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The Massachusetts Body of Liberties

The General Court of Massachusetts Bay (drafted chiefly by Nathaniel Ward)

1641 · Renaissance Early Modern · Political Theory · English

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Abstract

Written: 1641
Setting: 1630s–1640s; Massachusetts Bay Colony (New England)
Author: The General Court of Massachusetts Bay (drafted chiefly by Nathaniel Ward)
Country: English America
Language: English
Genre: Legal code and bill of rights
Form: Ninety-eight liberties and twelve capital laws
Recommended: Grades 9–12 (Old spelling; capital laws name sexual crimes. Best with a teacher.)

Origins. For a decade the Puritan colony was ruled largely at its magistrates' discretion, and freemen demanded a written code so that power would be limited by known rules. A minister with legal training produced the version adopted in December 1641.

Due process. The opening article bars taking anyone's life, reputation, freedom, family or property except under an explicit law or, lacking one, the Word of God. This principle bound magistrates as well as subjects.

Trials. Further articles promise equal justice, appeals, juries, protection from double punishment, strict limits on torture, two or three witnesses in capital cases and a ban on barbarous bodily penalties.

Particular groups. Sections address freemen in government and then wives, children, servants, foreigners and domestic animals, shielding each from cruelty. Wives are protected from beatings, servants who flee harsh masters are sheltered and shipwrecked sailors are cared for.

Slavery and severity. One article permitted enslaving war captives and people who were sold, and the capital laws, citing Moses, imposed death for idolatry, witchcraft, blasphemy and other offences. Each capital law carries marginal references to the books of Moses.

Legacy. Superseded by a fuller printed code in 1648, the document foreshadows many protections of the American Bill of Rights. It shows both the Puritan hope of ruling by God's law and the limits of that hope.

Key figures

Nathaniel Ward: Puritan minister and lawyer, principal drafter
John Cotton: Boston minister who prepared an earlier draft
John Winthrop: Governor of the colony

Summary

The Body of Liberties is the first code of laws adopted in New England and one of the earliest bills of rights in the English-speaking world. The Puritan settlers of Massachusetts Bay had governed for a decade largely by the discretion of their magistrates. Many freemen feared that this left them at the mercy of their rulers, and they pressed for written laws. After several drafts, the General Court adopted the Body of Liberties in December 1641, and ordered it to be read and weighed at every General Court for the next three years. The code contains 98 numbered liberties followed by a list of capital laws. The first liberty is a sweeping guarantee of due process: no person's life, honour, liberty, family or goods may be taken except by virtue of an express law of the country, or, where no law exists, by the Word of God. Many liberties follow on fair trial: equal justice to all, right to counsel and to appeal, jury trial, no double punishment for the same offence, no torture except under strict limits, conviction of a capital crime only on the testimony of two or three witnesses, and, in the forty-sixth liberty, no bodily punishments that are inhumane, barbarous or cruel. Other sections set out the liberties of freemen in government, such as the right to vote, to speak in town meetings and to petition. Separate sections then treat the liberties of women, children, servants, foreigners and strangers, and even brute creatures. A married woman is to be free from beating by her husband; children are protected against unnatural severity by parents; servants who flee cruel masters are to be sheltered; shipwrecked strangers are to be relieved; and no one may be cruel to domestic animals. The ninety-first liberty forbids slavery except for captives taken in just wars and those who sell themselves or are sold, a serious exception that allowed slavery in the colony. The capital laws, each with marginal citations from the books of Moses, punish idolatry, witchcraft, blasphemy, murder, kidnapping, false witness in capital cases, rebellion and certain sexual crimes with death. Readers will see both the Puritan hope of a commonwealth ruled by God's law and the severity of its penalties. The Body of Liberties was replaced in 1648 by the fuller Laws and Liberties of Massachusetts. Its protections anticipate many in the U.S. Bill of Rights.

Plot or Argument

Preamble
The Court affirms that liberties are the tranquillity of churches and commonwealth and decrees them for ever.
Liberties 1–57: rights of persons and procedure
Due process, equal justice, trial, witnesses, limits on torture and on cruel punishment.
Liberties 58–78: liberties of freemen
Elections, town government, freedom of speech in assemblies and control of public money.
Liberties 79–95: women, children, servants, foreigners and animals
Protections for the weak, with the slavery exception in Liberty 91.
Capital laws
Twelve crimes punishable by death, each supported by citations from the law of Moses.
Church liberties and conclusion
Liberties of the churches and provision that the code be read and reviewed.

