Ch. 3.3. Primary Source: The Laws and Liberties of Massachusetts Bay, 1648, part 1

This detailed law code is one of the most famous of colonial America. Most striking to modern readers is the use of the Bible, and especially of the Old Testament, in matters of religion and morality. These laws are thus often seen as characteristic of early Puritan New England. But both English legal traditions and new, colonial practices were at least as important in shaping many of the laws contained here. This ‘code’ was an attempt to provide a coherent statement of the colony’s legal system. It compiled laws passed since the founding of the Massachusetts Bay colony in 1630 and added new laws, introductory matter, and a topical organization that follows (after an introduction and a first, untitled item) an alphabetical order.

Questions: What “sources” of law (scriptural, English, colonial) can you identify in this text? How “democratic” or “representative” was the governmental system described here? What types of officials, working in what specific institutions (if any), made and enforced the law? What areas of life were regulated by the colonial government? Overall, how “free” do you think the inhabitants of Massachusetts Bay were?

This sub-chapter provides the text’s introductory sections and then specific topics through the letter C. The text has been edited by modernizing the spelling and punctuation, by reducing repetitive language, and by adding explanations for archaic or unfamiliar terms or ideas (in brackets in italics).

To our beloved brethren and neighbors, the inhabitants of Massachusetts, the Governor, Assistants and Deputies assembled in the General Court of that jurisdiction with grace and peace in our Lord Jesus Christ.

So soon as God had set up political government among his people Israel he gave them a body of laws for judgement both in civil and criminal causes… God was said to be amongst them or near to them because of his ordinances established by himself, and their laws righteous because himself was their law-giver… In New England…our Churches and civil state have been planted, and grown up (like two twins) together, like that of Israel in the wilderness, by which we were put in mind…to frame our civil polity and laws according to the rules of his most holy word whereby each do help and strengthen [the] other…

This present volume we have not published…as a perfect body of laws… For if it be no disparagement to the wisdom of that High Court of Parliament in England that in four hundred years…, they still had new work to do of the same kind almost every Parliament. There can be no just cause to blame a poor colony (being unfurnished of lawyers and statesmen) that in eighteen years has produced no more, nor better rules for a good, and settled government than this book…

These laws which were made successively in divers former years, we have reduced under several heads in an alphabetical method, that so they might the more readily be found… [This is] our hasty endeavor to satisfy your longing expectation and frequent complaints for want of such a volume to be published in print: wherein (upon every occasion) you might readily see the rule which you ought to walk by. And in this we hope you will find satisfaction…

You have called us from amongst the rest of our brethren and given us power to make these laws: we must now call upon you to see them executed… If one sort of you, [such as] non-freemen, should object that you had no hand in calling us to this work, and therefore think yourselves not bound to obedience, we answer that a subsequent or implicit consent is of like force in this case, as an express precedent power. For in putting your persons and estates into the protection…[of] this jurisdiction, you do tacitly submit to this government and to all the wholesome laws thereof…

That distinction which is put between the laws of God and the laws of men becomes a snare to many as it is misapplied in the ordering of their obedience to civil authority. For when the authority is of God and that in way of…Romans 13:1, and when the administration of it is according to deductions, and rules gathered from the word of God, and the clear light of nature in civil nations, surely there is no humane law that tends to common good (according to those principles) but the same is mediately a law of God, and that in way of an ordinance which all are to submit unto and that for conscience sake (Romans 13:5) [for the cited passages, see above, Module 1, ch. 1, on the Bible].

By order of the General Court, Increase Nowell, Secretary, it is therefore ordered:

[Due Process]

That no man’s life shall be taken away; no man’s honor or good name shall be stained; no man’s person shall be arrested, restrained, banished, dismembered nor any ways punished; no man shall be deprived of his wife or children; no man’s goods or estate shall be taken away from him; nor any ways damaged under color of law or countenance of authority unless it be by the virtue or equity of some express law of the country warranting the same established by a General Court & sufficiently published; or in case of the defect of a law in any particular case by the word of God.

And in capital cases, or in cases [of] excommunicat[ion], [the] condemned…shall have full power and liberty to make their wills & testaments & other lawful alienations of their lands and estates. [1641]

Actions [= Civil Lawsuits]

All actions of debt, accounts, [and] slander…shall henceforth be tried where the plaintiff pleases…, unless by consent under both their hands it appears they would have the case tried in any other court. All other actions shall be tried within that jurisdiction where the cause of the action arises. [1642] …

Age

It is ordered by this Court…, that the age for passing away of lands…, or for giving of votes, verdicts or sentences in any civil courts or causes, shall be twenty and one years: but in case of choosing of guardians, fourteen years. [1641, 1647]

Anabaptists [Anabaptists, or ‘Rebaptizers,’ were Protestants who rejected infant baptism; many were also pacifists. Included under this label were Quakers and some Baptists]

[1] Forasmuch as experience hath plentifully & often proved that since the first arising of the Anabaptists about a hundred years past they have been the incendiaries of commonwealths & the infectors of persons in main matters of religion & the troublers of churches in most places where they have been, & that they who have held the baptizing of infants unlawful, have usually held other errors or heresies together therewith (though as heretics do they have concealed the same until they saw an…opportunity to vent them by way of question or scruple).

