Full text of "The colonial laws of Massachusetts : reprinted from the edition of 1660, with the supplements to 1672 : containing also, the Body of Liberties of 1641"

BOSTON

PUBLIC

LIBRARY

THE

COLONIAL LAWS

MASSACHUSETTS.

EEPEINTED FEOM THE EDITION OE

16 6 0,

WITH THE SUPPLEMENTS TO 1672.

CONTAINlNd AI.RO,

THE BODY OF LIBERTIES OF

1641.

PUBLISHED BY ORDER OF THE CITY COUNCIL OF BOSTON, UNDER

THE SUPERVISION OF WILLIAM H. WEITMORE,

RECORD COMMISSIONER.

WITH A COMPLETE INDEX.

Littleton, Colorado
1995

Library of Congress Cata1ag1ng-1n-Pub] Icatlon Data

Massachusetts.

[Laws, etc. (Colonial laws of Massachusetts)]

The colonial laws of Massachusetts : reprinted from the edition of
1660, with the supplements to 1672 : containing also, the Body of
Liberties of 1641.
p . cm .
Originally published: Boston, 1889.

"Published by order of the City Council of Boston, under the
supervision of William H. Hhltmore, Record Coram 1 ss loner . "
Includes indexes.
I

HI 1 1 lam Henry, 1836-1900.
1 Ibertles). III. Title.

94-46407
CIP

ISBN 0-8377-2053-2

1. Law — Massachusetts.

I. Hhltmore,

II. Massachusetts. Laws.

etc. (Body of

KFM2430 1660 .A23

346.744' 022— dc20

[347.440822]

Printed in United States of America

The paper used in this publication meets the minimum
iQQi requirements of American National Standard for Information
Sciences — Permanence of Paper for Printed Library Materials,
ANSI Z39.48-1984.

THE

COLONIAL LAWS

MASSACHUSETTS.

REPEINTED FROM THE EDITION OF

16 6 0,

WITH THE SUPPLEMENTS TO 1672.

COKTADONG ALSO,

THE BODY OF LIBERTIES OF

1641.

PUBLISHED BT ORDER OF TEE CITY COUNCIL OF BOSTON, UNDER

THE SUPERVISION OF WILLIAM H. WHITMORE,

RECORD COMMISSIONER.

•V7ITH A COMPLETE INDEX.

BOSTON:

1889.

Printed bt
]&ocklDeIl & eijutctjlll,

ClTT I'KINTEKS,
BOETOM.

TABLE OF CONTENTS.

Pages

Preface ............ v-xvi

Introduction 1-117

containing also,

The Body of Liberties of 1641 29-68

Laws of 1660 119-208

Index thereto 209-216

Supplements, 1660-1672 217-262

Index of General Subjects ........ 263-270

Index of Laws ........... 271-312

PREFACE

By authority of the City Council of Boston I am enabled to
make accessible to the public two books of great rarity, which
possess a great value in the history of our laws. These are the
Body of Liberties of 1641, and the Revised Laws of the Colony
issued in 1660. Taken in connection with the Colonial Laws of
1672 and Supplements, which were reprinted last year under the
sanction of the City Council, it is now possible for every lawyer to
study conveniently the progress of legislation from the foundation
of the colony.

Although the State has published the Records of the Massa-
chusetts Colony from 1629 to 1686, these do not supply the neces-
sary information in regard to the laws. The entire code known
as the Body of Liberties was enacted in 1641, but not entered on
the Records. Again in each Revision changes were made in
codifying and condensing, and of course such revision superseded
the older forms of the separate acts. Hence it is most desirable to
have easy access to copies of the Laws of 1660, because from that
date onward they embodied all the active general legislation. It
must be conceded that any law of a general nature which was not
included by Secretary Rawson and the committee in such codifi-
cation, must be considered as repealed and null after that date.

Owing to the scarcity of copies of the Laws of the Colony and
Province, the Legislature, in 1812, appointed Nathan Dane, "William
Prescott, and Joseph Story a committee " at the expense of the
Commonwealth to collect the Charters and the public and general
Laws of the late Colony and Province of Massachusetts Bay;
and to add in an appendix any other docu-
ments or laws which they may deem proper to explain the jurispru-
dence of this Commonwealth." One thousand copies were issued at
the public expense, and this is the volume so often quoted in deci-
sions as " Ancient Charters and General Laws."

Useful as this compilation has proved, it vf'dl be of necessity

VI Preface.

entirely superseded by recent publications. The State has com-
menced and neai'ly concluded the liublication of all the General
Laws of the Province from 1G92 to the Revolution, a work which
is enriched with every kind of illustrative notes gathered by the
industry of the indefatigable editor, A. C. Goodell. It has also
published all of the Records of the Great and General Court and
the Assistants, prior to 1G86, carefully reproduced under the care
of the late Dr. IST. B. Shurtleff. :N"ow the City of Boston has
supplemented these by these two volumes of Laws, viz., the Lib-
erties of 1641 and Revision of IGGO, and the Revision of 1G72 and
Supplements.

The student will therefore have, in print, everything which the
Commissioners of 1812 had to use mainly in manuscript. One
suggestion indeed is made with the utmost diffidence by the present
editor. In the Preface to Ancient Charters the editors say: "A
number of colony acts of importance, especially in a historical view
of our laws, have been found in the original I'ecords, not included
in the edition of 1G72; these have been selected and printed in this
volume wherever found to have remained a material part of the
colonial system."

In other words, the committee of 1812 did not I'eprint either the
edition of Laws of IGGO or of 1G72 complete, but they made a new
compilation with a new arrangement of chapters, and inserted such
general laws, evidentl}', as they considered " to have remained a
material part of the colonial system."

With the utmost deference to the honored memory of Dane,
Prescott, and Story^ it is certain that we now know much more of
the history of Massachusetts as a colony than was known in 1812.
Such antiquaries as Farmer, Savage, Winthrop, Palfrey, Trumbull,
Dextei-, and Ellis, with the innumerable lesser historians, have added
immensely to the true knowledge of the events of that period.
Hence it may not be presumptuous to suggest that the selections
made in 1812, even by such eminent lawyers, were not always wise,
and by no means complete. ^

'One instance may be citeil. The present editor, after the Laws of 1G72 was issuoJ, re-
ceived an inquiry from a prominent lawyer, asking for the reason for the omission of Section 19 of
Chapter XVIII., of Ancient Cliartcrs. It will be found therein on p. Gl, and refers to tlie punish-
ment for Blasphemy. Now, it will be found that in 1041, Liberty No. 9-1, § 3, gave the first simple
act punishing blasphemy. In 1G4G (Records, II., 17G-177), this Section 19 was passed as printed.
But in IGGO (and presumably in 101!>), the Revised Statutes cut down the act to the form printed
as Section 3 of this very cliapter in .Vnc. Char., p. 58. 'Tlie editors in 1812 reprinted the first
Act of 1G4G as well as the revised form, but surely thereby they darkened counsel instead of aiding
the student, \i\\a would suppose this §19 to be a ditferent and continuing statute. — W. II. W.

Preface. vii

The editors of 1812 pointed out that the Revision of 1072 is
little more than an extension of that of 1G(30; and it is probnl)le
that the first Revision of 1649, of which no example lias survived,
was the prototype of that of 1(5(30. It is certain that the Body of
Liberties of 1G41 was incorporated, almost without change, into the
Revision of 16G0.

It was also pointed out, in 1812, that the marginal notes, both in
1G60 and 1672, of the style " A. 46," "A. 54," etc., are abbreviations
for "Anno 1646," etc. Other side-notes in both were appar-
ently almost inexplicable. I refer to those of the form " L. 1, p. 8 ; "
"L. 1, p. 49; " " L. 2, p. 1;" " L. 2, p. 8," etc. Of course these
are Liber 1 and 2, respectively, and their identification is discussed
later. The manuscript volumes of the Records from 1628 to
1686, now preserved at the State House, are five in number,
Avhereof volume three is a duplicate for the years 1644-1637, con-
taining only the proceedings of the House of Deputies. There are
various consecutive marginal numbers in these volumes, but none to
be identified with those used in the printed Laws. I find references
in the latter to Liber 1, pp. 2, 4, 9, 14, 15, 16, 22, 23, 24, 28, 30, 31,
32, 35, 36, 38, 45, 46, 47, 49, 50, 51, 52, 53, 57; to Liber 2, pp. 1,
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 24, 31, 32; and one
reference to Liber 3, p. 5, which may be a misprint.

As to the Body of Liberties, I have devoted much time to it,
as it has hitherto not received the recognition to which its impor-
tance entitles it. This Code Avas first rediscovered by the late
Francis Galley Gray, and printed by him in 1843. But lieing pub-
lished only in a volume of the Collections of the Massachusetts
Historical Society, a knowledge of it has been confined to very few
persons. I have merely followed out Mr. Gray's line of unansAver-
able arguments proving the certainty of the identification of his
copy of this Code, but I have added a Table of Contents, Index, and
Notes, which may assist the student in using it.

