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Massachusetts: 3: [Agreement Between the Settlers at New Plymouth] (The Mayflower Compact) - Colonial Origins of the American Constitution: A Documentary History

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Massachusetts: 3: [Agreement Between the Settlers at New Plymouth] (The Mayflower Compact) - Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History [1998]

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Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998).

Editor: Donald S. Lutz

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3

[Agreement Between the Settlers at New Plymouth] (The Mayflower Compact)

The complete text, with original spelling, is taken from the John Carter Brown Library copy of Nathaniel Morton’s New Englands Memoriall (Cambridge [Mass.], 1669); the library has the oldest surviving reprinting of the document. The original document disappeared sometime during the seventeenth century.

November 11, 1620

Also known as “The Plymouth Combination,” the Compact was usually referred to by Plymouth inhabitants as “The Combination” and not until 1793 was it termed the “Mayflower Compact,” when it was reprinted for the first time outside of Massachusetts by a historian in New York. The historical context surrounding its writing, as well as an analysis of its contents, can be found in Harry M. Ward, Statism in Plymouth Colony (Port Washington, N.Y.: Kennikat Press, 1973); in Willmoore Kendall and George M. Carey, The Basic Symbols of the American Political Tradition (Baton Rouge: Louisiana State University Press, 1972); and in Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988). Unlike colonies further south such as Virginia, Maryland, Pennsylvania, and the Carolinas where the presence of some settlers of higher social rank produced a natural, legitimate governing class, New England was settled by men of “the middling sort.” In place of a government composed of men of “standing and reputation,” the Pilgrims and other New England settlers resorted to formal agreements, signed by all males, as the basis for legitimate government. For this reason, while southern colonies moved gradually in the same direction, New England settlements immediately formed under what we now recognize as constitutional government based on popular consent. The Mayflower Compact is the oldest surviving compact based on popular consent; but see also documents 5, 7, 11, 12, 19, 21, 23, and 32–38.

[The Plymouth Combination, or The Mayflower Compact]

IN the Name of God, Amen. We whose Names are under-written, the Loyal Subjects of our dread Soveraign Lord King James, by the grace of God of Great Britain, France and Ireland, King, Defendorof the Faith &c. Having undertaken for the glory of God, and advancement of the Christian Faith, and the Honour of our K[i]ng and Countrey, a Voyage to plant the first Colony in the Northern parts of Virginia; Do by these Presents, solemnly and mutually, in the presence of God and one another, Covenant and Combine our selves together into a Civil Body Politick, for our better ordering and preservation, and furtherance of the ends aforesaid: and by virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Officers, from time to time, as shall be thought most meet and convenient for the general good of the Colony; unto which we promise all due submission and obedience. In witness whereof we have hereunto subscribed our Names at Cape Cod, the eleventh of November, in the Reign of our Soveraign Lord King James, of England, France and Ireland the eighteenth, and of Scotland the fifty fourth, Anno Dom. 1620.

John Carver,	Samuel Fuller,	Edward Tilly,
William Bradford	Christopher Martin,	John Tilly,
Edward Winslow,	William Mullins,	Francis Cooke,
William Brewster,	William White,	Thomas Rogers,
Isaac Allerton,	Richard Warren,	Thomas Tinker,
Myles Standish,	John Howland,	John Ridgdale,
John Alden,	Steven Hopkins,	Edward Fuller,
John Turner,	Digery Priest,	Richard Clark,
Francis Eaton,	Thomas Williams,	Richard Gardiner,
James Chilton,	Gilbert Winslow,	John Allerton,
John Craxton,	Edmund Margesson,	Thomas English,
John Billington,	Peter Brown	Edward Doten,
Joses Fletcher,	Richard Britteridge,	Edward Liester.
John Goodman,	George Soule,

4

[Plymouth Oath of Allegiance and Fidelity]

Text taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 383. Text is complete except for the ellipsis inserted by Evans.

1625

The Oath of Supremacy, begun by Henry viii to break the power of the Roman Catholic Church, and the Oath of Allegiance, begun by James i in 1605, after the Gunpowder Plot, were both required by Charles i, who reigned from 1625 to 1649. The latter oath did not refer to the king as the head of the church and thus was more acceptable to the Puritans. The Charter of Massachusetts Bay gave the company liberty to admit new members on its own terms. The colony at Plymouth, however, was not, strictly speaking, a colony because it was outside of Massachusetts Bay territory and lacked its own charter. Plymouth took advantage of its position to avoid both the Oath of Supremacy and the Oath of Allegiance by writing its own oath, which did not mention the king but instead created allegiance primarily to the colony. In the absence of a document that explicitly created a polity, such as the Mayflower Compact, an oath such as this one became the covenantal basis for a “civil body politick,” as the Pilgrims put it, and effectively served as both a founding document and a means of naturalizing later arrivals to the colony. Here, as in other similar documents (9, 15, and 16, for example), we find an efficient use of a religious form to implicitly create a civil society, establish and underwrite its legitimacy, define citizenship, provide a means for adding new citizens later, and define a police power, while enunciating a political theory based on popular consent, political equality, and loyalty to the common good of the citizenry.

form of oath for all inhabitants

You shall sweare by the name of the great God ... & earth & in his holy fear, & presence that you shall not speake, or doe, devise, or advise, anything or things, acte or acts, directly, or indirectly, By land, or water, that doth, shall, or may, tend to the destruction or overthrowe of this present plantation, Colonie, or Corporation of this towne Plimouth in New England.

Neither shall you suffer the same to be spoken, or done, but shall hinder & opposse the same, by all due means you can.

You shall not enter into any league, treaty, Confederace or combination, with any, within the said Colonie or without the same that shall plote, or contrive any thing to the hurte & ruine of the growth, and good of the said plantation.

You shall not consente to any such confederation, nor conceale any known unto you certainly, or by conje but shall forthwith manifest & make knowne by same, to the Governours of this said towne for the time being.

And this you promise & swear, simply & truly, & faithfully to performe as a true christian [you hope for help from God, the God of truth & punisher of falshoode].1

form of the oath given the governor and council at every election

You shall swear, according to that wisdom, and measure of discerning given unto you; faithfully, equally & indifrently without respect of persons; to administer Justice, in all causes coming before you. And shall labor, to advance, & furder the good of this Colony, & plantation, to the utmost of your power; and oppose any thing that may hinder the same. So help you God.

5

[The Salem Covenant of 1629]

Complete text and spelling taken from Williston Walker, The Creeds and Platforms of Congregationalism (Boston: The Pilgrim Press, 1960), 197.

Probably the briefest covenant in American history, the Salem document nevertheless presumed that whoever owned it was in total agreement with the Puritan-Calvinistic arm of the English established church. Salem, like many other New England settlements, was initially founded as a popular theocracy—government rested in the hands of church members. Those who did not belong to the settlement’s approved church, originally a group few in number, did not have rights of citizenship. An oath such as this one made one who took it simultaneously a member of the church and a citizen of the polity. Prospective members were subjected to a careful examination as to their knowledge, experience of grace, and godly conversation. Within a few years, as the percentage of nonchurch members grew, conflict within the colony forced the Salem community to draw up the Enlarged Covenant of 1636, which included specific articles encouraging harmony and fellowship (see The Enlarged Salem Covenant [18]). As the number of churched citizens faded into a minority, the form of a church covenant was retained, but the substance of the covenant shifted to become purely political.

We Covenant with the Lord and one with an other; and doe bynd our selves in the presence of God, to walke together in all his waies, according as he is pleased to reveale himselfe unto us in his Blessed word of truth.

6

[Agreement of the Massachusetts Bay Company at Cambridge, England]

The complete text, with the original spelling, is taken from E. S. Morgan, ed., The Founding of Massachusetts: The Historians and Their Sources (Indianapolis: The Bobbs-Merrill Company, 1964), 183–84.

August 26, 1629

Although not written on American shores, the Agreement at Cambridge was written not by any English authorities but by the colonists themselves before embarking. It stands, therefore, in the same category as the Mayflower Compact, which some historians believe was also composed in England before departure and only brought out for signing before debarking in America. The signatures affixed to the following document were put there in England, however.

