“Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law . . . which we constitute and execute one towards another, without partiality or delay.”
Published in 1641, the Massachusetts Body of Liberties was a series of legal guidelines designed to aid the General Court (the chief lawmaking and judicial body of Massachusetts Bay Colony) in its activities. Compiled by jurist and clergyman Nathaniel Ward, the Body of Liberties is seen as the precursor to the commonwealth’s General Laws and ultimately the Constitution of Massachusetts. Incorporating English law and the Puritan traditions of the colonists, the document outlined the rights of any individual living in the colony—whether a legal inhabitant or foreigner—and provided some general outlines regarding the protection of property and individual interests.
In 1534, during the period known as the Protestant Reformation, King Henry VIII split off the English Church of Rome from the Roman Catholic Church. His alternative was the establishment of the Church of England (or Anglican Church), which was a hybrid of sorts between Catholicism and Calvinism, a sect of Protestantism. The king made himself the head of this church in addition to his rule over the state of England. In this capacity, however, Henry had created a faith that was both authoritarian and legally linked to the king. Still, other Protestant groups, including the conservative Puritans, were allowed to grow within the Church of England’s purview.
More than twenty years later, Queen Elizabeth I, Henry VIII’s daughter by Anne Boleyn, ruled England. Although Elizabeth resisted the growing call to moderate the Church of England, Puritans did not highly concern her; indeed, some of her advisers were Puritans. When Elizabeth was succeeded by James I, the sociopolitical landscape for Puritans and other Protestant groups changed significantly. James further attempted to solidify his leadership over both government and the church. He increasingly came into conflict with a number of non-Anglican sects, driving many perceived Separatist groups into hiding or away from England altogether. The Pilgrims, for example, escaped England during this period, fleeing into Holland before eventually sailing for America (where James allowed them to establish a colony), making their famed landing in Plymouth, Massachusetts, in 1620.
When James died in 1625, his son Charles I assumed the throne and immediately took on a despotic tone. He butted heads repeatedly with Parliament (which included many Puritan leaders), eventually attempting to consolidate all government power into his camp. His efforts led to a backlash among government leaders, as a power struggle ensued. The Puritans, however, were largely cut out of the government and subject to continued religious persecution under Charles.
In 1628, John Endicott led the initial group of Puritan colonists to Massachusetts Bay. Leadership of this colony would be handed to John Winthrop, a Puritan and the colony’s first governor. Understanding the plight of his religious peers, Winthrop brought with him more than one thousand Puritans aboard seventeen ships. The colony Winthrop and his followers established would remain loyal to the English crown but would allow its people to openly practice the traditions of Puritanism.
Massachusetts Bay Colony was in many ways a theocracy, with the Puritan church dictating much of life in the region. At the same time, however, the colony also needed a governing body. The settlers helped form the Massachusetts General Court, an institution that would be charged with issuing and enforcing laws as well as managing judicial activities. In 1641, Nathaniel Ward, himself both a minister and a lawyer, crafted the Massachusetts Body of Liberties in order to help the General Court create and administer laws and protections for the people, but with respect to Puritan tradition.
The Massachusetts Body of Liberties afforded certain liberties and legal rights to those who lived in the colony (as well as visitors thereto). The Body of Liberties spoke directly to the professed need for a legal code reflective of the Puritan values of New England. Some of Ward’s contemporaries took issue with his document, noting its heavy reliance on Old Testament principles and severe punishments for those who ran afoul of the law. Nevertheless, the Body of Liberties was well received by other members of the colonial leadership as well as conservative Puritan congregations.
Nathaniel Ward was born in 1578 in Haverhill, in the English county of Suffolk. He was the son of the conservative Puritan minister John Ward. Nathaniel studied at Emmanuel College in the University of Cambridge, from which he graduated in 1603 with an MA degree. Following his graduation, Ward practiced law in London until he paid a visit to Germany, where he became heavily influenced by the Calvinist David Pareus, leading him to become an ordained minister in 1618. Thereafter, he served as a minister to English merchants in Elbing, Prussia (now Poland) before returning to England by 1626.
Ward continued to develop his ministerial and writing skills, generating increasing notoriety as a religious leader. With that fame also came persecution under Charles I. Ward, having been accused of nonconformity by the Church of England, set sail in 1634 for Massachusetts Bay Colony. Upon his arrival, he moved to Ipswich, where he became a town pastor. Ward did not last long in his post, however, as his health was failing.