The Laws of 1660 are reproduced by the same process of pho-
to-electrotypiug which was used so successfully in the reprint
ofthoseof 1672. The exemplar used was the fine copy preserved in
the State Library; — other copies were kindly tendered me liy the
Boston Atheufeum and the Massachusetts Historical Society.

For the Supplements from 1660 to 1672 I am indebted to the
courtesy of the American Antiquarian Society, of Woi-cester.
They own the copy which belonged to Secretary Edward Rawson,
and the supjilementary leaves seem to be nearly complete, lacking

vm Preface.

only a final page. iNo other copy known to me has any consider-
able portion of these pages, and I esteem it a most fortunate chance
that this perfect volume has been preserved, a fit companion to the
Hutchinson copy of the edition of 1672. I need hardly state that
copies are extremely rare, and that the price of one is estimated at
three to five hundred dollars. This reprint is made not on account
of the cost of the original however, but in view of the intrinsic
value of the work to lawyers and antiquaries, which renders it
desirable that a reasonable number of copies should be distributed
in this community. In the Introduction and !Notes I have endeav-
ored to give only facts, and to cite the authorities in full.

The indexes were prepared by F. E. Goodrich, Esq.

It is reasonable to think that the ground covered by these two
volumes is now completely covered, even should some fortunate
chance restore to us a copy of the edition of 1649. But there is
room, and almost a necessity, for some qualified person to work up
this material into a concise and well-digested history of the juris-
prudence of Massachusetts. A thorough consideration of the
Body of Liberties will prove that our ancestors were far more
enlightened than their English contemporaries, and that the
influence which they sent forth has continued to afiect most
powerfully our laws, customs, and thoughts to the present time.

Especially to be forever remembered, for their pious care and
intuitive perception of the value of these records, are Edward
Rawson, Elisha Hutchinson, and Francis Galley Gray.

THE PRmTED RECORDS.

In 1853 (Resolves, chap. 63) the Governor was directed to
have jirinted one hundred copies of the first two volumes of the
General Court's Records. By chap. 5 of Resolves of 1854, eleven
hundred more copies were ordered, and twelve hundred copies of
Volumes III., rV^., and V. The work was done under the super-
vision of the late Dr. N. B. Shurtleff", the first two voliunes bearing
the imprint 1853, and the others that of 1854,

In 1855 (Resolves, chap. 19) the Governor was directed to
have printed five hundred additional copies of the first volumes of
said Records.

In 1856 (Resolves, chap. 9) the Secretary was empowered to
allow the State printer to publish an edition for public sale, as a
private enterprise, the permission being for three years from June
4th. (Resolves, chap. 87, 1856.)

Preface. IX

In the "Boston Dally Advertiser" for March 6, 1865, Dr.
Shurtleff published a letter in regard to certain changes made by
him in the stereotype plates after the first edition was issued. The
following extracts cover the main point : —

" Soon after the issue of the edition ordered by the Legislature
in 1853, my excellent friend, Col. Thomas Aspinwall, came back to
his American home, bringing, with his historical treasures collected
during a IcJng residence in London, a manuscript copy of the
first volume of the old records, and of a portion of the second
volume, extending, I think, to the year 164G. This manuscript
contained a large portion of the lost records, namely, a portion of
the proceedings of the 23d of March, 1628-9, the proceedings of
the 30th March, 2d, 6th, 8th, 13th, 16th, 27th, and 30th of April,
1629, and also portions of the proceedings of the 10th of December,
1641 (being part of Volume L), and the commencement of the
record of the General Court of Elections, commencing on the 13th
of May, 1642, being the beginning of Volume 11."

" Fortunately the succeeding Legislature passed an order for
the issue of another edition of Volumes L and II. ; and, conse-
quently, an opportunity was afforded for completing the printed
volumes of records from the material furnished so opportunely by
Colonel Aspinwall's copy. Tlie stereotype -plates were revised, and
the lost parts of the original records were artistically supjjlied, so
that the second impression from the stereotype plates contains all
that exists of the old colonial records of Massachusetts."

Dr. Shurtleff" proceeds to copy a note in the Aspinwall manu-
script, showing that it had been in the possession of Gov. Thomas
Hutchinson. He adds : " The manuscript is not so old as the year
1653, but is in a later style of chirography."

Subsequently this precious manuscript was purchased by
Hon. Samuel L. M. Barlow, of New York city, in whose extensive
and valuable library it now remains.

It appears that the changes made in the stereotype plates after
the first edition was printed were as follows: In Volume I. ten
pages were inserted, marked 37 a to 37 y, inclusive, and on p. 3J6
enough was added to complete that page. In Volume II. (which
begins, in the first edition, with p. 3), two whole pages were
inserted, numbered 1 and 2, and the first haif of page 3. The former
page 3 was cancelled, the two bottom lines (concerning one
Gregory Taylor) being carried over to page 4, and the spaces on
page 4 being readjusted, so that page 4 ends alike in both editions.

X Preface.

I believe that I am correct in saying that no change was made
in the title-pages to this second edition of Volumes I. and II., that
no notice was given of the corrections and additions (except a short
note on p. 344 of Volume I.), and that no alterations were made in
the Index of either volume.

As to the additions made in the first volume, their value is
merely antiquarian. But the pages added in the second volume
contain the organization of the government for 1642, an order
about votes in the General Court, and a law respecting constables,
(which is in the Code of 1660, the first clause of section 2, and not
cited in the margin as passed in 1642, the whole section being
referred to Anno 1646). There are also two laws, one relating to
the pay of the Elders when employed by the General Court, and
the other empowering any Court having two magistrates to admit
church members to be freemen : both laws copied into the Code of
1660.

For these two laws I spent many hours in fruitless search, till
I learned the fact of there being two editions. In the lack of
any definite information of the number of copies printed by the
State printer under his license, I conclude that fully two-thirds of
the copies of the first two volumes of the Records now in circula-
tion and use are defective. The stereotype plates of these books
were destroyed in the great fire in Boston in 1872, and I have
therefore reproduced the four pages, one (p. 346) of Volume I., and
three pages of Volume II., in order that any one who wishes to
verify my citations, and who is unfortunately the owner of the first
edition only, may have the full copy before him.

It is useless to criticise Dr. ShurtleflTs peculiar method of
altering the plates of such an important book. Any one taking up
a copy of State Records issued by authority of the Legislature
naturally relies upon its entire accuracy. I am sorry to say that
this reliance is misplaced in many small matters of textual correct-
ness, as I have discovered ; but the fact that three or four pages of
proceedings are to be found in one edition, and not in another, is
one which calls for the greatest publicity. I fear that many of the
highly valued copies of the first edition were placed in public
libraries, and are the only ones accessible to many students.

The legislation of the Andros or Inter-Charter period remains
still in manuscript, and deserves to be printed as the only missing
link in the chain of entire continuity from A.D. 1629 to the present
time.

"William II. Whitmore.

City Hall, Boston, February, 1889.

ADDITIONS MADE IN THE SECOND PRINTED

EDITION OF THE RECORDS OF

MASSACHUSETTS,

AND NOT TO BE FOUND IN THE FIRST EDITIONS.

[P. XIII. IS p. 346 OP Volume l.J

[Pp. XIV.-XVI. are the beglnnixg op VoLnME II.]

Prtfaet.

xiir

346

THE RECORDS OF THE COLONY.

3000 ac'8.

16 41. M" ^raig' Winthiope hath her 8000 acres of land formerly granted her,

^ "^ to bee assigned about the lower end of Concord Ryver, near Merrimack, to
M" Winthropi ^^® layde out by M' Flint & Leif ? Willard, w"» M'' Oliver, or some other
skilfull in measuring, so as it may not hinder a plantation ; & any pt thereof
they may purchase of any Indians that have light to it./

Upon the petition of M' Willi : Tynge, it was ordered, that M' Barthol-
omew, George Giddings, & John Whipple should set a dewe valuation upon
the house & ground W^"" Willi : Whitred did effeofe to M' Tyng aforenamed./

It was ordered, that Sara, the late wife of James Hubberd, should have
fourty pound of the estate of her said late husband, & the use of the chil-
drens stock till they come to the ages mentioned in the will, & then the eldest
Sonne./

At this Court, the bodye of laucs formerly
sent forth amonge the ffreemcn, ((?,
was voted to stand in force, {Q.j

[The last paragraph is in the handmiting of Governor Winthrop. The following is restored from
an eaily copy of the records in the possession cf Thomas Aspinwall, Esq.]

M' Atherton Hoffe is graunted foure hundred acres of land in regard of
fiftie pounds disburssed in the ioint stocke.

M' Davies was denied Fibertie to sell diinkc, or ale, or to keepe a cookes
shopp, because there are others sufficient in the towne of Boston, and his
carriage hath bin formerlie offensiue.

M" Dunster is graunted hlr farme with the bondaries from Sudburie
bounds, a straife line running south easterlie and north westerlie to the great
ponnd over against that place, where the river issueth outt of itt on the other
side, the line cutting y* said pond over unto the said issue, then following the
streames vnto the place where Sudburie cutteth againe the river, & soe along
by the river within Sudburie line, as itt is agreetl betweene the towne of Sud-
burie and hir : the line lying in forme is described in the plott subscribed by
M' Thorn Flintt & Thorn Mayhewe.