The true coppie of the Agreement of Cambridge, August 26. 1629.

Upon due consideracion of the state of the plantacion now in hand for New England, wherein wee (whose names are hereunto subscribed) have ingaged ourselves: and having weighed the greatnes of the worke in regard of the consequences, Gods glory and the churches good: As also in regard of the difficultyes and discourgements which in all probabilityes must be forcast upon the prosecucion of this businesse: Considering withall that this whole adventure growes upon the joynt confidence we have in each others fidelity and resolucion herein, so as no man of us would have adventured it without assurance of the rest: Now for the better encourragement of ourselves and others that shall joyne with us in this action, and to the end that every man may without scruple dispose of his estate and afayres as may best fitt his preparacion for this voyage, It is fully and faithfully agreed amongst us, and every of us doth hereby freely and sincerely promise and bynd himselfe in the word of a Christian and in the presence of God who is the searcher of all hearts, that we will so really endevour the prosecucion of his worke, as by Gods assistaunce we will be ready in our persons, and with such of our severall familyes as are to go with us and such provisions as we are able conveniently to furnish ourselves withall, to embarke for the said plantacion by the first of march next, at such port or ports of this land as shall be agreed upon by the Company, to the end to passe the Seas (under Gods protection) to inhabite and continue in New England. Provided alwayes that before the last of September next the whole governement together with the Patent for the said plantacion bee first by an order of Court legally transferred and established to remayne with us and others which shall inhabite upon the said plantacion. And provided also that if any shall be hindered by such just and inevitable Lett1 or other cause to be allowed by 3 parts of foure of these whose names are hereunto subscribed, then such persons for such tymes and during such letts to be dischardged of this bond. And we do further promise every one for himselfe that shall fayle to be ready through his owne default by the day appointed, to pay for every dayes defalt the summe of 3 li2 to the use of the rest of the Company who shall be ready by the same day and tyme.

This was done by order of Court the 29th day of August. 1629.

rich: saltonstall
tho: dudley
william vassall
nich: west
isaack johnson
john humfrey
tho: sharp
increase nowell
john winthrop
will: pinchon
kellam browne
william colbron

7

[The Watertown Covenant of July 30, 1630]

Complete text, with original spelling, taken from Cotton Mather, Magnalia Christi Americana, bk. 3 (London, 1702), 83. For historical context one might consult Champlin Burrage, The Church Covenant Idea: Its Origin and Development (Philadelphia: American Baptist Publication Society, 1904).

Strictly speaking the Watertown Covenant is a church covenant rather than a political one and was the first collective document made by the Watertown colonists. Those signing it understood the document to be establishing a church-state. Comparison with the Mayflower Compact illustrates how little difference was needed to make a church covenant a true political compact, and, as later compacts illustrate, how the move from church covenant to true political compact was both logical and straightforward.

July 30, 1630

We whose Names are hereto subscribed, having through God’s Mercy escaped out of Pollutions of the World, and been taken into the Society of his People, with all Thankfulness do hereby both with Heart and Hand acknowledge, That his Gracious Goodness, and Fatherly Care, towards us: And for further and more full Declaration thereof, to the present and future Ages, have undertaken (for the promoting of his Glory and the Churches Good, and the Honour of our Blessed Jesus, in our more full and free subjecting of our selves and ours, under his Gracious Government, in the Practice of, and Obedience unto all his Holy Ordinances and Orders, which he hath pleased to prescribe and impose upon us) a long and hazardous Voyage from East to West, from Old England in Europe, to New England in America that we may walk before him, and serve him, without Fear in Holiness and Righteousness, all the Days of our Lives: And being safely arrived here, and thus far onwards peaceably preserved by his special Providence, that we bring forth our Intentions into Actions, and perfect our Resolutions, in the Beginnings of some Just and Meet Executions; We have separated the Day above written from all other Services, and Dedicated it wholly to the Lord in Divine Employments, for a Day of Afflicting our Souls, and humbling our selves before the Lord, to seek him, and at his Hands, a Way to walk in, by Fasting and Prayer, that we might know what was Good in his Sight: And the Lord was intreated of us.

For in the End of the Day, after the finishing of our Publick Duties, we do all, before we depart, solemnly and with all our Hearts, personally, Man by Man for our selves and others (charging them before Christ and his Elect Angels, even them that are not here with us this Day, or are yet unborn, That they keep the Promise unblameably and faithfully unto the coming of our Lord Jesus) Promise, and enter into a sure Covenant with the Lord our God, and before him with one another, by Oath and serious Protestation made, to Renounce all Idolatry and Superstition, Will-Worship, all Humane Traditions and Inventions whatsoever, in the Worship of God; and forsaking all Evil Ways, do give ourselves wholly unto the Lord Jesus, to do him faithful Service, observing and keeping all his Statutes, Commands, and Ordinances, in all Matters concerning our Reformation; his Worship, Administrations, Ministry, and Government; and in the Carriage of our selves among our selves, and one another towards another, as he hath prescribed in his Holy Word. Further swearing to cleave unto that alone, and the true Sense and meaning thereof to the utmost of our Power, as unto the most clear Light and infallible Rule, and All-sufficient Canon, in all things that concern us in this our Way. In Witness of all, we do ex Animo, and in the presence of God, hereto set our Names, or Marks, in the Day and Year above written.

8

[Massachusetts Election Agreement]

Taken from E. S. Morgan, ed., The Founding of Massachusetts: The Historians and Their Sources (Indianapolis: The Bobbs-Merrill Company, 1964), 406. The spelling is Morgan’s.

May 18, 1631

Although elections had been held in a number of colonies prior to this date, the Massachusetts Election Agreement is probably the oldest formal colonial provision defining an election process. The “commons” referred to here included all freemen, as clarified by an agreement on May 9, 1632. A “freeman” was one who held town privileges, one of which was the right to live in that town. A “freeholder,” on the other hand, was a freeman who owned a certain amount of land, usually forty or fifty acres. The use of “freeman,” therefore, essentially included all adult males in elections, without any property holding requirement, and established popular sovereignty, representation, political equality, and majority rule.

For explanation of an order made the last general court, held the 19th of October last, it was ordered now, with full consent of all the commons then present, that once in every year, at least, a general court shall be held, at which court it shall be lawful for the commons to propound any person or persons whom they shall desire to be chosen assistants, and if it be doubtful whether it be the greater part of the commons or not, it shall be put to the poll. The like course to be held when they, the said commons, shall see cause for any defect or misbehavior to remove any one or more of the assistants. And to the end the body of the commons may be preserved of honest and good men, it was likewise ordered and agreed that for time to come no man shall be admitted to the freedom of this body politic but such as are members of some of the churches within the limits of the same.

9

The Oath of a Freeman, or of a Man to Be Made Free

The text is taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 389. The spelling is the original, and the text is complete.

1631

The law in the Massachusetts Bay Colony that all freemen must be church members was modified in 1632 so that no civil magistrate could be an elder in the church. To give force to this new law an Oath of Freeman was developed. Without the oath, those inhabitants not members of a church would not be bound by the church covenants, and thus not be bound to the colony. In 1634 it was replaced by a newer oath, which took into account the creation of the Massachusetts Legislature in May of 1634 [14]. The replacement oath is reproduced as The Oath of a Freeman, 1634 [15].

The Oath of a Freeman, or a Man to be Made Free

I, A.B.&c. being, by the Almighties most wise disposicon, become a membr of this body, consisting of the Gounr, Assistants, & a comnlty of the Mattachusets in Newe England, doe, freely & sincerely acknowledge that I am iustly and lawfully subject to the goumt of the same, & doe accordingly submitt my pson & estate to be ptected, ordered, & gouned by the lawes & constitucons thereof, & doe faithfully pmise to be from time to time obedient & conformeable thervnto, & to the authie of the said Gounr & Assistnts & their successrs, & to all such lawes, orders, sentences, & decrees as shalbe lawfully made & published by them or their successors; and I will alwaies indeavr (as in dutie I am bound) to advance the peace & wellfaire of this bodie or comonwealth to my vtmost skill & abilitie; & will, to my best power & meanes, seeke to devert & prevent whatsoeuer may tend to the ruyne or damage thereof, or of any the said Gounr, Deputy Gounr, or Assistants, or any of them, or their siccessrs, and will giue speedy notice to them, or some of them, of any sedicon, violence, treachery, or other hurt or ciuil which I shall knowe, heare, or vehemtly suspecte to be plotted or intended against the comonwealth, or the said goumt established; and I will not att any time suffer or giue consent to any counsell or attempt that shalbe offered giuen, or attempted for the impeachmt of the said goumt, or makeing any change or alteracon of the same, contrary to the lawes & ordinances thereof, but shall doe my vtmost endeavr to discover, oppose, & hinder, all & euy such counsell & attempts. Soe helpe me God.

