Charles William Eliot.

American historical documents 1000-1904, with introductions, notes and illustrations online

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Generall Courte vppon the occations of the Comonwelth
haue agreed vppon any sume or somes of mony to be
leuyed vppon the seuerall Townes within this Jurisdiction,
that a Comittee be chosen to sett out and appoynt what
shall be the proportion of euery Towne to pay of the said
leuy, provided the Comittees be made vp of an equall number
out of each Towne.

14th January, 1638,* the 11 Orders abouesaid are voted.

The Oath of the Gouernor, for the [present.]

Ije. I©, being now chosen to be Gouernor within this
Jurisdiction, for the yeare ensueing, and vntil a new be
chosen, doe swcare by the greate and dreadfull name of the
cverliueing God, to promote the publicke good and peace
of the same, according to the best of my skill; as also will
mayntayne all lawfull priuiledges of this Comonwealth ; as
also that all wholsome lawes that are or shall be made by
lawfull authority here established, be duly executed; and
will further the execution of Justice according to the rule
of Gods word; so helpe me God, in the name of the Lo:
Jesus Christ.

The Oath of a Magestrate, for the present.

I, Jp. I©, being chosen a Magestrate within this Jurisdic-
tion for the yeare ensueing, doe sweare by the great aild

^ 1638. old style; 1639* new style.



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AMERICAN HISTORICAL DOCUMENTS 69

dreadf ull name of the euerliueing God, to promote the publike
good and peace of the same, according to the best of my
skill, and that I will mayntayne all the lawfuU priuiledges
thereof according to my vnderstanding, as also assist in
the execution of all such wholesome lawes as are made or
shall be made by lawfull authority heare established, and
Avill further the execution of Justice for the tyme aforesaid
according to the righteous rule of Gods word; so helpe me
God, etc.



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THE BODY OF LIBERTIES

(1641)

[The Massachusetts " Body of Liberties," the first code of laws
established in New England, was compiled by Nathaniel Ward (c.
1578 — 1652) a leading English Puritan minister, who had been
trained as a lawyer. He came to the colony in 1634, and was for
a time pastor at Ipswich. The " Liberties " were established by
the Massachusetts General Court in December, 1641.]

The Liberties of the Massachusets Collonie
IN New England, 1641

THE free fruition of such liberties, Immunities, and
priveledges as humanitie, Civilitie, and Christianitie
call for as due to every man in his place and propor-
tion, without impeachment, and infringement, hath ever bene
and ever will be the tranquillitie and Stabilitie of Churches
and Commonwealths. And the deniall or deprivall thereof,
the disturbance if not the ruine of both.

We hould it therefore our dutie and safetie whilst we are
about the further establishing of this Government to collect
and expresse all such freedomes as for present we foresee
may concerne us, and our poster itie after us. And to ratify
them with our sollemne consent.

Wee doe therefore this day religiously and unanimously
decree and confirme these following Rites, liberties, and
priveledges concerneing our Churches, and Civill State to
be respectively, impartiallie, and inviolably enjoyed and ob-
served throughout our Jurisdiction for ever.

I. No mans life shall be taken away, no mans honour or
good name shall be stayned, no mans person shall be arested,
restrayned, banished, dismembred, nor any wayes punished,
no man shall be deprived of his wife or children, no mans
goods or estaite shall be taken away from him, nor any
way indammaged under colour of law or Countenance of

70



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AMERICAN HISTORICAL DOCUMENTS 71

Authoritic, tmlesse it be by vertue or equitie of some ex-
presse law of the Country waranting the same, established
by a gcnerall Court and sufficiently published, or in case
of the defect of a law in any partecular case by the
word ^f God. And in Capitall cases, or in cases concerning
dismembring or banishment according to that word to be
judged by the Generall Court.

2. Every person within this Jurisdiction, whether In-
habitant or forreiner, shall enjoy the same justice and law,
that is generall for the plantation, which we constitute and
execute one towards another without partialitie or delay.

3. No man shall be urged to take any oath or subscribe
any articles, covenants or remonstrance/ of a publique and
Civill nature, but such as the Generall Court hath con-
sidered, allowed, and required.

