MASSACHUSETTS BODY OF LIBERTIES (1641)

The Massachusetts Body of Liberties, which resulted from popular demand that the fundamental law of the colony be written, was primarily a set of constitutional safeguards protecting personal freedom and the procedures of due process. By 1634 the colonists were demanding publication of the colony's laws as a curb on the magistrates' discretionary powers. The magistrates opposed publication as a restraint of their lawful powers; they believed that law should develop in Massachusetts Bay as had the common law in England, over time and by custom. More to the point, publication would invite direct comparison with English law and one provision of the charter forbade establishment of any laws repugnant to those of England.

For the remainder of the decade a number of attempts were made to formulate a document that would satisfy these demands. One plan, drawn up by the Reverend John Cotton, may have been rejected because of its biblical severity or its failure to be sufficiently comprehensive. In 1638, the Reverend Nathaniel Ward, a barrister active at Lincoln's Inn before his emigration, submitted a proposal that was eventually sent to the towns for their consideration and revision early in 1641. Despite years of inaction and obstruction by the magistrates the General Court finally adopted this draft that autumn.

The first "liberty," paraphrasing the thirty-ninth article of magna carta, specified conformity to the traditional rights of Englishmen, as exemplified in Magna Carta and the common law, and to "the word of God." The Body of Liberties was undeniably a product of the Puritan colony: a large portion outlined ecclesiastical rights and responsibilities. One section, drawn from Cotton's code, listed twelve capital crimes and cross-referenced each one to the appropriate biblical verse.

Over forty liberties were devoted to "Juditiall Proceedings" and their adjunct rights. In addition to defining a few lesser offenses, the Body of Liberties provided extensive guarantees for each step in legal proceedings. The use of summonses was regulated and a right to bail was assured. Written pleadings were permitted in court and, unlike English practice, cases would not be abated for minor technical errors. Parties were granted the right to trial by jury and to challenge any of the jurors. Other liberties protected rights now taken for granted. Among these were provisions for a speedy trial, a limited privilege against self-incrimination, as well as prohibitions of double jeopardy and "inhumane barbarous and cruel" punishments. (See cruel and unusual punishment.) The Body of Liberties also guaranteed freedom of speech in courts and public assemblies and freedom of movement. Other sections covered the "Liberties of Women," children's rights, and those of servants.

Despite these and other innovations the deputies were dissatisfied with the document. They found it overly broad and poorly defined and insisted upon specified penalties—the Body of Liberties provided them only for capital crimes—and precise limits to magisterial power. Eventually, widespread discontent resulted in the passage in 1648 of the extensively detailed massachusetts general laws and liberties.

David Gordon
(1986)

Bibliography

Haskins, George L. 1960 Law and Authority in Early Massachusetts. New York: Macmillan.