10

[The Massachusetts Agreement on the Legislature]

Text taken from N. B. Shurtleff, ed., Massachusetts Colonial Records: Vol. i, Records of the Governor and Company of the Massachusetts Bay Colony in New England, 1628–1686 (Boston, 1853–54), 95–96. For an introductory discussion on this and other colonial documents concerning representation, see Michael Kammen, Deputyes & Libertyes: The Origins of Representative Government in Colonial America (New York: Alfred A. Knopf, 1969).

May 9, 1632

The first formal specification of Massachusetts political institutions, this ordinance, passed at a meeting of the General Court, ratifies the existence of the body passing it. Although the document is brief, a careful reading reveals that the basics of a government are established, which makes it a protoconstitution. Note, however, that the colony already has a functioning legislature, which represents an earlier assembly of the people. In this respect it is typical of many early foundation documents in that the legal founding follows the de facto operation of institutions.

A General Court, holden att Boston, May 9th, 1632

Present, The Governor,	Mr. Nowell,
Deputy Governor,	Mr. Pinchon,
Mr. Ludlowe,	S. Bradstreete

It was generally agreed upon by erection of hands, that the Governor, Deputy Governor, & Assistants should be chosen by the whole Court of Governor, Deputy Governor, Assistants, & freemen, and that the Governor shall alwaies be chosen out of the Assistants.

John Winthrop, Esq, was chosen to the place of Governor (by the generall consent of the whole Court, manefested by erection of hands) for this yeare nexte ensueing, & till a newe be chosen, & did, in presence of the Court, take an oath to his said place belonging ...

It was ordered, that there should be two of every plantation appointed to conferre with the Court about raiseing of a publique stocke ...

It was ordered, that the towne of Waterton shall have that priviledge and interest in the [fish] weir they have built upp the Charles Ryver, according as the Court hereafter shall thinke meete to confirme unto them.

11

[Cambridge Agreement]

The text is taken from The Records of the Town of Cambridge (Formerly Newtowne) Massachusetts, 1630–1703 (Cambridge: University Press, John Wilson and Son, 1901), 1: 4. The text is complete, with the original spelling.

December 24, 1632

Although the institution of the town meeting predates this document and had already been adopted in a number of colonies, this is the oldest surviving agreement establishing the practice. In most instances the town meeting seems to have been adopted without a formal declaration or even a conscious decision. Even here it seems to be not so much a matter of establishing a new procedure as it is a matter of reestablishing it in such a way that attendance can be legally enforced. The present document is notable for two reasons. First, it indicates the deep commitment to democratic processes prevalent in colonial New England. Second, it illustrates the difficulties inherent in democratic processes. A direct democracy that makes popular sovereignty operative on a regular basis places a great burden on citizens—a burden that citizens may tend to avoid without further “incentives.” The inadequacy of such incentives explains the rapid move to representation that the next document [12] exemplifies.

Ann Agreement made by A Gennerall Conf for a mounthly meeting.

Impr that every person under subscribed shall meet Every second Monday in Every mounth within the meetinghouse In the Afternoone within half an ouer after the ringing of the bell and that every one that make not his personall apearannce there and continews ther without leave from [ ] untill the meeting bee Ended shall for every default pay twelve pence and if it be not paid next meeting then to dobl it and soe untill it is paid.

12

[Dorchester Agreement]

The text is taken from the Dorchester Town Records: Fourth Report of the Record Commissioners (Boston: Rockwell and Churchill, City Printers, 1880), 3. The original spelling is retained. The text is complete as far as the records of the town are concerned—the gap is in the original.

October 8, 1633

In addition to establishing a town meeting, this is the oldest surviving record of a smaller representative body being selected to serve in place of the town meeting between meetings. The members of this smaller representative body were usually called town “selectmen.” Once these representative bodies were established, the fundamental political problem became one of controlling them so they effectively continued to reflect popular will.

An agreement made by the whole consent and vote of the plantation made Mooneday 8th of October, 1633.

Inprimus it is ordered that for the generall good and well ordering of the affayres of the Plantation their shall be every Mooneday before the Court by eight of the Clocke in the morning, and prsently upon the beating of the drum, a generall meeting of the inhabitants of the Plantation att the meeteing house, there to settle (and sett downe) such orders as may tend to the generall good as aforesayd; and every man to be bound thereby without gaynesaying or resistance. It is also agreed that there shall be twelve men selected out of the Company that may or the greatest p’t of them meete as aforesayd to determine as aforesayd, yet so as it is desired that the most of the Plantation will keepe the meeting constantly and all that are there although none of the Twelve shall have a free voyce as any of the 12 and that the greate[r] vote both of the 12 and the other shall be of force and efficasy as aforesayd. And it is likewise ordered that all things concluded as aforesayd shall stand in force and be obeyed vntill the next monethly meeteing and afterwardes if it be not contradicted and otherwise ordered upon the sayd monethly meete[ing] by the greatest p’te of those that are prsent as aforesayd. Moreover, because the Court in Winter in the vacansy of the sayd [ ] this said meeting to continue till the first Mooneday in the moneth (7) mr Johnson, mr Eltwid Pummery (mr. Richards), John Pearce, George Hull, William Phelps, Thom. ffoard.

13

[Cambridge Agreement on a Town Council]

The text is taken from The Records of the Town of Cambridge (Formerly Newtowne) Massachusetts, 1630–1703 (Cambridge: University Press, John Wilson and Son, 1901), 1: 11–12. Spelling is the original, and the text complete, except for the undecipherable words, which are indicated by brackets.

February 3, 1634

Signed only thirteen months after the town meeting was institutionalized in Cambridge, this document indicates the difficulty that early colonies had with involving the entire population in day-to-day decision making, despite their small size (see The Massachusetts Agreement on the Legislature [10]). The move from a more or less direct democracy to a representative system closely watched by a town meeting was typical for the early colonies. The degree to which the selectmen tended to dominate the political system usually depended on the degree of religious fervor informing the colony. The more tightly religious a colony was, the more likely that the selectmen came from an oligarchy associated with the church; the more heterogeneous and open the social system was, the more likely that the town meeting continued to control the selectmen.

At A Gennerall Meeting of the whole Towne Itt was Agreed uppon by a Joynt Consent that 7 menn should be Chossen to doe the whole bussines of the Towne and soe to Continew untell the ffirst Monday in November next and untell new be Chossen in their Room soe ther was then Elected and Chossen

John Haynes Esqr
mr Symon Bradstreet
John Taylcott
Wiliam Westwood
John White
William Wadsworth
James Olmstead Constable

Itt is further Ordered by a Joynt Consent that whatsoever these Townsmen thuse Chosse [ ] shall doe In the Compas of ther tyme shall stand in as full force as if the whole Town did the same either for makeing of new orders or altering of ould ones

ffurther it is ordered that whatsoever prson they shall send for to help anny bussness and he shall refus to Come they shall have power to lay a fine uppon him and to gather [ ]

ffurther it is ordered that they shall have [ ] to attent uppon them to Imploy aboute any bussines at a publik charge

ffurther Itt is ordered that they shall meet every first Monday in a Mounth at [ ] in the After Noone accordinge to the former [ ]

Also ther was Chossen to Joyne [ ] James Olmstead Constable John Beniamen Daniell Denison Andrew Warner William Spencer which 5 acordinge to the order of Cour[t] to survey the Towne lands and enter [ ] a book Apointed for that purpose

Itt is further ordered that these 5 men meet every first Monday in the Mounth at the Constables house in the [ ] at the Ringing of the bell

14

[Massachusetts Agreement on the Legislature]

From Shurtleff, Massachusetts Colonial Records: Vol. i, 116–20. An explanation of the events surrounding this document can be found in James K. Hosmer, ed., Winthrop’s Journal, vol. 1 (New York, 1908).

