G, wherein lie cites this establishment of a council for life, as intended as a concession to him. But the |)(i))utar feeliuii; was opposed to the plan, and it was dropped informally, Ihougli for a year or two soine duties were imposed on these three memliers. — W. H. W.
Introduclion. 7
rejection, as the Court sliall adjudge. And it \i al:<o ordered, that the said persons shall survey all the orders already made, and reduce them into as few heads as they may, and present them unto the General Court for approbation or refusal as aforesaid."
The next step is showu by the order passed by the General Court, Kov. 5, 1639 (Records, i. 279), viz.: —
"It is ordered that tlie Governor [J. AVinthrop], Deputy Governor [Thomas Dudley], Treasui-er and Mr. Stoughton or any three of them, with two or more of the deputies of Boston, Charlestown or Roxbury, shall peruse all those models which have been or shall be further presented to this Court, or themselves, concerning a form of government and laws to be established, and shall draw them up into one body, (altering, adding or omitting wliat they shall think fit,) and shall take order, that the same shall be copied out and sent to the several towns, that the elders of the churches and freemen may consider of them airainst the next General Court, and the charijes to be defraved l;v the Treasurer."
The full meaning of this order and the cause of the endless delays are explained by Winlhrop's meinorandum under the date of :N"ovember, 1G39. It is as follows (History, i. 388-3S9) : —
" The people had long desired a body of laws, and tliought their condition very unsafe, while so much power rested in tiie discretion of magistrates. Divers attempts liad been made at former courts, and the matter referred to some of the magistrates and some of the elders ; but still it came to no clfect ; for, being committed to the care of many, whatsoever was done by some, was still disliked or neglected Ijy others. At last it was referred to Air. Cotton and Mr. Nathaniel Warde, &c., and each of them framed a model, which were jire- sented to this General Court, and by them committed to the Governor and Deputy and some others, to consider of, and so prepare it for the Court iu the third month next. Two great reasons tliere were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was, want of sufficient experience of tlie nature and disposition of tlie people, considered with tlie condition of the country and other circumstances, which made them conceive, that such laws would be fittest for us, which should arise pro re nata upon occasions, &J., and so the laws of England aul other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For tir.it it would professedly transgress the limits of our charter, whicli provide, we shall make no laws repugnant to the laws of Eng- land, and that we were assured we must do. But to r.iise up laws by practice and custom had been no transgression ; as in our churcli discipline, and i;i mat- ters of marriage, to make a law tiiat marriages shall not be solemnized by min- ifiters, is repugnant to tlic laws of England ; liut to bring it to a custom by
8 Lilroduclion.
practice for the magistrates to perform it, is no law made repugnant, &c. At length (to satisfy the people) it proceeded, and the two models were digested witli dl\ers alterations and additions, and abbreviated" and sent to every town, (12) to be considered of first by the magistrates and ciders, and then to be publislied by the constables to all tlie people, that if any man sliould think fit, that any thing therein ought to be altered, he might acquaint some of the dep- uties therewith against the next Court."
We have here the evidence of a most competent witness, that the delay in framing a code of laws was intentional on tlie part of the magistrates and elders. It is also clear tliat two scliemes were framed, one by Kev. John Cotton and tlie other by Rev. Nathaniel "Ward, and, fortunately, both documents are extant. As already stated, Cotton's scheme was rejected; and yet, having been put in pi-int under a false title, it has long enjoyed an undeserved credit. The plan proposed by "Ward, ijossibly amended by the towns or the General Court, was adopted in 164:1, was known as the Body of Liberties, and is the foundation of the legislation of Massachusetts.
This fact, herein fully set forth and verified, ought lo restore this inestimable document to its proper jilace, to serve as the basis for all future citations of our laws.
The few remaining entries in regard to "Ward's Body of Liberties may now be cited. At the General Court, May 13, 1640 (Records, i. 292-293), it was voted: —
" Whereas a Tjre\iate of Laws was formerly sent forth to be considered by the ciders of the churches and other freemen of the Commonwealth, it is now desired, that they will endeavour to ripen their thoughts and counsels about the same by the general court in the next Sth month."
At the General Court, June 2, 1641 (Records, i. 320) : —
"The Governor [Kiehard Bellingham] is appointed to peruse all the laws, and take notice what may be fit to be repealed, what to be certified, what to stand, and make return to tlie next General Court."
' These manuscript coiiics were made liy Thomas Lochford, as appears by his " Note- Book " (Boston, 1885, pp. 237-8). He enters. " I writt 5 copies more of the Lawes for the Country by the direction of our Governor. 11. 8, 1639. Seven of them and the former had 3 hiH-es added. A Coppie of the Abstract of the Lawes of New England delivered to the Governor, 11. IJ. 1G39. And 12 coppies of the said Lawes first delivered, viz'., in 10 last. For writing a Coppy of the breviat of the body of Lawes for the Country. 12. 5. 39. The 3 lawes added to the Copie of Lawes for Dorchester, delivered to the Constable, 12. C. 1639. The 3 lawes added to 4 more of the said Coppies brought by the marshall. 12. 11. 39. Three Copyes of the said
breviat delivered to the Governor besides the first, 12. 12. 1039 One Coppy of the
Siiid brcviate delivered to Mr. Bellingham, with one coppy of the originall Institution and limitation of the Councell, 12. 17. 1039. Seven toppyes more of the said breviate. — W. H. W.
Introduction. 9
At the General Court October 7, 1(341 (Records, i. 340) : —
" The Governor [Bellingham] and Mr. Hawthorne were desired to speak to Mr. Ward for a Copy of the Liberties and of the Capital laws to Lc trans- cribed and sent to the several towns."
Subsequently at the same Court, under the date of December 10, 1641, is the following entry (Records, i. 344) : —
" Mr. Deputy Endicot, Mr. Downing, and Mr. Hawthorne arc authorized to get nineteen Copies of the Laws, Liberties and tiie forms of oaths transcribed and subscribed by tlieir several hands, and none to be authentic but such as they subscribe, and to be paid for by the Constable of each Town, ten sliillings a piece for each copy, and to be prepared within six weeks."
Finally, at the end of this session of December 10, 1G41, on the original record is the written attestation of Gov. Winthrop as follows : —
" At this Court, the bodye of laws formerly sent forth among the Free- men, etc., was voted to stand in force, etc."
Winthrop (Histoiy, ii. 66) writes in regard to the General Court of December, 1641, as follows: —
" This session continued tliree weeks, and established one hundred laws, which were called the Body of Liberties. They had been composed by Mr. Nathaniel Ward (some time pastor of the church of Ipswich : he liad been a minister in England and formerly a student and a practiser in the course of the common law) and had been revised and altered by the Court and sent forth into every town to be further considered of, and now again in tiiis Court, they were revised, amended and presented, and so established for tlnee years, by that experience to have them fully amended and established to be perpetual."
We have thus, following the exhaustive selections of authorities made by Mr. F. C. Gray, arrived at a few certain conclusions. First, that John Cotton and Nathaniel Wai-d each prepared a code of laws; secondly, that Mr. Ward's code was adopted in 1641 and was the Body of Liberties; thirdly, that his code consisted of one hundred laws ; and, lastly, that the Athenaeum manuscript is a true copy, containing 98 numbered sections, which, with the Preamble and concluding paragraph, make out the requisite one hundred.
That a copy of the manuscript Body of Liberties should have survived is one of the fortunate accidents of literatiu-e. In the
10 Introduclion.
Boston AthenjEum there is preserved a volume which was formerly owned by Elisha Hutchinson, who Avas the grandfather of Gov. Thomas Hutchinson, and who died, in 1717, at the age of 77. It is evident from this collection that Hutchinson gave a careful attention to the question of the laws. He had the printed edition of 1672, to which he added the Supplements, making the collection so nearly complete that it was used for our recent reproduction. He copied some laws in manuscript, he corrected errors of pagina- tion, and in fact did everything possible to perfect his copy.
Prefixed to the Laws is a collection of manuscripts, as fol- lows : —
1. King Charles' Letter from Hampton Court, June 28, 1662.
Printed in Hutchinson'a Collection, p. 377.
2. Declaration of tlie General Court, 23 Jlay, 1065.
3. Connnissioncrs' Eeply, jMay 24, KUio.
Both printed in Hutcliinson, Hist., i. 24G, &c. 4.* King Cliarles' Letter, AViiiteliall, April 23, 1G64.
Printed in 2d Hazard, 634. 5. Colony Charter March 4, 1629.
Printed in Hutchinson, Coll. 1. 6.* Copy of tlie Liberties of the Massachusetts.
7. Parallel between the Fundamental Laws of England & ^Massachusetts. A
part only, the wliole is printed in Hutchinson, Coll., l!)(i.
8. Answer of a Committee of the General Court to matters proposed touching
their Liberties, June 10, 16()I. Primed in Hutchinson, Hist., i. 529.
9. King Charles' Commission to Col. Nichols.
Printed in Hutchinson, Hist., i. 535. 10.* Order in Council, Whitehall July 20, 1677. 11. King Charles' Letter, Newmarket, Sept. 30, 1680.
Printed in Hutchinson, Coll., 522.
All these documents ai-e on uniform paper with a ruled border, but the first nine seem to be in one handwriting, not that of Elisha Hutchinson. Numbers ]0 and 11 seem to be written by the col- lector and transcriber of the Laws. The pagination is 1-47, covering only the articles Nos. 5, 6, and 7, and the book is in its original sheep binding. On the inside of the last cover is the autograph "Elisha Hutchinson," and on the inside of the first cover that of William S. Shaw, Jan., 1816. Mr. Shaw was Libra- rian of the Boston Athenteum from 1813 to 1822, and this book
* These three articles were nut iiseil liv Gov. niitchirisDri. — W. U. W.
hitroducLiun. \\
was doubtless acquired through him, although there is no record of the early accessions to this library.
Fi'om the fact that eight out of the eleven manuscripts were printed by Gov. Hutchinson, it must be conceded that he ])robably used this volume. It seems strange that he did not recognize the value of this copy of the Body of Liberties, and that he should have assigned any hand in the compilation to Rev. John Cotton. In his note to his reprint of Cotton's book, Hutchinson writes: —
" It should rather be entitled An Abstract of a Code or System of Laws prepared for the Commonwealth of tlie Massachusetts Bav ; for altliough when they compiled their laws, they made tliis abstract their plan in general, yet they departed from it in many instances, and in some which were very material." Again, Hutchinson writes (Hist., i. 442), "In the first draught of the laws by Mr. Cotton, which I have seen corrected with Mr. "Winthrop's hand, divers other offences were made capital, viz. — " (Here he cites Nos. X., XIII., XVIII., XIX., XX., XXI., of Chapter YII. of Cotton 'shook) — "The punishment by death is erased from all tliese offences by Mr. Winthrop, and they are left to tiie discretion of the court to inflict other jiunishment short of death."
This statement occurs in the fifth chapter of Hutchinson's His- tory, wherein he is explaining " The System or Body of Laws established in the Colony." He adds (Hist., i. 437) : —
" In the year ir>34 tlie plantation was greatly increased, settlements were extended more than 30 miles from the capital town, and it Mas tiiought high time to have known estabbshed laws, that the inhabitants miglit no longer be subject to the varying uncertain judgments wliich otherwise would be made con- cerning their actions. The ministers, and some of tlie principal laymen, were consulted with, about a body of laws suited to the circumstances of tiie colony civil and religious. Committees, consisting of magistrates and elders, were appointed almost every year, for 12 or 14 years together, and vvliilst tlicy were tluis fitting a code, particular laws, which were of greatest necessity, from time to time were enacted ; and in the year 1648 the whole collected together were ratified by the court and then first printed. i\Ir. Bellingham of tiio magistrates, and Mr. Cotton of the clergy had the greatest share in this work."'
In reply to these general remarks by Hutchinson, I would urge the fact that he seems never to have used, even if he possessed, a copy of the printed laws of 1G60 or of 1619. As will be noted he says the laws were first printed in 1618; but the title of the edi- tion of 1660 says that they were published in the General Court held in May, 1649, and this seems to be the true date. Now, the v(jlume owned by Elisha Hutchiuson not only contains merely the
12 Intioduclloii.
edition of 1672, but the manuscript references made in his copy of the Body of Liberties refer entirely to this later edition. It is rea- sonable to suppose that if Elisha Hutchinson had possessed a copy of the earlier editions, the text of which more nearly conformed to the Liberties, he would have cited one of them.
It does not seem necessary to reprint John Cotton's book, as it has been so often republished. It is to be noted that its first publication, in 1641, was anonymously, in I^ondon. The title is, "An Abstract of the Lawes of New England, as they are now established. London, Piinted for F. Coules and W. Ley at Paules Chain, 1641." Pp. 1-15 and two pages of the Table. Anyone sending this book to the pi'ess from Boston, would have known that there was no colony named New England. These laws at most could only relate to the colony of Massachusetts Bay. It was doubtless the Avork of some English friend of Cotton's, who had a copy of his manuscript, and who, hearing that a code of laws had been established, jumped to the conclusion that this was the one.
But iu 16oo AVilliam Aspinwall, who had lived here and in Rhode Island, reprinted Cotton's book in London, increasing the bulk by printing at length the citations from the Bible and even adding some that were lacking. A full comparison of the two edi- tions is given in the reprint of Hutchinson's Collection of Papers by the Prince Society of Boston, 1865, i. 181-205.
In his pi-eface, Aspinwall makes the following plain disclaimers r)f any idea that Cotton's work ever became law. He says these laws Avere
" Aconimodated to tlie Colonic of the Massachuscts in New England, and commended to the General Court tlierc, which liad they tlicn had the licart to have received, it niiglit liavc been better both with tliem there, and us liere, tiian it now is Tiiese are not prop- erly Laws, but prudeiitiail '' Iiules, whicii he recommended to that Colonie,
'This word "prudential " is one wliicU lias had a great significance in our legislation. Liberty (IG sajs : " The freemen of every township shall have power to make such by-laws and constitutions as may concern the welfare of tlieir town, provided that tliey be not of a criminal, but only of a prudential nature, and that their i)enalties exceed not twenty shillings for one offence ; and that they be not repugnant to the public laws and orders of the country. And i^ any inhabitant shall neglect or refuse to observe them, they shall have power to levy the appointed penalties by distress."
The foundation of the law, but not the term, is in a vote of the General Court, March 3, 1C35-6 (Records, i. 172), where it is ordered that "the freemen of every town, or the major part of them, shall only have power to dispose of their own lands and woods, with all the privileges and appurtenances of the said towns, to grant lots, and make such orders as may concern the well ordering of their own towns, not repugnant to the laws and orders here established by
Tntiodncllon. 13
to be ratified with tlie common assent of tlie freemen in each Towne, or by their Iteprcsentatives in the General Court, aa pubiique Contracts. AVhich being once made and assented to for tlieir owne convenience, do binde as Cove- nants do, untlll by like pubiique consent tiiey be abrogated and made voyd. For though the Author attribute the word [Law] unto some of them ; yet tiiat it was not his meaning that they siiould be enacted as Lawes (if you take the word Law in a pro|)er sense), appears by his conclusion taken out of Isn. 33 : 22. Hee knew full well that it would be an intrenchment upon tlie Royall power of Jesus Christ, for them or any otlier of the sonnes of Adam to ordain Lawes."
" It is not my purpose to perswade this or any other nation (were they will- ing to heare) to enact or ratifie these by any power of their own (in a solenm convention of their Representatives) as Laws : Neither do I believe it was the Authors intention so to do, when he drew up tliis modell. For alas, what energie or vertue can such an act of poore sinfuU creatures adde unto the most perfect and wholesome lawes of God? It is enough for us, and indeed it is all that can be done by any people upon earth : 1. To declare by their Ilej)re- sentatives, their voluntary subjection unto them, as unto the lawes of the Lord their God. 2. After such professed subjection to fall unto the practice tliereof, in the name and strength of Christ their King and Law-giver."
" This Abstract may serve for this use principally (which I conceive was the main scope of that good man, who was the author of it) to shew tlie com-
tlie General Court; as also to lay mulcts and penalties for the breach of these orders, and to levy and distrain tlie same, not exceeding the sura of twenty sliillin?s; also to choose their own par- ticular officers, as constables, surveyors for the highways, and tlie like."
