CRIME, PUNISHMENT, AND THE CRIMINAL JUSTICE SYSTEM
IN COLONIAL MASSACHUSETTS
BY
RONALD C. DESNOYERS
SUBMITTED IN FULFILLMENT OF THE REQUIREMENTS OF THE
CRITICAL PERIODS: COLONIAL AMERICA COURSE
MAY 2001
Justice in colonial America was very inquisitorial in nature. Judges who presided over cases were not independent arbiters, but were instead political and religious leaders who had a personal stake in what went on. One of their primary roles was to maintain order and discipline. The laws that they passed reflected their values and their court decisions would follow as well. Judges firmly believed that they had a right, granted by God, to rule over the community and lead it down the path God had chosen for them. The purpose of a court proceeding was not to establish guilt or innocence but to squeeze a confession out of the defendant and also repentance for his sins. In a Godly society, transgression of any law was automatically a sin.
In colonial America punishment did not exist simply for the convicted offender, but for the public as a whole. Leaders and magistrates made heavy use of shame and shaming to get across their message both to the offender and to others in the community. Both the offender and the public were to be taught a lesson about what God wanted and what would happen if they attempted to stray from God’s path. A refusal to conform to the standards of the community meant refusing to conform to the standards of virtue handed down by God. Little or no distinction was made between a sin and a crime. Piety and religion dominated the lives of the religious leaders, and they in turn dominated the lives of the other colonists.
ABSTRACT……CRIME AND THE CRIMINAL JUSTICE SYSTEM…
APPENDIX A……1629 CHARTER OF MASSACHUSETTS BAY
APPENDIX B…The Massachusetts Body of Liberties…
The criminal law of colonial America was shaped by the English common law.
Laws and legal customs mirrored what leaders and magistrates thought about
the nature of what was good, true, and right. The lawmakers had to
comply with the terms of the Royal Charter of the Massachusetts Bay Company
of 1629 (See Appendix A). Seventeenth century New Englanders understood
crime as sin and regarded their courts as guardians of unbreachable Biblical
precepts (Greenberg, 1982). The underlying conception of the law
as a mechanism to secure a utopian religious community from sin and corruption
remained a powerful influence upon the operation of their criminal justice
systems.
The judicial system of Massachusetts was comprised of the General Court,
composed of the governor, the deputy governor, the assistants and the deputies,
which possessed unlimited jurisdiction. The Court of the Assistants,
composed of the same members but for the deputies, was “concurrent” with
the General Court. These twin courts operated independently until
1636 when the Justices Courts were created, run by individual assistants
and tried minor offenses, thus relieving the General Court of this duty,
which now only tried the more serious offenses. In 1648 the
Strangers Court was created, which was composed of the governor, his deputy,
and two assistants, with its sole purpose to try non-residents, and the
duty of trying minor offenses was passed down to the Town Courts.
The Town Courts, held collectively by local justices of the peace, governed
the counties of colonial Massachusetts. These courts were empowered
to hear all matters relating to the conservation of the peace and punishment
of offenders and whatsoever is cognizable by them by law.
The most
fundamental priority of English law was to protect private property and
authority in order to preserve harmony above all. The Charter provided
for a system that was in every point parallel to the English system: the
governor was the colonial pendant of the king, advised by the Council of
Assistants, which also served as a judicial body. The Assizes Court
handled most serious crimes punished by death, which were known as felonies,
and were the main criminal courts of the realm. Among the felonies
that could be counted were homicide, grand larceny (theft above a certain
value), burglary, rape, arson, or witchcraft. The courts of the Quarter
Sessions, held quarterly and presided upon by justices of the peace, tried
misdemeanors, and very seldom sentenced the accused to death. The
least serious of these misdemeanors were tried in monthly Petty Sessions
aimed at discharging the quarterly meeting of small offenses. Colonial
Americans thought of a Sessions Court as a court of government that “conserved
peace”. A Sessions Court was an institution of undifferentiated local
governmental authority.
Judges were systematically drawn from the wealthiest villagers on the commonly
accepted assumption that wealth, respectability and godliness were inextricably
intertwined. What was valid for judges also applied to the justices
of the peace. They were appointed by the King or the Lord Chancellor,
and were also drawn from the upper echelons of society so that they were
of sufficient wealth and local standing to command the respect due the
office. Judges, constables, and sheriffs, who were paid promptly
and well, performed their tasks faithfully and with dispatch (Greenberg,
1982). Turnover in the office was relatively low, and juries seem
to have been attentive to their tasks (Greenberg, 1982).
Also drawn
from the wealthier class were the churchwardens, who were to detect and
report offenses to the church courts. By determining what was a fault
to be reported and what was not, they imposed standards of godliness upon
the inferior classes of the village. Since the “good citizen” could
only be a Christian, they were required to upkeep the moral standards and
regulate and punish cases of sexual immorality and other misconducts such
as drunkenness, or offenses more religious in character such as absence
from church or Sabbath breach. The churchwardens also preached in
obedience above all and presented disobedience to superiors as a sin, and
on the whole lecturing the audience onto the right path.
Crimes
in colonial America were separated into three categories: serious crimes
also known as felonies, which encompassed crimes threatening life or property,
namely homicide, theft, arson; sins and offenses that went against the
morality of God encompassing crimes such as sexual misconduct, drunkenness,
gambling, verbal violence, and “excess in apparel”; religious crimes explicitly
originating from the Bible encompassing crimes such as idolatry, blasphemy,
heresy, witchcraft and the violence, both physical and verbal, of a son
towards his parents.
The various forms of homicide include murder with malice aforethought,
manslaughter, and arson. In Article 94 listing the capital crimes,
the 1641 Massachusetts Body of Liberties (See
Appendix B) equated willful murder and manslaughter, describing killing
through cruelty and malice, unnecessarily, not in self-defense and not
accidentally. All types of homicides were punishable by death not
only in Massachusetts but also throughout New England. The crimes
of robbery and burglary were capital crimes only after the third offense
because it meant the thief was incorrigible and blatantly wicked.
For non-capital cases of theft, the colonies generally followed the Biblical
principle of restitution of three times the value of the stolen goods.
It was generally accepted that fighting sexual offenders was essential
for the well being of the commonwealth. In Plymouth as early as 1636,
homosexuality and beastiality were considered capital crimes throughout
the seventeenth century. Fornication was punishable by a fine and
whipping only if the couple were not engaged. The Massachusetts colonies
preferred humiliation by making the guilty parties stand in the market
place. The crime of adultery was made a capital crime in 1631 and
was punished consistently with the Bible; the marital status of the man
did not matter. If the woman was married or engaged, the couple had
committed adultery, if she was not, they had committed fornication, even
if the man was married. More uniformly, rape was a capital crime
throughout colonial America.
Besides sexual misconduct, the fight against immorality was extended to
drunkenness, gambling and verbal violence, which was more widespread than
physical violence such as assault and battery. Drunkenness and defamation
were the two most common charges for which men were tried in seventeenth
century Salem. Numerous regulations as prescribed by the Massachusetts
Body of Liberties insisted on preventing drunkenness by specifying the
legal maximum amount of alcohol that might be served in alehouses and restrictions
on time to be spent in them.
In Massachusetts, gambling was considered a waste of time and money and
was associated with idleness and the alehouse, therefore gamblers were
fined three times the amount wagered and winners were required to forfeit
all they had won. The very possession or introduction of cards or
dice into the colony was punishable by law. In Plymouth, gambling
with dice or cards was punishable by a forty-shilling fine.