M' Samuell Mavericke is remitted 40" of his fine of 100", formerlie sett
vpon him, if hee pay y« remaining CO'' in due valuation.

M' Mayhewe his accounts were referred to the Treasure' & M' Duncum ;
& for the bridge by the mill over the Charles River, the Co't doth concelue
itt to belong to the towne or townes in w"^*" jtt lyeth.

Thomas Bartlett is appointed leivetenant & Hugh Mason ensigne to
Captaine Jeanison, Waterton.

M> HoTcs

400 acres.
W" Davies.

M' Dunster
farme.

M' Sam ; Mav'
erirke fine re-
mitt.

Military
ufficers.

XIV

Preface.

MASSACHUSETTS RECORDS.

THE RECORDS OF THE COLONY OF THE MASSACHUSETTS
BAY IN NEW ENGLAND.

[The manuscript of the second volume of the Massachusetts Colony Records commences on the third
page, at the place indicated by an asterisk. The first portion of the volume is lost, and the first eighteen
pages of what remains are in a very decayed condition. By the aid of ancient transcripts of the volume,
made apparently very early, and by a duplicate leaf in the handwriting of the Secretary who wrote the
volume, the decayed portions have been restored. The volume is mainly in the chirography of Secretary
NowcU, although occasionally passages, and sometimes pages, are in that of Mr. Edward Rawson, who
succeeded Mr. Nowell as Secretary in 1650.]

\Th£ Generall Court of Elections, the IS'" Day of y' B' Mon'*, 1642. 1642.

Present, The Governo"',

The Dep"' Governo'',
M' Dudley,
M' Bellingham,
M' SaltoDStall,

M' Biadstreet,
M' Staughton,
M' Flintt,
M' Increase Nowell.

W» Hilton,
W" Walderne,
W" Hayward,
John Saunders,
Edward Rawson,
Matthew Boyse,
Maximi: Jewett,
M' Sam: Simonds,
John Whipple,
M' Ema: Downing,
Edm: Batter,
Edw: HoUioke,

Deputies ^seut :

Robert Bridges,
Mr w- Ting,
Cap^ Edw: Gibbons,
Ralph Sprague.
Thomas Line,
Cap! Geo: Cooke,
M"' Nat: Sparhawke,
Capt W" Jeanison,
M' Simon Eyres,
Sywon Willard,
Peter Noyse,
Edw: Allen,

Eiea: Lusher,
W" Heath,
W" Parkes,
M' John Glover,
M' Nat: Duncum,
Alex: Winchester,
W"" Cheesborough,
James Parker,
Edw: Bates,
Jos: Pecke,
Edm: Hubberd.

18 May.

'OHN WINTHROPP, Esq', was chosen Governo' for this yeare and till Govemf
new bee chosen, and tooke his oath.

John Endicott, Esq , was chosen Dep""^ Governo', & tooke his oath.
Thorn: Dudley, Esq', was chosen an Assistant, & tooke his oathe.
Rich: Bellingham, Esq', was chosen an Assistant, & tooke his oath.
VOL II. 1 CI)

Dep. G.

Assistants.

Preface.
THE RECORDS OF THE COLONY OF

3CV

1642.

— » — — '

18 May.

Tresurer.
Deputye.

Pressinge of
horses.

Gloster.

Oibson.

Waterton.
Shawin.

Soolh ine.

487-

Charg-8.
20 May.

Fcmbleton.

488-

FUiteseed,
12> bush.
Repeale.

489-

Freemen,
admission.

Rich: Saltonstall, Esq', was chosen an Assistant, & tooke his oath.

M' Symon Bradstreet was chosen an Assistant, & tooke his oath.

M' Increase Nowell was chosen an Assistant, & tooke his oath.

M' Israeli Staughton was chosen an Assistant, & tooke his oath.

M' John Winthrop was chosen an Assistant.

jf r -yvm pinchen was chosen an Assistant, and tooke his oath.

M' Thomas Flintt was chosen an Assistant, and tooke his oath.

M? Tyng was chosen Treasm*er.

It was ordered that a warrant should bee sentt to Salem for a new election
of a new deputie to be ioined with M' Downing, because the Coiut is doubt-
full of y* choyse, & M' Edmund Batter was sent.

M' Staughton & M' Ting, Treasiiro', were appointed a coiuittec to advise
Goodman Johnson aboutt y* amunitiou.

An order was made for the ^ssing 4 horses, to goe w"' M' Collccott and
his companie (if they cannot hire w"'out fssing) to helpe them to carric neces-
saries to run the south line.

Cape Anne is to bee called Gloscester ; John Sadler is chosen constable
thereof, and tooke his oath.

John Sadler had coinission to traine the men att Gloscester.

Obadiah Brewen is appointed Surveyer of y^ Armes att Gloscester.

George Norten is appointed to keepe an ordinarie*att Gloscester.

Richard Gibson was coiiiitted to the marshall for his seditious practises,
& vpon his submission & acknowlegement of his fault vnder his hand hee was
dismissed with an admonition.

Watertowne delivering in a transcript of thier lands, nott being perfect
was lent them backe againe.

Leivetenant Symon Willard & Edward Converse arc appointed to view
Shawshins, & to certifie whether the land that is free bee fitt for a village or nott.

Goodman John Johnson had order to lend six carabines to M' Collecott
& his companie w*^*" are to run the south lii>e.

Itt was ordered, that the Treasuro' should defray the charges of the elders,
when they are imploycd vpon anie spcciall order from the General Co''t.

The lawes were read over the 20''' of the 3'' month.

John Pemberton was bound in 20" to appeare att the nextt Coiut att
Ipswich.

The order for hempe & flax seed to passe att twelve shillings the bushell
is repealed.

The orders for restraint of wheat are repealed.

There is power given to evcrie Co't w^'in o' jurisdiction y' hath two

XVI Prtjace.

THE MASSACHUSETTS BAY IN NEW ENGLAND. 3

magistrates to admitt anie church members that are fitt to bee free, & to give 1 G42.
them the freemens oath, & to certifie thier names to the .Secretarie att the "~

next Generall Courtt. =^" ""y-

The order formerlie made for writeing things before they bee voted, is 490-

dcclared nott to conceme matter of forme, butt to bee meant of things that courtV"
we to bee matters of record. Repeaie.

Phillip White, for drunkenesse, was fined 10', & for misdeameno', •w'='» White.
10' Richard Wayte vndertooke for White.

The Deputy Governo', M' Staughton, Cap! Gibbons, Captaine Jeanison, Posture of
Capt Cooke, M' Rawson, Leiveten' Willard, & M' Parker, these or the greater ^^*"*'
number of them, are appointed to putt the countrey in a posture of warre.

Itt is ordered, y' when anie person shall bee tendred to anie officer of 491-

this jiuisdiccttn by anie constable or other officer belonging to anie forreigne 0*"^^" duly to

.... receiue forraine

jurisdiction m this countreVj or by warrant from anie such authoritie, hee or prisoners.

shee shall bee presentlie receiued and conveyed forthwith from constable to

constable till the partie bee brought to the place to which hee or shee is sentt,

or before some magistrate of this juiisdiction, who shall soe dispose of the Hue & cry.

partie as occasion & the justice of the cause shall require^ &-thatt all hew

and cryes shall bee dilligcntlie receuived & piu-sued to full effect.]

Whereas the country is put to great charge by the Courts attendance [*1.]
vpon suites coiSenced or renewed by either appeales, petition, ^(?, it is 492—

ordered, that in all such cases, if it shall appeare to the Co't that the Ord' about

hue Bncrv'

plain? in any such action of appeale, petition, ^6, in any Co't, hath no
iust cause of any such proceeding, they.shall take order that the said plain-
tiff shall beare all the charges of the Co't w"^*" they shall iudge to have beein
expended by his occation, & may further impose a fine vpon him if the merrit
of the cause shall so requiie ; & if they shall finde the defendant in fault, they
shall Impose the charges vpon such defendant./

William Aspinwall, upon his petition & cirtifficat of his good carriage, is
restored againe to his former liberty & freedome./

The Court left it to the liberty of the townes to send but a deputy a
peece, if they please, to the next session of this Court/.

The marshall hath leave to go to Coiiecticut, leaning a deputy./

The beaver trad's are appointed to bring in what is due to the countrey
at the next session./

Edward Bcndall hath liberty to make vse of any of the cables, & other^
things belonging to the worke, as he needeth, alowing for the hurt of them./

Gregory Taylo', being chosen constable of Water Towne, tooke his oath
to discharge that place./

INTRODUCTION.

The history of the published Laws of the Colony of Massa-
chusetts is naturally divided into four periods. First, the publica-
tion of the Body of Liberties in 1611; secondly, the issue of the
first collection of Laws, in 1649; thirdly, the revision of 1660;
fourthly, the further revision of 1672, with its supplements through
1686.