June 14, 1C42, the General Court (Records, ii. C) passed a law for the proper training .and employment of children, and st.ite " tliat in every town the chosen miii appointed for iiianagin;; \he prudential affairs of the same shall henceforth stand charged with the care of tlie redress of this evil."
Again, Oct. 7, 1646 (Records, ii. 162-163) the Court passed this order : " Wherciis there is no order made appointing wlio shall end causes in towns under tlie value of 20 shillings, wliere one only magistrate dwuUs, and the cause concerns himself, it is therefore hereby ordered, tliat in such cases the 6 or 7 or more men in every such town, which are selected ior prudential affairs, shall have power to hear and determine such cases," etc., etc.
Kov. 4, 1646, the General Court (Records, ii. 180) pissed certain orders entitled I'ru- dentiall Laws, though it is not clear that more than the first section was so designated. That one reads: "Every township, or such as are deputed to order the prudeniialls t\wTvof, shall have power to present to the Quarter Court all idle and unprofitable persons, and all children who are not diligently employed by their parents, which Court shall have power to dispose of them, for their own welfare and improvement of the common good."
So again an order of the General Court, M.ay 26, 1647 (Records, ii. 19), declares th.at " henceforth it shall and may be lawful fi>r the freemen within any of the said towns to make choice of such inhabitants, though non-freemen, who have taken or shall take the oath of fi.klity to this government, to be jury men, and to have their vote in the choice of selectmen for town affairs, assessment of rates, and other prudentials, proper to the selectment of tlie several towns."
May 26, 1658 (Records, iv. part 1, pp. 335-3,36) tlie Court speaks of two laws in the printed book, title Township, about the right of all Englishmen wlio have taken the oath of fidelity to be chosen jury men or constables, and to have tlieir vote in the choice of the selectmen for the town affairs, assessments of rates, and other prudentials proper t) the selectmen of the several towns. These laws are all repeated in the edition of 16G0, pp. 75-76.
14 Introduction.
pletc suflficienoy of the word of God alone, to direct his people in judgment of all causes, both' civil and criminal, as we are wonted to distinguish them. Whicii being by him done, and with all sweetness and amiableness of spirit tendered, but not accepted, he surceased to press it any further at that season, knowing full well that tlie Lord's people shall be a willing people in the day of his power. But the truth is, both they and we, and the other Gentile nations, are loth to be persuaded to dwell in the tents of Shem, and to lay aside our old earthly forms of government, to submit to the government of Christ."
It seems, therefore, to be certain that any claim that Cotton prepared the Body of Liberties, rests upon an unauthorized title- page and the vague and unsupported opinions of Gov. Hutchin- son. The evidence to the contrary is found in Aspinwall's positive statements above cited, and in the very nature of Cotton's book. It is a treatise in ton chapters, stating powers, duties, rights, and penalties, fortitied throughout by references to the Old Testament. The sections are not framed as hiws are, and the only wonder is that any one could suppose for a moment that any legislature ever enacted them.
The same words are again used in the edition of Laws in 1672, pp. 147, 148.
Under the ntw Cliarter, in the session of 1GD2-3, chap. 28 (Province Laws, GoodeU's edition, i. 60) the froeliolders and inhabitants in a town meeting could pass " necessary rules, orders and by-laws for the directing, managing and ordering the prudential affairs of such town," with penalties not exceeding twenty shillings, etc., to be approved by the justices in Quarter Sessions. In \KU; (Iliid., i. 2I.S) the clause requiring the consent of the justices was repealed, and an appeal to tlieni was granted to any one punished under such by-laws.
Again, after the establishment of the State, chap. 75 of Acts of 1783 repeated the powers of towns to make "rules, orders and by-laws for the directing, managing and ordering the prudential affairs o{ the town," with penalties not exceeding tliirty shillings, and provided the laws are api>rovcd by the Court of General Sessions of the Peace in the same county.
The Revised Statutes of 1836, chap. 15, § 13, contirmes the same words, with twenty dollars penalty, and the ajiprovMl of the Court of Common I'leas.
The General Statutes of 18lj(), chap. IS, § 11, retains tlie phrase, " directing and managing the prudential affairs " of the town ; as dues tlie Public Statutes of 1881), chap. IT, § 15, which, in defining the pi)wers of towns to pass by-laws, allows them " fir directing and managing the prudential affairs, preserving the peace and good order, and maintaining the internal police thereof."
I have thus briefly traced this phrase, "prudential affairs," from the Body of Liberties in 1641 to the present time, and can only say that the earliest definition is the clearest and best. All matters, not reserved for state jurisdiction, but affecting the welfare of the town in its cor- porate capacity, and evidently susceptible of proper regulation under the penalty of a moderate fine, have been, and still are, suitable subjects for control in towns by by-laws, and in cities by ordinance. The origin of the term is obscure. One would expect to find it in the contemporary theological literature, hut it was cert.ainly not in common use. Perhaps Ward invented it, as his "Cobler" is full of strange words. In 1053 (Records, Vol. iv., part i., p. 145) a matter is said to be " s.afe and prudential," and there the word is equivalent to " prudent." A similar use of a word is "economy" a d "economical." A man is economical, but we speak of political economy, and towns regulate their domestic or internal economy. — W. U. W.
Introduction. 15
But equally strong evidence remains to show what the Body of Liberties actually contained. The Laws of IGGO as well as those of 1672 contain numerous citations of laws under the date of 1G41. These laws, with very few exceptions, are not entered on tlic Records of the General Court, as passed in that year. Hence these must have been comprehended in some general enactment, to wit, the Body of Liberties. An analysis of these laws is given later on. In the meantime I would cite the following evidence: First, on October 17, 1643 (Records, ii. 48), the General Court declared " that whereas in the Book of Liberties, No. 23, it was ordered none should take above 8£ per cent., — bills of exchange are ex- cepted." This reference is to our No. 23. Secondly, March 7, 1643-4 (Records, ii. 61), the Governor .[Winthrop], Mr. Dudley, and Mr. Hibbens, or any two of them, were made "a committee to consider of the Body of Liberties against the next General Court." Third, the General Court voted May 26, 1647 (Records, ii. 194), " for explanation of the order in the Liberties about 6 days warn- ing to be given to the defendant in every action, &c., it is hereby declared that the day of the summons or attachment served and the day of appearance shall be taken inclusively as part of the six days." Here the reference is to Liberty No. 21, as printed herein, amended in Laws of 1660, p. 4, title Attachments, § 2, line 5, by adding the word "inclusively" after the words "six days." Of course our copy of the Liberties is the earlier form, prior to May, 1647.
Lastly and most conclusive of all, the General Court in 1646 had to consider a Remonstrance and Petition from Robert Child and others who were dissatisfied with the government. The Court empowered Governor Winthrop, Deputy Governor Dudley, Rich- ard Bellingham, and the Auditor General (Lieut. Nathaniel Dun- can) to draw up a reply to be forwarded to England by Mr. Winslow. This document is printed in Hutchinson's Collection of papers (Prince Soc. edition, i. 223-217). One of their chief arguments, to j^i'ove that the laws here are conformable to those of England, is an elaborate parallel of items printed face to face.
" In this they set forth forty-four fundamental propositions, annexing to each the authorities for it. Six times they refer for authority to their Charter ; seven times to custom ; eij^ht times to laws of specified dates ; once to tlie Bihle ; and twenty-seven times to the Liberties, citing each by its appropriate number." — ,F. C. Gvdij.
16 Introduction.
l^ot one of these citations of t'he Liberties conforms to any item in Cotton's book ; but every one of them, by specific number, refers to and agrees with a section of the manuscript copy pre- served by EUsha Hutchinson. The separate sections (one or two being cited more than once) are Nos. 1, 2, 3, 10, 14, 17, 18, 29, 31, 30, 37, 42, 48, 53, 59, G3, G5, 81, 82, 94, and 95; in all twenty-one out of one hundred, and scattered from number one to number ninety- five. It is impossible to present stronger evidence that this mann- script copy of the Body of Liberties is identical with the one xised by the Committee of the General Court in 1646.
As the original book containing these citations is quite rare, and in oi'der that there may be no question of the identification, the following exti'acts are given of such paragraphs, as they occur in order, which are said to be taken from the Body of Liberties: —
" FUNDAMENTALLS OF THE MASSACHUSETTS.
Comj)(tred with Magna Charta.
1. All persons orthodoxe in judgment and not scandalous in life may gather into a church estate according to the rules of the gospell of Jesus Christ. Liberty 1.=
Such may choose and ordaine their owne officers, and exercise all the Or- dinances of Christ, without any injunction in doctrine, worship or discipline. Liberty 2 & 38.9
2. No mans life, honor, liberty, wife, children, goods or estate shall be taken away, punished or endamaged, under colour of lawe, or countenance of authoritie, but by an expresse lawe of the general court, or in defect of such lawe, by the word of God &c. Liberty, 1.
Every person within the jurisdiction &c shall enjoy the same justice and lawe <S:c without partiality or delay. Liberty 2.
All laws and hereditaments shall be free from all fines, forfeitures &c. Liberty 10.
Every man may remove himselfe and his familic &c if there be no legal impediment. Liberty 17.
G. Difficult cases are finally determinable in the court of assistants or in the generall court by appeale or petition, or by reference from the inferiour court. Liberty 3 1 &, 36.
7. Upon unjust suites the plaintiflf shall be fined proportionable to his offence. Liberty 37.
No man's goods shall be taken away but by a due course of justice.
'This is the clerical error for Item 1 of Liberty 95. — W. H. W.
'This is the similar error for Items 2, 3, and 8 nf Liberty 95. — W. H. W.
Introduction. 17
Liberty 1, In criminal causes it shall be at the liberty of the accused partie to be tr\'ed l)y the bencli or by a jury. Liberty 23.'"
Comjiared with the Common Laws of England,
7. In our own court of judication all causes civill and criminall are determinable, either by the judges and jury, or by the judges alone &c as in England. This is done both by custome and by divers laws established accord- ing to our charter, as Liberty 29, &c.
12. In all criminall offences, where the law hath prescribed no ccrtaine penaltie, the judges have power to inflict penalties, according to the rule of God's word. Liberty 1, and by Charter, &c.
15. All publicke charges are defrayed out of the publicke stocke. Cus- tome and Liberty 63.
19. No mans person shall be restrained or imprisoned &c. before the lawe hath sentenced him thereto, if he can put in sufficient bade, &c. except in crimes capitall, &c. Liberty 18.
20. The full age, for passing lands, giving votes, &c. is twenty one yeares. Liberty 53.
21. Married women cannot dispose of any estate, &c. nor can sue or be sued, without the husband. Custome and Liberty 14.
22—1. The eldest soune is preferred before the younger in the ancestors inheritance. Liberty 81.
2. Daughters shall inherit as coparceners. Liberty 82.
3. No custome or prescription shall ever prevail &c to maintaine anything morally sinnfull. Liberty 65.
4. Civill authority may deale with any church member or officer, in a way of civill justice. Liberty 59.
5. No man shall be twice sentenced by civill justice for the same offence. Liberty 42.
6. No man shall be urged to take any oath or subscribe any articles, covenant, or remonstrance of a publick and civill nature, but such as the generall court hath considered, allowed and required. Liberty 3.
7. Publick records are open to all inhabitants. Liberty 48.
They also cite under the Common Law.
13. Treason, murther, witchcraft, sodomie and other notorious crimes are punished with death : But theft &c is not so punished, because we read otherwise in the scripture. Capitalls &c.
'" This is the third clerical error ; it should be Liberty 29. A comparison with the frag- mentary copy contained in Elisha Hutchinson's book shows that the first citation was Libr. 1 ; the second was " Libr. 3 & 5 in Eccles." meaning of course Liberty 95 concerning Churches; and the third is plainly Libr. 29. Evidently the errors of the text are simply clerical ones, and not citations from any other arrangement of the Liberties. I have put in an Appcmlix a fac- simile of the manuscript copy of this article, as tlie larger draft, printed by Gov. Hutchinson, seems to be lost. It is complete as far as it goes. — W. II. W.
18 Introduction.
14. Adultery is punished according to the canon of the spirituall law, viz. the scripture. Capitalls &c.
These two references are plainly to Liberty 94, which is entitled " Capitall Laws."
The absolute certainty of the identification of our manuscript copy being thus shown, it may be well to say a few words about tlie author or authors of the drafts. Hutchinson says, as before cited, that Mr. Bellingham of the magistrates and Mr. Cotton of the clergy had the greatest share in this work. "We have seen that he was wrong as to Cotton; but Bellingham undoubtedly served on nearly all the committees, as did Winthrop and Dudley. Bel- lingham was bred a lawyer and was Recorder of Boston in Lin- colnshire from 1625 to 1683; hence his connection with the compilation of our code is extremely natural and may well have been of considerable influence. It is to be noted that in the con- trovei'sies between the Assistants and the Deputies he took sides with the latter, and may thus be claimed as likely to favor popular rights in the establishment of this Magna Charta of New England.
But, after all, the contemporary evidence of Governor Winthrop assigns the main work of compiling the code to one man, namely, Kev. Nathaniel Ward, of Ipswich. From an interesting memoir, prepai-ed by a descendant, John Ward Dean, and published at Albany, 1868, we learn that Ward had special qualifications for this work. He was born about A.D. 1578 at Haverhill, England, and was the son of Rev. John Ward, an eminent minister there. He was graduated at Emmanuel College, Cambridge, A.M., in 3603. He studied and practised law, and Candler says that he was an Litter Barrister. He then travelled on the continent and stayed some time at Heidelberg. He entered the ministry about 1618, and was probably chaplain at Elbing, in Prussia. Returning to Eng- land he became rector of Stondon-Masscy in Essex, but was sus- pended by Land for Puritanism. In 1631 he came to New England, and settled at Ipswich, where he was pastoi* and Rev. Thomas Parker was teacher. He resigned his charge in about two years, owing to illness. In the winter of 1646-7 he leturned to England, leaving his family here; and in June, 1G17, he preached before the
Jii/rndiicfion. 19
House of Commons. In May, 1G48, he was appointed minister at Shcnfiekl, about five miles fi-om his former home at Stondon-Massey. Here he ended his days in 1G52 or 1053, aged some seventy-five years. He wrote various books," of which the most famous was his " Simple Cobler of Agawam," written here and published in Lon- don in January, 164G-7. He was a witty as well as an earnest writer; a conservative, and yet forced by events to stand with the Parliament against the King. There is printed in Mass. Soc. Coll. 4th S. vol. vii, pp. 26-27, a letter from Ward to Governor Win- throp, in 1639, concerning the new laws, wherein he doubts the expediency of " sending the Court business to the common con- sideration of the freemen." He says, "I see the spirits of the people runne high, and what they gett they hould. They may not be denyed their proper and lawfuU liberties; but I question whether it be of God to interest the inferiour sort in that which should be reserved inter optimates penes quos est sancire leges. If Mr. Lach- ford have writ them out, I would be glad to peruse one of his
copies, if I may receive them There
is a necessity that the Covenant, if it be agreed upon, should be considered and celebrated by the several congregations and towns, and happily the tenure, but I dai-e not determyne concerning the latter. I mean of putting it to the suffrage of the people."
Without overrating the influence of any one man in the prep- aration of this admirable code, and believing firmly that it embodied the best judgment of Winthrop and other leaders, there seems to be no reason to doubt that the main literary work, at least, was due to Nathaniel Ward, and that his legal abilities and training were at least equal to those of any of his associates. In his " Simple Cobler" (edit, of 1843, p. 68) he writes, "I have read almost all the Common Law of England, and some Statutes." It may well be that the Common Law of England was the source from which these wise provisions were extracted, foi- in the Reply of the Col- ony in 1646, already cited, {ante, pp. 16, 17,) our laws are com- pared only with Magna Charta and the Common Laws of Eugland.
We know of one instance in which a change was made in the first draft. Thomas Lechford, of whom we have before spoken as a copyist employed on the work, has recorded the fact that his remonstrance changed one item. In liis " Plain Dealing, or News
" Among the strange words used by Ward, I note, pudder, cxulcerations, coUuvies, sedulity, jadish, interturbe, corrive, quidanyc, prestigiated, igimtions, niumiiciiliims, dedolent, exadvcr^c, per-peracute, nugiperous, nudiustertian, fiililous, pcrquisquilian, iiidinominable, precellem-v . surquedryes, prodromies, di^lad'mtiiins, prosult, biviuus, awke ; besides many, almost iuimnUT- able, oddities of combination. — W. W. H.