[2] And whereas divers of this kind have since our coming into New England appeared amongst ourselves, some [of whom]…have denied the ordinance of magistracy [i.e., the civil authorities], and the lawfulness of making war, others the lawfulness of magistrates and their inspection into any breach of the First Table [the first four of the Ten Commandments, which concern religious matters, and which were thought to have been included on the first tablet given to Moses; see above, ch. 1, on the Bible]. Which opinions if connived at [i.e., tolerated] by us are like to be increased among us & so necessarily bring guilt upon us, infection, & trouble to the churches & hazard to the whole commonwealth.

[3] It is therefore ordered by this court…, that if any person or persons within this jurisdiction shall either openly condemn or oppose the baptizing of infants, or go about secretly to seduce others from the approbation or use thereof, or shall purposely depart the congregation at the administration of that ordinance; or shall deny the ordinance of magistracy, or their lawful right or authority to make war, or to punish the outward breaches of the First Table, and shall appear to the court willfully and obstinately to continue therein, after due means of conviction, every such person or persons shall be sentenced to banishment. [1644]

Arrests

It is ordered and decreed by this court…, that no man’s person shall be arrested or imprisoned for any debt or fine if the law can find any competent means of satisfaction otherwise from his estate. And if not, his person may be arrested and imprisoned, where he shall be kept at his own charge, not the plaintiff’s, till satisfaction be made… [1641, 1647]

Bakers

[1] It is ordered by this court…, that henceforth every baker shall have a distinct mark for his bread, & keep the true assizes [measures] as hereafter is expressed: when wheat is ordinarily sold…by the bushel at 3 shillings, [then]…the penny white loaf…shall weigh…11 ounces…, [and when a bushel is worth] 3 shillings 6 pence, [the penny loaf will weigh] 10 ounces, etc. …[a table of weights and prices is given]…, and so proportionately.

[2] Under the penalty of forfeiting all such bread as shall not be of the several assizes as is aforementioned, to the use of the poor of the town where the offence is committed, and otherwise as is hereafter expressed.

[3] And for the better execution of this present order, there shall be in every market town…, one or two able persons annually chosen by each town, who shall be sworn at the next county court…, who are hereby authorized to enter into all houses, either with a constable or without, where they shall suspect or be informed of any bread baked for sale, & also to weigh the said bread as often as they see cause: and to seize all such as they find defective. As also to weigh all butter made up for sale…, which if found light after notice once given shall be forfeited in like manner… And the said officer shall have one third part of all forfeitures for his pains; the rest to the poor as aforesaid. [1646] …

Bond-slavery

It is ordered by this court…, that there shall never be any bond-slavery, villainage [serfdom] or captivity amongst us; unless it be lawful captives, taken in just wars, and such strangers as willingly sell themselves, or are sold to us: and such shall have the liberties and Christian usages which the law of God established in Israel concerning such persons doth morally require, provided, this exempts none from servitude who shall be judged thereto by authority. [1641]

Burglary and Theft

[1] …It is…ordered by this court…, that if any person shall commit burglary by breaking up any dwelling house, or shall rob any person in the field, or highways, such a person…shall for the first offence be branded on the forehead with the letter ‘B.’ If he shall offend in the same kind the second time, he shall be branded as before and also be severely whipped; and if he shall fall into the like offence the third time he shall be put to death, as being incorrigible.

[2] And if any person shall commit such burglary or rob in the fields or house on the Lord’s day, besides the former punishments, he shall for the first offence have one of his ears cut off. And for the second offence in the same kind he shall lose his other ear in the same manner. And if he fall into the same offence a third time he shall be put to death if it appear to the court he did it presumptuously. [1642, 1647]

Capital Laws

[1] If any man after legal conviction shall have or worship any other God, but the Lord God, he shall be put to death; Exodus 22:20; Deuteronomy 13:6-10; Deut. 17:2-6.

[2] If any man or woman be a witch, that is, has or consults with a familiar spirit, they shall be put to death; Exod. 22:18; Leviticus 20:27; Deut. 18:10-11.