Lessons

Rule of law
The first liberty says no one may be punished except by an express law. Rulers as well as ruled must be bound by known laws.
- What does the first liberty protect?
- Why did the freemen want written laws instead of the magistrates' discretion?
Related across the library
- United States v. The Amistad, Lesson: Law over politics
  Law over politics. The President's administration wanted the Africans returned, but the courts followed the law and the evidence. Independent courts protect the powerless.
- The Code of Hammurabi, Lesson: Law made public
  Law made public. Hammurabi wrote his laws on a public monument so that anyone wronged could know his rights. Justice depends on laws that are known and fixed in advance.
- Jacobson v. Massachusetts, Lesson: A precedent with a long reach
  A precedent with a long reach. Jacobson was later cited for very different purposes: to uphold school-vaccination rules in 1922, Virginia's sterilization statute in 1927, and many public-health orders during the pandemic of 2020-2021. Following a precedent through its later uses shows how a principle stated for one setting can be extended to others.
- The Subjection of Women, Lesson: Judge a law by what it permits the worst to do
  Judge a law by what it permits the worst to do. Mill grants that most English husbands treat their wives far better than the law requires. But laws exist for the bad as well as the good, and a law that gives one person unchecked power over another must be judged by its effects in the worst cases.
- Commentaries on the Laws of England, Lesson: Law as an inheritance of precedent
  Law as an inheritance of precedent. The common law is not a code enacted at a single time but a body of customs known through the decisions of judges, who are bound to follow precedent unless it is clearly absurd or unjust. Blackstone presents this as a source of stability and of liberty, since no single ruler can remake the law at will.
Protecting the weak
The code gives particular liberties to wives, children, servants, strangers and animals. Christian law cares for those without power.
- Which liberties protect women and children?
- Why would a Puritan code protect animals from cruelty?
Related across the library
- White Nights, Lesson: Fantasy can preserve and impoverish life
  Fantasy can preserve and impoverish life. The dreamer's imagination gives him beauty and endurance, but it also substitutes for relationships. Dostoevsky treats fantasy with tenderness and concern.
- Mapp v. Ohio, Medical lens
  The opinions concern search warrants, the admissibility of evidence and the relation of state to federal courts; nothing in them bears on medicine or the mind.
- The Magician's Nephew, Lesson: Wonder at creation
  Wonder at creation. Aslan's song makes stars, sun, grass and animals in order, and each character hears it differently: Frank and the children with joy, Jadis with hatred, Uncle Andrew only as roaring. The book invites readers to see the world as made and given.
- Ethics, Lesson: Sadness diminishes the power to act
  Sadness diminishes the power to act. Pain is defined as a passage to lesser perfection, and melancholy as a pain affecting the whole body that is always bad. Spinoza rejects the religious valuation of humility and repentance as virtues, arguing that what weakens us cannot make us better.
- Grace Abounding to the Chief of Sinners, Lesson: Conscience and the cost of obedience
  Conscience and the cost of obedience. Bunyan could have left prison by promising not to preach. He describes the parting from his wife and children as the pulling of flesh from bones, yet he concludes that he must venture them all with God. The appended Relation shows him arguing courteously but firmly with the justices for the liberty to preach.
A serious failure
Liberty 91 allowed slavery of captives and those sold. Even a code shaped by Scripture can fall short of the justice it seeks.
- What exception does Liberty 91 make?
- How should we judge a document that protects many liberties but permits slavery?
Related across the library
- New York Times Co. v. Sullivan, Lesson: Reputation and the right to criticize
  Reputation and the right to criticize. Sullivan's lawyers defended an old principle: a man's good name deserves protection from falsehood. The Court balanced that principle against the citizen's freedom to criticize government and struck the balance in favour of criticism for public officials, unless the speaker knew or recklessly ignored the falsity.
- Jude the Obscure, Part Second, Ch. VII
  After the college master's rebuff Jude drinks in a Christminster tavern and recites the Creed in Latin to the company.
- Incidents in the Life of a Slave Girl, Full Text
  interest in her welfare and were disposed to give her opportunities for self-improvement I am well aware that many will accuse me of indecorum for presenting these pages to the public for the experiences of this intelligent and much-injured woman belong to a class which some call delicate subjects and others indelicate This peculiar phase of Slavery has generally been kept veiled but the public ought to be made acquainted with its monstrous features and I willingly take the responsibility of presenting them with...
- Grace Abounding to the Chief of Sinners, Lesson: Outward religion is not the new birth
  Outward religion is not the new birth. For about a year after the voice in the game of cat, Bunyan keeps the outward forms of religion and enjoys being thought godly. The talk of the poor women at Bedford shows him that he has reformed his manners without knowing the change of heart they describe. The book separates reformation of conduct from the faith that rests on Christ.
- The Book of Enoch (1 Enoch), Lesson: Canon and its edges
  Canon and its edges. 1 Enoch was treasured at Qumran, quoted in Jude, discussed by early Christian writers, and preserved as Scripture in Ethiopia, while other churches did not receive it into their canons. Studying it shows students how the Bible's neighbours were read and why communities drew their boundaries where they did.
God's law and civil law
The capital laws cite the law of Moses. Students can consider how Christians have related the civil laws of Israel to the laws of a commonwealth.
- Why do the capital laws include Bible references?
- Should a modern state adopt the civil penalties of ancient Israel? Why or why not?
Related across the library
- Commentaries on the Laws of England, Lesson: Law as an inheritance of precedent
  Law as an inheritance of precedent. The common law is not a code enacted at a single time but a body of customs known through the decisions of judges, who are bound to follow precedent unless it is clearly absurd or unjust. Blackstone presents this as a source of stability and of liberty, since no single ruler can remake the law at will.
- Commentaries on the Laws of England, Lesson: Human law rests on natural and revealed law
  Human law rests on natural and revealed law. Blackstone begins his account of English law with God. The law of nature, dictated by God and binding everywhere, and the revealed law of Scripture are the two foundations; human laws regulate matters left indifferent and must not contradict them. Positive law, on this view, is a servant of a higher order.
- The Code of Hammurabi, Lesson: Law made public
  Law made public. Hammurabi wrote his laws on a public monument so that anyone wronged could know his rights. Justice depends on laws that are known and fixed in advance.
- Commentaries on the Laws of England, Introduction, §2 (Of the Nature of Laws in General)
  law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. Blackstone's statement of the supremacy of natural law over all human law.
- The Common Law, Lesson: Law and morality
  Law and morality. Holmes separates law from morality more sharply than older writers. The Christian tradition of natural law holds that human law must answer to a higher moral law.