Excess in apparel was also judged as immoral and intolerable by the ruling
elites of the colonies. John Winthrop declared in his work “Model
of Christian Charity” that it was going against Gods will for man to assume
a place on a social ladder that was not his. This was exemplified
by people commonly described as part of “people of mean condition” who
“exceeded their ranks” and dressed like the more affluent members of society.
In Massachusetts people were to dress with “frugality and modesty”, and
accept the place God had given them in society. In 1651 a law was
passed that applied only to the lower orders of society. Each offense
was to be punished by a ten-shilling fine. Yet magistrates, public
officials, and their families were free to dress as they wished.
Verbal violence, especially defamation, cursing, swearing and threats,
were dealt with by the church courts and liable to various types of punishment
depending on the person abused, especially if they were ministers, church
members or magistrates. The offender’s criminal past also played
a role in determining his or her punishment. Generally, verbal violence
was liable to fines, physical torture, or go as far as banishment.
Verbal wrongdoing in the Bible was limited to blasphemy, cursing one’s
parents, and perjury, which eventually became a capital crime in most colonies.
The criminal justice system of colonial Massachusetts was a unique combination
of Scriptural Laws and the Common Laws of England. Laws were drafted
as closely as possible to resemble those of the Bible. The Bible
was used by the magistrates as a series of laws they were to enforce.
The treatment of crime falls into three categories: physical suppression,
such as death or banishment; corporal punishment such as whippings, the
bilboes, and the stocks; and fines and humiliation.
In every capital case a human life was at stake. Throughout the colonial
period the criminal law was becoming extremely harsh. Death was reserved
for unrepentant and hardened criminals who were dangerous enough to deserve
it. Criminals were at first afforded the opportunity to rehabilitate.
In some cases a second and third chance was offered for the offender to
mend his or her ways, and if that failed society would protect itself by
getting rid of a harmful element. A system was developed that offered
alternatives to the death penalty. Convicted felons could be pardoned
by joining the military, or if they were a pregnant woman, by claiming
the “benefit of the womb”. Robbery and burglary were punished by
corporal punishments such as branding and ear cropping, and became capital
after the third offense. If someone was convicted a third time, he
was judged hopeless and deserved death. Another form of physical
abolition of unwanted people was banishment. This punishment applied
to religious dissenters, cases of perjury, and adulterous behavior.
Fines were used more frequently than corporal punishments and were mostly
concerned with misdemeanors. The upper classes tended to be more
frequently fined and the lower classes more frequently whipped. The
misdemeanors punishable by fines included gambling, drunkenness and violations
of the regulations on liquor aimed at preventing drunkenness, verbal abuse,
lying, and assault and battery. For many crimes like fornication,
punishment included multiple penalties such as whipping, supplemented by
a fine and humiliation of some sort.
Of equal importance as church attendance was keeping the Sabbath “holy”
as the fourth commandment directed. To keep the Sabbath holy, men
were required to do as God had done on the seventh day, rest and refrain
from work. Unnecessary travel on Sunday was also banned in Massachusetts.
However, it was not only working on Sundays that was illegal, but crimes
committed on the Sabbath were always more severely punished than those
committed on other days.
Criminal
law specifies acts that are so threatening to the social order that society
has employed resources to punish and prevent them. Massachusetts
was one of the first colonies forced to confront and struggle with the
new problems of crime and disorder (Hindus, 1977). Control of behavior
became the primary motive for prosecution.
In Massachusetts,
crimes against morality dominated the colonial era with courts prosecuting
the most minor, unthreatening deviations from moral norms. Offenses
against morality and religion together constituted 51 percent of all prosecutions.
From 1760 to 1774, 38 percent of all prosecutions were for violations of
sexual morality; 37.9 percent involved married couples with an early birth;
and 12.3 percent were bastardy cases. Fifteen percent were for crimes
of violence and 13 percent were for crimes against property.
Fornication was the most important aspect of criminal business of a Sessions
Court throughout the history of Massachusetts (Hartog, 1976). The
crime was prosecuted three times more frequently than offenses against
the Sabbath, which was the second most prosecuted category. Over
six times as many people were punished for fornication as were punished
for violating a Sabbath rule.
Sexual
immorality challenged the moral order of the colony and family life.
The existence of bastards and of children born within nine months of marriage
was a visible contradiction of the sacrament of marriage. A bastard
born to a mother who could not support him or her would have to be supported
by the town in which the child was born. Towns might be faced with
the growing costs that resulted from the immoral behavior of strangers,
and the only possible deterrent was to prosecute fornication. The
overall motivation of the town was obvious: to avoid having to support
a child out of its public funds. In 1733 fornication had been punished
with greater severity than obstruction of justice, violation of the Sabbath,
gaming, drunkenness and assault. In 1738, attempted rape was treated
as a less serious offense than fornication.
As time went on the
type of morality proscribed and prosecuted changed. Instead of premarital
fornication, only the more serious and threatening sexual offenses such
as bastardy, incest, polygamy, bigamy, adultery, and sodomy were prosecuted.
The drunk, vagrant, or purveyor of spirits became far more visible than
the unwed parent or pregnant bride.
These new crimes were certainly crimes against morality as much as they
were crimes against the public order. The object of punishment for
such crimes was not so much to cure behavior, but merely to rid the streets
of the offensive presence of such people. Long-term confinement for
such convictions was both unjust and expensive. As a compromise,
drunks were arrested, released after a small fine and perhaps a night or
two in jail, and eventually picked up again. Multiple arrests for
drunkenness became expected.
Cultural
and criminal patterns converged concerning the sex of those who were prosecuted.
Women accounted for 10.9 percent of all assault defendants; however, few
females ever went to trial. In Massachusetts female defendants were
seen primarily as sexual miscreants and female crimes were considered to
be crimes of sexual misconduct. The “dangerous class” everywhere
was low in wealth and status, young, unmarried, and usually, male (Greenberg,
1982). A more equal sex ratio meant a lower level of violent crime
and provided a more stable family structure that almost certainly had an
informal role in suppressing deviant behavior (Greenberg, 1982).
Most of the accused appeared for trial and many pled guilty. Among those who pled “not guilty”, the conviction rate was very high and ranged in most jurisdictions between 70% and 80% (Greenberg, 1982). A prominent feature of this system was that offenders were placed in double jeopardy: they suffered criminal penalties in civil courts as well as “spiritual sanctions “ in their individual churches. Deviation from society’s dominant values called for the permanent exclusion of the offenders from the community, either through banishment or execution.
The Massachusetts colonies possessed the most effective criminal justice system of seventeenth century America (Greenberg, 1982). The leaders of Massachusetts created a system of criminal justice that reflected their most dearly held values, resulting in relatively low levels of criminal behavior, and a colony that functioned effectively and efficiently. As a result prosecutions were very speedy and very little overt resistance to the authority of the courts appears in court records. Another result of the system was a very high conviction rate of 93% (Greenberg, 1982). Living in a small, deferential, agrarian societies characterized by unusual ethnic and religious homogeneity as well as a stable family structure and powerful ideological constraints, Massachusetts colonists occupied a social world that tolerated little serious crime and harshly punished such crime as it did discover (Greenberg, 1982).
In nearly all of the penalties and punishments of the past centuries, ridicule, shameful publicity and personal humiliation were applied to the offender or criminal by means of demeaning, degrading and helpless exposure in grotesque, insulting and painful instruments of punishment, such as the stocks, bilboes, pillory, brank, ducking stool or jougs. Thus confined and exposed to the constant mocking of the whole community. The underlying issue was not only to humiliate the offender, but also to warn and frighten the public, and the prospect of being humiliated in front of the whole community became a deterrent for most people.