Having already been able to reprint the edition of the Laws of
1672, with its supplements, I now have the satisfaction of presenting
in this volume two of the other earlier documents, namely, the
Body of Liberties of 1641 and the revision of the Laws as printed
in 1G60. The other edition, that of 1649, is doubtless hopelessly
lost, no copy being now known. "\Ve may, however, conclude that
its title was the same as the first part of that prefixed to the edition
of 1660; and we are assured by the preface to the last-named book
that the edition of 1649 was arranged " in an alphabetical order,"
that it had a preface or " epistle " telling " there would be need of
alterations and additions." It is also clear that the editions of 1660
varied from that of 1649 by the omission of such laws as had
been repealed and the addition of such laws as had since been
enacted. Those which were omitted cannot be recovered, but by
comparing the Body of Liberties with the edition of 1660, and by
striking out of the latter also all the laws dated after 1649, it
would still be possible to reconstruct the edition of 1649 in almost
perfect form.

It is perhaps as well to state here that for a long time a
spurious Code of Laws has been cited as the genuine Body of
Liberties of 1641. I refer to the pamphlet issued in 1641 in Lon-
don, which was undoubtedly the work of Rev. John Cotton. It
was reprinted there in 1655 under the care of William Aspiuwall,
and has in later years been reprinted, in 1798, in the fifth volume of
the first Series of the Collection of the Massachusetts Historical
Society, and, in 1844, in the third volume of Force's Tiacts. It was
also printed in Hutchinson's Collections of Papcis (IJoston, 1769),

2 Inlroducdon.

and rcpi'inted with notes in the re-issue of that book by the Prince
Society (Albany, 1863).

Althoug-h, as will be shown, the evidence is conclusive that
Cotton's Code was only proposed and never accepted, while a
totally different set of laws was actuall}' enacted in ]6Jl.this error
has obtained in many quarters, and needs to be authoritatively
denied and disproved.

Reverting thei-efore to the facts which can be ascertained, it
is well to remember that our system of making laws by a repre-
sentative body was not coincident with the settlement of the
colony of Massachusetts. The Charter of March 4, 1629, provided
for a governor, a deputy-governor, and eighteen^ assistants to bo
chosen from time to time out of the freemen of the company,
whereof seven assistants, together with the two officers, were to
be a quorum. They were to meet once a month or oftencr at their
pleasure, and four times in each year, viz., upon every last Wednes-
day in Hilary, Easter, Trinity, and Michaelmas terms, were to hold
a CJreat and General Couit. In the General Court new members
could be admitted, and at that time they could " make laws and
ordinances for the good and welfare of the said Company, and for
the govei-nment and ordering of the said lands and plantation and
the i)eople inhabiting and to inhabit the same, as to them from
time to time shall be thought meet. So as such laws and ordi-
nances be not contrary or repugnant to the laws and statutes of
this our realm of England." (Records, p. 12.)

In fact, for several years after the settlement here the powers
of the General Court wei-e allowed to lie dormant. The Court of
Assistants met from time to time, as seemed necessary, but the
General Court met only as follows: —

1630.

October

19.

(Recoi

■ds,

, i. p. 79, printed edition.-)

1631.

May 18.

i. p. 86.

1632.

ISIay 9.

i. p. 95.

163:5.

May 29.

i. p. 101.

1631:.

May U.

((

i. p. 116.

The Records as preserved show both the extent of the powers
exercised by the Assistants, and the insignificaiice of the action of

' This number w:is not observed until 1080. Before this twelve was the highest nunihtT
actually serving, and eight or nine more usual. — W. H. W.

' I cite Savage's edition of AVintliro]!. I'xivton, IS.iS; and in all cases the piinted edition
of tlie Itecords, issued by the State. — W . H. W.

Introduction. 3

the body of freemen assembled in the annual General Court. The
Assistants acting as a Court had during these three years inflicted
fines, whippings, and imprisonments, had levied taxes and granted
lands. In fiict, at the first General Court on Oct. 19, 1G38, it was
voted " by the general vote of the people and the erection of
hands," that the Governor and Deputy Governor with the Assistants,
" should have the power of making laws and choosing ofiicers to
execute the same." (Records, p. 79.)

Winthrop indeed records (Hist. i. 84) that in February,
1GI51-2, the settlers at Watertown objected to paying £8 as their
part of a rate for £60 for fortifying the new town, on the groimd
that the government was like that of a mayor and aldermen. But
they wei-e convinced by the Governor and Council " that this
government was rather in the nature of a Parliament."

In 1G34, however, the freemen of the colony showed a desire
to take a part in the government. Winthrop (i. 152-3) thus in-
troduces the matter: —

" Notice being sent out of the General Court to be held the 14th day of tlie
third montli called May, the freemen deputed two of each town to meet and
consider of such matters as they were to take order in at the same General
Court ; who having met, desired a sight of tlie patent, and, conceiving thereby
that all their laws should be made at the General Court, repaired to the Gov-
ernor to advise with hiin about it, and about the abrogating of some orders
formerly made, as for kilUng of swine in corn, &c. He told tiiem, that wiien
the patent was granted, tlie number of freemen was supposed to be (as in like
corporations) so few, as they might well join in making laws ; but now they
were grown to so great a body, as it was not possible for them to make or exe-
cute laws, but they must choose others for that purpose : and that howsoever it
Mould be necessary hereafter to have a select company to intend that work, yet
for the present they were not furnished with a sufficient number of men qualified
for that business, neither could the company bear the loss of time of so many as
must intend it. Yet this they might do at present, viz. they might at the Gen-
eral Court make an order, that once in tlie year, a certain number should be
appointed (upon summons from the Go\ernor) to revise all laws, &c. and to
reform what they found amiss therein ; but not to make any new laws, but pre-
fer their grievances to the Court of Assistants ; and that no assessment should
be laid upon the country without the consent of such a committee, nor any lands
disposed of."

At the meeting of the General Court, May J 4, 1G34, there
were present, besides the Governor, Deputy, and six other assist-

4 Introduction.

ants, twenty-four deputies, undoubtedly sent by Newtown (i.e.,
Cambridge), AVatertown, Charlestown, Boston, Roxbury, Dor-
chester, Saugus {i.e., Lynn), and Salem; three from each place.^

This regular Legislature proceeded to vote (Records, i. 117),
that none but the General Court had power to choose and admit
freemen, nor to make and establish laws, to appoint or remove offi-
cers and fix their duties, nor to i-aise money and taxes, nor to dispose
of lands. It was also ordered (p. 118), that there should be four
General Courts yearly, to be summoned by the Governor, and not
to be dissolved without the consent of the major part of the Court.
Lastly, they ordered that the freemen of every town might choose
two or thiee men to prepare business to be submitted to each Court,
— a provision which Avas soon neglected, — and also the following
system which has continued ever since.

" Such persons as sliall be hereafter so deputed'' by the freemen of the
several plantations, to deal in their behalf in the public affairs of the common-
wealth, sJiall have the full power and voices of all the said freemen, derived to
them for the making and establishing of laws, granting of lands, &c., and to
deal in all other affairs of the commonwealth wherein the freemen have to do,
the matter of election of magistrates and other officers only excepted, wherein
every freeman is to give his own voice."

From this time on, the records of the General Court show that
this body exercised its powers vigorously and extensively, but at
the beginning without much idea of theoretical legislation. Gen-
eral laws were often passed, but they related to special subjects,
often to trivial ones. No constitution and no general code of
system of laws was enacted, though of course the laws of England
were supposed to be the authority on which all orders or sentences
were founded.

In 1635 a step Avas taken as foUoAvs: At a General Court
held at New Town, May 6, 1635, it Avas voted (Records, i. 147) : —

"The Governor [John Hayncs], the Deputy Governor [Richard Belling-
ham], John Winthrop and Thomas Dudley, fisfpiires, are deputed by the Court
to make a draught of such laws, as they shall judge useful for the well ordering
of this Plantation, and to present the same to the Court."

^ Savage (Winthrop, i. 1.j4) writes that he identified the residences of all but one or two.
He ad34 tlie plantation was greatly increased, settlements were
extended more than 30 miles from the capital town, and it Mas tiiought high
time to have known estabbshed laws, that the inhabitants miglit no longer be
subject to the varying uncertain judgments wliich otherwise would be made con-
cerning their actions. The ministers, and some of tlie principal laymen, were
consulted with, about a body of laws suited to the circumstances of tiie colony
civil and religious. Committees, consisting of magistrates and elders, were
appointed almost every year, for 12 or 14 years together, and vvliilst tlicy were
tluis fitting a code, particular laws, which were of greatest necessity, from time
to time were enacted ; and in the year 1648 the whole collected together were
ratified by the court and then first printed. i\Ir. Bellingham of tiio magistrates,
and Mr. Cotton of the clergy had the greatest share in this work."'