In 1638, as the new colony continued to take shape, it became clear that the General Court needed a clear set of legal codes. There were few legal experts in the region at the time, and lawmakers’ initial effort in this field (John Cotton’s 1636 publication known as Moses His Judicials) fell short of addressing the interests of both the church and the state. In 1639, Nathaniel Ward’s legal background therefore came into great demand among the colonial leadership. Ward and Cotton were asked to forge a set of legal guidelines to aid the General Court in the application of colony-wide laws. Ward’s draft, along with portions contributed by Cotton, was published in 1641. Scholars disagree on whether these liberties were ever adopted or approved by the General Court; some refer to the Body of Liberties as the first legal code created by colonists in New England.
Ward continued to write various texts while moving from Ipswich to Haverhill, Massachusetts, and then back to Boston in 1645. Later in 1645, Ward returned to England, where he assumed a post as minister of Shenfield, just east of London. He continued to write until he died in 1652.
Nathaniel Ward’s seminal work presented the General Court with a set of legal guidelines by which the colony might operate. This document provided a list of liberties to which each resident of the colony would be afforded. It also established a series of recommended punishments for certain crimes committed in the commonwealth.
The piece begins by underscoring the importance of the General Court as the primary lawmaking entity of Massachusetts. In other words, no resident or visitor to Massachusetts would be arrested, prosecuted, or punished unless the laws of the General Court sanctioned such action. The document makes reference to the fact that, if the General Court’s laws somehow fail to cover a crime that is otherwise addressed in the Bible, then biblical law will be applied.
Within the first few sections of the Body of Liberties, Ward makes clear that the laws administered by the General Court should be applied equitably to all individuals in Massachusetts. This point is significant for two reasons. First, it likely speaks to the experience Puritans had in England, wherein this group was pushed out of the English government because of its differences with the Church of England. Second, this language served to empower the General Court as the main administrator of the law in Massachusetts, although the ultimate law was the word of God. Here, Ward made sure that the General Court was given due deference and that the laws it administered would be fairly applied to all.
Protection for the People
Although the laws were expected to be strictly enforced by the General Court with special deference to the Puritan tradition (and with it, the Bible), Nathaniel Ward’s document also showed that the people would be expected to play a role in the government. It was critical that citizens of the colony attend and participate in town meetings, council events, and other assemblies. Then again, the Body of Liberties also demonstrated some flexibilities in this regard. Under section 4 of the document, should an individual find be unable to attend these events due to an unforeseen conflict or an act of God, the person would not be prosecuted for such a lack of participation. This rule also applied to the litigants in a court case—even if a person is physically or otherwise unable to attend the proceedings, he or she would not automatically forfeit the compensation or justice due him or her.
Furthermore, the first few sections of Body of Liberties identify areas in which the General Court would not only punish crimes but protect the citizens of the colony. Section 3 of the document, for example, states that colonists would not be forced to make any sort of public oath or agreement unless this agreement was ordered by the General Court. Section 5 states that no individual would be forced to perform any sort of public service or work unless called upon to volunteer by the General Court.
Another key example of the trust placed in the General Court regarding the safety of the people may be found in section 7. In this section, the document stated that the people of Massachusetts would not be required to take part in any wars or conflicts that do not serve the interests of the people—in other words, any war that was not rooted in the defense of the colony and its residents. Ward’s work gave the General Court the power to ascertain the necessity of such conflicts.
Some of the most well-known elements of the Body of Liberties are its statements on the basic rights of the people. This expression of the liberties owed to the people underscored the fact that the colonial government would not be tyrannical. Rather, it would be driven by the desire to protect the colonists’ way of life. Some examples of the basic protections afforded in this regard include section 6, which stated that no individual may be required to fight a war or otherwise perform any strenuous public service if physically handicapped, elderly, or physically or mentally ill. Furthermore, section 17 allowed any individual and his or her family to move out of the colony—as long as they were not attempting to flee criminal prosecution or legal liability.
Additionally, the process of government would be open to all who wished to lawfully take part. As outlined in section 12, the people would be allowed to attend any General Court session or hearing, town meeting, or other lawmaking function. In fact, the people were, according this document, entitled to take part in such events by making speeches, filing motions and petitions, asking questions, and issuing complaints. As long as the participants at such events did not disrupt the process, the people were allowed to take part in the General Court’s government.
The Massachusetts Body of Liberties also sought to protect the colony’s business interests, including land ownership and the pursuit of food. Section 16, for example, allows householders to hunt fowl in the woods and fish in any of the region’s ocean coves and bays, rivers, and ponds. The section is careful to state, however, that this liberty would only be recognized as long as hunters and fishermen did not trespass on others’ property.
