Introduction

The Massachusetts Body of Liberties, adopted in December 1641, was the first attempt in the colonies to restrain the power of the elected representatives by appealing to a fundamental document that lists the rights and duties of the people. The document, drafted and debated over several years, combined the early American covenanting tradition of the Mayflower Compact with an appeal to the common law tradition that crossed the Atlantic from Britain. The Massachusetts Body of Liberties contains ninety-eight sections. It covers the rules concerning judicial proceedings (sections 18–57); “liberties more peculiarly concerning the free man” (sections 58–78); and the rights of women (79–80), children (81–84), servants (85–88), foreigners (89–91), and animals (92–93). Section 94 provides biblical justification supporting the death penalty in twelve cases, and Section 95 contains eleven liberties given by “the Lord Jesus . . . to the Churches.” The most enduring part of the Body of Liberties is the preamble and the first seventeen sections, reproduced here.


Source: The complete version can be found in W. H. Whitemore, The Colonial Laws of Massachusetts, 1889 (33–46). See also The Essential Bill of Rights, edited by Gordon Lloyd and Margie Lloyd, (Lanham, MD: University Press of America, 1998), 38–40. The numbered paragraphs are in the original.


The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both.

We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent.

We do therefore this day religiously and unanimously decree and confirm these following rights, liberties and privileges concerning our churches, and civil state to be respectively impartially and inviolably enjoyed and observed throughout our jurisdiction forever.

  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 any way indammaged 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. 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 in person to any office, work, wars or other public service, that 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 impotency 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 the behalf of our friends and confederates as shall be enterprised by the counsel and consent of a court general, or by authority derived from the same.
  8. No man’s cattle or goods of what kind soever 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 hariotts, wardships, liveries, primer-seisins, year day and wast, escheates, and forfeitures,[1] upon the deaths of parents or ancestors, be they natural, casual or Judicial.
  11. All persons which are of the age of 21 years, and of right understanding and memories, whether excommunicate or condemned[2] shall have full power and liberty 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, counsel or town meeting, and either by speech or writing to 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[3] here for any estate or revenue he hath in England, or in any foreign parts till it be transported hither.
  14. Any conveyance or alienation of land or other estate whatsoever, made by any 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[4] or fraudulent alienations or conveyances of lands, tenements, or any heriditaments,[5] shall be of no validity to defeat any man from due debts or legacies, or from any just title, claim or possession, of that which is so 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 free men 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’ propriety without their leave.
  17. Every man of or within this jurisdiction shall have free liberty, notwithstanding any civil power remove both himself, and his family at their pleasure out of the same, provided there be no legal impediment to the contrary.

Study Questions

A. What rights are protected in this colonial document? How are they protected?

B. What differences and similarities exist in the Massachusetts Body of Liberties and the early state constitutions as far as the type of rights are concerned (see the Virginia Declaration of Rights and Constitution, the Pennsylvania Declaration of Rights and Constitution, and the Massachusetts Declaration of Rights and Constitution)? For example, does the Massachusetts Body of Liberties refer to freedom of conscience and freedom of the press?

Footnotes

  1. All of these English law terms refer to different ways, under different circumstances, that an individual or his heirs could be forced to surrender property or pay fees to the king. They are of feudal origin.
  2. Deprived of membership in the church, which could mean deprived of certain civil rights or protections, or condemned to death.
  3. taxed
  4. deceptive or fraudulent
  5. any property