In reply to these general remarks by Hutchinson, I would
urge the fact that he seems never to have used, even if he possessed,
a copy of the printed laws of 1G60 or of 1619. As will be noted
he says the laws were first printed in 1618; but the title of the edi-
tion of 1660 says that they were published in the General Court
held in May, 1649, and this seems to be the true date. Now, the
v(jlume owned by Elisha Hutchiuson not only contains merely the

12 Intioduclloii.

edition of 1672, but the manuscript references made in his copy of
the Body of Liberties refer entirely to this later edition. It is rea-
sonable to suppose that if Elisha Hutchinson had possessed a copy
of the earlier editions, the text of which more nearly conformed to
the Liberties, he would have cited one of them.

It does not seem necessary to reprint John Cotton's book, as
it has been so often republished. It is to be noted that its first
publication, in 1641, was anonymously, in I^ondon. The title is,
"An Abstract of the Lawes of New England, as they are now
established. London, Piinted for F. Coules and W. Ley at Paules
Chain, 1641." Pp. 1-15 and two pages of the Table. Anyone
sending this book to the pi'ess from Boston, would have known
that there was no colony named New England. These laws at
most could only relate to the colony of Massachusetts Bay. It
was doubtless the Avork of some English friend of Cotton's, who
had a copy of his manuscript, and who, hearing that a code of laws
had been established, jumped to the conclusion that this was the
one.

But iu 16oo AVilliam Aspinwall, who had lived here and in
Rhode Island, reprinted Cotton's book in London, increasing the
bulk by printing at length the citations from the Bible and even
adding some that were lacking. A full comparison of the two edi-
tions is given in the reprint of Hutchinson's Collection of Papers
by the Prince Society of Boston, 1865, i. 181-205.

In his pi-eface, Aspinwall makes the following plain disclaimers
r)f any idea that Cotton's work ever became law. He says these
laws Avere

" Aconimodated to tlie Colonic of the Massachuscts in New England,
and commended to the General Court tlierc, which liad they tlicn had the
licart to have received, it niiglit liavc been better both with tliem there,
and us liere, tiian it now is Tiiese are not prop-
erly Laws, but prudeiitiail '' Iiules, whicii he recommended to that Colonie,

'This word "prudential " is one wliicU lias had a great significance in our legislation.
Liberty (IG sajs : " The freemen of every township shall have power to make such by-laws and
constitutions as may concern the welfare of tlieir town, provided that tliey be not of a criminal,
but only of a prudential nature, and that their i)enalties exceed not twenty shillings for one
offence ; and that they be not repugnant to the public laws and orders of the country. And i^
any inhabitant shall neglect or refuse to observe them, they shall have power to levy the
appointed penalties by distress."

The foundation of the law, but not the term, is in a vote of the General Court, March 3,
1C35-6 (Records, i. 172), where it is ordered that "the freemen of every town, or the major
part of them, shall only have power to dispose of their own lands and woods, with all the
privileges and appurtenances of the said towns, to grant lots, and make such orders as may concern
the well ordering of their own towns, not repugnant to the laws and orders here established by

Tntiodncllon. 13

to be ratified with tlie common assent of tlie freemen in each Towne,
or by their Iteprcsentatives in the General Court, aa pubiique Contracts. AVhich
being once made and assented to for tlieir owne convenience, do binde as Cove-
nants do, untlll by like pubiique consent tiiey be abrogated and made voyd.
For though the Author attribute the word [Law] unto some of them ; yet tiiat
it was not his meaning that they siiould be enacted as Lawes (if you take
the word Law in a pro|)er sense), appears by his conclusion taken out of Isn.
33 : 22. Hee knew full well that it would be an intrenchment upon tlie Royall
power of Jesus Christ, for them or any otlier of the sonnes of Adam to ordain
Lawes."

" It is not my purpose to perswade this or any other nation (were they will-
ing to heare) to enact or ratifie these by any power of their own (in a solenm
convention of their Representatives) as Laws : Neither do I believe it was the
Authors intention so to do, when he drew up tliis modell. For alas, what
energie or vertue can such an act of poore sinfuU creatures adde unto the most
perfect and wholesome lawes of God? It is enough for us, and indeed it is all
that can be done by any people upon earth : 1. To declare by their Ilej)re-
sentatives, their voluntary subjection unto them, as unto the lawes of the Lord
their God. 2. After such professed subjection to fall unto the practice tliereof,
in the name and strength of Christ their King and Law-giver."

" This Abstract may serve for this use principally (which I conceive was
the main scope of that good man, who was the author of it) to shew tlie com-

tlie General Court; as also to lay mulcts and penalties for the breach of these orders, and to levy
and distrain tlie same, not exceeding the sura of twenty sliillin?s; also to choose their own par-
ticular officers, as constables, surveyors for the highways, and tlie like."

June 14, 1C42, the General Court (Records, ii. C) passed a law for the proper training .and
employment of children, and st.ite " tliat in every town the chosen miii appointed for iiianagin;;
\he prudential affairs of the same shall henceforth stand charged with the care of tlie redress of
this evil."

Again, Oct. 7, 1646 (Records, ii. 162-163) the Court passed this order : " Wherciis there is
no order made appointing wlio shall end causes in towns under tlie value of 20 shillings, wliere
one only magistrate dwuUs, and the cause concerns himself, it is therefore hereby ordered, tliat in
such cases the 6 or 7 or more men in every such town, which are selected ior prudential affairs,
shall have power to hear and determine such cases," etc., etc.

Kov. 4, 1646, the General Court (Records, ii. 180) pissed certain orders entitled I'ru-
dentiall Laws, though it is not clear that more than the first section was so designated. That
one reads: "Every township, or such as are deputed to order the prudeniialls t\wTvof, shall
have power to present to the Quarter Court all idle and unprofitable persons, and all children
who are not diligently employed by their parents, which Court shall have power to dispose of
them, for their own welfare and improvement of the common good."

So again an order of the General Court, M.ay 26, 1647 (Records, ii. 19), declares th.at
" henceforth it shall and may be lawful fi>r the freemen within any of the said towns to make
choice of such inhabitants, though non-freemen, who have taken or shall take the oath of
fi.klity to this government, to be jury men, and to have their vote in the choice of selectmen for
town affairs, assessment of rates, and other prudentials, proper to the selectment of tlie several
towns."

May 26, 1658 (Records, iv. part 1, pp. 335-3,36) tlie Court speaks of two laws in the
printed book, title Township, about the right of all Englishmen wlio have taken the oath of
fidelity to be chosen jury men or constables, and to have tlieir vote in the choice of the selectmen
for the town affairs, assessments of rates, and other prudentials proper t) the selectmen of the
several towns. These laws are all repeated in the edition of 16G0, pp. 75-76.

14 Introduction.

pletc suflficienoy of the word of God alone, to direct his people in judgment of
all causes, both' civil and criminal, as we are wonted to distinguish them.
Whicii being by him done, and with all sweetness and amiableness of spirit
tendered, but not accepted, he surceased to press it any further at that season,
knowing full well that tlie Lord's people shall be a willing people in the day of
his power. But the truth is, both they and we, and the other Gentile nations,
are loth to be persuaded to dwell in the tents of Shem, and to lay aside our old
earthly forms of government, to submit to the government of Christ."

It seems, therefore, to be certain that any claim that Cotton
prepared the Body of Liberties, rests upon an unauthorized title-
page and the vague and unsupported opinions of Gov. Hutchin-
son. The evidence to the contrary is found in Aspinwall's positive
statements above cited, and in the very nature of Cotton's book.
It is a treatise in ton chapters, stating powers, duties, rights, and
penalties, fortitied throughout by references to the Old Testament.
The sections are not framed as hiws are, and the only wonder is
that any one could suppose for a moment that any legislature ever
enacted them.

The same words are again used in the edition of Laws in 1672, pp. 147, 148.

Under the ntw Cliarter, in the session of 1GD2-3, chap. 28 (Province Laws, GoodeU's
edition, i. 60) the froeliolders and inhabitants in a town meeting could pass " necessary rules,
orders and by-laws for the directing, managing and ordering the prudential affairs of such town,"
with penalties not exceeding twenty shillings, etc., to be approved by the justices in Quarter
Sessions. In \KU; (Iliid., i. 2I.S) the clause requiring the consent of the justices was repealed,
and an appeal to tlieni was granted to any one punished under such by-laws.

Again, after the establishment of the State, chap. 75 of Acts of 1783 repeated the powers
of towns to make "rules, orders and by-laws for the directing, managing and ordering the
prudential affairs o{ the town," with penalties not exceeding tliirty shillings, and provided the
laws are api>rovcd by the Court of General Sessions of the Peace in the same county.

The Revised Statutes of 1836, chap. 15, § 13, contirmes the same words, with twenty
dollars penalty, and the ajiprovMl of the Court of Common I'leas.

The General Statutes of 18lj(), chap. IS, § 11, retains tlie phrase, " directing and managing
the prudential affairs " of the town ; as dues tlie Public Statutes of 1881), chap. IT, § 15, which,
in defining the pi)wers of towns to pass by-laws, allows them " fir directing and managing the
prudential affairs, preserving the peace and good order, and maintaining the internal police
thereof."