The earliest form of punishment to be used in colonial America was the bilboes. They were a simple but effective restraint utilizing a long, heavy bolt or bar of iron with two sliding shackles and a lock (Earle, 1896). The legs of the offender were forced into these shackles, which were then locked with a padlock. The bar could be hoisted off the ground, overturning the offender, causing discomfort and humiliation (McManus, 1993). Sometimes a chain attached the prisoner to the floor or wall leaving the offender incapacitated. The Massachusetts magistrates brought the bilboes from England as a means of punishing refractory or sinning colonists, and they were soon in constant use (Earle, 1896).
A form of punishment mainly assigned to scolding women was the ducking stool. The ducking stool was an armchair fastened to two beams between twelve and fifteen feet long, and parallel to each other (Earle, 1896). A wooden post was set up on the bank of a pond or river and the two beams would lie over this post attached by an axle. The woman would then be placed in the chair and plunged into the water as often as the sentence had directed (Earle, 1896). The trebuchet was a simple form of the ducking stool that consisted of a short post set at the waters edge with a long beam resting on it like a seesaw (Earle, 1896). It would be swung around parallel to the bank and the offender would be tied into the chair. Then she would be swung out over the water and submerged (Earle, 1896).
By the 1640’s the bilboes were replaced by the stocks (McManus, 1993). This form of punishment was inflicted on thieves, unruly servants, vagrants, Sabbath breakers, gamblers, drunkards as well as a variety of other offenders (Earle, 1896). The stocks were a favorite punishment for small offenses (Earle, 1896). “The offender had to come into church at Morning Prayer, and say publicly that he was sorry; he was then set in the stocks until the end of the evening prayer. The punishment was generally repeated on the next market day (Earle, 1896).” They were formed by two heavy timbers, the upper one of which could be raised and when lowered was held in place by a lock. In these two timbers two half-circle notches were cut, which met two similar notches when the upper timber was in place and as a result formed two round holes, firmly holding the legs of the offender in place. Securely restrained, the offender sat powerless to escape the torment and ridicule of everyone in the community.
Another form of punishment used in colonial America was the pillory. The pillory resembled the stocks in design except the offender remained standing as opposed to sitting. It consisted of an upright board, hinged or divisible in two, with a hole in which the offender’s head was set with two openings for the hands (Earle, 1896). Often the offender’s ears were nailed to the wood on either side of the head hole (Earle, 1896). This punishment was inflicted for offenses such as treason, sedition, arson, blasphemy, witchcraft, lying, and fortune telling.
The most common form of punishment used in colonial America was the whipping
post. It was used against children, servants, apprentices as well
as criminal offenders (McManus, 1993). The types of crimes punished
by whippings ranged from “lying, swearing, and perjury (Earle, 1896).”
The whipping post was the cheapest, simplest, and most immediate form of
punishment available (McManus, 1993). An immediate whipping after
conviction served to make an impact on people with the effectiveness of
the justice system (McManus, 1993). It was to serve as a connection
between wrongdoing and punishment, proving that the system did work and
to discourage others from following the offender’s example (McManus, 1993).
Whippings were administered either at a cart tail or at the town’s whipping post. Whippings were conducted in full public view in order to maximize the deterrent effect. In serious cases the whipping would be administered as the offender was drawn through the streets at the tail of a cart (McManus, 1993). Carting was usually reserved for particularly shocking offenses (McManus, 1993). The sentencing court would decide how many lashes would be inflicted and where the whippings would be carried out (McManus, 1993).
Another form of punishment used in colonial America was the Scarlet Letter. This was the practice of labeling a criminal with words or initials exposing his or her crime or political or religious offense (Earle, 1896). Letters would be cut out of cloth and sewn on the offender’s uppermost garment on the arm and back. In some cases the letter would be placed around the offender’s neck with a rope. An offender being punished for the crime of adultery would be forced to wear A or AD, a burglar forced to wear B, a thief a T, and a drunkard a D. The Scarlet Letter was viewed as a badge of shame and used as an additional punishment to further humiliate the offender.
Another form of punishment used in colonial America for verbal offenses
was the branks and gags. The brank “was a shocking instrument, a
sort of iron cage, often of great weight; when worn covering the entire
head; with a spiked or flat tongue of iron to be placed in the mouth over
the tongue. If the offender spoke she was cruelly hurt (Earle, 1896).”
This humiliating and painful punishment was inflicted on outspoken women
but on occasion men were also sentenced to wear it as punishment for crimes
such as begging and blasphemy. The gag was also a punishment used
for verbal offenses in colonial America. One form of the gag was
the cleft stick. This form of punishment would be inflicted by tying
a stick around the tongue of the offender, which in return kept the mouth
open and stretched the tongue causing great discomfort.
Public penance was also a form of punishment used in colonial America.
This was the custom of performing penance in public by humiliation either
through significant action, position or confession. The offender
would be wrapped in a white sheet, forced to face the whole congregation,
and ask forgiveness at the Sabbath service. This punishment was used
for offenses such as “immorality, cheating, defamation of character, and
disregard of the Sabbath (Earle, 1896).
The cruelest and humiliating punishments used in colonial America was branding and maiming. An offender, who had been found guilty of a crime, would be “burned very deep with a red-hot iron” with the letter of the crime in which the offender had been accused (Earle, 1896).” Areas of the body that were branded varied according to the crime. A burglar was branded with a B on the right hand for the first offense, on the left hand for the second offense, and if the crime had been committed on the Lord’s Day, the B shall be branded on the burglar’s forehead. A person found guilty of heresy would be branded on the shoulder with the letter H. A person found guilty of blasphemy would be branded with the letter B on the tongue.
Maiming was a form of punishment used in colonial America that would mutilate the offender’s body. The most common form of this punishment was ear cropping, which involved amputation of one or both ears of the offender (McManus, 1993). Other forms of maiming included slitting of the nostrils and gashing the forehead or cheek of the offender. These punishments were reserved for crimes that had been committed on the Sabbath.
The military also made use of humiliating and degrading punishments. The military punished soldiers using methods in which other soldiers inflicted punishment on their own, thus making every soldier a public executioner. One method the military used to punish their soldiers was the use of the gantlope. The entire regiment would be drawn up six deep. The ranks were then opened and faced inward forming an open passage containing three rows of soldiers on each side. Each soldier was given a lash or switch and ordered to strike with force. The offender was then stripped naked from the waist up and forced to run between the lines. He was preceded by a Sergeant who pressed the point of his reversed halbert against the breast of the offender to prevent him from running too quickly between the strokes. This punishment was inflicted on soldiers for crimes such as disobedience and for persistence in quarrelling.
The most common punishment used in the military, which was used for rioting
and drinking, was riding the wooden horse. This was a straight, narrow,
horizontal pole that stood twelve feet high. The upper edge of the
board or pole was sharpened to intensify the cruelty. The soldier
would straddle this board having his hands tied behind his back as well
as a heavy weight tied to each foot. The wooden horse would then
be led through the town and put on display for all to ridicule.
The cruelest punishment used in the military was picketing. The offender
would be strung up to a hook by one wrist while the opposite bare heel
rested upon a stake or picket, rounded at the point just enough not to
pierce the skin (Earle, 1896). The agony caused by this punishment
was great and could only be endured fifteen minutes at a time. It
frequently disabled soldiers for marching that it was finally abandoned
as cruel and excessive.