20 Introduction.
from New England," London, 1G42 (Trumbull's edition, Boston, 1867, pp. 72-74), he prints a paper delivered by him to the Gover- nor, etc., March 4, 1639-40. We cite as follows: —
Whereas you have been pleased to cause me to transcribe certain Breviats of Propositions delivered to tiie generall Court, for tiie establishing a body of Lawes, as is intended, for the glory of God, and the welfare of this People and Country ; and published the same, to the intent that any man may acquaint you or the Deputies for the next Court, what he conceives fit to be altered or added, in or unto the said lawes ; I conceive it to be my duty to give you timely notice of some things of great moment, about the same Lawes, in discharge of my conscience, which I shall, as Amicus curice, pray you to present with all faith- fulnesse, as is proposed, to the next generall Court, by it, and the reverend Elders, to be further considered of, as foUoweth : —
1. It is propounded to be one chicfe part of the charge, or office of the Councell intended, to take care that the conversion of the Natives be endeav- oured.
2. It is proposed, as a liberty, that a convenient number of Orthodox Christians, allowed to plant together in this Jurisdiction, may gather themselves into a Church, and elect and ordaine their Officers, men fit for their places, giving notice to seven of the next Churches, one month before thereof, and of their names, and that they m.iy exercise all the ordinances of God according to his Word, and so they proceede according to the rule of God, and shall not be hindered by any Civill power : nor will this Court allow of any Church other- wise gathered.
This clause {nor will the Court <dlow of anij Church otherwise (jath- ered) doth as I conceive contradict the first proposition.
He then ai-gues, briefly but clearly, that to convert the Indians they must send evangelists, and that the converts must be gathei'ed into churches. But these churches are not made up, as the law requires, of" a convenient number of orthodox Christians," planting together and gathering themselves into a church ; and therefore are prohibited from any recognition under the law. The point seems sound, though very small ; and the remonstrance apparently had its effect. The law of March 3, 1635-6 (Records, i, 108), said "it is ordered that all persons are to take notice that this Court doth not, nor will hereafter, approve of any such companies of men as shall henceforth join in any pretended way of church fellowship, without they shall first acquaint the magistrates and the ciders of the greater part of the churches in their jurisdiction, with their intentions, and have their approbation herein." Liberty 95, § 1, as enacted, allows that "All the people of God within this jurisdic- tion who are not in a church way, and be orthodox in judgment,
Infroducdon.
21
and not scandalous in life, shall have full liberty to gather them- selves into a Church estate: provided they do it in a Christian way, with due observance of the rules of Christ revealed in his word."
We see from Lechford's I'eport, the rough draft of a law which was proposed, and in the published Liberty we see the amended statute. How many other cases there were is necessarily un- known. But in this example two things are noteworthy. First, Lechford himself was not a favorite with those in authority. He differed on various topics, he argued with the magistrates and the clergy. He was silenced by order of the rulers, and he was finally starved into returning to England. Yet his comments seem to have been fairly considered, and being found valid, they influenced the form of the law as passed. Secondly, it seems veiy strange that he, one of the few lawyers in the colony, should have found nothing else to which to object, in view of the great amount of legislation thus put into force, for which the English statutes gave no precedent.
The Body of Liberties as established in 1641 can be traced with only trifling changes in the edition of Laws of IGGO. It is not cited in that book by that name, but as nearly all of the sec- tions have the date of their enactment appended, we can easily trace the laws assigned to 1641.
The following table and notes will enable the reader to see that the legislation of 1641, so incorporated into the collected Laws of 1660, is not to be found on the records of the Legislature. It must, therefore, be sought in some other collective body of enact- ments of that date, and we have already seen that such was the
Body of Liberties.
Laics dated 1641.
|
Acts of 16G0. |
Acts of 1672. |
Title. |
Dody of Liberties. Number. |
|
r. 1 |
P. 1 |
Preamble. |
Preamble. |
|
1 |
1 |
Ability, Age. |
11, 53. |
|
2 |
3 |
Actions, § 7, 8. |
22, 28, 37. |
|
2 |
3 |
Appeal.'* |
3r). |
|
3 |
4 |
Appearance. |
4. |
'^ Tbis law is cited <is 1642 in both editions of the Laws ; but llulcbiuaoii notes tiiut it was founded on Liberty No. 3G. — W. II. VV.
22
Introduction.
Laws dated 1641. — Continued.
|
Acts of IGCO. |
Acts of 1C72. |
Title. |
Boily (if l.ilji-rties. Niinibor. |
|
P. 4 |
P. 6 |
Arrests. |
33. |
|
4 |
8 |
Attachments, § 1, 2. |
39, 21, 25. |
|
5 |
9 |
Barratry. |
34. |
|
5 |
9 |
Benevolences. |
See Notes, 1. |
|
5 |
10 |
Bond-slavery. |
91. |
|
G |
10 |
Bounds of Towns. |
See Notes, 2. |
|
8 |
14,15 |
Capital Laws." |
94. |
|
10 |
17 |
Cask, Cooper. |
See Notes, 3. |
|
11 |
18 |
Cattle, § ?>}' |
24. |
|
14 |
22 |
Charges, Public. |
63. |
|
15 |
25 |
" § ?>.'^ |
13. |
|
17 |
28 |
Cliildren and Youth, § § 5 and G. |
83, 84. |
|
18 |
29 |
Clerk of the Writs. |
See Notes, 4. |
|
19 |
30 |
Condemned. |
44. |
'^ The Capital Laws as printed in IfiCO are those contained in Liberty 94, for the first twelve laws, witli slight clianfies in Nos. 3 and 4. The General Court, June 14, IC42 (Records, ii, 9.2), added three more capital crimes, viz. : criminal connection with a child under ten years of age, ravishing a married woman or betrothed maid, or ravishing a single woman aged over ten years. It was also ordered that all these capital laws be printed. Accordingly, in Major John Child's book, printed in London in 1647, entitled " New England's Jonas cast up at London," etc. (Mar- vin's edition, Boston, 1800), will be found a reiu'int of these fifteen Capital Laws, arranged somewhat differently in order. Nos. 3 and 4 are, however, the same as in the Body of Liberties.
But tlie General Court on Novemlier 4, ICAG (Hecords, ii, 177), passed a preamble and law about Blasphemy, which superseiled Law No. 3 of the Liberties, and is the form followed in the Revision of KifiO. At the same time (Records, ii, 1711) they passed the two capital laws against wicked children, which are Nos. 13 and 14 in the Laws of IGOO; and also (Records, ii, 182) the section imnishing those a^'cused of capital crimes wiio did not stand a trial.
The Laws of IDiJO contain but one section about Rape, thereby ignoring two of the laws passed, as we have seen, in li;42. These punished fornication with a female child under ten years of age, and ravishing a married woman or a betrothed maid. The citation for this sectiim is 1049, but I fail to find any express legislation on that subject in that year. I am therefore inclined to believe that the change was made in the revision of Kil'J, under the powers given the revisers.
It is evident that the revision was not satisfactory, for the General Court, Oct. 12, 1060, on a flagrant case, tiuding that there was then no law, re-enacted (Records, vol. iv, part ii, jip. 437- 8) the jiunishment for .abusing a child under ten years, as deatli. Laws of 1672, p. 15. § I 7.
Still there seems to have been no punishment provided for rivisliing a niarrieil woman. Lender the New Charter (Goodell's I'rovince Laws, i, .56), an Act was passed defining capital crimes, including ravishing any worn An. It was ])assed in 1003, but disallowed by the Crown. In 1697 (Ibid., i, 2'J(J ) an Act was passed punishing the rape of any woman or the abuse of a woman child under ten years of age. — W. 11. \V.
'* Cited as 1046. but referred by Hutchinson to this Liberty. — \V. H. W.
'■' This law is dated 1646, 47, 51, 57; but Hutchinson notes that the last paragraph of § 3 is based on Liberty No. 13. — W. II. W
Inh-oduclion.
23
Laws dated 1641. — Continued.
|
Acts of 1600. |
Acts of 1G72. |
Title. |
Body of Liberties. Number. |
|
|
v. 20 |
P. 32 |
Conveyance, § 3. |
40, 15. |
|
|
21 |
33 |
do § 4. |
See Notes, 5. |
|
|
22 |
35 |
Courts, § 4. |
72, 73. |
|
|
23 |
(( |
do § 6. |
69, 71. |
|
|
(S |
36 |
do § 6. |
19, 20. |
|
|
24 |
38 |
do § 10. |
41. |
|
|
<( |
a |
do § 12. |
See Notes, 6. |
|
|
24 |
39 |
Cruelty. |
92. |
|
|
25 |
39 |
Death untimely. |
57. |
|
|
25 |
41 |
Deputies, § 2. |
62, 68. |
|
|
26 |
41 |
Distress. |
35. |
|
|
26 |
42 |
Dowries. |
See Notes, 7. |
|
|
26 |
43 |
Drovers.'* |
93. |
|
|
27 |
<( |
Ecclesiastical, § 3-12. |
95, §§ 1-10, 58, 59, [§ 2 is new, and |
60. the |
|
29 |
48 |
Elections, § 4. |
numeration is thei changed.] 67. |
^eby |
|
30 |
49 |
Farms. |
See Notes, 8. |
|
|
31 |
50 |
Ferries. |
See Notes, 9. |
|
|
40 |
73 |
Impresses. |
5, 6, 7,8. |
|
|
40 |
74 |
Imprisonment. |
18. |
|
|
43 |
77 |
Indians. |
See Notes, 10. |
|
|
47 |
86, 87 |
Jurors, § 1, 2, 3, 5. |
50, 61, 31, 76, 49. |
|
|
48 |
88 |
Lands, Free. |
10. |
|
|
50 |
90, 91 |
Liberties, Common. |
12, 16, 17. |
|
|
51 |
101 |
Marriage, &c. |
80. |
|
|
54 |
105 |
Masters & Servants, § 6, 7, 8, 9. |
85, 86, 87, 88. |
" It is worth while to note that in Liberty 93, the word " lambe" is used, and in the Laws of 1660, the word is " lame." — W. H. W.
24
Introduction.
Laws dated 1641,
Concluded.
|
Acts of IGGO. |
Acts of 1672. |
Title. |
Body of Liberties. Number. |
|
r. Gi |
P. 116 |
Mines. |
See Notes, 11. |
|
62 |
119 |
^lonopolies. |
9. |
|
62 |
119 |
Oaths." |
3. |
|
66 |
126 |
Prescriptions. |
65. |
|
67 |
128, 129 |
Protests. |
75. |
|
67 |
129 |
Punishment, Torture.'^ |
42, 43, 45, 46. |
|
68 |
129-131 |
Eecords, &c., § 1,3. |
64, 38, 48. |
|
69 |
132 |
Replevin. |
32. |
|
72 |
139 |
Ships, § 1. |
See Notes, 12. |
|
73 |
143 |
Strangers. |
2,89. |
|
75 |
147, 148 |
Township." |
56, 66, 74. |
|
76 |
150 |
Treasurer.^' |
78. |
|
77 |
152 |
Trials. |
29, 30, 52. |
|
78 |
153 |
Usury. |
23. |
|
78 |
153 |
Votes.^i |
54, 70, 77. |
|
81 |
158 |
Wills. |
81, 82. |
|
81 |
158 |
"Witnesses. |
47. |
|
83 |
161 |
Wrecks. |
90. |
" By Hutchinson wrongly m.-irked as p. 219. — W. H. W.
'" This chapter is undated in the Laws, but Hutchinson refers it to Liberties 42, 43, 45 and 46. —W. H. W.
"This chapter is dated 1630, 1G42, 4", 53, 58; yet there are three sections taken from the Body of Liberties. The omission of 1641 is clearly a clerical error. — W. H. \\'.
™ Tills chapter has no citation in the Laws under date of 1641, but Hutchinson rightly assigns part of it to Liberty 78. — VV. H. W.
*' Tliis is erroneously dated 1651, yet Hutchinson properly refers it to Liberties nos. 54, 70, and 77. — W. H. W.
The following explanatory notes will, perhaps, make the matter plainer: —
First. Laws of 1660, p. 5, Title " Benevolence." This law is dated 1641, but is not in the Body of Liberties. It was passed June 2,1641 (Records, i, 327), and therefore probably after the Body of Liberties had been compiled.
Introduction. 25
Second. Edilion of IGGO, p. 6, Title " Bounds of Towns." Citation 1041, though in the edition of 1072 cited as 1651. A short law was passed June 2, 1641 (Records, i, 319), but the main part of this act was passed Nov. 11, 1647 (Recoi'ds, ii, 210).
Third. Laws of 1660, p. 9-10, Title " Cask & Cooper." The laws are dated 1641, 1647, 1651, 1652. I find no law on the sub- ject in 1641, but there was one passed Sept. 27, 1642 (Records, ii, 29), the terms of which are incorporated in the Laws of 1660. Evidently the date is a misprint, by no means the only one.
Fourth. Laws of 1660, p. 18, Title " Clerk of the "Writs." This law was passed Dec. 10, 1641 (Records, i, 345), and, of course, after the Body of Liberties was already in form.
Fifth. Laws of 1660, p. 20-21, Title "Conveyances," &c. § 4 is assigned to 1641 and 1612. This law was passed October 7, 1640, and this date is incorporated into the law as printed. Evi- dently 1641 is a misprint for 1640.
Sixth. Laws of 1660, p. 24, Title " Coui-ts," § 12. This is a law that " every Court in this jurisdiction where two magistrates are present, may admit any church members that are fit, to be freemen; giving them the oath: and the Clerk of each Court shall certify their names to the Secretary at the next General Court." 1641.
This date of 1641 is clearly a misprint. May 20, 1642 (Rec. vol. ii, pp. 2-6 of the second edition only) the following order was passed : " There is power given to every Court within our jurisdiction, that hath two magistrates, to admit any church members that are fit to be free, and to give them the freeman's oath, and to certify their names to the Secretary at the next General Court." May 10, 1643 (Records, ii, 38), it was ordered "concerning members that refuse to take their freedom, the churches should be writ unto, to deal with them." In the list of Freemen (Records, ii, 2'Jl) all seem to have been made free in May of the respective years, except a few at Salem in Dec., 1642, and February, 1642-3, and some at Springfield, in April, 1048. As to these last, it was ordered Nov. 11, 1647 (Records, ii, 224) that "Mr. Pinchin is authorised to make freemen in the town of Springfeild, of those that arc in covenant and live according to tiieir profession."
Again, Nov. 11, 1647 (Records, ii, 208), it was voted that "there being
in this jurisdiction many members of churches, who to exempt themselves from
aU jjublic service in the commonwealth, will not come in to be made freemen,"
• it is ordered that they be not exempt from serving in town offices,
if elected.
June 19, 1650 (Records, iv, pt. 1, p. ID), Robert Clements, at the re-
26 Introduction.
quest of tlie town of Haverhill, was empowered to pive tlie oath of fidelity. Ill 1()0."5 (Ibid., p. 127, 121)) special commissioners were sent to establisli ju- risdiction at Kittcry and at Saco, and they admitted freemen there. Other special cases may be found on the records.
jNIay 31, IfiGO (Ilecords, iv, pt. 1, j). 420) tlie General Court declared "that no man whatsoever shall be admitted to the freedom of this i)ody politic, but such as are members of some church of Christ, and in full communion ; which they declare to be the true intent of the ancient law, page the 8th of the second book, anno g'' 1G31."
June 28, 1G()2, Charles II. sent a letter to the Colony ordering the redress of grievances. It is printed in Hutchinson's Collections, Prince Soc. edit, ii, 100-104. He especially ordered a change in the law concerning freemen. Accordingly on Aug. 3, ]G()4 (Records, iv, jiart ii, p. 117), the General Court declared, "that the law ])rohibiting all persons except members of churches, and alio t/ial for aJloicance of tlictn in uni/ Conntij Courts, are hereby repealed."
See my preface for an explanation of the -ditfcrences between the two editions of the j)rinted Records.
Seventh. In the edition of 1672, p. 42, Title " Dowries," the date is given as 1641. But in the laws of 1660 it is dated 1647, which is somewhat confusing. The reference to 1641 may refer to Lihei'ty Xo. 79; but it looks more like a misprint. The records do not contain any law of 1647, but May 2, 1649 (Records, ii, 281), reference is made to " the printed law concerning dowries," and amends it by striking out the clause giving the widoAV "a third part of her husband's money, goods, and chattels, real and personal ; " and also by ordering in the 14th line of said order the insertion of the words " then by act or consent of such wife."