I have thus briefly traced this phrase, "prudential affairs," from the Body of Liberties in
1641 to the present time, and can only say that the earliest definition is the clearest and best.
All matters, not reserved for state jurisdiction, but affecting the welfare of the town in its cor-
porate capacity, and evidently susceptible of proper regulation under the penalty of a moderate
fine, have been, and still are, suitable subjects for control in towns by by-laws, and in cities by
ordinance. The origin of the term is obscure. One would expect to find it in the contemporary
theological literature, hut it was cert.ainly not in common use. Perhaps Ward invented it, as
his "Cobler" is full of strange words. In 1053 (Records, Vol. iv., part i., p. 145) a matter is
said to be " s.afe and prudential," and there the word is equivalent to " prudent." A similar use
of a word is "economy" a d "economical." A man is economical, but we speak of political
economy, and towns regulate their domestic or internal economy. — W. U. W.

Introduction. 15

But equally strong evidence remains to show what the Body
of Liberties actually contained. The Laws of IGGO as well as those
of 1672 contain numerous citations of laws under the date of 1G41.
These laws, with very few exceptions, are not entered on tlic
Records of the General Court, as passed in that year. Hence these
must have been comprehended in some general enactment, to wit,
the Body of Liberties. An analysis of these laws is given later
on. In the meantime I would cite the following evidence: First,
on October 17, 1643 (Records, ii. 48), the General Court declared
" that whereas in the Book of Liberties, No. 23, it was ordered
none should take above 8£ per cent., — bills of exchange are ex-
cepted." This reference is to our No. 23. Secondly, March 7,
1643-4 (Records, ii. 61), the Governor .[Winthrop], Mr. Dudley,
and Mr. Hibbens, or any two of them, were made "a committee to
consider of the Body of Liberties against the next General Court."
Third, the General Court voted May 26, 1647 (Records, ii. 194),
" for explanation of the order in the Liberties about 6 days warn-
ing to be given to the defendant in every action, &c., it is hereby
declared that the day of the summons or attachment served and
the day of appearance shall be taken inclusively as part of the
six days." Here the reference is to Liberty No. 21, as printed
herein, amended in Laws of 1660, p. 4, title Attachments, § 2, line
5, by adding the word "inclusively" after the words "six days."
Of course our copy of the Liberties is the earlier form, prior to
May, 1647.

Lastly and most conclusive of all, the General Court in 1646
had to consider a Remonstrance and Petition from Robert Child
and others who were dissatisfied with the government. The Court
empowered Governor Winthrop, Deputy Governor Dudley, Rich-
ard Bellingham, and the Auditor General (Lieut. Nathaniel Dun-
can) to draw up a reply to be forwarded to England by Mr.
Winslow. This document is printed in Hutchinson's Collection
of papers (Prince Soc. edition, i. 223-217). One of their chief
arguments, to j^i'ove that the laws here are conformable to
those of England, is an elaborate parallel of items printed face
to face.

" In this they set forth forty-four fundamental propositions, annexing to
each the authorities for it. Six times they refer for authority to their Charter ;
seven times to custom ; eij^ht times to laws of specified dates ; once to tlie
Bihle ; and twenty-seven times to the Liberties, citing each by its appropriate
number." — ,F. C. Gvdij.

16 Introduction.

l^ot one of these citations of t'he Liberties conforms to any
item in Cotton's book ; but every one of them, by specific number,
refers to and agrees with a section of the manuscript copy pre-
served by EUsha Hutchinson. The separate sections (one or two
being cited more than once) are Nos. 1, 2, 3, 10, 14, 17, 18, 29, 31,
30, 37, 42, 48, 53, 59, G3, G5, 81, 82, 94, and 95; in all twenty-one out
of one hundred, and scattered from number one to number ninety-
five. It is impossible to present stronger evidence that this mann-
script copy of the Body of Liberties is identical with the one xised
by the Committee of the General Court in 1646.

As the original book containing these citations is quite rare,
and in oi'der that there may be no question of the identification, the
following exti'acts are given of such paragraphs, as they occur in
order, which are said to be taken from the Body of Liberties: —

" FUNDAMENTALLS OF THE MASSACHUSETTS.

Comj)(tred with Magna Charta.

1. All persons orthodoxe in judgment and not scandalous in life may
gather into a church estate according to the rules of the gospell of Jesus Christ.
Liberty 1.=

Such may choose and ordaine their owne officers, and exercise all the Or-
dinances of Christ, without any injunction in doctrine, worship or discipline.
Liberty 2 & 38.9

2. No mans life, honor, liberty, wife, children, goods or estate shall be
taken away, punished or endamaged, under colour of lawe, or countenance of
authoritie, but by an expresse lawe of the general court, or in defect of such
lawe, by the word of God &c. Liberty, 1.

Every person within the jurisdiction &c shall enjoy the same justice and
lawe }'

24.

Charges, Public.

63.

" § ?>.'^

13.

Cliildren and Youth,
§ § 5 and G.

83, 84.

Clerk of the Writs.

See Notes, 4.

Condemned.

44.

'^ The Capital Laws as printed in IfiCO are those contained in Liberty 94, for the first twelve
laws, witli slight clianfies in Nos. 3 and 4. The General Court, June 14, IC42 (Records, ii, 9.2),
added three more capital crimes, viz. : criminal connection with a child under ten years of age,
ravishing a married woman or betrothed maid, or ravishing a single woman aged over ten years.
It was also ordered that all these capital laws be printed. Accordingly, in Major John Child's
book, printed in London in 1647, entitled " New England's Jonas cast up at London," etc. (Mar-
vin's edition, Boston, 1800), will be found a reiu'int of these fifteen Capital Laws, arranged
somewhat differently in order. Nos. 3 and 4 are, however, the same as in the Body of Liberties.

But tlie General Court on Novemlier 4, ICAG (Hecords, ii, 177), passed a preamble and law
about Blasphemy, which superseiled Law No. 3 of the Liberties, and is the form followed in the
Revision of KifiO. At the same time (Records, ii, 1711) they passed the two capital laws against
wicked children, which are Nos. 13 and 14 in the Laws of IGOO; and also (Records, ii, 182) the
section imnishing those a^'cused of capital crimes wiio did not stand a trial.

The Laws of IDiJO contain but one section about Rape, thereby ignoring two of the laws
passed, as we have seen, in li;42. These punished fornication with a female child under ten
years of age, and ravishing a married woman or a betrothed maid. The citation for this sectiim
is 1049, but I fail to find any express legislation on that subject in that year. I am therefore
inclined to believe that the change was made in the revision of Kil'J, under the powers given the
revisers.

It is evident that the revision was not satisfactory, for the General Court, Oct. 12, 1060, on
a flagrant case, tiuding that there was then no law, re-enacted (Records, vol. iv, part ii, jip. 437-
8) the jiunishment for .abusing a child under ten years, as deatli. Laws of 1672, p. 15. § I 7.

Still there seems to have been no punishment provided for rivisliing a niarrieil woman.
Lender the New Charter (Goodell's I'rovince Laws, i, .56), an Act was passed defining capital
crimes, including ravishing any worn An. It was ])assed in 1003, but disallowed by the Crown.
In 1697 (Ibid., i, 2'J(J ) an Act was passed punishing the rape of any woman or the abuse of a
woman child under ten years of age. — W. 11. \V.

'* Cited as 1046. but referred by Hutchinson to this Liberty. — \V. H. W.

'■' This law is dated 1646, 47, 51, 57; but Hutchinson notes that the last paragraph of § 3
is based on Liberty No. 13. — W. II. W

Inh-oduclion.

Laws dated 1641. — Continued.

Acts of 1600.

Acts of 1G72.

Title.

Body of Liberties.
Number.

v. 20

P. 32

Conveyance, § 3.

40, 15.

do § 4.

See Notes, 5.

Courts, § 4.

72, 73.

((

do § 6.

69, 71.

do § 6.

19, 20.

do § 10.

41.

do § 12.

See Notes, 6.

Cruelty.

92.

Death untimely.

57.

Deputies, § 2.

62, 68.

Distress.

35.

Dowries.

See Notes, 7.

Drovers.'*

93.

Ecclesiastical, § 3-12.

95, §§ 1-10, 58, 59,
[§ 2 is new, and

60.
the

Elections, § 4.

numeration is thei
changed.]
67.

^eby

Farms.

See Notes, 8.

Ferries.

See Notes, 9.

Impresses.

5, 6, 7,8.

Imprisonment.

18.

Indians.

See Notes, 10.

86, 87

Jurors, § 1, 2, 3, 5.

50, 61, 31, 76, 49.

Lands, Free.

10.

90, 91

Liberties, Common.

12, 16, 17.

101

Marriage, &c.

80.

105

Masters & Servants,
§ 6, 7, 8, 9.

85, 86, 87, 88.

" It is worth while to note that in Liberty 93, the word " lambe" is used, and in the Laws
of 1660, the word is " lame." — W. H. W.

Introduction.

Laws dated 1641,

Concluded.

Acts of IGGO.

Acts of 1672.

Title.

Body of Liberties.
Number.

r. Gi

P. 116

Mines.

See Notes, 11.

119

^lonopolies.

119

Oaths."

126

Prescriptions.