All punishments employed throughout colonial America can be viewed as humiliating
and degrading. Punishment did not exist simply for the convicted
offender, but for the public as a whole. Leaders and magistrates made heavy
use of shame and shaming to get across their message both to the offender
and to others in the community. Both the offender and the public were to
be taught a lesson about what God wanted and what would happen if they
attempted to stray from God’s path. A refusal to conform to the standards
of the community meant refusing to conform to the standards of virtue handed
down by God. Little or no distinction was made between a sin and a crime.
Piety and religion dominated the lives of the religious leaders, and they
in turn dominated the lives of the other colonists.
Chapin, B. (1983). Criminal Justice in Colonial America, 1606-1660. Athens, Georgia: The University of Georgia Press.Earle, A. M. (1896). Curious Punishments of Bygone Days. Chicago, Illinois: Herbert S. Stone & Company.
Greenburg, D. (1982). Crime, Law Enforcement, and Social Control in Colonial America. The American Journal of Legal History, October 26(4), 293-325.
Hartog, H. (1976). The Public Law of a County Court; Judicial Government in Eighteenth Century Massachusetts. The American Journal of Legal History, October 20(4), 282-329.
Hindus, M. S. (1977). The Contours of Crime and Justice in Massachusetts and South Carolina, 1767-1878. The American Journal of Legal History, July 21(3), 212-237.
McManus, E. J. (1993). Law and Liberty in Early New England: Criminal Justice and Due Process 1620-1692. United States of America: The University of Massachusetts Press.
Powers, E. (1966). Crime and Punishment in Early Massachusetts 1620-1692. Boston, Massachusetts: Beacon Press.
The 1629 Charter of Massachusetts Bay
And further, That the said Governour and Companye, and their Successors, maie have forever one common Seale, to be used in all Causes and Occasions of the said Company, and the same Seale may alter, change, break, and new make, from time to time, at their pleasures. And our Will and Pleasure is, and Wee doe hereby for Us, our Heirs and Successors, ordain and grantee, That from henceforth for ever, there shall be one Governor, one Deputy Governor, and eighteen Assistants of the same Company, to be from time to time constituted, elected and chosen out of the Freemen of the said Company, for the thyme being, in such Manner and Form as hereafter in the is Presents is expressed, which said Officers shall apply themselves to take Care for the best disposing and ordering of the general business and Affaires of, for, and concerning the said Lands and Premises hereby mentioned, to be granted, and the Plantation thereof, and the Government of the People there. And for the better Execution of our Royal Pleasure and Grantee in this Behalf, Wee doe, by the is presents, for Us, our Heirs and Successors, nominate, ordain, make, and constitute; our we beloved the said Mathewe Cradocke, to be the first and present Governor of the said Company, and the said Thomas Goffe, to be Deputy Governor of the said Company, and the said Sir Richard Saltonstall, Isaack Johnson, Samuell Aldersey, John Ven, John Humfrey, John Endecott, Simon Whetcombe, Increase Noell, Richard Pery, Nathaniell Wright, Samuell Vassall, Theophilus Eaton, Thomas Adams, Thomas Hutchins, John Browne, George Foxcrofte, William Vassall, and William Pinchion, to be the present Assistants of the said Company, to continue in the said several Offices respectively for such time, and in such manner, as in and by the is Presents is hereafter declared and appointed.
And further, Wee will, and by the is Presents, for Us, our Heirs and Successors, doe ordain and grantee, That the Governor of the said Company for the time being, or in his Absence by Occasion of Sickness or otherwise, the Deputy Governor for the time being, shall have Authority from time to time upon all Occasions, to give order for the assembling of the said Company, and calling them together to consult and advise of the Businesses and Affaires of the said Company, and that the said Governor, Deputy Governor, and Assistants of the said Company, for the time being, shall or may once every Month, or oftener at their Pleasures, assemble and hold and keep a Court or Assembly of themselves, for the better ordering and directing of their Affaires, and that any seven or more persons of the Assistants, together with the Governor, or Deputy Governor so assembled, shall be said, taken, held, and reputed to be, and shall be a full and sufficient Court or Assembly of the said Company, for the handling, ordering, and dispatching of all such Businesses and Occurrents as shall from time to time happen, touching or concerning the. Said Company or Plantation; and that there shall or may be held and kept by the Governor, or Deputy Governor of the said Company, and seven or more of the said Assistants for the time being, upon every last Wednesday in Hillary, Easter, Trinity, and Michas Termes respectively forever, one great general and solemn assembly, which fore general assemblies shall be stilled and called the fore great and general Courts of the said Company.
In all and every, or any of which said great and general Courts so assembled, Wee doe for Us, our Heirs and Successors, give and grantee to the said Governor and Company, and their Successors, That the Governor, or in his absence, the Deputy Governor of the said Company for the time being, and such of the Assistants and Freeman of the said Company as shall be present, or the greater number of them so assembled, whereof the Governor or Deputy Governor and six of the Assistants at the least to be seven, shall have full Power and authorities to choose, nominate, and appointee, such and so many others as they shall think fit, and that shall be willing to accept the same, to be free of the said Company and Body, and them into the same to admit; and to elect and constitute such officers as they shall think fill and requisite, for the ordering, managing, and dispatching of the Affaires of the said Governor and Company, and their Successors; And to make Laws and Ordinances for the Good and Welfare of the said Company, and for the Government and ordering of the said Lands and Plantation, and the People inhabiting and to inhabitate the same, as to them from time to time shall be thought meet, so as such Laws and Ordinances be not contrary or repugnant to the Laws and Statutes of this our Realm of England.
And, our Will and Pleasure is, and Wee doe hereby for Us, our Heirs and Successors, establish and ordain, That yearly once in the year, for ever hereafter, namely, the last Wednesday in Easter Time, yearly, the Governor, Deputy-Governor, and Assistants of the said Company and all other officers of the said Company shall be in the General Court or Assembly to be held for that Day or Time, newly chosen for the Year ensuing by such greater part of the said Company, for the Time being, then and there present, as is aforesaid. And, if it shall happen the present governor, Deputy Governor, and assistants, by this presents appointed, or such as shall hereafter be newly chosen into their Rooms, or any of them, or any other of the officers to be appointed for the said Company, to dye, or to be removed from his or their several Offices or Places before the said general Day of Election (whom Wee doe hereby declare for any Misdemeanor or Defect to be removable by the Governor, Deputy Governor, Assistants, and Company, or such greater Part of them in any of the public Courts to be assembled as is aforesaid) That then, and in every such Case, it shall and may be lawful, to and for the Governor, Deputy Governor, Assistants, and Company aforesaid, or such greater Part of them so to be assembled as is aforesaid, in any of their Assemblies, to proceeded to a new Election of one or more others of their Company in the Rome or Place, Rooms or Places of such Officer or Officers so dyeing or removed according to their Discretions, And, immediately upon and after such Election and Elections made of such Governor, Deputy Governor, Assistant or Assistants, or any other officer of the said Company, in Manner and Form aforesaid, the Authority, Office, and Power, before given to the former Governor, Deputy Governor, or other Officer and Officers so removed, in whose Stead and Place new shall be so chosen, shall as to him and them, and every of them, cease and determine
Provided also, and our Will and Pleasure is, That as well such as are by this Presents appointed to be the present Governor, Deputy Governor, and Assistants of the said Company, as those that shall succeed them, and all other Officers to be appointed and chosen as aforesaid, shall, before they undertake the Execution of their said Offices and Places respectively, take their Corporal Oaths for the due and faithful Performance of their Duties in their several Offices and Places, before such Person or Persons as are by this Presents hereunder appointed to take and receive the same. . . .