Context

The Massachusetts Bay Colony was founded in 1630 by Puritans seeking to build a godly commonwealth. Its magistrates, led by John Winthrop, at first judged without a written code.

Composition

Drafts were prepared by John Cotton and by Nathaniel Ward. The General Court adopted Ward's version, revised, in December 1641.

Reception

The code was superseded by the Laws and Liberties of 1648, the first printed law code in English America. Historians see the Body of Liberties as a forerunner of American bills of rights.

Justice Law Faith / Religion Power / Politics Crime / Punishment Race Slavery

Comparisons

Magna Carta
The first liberty echoes Magna Carta's promise that no free man be harmed except by the law of the land.
The Founding Documents
Many of these liberties anticipate the U.S. Bill of Rights.
The Petition of Right (1628), the Habeas Corpus Act (1679) and the English Bill of Rights (1689)
English documents of the same century address similar fears of arbitrary power.

Quotes

“No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished”

— The General Court of Massachusetts Bay (drafted chiefly by Nathaniel Ward), The Massachusetts Body of Liberties, Liberty 1.Quote card

Against Celsus (Contra Celsum), Book I, Preface
not set down argument among the grounds of separation For observe that he says firstly Who shall separate us from the love of Christ Shall tribulation or distress or persecution or famine or nakedness or peril or sword as it is written For Thy sake we are killed all the day long we are accounted as sheep for the slaughter Nay in all these things we are more than conquerors through Him that loved us And secondly when laying down another series of causes which naturally tend to separate those who are not firmly gr...
Ecclesiastical History of the English People, Medical lens
The History is an important source for the great pestilence of 664 and the plagues that followed, often identified by historians with the Justinianic plague pandemic: Bede records that it emptied the south and then Northumbria, carried off Bishop Cedd and his followers at Lastingham and Archbishop Deusdedit, struck Ireland, and drove the East Saxons back to idolatry; Sellar's life of Bede notes the plague of 686 at Jarrow. Book IV contains a rare early English account of surgery: the physician Cynifrid describes...
Around the World in Eighty Days, Full Text
in the Exchequer or the Queen s Bench or the Ecclesiastical Courts He certainly was not a manufacturer nor was he a merchant or a gentleman farmer His name was strange to the scientific and learned societies and he never was known to take part in the sage deliberations of the Royal Institution or the London Institution the Artisan s Association or the Institution of Arts and Sciences He belonged in fact to none of the numerous societies which swarm in the English capital from the Harmonic to that of the Entomolo...
Little Britches, Summary
Little Britches: Father and I Were Ranchers is Ralph Moody's memoir of the four years, 1906 to 1910, that his family spent on a Colorado ranch, told from the point of view of the boy he was, eight years old when the story begins. His father, Charles, has a persistent cough from his work in a New Hampshire mill, and when a cousin, Phil, who sells gold stock in Denver, promises better prospects, the family leaves East Rochester for a run-down rented ranch near Fort Logan, southwest of Denver. Father, Mother, Ralph...
Meyer v. Nebraska, Opinion of the Court (Justice McReynolds)
Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Justice McReynolds lists the liberties the Court has held to be protecte...