65.

128, 129

Protests.

75.

129

Punishment, Torture.'^

42, 43, 45, 46.

129-131

Eecords, &c., § 1,3.

64, 38, 48.

132

Replevin.

32.

139

Ships, § 1.

See Notes, 12.

143

Strangers.

2,89.

147, 148

Township."

56, 66, 74.

150

Treasurer.^'

78.

152

Trials.

29, 30, 52.

153

Usury.

23.

153

Votes.^i

54, 70, 77.

158

Wills.

81, 82.

158

"Witnesses.

47.

161

Wrecks.

90.

" By Hutchinson wrongly m.-irked as p. 219. — W. H. W.

'" This chapter is undated in the Laws, but Hutchinson refers it to Liberties 42, 43, 45 and
46. —W. H. W.

"This chapter is dated 1630, 1G42, 4", 53, 58; yet there are three sections taken from the
Body of Liberties. The omission of 1641 is clearly a clerical error. — W. H. \\'.

™ Tills chapter has no citation in the Laws under date of 1641, but Hutchinson rightly
assigns part of it to Liberty 78. — VV. H. W.

*' Tliis is erroneously dated 1651, yet Hutchinson properly refers it to Liberties nos. 54, 70,
and 77. — W. H. W.

The following explanatory notes will, perhaps, make the matter
plainer: —

First. Laws of 1660, p. 5, Title " Benevolence." This law
is dated 1641, but is not in the Body of Liberties. It was passed
June 2,1641 (Records, i, 327), and therefore probably after the
Body of Liberties had been compiled.

Introduction. 25

Second. Edilion of IGGO, p. 6, Title " Bounds of Towns."
Citation 1041, though in the edition of 1072 cited as 1651. A short
law was passed June 2, 1641 (Records, i, 319), but the main part
of this act was passed Nov. 11, 1647 (Recoi'ds, ii, 210).

Third. Laws of 1660, p. 9-10, Title " Cask & Cooper." The
laws are dated 1641, 1647, 1651, 1652. I find no law on the sub-
ject in 1641, but there was one passed Sept. 27, 1642 (Records, ii,
29), the terms of which are incorporated in the Laws of 1660.
Evidently the date is a misprint, by no means the only one.

Fourth. Laws of 1660, p. 18, Title " Clerk of the "Writs."
This law was passed Dec. 10, 1641 (Records, i, 345), and, of course,
after the Body of Liberties was already in form.

Fifth. Laws of 1660, p. 20-21, Title "Conveyances," &c.
§ 4 is assigned to 1641 and 1612. This law was passed October 7,
1640, and this date is incorporated into the law as printed. Evi-
dently 1641 is a misprint for 1640.

Sixth. Laws of 1660, p. 24, Title " Coui-ts," § 12. This is a
law that " every Court in this jurisdiction where two magistrates
are present, may admit any church members that are fit, to be
freemen; giving them the oath: and the Clerk of each Court shall
certify their names to the Secretary at the next General Court."
1641.

This date of 1641 is clearly a misprint. May 20, 1642 (Rec. vol. ii, pp.
2-6 of the second edition only) the following order was passed : " There is
power given to every Court within our jurisdiction, that hath two magistrates,
to admit any church members that are fit to be free, and to give them the
freeman's oath, and to certify their names to the Secretary at the next General
Court." May 10, 1643 (Records, ii, 38), it was ordered "concerning
members that refuse to take their freedom, the churches should be writ unto, to
deal with them." In the list of Freemen (Records, ii, 2'Jl) all seem to have
been made free in May of the respective years, except a few at Salem in Dec.,
1642, and February, 1642-3, and some at Springfield, in April, 1048. As
to these last, it was ordered Nov. 11, 1647 (Records, ii, 224) that "Mr.
Pinchin is authorised to make freemen in the town of Springfeild, of those that
arc in covenant and live according to tiieir profession."

Again, Nov. 11, 1647 (Records, ii, 208), it was voted that "there being

in this jurisdiction many members of churches, who to exempt themselves from

aU jjublic service in the commonwealth, will not come in to be made freemen,"

• it is ordered that they be not exempt from serving in town offices,

if elected.

June 19, 1650 (Records, iv, pt. 1, p. ID), Robert Clements, at the re-

26 Introduction.

quest of tlie town of Haverhill, was empowered to pive tlie oath of fidelity.
Ill 1()0."5 (Ibid., p. 127, 121)) special commissioners were sent to establisli ju-
risdiction at Kittcry and at Saco, and they admitted freemen there. Other
special cases may be found on the records.

jNIay 31, IfiGO (Ilecords, iv, pt. 1, j). 420) tlie General Court declared
"that no man whatsoever shall be admitted to the freedom of this i)ody politic,
but such as are members of some church of Christ, and in full communion ;
which they declare to be the true intent of the ancient law, page the 8th of the
second book, anno g'' 1G31."

June 28, 1G()2, Charles II. sent a letter to the Colony ordering the redress
of grievances. It is printed in Hutchinson's Collections, Prince Soc. edit, ii,
100-104. He especially ordered a change in the law concerning freemen.
Accordingly on Aug. 3, ]G()4 (Records, iv, jiart ii, p. 117), the General
Court declared, "that the law ])rohibiting all persons except members of
churches, and alio t/ial for aJloicance of tlictn in uni/ Conntij Courts, are
hereby repealed."

See my preface for an explanation of the -ditfcrences between the two
editions of the j)rinted Records.

Seventh. In the edition of 1672, p. 42, Title " Dowries," the
date is given as 1641. But in the laws of 1660 it is dated 1647,
which is somewhat confusing. The reference to 1641 may refer to
Lihei'ty Xo. 79; but it looks more like a misprint. The records
do not contain any law of 1647, but May 2, 1649 (Records, ii, 281),
reference is made to " the printed law concerning dowries," and
amends it by striking out the clause giving the widoAV "a third part
of her husband's money, goods, and chattels, real and personal ; "
and also by ordering in the 14th line of said order the insertion of
the words " then by act or consent of such wife."

Both these changes are incorporated in the text in 1660, and
the proviso is made that the law shall not attect houses, lands, etc.,
sold before the last of Novembei', 1647. Hence, it would seem
that there was a law passed and printed in that year, though not
entered in the legislative records.

Eiglith. Laws of 1660, p. 30, Title " Farms." The order that
all farms in a town shall belong therein, excc])t Medford, is dated
1641, and is not in the Liberties. It was passed June 2, 1641
(Records, i, 331), and may have been too late for insertion, or, more
probably, Avas not of a nature to be placed there.

Ninth. Laws of 1660, p. 31, Title " Ferries." Reference is
made to law of 1641. Much of § 1 will be found in orders passed

Introduction. 27

Oct. 7, 1641 (Records, i, 338, 341), explaining this reference. But
the hiw is not in the Body of Liberties for the reasons given in the
preceding example.

Tenth. Laws of 1060, p. 43, Title " Indians." At the end of
section 10, the citation is 1633, 37, 40, 41, etc. I find nothing
passed in 1641 relating to this section ; but § 7, cited as passed
in 1640, 48, in the last clause does contain a law passed June 2,
1641 (Records, i, 329), that if harm be done by the Indians to the
English in their cattle any three magistrates may order satisfaction.
Hence I infer the general citations under section 10 cover all the
preceding sections, and this is the law of 1641, which is not in the
Body of Liberties.

Eleventh. Laws of 1660, p. 61, Title "Mines." Citation of
law of 1641, which is not in Body of Liberties. The law was
passed June 2, 1641 (Records, i, 327).

Twelfth. Laws of 1600, Title "Ships," p. 72, citation of
1641. The law was passed Oct. 7, 1641 (Records, i, 337-338).

It will be noted that of these twelve laws dated in 1641, and
not in the Body of Liberties, Numbers 1, 2, 8, 10 and 11 were passed
in June, 1641, Nos. 9 and 12 in October, 1041, and No. 4 in Decem-
ber, 1641. These were all passed too late to be placed in that docu-
ment. Nos. 3, 5, 6, and 7 are wrongly dated.

The result, however, is to show that nearly all of the acts
ascribed to the year 1641 in the late revisions are simply sections
of the Body of Liberties-

One other point remains to be considered. A few of the Lib-
ei-ties were not incorpoi-ated into the Statutes in 1660, and are not
checked by E. Hutchinson on the margin of his manuscript. These
are numbered 14, 26, 27, 51, 55, 79, and 95, § 11.

No. 14 is to the effect that a conveyance made by a married
woman, a child, an idiot, or distracted person shall be good, if
ratified by the General Court.

This may have been dropped on consideration as contrary to
English law at that time.

28 Introduction.

No. 2G empowered any man unable to plead his own ease to
have any unpaid attorney. The pi'ohibition to employ a paid
lawyer was in force in 1G41, as "Winthrop records (History, ii,
p. 43). May 2, 1649 (Records ii, 279), it is ordered that appeals
shall be made by the party, or his attorney, in writing. Also, it
was ordered that after one month's publication hereof, no one should
ask council or advice of any magistrate in regard to a case to be
tried. We may infer from these two citations that the necessity of
paid attorney's had become so evident that this Liberty was quietly
dropped.