The framework acknowledged the fact that a large percentage of those who came to Massachusetts did so to escape religious and social persecution. Many of these individuals owned property and other assets in England. Section 13 clearly states that individuals who held taxable assets in England would not be required to pay a tax on those possessions and revenues until the items in question were brought into the colony.
Further regarding the area of land ownership, Section 15 adds protections for landowners from fraudulent activity. In a period during which the acquisition of land was one of the most important aspects of colonial life, it was important to clearly identify fraud as a crime. If the General Court did not have the authority to protect the people from fraud and prosecute offenders, colonists would become the frequent victims of such individuals. Although Section 15 does not suggest ways to combat fraud, it does state that any property gained through fraudulent or illicit means would be deemed invalid in the eyes of the General Court.
The Massachusetts Body of Liberties is noted for its many innovative and progressive ideals. One such notion is its stated protection of women, children, and people with mental disabilities who, by the provisions in section 14, were allowed to conduct land and property transactions by petitioning the General Court. Additionally, section 79 protected widows whose husbands did not leave at least a reasonable percentage of their estate to their wives. One of the most significant ideals with regard to women was section 80—this provision clearly stated that a man could not whip or otherwise physically assault his wife unless his doing so constituted an act of self-defense. These provisions are considered radical and progressive, given the fact that the laws generated by the General Court applied to a religiously conservative society that placed men at the top of the social order.
Another shocking provision in the document pertained to servants. Sections 85 through 88 provided protections for indentured servants, including legal ramifications against any master who physically assaulted his servant or servants. Furthermore, servants could even participate in the political and judicial processes—under section 12, any man, whether “free or not free,” could attend town meetings, courts, and other public institutions and gathering, even having the ability to participate in these processes.
Section 91 made bond slavery, as justified by biblical law and Christian tradition, legal in the colony. However, the section limited the institution to captives taken legally during a just war and to foreigners. Although the practice of slavery would follow biblical law in terms of liberties granted to enslaved persons, all who were enslaved accordingly had to serve without exception.
A Puritan Government
Many of the guidelines offered in the Massachusetts Body of Liberties, such as those protecting women, children, the handicapped, the mentally challenged, and indentured servants, were considered radical and progressive, particularly in light of the fact that the society was largely focused on males and European cultural ideals. However, the document’s references to punishments for immoral behavior—reflective of the extremely conservative values of Massachusetts Puritans—indicated that the colony would remain bound to the traditions of the dominant religious institutions in Massachusetts.
Indeed, section 94, “Capital Laws,” outlining crimes for which offenders could receive the death sentence, is reflective of conservative Christian ideals—to the point where eleven of the twelve subsections cite the biblical chapters and verses on which it is based. Some of these crimes are rooted in the Ten Commandments: the worship of an entity other than God, blasphemy, murder, adultery, theft, and bearing false witness against others were all listed as capital offenses. Other capital offenses targeted behavior deemed immoral according to the Old Testament. For example, section 94.2, by which convicted witches may be sentenced to death, cites Exodus 22:18, Leviticus 20:27, and Deuteronomy 18:10.
Of the twelve capital offenses cited in Body of Liberties, only the twelfth did not have a root in the Bible. In section 94.12 Ward wrote that any individual or individuals who were found guilty of conspiring or attempting to invade or raise a rebellion against the commonwealth or any town therein would be subject to execution. Furthermore, any individual who otherwise worked to subvert the foundations of the new government would be given the death penalty.
From its description of laws against society and God that warranted death, the Massachusetts Body of Liberties moved into an outline of the role Puritan churches would play under the new government. The “Church of Christ,” according to the document, was to enjoy a number of liberties under the new political system. The rights afforded by the Body of Liberties to Puritan churches spoke to the Puritans’ experience of persecution in England prior to their move to New England.
In the new colony, the General Court gave a great deal of autonomy to Puritan churches to organize congregations, manage their affairs, draw new members, or enforce the traditions of Puritanism. These rights included the ability to elect and remove church officers. Puritan churches would be free to do the same for their members, recruiting pious people into the fold and, when necessary, punishing members for acting contrary to the orthodox traditions of Puritanism. In fact, section 95 of the document features a total of eleven provisions that protect the rights and liberties of the churches, including protections against any persecution and allowances for all Puritan practices to be exercised without hindrance.
Puritan traditions would also be given strict protection by the General Court. The document provides safeguards to ensure that the government would not interfere in the church practices, such as prayer and fasting. Furthermore, there would be no intervention by the General Court if a church decided to discipline its members according to tradition. This point is important, underscoring the fact that each church would retain the ability to administer its own justice to members for conduct that is contrary to church law, even if that disciplinary action ran counter to the General Court’s legal code.