Both these changes are incorporated in the text in 1660, and the proviso is made that the law shall not attect houses, lands, etc., sold before the last of Novembei', 1647. Hence, it would seem that there was a law passed and printed in that year, though not entered in the legislative records.
Eiglith. Laws of 1660, p. 30, Title " Farms." The order that all farms in a town shall belong therein, excc])t Medford, is dated 1641, and is not in the Liberties. It was passed June 2, 1641 (Records, i, 331), and may have been too late for insertion, or, more probably, Avas not of a nature to be placed there.
Ninth. Laws of 1660, p. 31, Title " Ferries." Reference is made to law of 1641. Much of § 1 will be found in orders passed
Introduction. 27
Oct. 7, 1641 (Records, i, 338, 341), explaining this reference. But the hiw is not in the Body of Liberties for the reasons given in the preceding example.
Tenth. Laws of 1060, p. 43, Title " Indians." At the end of section 10, the citation is 1633, 37, 40, 41, etc. I find nothing passed in 1641 relating to this section ; but § 7, cited as passed in 1640, 48, in the last clause does contain a law passed June 2, 1641 (Records, i, 329), that if harm be done by the Indians to the English in their cattle any three magistrates may order satisfaction. Hence I infer the general citations under section 10 cover all the preceding sections, and this is the law of 1641, which is not in the Body of Liberties.
Eleventh. Laws of 1660, p. 61, Title "Mines." Citation of law of 1641, which is not in Body of Liberties. The law was passed June 2, 1641 (Records, i, 327).
Twelfth. Laws of 1600, Title "Ships," p. 72, citation of 1641. The law was passed Oct. 7, 1641 (Records, i, 337-338).
It will be noted that of these twelve laws dated in 1641, and not in the Body of Liberties, Numbers 1, 2, 8, 10 and 11 were passed in June, 1641, Nos. 9 and 12 in October, 1041, and No. 4 in Decem- ber, 1641. These were all passed too late to be placed in that docu- ment. Nos. 3, 5, 6, and 7 are wrongly dated.
The result, however, is to show that nearly all of the acts ascribed to the year 1641 in the late revisions are simply sections of the Body of Liberties-
One other point remains to be considered. A few of the Lib- ei-ties were not incorpoi-ated into the Statutes in 1660, and are not checked by E. Hutchinson on the margin of his manuscript. These are numbered 14, 26, 27, 51, 55, 79, and 95, § 11.
No. 14 is to the effect that a conveyance made by a married woman, a child, an idiot, or distracted person shall be good, if ratified by the General Court.
This may have been dropped on consideration as contrary to English law at that time.
28 Introduction.
No. 2G empowered any man unable to plead his own ease to have any unpaid attorney. The pi'ohibition to employ a paid lawyer was in force in 1G41, as "Winthrop records (History, ii, p. 43). May 2, 1649 (Records ii, 279), it is ordered that appeals shall be made by the party, or his attorney, in writing. Also, it was ordered that after one month's publication hereof, no one should ask council or advice of any magistrate in regard to a case to be tried. We may infer from these two citations that the necessity of paid attorney's had become so evident that this Liberty was quietly dropped.
!No. 27 relates to the defendant's right to answer in writing if the jilaintiff put in his case in that form.
No. 51 provides that associates to aid the assistants in the Inferior Courts shall be chosen by the towns.
No. 55 provides and gives the widest liberty to both plaintiffs and defendants in making claims and pleas.
These details in regard to the courts were naturally modified from time to time, between 1641 and 1660, as the records show. There seems to have been a great amount of experimenting in arranging the inferior courts, and hence we cannot find the exact equivalents of these Liberties, though they were preserved in spirit.
No. 79 provides that if a man did not provide for his widow out of his estate, the General Court should relieve her. This idea is carried out in the law of Dowries, as printed in 1660, to which reference has already been made. See also Wills, § 3.
It is evident, thei'efore, that the Body of Liberties was virtu- ally incorporated into the earliest system of laws, and that no part of it was found to be sujjerfluous. Both in regard to its extent and its phraseology it is a noble monument to the, compilers, and to the community which so promjitly accepted it. In its present form it will be easily examined, and the most thorough study will confirm the impi-ession of its importance in any investigation of the growth of the Commonwealth, through original processes worked out on the spot, from a trading company to a free state, the parent and exemplar of so many later communities. — W. II. AV.
THE BODY OF LIBERTIES.
1641.
IN FAC-SIMILE FROM THE HUTCHINSON MANUSCRffT, WITH A LINE-FOR-LINE PRINTED VERSION.
TABLE OF CONTENTS/
15.
IG.
Preamble : Liberty 1. Persons and property inviolal)le except Ijy law.
2. Equal justice to all.
3. The Legislature alone to impose
oaths.
4. UnavoiJable absences not punish-
al)le.
5. Pul)lic service required only by
law. G. Exemptions from public service.
7. Limit of military service.
8. Property taken for public use to
be paid for.
9. Monopolies forbidden but patents
allowed.
10. Fines on alienations, heriots, &c.,
forbid<leii.
11. AVills and alienations allowed.
12. Freedom of speech and action in
puljlic meetings permitted.
13. Property aljroad not taxaljle here.
14. Conveyances by married women,
children, or insane i)crsons legalized by the Legislature. Frauihilcnt deeds invalid against
just claims. Free tishing and fowling defined. 17. Free emigration allowed. l!S. Provision made for bail. II). Assistants punished for miscon- duct.
20. Judges punished for misconduct.
21. Summons served not over six days before the Court, and tlie cause to l)e specified therein.
22. False claims to excessive debts or damages punishable.
23. Legal rate of interest fixed at 8% per annum.
Contribut(jry negligence a good defence.
Technical errors not allowed if the Court understand the per- son and tlie cause.
Unpaid attorneys allowed.
27. AV'ritten pleas and answers per- mitted.
28. Suits may be discontinued before a verdict and renewed in an- otlicr court.
29. Trials may be either by the bench or by a jury.
30. Jurors may be challenged.
31. Special verdict allowed, and ap- peals to the Legislature.
32. Cattle or goods may be replevined.
33. Imprisonment fordelit regulated.
34. Common barrators punished.
24.
2G.
Liljerty 35. 30.
37.
38.
39.
40.
41.
42.
43.
44.
45. 40.
47.
48. 49. 50. 51.
53. 54. 55.
5G.
57. 58.
59.
GO.
Gl.
G2.
G3.
04.
G5.
GO.
Distress of perishable goods regulated.
Aiijieals from inferior courts pro- vided.
Malicious .suits punished.
Evidence to be recorded on court rolls.
Courts may respite executions in all actions.
Deeds or promises given under duress are invalid.
Persons accused of crime shall be tried at the next Court.
No one shall be tried twice for the same offence.
Punishment by whipping regu- lated.
Time for executing criminals regulated.
Torture forbidden.
Barbarous or cruel punishments forbidden.
Death inflicted only on the evi- dence of two of three witness- es, or tlie equivalent.
Public records open to inspection.
Jury service regulated.
Towns to choose jurymen.
Towns to elect associates in in- ferior courts.
Children, strangers, and others to be protected in all suits.
Age of discretion fixed at twenty- one.
Powers and duties of moderators defined.
Tlie fullest liberty allowed in pleas and answers.
Town-meetings protected from disturb.ance.
Inquests in case of sudden deaths.
Church regulations may be en- forced by civil courts.
Church officers and members amenable to civil law.
Church censure inoperative upon civil officers.
Silence on conscientious grounds allowal)le.
Qualifications of deputies to the Legislature.
The expenses of certain officials to be a pnl)lic charge.
Court records to be fully kept by the clerk.
The Word of God to overrule any custom or prescription.
Freemen in each town to man- age their prudential afl'airs.
' ThiH Table in iiiit in modtTii form, and the term I.ej^islature is lined for llie General Court. W. H. W.
Table of Contents.
31
Liberty G7. The chief oflicors to lie elected annually by the freemen, and may be discharged for cause at other meetings of the General Court. C8. Deputies need not reside in the towns choosing them. Tlie number of deputies to be fixed only from year to year.
69. Consent of a majority required
to dissolve or adjourn the Legislature.
70. Freedom of speech and vote or-
dained.
71. Casting-vote allowed to presiding
officers.
72. Reprieves and pardons regulated.
73. Messengers may be sent abroad
on public affairs.
74. Selectmen allowed.
75. Protests in all meetings shall be
allowed and recorded.
76. Jurors may consult bystanders in
open court.
77. Voting not compulsory.
78. Public money to be spent only
with the consent of the tax- payers.
79. Provision for widows in case of
intestacy.
Liberty 80. Wives not suliject to conjugal correction.
81. Gavelkind regulated.
82. Daughters as copartners.
83. Appeal from parental tyranny.
84. Protection for orphans.
85. Runaway servants protected.
86. Transfers of indentures of ser-
vants.
87. Servants recompensed for bodily
injuries.
88. Servants to be rewarded.
89. Christian immigrants welcome.
90. Shipwrecked vessels to be as-
sisted.
91. Slavery prohibited.
92. Cruelty to animals forbidden.
93. Travelling drovers assisted.
94. Death penalty for certain crimes.
95. Relations between church and
civil authority defined.
96. These Liberties to have the force
of law.
97. Suits allowed to give eflect to
these Liberties.
98. Liberties to 1)0 revised annually
for three years. Penalty if the Legislature in the next three years neglect Liberty 98.
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88
A COPPIE OF THt
libertie:s of the massaciiusets coloxie in new england.
The free fruition of such liberties Immunities and priveledgcs as humanitie, Civilitic, and Christianitie call for as due to every man in his place and proportion witliout impeachment and Infrinsrcnicnl iiath ever bene and ever will l)e the tninquillitio and Stahilitie of (jhiircii- es 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 ])osteritie after us. And to ratify them with our soUemne consent. We doe therefore this day religiously and unanimously decree and confirme these following Rites, liberties and priveledges con- cerneing our Churches, and Civill State to be respectively imparti- allie and inviolably enjoyed and observed throughout our Juiisdiction for ever.
Xo mans life shall be taken away, no mans honour or good name shall be sta3'ncd, no mans ])erson shall be arested, restrayned, ban- ished, dismembred, nor any waycs puni>hed, no man shall be deprived of his Avife or children, no mans goods or estaite shall be taken away fi'om him, nor any way indammaged under coulor of law or Countenance of Authoritie, unlesse it be by vertue or eqnitie of some expresse law of the Countiy waranting the same, established by a generall Court and sufficiently publi>hocl, or in case of the defect of a law in any parteculer case by the Avnrd of god. And in Capitall cases, or hi cases concerning dismembring oi- banishment, according to tliat word to be judged by tlie Generall Court.
Every person within this Jurisdiction, whether Inhabitant orfoi-reincr shall enjoy the same justice and law, that is generall for the ]ilantatioii, which we constitute and execute one towards another without parti- alitie or delay.
Ko man shall be lU'ged to take any oath or subscribe any articles, covenants or remonstrance, of a publif[uc and Civill nature, but such as the Generall Court hath considered, allowed, and required.
x^o man shall be punished for not appearing at or befoi'e any Civill Assembly, Court, Counccll, INIagistrate, or Officei', nor for the omission of any office or service, if he shall be necessarily hindred by any appai-ent Act or providence of God, Avhich he could neither foresee nor avoid. Provided that this law shall not preju- dice any person of his just cost or damage, in any civill action.
l^o man shall be compelled to any publique Avorke or service unlesse the presse be grounded upon some act of the
Court, and have reasonable alloAvance therefore.
generall
G. Xo man
I'^S- I-
pag. 143.
pag. 219.
JKlg. 4.
p.ig. 73. sect. 2.
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12
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U
No mail shiill he pressed in person to any office, worUc, warres or other publique service, that is necessarily and suilitiently exeiii])ted by any naturall or personall impediment, as by want of* yeares, *>reatnes of age, defect of minde, layling of sences, or impotencie of Lymbes.
No man shall he compelled to goe out of the lim'.ts of this plantation up- on any offensive warres which this Commonwealth or any of our freinds or confederate shall volentarily undertake. But onely upon such vindictive and defensive warres in our owne behalfe or the bchalfe of our freinds and confederats as shall be enterprized by the Counsell and consent of a Court geuerall, or by Authority derived from the same.
No mans Cattel or goods of what kinde soever shall be pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford. And if his Cattle or goods shall perish or suffer damage in such service, the owner shall be suffitiently recompenced.
lHo monopolies shall be granted or allowed amongst ns, but of such new Inventions that are profitable to the Countrie, and tliat for a short time.
All our lands and heritages shall be free from all fines and licences upon Alienations, and from all hariotts, wardships, Liveries, Primer- seisins, yeare da}' and wast, Escheates, and forfeitures, upon the deaths of parents or Ancestors, be they naturall, casuall or Juditiall.
All persons which are of the age of 21 yeares, and of right understanding and meamories, whether exconmiunicate or condemned shall have full power and libertie to make thei'e wills and testaments, and other lawfuU alienations of theire lands and estates.
Every man whether Inhabitatit or fforreiner, free oi' not fiee shall have libertie to come to any publique Court, Councel, or Towne meeting, and either by speech or writeing to move any lawfull, sea- sonable, and materiall question, or to jiresent 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.
No man shall be rated here foi- any estaite or revenue he hatli in England, or in any forreine partes till it be transported hither.
Any Conveyance or Alienation of land or other estaite what so ever, made by any woman that is married, any childe under age, Ideott or distracted person, shall be good if it be passed and ratified by the consent of a genei-all Court.
15. All Coven"
piig. 73. sect. 2
pag. 73.
pag. 73.
pag. HD.
pag. 88.
pag. 1.
pag. 90.
pag. 1 sect.
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16
17
18
19
20
21
All Covenousor fraudulent Alienations or Conveyances of lands, te- nements, or any hereditaments, shall be of no validitie to defeate any man from due debts or legacies, or from any just title, clame or possession, of that which is so fraudulently conveyed.
Every Inhabitant that is an how^se holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and Howes within the presincts of the townc where they dwell, unlesse the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie with- out there leave.
Every man of or within this Jurisdiction shall have free libertie, notwithstanding any Civil! power to remove both himselfe, and his familie at their pleasure out of the same, provided there be no legall impediment to the eontrarie.
Rites Rides and Liberties concerning Juditiall proceedings.
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 secui-itie, bayle or mainprise, for his appear- ance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.
If in a generall Court any miscariage shall be amongst the Assist- ants when they are by themselves that may deserve an Admonition or fine under 20 sh. it shall be examined and sentenced among them- selves, 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 togeather, it shall be judged by the whole Court, and not severallie as before.
If any which are to sit as Judges in any other Court shall demeane them- selves offensively in the Court, the rest of the Judges present shall have ]:)Ower 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.
In all cases where the first summons are not served six dayes before the Court, and the cause breiHy specified in the warrant, where appearance is to be made by the partie summoned, it shall be at his libertie whether he will appeare or no, except all cases that are to be handled in Courts suddainly called, upon extraordinary occasions. In all cases where there appeares present and urgent cause Any Assistant or officer apointed shal have power to make out Attaichments for the first summons.
22. No man
pag. 32. sec. ;H.
pag. 90. sec. 2.
pag. 91. sec. 3.
pag. 74.
pag. ."fi, sec. 0.
pair. :W. sec. (J.
pag. 7. sec. 2.
7^
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25
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23
24
2G
27
28
29
30
No man in any suit or action against an otiier shall falsely [)ic'ien(l <rreat debts or damages to vex his Adversary, if it shall appeaie any doth so, The Court shall have power to set a reasonable fine on his head.
No man shall be adjudged to pay for detaining any debt from any Crediter above eight pounds in the hundred for one yeare. And not above that rate proportionable for all somes what so ever, neither shall this be a couiour or countenance to allow any usurie amongst us eontrarie to the law of god.
In all Trespasses or damages done to any man or men. If it can be proved to be done by the meere default of him or them to whome the trespasse is done, It shall be judged no trespasse, nor any damage given for it.