[3] If any person within this jurisdiction whether Christian or Pagan shall wittingly and willingly presume to blaspheme the holy Name of God, Father, Son or Holy-Ghost, with direct, express, presumptuous, or high-handed blasphemy, either by willful or obstinate denying the true God, or his creation, or government of the world, or shall curse God in like manner, or reproach the holy religion of God as if it were but a politic device to keep ignorant men in awe, or shall utter any other kind of blasphemy of the like nature & degree they shall be put to death; Levit. 24:15-16.

[4-6] If any person shall commit any willful murder, which is man slaughter, committed upon premeditate malice, hatred, or cruelty not in a man’s necessary and just defense, nor by mere casualty against his will, he shall be put to death; Exod. 21:12-13; Numbers 35:31. If any person slays another suddenly in his anger, or cruelty of passion, he shall be put to death; Levit. 24:17; Numb. 35:20-21. If any person shall slay another through guile, either by poisoning or other such devilish practice, he shall be put to death; Exod. 21:14.

[7] If any man or woman shall lie with any beast or brute creature by carnal copulation, they shall surely be put to death; and the beast shall be slain & buried, and not eaten; Lev. 20:15-16.

[8] If any man lies with man-kind as he lies with a woman, both of them have committed abomination, they both shall surely be put to death, unless the one party were forced (or be under fourteen years of age, in which case he shall be severely punished); Levit. 20:13.

[9] If any person commit adultery with a married or espoused wife, the adulterer & adulteress shall surely be put to death; Lev. 18:20; 20:10; Deut. 22:23-27.

[10] If any man steals a man, or man-kind, he shall surely be put to death; Exod. 21:16.

[11] If any man rise up by false-witness wittingly, and of purpose to take away any man’s life: he shall be put to death; Deut. 19:16-18.

[12] If any man shall conspire and attempt any invasion, insurrection, or public rebellion against our commonwealth, or shall endeavor to surprise any town, or towns, fort, or forts therein, or shall treacherously, & perfidiously attempt the alteration and subversion of our frame of polity or government fundamentally, he shall be put to death; Numbers 16; 2 Samuel 3, 18, and 20.

[13] If any child, or children, above sixteen years old, and of sufficient understanding, shall curse, or smite their natural father or mother, he or they shall be put to death, unless it can be sufficiently testified that the parents have been very unchristianly negligent in the education of such children; or so provoked them by extreme and cruel correction, that they have been forced thereunto to preserve themselves from death or maiming; Exod. 21:15, 17; Lev. 20:9.

[14] If a man have a stubborn or rebellious son, of sufficient years & understanding, i.e. sixteen years of age, which will not obey the voice of his father, or the voice of his mother, and that when they have chastened him will not harken unto them: then shall his father & mother being his natural parents, lay hold on him, & bring him to the magistrates assembled in court & testify to them that their son is stubborn & rebellious & will not obey their voice and chastisement, but lives in sundry notorious crimes; such a son shall be put to death; Deut. 21:20-21.

[15] If any man shall ravish any maid or single woman, committing carnal copulation with her by force, against her own will; that is above the age of ten years he shall be punished either with death, or with some other grievous punishment according to circumstances, as the judges or general court shall determine. [1641]

Cask & Cooper

It is ordered by this Court…, that all cask used for any liquor, fish, or other commodity to be put to sale shall be of London assize, and that fit persons shall be appointed from time to time in all places needful, to gage all such vessels or casks & such as shall be found of due assize shall be marked with the gager’s mark, & no other, who shall have for his pains four pence for every ton, & so proportionably. And every county court or any one magistrate upon notice given them shall appoint such gagers to view the said casks, & to see that they be right, & of sound & well seasoned timber, & that every cooper have a distinct brand-mark on his own cask, upon pain of forfeiture of twenty shilling in either case, & so proportionately for lesser vessels. [1642 1647]

Courts and Elections

[1] For the better administration of justice and easing the country of unnecessary charge and travels, it is ordered: that there shall be four Quarter Courts of Assistants yearly kept by the Governor, or Deputy Governor, and the rest of the magistrates…, on the first Tuesdays of June, …September, …December, and …March… [as well as county courts in each county or major town, e.g., Boston, Essex, etc.]… And if any shall find himself grieved with the sentence of any the said county courts, he may appeal to the next Court of Assistants, provided he put in sufficient caution according to law. [1635, 1636, 1639, 1641, 1642]

[3] For the electing of our Governor, Deputy Governor, Assistants and other general officers upon the day or days appointed by our patent to hold our yearly court, being the last… Wednesday of every Easter Term, it is solemnly and unanimously decreed and established: that henceforth the freemen of this jurisdiction shall either in person or by proxy without any summons attend & consummate the elections, at which time also they shall send their deputies with full power to consult of and determine such matters as concern the welfare of this commonwealth… [1643]