And, further our Will and Pleasure is, and Wee doe hereby for Us, our Heirs and Successors, ordain and declare, and grantee to the said Governor and Company and their Successors, That all and every the Subjects of Us, our Heirs or Successors, which shall go to and inhabited within the said Lands and Premises hereby mentioned to be granted, and every of their Children which shall happen to be borne there, or on the Seas in going thither, or returning from thence, shall have and enjoy all liberties and Immunities of free and natural Subjects within any of the Dominions of Us, our Heirs or Successors, to all Intents, Constructions, and Purposes whatsoever, as if they and every of them were borne within the Realm of England. And that the Governor and Deputy Governor of the said Company for the Time being, or either of them, and any two or more of such of the said Assistants as shall be thereunto appointed by the said Governor and Company at any of their Courts or Assemblies to be held as aforesaid, shall and may at all Times, and from time to time hereafter, have full Power and Authority to minister and give the Oath and Oaths of Supremacy and Allegiance, or either of them, to all and every Person and Persons, which shall at any Time or Times hereafter go or pass to the Lands and Premises hereby mentioned to be granted to inhabitant in the same.
And, Wee doe of our further Grace, certain Knowledge and mere Motion, give and grantee to the said Governor and Company, and their Successors, That it shall and may be lawful, to and for the Governor or Deputy Governor, and such of the Assistants and Freemen of the said Company for the Time being as shall be assembled in any of their general Courts aforesaid, or in any other Courts to be specially summoned and assembled for that Purpose, or the greater Part of them (whereof the Governor or Deputy Governor, and six of the Assistants to be always seven) from time to time, to make, ordained, and establish all Manner of wholesome and reasonable Orders, Laws, Statutes, and Ordinances, Directions, and Instructions, not contrary to the Laws of this our Realm of England, as well for settling of the Forms and Ceremonies of Government and Magistracy, fit and necessary for the said Plantation, and the Inhabitants there, and for naming and setting of all sorts of Officers, both superior and inferior, which they shall find needful for that Government and Plantation, and the distinguishing and setting forth of the several duties, Powers, and Limits of every such Office and Place, and the Forms of such Oaths warrantable by the Laws and Statutes of this our Realm of England, as shall be respectively ministered unto them for the Execution of the said several Offices and Places; as also, for the disposing and ordering of the Elections of such of the said Officers as shall be annual, and of such others as shall be to succeed in Case of Death or Remove all, and ministering the said Oaths to the new elected Officers, and for Impositions of lawful Fines, Mulcts, Imprisonment, or other lawful Correction, according to the Course of other Corporations in this our Realm of England, and for the directing, ruling, and disposing of all other Matters and Things, whereby our said People, Inhabitants there, may be so religiously, peaceably, and civilly governed, as their good Life and orderly Conversation, may win and incite the Natives of Country, to the Knowledge and Obedience of the only true God and Savior of Mankind, and the Christian Faith, which in our Royal Intention, and the Adventurers free Profession, is the principal End of this Plantation.
Willing, commanding, and requiring, and by this Presents for Us, our Heirs, and Successors, ordaining and appointing, that all such Orders, Laws, Statutes and Ordinances, Instructions and Directions, as shall be so made by the Governor, or Deputy Governor of the said Company, and such of the Assistants and Freemen as aforesaid, and published in Writing, under their common Seale, shall be carefully and duly observed, kept, performed, and putt in Execution, according to the true Intent and Meaning of the same; and this our Letters- patents, or the Duplicate or exemplification thereof, shall be to all and every such Officers, superior and inferior, from Time to Time, for the putting of the same Orders, Laws, Statutes, and Ordinances, Instructions, and Directions, in due Execution against Us, our Heirs and Successors, a sufficient Warrant and Discharge.
And Wee doe further, for Us, our Heirs and Successors, give and grant to the said Governor and Company, and their Successors by this Presents, that all and every such Chief Commanders, Captains, Governors, and other Officers and Ministers, as by the said Orders, Laws, Statutes, Ordinances, Instructions, or Directions of the said Governor and Company for the Time being, shall be from Time to Time hereafter implied either in the Government of the said Inhabitants and Plantation, or in the Way by Sea thither, or from thence, according to the Natures and Limits of their Offices and Places respectively, shall from Time to Time hereafter for ever, within the Precincts and Parts of New England hereby mentioned to be granted and confirmed, or in the Way by Sea thither, or from thence, have full and Absolute Power and Authority to correct, punish, pardon, govern, and rule all such the Subjects of Us, our Heirs and Successors, as shall from Time to Time adventure themselves in any Voyage thither or from thence, or that shall at any Time hereafter, inhabitate within the Precincts and Parts of New England aforesaid, according to the Orders, Laws, Ordinances, Instructions, and Directions aforesaid, not being repugnant to the Laws and Statutes of our Realm of England as aforesaid. . . .
Appendix B
The Massachusetts Body of Liberties adopted by law by the General Court of the Commonwealth of Massachusetts Bay, December 1641
1.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 in any way damaged under color of law, or countenance of authority, unless it be by virtue or equity of some express law of the Country warranting the same established by a General Court and sufficiently published, or in case of the defect of a law in any particular case by the word of God (the laws of the Bible). And in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.
2.Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law, that is general for the Plantation, which we constitute and execute one towards another, without partiality or delay.
3.No man shall be urged to take any oath or subscribe any articles, covenants or remonstrance, of a public and civil nature, but such as the General Court hath considered, allowed and required.
4.No man shall be punished for not appearing at or before any civil assembly, Court, council, magistrate, or officer, nor for the omission of any office or service, if he shall be necessarily hindered by any apparent act or providence of God, which he could neither foresee nor avoid. Provided that this law shall not prejudice any person of his just cost or damage in any civil action.
5.No man shall be compelled to any public work or service unless the press be grounded upon some act of the General Court, and have reasonable allowance therefore.
6.No man shall be pressed into any office, work, wars, or other public service, who is necessarily and sufficiently exempted by any natural or personal impediment, as by want of years, greatness of age, defect of mind, failing of senses, or impotence of limbs.
7.No man shall be compelled to go out of the limits of this plantation upon any offensive wars, which this Commonwealth or any of our friends or confederates shall voluntarily undertake. But only upon such vindictive and defensive wars in our own behalf, or on the behalf of our friends, and confederates as shall be enterprised by the Council and consent of a General Court, or by authority derived from the same.
8.No man's cattle or goods of what kind so ever shall be pressed or taken for any public use or service, unless it be by warrant grounded upon some act of the General Court, nor without such reasonable prices and hire as the ordinary rates of the Country do afford. And if his cattle or goods shall perish or suffer damage in such service, the owner shall be sufficiently recompensed.
9.No monopolies shall be granted or allowed amongst us, but of such new inventions that are profitable to the Country, and that for a short time.
10.All our lands and heritages shall be free from all fines and licenses upon alienations, and from all harriotts, warships, liveries, primerseisens, year-day and waste, escheats and forfeitures, upon the death of parents or ancestors, be they natural, casual or judicial.
11.All persons which are of the age 21 years and of right understanding and memory, whether excommunicate or condemned, shall have full power to make their wills and testaments, and other lawful alienations of their lands and estates.
12.Every man, whether inhabitant or foreigner, free or not free, shall have liberty to come to any public Court, Council, or town-meeting, and either by speech or by writing, move any lawful, seasonable and material question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order and respective manner.
13.No man shall be rated (taxed) here for any estate or revenue he hath in England, or foreign parts, till it be transported hither.
14.Any conveyance or alienation of land or other estate whatsoever, made by a woman that is married, any child under age, idiot, or distracted person, shall be good, if it be passed and ratified by the consent of a General Court.