“For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruel.”

— The General Court of Massachusetts Bay (drafted chiefly by Nathaniel Ward), The Massachusetts Body of Liberties, Liberty 46.Quote card

Jacobson v. Massachusetts, Opinion of the Court, on exemptions: making an exception in favor of children certified by a registered physician to be unfit subjects for vaccination
The statute's medical exemption for children, and the Court's discussion of whether adults in like condition must also be excused, show early legal treatment of physician certification in public-health law.
The Law, Opening section, on life and its faculties
It is not because men have made laws, that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand, that men make laws. The reversal at the centre of the argument: law presupposes rights rather than creating them.
Worcester v. Georgia, Concurrence of Justice McLean
This is undoubtedly true, so long as a state court, in the execution of its penal laws, shall not infringe upon the constitution of the United States, or some treaty or law of the union. Justice McLean grants that the Court ordinarily cannot arrest a state's criminal proceedings, then states the exception that applies here.
The True Story of My Life, Medical lens
Andersen's childhood memories give an unusual child's-eye view of an early nineteenth-century Danish provincial asylum. His grandmother tended the garden of the Odense hospital, where harmless patients walked the court and the boy followed attendants to the cells of the raving; he remembers a nearly naked woman singing beautifully who sprang at the door and reached for him, a terror that stayed with him. He calls his grandfather weak-minded, a wandering carver of strange wooden figures mocked by street boys, and...
Richard II, Full Text
And when I mount alive may I not light If I be traitor or unjustly fight KING RICHARD What doth our cousin lay to Mowbray s charge It must be great that can inherit us So much as of a thought of ill in him BOLINGBROKE Look what I speak my life shall prove it true That Mowbray hath received eight thousand nobles In name of lendings for your highness soldiers The which he hath detained for lewd employments Like a false traitor and injurious villain Besides I say and will in battle prove Or here or elsewhere to the...

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

Guarantees of due process and fair trial.
Liberties for particular groups.
The slavery exception in Liberty 91.
The biblical citations in the capital laws.

Key terms and names

General Court: The legislature of the Massachusetts Bay Colony.
Freeman: A church member admitted to full political rights in the colony.
Due process: Fair legal procedure required before a person can be punished or deprived of rights.
Capital law: A law punishing a crime with death.

Seminar Questions

Comprehension What does the first liberty promise?
Comprehension What does Liberty 46 forbid?
Interpretation Why might the colonists have feared their magistrates' discretion?
Interpretation How does the code show care for the weak?
Interpretation How should we judge a code that limits cruelty but allows slavery?
Interpretation Why do you think the code requires two or three witnesses for capital crimes?
Big Question What is the right relationship between God's law and the laws of a state?

Faith Connections

Deuteronomy 17:6 (Scripture)
"At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death": cited in Liberty 47's rule.
Proverbs 12:10 (Scripture)
"A righteous man regardeth the life of his beast": the basis of the liberty for animals.
Exodus 21:16 (Scripture)
"He that stealeth a man... shall surely be put to death": the capital law against kidnapping.

Logic and Rhetoric

Central argument: A Christian commonwealth must bind its rulers by written laws that guarantee due process, protect the weak and follow God's Word.

Rhetorical device: anaphora. Liberty 1 repeats "no mans... no mans..." to build a sweeping guarantee.

Debate: Resolved: that a nation's laws should be grounded in biblical principles.

Memory Work

No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished
Liberty 1. The foundational guarantee of due process in America's first code.

Writing Prompts

Essay: Explain how the Body of Liberties anticipates the U.S. Bill of Rights, and where it differs.

Comparison with The Founding Documents: Compare the Body of Liberties with the U.S. Bill of Rights.

Creative Prompts

Classroom
Choose five liberties and rewrite them in modern English; then find their counterparts in the U.S. Bill of Rights.
Essay
Assess the Body of Liberties as a Christian attempt to secure justice, including its failures.
Dialogue
Write a town-meeting debate in 1641 over whether the colony needs written laws.