May 14, 1634

While not a true constitution like the Pilgrim Code of Law [20], to be written two years later, this document contains a number of recognizably constitutional elements. A General Court, or legislature, is formally established, its powers are outlined, the manner of electing its members is described, and the frequency of its meetings is stipulated. The legislature rests ultimately on popular sovereignty, but it appears that sovereignty is passed to the legislature, much as with its apparent model—the British Parliament, and the people retain only their electoral power as the residual of their sovereignty. Even without the indecipherable passages that marred the previous document, parts of the Massachusetts Agreement remain equally obscure. Together with earlier documents, this one illustrates clearly the gradual, fitful evolution of a viable constitutional form. It is of interest that the protoconstitution is written and adopted by the legislature already sitting.

Att a General Courte, holden at Boston, May 14th, 1634 [ ] it is agreed, that none but the Generall Court hath power to chuse and admitt freemen.

That none but the Generall Court hath power to make and establishe lawes, nor to elect and appoynt officers, as Governor, Deputy Governor, Assistants, Tresurer, Secretary, Captain, Leiuetenants, Ensignes, or any of like moment, or to remove such upon misdemeanor, as also to sett out the dutyes and powers of the said officers.

That none but the Generall Court hath power to rayse moneyes & taxes, & to dispose of lands, viz, to give & confirme proprietyes ...

It was further ordered, that the constable of every plantation shall, upon proces receaved from the Secretary, give tymely notice to the freemen of the plantation where hee dwells to send soe many of their said members as the process shall direct, to attend upon publique service; & it is agreed, that noe tryall shall passe upon any, for life or banishment, but by a jury soe summoned, or by the Generall Courte.

It is likewise ordered, that there shal be foure Generall Courts held yearely, to be summoned by the Governor, for the tyme being, & not to be dissolved without the consent of the major parte of the Court.

It was further ordered, that it shal be lawfull for the freemen of every plantation to chuse two or three of each towne before every Generall Court, to confere of & prepare such publique busines as by them shal be thought fitt to consider of at the nexte Generall Court, & that such persons as shal be hereafter soe deputed by the freemen of [the] severall plantations, to deale in their behalfe, in the publique affayres of the commonwealth, shall have the full power and voyces of all the said freemen, deryved to them for the makeing & establishing of Lawes, graunting of lands, etc., & to deale in all other affaires of the commonwealth wherein the freemen have to doe, the matter of election of magistrates & other officers onely excepted, wherein every freeman is to gyve his own voyce ...

There is leave graunted to the inhabitants of Newe Towne to seek out some convenient place for them, with promise that it shal be confirmed unto them, to which they may remove their habitations, or have as an addition to that which already they have, provided they doe not take it in any place to prejudice a plantation already setled ...

It was further ordered, that if any Assistant, or any man deputed by the freemen to deale in publique occasions of the commonwealthe, doe absent himselfe without leave in tyme of publique business, hee shal be fined att the discretion of the Court.

It is further ordered, that in all rates & publique charges, the townes shall have respect to levy every man according to his estate, & with consideration of all other his abilityes, whatsoever, & not according to the number of his persons.

15

The Oath of a Freeman

Text taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 394. The text is complete and unaltered.

May 14, 1634

This is the oath that replaced the original 1631 version [9], and a comparison of the two is instructive. The earlier version reads as though it creates a subject, whereas this oath, at least in part because it rests on individual consent freely given, reads as though it creates a citizen with political rights and duties. Movement from the mentality of a subject to that of a citizen is one major aspect of a diverging political culture that will by 1776 make Americans and Englishmen political strangers.

Att a Genrall Courte, holden att Boston, May 14, 1634.

It was agreed & ordered, that the former oath of ffreemen shalbe revoked, soe farr as it is dissonant from the oath of ffreemen herevnder written, & that those that receaved the former oath shall stand bound noe further thereby, to any intent or purpose, then this newe oath tyes those that nowe takes ye same.

the oath of a freeman

I. a.b., being, by Gods providence, an inhabitant & ffreeman within the jurisdiccon of this comonweale, doe freely acknowledge my selfe to be subiect to the govermt thereof, & therefore doe heere sweare, by the greate & dreadfull name of the eurlyving God, that I wilbe true & faithfull to the same, & will accordingly yeilde assistance & support therevnto, with my pson & estate, as in equity I am bound, & will also truely indeavr to mainetaine & preserue all the libertyes & previlidges thereof, submitting my selfe to the wholesome lawes & orders made & established by the same; and furthr, that I will not plott nor practise any evill aginst it, nor consent to any that shall soe doe, but will timely discovery & reveale the same to lawfull aucthority nowe here established, for the speedy preventing thereof. Moreouer, I doe solemnly binde myselfe in the sight of God, that when I shalbe called to giue my voice touching any such matter of this state, wherein ffreemen are to deale I will giue my vote & suffrage, as I shall iudge in myne owne conscience may best conduce & tend to the publique weale of the body, without respect of psons, or favr of any man. Soe helpe mee God in the Lord Jesus Christ.

Further, it is agreed that none but the Genall Court hath power to chuse and admitt freemen.

16

[Salem Oath for Residents]

Taken from Charles Evans, “Oaths of Allegiance in Colonial New England,” Proceedings of the American Antiquarian Society, n.s., 31 (April 13–October 19, 1921): 393–94. The text is complete and unaltered.

April 1, 1634

Although a part of the Massachusetts Bay Colony, Salem established its own town government early in its existence. About the time that the Massachusetts Bay Colony was evolving a more liberal oath, led by Cambridge (see the previous document), Salem was moving in a contrary direction and attempting to exert more careful control over its population. Part of this attempt took the form of requiring even those outside the franchise to take an oath of allegiance to the colony. The following document comprises that oath and should be compared with the Massachusetts Agreement on the Legislature [14].

At A Court holden att Boston, April 1th, 1634.

It was further ordered, that euy man of or above the age of twenty yeares, whoe hath bene or shall herefter be resident within this jurisdiccon by the space of six monethes, as an householder or soiorner, and not infranchised, shall take the oath herevnder written, before the Gounr, or Deputy Gounr, or some two of the nexte Assistants, whoe shall haue power to convent1 him for that purpose, and vpon his refuseall the second tyme, hee shalbe banished, except the Court shall see cause to giue him further respite.

the oath of residents

I doe heare sweare, and call God to witnes, that, being nowe an inhabitant within the lymitts of this juridiccon of the Massachusetts, I doe acknowledge myselfe lawfully subject to the aucthoritie and gouermt there established, and doe accordingly submitt my pson, family, and estate, to be ptected, ordered, & gouerned by the lawes & constitucons thereof, and doe faithfully pmise to be from time to time obedient and conformeable therevnto, and to the aucthoritie of the Gounr, & all other the magistrates there, and their successrs, and to all such lawes, orders, sentences, decrees, as nowe are or hereafter shalbe lawfully made, decreed, published by them or their successrs. And I will alwayes indeavr (as in duty I am bound) to advance the peace & wellfaire of this body pollitique, and I will (to my best power & meanes) seeke to devert & prevent whatsoeyer may tende to the ruine or damage thereof, or ye Gounr, or Assistants, or any of them or their successrs, and will giue speedy notice to them, or some of them, of any sedicon, violence, treacherie, or othr hurte or euill wch I shall knowe, heare, or vehemently suspect to be plotted or intended against them or any of them, or against the said Comon-wealth or goumt established. Soe helpe mee God.

17

[Watertown Agreement on Civil Officers]

Taken from Watertown Records: First Book, Town Proceedings (Watertown, Mass.: Press of Fred G. Barker, 1894), 1. Spelling is the original, and the text is complete.