15.All covenous (conspired) or fraudulent alienations or conveyances of lands, tenements, or any hereditaments, shall be of no validity to defeat (free) any man from due debts or legacies, or from any just title, claim or possession of that which is thus fraudulently conveyed.
16. Every inhabitant that is a householder shall have free fishing and fowling in any great ponds and bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the Freemen of the same town or the General Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others property without their leave.
17.Every man of or within this jurisdiction shall have free liberty, notwithstanding any civil power, to remove both himself and his family at their pleasure out of the same, provided there be no legal impediment to the contrary.
18.No man's person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient security, bail, or mainprise, for his appearance and good behavior in the meantime, unless it be in capital crimes, and contempt’s in open Court, and in such cases where some express act of Court doth allow it.
19.If in a General Court any miscarriage shall be amongst the Assistants when they are by themselves that may deserve an admonition or fine under 20 shillings, it shall be examined and sentenced among themselves. If among the Deputies when they are by themselves, it shall be examined and sentenced amongst themselves. If it be when the whole Court is together, it shall be judged by the whole Court, and not severally as before.
20.If any which are to sit as Judges in any other Court shall demean themselves offensively in the Court, the rest of the Judges present shall have the power to censure him for it. If the cause be of a high nature it shall be presented to and censured at the next superior Court.
21.In all cases where the first summons are not served six days before the Court, and the cause be briefly specified in the warrant, where appearance is to be made by the party summoned, it shall be at his liberty whether he will appear or no, except all cases that are to be handled in Courts suddenly called upon extraordinary occasions. In all cases where there appears present and urgent cause, any Assistant or officer appointed shall have power to make out attachments for the first summons.
22.No man in any suit or action against another shall falsely pretend great debts or damages to vex his adversary. If it appear that any doth do so, the Court shall have power to set a reasonable fine on his head.
23.No man shall be adjudged to pay for detaining any debt from any creditor above eight pounds in the hundred for one year (8% simple interest), and not above that rate proportionable for all sums whatsoever, neither shall this be a color or countenance to allow any usury amongst us contrary to the law of God.
24.In all trespasses or damages done to any man or men, if it can be proved to be the mere default of him or them to whom the trespass is done, it shall be judged no trespass, nor any damage given for it.
25.No summons pleading judgment, or any kind of proceeding in Court or course of Justice shall be abated, arrested or reversed upon any circumstantial errors or mistakes, if the person and cause be rightly understood and intended by the Court.
26.Any man that findeth himself unfit to plead his own cause in any Court, shall have the liberty to employ any man against whom the Court doth not except, to help him provided he give him no fee or reward for his pains. This shall not except the party himself from answering such questions in person as the Court shall think meet to demand of him.
27.If any plaintiff shall give into any Court a declaration of his cause in writing, the defendant shall also have liberty and time to give his answer in writing. And so in all proceedings between party and party, so it doth not hinder the dispatch of justice such as the Court shall be willing unto.
28.The plaintiff in all actions brought in any Court shall have liberty to withdraw his action, or to be nonsuited before the jury hath given their verdict, in which case he shall always pay full cost and charges to the defendant, and may afterwards renew his suit at another Court if he please.
29.In all actions at law it shall be the liberty of the plaintiff and defendant by mutual consent to chose whether they will be tried by the bench or by a jury, unless it be where the law upon just reason hath otherwise determined. The like liberty shall be granted to all persons in criminal cases.
30.It shall be in the liberty of both the plaintiff and defendant and likewise every delinquent (to be judged by a jury) to challenge any of the jurors. And if this challenge be found just and reasonable by the bench or the rest of the jury, as the challenger shall choose, it shall be allowed him, and tales de cercumstantibus impaneled in their room.
31.In cases where evidence is so obscure or defective that the jury cannot clearly and safely give a positive verdict, whether it be Grand or Petit Jury, it shall have liberty to give a Non Liquit, or a special verdict, in which last, that is in a special verdict, the judgment of the cause shall be left to the Court. And all jurors have liberty in matters of fact if they cannot find the main issue, yet to find and present in their verdict so much as they can. If the bench and the jurors shall so disagree at any time that either of them cannot proceed at peace of conscience the case shall be referred to the General Court, who shall take the case from both and determine it.
32.Every man shall have liberty to replevy (take back) his cattle or goods impounded, distrained, seized, or extended, unless it be upon execution after judgment and in payment of fines. Provided he puts in good security to prosecute his replevin, and to satisfy such demands as his adversary shall recover against him in law.
33.No man's person shall be arrested or imprisoned upon execution or judgment 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, unless the Court that had cognizance of the cause or some superior Court shall otherwise provide.
34.If any man be judged a common Barrator vexing others with unjust and frequent suits, it shall be in the power of the Courts both to deny him the benefit of the law, and punish him for his barratry.
35.No man's corn or hay that is in the field or upon the cart, or his garden stuff, nor anything subject to present decay, shall be taken in any distress, unless he that takes it shall presently bestow it where it may not be embezzled nor suffer spoil or decay, or give security to satisfy the worth thereof if it comes to any harm.
36.It shall be the liberty of any man, cast condemned or sentenced in any cause in any inferior Court, to make their appeal to the Court of Assistants, provided they tender their appeal and put in security and prosecute it before the Court (session) be ended wherein they were condemned, and within six days next ensuing put in good security before some Assistant to satisfy what his adversary shall recover against him, and if the cause be of a criminal nature, for his good behavior and appearance (at the Court). And every man shall have liberty to complain to the General Court of any injustice done him at any Court of Assistants or other.
37.In all cases where it appears to the Court that the plaintiff hath willingly and wittingly doth wrong to the defendant in commencing and prosecuting any action or complaint against him, they shall have power to impose upon him (the plaintiff) a proportionable fine to the use of the defendant or accused person, for his false complaint or clamor.
38.Every man shall have liberty to record in the public rolls of any Court any testimony given upon oath in the same Court, or before two Assistants, or any deed or evidence legally confirmed there to remain in perpetuum rei memoriam, that is for perpetual memorial or evidence upon occasion.
39.In all actions both real and personal between party and party, the Court will have power to respite execution for a convenient time, when in their prudence they see just cause to do so.
40.No conveyance, deed, or promise whatsoever shall be of validity if it be gotten by violence, imprisonment, threatening, or any kind of forcible compulsion called duress.
41.Every man that is to answer for any criminal cause, whether he be in prison or under bail, his cause shall be heard and determined at the next Court that hath proper cognizance thereof, and may be done without prejudice of justice.
42.No man shall be twice sentenced by civil justice for one and the same crime, offense, or trespass.
43.No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equal to a gentleman, be punished with a whipping, unless his crime be very shameful, and his course of life vicious and profligate.
44.No man condemned to die shall be put to death within four days next after his condemnation, unless the Court see special cause to the contrary, or in case of martial law, nor should the body of any man so put to death be left unburied 12 hours, unless it be in cause of (the study of) Anatomy
.
45.No man shall be forced by torture to confess any crime against himself nor any other unless it be in some capital case where he is first fully convicted by clear and sufficient evidence to be guilty. After which, if the cause be of that nature, that it is very apparent that there be other conspirators or confederates with him, then he may be tortured, yet not with such tortures as be barbarous and inhumane.
46.For bodily punishments we allow amongst us none that are inhumane, barbarous, or cruel.
47.No man shall be put to death without the testimony of two or three witnesses, or that which is equivalent thereunto.
48.Every inhabitant of the Country shall have free liberty to search and view any rolls, records or registers of any Court or office except the Council, and to have a transcript or exemplification thereof written, examined and signed by the hand of the officer of the office, paying the appointed fees thereof.