4. No man shall be punished for not appearing at or before
any Civill Assembly, Court, Councell, Magistrate, or Officer,
nor for the omission of any office or service, if he shall be
necessarily hindred 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 civill action.

5. No man shall be compelled to any publique worke or
service unlesse the presse be grounded upon some act of
the generall Court, and have reasonable allowance there-
fore.

6. No man shall be pressed in person to any office, worke,
warres, or other publique service, that is necessarily and
suffitiently exempted by any naturall or personall impediment, •
as by want of yeares, greatnes of age, defect of minde,
fayling of sences, or impotencie of Lymbes.

7. No man shall be compelled to goe out of the limits
of this plantation upon any offensive warres which this
Comonwealth or any of our friends or confederals shall
volentarily undertake. But onely upon such vindictive and
defensive warres in our owne behalfe or the behalfe of our
freinds and confederals as shall be enterprized by the
Counsell and consent of a Court generall, or by authority
derived from the same.

8. No mans Cattel or goods of what kinde soever shall be



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72 AMERICAN HISTORICAL DOCUMENTS

pressed or taken for any publique use or service, unlesse
it be by warrant grounded upon some act of the generall
Court, nor without such reasonable prices and hire as the
ordinarie rates of the Countrie do afford. And if his Cattel
or goods shall perish or suffer damage in such service, the
owner shall be suffitiently recompenced.

9. No monopolies shall be granted or allowed amongst us,
but of such new Inventions that are profitable to the Coun-
trie, 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, yeare day and wast,
Escheates, and forfeitures, upon the deaths of parents or
Ancestors, be they naturall, casuall or Juditiall.

11. All persons which are of the age of 21 yeares, and of
right understanding and meamories, whether excommuni-
cate or condemned shall have full power and libertie to
make there wills and testaments, and other lawfuU aliena-
tions of theire lands and estates.

12. Every man whether Inhabitant or fforreiner, free or
not free shall have libertie to come to any publique Court,
Councel, or Towne meeting, and either by speech or write-
ing to move any lawfull, seasonable, and materiall question,
or to present any necessary motion, complaint, petition, Bill
or information, whereof that meeting hath proper cogniz-
ance, so it be done in convenient time, due order, and re-
spective manner.

13. No man shall be rated here for any estaite or revenue
he hath in England, or in any forreine partes till it be trans-
ported hither.

14. Any Conveyance or Alienation of land or other estaite
what so ever, made by any woman that is married, any
childe under age, Ideott or distracted person, shall be good
if it be passed and ratified by the consent of a generall
Court.

15. All Covenous or fraudulent Alienations or Convey-
ances of lands, tenements, or any heriditaments, shall be of
no validitie to defeate any man from due debts or legacies, or
from any just title, clame or possession, of that which is
so fraudulently conveyed.



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i6. Every Inhabitant that is an howse holder shall have
free fishing and fowling in any great ponds and Bayes,
Coves and Rivers, so farre as the sea ebbes and flowcs
within the presincts of the towne where they dwell, unlesse
the free men of the same Towne or the Generall Court
have otherwise appropriated them, provided that this shall
not be extended to give leave to any man to come upon
others proprietie without there leave.

17. Every man of or within this Jurisdiction shall have
free libertie, notwithstanding any Civill power to remove
both himself e, and his familie at their pleasure out of the
same, provided there be no legall impediment to the con-
traries

Rites, Rules, and Liberties concerning Juditiall proceedings

18. No mans person shall be restrained or imprisoned
by any authority whatsoever, before the law hath sentenced
him thereto, if he can put in sufficient securitie, bayle or main-
prise, for his appearance, and good behaviour in the meane
time, unlesse it be in Crimes Capitall, and Contempts in
open Court, and in such cases where some expresse act of
Court doth allow it.

19. If in a general Court any miscariage shall be amongst
the Assistants when they are by themselves that may de-
serve an Admonition or fine under 20 sh. it shall be ex-
amined and sentenced amongst themselves, If amongst the
Deputies when they are by themselves, it shall be ex-
amined and sentenced amongst themselves, If it be when
the whole Court is togeather, it shall be judged by the whole
Court, and not severallie as before.