August 23, 1634

Although at times the records of a colony may have such a richness of expression and content that one gets the impression these settlers did little else but write things down on paper, in most instances the earliest colonial records are quite sketchy. Typically, the first item in the records that survives to our time is brief and dates from a time after the political process was already well under way. The current document is exemplary in this regard. It quite clearly assumes the existence of a community with a functioning town meeting. Thus, while the community is trying to better organize itself, it already has in place a system of direct popular consent that seems not to require any explanation or justification. When reading these documents, it is useful to ask what their authors had to assume in order to write what they did.

August 23, 1634.

Agreed by the consent of the Freemen, that there shalbe Chosen three persons to be [ ] the ordering of the civill affaires in the Towne One of them to serve as Towne Clerk, and shall keep the Records and acts of the Towne. The three chosen are William Jennison, Briam Pembleton, John Eddie.

18

[The Enlarged Salem Covenant of 1636]

The complete text and spelling are taken from Williston Walker, The Creeds and Platforms of Congregationalism (Boston: The Pilgrim Press, 1960), 116–18.

The earlier covenant of 1629 (The Salem Covenant [5]) was apparently found to be inadequate. This “enlarged” version addresses the specific points of dissension that needed to be settled and thus provides a “window” into the colonists’ life as a people. Because Salem in 1636 was a theocracy, what appears here to be essentially religious in nature is also political. It would be a mistake to conclude that these theocracies lacked liberty. For one thing, virtually everyone in Salem was there by choice, and the grounding of that choice was the hope to live as a good Christian. Also, this document reflects the determined attempt to use nongovernmental means of social control. Put another way, to the extent such recovenantings as this one were successful in reining in antisocial behavior, the government did not need to intervene and thus did not intrude on personal liberty. One needs to remember, however, that in colonial America liberty was not grounded in individualism but on a community able to live according to laws based on the consent of its members.

Gather my Saints together unto me that have made a Covenant with me by sacrifyce. psa. 50:5:

Wee whose names are here under written, members of the present Church of Christ in Salem, having found by said experience how dangerous it is to sitt loose to the Covenant wee make with our God: and how apt wee are to wander into by pathes, even to the looseing of our first aimes in entring into church fellowship: Doe therefore solemnly in the presence of the Eternall God, both for our own comforts, and those which shall or maybe joyned unto us, renewe that Church Covenant we find this Church bound unto at theire first beginning, viz: That We Covenant with the Lord and one with another; and doe bynd our selves in the prsence of God, to walke together in all his waies, according as he is pleased to reveale himself unto us in his Blessed word of truth. And doe more explicitely in the name and feare of God, profess and protest to walke as followeth through the power and grace of our Lord Jesus.

1. first wee avowe the Lord to be our God, and our selves his people in the truth and simplicitie of our spirits.

2. Wee give our selves to the Lord Jesus Christ, and the word of his grace fore the teaching ruleing and sanctifyeing of us in matters of worship, and Conversation, resolveing to cleave to him alone for life and glorie; and oppose all contrarie wayes, cannons and constitutions of men in his worship.

3. We promise to walk with our brethren and sisters in this Congregation with all watchfullnes and tendernes, avoyding all jelousies, suspitions, backbyteings, censurings, provoakings, secrete risings of spirite against them; but in all offences to follow the rule of the Lord Jesus, and to beare and forbeare, give and forgive as he hath taught us.

4. In publick or in private, we will willingly doe nothing to the ofence of the Church but will be willing to take advise for our selves and ours as acasion shalbe presented.

5. Wee will not in the Congregation be forward eyther to shew our gifts or parts in speaking or scrupling, or there discover the fayling of oure brethren or sisters butt atend an orderly cale there unto; knowing how much the Lord may be dishonoured, and his Gospell in the profession of it, sleighted, by our distempers, and weaknesses in publyck.

6. Wee bynd our selves to studdy the advancement of the Gospell in all truth and peace, both in regard of those that are within, or without, noe way sleighting our sister Churches, but useing theire Counsell as need shalbe: nor laying a stumbling block before any, noe not the Indians, whose good we desire to promote, and soe to converse, as we may avoyd the verrye appearance of evill.

7. We hearbye promise to carre our selves in all lawfull obedience, to those that are over us, in Church of Commonweale, knowing how well pleasing it will be to the Lord, that they should have incouragement in theire places, by our not greiveing theyre spirites through our Irregularities.

8. Wee resolve to approve our selves to the Lord in our perticular calings, shunning ydlesness as the bane of any state, nor will we deale hardly, or oppressingly with any, wherein we are the Lord’s stewards.

9. alsoe promyseing to our best abilitie to teach our children and servants, the knowledg of God and his will, that they may serve him also; and all this, not by any strength of our owne, but by the Lord Christ, whose bloud we desire may sprinckle this our Covenant made in his name.

19

[Plymouth Agreement]

The text is taken from Harry M. Ward, Statism in Plymouth Colony (Port Washington, N.Y.: Kennikat Press, 1973), 17. His text is complete, and his spelling and marking are used.

November 15, 1636

One might compare this text with the second paragraph of the Pilgrim Code of Law [20] where a version of the Plymouth Agreement was inserted as part of the preface. It is interesting that the paragraph in the Pilgrim Code of Law where this agreement was inserted indicates that both the Mayflower Compact (Plymouth Combination) and the original charter from King Charles (the letters-patent) compose the legal background to what is here identified as the Plymouth Agreement of 1636. This efficient and powerful statement of political liberty should be laid between the Mayflower Compact and the Declaration of Independence (1776) for comparison. When we read the entire Declaration of Independence, its status as a later differentiation of the symbols found in the Plymouth Agreement becomes apparent, just as the Mayflower Compact obviously stands as a precursor.

We, the associates of New-Plymouth Coming hither as freeborn subjects of the State of England endowed with all and singular the privileges belonging to such being assembled; doe ordaine Constitute and enact that noe act imposition law or ordinance be made or imposed upon us at present, or to come but such as shall be imposed by Consent of the body of associates or their representatives legally assembled; which is according to the free liberties of England.

20

[Pilgrim Code of Law]

The original text of this document can be found in N. B. Shurtleff and David Pulsifer, eds., Records of the Colony of New Plymouth in New England: Vol. i, The Laws, 1623–1682 (Boston: The Press of William White, 1861), 6–12. The original is in a shorthand that is particularly tortuous even for the times in which it was written. The emended version of the text here is consistent with that found in W. Keith Kavenaugh, ed., Foundations of Colonial America: A Documentary History (New York: Chelsea House, 1973), 1: 247–51.

November 15, 1636

Much more than a code of law, this document lays out the fundamental values and political institutions of the community and is a candidate for the honor of being the first true written constitution in the modern world. It was revised in 1658 and then again in 1671. The text should be read carefully, in the context of earlier documents. On the one hand, the Pilgrim Code of Law reflects the attempt to recreate locally the English parliamentary form in a manner consistent with the provisions of its charter from the king. On the other hand, the quiet assumption of local popular sovereignty, reflected in an elected governor as well as in the inclusion of the Plymouth Agreement and the covenantal elements, is consistent with the evolving colonial political symbols going back to the Mayflower Compact. The blending of English and American forms will continue to characterize American constitutionalism. Of particular note, Plymouth Colony is by this time composed of several separate towns, so the document also establishes a federal system of government among those towns whereby each town continues to have its own assembly and officials at the same time there exists an elected colony-wide government as described here.

Whereas, at his Majesty’s court held the fourth and fifth of October in the twelfth year of the reign of our sovereign lord Charles, by the grace of God, King of England, Scotland, France, and Ireland, Defender of the Faith, etc., it was ordered that Major William Brewster, Major Ralph Smith, Major John Done, and John Jenny for the town of Plymouth, Jonathan Brewster and Christopher Wadsworth for Duxborough, and James Cudworth and Anthony Annable for Scittuate should be added to the governor and assistants as committees for the whole body of this commonweal, should meet together the 15th of November at Plymouth, above-mentioned, and there to peruse all the laws, orders, and constitutions of the plantations within this government that so those that are still fitting might be established, those that time has made unnecessary might be rejected, and others that were wanting might be prepared that so the next court they might be established.