49.No free man shall be compelled to serve upon juries above two Courts in a year, except Grand Jury men, who shall hold two Courts together at the least.
50.All jurors shall be chosen continually by the Freemen of the town where they dwell.
51.All Associates selected at any time to assist the Assistants in inferior Courts shall be nominated by the towns belonging to that Court by orderly agreement among themselves.
52.Children, idiots, distracted persons, and all that are strangers or new-comers to our Plantation shall have such allowances and dispensations in any cause, whether criminal or other as religion and reason require.
53.The age of discretion for passing away of lands or such kind of herediments, or for giving votes, verdicts or sentence in any civil Courts or causes, shall be one and twenty years.
54.Whensoever anything is to be put to vote, any sentence to be pronounced, or any other matter to be proposed or read in any Court or Assembly: if the president or moderator thereof shall refuse to perform it, the major part of the members of that Court or Assembly shall have power to appoint any other meet man to do it, and, if there be just cause, to punish him that should and would not.
55.In all suits or actions in any Court, the plaintiff shall have liberty to make all the titles and claims that he sues for he can. And the defendant shall have liberty to plead all the pleas he can in answer to them, and the Court shall judge according to the entire evidence of all.
56.If any man shall behave himself offensively at any town-meeting, the rest of the Freemen then present shall have power to sentence him for his offense, so be it the mulct or penalty exceed not 20 shillings.
57.When so ever any person shall come to any very sudden untimely and unnatural death, some Assistant or the Constables of that town shall forthwith summon a jury of twelve Freemen to inquire of the cause and manner of their death, and shall present as true verdict thereof to some near Assistant, or the next Court to be held for that town, upon their oath.
58.Civil authority hath power and liberty to see the Peace, ordinances, and rules of Christ observed in every church according to His word, so it be done in a civil and not in an ecclesiastical way.
59.Civil authority hath power and liberty to deal with any church member in a way of civil justice, notwithstanding any church relation, office, or interest.
60.No church censure shall degrade or depose any man from any civil dignity, office or authority he shall have in the Commonwealth.
61.No magistrate, juror, officer, or other man shall be bound to inform present or reveal any private crime or offense, wherein there is no peril or danger to this plantation or any member thereof, when any necessity of conscience binds him to secrecy grounded upon the word of God, unless it be in the case of testimony lawfully required.
62.Any shire or town shall have liberty to choose their Deputies whom and where they please for the General Court, so be it they be Freemen and have taken the oath of fealty, and inhabit the jurisdiction.
63.No Governor, Deputy-Governor, Assistant, Associate, or Grand-Juryman at any Court, nor any Deputy for the General Court shall at any time bear his own charges at any Court, but their necessary expenses shall be defrayed either by the town or shire on whose service they are sent, or by the Country in general.
64.Every action between party and party, and proceedings against delinquents in criminal causes shall be briefly and distinctly entered in the rolls of the Court by the Recorder thereof, that such actions not be afterwards brought again to the vexation of any man.
65.No custom or prescription shall ever prevail amongst us in any moral cause; our meaning is (there shall not be a custom which will) maintain anything that can be proved to be morally sinful by the word of God.
66.The Freemen of every township shall have power to make such bylaws and constitutions as shall concern the welfare of their town, provided they be not of a criminal but only of a prudential nature, and that their penalties exceed not 20 shillings for one offense, and that they be not repugnant to public laws and orders of the Country. And if any inhabitant neglect or refuse to observe them, they (the townships) shall have power to levy the appointed penalties by distress.
67.It is the constant liberty of the Freemen of this plantation to choose yearly at the Court of Election out of the Freemen all the general officers of this jurisdiction. If they please to discharge them at the day of election by way of vote, they may do it without showing cause. But if at any other General Court, we hold it due justice that the reasons thereof be alleged and proved. By general officers, we mean our Governor, Deputy-Governor, Assistants, Treasurer, General of our wars, and our Admiral at sea, and such as are or hereafter may be of the like general nature.
68.It is the liberty of the Freemen to choose such Deputies for the General Court out of themselves, either in their own towns or elsewhere as they judge fittest. And because we cannot foresee what variety and weight of occasions may fall into future consideration, and what counsels we may stand in need of, we decree: That the Deputies to attend the General Court in the behalf of the Country shall not any time be stated or enacted but from Court to Court, or at the most but for one year; That the Country may have an annual liberty to do in that case what is most behooving for the best welfare thereof.
69.No General Court shall be dissolved or adjourned without the consent of the major part thereof.
70.All Freemen called to give any advice, vote, verdict, or sentence in any Court, Council, or civil assembly shall have full freedom to do it according to their true judgments and consciences, so it be done orderly and inoffensively for the manner.
71.The Governor shall have a casting vote when so ever an equal vote shall fall out of the Court of Assistants, or general assembly; so shall the president or moderator have in all civil Courts or assemblies.
72.The Governor and Deputy-Governor jointly consenting, or any three Assistants concurring in consent, shall have power out of Court to reprieve a condemned malfactor till the next quarter or General Court. The General Court only shall have power to pardon a condemned malfactor.
73.The General Court hath liberty and authority to send out any member of this Commonwealth of what quality, condition, or office whatsoever into foreign parts without any public message or negotiation, provided the party sent be acquainted with the affair he goeth about, and be willing to undertake the service.
74.The Freemen of every town or township shall have full power to choose yearly or for less time out of themselves a convenient number of fit men to order the planting or prudential occasions of that town, according to instructions given them in writing, provided nothing be done by them contrary to the public laws and orders of the Country, provided also the number of such select persons be not above nine.
75.It is and shall be the liberty of any member or members of any Court, Council or civil assembly in cases making or executing any order or law, that properly concern religion, or any cause capital, or wars, or subscription to any public articles or remonstrance, in case they cannot in conscience and judgment consent to that way the major vote or suffrage goes, to make their contra remonstrance or protestation in speech or writing, and upon request to have their dissent recorded in the rolls of the Court. So it be done Christianly and respectfully for the manner, and their dissent only be entered without the reasons thereof, for the avoiding of tediousness.
76.When so ever any jury of trials or jurors are not clear in their judgments or consciences concerning any cause wherein they are to give their verdict, they shall have liberty in open Court to advise with any man they think fit to resolve or direct them before they give their verdict.
77.In all cases wherein any Freeman is to give his vote, be it in point of election, making constitutions and orders, or passing sentence in any case of judicature or the like, if he cannot see reason to give it positively one way or another, he shall have liberty to be silent, and not be pressed to a determined vote.
78.The general or public treasury or any part thereof shall never be expended but by the appointment of a General Court; nor any Shire treasury, but by the appointment of the Freemen thereof; nor any town treasury but by the Freemen of that township.
79.If any man at his death shall not leave his wife a competent portion of his estate, upon just complaint made to the General Court she shall be relieved.
80.Every married woman shall be free from bodily correction or stripes (whipping) by her husband, unless it be in his own defense upon her assault. If there be any just cause of correction, complaint shall be made to authority assembled in some Court, from which she shall receive it.
81.When parents die intestate, the elder son shall have a double portion of his whole estate real and personal, unless the General Court upon just cause alleged shall judge otherwise.
82.When parents die intestate, having no heir’s male of their bodies, their daughters shall inherit as co-partners, unless the General Court upon just reason shall judge otherwise.
83.If any parents shall willfully and unreasonably deny any child timely or convenient marriage, or shall exercise any unnatural severity towards them, such children shall have free liberty to complain to authority for redress.
