Massachusetts Body of Liberties of 1641

2012-07-30 10:45:13

For approximately the first decade of the Massachusetts Bay Colony’s existence, there was considerable internal strife over what manner of a legal system ought to exist. Also, during that time, the British government had made two attempts to revoke the charter that existed in the colony. For these reasons, the settlers sought to write their own laws. Most of the Puritans, including John Winthrop, wanted a theocratic oligarchy, while others sought after a more representative government. Eventually, Nathaniel Ward, a leading English Puritan minister who was trained as a lawyer and had practiced law in the courts in England, drew a great deal on the code of law proposed by John Cotton in 1636.

This code was based on Mosaic principles and the common law, the early English law. The early English law was developed by judges. It integrated Anglo- Saxon tribal custom, feudal rules and practices, and the everyday rules and behavior of the local people. The merging of the Mosaic principles and the common law resulted in the Massachusetts Body of Liberties of 1641, a detailed document that was one of the most important and underappreciated documents in America’s history. It was established by the Massachusetts General Court in December 1641 under the administration of Richard Bellingham, who was then the governor. It was the first code of about ninety-eight articles that were established as the basis for justice in seventeenth-century colonial New England. It comprised civil and Criminal Laws that governed specific behavior and punishment. The Massachusetts Body of Liberties, in the words of Winthrop, was ‘‘a body of grounds of law in resemblance to a Magna Carta.’’

The Massachusetts Body of Liberties provided for freedom of speech and the right to assembly and petition at public meetings. In fact, the liberties had their roots in biblical teachings, and were a declaration of the ‘‘liberties that the Lord Jesus had given to the church.’’ Particularly noteworthy in this regard of the ninety-eight articles of the Body of Liberties was Section 11, Article 95, which, for the first time, gave ministers legal authority to assemble to discuss controversial issues that pertained to the Bible and religious teachings. In addition, Section 4 of Article 95 stated that ‘‘every church hath free liberty of admission, recommendation, dismission, and expulsion, or deposal of their officers and members, upon due cause, with free exercise of the discipline and censures of Christ according to the rules of his Word.’’

It was not surprising, then, that in regard to offenses that were undertaken in the courts, the law was based on the moral interpretation of the Bible. In this respect, references to books, chapters, and verses from the Bible were supplied to channel the interpretation of the law during the court trials. In addition, the Massachusetts Body of Liberties provided for the liberties of men, women, children, servants, foreigners, and animals, and ‘‘every man whether inhabitant or foreigner, free or not free’’ had the ‘‘liberty to come to any public Court, Council or Town meeting, and either by speech or writing to move any lawful, seasonal and material question, or present any necessary motion, complaint, petition or Bill or information, whereof that meeting has proper cognizance.’’

As well, it guaranteed the defendant’s right of a trail by a jury and to have the right of legal counsel. In addition, it recognized that individual liberty depended on the right to appeal to the courts as the final option. These rights and liberties were ‘‘audibly read and deliberately weighed at every General Court that [were] held.’’ Nevertheless, the Massachusetts Body of Liberties did not make these rights explicitly inalienable. In other words, they could have been altered by the legislature. However, they persisted in Massachusetts for many generations and later appeared in the writings of Samuel Adams, a leader of the Boston Tea Party, and his contemporaries.

Eventually, in 1684, King Charles II was successful in revoking the Body of Liberties and the English law was restored. Two years later, King James established a government in Massachusetts and made Sir Edmond Andros the governor of the colony for a short period. The Massachusetts Body of Liberties served its intended purpose and remained in force until 1692 with the advent of the Provincial Charter. More importantly, the Massachusetts Body of Liberties provided a benchmark for the Bill of Rights and the U.S. Constitution of 1787. The Constitution is looked upon by Americans as the fabric of American democracy.


References and Further Reading

  • Black, Barbara, A. ‘‘The Concept of a Supreme Court: Massachusetts Bay. 1630–1686.’’ In The History of the
  • Law in Massachusetts: The Supreme Judicial Court 1692– 1992, Russell K. Osgood, ed. Boston: Supreme Judicial Court Historical Society, 1992.
  • Fischer, David, H. Albion’s Seed: Four British Folkways in America. New York: Oxford University Press, 1989.
  • Fischer, Kirsten, and Hindertaker, eds. Colonial American History. Massachusetts: Blackwell Publishing Ltd., 2002.
  • Wall, Robert E. Massachusetts Bay: The Crucial Decade, 1640–1650. New Haven: Yale University Press, 1972.