!No. 27 relates to the defendant's right to answer in writing if
the jilaintiff put in his case in that form.

No. 51 provides that associates to aid the assistants in the
Inferior Courts shall be chosen by the towns.

No. 55 provides and gives the widest liberty to both plaintiffs
and defendants in making claims and pleas.

These details in regard to the courts were naturally modified
from time to time, between 1641 and 1660, as the records show.
There seems to have been a great amount of experimenting in
arranging the inferior courts, and hence we cannot find the exact
equivalents of these Liberties, though they were preserved in spirit.

No. 79 provides that if a man did not provide for his widow
out of his estate, the General Court should relieve her. This idea
is carried out in the law of Dowries, as printed in 1660, to which
reference has already been made. See also Wills, § 3.

It is evident, thei'efore, that the Body of Liberties was virtu-
ally incorporated into the earliest system of laws, and that no part
of it was found to be sujjerfluous. Both in regard to its extent and
its phraseology it is a noble monument to the, compilers, and to the
community which so promjitly accepted it. In its present form it
will be easily examined, and the most thorough study will confirm
the impi-ession of its importance in any investigation of the growth
of the Commonwealth, through original processes worked out on
the spot, from a trading company to a free state, the parent and
exemplar of so many later communities. — W. II. AV.

THE BODY OF LIBERTIES.

1641.

IN FAC-SIMILE FROM THE HUTCHINSON MANUSCRffT, WITH A
LINE-FOR-LINE PRINTED VERSION.

TABLE OF CONTENTS/

15.

IG.

Preamble :
Liberty 1. Persons and property inviolal)le
except Ijy law.

2. Equal justice to all.

3. The Legislature alone to impose

oaths.

4. UnavoiJable absences not punish-

al)le.

5. Pul)lic service required only by

law.
G. Exemptions from public service.

7. Limit of military service.

8. Property taken for public use to

be paid for.

9. Monopolies forbidden but patents

allowed.

10. Fines on alienations, heriots, &c.,

forbid ■ ■ — ^ ■ ' >^

'">•

»«^I

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/'«; /J

A COPPIE OF THt

libertie:s of the massaciiusets coloxie
in new england.

The free fruition of such liberties Immunities and priveledgcs
as humanitie, Civilitic, and Christianitie call for as due to every
man in his place and proportion witliout impeachment and Infrinsrcnicnl
iiath ever bene and ever will l)e the tninquillitio and Stahilitie of (jhiircii-
es 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
])osteritie after us. And to ratify them with our soUemne consent.
We doe therefore this day religiously and unanimously decree
and confirme these following Rites, liberties and priveledges con-
cerneing our Churches, and Civill State to be respectively imparti-
allie and inviolably enjoyed and observed throughout our Juiisdiction
for ever.

Xo mans life shall be taken away, no mans honour or good name
shall be sta3'ncd, no mans ])erson shall be arested, restrayned, ban-
ished, dismembred, nor any waycs puni>hed, no man shall be
deprived of his Avife or children, no mans goods or estaite
shall be taken away fi'om him, nor any way indammaged under
coulor of law or Countenance of Authoritie, unlesse it be by
vertue or eqnitie of some expresse law of the Countiy waranting
the same, established by a generall Court and sufficiently publi>hocl,
or in case of the defect of a law in any parteculer case by the Avnrd of
god. And in Capitall cases, or hi cases concerning dismembring oi-
banishment, according to tliat word to be judged by tlie Generall Court.

Every person within this Jurisdiction, whether Inhabitant orfoi-reincr
shall enjoy the same justice and law, that is generall for the ]ilantatioii,
which we constitute and execute one towards another without parti-
alitie or delay.

Ko man shall be lU'ged to take any oath or subscribe any articles,
covenants or remonstrance, of a publif[uc and Civill nature, but such
as the Generall Court hath considered, allowed, and required.

x^o man shall be punished for not appearing at or befoi'e any
Civill Assembly, Court, Counccll, INIagistrate, or Officei', nor for the
omission of any office or service, if he shall be necessarily
hindred by any appai-ent Act or providence of God, Avhich he could
neither foresee nor avoid. Provided that this law shall not preju-
dice any person of his just cost or damage, in any civill action.

l^o man shall be compelled to any publique Avorke or service
unlesse the presse be grounded upon some act of the

Court, and have reasonable alloAvance therefore.

generall

G. Xo man

I'^S- I-

pag. 143.

pag. 219.

JKlg. 4.

p.ig. 73.
sect. 2.

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No mail shiill he pressed in person to any office, worUc, warres or other
publique service, that is necessarily and suilitiently exeiii])ted by any
naturall or personall impediment, as by want of* yeares, *>reatnes
of age, defect of minde, layling of sences, or impotencie of Lymbes.

No man shall he compelled to goe out of the lim'.ts of this plantation up-
on any offensive warres which this Commonwealth or any of our freinds
or confederate shall volentarily undertake. But onely upon such
vindictive and defensive warres in our owne behalfe or the bchalfe of our
freinds and confederats as shall be enterprized by the Counsell and
consent of a Court geuerall, or by Authority derived from the same.

No mans Cattel or goods of what kinde soever shall be 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 Cattle or goods shall perish or suffer damage
in such service, the owner shall be suffitiently recompenced.

lHo monopolies shall be granted or allowed amongst ns, but of such
new Inventions that are profitable to the Countrie, and tliat for a short time.

All our lands and heritages shall be free from all fines and licences
upon Alienations, and from all hariotts, wardships, Liveries, Primer-
seisins, yeare da}' and wast, Escheates, and forfeitures, upon the deaths
of parents or Ancestors, be they naturall, casuall or Juditiall.

All persons which are of the age of 21 yeares, and of right understanding and
meamories, whether exconmiunicate or condemned shall have full
power and libertie to make thei'e wills and testaments, and other
lawfuU alienations of theire lands and estates.

Every man whether Inhabitatit or fforreiner, free oi' not fiee
shall have libertie to come to any publique Court, Councel, or Towne
meeting, and either by speech or writeing to move any lawfull, sea-
sonable, and materiall question, or to jiresent 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.

No man shall be rated here foi- any estaite or revenue he hatli in
England, or in any forreine partes till it be transported hither.

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 genei-all Court.

15. All Coven"

piig. 73.
sect. 2

pag. 73.

pag. HD.

pag. 88.

pag. 1.

pag. 90.

pag. 1
sect.

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^ ' ' \Z> '-c-^r^^^^^ ^"^^^^"^

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/*-•:>

f-^-^l

rv'^

All Covenousor fraudulent Alienations or Conveyances of lands, te-
nements, or any hereditaments, 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.

Every Inhabitant that is an how^se holder shall have free fishing and
fowling in any great ponds and Bayes, Coves and Rivers, so farre as
the sea ebbes and Howes within the presincts of the townc 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 with-
out there leave.

Every man of or within this Jurisdiction shall have free libertie,
notwithstanding any Civil! power to remove both himselfe, and his
familie at their pleasure out of the same, provided there be
no legall impediment to the eontrarie.

Rites Rides and Liberties concerning
Juditiall proceedings.

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 secui-itie, bayle or mainprise, for his appear-
ance, and good behaviour in the meane time, unlesse it be in Crimes
Capital, and Contempts in open Court, and in such cases where some
expresse act of Court doth allow it.

If in a generall Court any miscariage shall be amongst the Assist-
ants when they are by themselves that may deserve an Admonition
or fine under 20 sh. it shall be examined and sentenced among them-
selves, If amongst the Deputies when they are by themselves, It
shall be examined 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.

If any which are to sit as Judges in any other Court shall demeane them-
selves offensively in the Court, the rest of the Judges present shall have
]:)Ower 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.

In all cases where the first summons are not served six dayes before
the Court, and the cause breiHy specified in the warrant, where appearance
is to be made by the partie summoned, it shall be at his libertie whether
he will 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 out
Attaichments for the first summons.

22. No man

pag. 32.
sec. ;H.

pag. 90.
sec. 2.

pag. 91.
sec. 3.

pag. 74.

pag. ."fi,
sec. 0.

pair. :W.
sec. (J.

pag. 7.
sec. 2.

11^

— _ > i ■ _

Jr?

3<^

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^A .e..^ -^cM^ ^"^•v^/'-r^^'7'''5^^*Lfr^S"i£

^'5"J

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No man in any suit or action against an otiier shall falsely [)ic'ien(l » -

57 ^«^

In all cases where evidence is so obscure or detective that the Jurie can-
not clearely and safely give a positive vei'dict, whether it be a grand or
petit Jurie, It shall have libertie to give a non Liquit, or a spetiall verdict,
in which hist, 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 findethe maine issue, yet to finde and present in their verdict
so much as they can. If the Bench and Jurors shall so differ at any time
about their verdict that either of them cannot proceede with peace of con-
science the case shall be referred to the General! Court, who shall take
the question from both and determine it.

Every man shall have libertie to replevy his Cattell or goods im-
pounded, distrein


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