Now being assembled according to the said order, and having read the combination made at Cape Cod the 11th of November 1620 in the year of the reign of our late sovereign lord King James of England, France, Ireland, the eighteenth, and of Scotland the fifty-fourth, as also our letters patents confirmed by the honorable council, his said Majesty established and granted the 13th of January 1629 in the fifth year of the reign of our sovereign lord King Charles, and finding that, as freeborn subjects of the state of England, we hither came endowed with all and singular the privileges belonging to such, in the first place we think good that it be established for an act that, according to the ... and due privileges of the subject aforesaid, no imposition, law, or ordinance be made or imposed upon us by ourselves or others at present or to come but such as shall be made or imposed by consent, according to the free liberties of the state and kingdom of England and no otherwise.

That whereas, before expressed, we find a solemn and binding combination as also letters patent derivatory from his Majesty of England, our dread sovereign, for the ordering of a body politic within the several limits of this patent, viz., from Cowahasset to the utmost bounds of Puckanokick westward, and all that tract of land southward to the southern ocean, with all and singular lands, rivers, havens, waters, creeks, ports, fishing, fowlings, etc., by virtue whereof we ordain, institute, and appoint the first Tuesday in March every year for the election of such officers as shall be thought meet for the guiding and government of this corporation.

This is altered afterwards to the first Tuesday in June yearly by a general court.

That at the day and time appointed a governor and seven assistants be chosen to rule and govern the said plantations within the said limits for one whole year and no more; and this election to be made only by the freemen according to the former custom. And that then also constables for each part and other inferior officers be also chosen.

That in every election some one of the assistants, or some other sufficient person, be chosen treasurer for the year present, whose place it shall be to receive in whatsoever sum or sums shall appertain to the royalty of the place, either coming in by way of fine, amercement, or otherwise, and shall improve the same for the public benefit of this corporation by order of the government; as also to give a just account thereof to the ensuing treasurer and to the governor whenever he shall demand it, or the court when they appoint.

That a clerk of the court also be chosen for the year.

That also one be chosen to the office of coroner to be executed as near as may be to the laws and practice of the kingdom of England, and to continue one year.

the office of the governor

The office of the governor for the time being consists in the execution of such laws and ordinances as are or shall be made and established for the good of this corporation according to the several bounds and limits thereof; viz., in calling together or advising with the assistants or council of the said corporation upon such material occasions, or so seeming to him, as time shall bring forth; in which assembly, and all other, the governor to propound the occasion of the assembly and have a double voice therein. If the assistants judge the case too great to be decided by them and refer it to the general court, then the governor to summon a court by warning all the freemen aforesaid that are then extant, and there also to propound causes, and go before the assistants in the examination of particulars, and to propound such sentence as shall be determined. Further, it shall be lawful for him to arrest and committ to ward any offenders provided that with all convenient speed he shall bring the cause to hearing either of the assisstants or general court, according to the nature of the offense. Also, it shall be lawful for him to examine any suspicious persons for evil against the colony, as also to intercept or oppose such as he conceives may tend to the overthrow of the same. And that this office continue one whole year and no more without renewing by election.

the oath of the governor

You shall swear to be truly loyal; also, according to that measure of wisdom, understanding, and discerning given unto you faithfully, equally, and indifferently, without respect of persons, to administer justice in all cases coming before you as the governor of New Plymouth. You shall, in like manner, faithfully, duly, and truly execute the laws and ordinances of the same, and shall labor to advance and further the good of the colonies and plantations within the limits thereof to the utmost of your power and oppose any thing that shall seem to hinder the same. So help you God, who is the God of truth and punisher of falsehood.

the oath of a freeman

You shall be loyal. You shall not speak or do, devise or advise anything or things, act or acts, directly or indirectly, by land or water, that does, shall, or may tend to the destruction or overthrow of this present plantation, colony, or corporation of New Plymouth, neither shall you suffer the same to be spoken or done, but shall hinder, oppose, and discover the same to the governor and assistants of the said colony for the time being, or some one of them. You shall faithfully submit to such good and wholesome laws and ordinances as either are or shall be made for the ordering and government of the same, and shall endeavor to advance the growth and good of the several plantations within the limits of this corporation by all due means and courses. All which you promise and swear by the name of the great God of heaven and earth, simply, truly, and faithfully to perform as you hope for help from God, who is the God of truth and punisher of falsehood.

the office of an assistant

The office of an assistant for the time being consists in appearing at the governor’s summons, and in giving his best advice both in public court and private council with the governor for the good of the colonies within the limits of this government; not to disclose, but keep secret, such things as concern the public good and shall be thought meet to be concealed by the governor and council of assistants in having a special hand in the examination of public offenders and in contriving the affairs of the colony; to have a voice in the censuring of such offenders as shall not be brought to public court; that if the governor has occasion to be absent from the colony for a short time, by the governor, with consent of the rest of the assistants, he may be deputed to govern in the absence of the governor. Also, it shall be lawful for him to examine and commit to ward where any occasion arises where the governor is absent, provided the person be brought to further hearing with all convenient speed before the governor or the rest of the assistants. Also, it shall be lawful for him in his Majesty’s name to direct his warrants to any constable within the government, who ought faithfully to execute the same according to the nature and tenure thereof; and may bind over persons for matters of crime to answer at the next ensuing court of his Majesty after the fact committed or the person apprehended.

the oath of the assistants

You shall all swear to be truly loyal to our sovereign lord King Charles, his heirs and successors. Also, you shall faithfully, truly, and justly, according to that measure of discerning and discretion God has given you, be assistant to the governor for his present year for the execution of justice in all cases and towards all persons coming before you without partiality, according to the nature of the office of an assistant read to you. Moreover, you shall diligently, duly, and truly see that the laws and ordinances of this corporation be faithfully executed; and shall labor to advance the good of the several plantations within the limits thereof and oppose anything that shall hinder the same by all due means and courses. So help you God, who is the God of truth and punisher of falsehood.

the oath of any residing within the government

You shall be truly loyal to our sovereign lord King Charles, his heirs and successors. And whereas you make choice at present to reside within the government of New Plymouth, you shall not do, or cause to be done, any act or acts, directly or indirectly, by land or water, that shall or may tend to the destruction or overthrow of the whole or any of the several colonies within the said government that are or shall be orderly erected and established, but shall, contrariwise, hinder, oppose, and discover such intents and purposes as tend thereunto to the governor for the time being, or some one of the assistants with all convenient speed. You shall also submit to and obey such good and wholesome laws, ordinances, and officers as are or shall be established within the several limits thereof. So help you God, who is the God of truth and punisher of falsehood.

the oath of a constable

You shall swear to be truly loyal to our sovereign lord King Charles, his heirs and successors, which you shall faithfully serve in the office of a constable in the ward of ... for this present year according to that measure of wisdom understanding and discretion God has given you. In which time you shall diligently see that his Majesty’s peace commanded be not broken, but shall carry the person or persons offending before the governor of this corporation, or some one of his assistants, and there attend the hearing of the case and such order as shall be given you. You shall apprehend all suspicious persons and bring them before the said governor, or someone of his assistants, as aforesaid. You shall duly and truly serve such warrants and give such summons as shall be directed to you from the governor or assistants before mentioned, and shall labour to advance the peace and happiness of this corporation and oppose any thing that shall seem to annoy the same, by all due means and courses. So help you God, who is the God of truth and punishment of falsehood.

That the annual election of officers before expressed be at a general court held in his Majesty’s name of England. And that the governor in due season, by warrant directed to the several constables in his Majesty’s name aforesaid, give warning to the freemen to make their appearance; and that all other our courts, warrants, summons, or commands by way of justice be all done, directed, and made in the name of his Majesty of England aforesaid, our dread sovereign.

And for default in case of appearance at the election before mentioned, without due excuse, each delinquent to be amerced in three shillings sterling.

That if at any time any shall be elected to the office of governor and will not hold according to the election that then he be amerced in twenty pounds sterling fine.

That if any elected to the office of assistant refuse to hold according to election that then he be amerced in ten pounds sterling fine.

That in case one and the same person should be elected governor a second year, having held the place the foregoing year, it should be lawful for him to refuse without amercement unless they can prevail with him by entreaty.

That the government, viz., the general courts and courts of assistants, be held at Plymouth, and that the governor hold his dwelling there for the present year, except such inferior courts as for some matters shall be allowed by this court in other places of this government.