20. If any which are to sit as Judges in any other Court
shall demeane themselves offensively in the Court, The rest
of the Judges present shall have 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 dayes before the Court, and the cause breifly specified
in the warrant, where appearance is to be made by the
partie summoned, it shall be at his libertie whether he will



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74 AMERICAN HISTORICAL DOCUMENTS

appeare or no, except all cases that are to be handled in
Courts suddainly called, upon extraordinary occasions. In
all cases where there appeares present and urgent cause
any assistant or officer apointed shal have power to make
our attaichments for the first summons.

22, No man in any suit or action against an other shall
falsely pretend great debts or damages to vex his adversary,
if it shall appeare any doth 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 Crediter above eight pounds in the hundred
for one yeare, And not above that rate proportionable for
all somes what so ever, neither shall this be a coulour or
countenance to allow any usurie amongst us contrarie to

, the law of god.

24, In all Trespasses or damages done to any man or
men. If it can be proved to be done by the meere default
of him or diem to whome the trespasse is done. It shall be
judged no trespasse, nor any damage given for it

^5. No Summons pleading Judgement, or any kinde of
proceeding in Court or course of Justice shall be abated,
arested or reversed upon any kinde of cercumstantiall er-
rors or mistakes. If the person and cause be rightly under-
stood and intended by the Court

26. Every man that findeth himselfe unfit to plead his
owne cause in any Court shall have Libertie to imploy any
man against whom the Court doth not except, to helpe him,
Provided he give him noe fee or reward for hb paines.
This shall not exempt the partie him selfe from Answering
such Questions in person as the Court shall thinke meete to
demand of him.

2y, If any plantife shall give into any Court a declaration
of his cause in writeing, The defendant shall also have
libertie and time to give in his answer in writeing. And
so in all further proceedings betwene partie and partie,
So It doth not further hinder the dispach of Justice then
the Court shall be willing unto.

28. The plantife in all Actions brought in any Court shall
have libertie to withdraw his Action, or to be nonsuited
before the June hath given in their verdict, in which case



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AMERICAN HISTORICAL DOCUMENTS 75

he shall alwaies pay full cost and chardges to the defendant^
and may afterwards renew his suite at an other Court if
he please.

29. In all actions at law it shall be the libertie of the
plantife and defendant by mutual consent to choose whether
they will be tryed by the Bensh or by a Jurie, unlesse it be
where the law upon just reason hath otherwise determined.
The like libertie shall be granted to all persons in Criminall
cases.

30. It shall be in the libertie both of plantife and defen-
dant, and likewise every delinquent (to be judged by a Jurie)
to challenge any of the Jurors. And if his challenge be found
just and reasonable by the Bench, or the rest of the Jurie, as
the challenger shall choose it shall be allowed him, and tales
de cercumstantibus impaneled in their room.

31. In all cases where evidences is so obscure or defec-
tive that the Jurie cannot clearely and safely give a positive
verdict, whether it be a grand or petit Jurie, It shall have
libertie to give a non Liquit, or a spetiall verdict, in which
last, that is in a spetiall verdict, the Judgement of the cause
shall be left to the Court, And all Jurors shall have libertie
in matters of fact if they cannot finde the maine issue, yet
to finde and present in their verdict so much as they can.
If the Bench and Jurors shall so suffer at any time about
their verdict that either of them cannot proceede with peace
of conscience the case shall be referred to the Generall
Court, who shall take the question from both and deter-
mine it.

32. Every man shall have libertie to replevy his Cattell or
goods impounded, distreined, seised, or extended, unlesse it be
upon execution after Judgement, and in paiment of fines.
Provided he puts in good securitie to prosecute his replevin.
And to satisfie such demands as his Adversary shall recover
against him in Law.

33. No mans person shall be arrested, or imprisoned upon
execution or judgment for any debt or fine. If the law can
finde competent meanes of satisfaction otherwise from liis
estaite, and if not his person may be arrested and imprisoned
where he shall be kept at his owne charge, not the plantife's
till satisfaction be made, unlesse the Court that had cogniz-



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76 AMERICAN HISTORICAL DOCUMENTS

ance of the cause or some superior Court shall otherwise
provide.

34. If any man shall be proved and Judged a common
Barrator vexing others with unjust frequent and endlesse
suites, It shall be in the power of Courts both to denie him
the benefit of the law, and to punish him for his Barratry.