84.No orphan during their minority which was not committed to tuition or service in their lifetime, shall afterward be absolutely disposed of by any kindred, friend, executor, township, or church, nor by themselves without the consent of some Court, wherein two Assistants at least shall be present.
85.If any servants shall flee from the tyranny and cruelty of their masters to the house of any freeman of the same Town, they shall be there protected and sustained till due order be taken for their relief. Provided due notice thereof be speedily given to their masters from whom they fled, and the next Assistant or Constable where the party flying is harbored.
86.No servant shall be put off for above a year to any other (masters) neither in the lifetime of their master nor after their death by their Executors or Administrators unless it be by consent of Authority assembled in some Court or two Assistants.
87. If any man smite out the eye or tooth of his man-servant, or maid servant, or otherwise maim or much disfigure him, unless it be by mere casualty (accident), he shall let them go free from his service. And (the servant) shall have such further recompense as the Court shall allow him.
88.Servants that have served diligently and faithfully to the benefit of their masters seven years, shall not be sent away empty. And if any have been unfaithful, negligent or unprofitable in their service, notwithstanding the good usage of their masters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authority.
89.If any people of other Nations professing the true Christian religion shall flee to us from the tyranny or oppression of their persecutors, or from famine, wars, or the like necessary and compulsory cause, they shall be entertained and succored amongst us, according to that power and prudence God shall give us.
90.If any ships or other vessels, be it friend or enemy, shall suffer shipwreck upon our coast, there shall be no violence or wrong offered to their persons or goods. But their persons shall be harbored, and relieved, and their goods preserved in safety till authority may be certified thereof, and shall take further order therein.
91.There shall never be any bond slavery, villainage 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 these shall have all the liberties and Christian usages which the law of God established in Israel concerning such persons doth morally require. This exempts none from servitude who shall be judged thereto by Authority.
92.No man shall exercise any tyranny or cruelty towards any brute creature which are usually kept for man's use.
93.If any man shall have occasion to lead or drive cattle from place to place that is far of, so that they be weary, or hungry, or fall sick, or lame, it shall be lawful to rest or refresh them, for competent time, in any open place that is not corn, meadow, or enclosed for some peculiar use.
94.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.
2.If any man or woman be a witch (that is, hath or consulted with a familiar spirit), they shall be put to death.
3.If any person shall blaspheme the name of God, the Father, Son or Holy Ghost, with direct, express, presumptuous or high handed blasphemy, or shall curse God in the like manner, he shall be put to death.
4.If any person commit any willful murder, which is manslaughter committed upon premeditated 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.
5.If any person slayeth another suddenly in his anger or cruelty of passion, he shall be put to death.
6.If any person shall slay another through guile, either by poisoning or other such devilish practice, he shall be put to death.
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, and buried and not eaten.
8.If any man lyeth with mankind as he lyeth with a woman, both of them have committed abomination, and they both shall surely be put to death.
9.If any person committeth adultery with a married or espoused wife, the adulterer and adulteress shall surely be put to death.
10.If any man stealeth a man or mankind (i.e.: kidnapping), he shall surely be put to death.
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.
12.If any man shall conspire and attempt any invasion, insurrection, or public rebellion against our Commonwealth, or shall indeavour to surprise any Town or Towns, fort or forts therein, or shall treacherously and perfidiously attempt the alteration and subversion of our frame of polity or government fundamentally, he shall be put to death.
95.A
Declaration of the Liberties the Lord Jesus hath given to the Churches
1.All the people of God within this jurisdiction who are not in a church way, and be orthodox in judgement, and not scandalous in life, shall have full liberty to gather themselves into a Church Estate. Provided they do it in a Christian way, with due observation of the rules of Christ revealed in his word.
2.Every Church hath full liberty to exercise all the ordinances of God, according to the rules of scripture.
3.Every Church hath free liberty of election and ordination of all their officers from time to time, provided they be able, pious and orthodox.
4.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.
5.No Injunctions are to be put upon any Church, Church officers or member in point of doctrine, worship or discipline, whether for substance or circumstance besides the Institutions of the Lord.
6.Every Church of Christ hath freedom to celebrate days of fasting and prayer, and of thanksgiving according to the word of God.
7.The Elders of Churches have free liberty to meet monthly, quarterly, or otherwise, in convenient numbers and places, for conferences, and consultations about Christian and Church questions and occasions.
8.All Churches have liberty to deal with any of their members in a church way that are in the hand of Justice. So it be not to retard or hinder the course thereof.
9.Every Church hath liberty to deal with any magistrate, Deputy of Court or other officer whatsoever that is a member in a church way in case of apparent and just offense given in their places, so it be done with due observance and respect.
10.We allow private meetings for edification in religion amongst Christians of all sorts of people. So it be without just offense for number, time, place, and other circumstances.
11.For the preventing and removing of error and offense that may grow and spread in any of the Churches in this jurisdiction, and for the preserving of truth and peace in the several churches within themselves, and for the maintenance and exercise of brotherly communion, amongst all the churches in the Country, it is allowed and ratified, by the authority of this General Court as a lawful liberty of the Churches of Christ: That once in every month of the year (when the season will bear it) it shall be lawful for the ministers and Elders of the Churches near adjoining together, with any other of the brethren, with the consent of the churches to assemble by course in each several Church one after another. To the intent after the preaching of the word by such a minister as shall be requested thereto by the Elders of the church where the Assembly is held, the rest of the day may be spent in public Christian conference about the discussing and resolving of any such doubts and cases of conscience concerning matter of doctrine or worship or government of the church as shall be propounded by any of the brethren of that church, will leave also to any other Brother to propound his objections or answers for further satisfaction according to the word of God. Provided that the whole action be guided and moderated by the Elders of the Church where the Assembly is held, or by such others as they shall appoint. And that no thing be concluded and imposed by way of authority from one or more churches upon another, but only by way of brotherly conference and consultations. That the truth may be searched out to the satisfying of every man's conscience in the sight of God according his word. And because such an Assembly and the work thereof cannot be duly attended to if other lectures be held in the same week, it is therefore agreed with the consent of the Churches, that in that week when such an Assembly is held, all the lectures in all the neighboring Churches for that week shall be forborne. That so the public service of Christ in this more solemn Assembly may be transacted with greater diligence and attention.
96.Howsoever these above specified rites, freedoms, immunities, authorities and privileges, both Civil and Ecclesiastical are expressed only under the name and title of Liberties, and not in the exact form of Laws or Statutes, yet we do with one consent fully authorize, and earnestly intreat all that are and shall be in Authority to consider them as laws, and not to fail to inflict condign and proportionable punishments upon every man impartially, that shall infringe or violate any of them.
97.We likewise give full power and liberty to any person that shall at any time be denied or deprived of any of them, to commence and prosecute their suit, complaint or action against any man that shall so do in any Court that hath proper cognizance or judicature thereof.
98.Lastly because our duty and desire is to do nothing suddenly which fundamentally concerns us, we decree that these rites and liberties shall be audibly read and deliberately weighed at every General Court that shall be held, within three years next ensuing, and such of them as shall not be altered or repealed they shall stand so ratified, that no man shall infringe them without due punishment.
And if any General Court within these next three years shall fail or
forget to read and consider them as above said, the Governor and Deputy
Governor for the time being, and every Assistant present at such Courts,
shall forfeit 20 shillings a man, and every Deputy 10 shillings a man for
each neglect, which shall be paid out of their proper estate, and not by
the Country or the Towns which choose them, and when so ever there shall
arise any question in any Court among the Assistants and associates thereof
about the explanation of these rites and liberties, the General Court only
shall have power to interpret them.