It is enacted that no presentment hereafter shall be exhibited to the grand inquest to be brought to the bench except it be done upon oath, and that it shall be lawful for any of the assistants to administer an oath in such case.

That the constable see the highways for man and beast be made and kept in convenient repair, and therefore be also appointed surveyor for the liberty he is chosen. That two surveyors in every constablerick be chosen each year to see that the highways be mended competently. And if it fall out that a way be wanting upon due complaint, that then the governor panel a jury and upon oath charge them to lay out such way as in conscience they find most beneficial for the commonweal and as little prejudice as may be to the particular.

That the laws and ordinances of the colony and for the government of the same be made only by the freemen of the corporation and no other; provided, that in such rates and taxations as are or shall be laid upon the whole they be without partiality so as the freemen be not spared for his freedom, but the levy be equal. And in case any man finds himself aggrieved that his complaint may be heard and redressed if there be due cause.

That an oath of allegiance to the King and fidelity to the government and the several colonies therein be taken of every person that shall live within or under the same.

That all trials, whether capital or between man and man, be tried by juries according to the precedents of the law of England, as near as may be.

That the governor and two assistants, at the least, shall, as occasion shall be offered in time convenient, determine in such trivial cases, viz., under forty shillings between man and man, as shall come before them: as also in offense of small nature shall determine, do, and execute as in wisdom God shall direct them.

21

[Dedham Covenant]

The text is taken from Kenneth A. Lockridge, A New England Town: The First Hundred Years (New York: W. W. Norton and Company, 1970), 4–7. Lockridge in turn drew his text from Early Records of the Town of Dedham: iii, Town and Selectmen, 1636–1659 (Dedham, Mass., 1886–1936), 2–3. Lockridge has modernized the spelling and provides only a partial text.

1636

Once again we see an attempt to minimize the need for governmental intrusion into community affairs. In this instance section 3 lays out a process of mediation to regulate social conflict. Whereas section 2 reflects determination to maintain a homogeneous community with respect to values, section 3 reflects a willingness to admit newcomers on an equal footing if they subscribe to the shared community values.

One: We whose names are here unto subscribed do, in the fear and reverence of our Almighty God, mutually and severally promise amongst ourselves and each other to profess and practice one truth according to that most perfect rule, the foundation whereof is everlasting love.

Two: That we shall by all means labor to keep off from us all such as are contrary minded, and receive only such unto us as may be probably of one heart with us, [and such] as that we either know or may well and truly be informed to walk in a peacable conversation with all meekness of spirit, [this] for the edification of each other in the knowledge and faith of the Lord Jesus, and the mutual encouragement unto all temporal comforts in all things, seeking the good of each other out of which may be derived true peace.

Three: That if at any time differences shall rise between parties of our said town, that then such party or parties shall presently refer all such differences unto some one, two, or three others of our said society to be fully accorded and determined without any further delay, if it possibly may be.

Four: That every man that ... shall have lots [and] in our said town shall pay his share in all such ... charges as shall be imposed on him ..., as also become freely subject unto all such orders and constitutions as shall be ... made now or at any time hereafter from this day forward, as well for loving and comfortable society in our said town as also for the prosperous and thriving condition of our said fellowship, especially respecting the fear of God, in which we desire to begin and continue whatsoever we shall by his loving favor take into hand.

Five: And for the better manifestation of our true resolution herein, every man so received into the town is to subscribe hereunto his name, thereby obliging both himself and his successors after him forever, as we have done.

22

[The Massachusetts Body of Liberties]

Complete text, with original spelling, taken from S. Whitmore, Bibliographical Sketch of the Laws of Massachusetts Colony (1889), 32–60.

December 1641

By 1641 the colony had existed long enough to require a systematic summary of the laws already enacted, which would also serve as a bulwark against arbitrary government. The General Court adopted a code that was proposed by Nathaniel Ward of Ipswitch. As a devout Puritan and a former lawyer in England, Ward drew heavily on the code of law proposed by John Cotton in 1636, which was based on Mosaic principles, and on the English common law. The result of this blend was the Massachusetts Body of Liberties, one of the most important and underappreciated documents in American history. The U.S. Bill of Rights a century and a half later would contain twenty-six specific rights in its ten provisions. At most, seven of these rights can be traced to Magna Carta, the English Petition of Right (1628), or the English Bill of Rights (1689). Seven others can be traced in their origin to the Massachusetts Body of Liberties, which also included the seven English-originated rights and four more rights that were first codified in Massachusetts prior to 1641. All but three of the remaining rights in the U.S. Bill of Rights would originate in other colonial documents.1 The Massachusetts Body of Liberties, however, did not make these rights explicitly inalienable in that they could be altered by the legislature—this differentiation remained for the future. Still, Massachusetts did not abandon these rights in its later codes, and the egalitarian nature of the Body of Liberties contrasted sharply with English common law in 1641, when different parts of the population had differing rights. The Massachusetts Body of Liberties is considered the first postmedieval, or modern, bill of rights.

A Coppie of the Liberties of the Massachusets Collonie in New England

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 proportion; 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 posteritie 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 observed throughout our Jurisdiction for ever.

1. 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 Coulor of law, or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country warranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any partecular case by the word of 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 Jurisdiction, whether Inhabitant 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 considered, 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 providenc 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 therefore.

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 Commonwealth or any of our freinds or confederats shall volentarily undertake. But onely upon such vindictive and defensive warres in our owne behalfe, or the behalfe of our freinds, and confederats as shall be enterprized by the Counsell and consent of a Court generall, or by Authority derived from the same.

8. No mans Cattell 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.

9. No monoplies shall be granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that for a short time.

10. All our lands and heritages shall be free from all finds and licences upon Alienations, and from all hariotts,2 wardships, Liveries,3 Primerseisens,4 yeare day and wast, Escheates,5 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 excommunicate or condemned shall have full power and libertie to make theire wills and testaments, and other lawfull alienations 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, Councell, or Towne meeting, and either by speech or writeing to move any lawful, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.

[13.] No man shall be rated here for any estaite or revenue he hath in England, or in any forreine parties till it be transported 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 Conveyances of lands, tenements, 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 fradulently conveyed.

16. 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 flowes within the presincts of the towne where they dwell, unlesse the freemen 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 other proprietie without there leave.

17. Every man of or within this Jurisdiction shall have free libertie, not with standing any Civill power to remove both himselfe, and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarie.

18. No mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle, or mainprise, 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 generall Court any miscariage shall be amongst the Assistants when they are by themselves that may deserve an Admonition or fine under 20 sh, it shall be examined and sentenced amongst themselves, 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.

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 briefly 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 not, 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 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 them to whome the trespasse is done, It shall be judged no trespasse, nor any damage given for it.

25. 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 errors or mistakes, If the person and cause be rightly understood 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 his 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.

27. If any plaintife 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 plaintife in all Actions brought in any Court shall have libertie to withdraw his Action, or to be nonsuited before the Jurie hath given in their verdict, in which case 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 plaintife and defendant by mutual consent to choose whether they will be tryed by the Bench 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 plaintife and defendant, 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 evidence is so obscure or defective 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 veredict, 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 differ at any time about their verdict that either of them can not proceed with peace of conscience the case shall be referred to the Generall Court, who shall take the question from both and determine it.

32. Every man shall have libertie to replevy his Cattell or goods impounded, distreined, seised, or extended, unless 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 his estaite, And if not his person may be arrested and imprisoned where he shall be kept at his owne charge, not the plaintife’s till satisfaction be made: unlesse the Court that had cognizance 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 Corne nor hay that is in the field 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 comes 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 complaine 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 plaintife hath willingly and witingly done wronge to the defendant in commenceing and prosecuting any action or complaint against him, They shall have power to impose upon him a proportionable fine to the use of the defendant, or accused person, for his false complaint or clamor.

38. Everie man shall have libertie to Record in the publique Rolles of any Court any Testimony give[n] upon oath in the same Court, or before two Assistants, or any Deede or evidence legally confirmed there to remaine in perpetuam rei memoriam, that is for perpetuall memoriall or evidence upon occasion.