35. No mans come nor hay that is in the feild or upon the
Cart, nor his garden stuffe, nor any thing subject to present
decay, shall be taken in any distresse, unles he that takes
it doth presently bestow it where it may not be imbesled nor
suffer spoile or decay, or give securitie to satisfie the
worth thereof if it come to any harme.

36. It shall be in the libertie of every man cast condemned
or sentenced in any cause in any Inferior Court, to make their
appeale to the Court of Assistants, provided they tender their
appeale and put in securitie to prosecute it, before the Court
be ended wherein they were condemned. And within six dayes
next ensuing put in good securitie before some Assistant to
satisfie what his Adversarie shall recover against him; And
if the cause be of a Criminall nature for his good behaviour,
and appearance. And everie man shall have libertie to com-
plaine to the Generall Court of any Injustice done him in any
Court of Assistants or other.

37. In all cases where it appeares to the Court that the
plantife hath wilingly and witingly done wronge to the de-
fendant in commencing and prosecuting an action or com-
plaint against him, They shall have power to impose upon
him a proportionable fine to the use of the defendant or ac-
cused person, for his false complaint or clamor.

38. Everie man shall have libertie to Record in the publique
RoUes of any Court any Testimony given upon oath in the
same Court, or before two Assistants, or any deede or evi-
dence legally confirmed there to remaine in perpetuam rei
memoriam, that is for perpetuall memoriall or evidence upon
occasion.

39. In all actions both real and personall betweene partie
and partie, the Court shall have power to respite execution
for a convenient time, when in their prudence they see just
cause so to doe.

40. No conveyance, Deede, or promise whatsoever shall be



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AMERICAN HISTORICAL DOCUMENTS 77

of validitie, If it be gotten by Illegal violence^ imprisonment»
threatening, or any kinde of forcible compulsion called Dures.

41. Everie man that is to Answere for any criminall cause,
whether he be in prison or under baylc, 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 twise sentenced by Civill Justice for
one and the same Crime, offence, or Trespasse.

43. No man shall be beaten with above 40 stripes, nor shall
any true gentleman, nor any man equall to a gentleman be
punished with whipping, unles his crime be very shamefully
and his course of life vitious and profligate.

44. No man condemned to dye shall be put to deatfi whhiii
fower dayes next after his condemnation, unles the Court
see spetiall cause to the contrary, or in case of martiall law, 1
nor shall the body of any man so put to death be unburied 12
howers unlesse it be in case of Anatomic.

45. No man shall be forced by Torture to confesse any
Crime against himselfe nor any other unlesse it be in some
Capitall case, where he is first fuUie convicted by cleare and
sufiitient evidence to be guilty, After which if the cause be of
that nature, That it is very apparent there be other conspira-
tours, or confederates with him. Then he may be tortured,
yet not with such Tortures as be Barbarous and inhumane.

46. For bodilie 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 Countrie shall have free liber-
tie to search and veewe any Rooles, Records, or Regesters of
any Court or office except the Councell, And to have a trans-
cript or exemplification thereof written examined, and signed
by the hand of the officer of the office paying the appointed
fees therefore.

49. No free man shall be compelled to serve upon Juries
above two Courts in a yeare, except grand Jurie men, who
shall hould two Courts together at the least.

50. All Jurors shall be chosen continuallie by the freemen
of the Towne where they dwell



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IB ABIBRICAN HISTORICAL DOCUMBNTS

5t; An Associates selected at any time to Assist the As-
detents in Inferior Conrts, dmll be nominated by the
Townes belonging to tlial Court, by orderly agreement
anxmge tfaemsdves.

52. Children, Idiots, Distracted persons, and all that are
strangers, or new comers to our plantation, sliall liave soch
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
soch kinde of berediments, or for giveing, of votes, verdicts
or Sentence in any QviQ Courts or causes* shall be one and
twentie 3reares.

54. Whensoever any iMog is to be put to vote, any
sentence to be pronounced, or any other matter to be pro-
posed, or read in any Court of Assembly, If the president or

« moderator thereof shall refuse to performe it, the Major

* parte of die members of tfial Court or Assembly shall have

power to appoint any odier meete man of them to do it.

And if tfiere be just cause to punish him that should and

would not.