No Summons pleading Judgement, or any kinde of proceeding in Court or course of Justice shall be abated, arested or reversed up- on any kinde of cercumstantiall errors or mistakes. If the person and cause be rightly understood and intended by the Court,
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.
If any plantife shall give into any Court a declaration of his cause in Avriteing, The defendant shall also have libertie and time to give in his answer in writeing. And so in all further proceedings betwene partie and partie, So it doth not further hinder the dispach of Justice then the Court shall be willing unto.
The ])lantife in all Actions brought in any Court shall have libertie to withdraw his Action, or to be nonsuited before the Jurie hath given in their verdict, in which case he shall alwaies pay full cost and chardges to the defendant, and may afterwards renew his suite at an other Court if he please.
In all Actions at law it shall he the libertie of the plantife and defendant by mut- ual consent to choose whether they will be tryed by the Bench or by a finrie, unlesse it be where the law upon just reason hath otherwise determined. The like libertie shall be granted to all persons in Crim- inal! cases.
It shall be in the libertie both of plantife and defendant, and likewise every delinquent (to be judged by a Jurie) to challenge any of the Jurors. And if his challenge be found just and reasonable by the Bench, or the rest of the Jurie, as the challenger shall choose it shall be allowed him, and tales de cercurastantibus impaneled in their room.
31. In all
pas:. 3. si-c. 8.
pag. 15a.
pag. 18. sec. i).
pag. 7. sec. 2.
pag. 3. sec. 7.
pag. 1.52. sec. 2.
pag. 152. S. 3.
?/-
3t
n
3-5
^87 J" ?
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i^
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5-?
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31
32
33
34
35
36
In all cases where evidence is so obscure or detective that the Jurie can- not clearely and safely give a positive vei'dict, whether it be a grand or petit Jurie, It shall have libertie to give a non Liquit, or a spetiall verdict, in which hist, that is in a spetiall verdict, the Judgement of the cause shall be left to the Court, and all Jurors shall have libertie in matters of fact if they cannot findethe maine issue, yet to finde and present in their verdict so much as they can. If the Bench and Jurors shall so differ at any time about their verdict that either of them cannot proceede with peace of con- science the case shall be referred to the General! Court, who shall take the question from both and determine it.
Every man shall have libertie to replevy his Cattell or goods im- pounded, distreined, seised, or extended, unlesse it be upon execu- tion after Judgement, and in paiment of fines. Provided he puts in good securitie to prosecute his replevin. And to satisfie such demands as his Adversary shall recover against him in Law.
No mans person shall be Arrested, or imprisoned upon execution or judgment for any debt or fine. If the law can finde competent meanes of satisfaction otherwise from his estaite, and if not his j)erson may be arrested and im]:)i-isoned where he shall be kept at his owne charge, not the plantife's till satisfaction be made : unlesse the Court that had cognizance of the cause or some superior Court shall otherwise provide.
If any man shall be proved and Judged a commen Barrator vexing o- thers with unjust frequent andendlesse suites, It shall be in the power of Courts both to deuie him the benefit «f the law, and to punisii him for his Bai-ratry.
No mans Corne nor hay that is in the feild or upon the Cart, nor his gar- den stufFe, nor any thing subject to present decay, shall be taken in any distresse, unles he that takes it doth presently bestow it where it may not be imbesled nor suffer spoile or decay, or give secu- ritie to satisfie the worth thereof if it comes to any hai-me.
It shall be in the libertie of every man cast condemned or sentenced in any cause in any Inferior Court, to make their Appealo to the Court of Assistants, provided they tender their appeale and put in securitie to prosecute it before the Court be ended wherein they were condennied, And within six dayes next ensuing put in good securitie before some Assistant to satisfie what his Adversarie shall recover against him ; And if the cause be of a Criminall nature, for his good behaviour, and appearance, And everie man shall have libertie to complaine to the Generall Court of any Injustice done him in any Court of Assistants or other.
37. In all
p. 87. S. 3, part of it.
r. 132.
P. 6.
P. 0.
P. 41.
P. 3, jiart of it.
3'^
37 ^ - - -
^8
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38
39
40
41
42 43
44
46
In all cases where it appeares to the Court that the phmtife liath wilingly and witinglv <ione wronge to the defeiKhint in commenceing and prosecuting any action or coniphiint against him. They shall have power to iin[)ose upon liiin a jjro- portionalile line to the use of the defendant, or accused person, for his false complaint
or clamor.
Everie man shall have libertie to Record in the publique Relies of any Court any Testimony given upon oath in the same Court, or before two Assistants, or any deede or evidence legally confirmed there to reniainc in perpcluam rei memoriiim, that is for perpetuall memoriall or evidence upon occasion.
In all actions both reall and personall betweene partic and partie. (he Court shall have jiower to respite execution for a convenient time, when in their prudence they see just cause so to doe.
No Conveyance, Deede, or promise whatsoever shall be of validi- tie. If it be gotten by Illegal violence, imprisonment, threatenings, or any kinde of forcible compulsion called Dures.
Everie man that is to Answers for any Criminall cause, whether he be in prison or under bayle, his cause shall be heard and detenuined at the next Court that hath proper Cognizance thereof. And may be done without prejudice of Justice.
Xo man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.
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 shamefuU, and his coui'se of life vitious and profligate.
No man condemned to dye shall be put to death within lower dayes next after his condemnation, unles the Court see spetiall cause to the contrary, or in case of martiall law, nor shall the body of any man so put to death be uuburied 12 howers, unlesse it be in case of Anatoniie.
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 suttitient 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 maj' be tor- tured, yet not with such Tortures as be Barbarous and inhumane.
For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruel.
No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.
48. Every Inhabitant
V. 3.
S. 8.
P. 131.
1'. 7.
S. 1.
P. 32.
S. 3.
P. 38.
S. 10
1'. 129.
P. 129.
P. 30.
P. 129.
P. 129.
P. 158.
44
15
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48
49 50
52
53
54
55
56
Kvery Inli:il)ituiit of the Coiintry .sliiill have free lil)ertie to search and vcewe any Kooles, Records, or Regesters of any Court or office except the Councell, And to liave a transcript or exemplification tliereof written examined, and signed by the hand of the officer of the office paying the appoint- ed fees therefore.
No free man shall be compelled to serve upon Juries above two Courts in a yeare, except grand Jurie men, who shall hould two Courts together at the least.
All Jurors shall be chosen continuallie by the freemen of the Towne where they dwell.
All Associates selected at any time to Assist the Assistants in Inferior Courts shall be nominated by the Townes belonging to that Court, by orderly agreement amonge themselves.
Children, Idiots, Distracted persons, and all that are strangers, or new commers to our plantation, shall have such allowances and dispensations in any Cause whether Criminall or other as religion and reason require.
The age of discretion for passing away of lands or such kinde of herediments, or for giveing of votes, vei'dicts or Sentence in any Civill Courts or causes, shall be one and twentie yeares.
Whensoever anything is to be put to vote, any sentence to be pro- nounced, or any other matter to be proposed, or read in any Court or Assembly, If the president or moderator thereof shall refuse to performs it, the Major parte of the members of that Court or Assembly shall have power to appoint any other meete man of them to do it, And if there be just cause to punish him that should and would not.
In all suites or Actions in any Court, the plaintife shall have libertie to make all the titles and claims to that he sues for he can. And the Defendant shall have libertie to plead all the pleas he can in answere to them, and the Court shall judge according to the entire evidence of all.
If any man shall behave himselfe offensively at any Towne meeting, the rest of the freemen then present, shall have power to sentence him for his offence. So be it the mulct or penaltie exceede not twentie shilings.
Whensoever any person shall come to any very suddaine untimely and unnaturall death, Some assistant, or the Constables of that Towne shall forthwith sumon 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 neere Assistant, or the next Court to be helde for that Towne upon their oath.
39. Liberties more
r. ini. s. a.
p. 87 S. 5.
P. «r.. S. 1.
P. r.2. s. 4.
p. 1.
p. 1.-.:!.
P 147
S- 1.
p. 39.
J4
98
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58
59
GO Gl
G2
G3
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G5
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07
Liberties more j^aculiarlie concerning the free men.
Civill Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church accordinfj to his word, so it be done in a Civill and not in an Ecclesiastical way.
Civill Authoritie hath power and libertie to deale with any Church mem- ber in a way of Civill Justice, notwithstanding any Chur.-h relation, office or interest.
No church censure shall degrad or depose any man from any Civill dig- nitie, office, or Authoritie he shall have in the Commonwealth.
No Magestratc, Juror, Olfieer, or other man fhall be bound to infornie present or revcale any private crim or ofience, wlrerein there is no perill or dan- ger to this plantation or any member thereof, when any necessarie tye of conscience binds him to secresie grounded upon the word of god, unlesse it he in case of testimony lawfully required.
Any Shire or Towne shall have libertie to choose their 1 )ei)uties whom and where they please for the Generall Court. So be it they be free men, and have taken there oath of fealtie, and Inhabiting in this Jurisdiction.
No Governor, Deputy Governor, Assistant, Associate, or grand Jury man at any Court, nor any Deputie for the Generall Court shall at any time beare his owne chardges at any Court, but their necessary expences shall lie defra3'ed either by the Towne or Shire on whose service they are, or by the Coun- try in generall.
Everic Action betweene partie au«l paitie, and proceedings against deliuqiients in Criminall causes shall be briefly and destinctly entered on the Kolles of every Court by the Recoi'der thereof. That such actions be not aftei- wards brought againe to the vexation of any man.
No custome or prescription shall ever provaile amongst us in any moral 1 cause, our meaneing is mtiTntaine anythinge that can be proved to bee morrallie sinful! by the word of god.
The Freemen of eveiy Towneship shall have power to make such l)y laws and constitutions as may concerne the wellfare of their Towne, provided they be not of a Criminall, but onely of a prudentiall nature, And that their penalties exceede not 20 sh. for one offence. And that they be not repugnant to the publique laws and orders of the Countrie. And if any Inhabitant shall neglect or refuse to observe them, they shall have power to levy the appointed penalties by distresse.
It is the constant libertie of the fiee men of this jilantation to choose yearly at the Court of Election out of the freemen all the General officers of this Jurisdiction. If they please to dischardge them at the day of Election by way of vote. They may do it without shewing cause. But if at any other generall Court, we hould it due justice, that the reasons thereof be alleadged and proved. By Generall officers we meane, our Governor, Deputy Governor, Assist- ants, Treasurer, Generall of our warres. And our Admirall at Sea, and such as are or hereafter may be of the like gem-all nature.
68. It is the
I'. 44.
S. 11.
p. 44.
S. 11.
P. 44. S. 10.
P. 86. S. 2.
P. 40.
S. 2.
P. 22. S. 1.
P. 129. S. 1.
P. 126.
P. 147. S. 1.
P. 48.
S. 4.
3J-
JO
11
TL
P'i*?-
5" i"
Y^c'
7?-
^ ^
G8
C9
70
71
72
73
74
75
It is the libeitie of the freemen to choose such deputies for the Generall Court out of themselves, either in their owne Tovvnes or elsewhere as they judge fitest. And because we cannot foresee what varietie and weight of occa- sions may fall into future consideration, And what counsells we may stand in neede of, we decree. That the Deputies (to attend the Generall Court in the behalfe of the Countrie) shall not any time be stated or inacted, but from Court to Court, or at the most but for one yeare, that the Countrie may have an Annuall libertie to do in that case what is most behoofefuU for the best welfaire thereof.
\o Generall Court shall be desolved or adjourned without the consent of the Major parte thereof.
All Freemen called to give any advise, vote, verdict, or sentence in any Court, Counsell, or Civill Assembly, shall have full freedomc to doe it according to their true Judgements and Consciences, So it be done or- derly and inofensively for the manner.
The Governor shall have a casting voice whensoever an Equi vote shall fall out in the Court of Assistants, or generall assembly, So shall the presedent or moderator have in all Civill Courts or Assemblies.
The Governor and Deputy Governor Jo\-ntly consenting or any three Assistants con- curring in consent shall have power out of Court to reprive a condemned malefactour, till the next quarter or generall Court. The generall Court onely shall have power to pardon a condemned malefactor.
The Generall Court hath libertie and Authoritie to send out any member of this Comanwealth of what qualitie, condition or office whatso- ever into fori'eine parts about any publique message or Negotia- tion. Provided the partie sent be acquainted with the affaire he goeth about.
and be willing to undertake the service.
The freemen of every Towne or Towneship, shall have full power to choose yearly or for lesse time out of themselves a convenient number of fitt men to order the planting or prudentiall occasions of that Town, according to Instructions given them in writeing. Provided nothing be done by them contrary to the pul>lique laws and orders of the Countrie, provided also the number of such select persons be not above nine.
It is and shall bo the libertie of any member or members of any Court, Councell or Civill Assembly in cases of makeing' or executing any order or law, that propoi-lie concerne religion, or any cause capital!, or warres, or Subscription to any publique 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 writeing, and upon request to have their dissent recorded in the Rolles of that Court. So it be done Chris- tianlie and respectively for the manner. And their dissent onely be entered without the reasons thereof, for the avoiding of tediousness.
76. Whensoever
p. 40.
s. 2.
p. 35. S. 5.
P. 153.
P. 35.
S. U.
P. 35.
S. 4.
P. 35.
S. 4.
P. 148. S. 'J.
p. 128
K
77
r?
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y^
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tii3
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8^ A'g^^g
p. I^J 5-^
76
77
78
79
80
81
82
83
84
85
Whensoever any Jurie of trialls or Jurours are not cleare in their Judgements or couscicnccs conscrneing any cause wherein they are to give their verdict, They sliall have liliertie in open Court to advise with any man they thinke fitt to resolve or direct them, before they give in their verdict.
la all cases wherein any freeman is to give his vote, be it in point of Election, makeing 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 libertie to be silent, and not pressed to a determined vote.
Tlie Generall or pubiique Treasure or any parte thereof shall never be ex- spended but by the appointment of a Generall Court, nor any Shire Treasure, but by the appointment of the freemen thereof, nor any Towne Treasurie but by the freemen of that Towneship.
Liberties of Woemen.
If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court she shall be relieved.
Everie marryed woemau 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.
Liberties of Children.
When parents dye intestate, the Elder sonne shall have a doble portion of his whole estate reall and personall, unlesse the Generall Court upon just cause alleadged shall Judge otherwise.
When parents dye intestate haveing noe heires males of their bodies their Daughters shall inherit as copartners, unles the Generall Court upon just reason shall judge otherwise.
If any parents shall wilfullie and unreasonably deny any childe tune- ly or convenient manage, or shall exercise any unnaturall seve- I'itie towards them, such childeren shall have free libertie to coraplaine to Authoritie for redrcsse.
No Orphan dureing their minoritie which was not committed to tu- ition or service by the parents in their life time shall afterwards be absolutely dispo.sed of by any kindred, freind, Executor, Towne- ship, or Church, nor by themselves without the consent of some Court, wherein two Assistants at least shall be present.
Liberties of Servants
If any servants shall flee from the Tiranny and crueltie of their masters to the bowse of any freeman of the same Towne, they shall be there protected and siisteyned till due order be taken for their relife. Provided due notice thereof be speedily <;iven to their maisters from whom they fled. And the next Assistant or
Constable where the partie flying is harboured.
86. No servant
p. 87. S. 5.
P. 153.
P. 150. S. 1,2.
P. 101. S. 1.
P. 138. S. 3.
P. 158. S. 3.
P. 28. S. 5.
P. 28. S. G.
P. 105. S. C.
77
f7
F<?
^9
^•<?tt?/^ >/^*i:t--i~l.r^S^<^'^**J^'«^
9?
M^**«^ i*^f^>-
rt— ^piWi J^I.LJi.iil.iyj.ai^
?-7
5?
f M»
f-;f
r.<^
86
88
89
OU
91
92
93
No servant sliall ho put of for above a yeare to any otlicr neither in tlie life time of their inaisternor after their death l)y their Executors or Administrators unlesse it be by consent of Authoritie assembled in some Court or two Assistants.
If an}' man smite out the eye or tooth of his man-servant, or maid servant, or otherwise mayme or much disfigure him, unlesse it be bj^ nieere casu- altie, he shall let them goe free from his service. And shall have such further recompense as the Court shall allow him.
Servants that have served deligentlie and faithfully to the benefitt of their mais- ters seaven yeares, shall not be sent away eniptie. And if any have bene unfaithfull, negligent or unprofitable in their service, notwithstanding the good usage of their maisters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authoritie.
