Ch. 2.2. Introduction to Massachusetts’s Charter and Early Legal System

As the planters and servants of the staple-crop colonies of Virginia were settling down to the cycles of planting tobacco, girding themselves against the Natives, and making laws, the ailing Virginia Company of Plymouth was leasing its right to occupy New England to a group of men quite different in cast from those in Virginia. Soon, whole fami­lies, indeed entire villages, led by their magistrates and their ministers, would embark for New England. Some brought with them a fear of religious persecution. A small band of “Pilgrims” had already left the northeast of England, sojourned in Leyden in the Low Countries, and settled themselves in Plymouth. They severed their ties with the English church and sought to create a simple biblical commune in the New World.

A larger number of emigrants were “Puritans.” Wealthier and more aggressive than the Pilgrims, the Puritans had labored at great prejudice to their own fortunes and safety to reform the English Prot­estant church. Many of them came to the New World to escape perse­cution at the hands of King Charles of England and his bishops. The king’s “prerogative” courts, primarily the Court of Star Chamber, and the ecclesiastical courts, dominated by the king’s appointees, made life and worship very difficult for the Puritans.

The courts were effective tools against Puritans in part because the Puritans themselves placed great value on law and legality. For these men and women the Bible was a source of law as well as a book of devotion. Puritan ministers articulated a covenant (contract) theology comparing the Puritan’s relationship to God to Abraham’s pact with God. The gath­ering together of Puritan “saints” in New England thus rested upon a renewal of the covenant, a word with meaning in both law and Holy Scripture.

Before leading Puritans gathered their families and fled from perse­cution in 1629, they purchased the New England Company, repatented it as the Massachusetts Bay Company, and then secretly (and illegally) removed the patent and themselves to the New World. The charter, with its royal seals, was a corporeal embodiment of a covenant, but no sooner did the Puritans set foot on the New England shore than the leaders of the colony discovered how difficult it was to impose the covenant ideal of law upon all the settlers.

From the first, New England’s supposedly orderly commonwealths were hardly that, in part because not all of the emigrants were cove­nanted members of dissenting congregations. They were laborers, sail­ors, and servants. They came to better themselves, flee misfortune, or pay off debts. The authorities responded to any who misbehaved by shaming, whipping, fining, and exiling chronic offenders.

The majority of the newcomers, however, saints and sinners alike, bound themselves to legal and religious harmony. Ashore, assembled under mighty oaks, they did “covenant with the Lord, and one with another and do bind ourselves in the presence of God to walk together in all his ways.” The contractarian beginnings of their new churches and towns transformed the old chartered trading company into a com­monwealth.

As contentious as these New England communities might be, they were in fact remarkably law-abiding given the potential for disorder. They agreed to divide the land, secure local order, regulate trade among themselves, and defend their towns against the crown. This required government and law.

The leading planters transformed the board of directors of the company into a ruling political council. These “Assistants” assumed supreme judicial author­ity. Advised by newly elected Governor John Winthrop, the Assistants preferred to hear and determine lawsuits without a code of laws, but pressure from the deputies elected by the towns induced the Assistants to commission Nathaniel Ward, who had legal training, to draft a “Body of Liberties” in 1641. Ward’s effort was the basis of the Massachusetts “Laws and Liberties” promulgated in 1648.

The Liberties promised Massachusetts men, and to a lesser extent women (for women were not full partners in the political or legal life of the colony), that they had rights and privileges. A written code of law also increased the security of property. The Liberties combined pub­lic and private law-government power and personal deportment were both fit subjects for the Massachusetts lawmakers. In language reminis­cent of the “Great Charter” of English liberties (Magna Carta), the Liberties promised an even-handed law in its opening guarantee of due process.

At the same time equal protection of the laws did not forbid special privileges; quite the contrary: gender, wealth, family, political position, and, above all, religious persuasion made a difference in one’s legal status. The Puritan way of worship in congregational churches and Pu­ritan religious doctrine, a stern version of Calvinism, were established by law in Massachusetts and Connecticut, and woe be to the Quaker or other sectarian who persistently flouted the will or questioned the privileges of these favored institutions.

The system of civil suits in the Liberties resembled that in the English local courts. No lawyers were invited or encouraged to practice, though lawyers evidently did bring their skills to the colony and earned a living writing legal documents. Juries were impaneled to decide questions of fact and give “special verdicts” if a point of law was disputed among them.

There was also in the Liberties a list of procedural rights, including public and speedy trial, the defendant’s power to call witnesses, and the right to a jury trial. The code also granted the status of “freeman” of the towns to male members of the churches. Freemen could vote, hold office, and voice limited dissent. The subordinate status of women, servants, and children was also defined in the Liberties. The Puritans were never social egalitarians, and ministers and magistrates agreed that women and minors ought to be legally subordinated to free adult males.

A list of crimes and pun­ishments, in effect a penal code, followed the civil provisions, some of the former taken from English criminal law, others from the Old Testament. The frequent recourse to the Bible in the Liberties was more than window dressing but less than an attempt to rebuild Jerusalem. In fact the code tracked English law, not the Old Testament.

Nevertheless, adultery and blasphemy, misdemeanors in the common law, were made capital crimes in Massachusetts, as were apostasy and disrespect to parents. Yet Massachusetts men and women were almost never prosecuted for these offenses, and even those few prosecuted very rarely suffered the pre­scribed penalty. The dockets of the criminal courts show that there were many cases of for­nication, but only two married people were ever executed for com­mitting adultery. Blasphemy was punished, but not by death.

The Puritans mitigated punishment for most of their Old Testament crimes because the laws were not meant to function in a literal way. The borrowing of Old Testament injunctions was a solemn public warning to those at the edges of the Puritan community against viola­tion of the deeper social mores that held the Puritan towns in the wil­derness together. The purpose of severity in the book law was as much to get the attention of potential wrongdoers as it was to punish actual wrongdoers.

One consequence of the admonitory function of criminal law was that almost everyone presented to the magistrates for disor­derly conduct or other minor offenses was chastised in some way. The criminal justice system did not function solely or even primarily to determine guilt or innocence, but to restate deeply held social values.

Like the stranger in biblical Jewish kingdoms, everyone in the Puritan commonwealth was to be judged by the same law, but the price of such formal equality was that non-Puritans, people with different ways, val­ues, and cultures, were not allowed to claim the protection of their own laws.

This applied especially to Native Americans, who gradually lost their land to the settlers. When it was not possible to ignore Native cultivators’ claims, New Englanders “purchased” the land. Under the Liberties, Puritans trans­ferred title to land through deeds. Both parties to the deed that transferred title to the land supposedly knew what was happening. Native Americans had a concept of ownership of personal belongings but regarded land, even improved land like gardens and planted fields, as communal property. When Natives “sold” land to the English, they thought they were selling the right to use the land and gather its fruits, not absolute ownership. They certainly did not realize that the sale would foreclose the Natives’ own right to hunt and trap on the land.

Not all the New England governments were unscrupulous in these dealings; for example, Rhode Island’s policy was far more enlightened than Massachusetts’ out of a mixture of genuine concern for the Natives and fear of the colony’s own weakness. Nor were all natives duped or victimized. Some learned to use English legal procedures to protect Native ways. But when all was said and done, the imposition of English rules favored the newcomers over the Natives.