Another point concerning the rights and liberties afforded to Puritan churches allows a church to take action against one of its members even if that member is a magistrate, a deputy of the General Court, or another government official. This section is significant due to the fact that it suggests that these representatives of the Massachusetts Bay Colony’s government, while responsible to all people, would also be responsible to (and therefore influenced in their decision-making by) the Puritan churches.
The fact that the Massachusetts Body of Liberties includes a significant portion of text concerning the rights of the churches speaks to the type of society the Puritan émigrés to New England sought to create. Indeed, Ward’s document calls for a set of government institutions and practices that protect the basic rights and interests of the people, although the people would be expected to adhere to Calvinist Christian values that were based on biblical scripture. In fact, by allowing the church to take disciplinary action against its members for conduct that was contrary to scripture—even if those members are part of government institutions—the Massachusetts Body of Liberties ensured that the churches would be allowed to influence all social and political elements of the new Massachusetts Bay Colony.
While religious tradition would be a dominant force in Massachusetts, the Body of Liberties did also create a number of key governmental protocols and institutions. Among them is a set of judicial guidelines. A number of these policies would later be included in the Massachusetts constitution, which in turn would form the basis for the US Constitution and even the constitutions of other nations through the present day.
One important example is the right of a person to obtain legal representation if he or she is accused of a crime and must appear before the General Court. According to the language of section 26 of Body of Liberties, the accused may obtain, free of charge, a lawyer in the event that he or she cannot afford one. Additionally, according to section 30, both the plaintiff and the defendant in a court case have the ability to challenge the installation of any of the jurors. The document even provides a set of guidelines whereby a plaintiff may withdraw his or her complaint—compensating the defendant for the time and resources used, of course.
Another significant aspect of the General Court’s judicial duties given light by the Massachusetts Body of Liberties was the “Non Liquit,” or non liquet, which means “it is not clear” in Latin. Ward was careful to acknowledge that, in the establishment of the Massachusetts Bay legal code (even if it was based in part on the English code), it was likely that issues would arise for which there would be no legal precedent. In non liquet cases, the court will frequently look to international law for guidelines in how to both address the immediate issue and establish a relevant code in the statutes. According to section 31 of Body of Liberties, if a non liquet came to bear, the jurors and court officials, having exhausted their available resources to come to a safe verdict, would refer the case to the General Court for a special verdict. Both parties in the case would then be expected to accept the General Court’s verdict.
Given the judicial framework established by the Massachusetts Body of Liberties, as well as its protections of all citizens’ interests, this document may therefore be seen as a forward-thinking document in light of its contributions to the US Constitution, which would be written more than century later.
The Massachusetts Body of Liberties was created to provide the newly formed General Court with a set of guidelines for the generation and application of a set of laws for the colony. The colony was established by a group that had been persecuted, disenfranchised, and ultimately driven from England. When it was allowed to set up a colony in America, this group was required to remain loyal to the Crown while it worked to create a new community for itself.
The new colonial government therefore needed to be built upon both a legal system that was in line with English law and yet reflective of the values of the Puritans who established it. Nathaniel Ward was the perfect candidate to help the General Court take on this challenge in light of his combined legal experience and background as a Puritan minister. The document Ward developed effectively merged these two somewhat disparate sets of ideals.
The Massachusetts Body of Liberties was both useful for the General Court’s endeavors and for the promotion of Puritan ideals. Regarding the former of these tasks, the document provided a skeletal framework by which the General Court could generate laws for the new colony. Ward was careful to empower the General Court as the primary governmental institution in the colony. Ward also offered progressive ideas, including granting rights to servants, slaves, and women. Furthermore, the document offered innovative legal (and ultimately, constitutional) steps that would remain relevant and useful in the modern world.
The document also remains true to the conservative values of the Puritan tradition. The Massachusetts Body of Liberties is fiercely loyal to what Ward identifies as the ultimate law to which the colony would be responsible—the word of God, as it appears in the Old Testament. The Body of Liberties incorporates much of the Ten Commandments into the General Court’s legal guidelines, calling for the deaths of those who break those commandments. In fact, an entire section of the document is dedicated to the notion that Puritan churches were imbued with certain liberties that could not be put asunder by the General Court or any other individual, group, or entity. In this way, the document ensures that the new colony would be built both on a strong legal foundation as well as a foundation of Puritan values.
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