Liberties of Forreiners and Strangers.
If any people of other Nations professing the true Christian Keligion shall flee to us from the Tiranny or oppression of their persecutors, or from famyne, vvarres, or the like necessary and compulsarie cause. They shall be entertayned and succoured amongst us, according to that power and prudence god shall give us.
If any ships or other vessels, be it freind or enemy, shall suffer shipwrack upon our Coast, there shall be no violence or wrong offerred to their persons or goods. But their persons shall be harboured, and relieved, and their goods preserved in safetj' till Authoritie may be certified thereof, and shall take further order therein.
There shall never be any bond slaverie, villinage or (^aptivitie amongst us unles it be lawfuU Captives taken in just warres, and such strangers as willingly sella themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israeli concern- ing such persons doeth morally require. This exempts none from servi- tude who shall be Judged thereto by Authoritie.
Off the Bruite Creature.
No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man's use.
If any man shall have occasion to leade or drive Cattel from place to place that is far of, so that they be weary, or hungi-y, or fall sick, or lambe, It shall be lawful to rest or refresh them, for a competent time, in any open place that is not Corne, meadow, or inclosed for some peculiar use.
Capitall Laws
r. 10.-..
S. 7.
p. 105. S. «.
1*. 10.-,. S. 1).
P. 14,S.
P. Ifil.
P. 10.
P. .10.
P. 4l'.
3s
91
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Put. 13. 6, 10. Diit. 17. 2, 6. Ex. 22. 20.
Ex. 22. 18. Lev. 20. 27. Dut. 18. 10.
Lev. 24.13,1(5.
Ex. 21. 12.
Numb. 35. 13, 14, 30, 31.
Numb. 25. 20,
21. Lev. 24. 17.
Ex. 21. 14.
Lev. 20. 15, IG.
Lev. 20. 13.
Lev. 20. 19,
and 18, 20. Dut. 22. 23,24.
Ex. 21. 16.
Deut. li). 16, 18, 19.
casualtie against his will, he shall be
94. Cajnlall Laws.
1.
If any man after legall conviction shall have or worship
any other god, but the lord god, he shall be put to death.
2.
If any man or woeman be a witch, (that is hath or con- sulteth with a familiar spirit,) They shall be put to death.
3.
If any man shall Blaspheme the name of god, the father, Sonne or Holie ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.
4.
If any person committ any wilfull murther, which is man- slaughter, committed upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere put to death.
5.
If any person slayeth an other suddaienly in his anger I or Crueltie of jiassion, he shall be put to death.
6.
If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death.
7.
If any man or woeman shall lye with any beaste or bruite creature by Carnall Copulation, They shall surely be put to death. And the beast shall be slaine and buried and not eaten.
8. If any man lyeth with mankinde as he lyeth with a woeman, ))oth of them have committed abhomination, they both shall surely be put to death.
9. If any person committeth Adultery with a maried or espoused wife, the Adulterer and Adulteresse shall surely be put to death.
10. If any man stealeth a man or mankinde, he shall surely be put to death.
11. If any man rise up by false witnes, wittingly and of purpose to take away any mans life, he shall be put to death.
12. If any man shall conspire and attempt any invasion, insurrec- tion, or publique rebellion against our commonwealth, or shall in- deavour to surprize any Towne or Townes, fort or forts therein, or shall treacherously and perfediouslie attempt the alteration and subversion of our frame of politic or Government funda- mentallie, he shall bo put to death.
A declaration
I". 14.
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S. 2.
S. 3.
S. 4.
S. 5.
S. 6.
S. 7.
S. 8.
S. 9.
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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 libertie to gather themselves into a Church Estaite. Provided they doe it in a Christian way, with due observation of the rules of Christ revealed in his word.
Every Church hath full libertie to exercise all the ordi- nances of god, according to the rules of scripture.
3 Every Church hath free libertie of Election and ordination of all their officers from time to time, provided they be able, pious and orthodox.
Every Church hath free libertie of Admission, Recom- mendation, Dismission, and Expulsion, or deposall of their officers and members, upon due cause, with free exercise of the Discipline and Censures of Christ according to the rules of his word.
No Injunctions are to be put upon any Church, Church officers or member in point of Doctrine, worship or Discipline, whether for substance or cercumstance besides the Institutions of the lord.
Every Church of Christ hath freedome to celebrate dayes of fasting and prayer, and of thanksgiveing according to the word of god.
The Elders of Churches have free libertie to meete
monthly. Quarterly, or otherwise, in convenient
numbers and places, for conferences and consultations
about Christian and Church questions and occasions.
All Churches have libertie to deale with any of theii- members in a church way that are in the hand of Justice. So it be not to retard or hinder the course thereof.
Every Church hath libertie to deale with any mages- trate, Deputie of Court or other officer what soe ever that is a member in a church way in case of appa- rent and just offence given in their places, so it be done with due observance and respect.
10 "Wee allowe private meetings for edification in re- ligion amongst Christians of all sortes of people. So it be without just ott'ence for number, time, place, and other cercumstances.
11. For the preventing
r. 43 s. 1.
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For the preventing and removeing of errour and oft'enee that may grow and spread in any of the Churches in this Jurisdiction, and for the preserveing of trueith and peace in the several churches within themselves, and for the maintenance and exercise of brotherly communion, amongst all the churches in the Countrie, It is allowed and ratified, by the Authoritie of this Generall Court as a lawful! libertie of the Churches of Christ. That once in every month of the yeare (when the season will beare it) It shall be lawfuU for the minesters and Elders, of the Churches neere adjoyneing together, with any other of the breetheren with the consent of the churches to as- semble by course in each severall Church one af- ter 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 publique Christian Conference about the discussing and resolveing of any such doubts and cases of conscience concerning matter of doctrine or worship or government of the church as shall be propound- ed by any of the Breetheren of that church, with leave also to any other Brother to propound his objections or answeres 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 Assemblie is helde, or by such others as they shall appoint. And that no thing be concluded and imposed by way of Authoritie from one or more Churches upon an other, but onely by way of Brotherly conference and consultations. That the trueth may be searched out to the satisfying of every mans con- science in the sight of god according his worde. And because such an Assembly and the worke theirof can not be duely attended to if other lectures be held in the same weeke. It is therefore agreed with the consent of the Churches. That in that weeke when such an Assembly is held, All the lectures in all the neighbouring Churches for that weeke shall be forborne. That so the publique service of Christ in this more solemne Assembly may be transacted with greater deligence and attention.
96, Howso-
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96
Howsoever these above specified rites, freedomes, Immunities, Authorities and priveledges, both Civill and Ecclesiastical are expressed onely under the name and title of Liberties, and not in the exact form of Laws or Statutes, yet we do with one consent ful- lie Authorise, and earnestly intreate all that are and shall be in Au- ihoritie to consider them as laws, and not to faile to inflict con- digne and proportionable punishments upon every man imparti- allie, that shall infringe or violate any of them.
98
Wee likewise give full power and libertie to any person that shall at any time be denyed or deprived of any of them, to com- mence and prosecute their suite, Complaint or action against any man that shall so doe in any Court that hath proper Cognizance or judi- cature thereof.
Lastly because our dutie and desire is to do nothing suddainlie which fundamentally concerne us, we decree that these rites and liber- ties, 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 with- out 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 forfeits 20sh. a man, and everie Deputie lOsh. a man for each neglect, which shall be paid out of their proper estate, and not by the Coun- try or the Townes which choose them, and whensoever there shall arise any question in any Court amonge the Assistants and Associates there- of about the explanation of these Rites and liberties, The Generall Court onely shall have power to interprett them.
INDEX TO BODY OF LIBERTIES.
REFERENCES ARE TO THE NUMBER OF THE LIBERTY.
Abatements, 25.
Actions, malicious, punished, 37.
to be enrolled, 64.
Adjournments, 69.
Admiral, annual election of, 67.
Adultery punished by death, 94.
Age of discretion, 53.
Alienation of lands and estates Sllowed, II.
, see Conveyances.
Animals, cruelty to, forbidden, 92.
Answers may be in writing, 27.
Appeals, security for, to be given in six days,
36. Assembly, presiding ofBcer to be suspended
and punished for refusing to put a
vote, 64.
casting vote in, 71.
protest allowed in, 75.
Assistants, punished for misbehavior in court,
19.
may issue attachments, 21.
court of appeals, 36.
appeal from, to General Court, 36.
associates to, how chosen, 51.
Attendance, non-. before any court or offlcer,
not punishable if unavoidable, 4.
Bail allowed, 18.
Banishment, power of, reserved to General
Court, 1. Barrator, common, punishment of, 34. Bench, see Judges. Bestiality punished by death, 94. Blasphemy punished by death, 94.
Capital cases, reserved for General Cou»t, 1.
punishment, allowed only on full evi- dence, 47.
, see Executions.
Cause, to be stated in summons, 21.
criminal, to be tried at next court, 41.
Children, not to convey estates, 14.
entitled to proper marriages, 83.
, see Wife.
Churches, to be sustained by the civil power, 58.
members amenable to civil power, 59.
censure not to affect civil authority, 60.
privileges and rights defined, 95 ; es- pecially to gather churches ; to govern by Gospel rules ; to elect and ordain oftlcers ; to admit and dismiss members ; to be free from injunction; to appoint fasts and thanksgivings; to hold con- ferences; to disciphne members while in the hands of civil authority; to discipline members who are church- members; to hold private religious meetings, and to hold councils of churches.
Conveyance, valid, 11.
invalid in certain cases, 14.
covenous and fraudulent, illegal, 15.
under duress, illegal, 40.
Court, neglect of, 4.
contempt of, 18.
errors and abatements, 25.
proceedings may be in writing, 27.
. to give judgment on special verdicts, 31
when difiering from jury may refer to
the General Court, 31.
Court, to keep public records, 38.
may respite execution, 39.
. to enter all actions on rolls, 64.
Court, General, power m capital cases. 1.
power over life, person and prop- erty. 1.
appeal to, 31, 36.
to ratify certam conveyances, 14.
adjournment of, 69.
powers over great ponds, 16.
to revise and ratify these Liberties
annually for three years, 98.
penalty for neglect of Liberty 98, —
last clause.
Crime, no one to be tried twice for the same, 42.
Daughters to take as copartners, 82.
Debt, imprisonment for, 33.
Deputies, how to be chosen, 62, 67.
term of office, 67.
Dismembering, power of, reser\'ed to General Court, 1.
Dissection of malefactors, 44.
Distress, perishable goods taken in, 35.
Drovers allowed privileges in travelling, 9:5.
Duress invalidates all conveyance.^ or prom- ises, 40.
Election, annual, of officers, 67.
Emigration permitted, 17.
Escheats forbidden, 10.
Estates, see Intestate.
Execution, criminal condemned not to be exe- cuted in less than four days from sentence, 44.
Exemptions from war or public service, 6.
Fishing, free, 16.
Foreigners to have equal protection, 2.
Forfeitures forbidden, 10.
Fowling, free, 16.
Freedom of speech and vote, 70.
General Court, see Court. General. Governor to have a casting vote, 71.
, see Officers.
Great ponds, fishing in, 16.
Heriots forbidden, 10. Honor and good name protected, 1. Householders, rights to free fishing and fowl- ing, 16.
Idolatry pnnisheil by death, 94. Idiots not to convey estates, 14. Informations not to be laid. 61. Inhabitants all to have equal justice, 2. Inheritances free from fines, etc., 10. Inquests provided, 57.
Interest, legal rate to be eight per cent., 23. Intestate estates, how divided, 81, 82.
Jeofails, statute of, 25.
Judges, puuislied for misbehavior in court, 20.
■ may try actions without jury, 29.
may approve cliallcnges of jurors, 30.
Judgments, errors in, 25.
• may be respited, 39.
, see Suit.i.
Jurors, right to challenge, 30.
(.63)
64
Index to Body of Liberltes.
Jurors, may allow challenges, 30.
may brin;; in a non-liqiiit, 31.
tiiiio of service, 49.
to be chosen by fellow-towusmen, 50.
may consult bystanders in open court, 7G.
not compelled to vote on verdict, 77.
grand, to be paid, 63.
Lands free from fines, etc., 10. Law of God to be followed in lack of stat- ute, I. Laws, capital, 94 ; inflicting death-penalty for :
Heresy, § 1.
Witchcraft, § 2.
Blasphemy, § 3.
Murder, §§ 4, 5.
Poisoning, § 6.
Bestiality, § 7.
Sodomy, § 8.
Adultery, § 9.
Man-stealing, § 10.
Perjury against life, § 11.
Treason, § 12. Laws to be published, 1. Liberties, to have the force of laws, 9C.
breach of, noticed by the courts, 97.
to be revised and ratified annually for
three years, 98. Life inviolable except by action of law, 1. Liveries forbidden, 10.
Malefactors, after execution to be buried within twelve hours, unless dissected, 44.
Man-stealing punished by death, 94.
Marriage, parents to settle children in, 83.
Married women not to convey estates, 14.
Meetings, foreigners allowed to act in, 12.
moderator to have casting vote at, 71.
Monopolies forbidden, 9.
Murder punished by death, 94.
Non-liquit, see Verdict, special.
Oath not compulsory, 3. Officers, general, defined, 67.
elected by freemen, 67.
tenure of ofiice, 67.
to be repaid their expenses, 63.
Orphans to be bound out only by order of court, 84.
Patents allowed, 9.
I'erjurv, touching life, punished with death,
94. Person, not to be arrested or punished except
by law, 1. to be free from arrest for debt or fine, if
estate can be found, 33. Pleas may be ni writing, 27. Poisoning, punished with death, 94. Ponds, see Oreni Ponds. Prescription not to be maintained against
Gospel Go. Presiding oilicer, see Assembly. Press, see Work, public. Primer-seisins forl)idden, 10. Property, to be taken only by law, 1. not to be taken for public use without
compensation, 8. Protest allowed, 75. Prudential afl'airs to be settled by towns, 66.
oflicers elected, 74.
Public expenses, see Officers.
service in foreign parts not compulsory,
73. Punishment, of married women, 80.
barbarous, forbidden, 46.
capital, .see La us.
bodily, see Stri2'cs.
Tiecords, open to public examination, 48. — - certified copies obtainable, 48.
of protests to be made, 75.
of courts to be kept, 38.
Removal of oflicers for cause, 67. Keplevin allowed, 32. Keprieves, how granted, 72. Rivers, see Great Ponds.
Security to be given in cases of replevin, 32.
Servants, to be protected, 81.
transfers of, regulated, 86.
injury to, 87.
■ to be rewarded at end of term, 88.
Slavery prohibited, 91.
Sodomy punished with death, 94.
Son, elder, to have a double portion of intes- tate estates, 81.
Strangers, Christian, to be received and aided, 89.
- — - ship-wrecked, to be protected, 91.
, see Foreigners.
Stripes, not above forty to be given, and gen- tlemen to be exempt, 43.
Suits, vexatious, to be punished, 22.
not to be abated, arrested, or reversed
for technical errors, 25.
may be withdrawn and renewed in another
court, 28.
of children, idiots, strangers, etc., to be
specially protected, 52.
parties given fullest liberty to claim and
to answer, 55.
Summons to be served at least six days be- fore trial, 21.
Taxes not to be assessed on estate outside of
the colony, 13. Testimony, to be recorded, 38.
in perpetiiam ret memoriam, 38.
Torture greatly restricted, 45. Town-meeting, disturbance at, to be pun- ished, 56. Towns, to choose deputies, 62.
to regulate their prudentials, 66.
Treason punished by death, 94. Treasure, public, how to be disbursed, 78. Trespass, no damages for, if party injured
caused it, 24. Trials may be by the bench alone or with a
jury, 29.
Usury forbidden, 23. , see Interest.
Verdict, suits may be withdrawn before, 28.
special, may be given, 31.
Vote, casting, 71.
must be put, 54.
Voting, freedom of, 70. not compulsory, 77.
War beyond the colony, service not com- pulsory, 7.
AVardsliips forbidden, 10.
Waste, year and day, forbidden, 10.
Water-mark, high and low, limits of free fish- ing and fowling, 16.
AVidow to receive dower, 79.
Wife and children not to be taken awav, 1.
Wills allowed, 11.
Witchcraft punished by death, 94.