55. In an suites or Actions in any Court, tfie plahitife
shaU have libertie to make an tfie titles and claims to that he
sues for he can. And the Defendant shaU have libertie to
plead an the pleas he can in answere to them, and the
Court shaU jnc^ according to the intire evidence of aH

56. If any man shan behave litmselfe offensively at any
Towne meeting, the rest of the freemen then present, shaD
have power to sentence liim for his offence. So be it the
mulct or penaltie exceede not twentie shilings.

57. Whensoever any person shaU come to any very sud-
daine untimely and unnaturan death, Some assistant, or the
Constables of that Towne shan forthwith sumon a Jury of
twelve free men to inquire of the cause and manner of

, their death, and shall present a true verdict thereof to some
neere Assistant, or the next Court to l)e helde for that
Towne npon their oath.

Liberties more pectdiarlie concerning the free men

58. CiviH Authoritie hath power and libertie to see the
pcac^ ordinances and Rules of Christ observed in every



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AMERICAN HISTORICAL DOCUMENTS m

chnrch according to his word. 8o it be done in a Civill and
not in an Ecclesiastical way.

59- Civill Authoritie hath power and libertie to deale with
any Church member in a way of Civill Justice, notwithstand*
tag any Church relation, office or interest

6a No church censure shall degrade or depose any man
from any Civill dignitie, office or Authoritie be shall have
in the Commonwealth.

6i. No Magestrate, Juror, Officer, or other man shall be
bound to informe present or reveale any private crim or
offence, wherein there is no perill or dajiger to this plan-
tation or any member thereof, when any necessarie tye
of conscience binds him to secresie grounded upon the
word of god, unlesse it be in case of testimony lawfully
required.

62. Any Shire or Towne shall have libertie to choose
their Deputies whom and where fhey please for the Gen*
erall Court So be it they be free men, and have taken
tiiere oath of fealtie, and Inhabiting in this Jurisdiction.

63. No Governor, Deputy Governor, Assistant, Associate,
or grand Jury man at any Court, nor ai^ Deputie for the
General! Court, shall at any time beare his owne chardges
at any Court, but their necessary expences shall be defrayed
either by the Towne or Shire on whose service they are, or
by the Country in generalL

64. Everie Action betweene partie and partie, and pro-
ceedings against delinquents in Criminall causes shall be
briefly and destinctly entered on the Holies of every Court
by the Recorder thereof. That such actions be not after-
wards brought againe to the vexation of any man.

65. No custome or prescription shall ever pervaile amongst
us in any morall cause, our meaneing is maintaine any-
thinge thiEit can be proved to be morrallie sinfull by the
word of god.

66. The Freemen of every Towneship shall have power
to make such by laws and constitutions as may conceme
the wellfare of their Towne, provided they be not of a
Criminall, but onely of a prudential nature, And that their
penalties exceede not 20 sh. for one offence. And that
they be not repugnant to the publique laws and orders of



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80 AMERICAN HISTORICAL DOCUMENTS

the Countrie. And if any Inhabitant shall neglect or re-
' fuse to observe them, they shall have power to levy the
appointed penalties by distresse.

dj. It is the constant libertie of the free men of this plan-
tation to choose yearly at the Court of Election out of the
freemen all the General officers of this Jurisdiction. If they
please to dischardge them at the day of Election by way of
vote. They may do it without shewing cause. But if at
any other generall Court, we hould it due justice, that the
reasons thereof be alleadged and proved. By Generall offi-
cers we meane, our Governor, Deputy Governor, Assistants,
Treasurer, Generall of our warres. And our Admirall at
Sea, and such as are or hereafter may be of the like gen-
erall nature.
,, 68. It is the libertie of the freemen to choose such dep-
uties for the Generall Court out of themselves, either in
their owne Townes or elsewhere as they judge fitest And
because we cannot foresee what varietie and weight of occa-
sions may fall into future consideration. And what counsells
we may stand in neede of, we decree. That the Deputies
(to attend the Generall Court in the behalfe of the Coun-
trie) shall not any time be stated or inacted, but from Court



Online LibraryCharles William EliotAmerican historical documents 1000-1904, with introductions, notes and illustrations → online text (page 7 of 48)