Women, married, free from bodily punish- ment by husbands, 80.
Work, ))ublic, no man to be impressed for, without due compensation, 5.
Wreck, in case of, goods to he protected, 90.
Written pleas and answers allowed, 27.
APPENDIX.
CONTAINING FAC-SIMFLES OF THOSE PAGES OF THE ANSWER OF THE
GENERAL COURT IN 1646, WHICH CONTAIN REFERENCES TO
THE BODY OF LIBERTIES. (See ante, p. 16.)
(From the ElUha HutchtDson MS. In the Boston Athenvnm.)
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PART SECOND:
THE ACCOUNT OF THE LEGISLATION FROM 1641 TO 1G72,
INCLUDING THE TWO REVISIONS OF THE
LAWS IN 1649 AND 1660.
[While these pages were in the printers' hands, Mr. A. C. Goodell, jr., has kindly called ruy attention to the following important order which is preserved in Mass. Archives, Vol. 88, page 386. Although it has all the marks of an order duly passed by both branches of the Legislature, it will not be found in the printed journals.
Tlie date must be 1652, since that is the only year giving us the necessary coinci- dence of Bellingham and Glover as magistrates. Glover served only in 1652 and 1653, but in the latter year Bellingham was deputy-governor, and ever afterwards till 1664, ex- cept in 1654 when he was governor. I feel sure that with the care taken in bestowing honorary titles at that date, Bellingham would not have been termed simply a magistrate when he was deputy-governor.
This order probably was acted upon, and the report, as amended by the Deputies, was, I presume, presented to the Court in 1653, which "took care of the transcribing" by passing the order of Sept. 10, 1653, printed by me, post, p. 95.
The phrase which occurs in this order of 1652, " records that are not extracted, ab- breviated or composed inlo the books of the printed laws,"^ may perhaps be cited as an additional proof that at that date there were two printed books of the laws, viz. the Code of 1649 and the supplement of 1650, as discussed b}' me, j^ost, p. 80.
W. H. W.]
" Forasmuch as their are two old bookes of Records belonojino' to the Ge- nerall court wherin are many Things involved which are of great concernment as well as in Rights and bounds of Lands as otherniaterial things ; which bookes are decaid and very Iinethodicall, as Well in finding out any Record, as allso in Severall circumstantiall errors in entreing Some of the orders ; for Regulating whereof.
This Court orders that a committe be appointed in the vacancy of the court to overlooke those two books of Records afforsaid, and to correct all such cir- cumstantiall errors in words in them contained, but not to alter anything for substanc and matter ; and after the said books be viued and Corrected as before, then the Secretary is to take care that the said bookes bee truly transcribed into new books of Good paper, well bound, and covered with velume or parchment, and marginall abreviats of each order colected, an alphebeticall table affixed for finding out of all orders therein, and all due chardge for transcription of the said bookes be duly paid unto the Secretary by the country.
The Magistrates have past this with reference to the consent of our brethren,
the Deputies.
Jo. Endecott, Gov^"
"The Deputies thinke meete a Comittee shall examine all the records that are not extracted, abbreviated, or composed into the bookes of the printed lawes, and shall make amendment of all circumstantial errors without altering the substance, and present the same to the next sessions of court which may take care of tiie transcribing them ; and Mr. Hill, Capt. Johnson and the Secretary are desired to Joyne with some of the magistrates as a comittee for that end.
Wm. Torrey, Cleric."
"The Magistrates have voted Mr. Bellingham and Mr. Glover to Joyne with the Comitee of the brethren the Deputies to serve in the courte of election.
Edward Rawson, Secret."
"Consented to by the Deputyes,
Wm. Torrey, Cleric."
We resume the history of the publication of the Laws, at the point mentioned on page 9, ante, viz.: immediately after the enact- ment of the Body of Liberties in October, 1641.
The General Court ordered June 14, 1642 (Records, ii. 21) : —
"That the Governor [Winthrop], Mr. Bellingham and the Secretary, [Nowell] with the deputies of Boston, shall examine and survey the orders of this last Court, and perfect the same for the publishing."
Also, (Records, ii. 22) " that such laws as make any offence to be cap- ital shall forthwith be imprinted and publisiied, of which laws the Secretar)' is to send a copy to the printer, when it hath been examined by Governor or Mr. Bellingham with himself, and the Treasurer to pay for the printing of them."
September 27, lfi42 (Records, ii. 28) "it is ordered, that every Court should have a copy of the laws at the public charge."
May 10, 1643 (Records, ii. 39), " the former committee of magistrates and deputies are authorized and appointed to examine and perfect the Laws."
March 7, 1643-4 (Records, ii. 61), the following vote was passed: —
"It is ordered that the Governor, [Winthrop] Mr. Dudley and Mr. Hib- bens, these or any two of them, shall be a committee to consider of the Body of Liberties, against the next General Court, what is fit to be repealed or allowed, and present the same to tiie next Court."
" Also the Magistrates residing at Ipswich, or any two of them, are ap- pointed a Committee for the same purpose, that so the Court conferring both together may more easily determine wliat to settle about the same."
" It is ordered that Richard Bellingham Esq. should finish that which was formerly committed to him about the perusing of the Book of laws, &c. and to present the same to the next Court."
May 27, 1644, the Legislature adjourned to October 30th, but the Journal of the House of Deputies contains the report of the acts
72 Introduction.
of that branch during June. It appears (Records, iii. 6) that on June 7, 16M: —
" It is ordered that Lieut. Sprague, Francis Chickering, Stephen Kingslcy, Thomas Melvins, William Hilton, Joseph Batchelor, Mr. Steevens, William Ward, Lieut. Howard, William Eastowe, Thomas Brooke, Lieut. Johnson and Jose[)li Mciidcalfe, are chosen a committee to examine the book delivered in by Air. Belliiigiiam, and compare it with the book of records, and return their objections and thoughts thereof to this house in writing."
[William Ward was a deputy from budbury in 1644, but not later.]
May 29, 1()44 (Records, ii. 69), it was ordered: —
" That for the better building of shipping within this jurisdiction, and for the avoiding of many inconveniences which now both owners and builders are subject unto, there be a company of that trade, according to the manner of other places, with power to regulate building of ships, and to make such orders and laws among themselves as may conduce to the public good, if any shall appear the next Court and present laws for consideration."
May 29, 1644 (Records, ii. 76-78). The Court established the commission of the Sergeant-major-general, Thomas Dudley. By it provision was made that
" Yourself, together with the Council of War, shall have power to make such wholesome laws, agreeable to the word of God, as you shall con- ceive to be necessary for the well-ordering of your army, until the General Court shall provide for the same : which being sufficiently published, you, with the said Council, have power to put in execution, be it to the taking away of life or otherwise."
November 13, 1644 (Records, ii. 89), " it is ordered that all the several orders of general concernment agreed on this whole Court, shall be forthwith published to the several towns within this jurisdiction, and that the several towns shall procure a copy of them within three months, under the Secretary his hand."
At the same Court (Records, ii. 91), there were presented the Answers of the Elders to certain Questions submitted to them. One question was, whether the magistrates were, in cases where no express law was provided, to be guided by the word of God. The answer was: —
" We do not find that by the patent they are expressly directed to proceed according to the word of God ; but we understand that by a law or liberty of (he countri/, they may act in cases wherein as yet there is no express law, so that in such acts they proceed according to the word of God."
Introduction. 1?,
Here the reference is plainly to Liberty No. 1, and this Libei'ty is republished, unaltered, in 1660, as the first section of the General Laws.
" July 1, 1645 (Records, iii. 26), the Journal of Deputies has the following entr}-: —
" It is ordered that several persons out of each county shall be chosen to draw up a body of laws and present them to tlie consideration of tlic General Court at their next sitting.
" For the county of Suffolk, our honored Governor, [Dudley] Mr. Hibbens, Mr. Cotton, Mr. Mather, Lieut. Duncan and Mr. Pridiard are chosen a committee to meet, confer together, and draw up a body of laws and to present them to the next session of this Court.
" For the county of Middlesex, Herbert Pelliani, Esq., ]\Ir. Nowell, !Mr. Thomas Shepard, Mr. Allen, Capt. Cooke, and Lieut. Johnson," were simihirly appointed.
"For Essex, Richard Bellingham, Esq., Mr. Bradstreet, Mr. Nathl. Rogers, Mr. Norton, Mr. Ward, and Mr. Hathorne " were similarly appointed. [This Mr. Ward could not be AVilliam, as Sudbury was in Middlesex.]
In each case two magistrates, two ministers, and two de])iities seem to have been appointed, except that in Essex, Mr. Nathaniel Ward seems to take the place of one deputy.
^October 1, 1645 (Records, ii. 128), it was voted
" Whereas this Court, in a former session, chose and appointed several honored members of this commonwealth as commissioners in their several shires, to meet together in some convenient place within each shire, to consult together, and to return to tliis Court a result of their thougiits, tliat this Ci)urt may proceed thereupon to satisfy the expectation of the country in establishing a body of laws ; this Court thinks it meet to desire the persons in the order men- tioned, at or before the 12th of November next, in their several shires to meet together; in Boston for Suffolk, in Cambridge for Middlesex, in Ipswicli for Essex : and after their first meeting at the time and places above mentioned, by warrant from the Secretary to each committee of each shire, and then as often as they please, to appoint their own meetings for the accom[)lishment of tiie end so desired : and to make their return of what they shall do herein, to tlie next sitting of the General Court.
" In Captain Cooke'- room, at !;is request, ]\Ir. Josepli Hill of Charles- town ; in Mr. Allen's room, Mr. Knowles ; and Mr. Glover in ]Mr. Prichaids room. They being out of the way, or shall be suddenly, — Mr. Svmonds is
" The corresponding entry in the Journal of the two houses is in Records, ii. 109, under date of May 14, IG-15, and it varies only by saying tliat tliese three committees are to report to the next General Court. —W. H. W.
''■' The corresponding entry in the Journal of the Deputies is dated October 7, lUiJ (,Kec- ord-s iii. 4G-47). — W. H. W.
74 Introduction.
instead of Mr. Bcllingham for Ipswich, because Mr. Bellingham now resides at Boston ; and Mr. Bellingham to be for Boston, added to tiie former.
" And the calling of eacii assembly to each place is in Mr. Bcllingham for Boston, ]\lr. Pelham for Cambridge, and Mr. Symonds for Ipswich."
The next step seems to have been the appointment of a small sub-committee to digest and ai-range the work of the thi'ee general coinniittees.
May 22, 1646 (Records, ii. 157), the following vote was passed: "* —
"This Court thankfully accepts of the labors returned by the several com- mittees of the several shires, and being very unwilling such precious labors should fall to the ground without [that] good success as is generally hoped for, have tiiought it meet to desire Richard Bellingham, Esq., Mr. [Samuel] Symonds, Lieut. [Nathaniel] Duncan, Lieut. [Edward] Johnson, and Mr. [Nathaniel] Ward, to cause each committee's return about a body of laws to be transcril)cd, so as each couunittee may have the sight of the other's labors. And that tlic persons mentioned in this order I)e pleased to meet together, at or before the 10th of August, at Salem or Ipswich ; and on their perusing and examining the wliolc labors of all the committees, — with tlie abbreviation of tlie laws in force whicii ilr. Bellingham took great store of pains and to good pur[)ose in and upon the whole, — and make return to the next session of this Court : at whicli time the Court intends, by the favor and blessing of God. to proceed to the establishing of so many of them as shall be tiiought most fit for a body of laws amongst us."
It will be remembered that this year was an anxious period for the colonists. Doctor Child and others had raised questions about the poAvers of the Legislature, and the answer of the General Coiu't had been prepared for transmission to England. Although "Winthrop says nothing about this matter of the publication of the laws, his jonrnal shows that the community was excited and uneasy on the point. The above-named committee of six evi- dently did not work with sufficient ]>romptness, and a change was desired.
Accordingly, "^ November 4, 1616 (Records, ii. 168), the fol- lowing order was passed: —
•* Tliu .Tournal of tlic Doi)Utios of Jliiy 20, HUG (Reconls, iii. 74, 75), lias t!io c'iirrc's]ionil- iniT entry. It makes the revising eonimittee to consist of Bellingliaiii and Duncan, Nowell anJ Johnson, Symoiiils anil Ward, thus adding Secretary Nowell to it. — W. l\. W.
^^ The Journ.al of Deimties of the same date (Records, iii. St, 85) has tliis same order, somewhat abbreviated. — W. U. W.
Introduction, 75
"The Court being deeply sensible to the earnest expectation of the Country in general for this Court's completing of a body of Laws for the better and more orderly wielding all the affairs of this Commonwealth ; willing also to their utmost to answer their honest and hearty desires therein, unoxpectedlv prevented by multitude of otiier pressing occasions, think fit and necessary that this Court make choice of two or three of our honored Magistrates, with as many of the Deputies, to peruse and examine, compare, transcribe, and compose in good order, all the liberties, laws and orders extant with us ; and further to peruse and perfect all such others as are drawn up, and to present such of them as they find necessary for us, as also to suggest what they deem needful to be added, as also to consider and contrive some good method and order, with titles and tables for compiling the whole ; so as we may liave ready recourse to any of them, upon all occasions, whereby we may manifest our utter disaffection to arbitrary Government and so all relations be safely and sweetly directed and protected in all their just rights and privileges ; desiring thereby to make way for printing our Laws for more public and profitable use of us and our suc- cessors. Our honored Governor, [Winthrop] Mr. Bellingham, Mr. Hibbens, IVIr. Hill and jNIr. Duncan as a Committee for the business above mentioned, or any three of them meeting, the others having notice thereof, shall be sufficient to carry on the work."
It will be noticed that only Bellingham and Duncan were re- tained of the former committee of six. Their powers probably expired with the term of the Legislature. At all events the next General Court revived and continued their powers by the follow- ing order, dated May 2G, 16i7 (Records, ii. 196) : —
"The Court understanding that the Committee for perfecting the laws appointed by the last General Court, tlu-oiigh streights of time and other things intervening have not attained what they expected, and on all hands so much desired, touching a body of laws, think meet and necessary that our honored Governor, [Winthrop] Mr. Bellingham, Mr. Hibbens, the Auditor General [Duncan], Lieut. Johnson, ^^ and Mr. Hills be chosen as a Committee of this Court to do the same, according to the aforesaid order, against the next sessions in the 8th month or the next General Court."
'° In copying this entry Mr. F. C. Gray omitted the name of Johnson, doubtless not recog- nizing therein the author of " Wonder-VVorliing rrovidLiice." In the admirable reprint of that book, issued at Andover in 18G7, under the care of William F. Poole, the editor has attempted to show that Edward Johnson was one of the most active and important members of the committee. The main argument is, that Johnson was on the committee appointed May 22, IfitC, and on that of May 2G, 1C47, but was omitted on that of November 4, lG4(j; that the first and last com- mittees were active and the second inactive : that hence this activity was owing to tlie presence of Johnson. But I fail to see that the first committee did anytliing, and Bellingham was undoubtedly the controlling spirit throughout. We shall see later tliat Joseph Hills of Maiden was employed about the printed laws, and did all the clerical jiart of the revi- sion. — W. H. W.
70 Inlroductioii.
November 11, 1647 (Records, ii. 209), the following vote was passed : —
" The laws being to be put in print, it is meet that they should be con- veniently penned : tliercfore it is desired that the committee for drawing up tlie laws will be carefid therein ; and to that purpose they have liberty to make some ciiangc of form, to put in apt words as occasiou shall i-equire, provided the sense and meaning in any law or part thereof be not changed."'""
November 11, 1647 (Records, ii. 212), the following vote was passed: —
" It is agreed by the Court, to the end that we may have better light for making and proceeding about laws, tiiat there shall be these books following procured for the use of the Court from time to time : —
Two of Sir Edward Cooke upon Littleton ;
two of the Book of Entries ;
two of Sir Edward Cooke upon Magna Charta;
two of The New Terms of the Law ;
two Dalton's Justice of the Peace ;
two of Sir Edward Cook's Reports."
The next entry, at the same session of November, 1647 (Records, ii. 217-8), is as follows: —
" The laws now being in a manner agreed upon, and the Court drawing to an end, it is time to taiie order : 1. How all alteration of former laws may be without mistaking compared and fair written : 2d. That all old laws not altered be also written in the same copy : 3dly. That there be a Committee chosen for this business, to be made ready against the first day of the first month next, so as the Court of Assistants, if they see cause may advise for a General Court to prepare them for the press : 4thly. That there be large margins left at both sides of the leaf, and the heads of each law written on the two outsides thereof, and upon the other margcnt any references and scriptures or the like, and that these be written copywise. The Governor [Winthrop], l\Ir. Ikllingham, Mr. Hill, Mr. Auditor [Duncan] and Mr. Ting are joined in this Conunittcc to act according as in this paper is expressed."
Here, again, the committee seems to be reconsti'ncted, Johnson being dropped and Tyng snbstituted for Hibbens. The other four,
-' This very iinportant votu must be remembered in cnmp.'iring the Laws of IfiGO 'vvitli tlie original records. This Revision of 11149, being approved by the General Court, took the i)lace of former laws, and was undoubtedly taken over witliout change into the text of tlie Kevision of Ifil'iO. It may even be tliat some law, or jiart of a law. was enacted for the first time in this Revi- sion, if found to be necessary and acceptable. — \V. II W.
Inlroduclion. 77
Winthrop, Bellingham, Duncan and Hills seem to have continued the work. The followinj^ order of the Court in March, 1G47-8 (Records, ii. 227), shows that they had assistance in the clerical portion, and that two standard copies were prepared : —
" The Court dodi conceive it inccte that John AVayte of Charlcstown Village, shall be allowed, out of the next country rate, for his writing, one Look of the laws and for finding paper for both books, £4 ,, IS siiillings."
Also (Records, ii. 230), " The Court doth desire that Mr. Kawson and Mr. Hill compare the amendments of the books of laws passed, and make them as one ; and one of them to remain m the hands of the Committee for the speedy committing of them to the press, and the other to remain in the hands of the Secretary, sealed up, till the next Court."
Two months later, under date of May 10, 1648 (Records, ii. 239):=* —
" It is ordered, the copy of the Laws in the two rolls, — which were (bv
order of the Court) sealed up, with intent that if hereafter any questions should
arise about the copy now at the press, it might be examined by this, whereby
the faithfulness of the committee might be tried ; — and that the other copy
(now remaining with Mr. Hill), — should forthwith be sent for, for the use oftheCourt."'^3
Later, at the same se.ssion, May 10, 1648 (Records, ii. 246), it was voted as follows: —
"Mr. Auditor [Duncan] and Mr. Hill to examine the laws now at ]ircss, and to see if any material law be not jiut in or mentioned in the table as being of force, and to make supply of them."
In the Journal of the Deputies for =°May 13, 1648 (Records, ii. 263), is the following item: —
" Ordered, that in the book of Laws, title Apjieals, in the last line save one, (juft) to be entered next before charges; and the Auditor General to see it entered in every book."
-■» Compare Journal of the Deputies of May 13, 1G48 (Records, iii. 125). — W. H. AV.
'' Mr. F. C. Graj- notes that something seems to be omitteil in tliis sentence. 1 think, however, by inserting two dashes as aliove, tlie sense is plain and the sentence grammatical. I apprehend that the phrase " and that the other copy " is in accordance with the custom of the times and " that" is a pronoun. Or it may be that the word "that" is merely superfluous. It seems evident that both copies were to be sent for to be used by the Court. — W. II. W.
'" This same entry is in the Journal of the Deputies (Records, iii. 130). On the same page is a mention of certain propositions to be made to the Onited Colonies, and tlie entry is, " Propo- sition 3, page 24. This consisting of many brandies and the Court not having time to consider their own laws and practice in tlie case have deferred it to a cumniittee to examine and to certify the next Court." See tlie same entries in Records, ii. 2C3-4. — \V. II. \V.
78 Introduction.
In October, 1648, provision was made for transcribing in an alphabetical or metiiodical way, all laws, orders and acts of Court, contained in the old books, which were in force but not included in the printed revision.^-'
2' October 18, 1C48 (Kucords, ii. 2J0, and iii. 141), the following important order was passed : —
" For the better carrying on the occasions of the General Court, and to the end that the records of the same, together with wliat shall be presented by way of petition &c, or passes by way of vote, either amongst the magistrates or deputies, may hereafter be more exactly re- corded and kept for public use : —
It is hereby ordered, tliat as there is a Secretary amongst the Magistrates (who is the general officer of the Commonwealth, for the keeping of the public records of the same) so there shall be a Clerk amongst the Deputies to be chosen by them from ti no to time ;
That, (by the Court of Elections and then the officers to begin their entries and their recom- pense accordingly) there be provided by the Auditor, four large paper books in folio, bound up with vellum and pasteboard, two whereof to be delivered to the Secretary and two to the Clerk of the House of Deputies, one to be a journal to each of them, the other for the fair entry of all laws, acts and orders &c, which shall pass the magistrates and deputies ; that of the Secretary to be the public record of the country, that of the Clerk's to be a book only of copies.
That the Secrctarj' and Clerk for the Deputies shall briefly enter into their journals, respec- tively, the title of all bills, orders, laws, petitions &c, which shall be presented and read amongst tlum, what are referred to committees, and what are voted negatively or affirmatively, and so for any addition or alteration.
That all bills, laws, petitions, &c., which shall be last concluded amongst the Magistrates, shall remain Arith the Governor till the latter end of that session ; and such as are last assented to by the Deputies shall remain with the Speaker till the said tiiue; when the whole Court shall meet together, or a committee of Slagistrates and Deputies, to consider what has passed that session, where the Secretarj' and Clerk shall be present, and by their journals call for such bills c&c, as hath passed either house :
and such as shall appear to have passed the magistrates and Deputies shall be delivered to the Secretary to record, who shall record the same within one month after every sessions; which being done, the Clerk of the Deputies shall have liberty, for one month after, to trans- cribe the same into his book.
And such bills, orders &c., that hath only passed the Magistrates, shall be delivered to the Secretary' to keep upon file; and such as have only passed the Deputies shall be delivered to their Clerk to be kept upon file in like manner, or otherwise disposed of as the whole Court shall appoint.
That all laws, orders and acts of Court, contained in the old books, that are of force and not ordered to be printed, be transcribed in some alphabetical or methodical way, by direction of some committee that this Court shall please to ai]point, and delivered to the Secretary to record in the first place in the said book of records, and then the acts of the other sessions in order ac- cordingly, and a copy of all to be transcribed by the Clerk of the Deputies as .aforesaid.
That the Secretary be allowed for his pains twenty marks per annum, and the Clerk of the Deputies ten pounds per annum, to be paid out of the treasury, till the Court shall ap- point their recompense bj' fees or otherwise."
Under date of Oct. IS, 1(!.">0 (liecords, iv. part 1, p. 33), there is an entry showing that William Torrey had not then written up the Dejiuties' book. See also the references (Kecords, iv. part 1, p. 324) May 19, Ki.'iS, to various books of records, when the laws about Constables were collected and codified.
I am sorry to add that none of these various records and compilations of laws are now ex- tant at our State House. The continuous record to 1686 exists and one volume (1C44-1657) of the Journal of the Deputies. These are well known, having been printed by the State. Many of the original orders, papers, and minutes are in the files ; but the ill-timed zeal of a former Sec- retary caused the dispersion of these papers into a new classified arrangement, and the continuity of the record is lost. I am informed that, in some cases, books of orders were cut apart and the iteius scattered into the A'arious new receptacles. Possibly some of these books ordered in 1648 lasted intact for two centuries, to be improved out of existence in our days. — W. 11. W.
Introduction. 79
*2 October 27, 1648 (Records, ii. 262) : —
"It is ordered by the full Court, that the books of laws, now at tlic press, may be sold in quires, at throe sliillings tlie hook; provided tliat every member of this Court shall have one without jirice, and the Auditor-gineral and Mr. Joseph Hill ; for whieh there shall be fifty in all taken up, to be dis- posed of by the appointment of this Court."
May 2, 1649 (Records, ii. 273, and iii. 162), the following vote was passed : —
" Mr. Joseph Hill is granted, as a gratuity, ten pounds, to be paid him out of the treasury, for his pains about the printed laws."
Having thiis completed the entries respecting the first Revi- sion of the Laws, I would renew the statement made ante, on p. 11. This edition is often called that of 1648. We have seen, however, that at as late date as October, 1648, it was at the press Avhen the General Court adjourned, and that the title of the edition of 1660 says, "published by the same authority in the General Court holden at Boston in May, 1649." We may fairly conclude that the revision is most correctly entitled that of 1649, although no special entry is found of the publication at the May session in that year. It is understood that a small edition only was printed, not only because no copies have survived, but because the preface to the edition of 1660 states that " the Book of Lawes, of the first Impression, not being to be had for the supply of the Country put us upon the thought of a second." But see post, p. 95, note 57.
In the meantime, October 17, 1649 (Records, ii. 'IS^, and iii. 173), the following vote was passed: —
" The Court, finding by experience the great benefit that doth redound to the country by putting of the law in print, do conceive it very requisite tliat those laws that have passed the consent of the General Court since the Book of Laws were in printing or printed, should be forthwith connnitted to the press ; and for that end appoint Ivichard Bellingliani, esq., Mr. Xowell, Mr. Auditor- general [Duncan], Capt. Kcayne, and Mr. Hill, or an)' three of tiieni, a committee to prepare them against the Court of Election ; that uj)on appro- bation of the return of the committee, tliey also may be printed ; as also therewith to j)repare those laws referred to in the end of the printed laws, with a suitable table, to be printed."
'^ The last clause of tliis order is printed in the form given in Hecorda, iii. 144, it being rather more explicit. — W. 11. W.
80 Iiilroduclion.
October 18, 1650 (Records, iv. part 1, p. 35) : —
*' It is ordered that Richard Bellingliam, esq., the Secretary [Rawson] and Mr. Hills, or any two of them, are appointed a committee to take order for the printing the laws agreed npon to be jirintcd, to determine of all things in reference thereunto, agreeing with the jiresident for the printing of them with all expedition, and to allow the title if there be cause."
These last two entries supply us Avith a fact which has prob- ably not been noticed for the last centniy, viz., that not only was there an edition of 1G49, but a Supplement thei'eto in 1G50. It will also be possible to form a fair idea of the shape and contents of both of these. As to the existence of the Supplement of 1G50, citations given later (pp. '$<^, 90,) show that the General Court in 1654 referred to and amended laws in the "first printed book" and in the " second printed book." INIoreover the Code of 1660 is full of marginal citations from L. 1 and L. 2, the former being quoted up to p. 53 (title " Wills,") and the latter to p. 16 (under the same title). And in one case, the law cited by the General Court as being on page 8 of the second book, (referring to Free- men), is in 1660 marked as L. 2, p. 8.
See also a possible citation in 1652, recorded ante, p. 70.
Two other facts are significant: First, the annexed Table of the marginal refei'cnces in the Code of 1C60 to Liber 2 shows that the laws copied were all passed prior to 1651. Secondly, that tlie marginal citations are fi'om Anno 1651 onward, and never back- ward. That is to say, no year previous to 1651 stands in the inai'gin, though much of the text was enacted in 1648, 1649, and 1650.'^ There ai-e some laws cited as from Liber 2 which were passed earlier than 1648; these are evidently the laws which were omitted in the Code of 1649, but found on examination to be worthy of a place in the General Laws, and therefore put first into the Supplement, and then into the Code of 1()60.
Tlie title "Ecclesiastical" (p. 28 of 1660) seems to give us a good proof that the Supplement contained amended or omitted laws. Section 14 contains two long sub-sections or paragraphs. Both were passed K^ovembcr 4, 1646 (Records, ii. p. 178, 179) ; but
■"I find but two apparent exceptions. In 1660, p. 2, title " .Appeals, § 3, the citation is " A. 43, p. 19." This is a tvpographioal error, as the law was passed August 30, 1653 (Records, iv. part 1, p. 152).
The other case is on p. 82 of Code of 1660, title " Wolves," cited as 1648. This law was jiassed Oct. 18. 1648 (Records, ii. 252), and was to Last only four years. It was therefore not ia the General Laws of 1649. But it was revived hy a law passed August 30, 1653 (Records, iv. pan 1, \\. 153), and therefore is printed in 1660. The law and the citation are both exceptions. — W. II. \V.
Introduction. 81
the first paragTa])h is on p. 179, and the second on p. 178. Now the Connecticut Code prints the first paragraph complete, but not the second. Hence I infer tliis first paragraph alone stood in the Code of IGiO; l)ut that in the Supplement (the citation being L. 2, p. 5), the iJrevious section, which had been overlooked, was restored.
Note, also, that in the law of 1646 the culprit was to wear a paper inscribed "A AVanton Gospeller"; but in 1660, and by the Connecticut Code, it was changed to " An Open and Obstinate Con- temner of God's Holy Ordinances." This seems to show that the compilers in 1649 altered the text on that point, and Connecticut coijied it.
The title "Attachments," in the Laws of 1660, helps to fix the date of the second book. It cites " L. 2, p. 12," for a law passed May 22, 1650 (Records, iv. part 1, ]). 5), and farther down it cites "Anno 1651, p. 1," for a law passed May 7, 1651 (Records, iv. parti, p. 39).
Finally we have the distinct evidence of Joseph Hills, as set forth below, that the Second Book was prepared by him, and put through the pi-ess under his supervision. Hills was a member of the House for Charlestovvn in 164:7, and Speaker in that year. He rejiresented Maiden 1650-1656; removed to Newburj' soon after, and represented that town in 1667; he died in 1688, aged 86 years. His petition will be found in Mass. Archives, vol. 47, p. 19. It is as follows: —
"In as much as it Iiath pleased tlie General Court to engage me in sundrv great and weighty services in rcfference to all the generall laws licrc cstablisiicd, now in print ffor publique good : In consideration whereof as I conceive, a Gratuity of Ten pounds was Appointed me by the Treasurer, which as it liolds forth the good acceptance of tlie Honored Court, I thankfully acknowledge, as duty binds me.
" Yet apprehending tliat my Great care, paynes and studies in these diffi- cult Imployments was not truly Informed or understood, I desire briefly to tender you an account tiicrcof as follows.
1. "First it pleased the General Court to employ mc in a shire Com- mittee to draw up a IJody of Laws in which I took unwearied pains, perusing all the Stat. Laws of England in [Pulton?] at Large, out of which I took all such as I conceived sutahle to the condition of this Commonwealth ; which with such others as, in my observation, experiences and serious studies 1 thouglit needful, all wiiich I drew up in a Book, close written. Consisting of 24 pages of paper, in folio, which upon the Committee's perusal, — viz. Mr. Noel, Mr. Pelham, Mr. Tlioinas Sheppard and myself, — I was Appointed to draw upp for the use of the (iencrall Coiu-t, whidi IVxik was liv some means
8 2 Introduction .
lost iind could not be found. For further Improvement by anotlier Committee of the Generall Court, viz. Mr. Bellingham, Mr. Nat. Ward, &c., whcreupou Mr. liellingham spake to me to help them to another cop|)ic of the aforesaid Book, which in tender Respect to publique good, to the Honored Court and Committee, I did forthwith again Transcribe out of my First coppie, although it was in harvest time.
2. " After that, it pleased the Generall Court again to Ingage me in the perusing all the laws in the Books of liecords, to Consider, Compare, Compose, and Transcribe all laws of publirpie Concernment, coppie-wise ; all which I did draw upp together, and Drew iipp in five Books or Rowls, which done were Examined by the Connnittce and presented to the Gen". Court.
3. " Tiicrcuppoii I was Ordered by the Court to Transcribe the five Books afforesaid with some other new laws, all which (save onely a few the Auditor did), I, with Groat care and vigilancie, performed, and frequented the press, and otherwise took care to Examine them during the Imprinting the same.
4. " Since which it pleased the Gen" Court to Appoint me with some others to Compose and Transcribe the Second Booke of Laws, coppie-wise, which I allso did ; which afl^tcr Examination by the Committee was allso presented to the Gen" Court, wliich were pleased further to Imploy another Committee, whereof I was one, to fitt them for the press.
" In all which services iu referenco to publique good, I putt forth my selfe to the uttermost to tlic Great neglect of my personall and particular occasions, devoting my selfe tiiereunto for the most part of two years tyme (as ncer as I can remember) the benefit whereof doth I hope verie manifcstlj- Eedound both to Court and Country, who doubtless iippon a right understanding will not