39. In all Actions both reall 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 what so ever shall be of validitie, If it be gotten by Illegal violence, imprisonment, threatenings, 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 bayle, 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, unless his crime be very shamefull, and his course of life vitious and profligate.

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

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 fullie convicted by cleare and suffitient evidence to be guilty, After which if the cause be of that nature, That it is very apparent there be other conspiratours, 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 cruell.

47. No man shall be put to death without the testimony of two or three witnesses, or that which is equivalent there unto.

48. Every Inhabitant of the Countrie shall have free libertie to search and veewe any Rooles, Records, or Regesters of any Court or office except the Councell, And to have a transcript or exemplification thereof written examined, and signed by the hand of the officer of the office paying the appointed fees 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.

51. All Associates selected at any time to Assist the Assistants in Inferior Courts, shall be nominated by the Townes belonging to that Court, by orderly agreement amonge themselves.

52. Children, Idiots, Distracted persons, and all that are strangers, or new commers to our plantation, shall have such allowances and dispensations in any cause whether Criminall or other as religion and reason require.

53. The age of discretion of passing away of lands or such kinde of herediments, or for giveing of votes, verdicts or Sentence in any Civill Courts or causes, shall be one and twentie yeares.

54. When so ever anything is to be put to vote, any sentence to be pronounced, or any other matter to be proposed, or read in any Court or Assembly, If the president or moderator thereof shall refuse to performe it, the Major parte of the members of that Court or Assembly shall have power to appoint any other meete man of them to do it, And if there be just cause to punish him that should and would not.

55. In all suites or Actions in any Court, the plaintife shall have libertie to make all the titles and claims to that he sues for he can. And the Defendant shall have libertie to plead all the pleas he can in answere to them, and the Court shall judge according to the intire evidence of all.

56. If any man shall behave himselfe offensively at any Towne meeting, the rest of the freemen then present, shall have power to sentence him for his offence, So be it the mulct or penaltie exceed not twentie shilings.

57. When so ever any person shall come to any very suddaine untimely and unnaturall death, Some Assistant, or the Constables of that Towne shall 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 be helde for that Towne upon their oath.

liberties more peculiarlie concerning the free men.

58. Civill Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so 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, notwithstanding any Church relation, office, or interest.

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

61. 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 danger to this plantation or any member thereof, when any necessarietye 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 they please for the General Court, So be it they be free men, and have taken there oath of fealtie, and Inhabiting in this Jurisdiction.

63. No Governor, Deputie Governor, Assistant, Associate, or grand Jury man at any Court, nor any Deputie for the Generall 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 proceedings against delinquents in Criminall causes shall be briefly and destinctly entered in the Rolles of every Court by the Recorder thereof. That such actions be not afterwards brought againe to the vexation of any man.

65. No custome or prescription shall ever prevaile amongst us in any morall cause, our meaneing is maintaine anythinge that can be proved to bee morrallie sinfull by the word of god.

66. The Freemen of everie Towneship shall have power to make such by laws and constitutions as may concerne the wellfare of their Towne, provided they be not of a Criminall, but onely of a prudentiall 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 the Countrie. And if any Inhabitant shall neglect or refuse to observe them, they shall have power to levy the appointed penalties by distresse.

67. It is the constant libertie of the freemen of this plantation to choose yearly at the Court of Election out of the freemen all the Generall 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 officers we meane, our Governor, Deputie Governor, Assistants, Treasurer, Generall of our warres. And our Admiral at Sea, and such as are or hereafter may be of the like generall nature.

68. It is the libertie of the freemen to choose such deputies for the Generall Court out of themselves, either in their owne Townes or elsewhere as they judge fittest, And because we cannot foresee what varietie and weight of occasions 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 Countrie) shall not any time be stated or inacted, but from Court to Court, or at the most but for one yeare. that the Countrie may have an Annuall libertie to do in that case what is most behoofefull for the best welfaire thereof.

69. No Generall Court shall be desolved or adjourned without the consent of the Major parte thereof.

70. All Freemen called to give any advise, vote, verdict, or sentence in any Court, Counsell, or Civill Assembly, shall have full freedome to doe it according to their true Judgments and Consciences, So it be done orderly and inofensively for the manner.

71. The Governor shall have a casting voice whensoever an Equi vote shall fall out of the Court of Assistants, or generall assembly, So shall the presendent or moderator have in all Civill Courts or Assemblies.

72. The Governor and Deputie Governor Joyntly consenting or any three Assistants concurring in consent shall have power out of Court to reprive a condemned malefactour, till the next quarter or generall Court. The generall Court onely shall have power to pardon a condemned malefactor.

73. The Generall Court hath libertie and Authoritie to send out any member of the Comanwealth of what qualitie, condition or office whatsoever into forreine parts about any publique message or Negotiation. Provided the partie sent be acquainted with the affaire he goeth about, and be willing to undertake the service.

74. The freemen of every Towne or Towneship, shall have full power to choose yearly or for lesse time out of themselves a convenient number of fitt men to order the planting or prudential occasions of that Towne, according to Instructions given them in writeing, Provided nothing be done by them contrary to the publique laws and orders of the Countrie, provided also the number of such select persons be not above nine.

75. It is and shall be the libertie of any member or members of any Court, Councell or Civill Assembly in cases of makeing or executing any order or law, that properlie concerne religion, or any cause capitall or warres, or Subscription to any publique Articles or Remonstrance, in case they cannot in Judgement and conscience consent to that way the Major vote or suffrage goes, to make their contra Remonstrance or protestation in speech or writeing, and upon request to have their dissent recorded in the Rolles of that Court. So it be done Christianlie and respectively for the manner. And their dissent onely be entered without the reasons thereof, for the avoiding of tediousness.

76. When so ever any Jurie of trialls or Jurours are not cleare in their Judgments or consciences conserneing any cause wherein they are to give their verdict, They shall have libertie in open Court to advise with any man they thinke fitt to resolve or direct them, before they give in their verdict.

77. In all cases wherein any freeman is to give his vote, be it in point of Election, makeing constitutions and orders, or passing sentence in any case of Judicature or the like, if he cannot see reason to give it positively one way or an other, he shall have libertie to be silent, and not pressed to a determined vote.

78. The Generall or publique Treasure or any parte thereof shall never be exspended but by the appointment of a Generall Court, nor any Shire Treasure, but by the appointment of the freemen thereof, nor any Towne Treasurie but by freemen of that Towneship.

liberties of woemen

79. If any man at his death shall not leave his wife a competent portion of his estaite, upon just complaint made to the Generall Court she shall be relieved.

80. Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assault. If there be any just cause of correction complaint shall be made to Authoritie assembled in some Court, from which onely she shall receive it.

liberties of children

81. When Parents dye intestate, the Elder sonne shall have a doble portion of his whole estate reall and personall, unlesse the Generall Court upon just cause alleadged shall Judge otherwise.

82. When parents dye intestate, haveing noe heires males of their bodies their Daughters shall inherit as Copartners, unles the Generall Court upon just reason shall judge otherwise.

83. If any parents shall wilfullie and unreasonably deny any childe timely or convenient mariage, or shall exercise any unnaturall severitie towards them, Such children shall have free libertie to complain to Authoritie for redresse.

84. No Orphan dureing their minoritie which was not committed to tuition or service by the parents in their life time, shall afterwards be absolutely disposed of by any kindred, friend, Executor, Towneship, or Church, nor by themselves without the consent of some Court, wherein two Assistants at least shall be present.

liberties of servants

85. If any servants shall flee from the Tiranny and crueltie of their masters to the howse of any freeman of the same Towne, they shall be there protected and susteyned till due order be taken for their relife. Provided due notice thereof be speedily given to their masters from whom they fled. And the next Assistant or Constable where the partie flying is harboured.

86. No servant shall be put of for above a yeare to any other neither in the life of their master nor after their death by their Executors or Administrators unlesse it be by consent of Authoritie assembled in some Court, or two Assistants.

87. If any man smite out the eye or tooth of his man servant, or maid servant, or otherwise mayme or much disfigure him, unlesse it be by meere casualtie, he shall let them goe free from his service. And shall have such further recompense as the Court shall allow him.

88. Servants that have served diligentlie and faithfully to the benefitt of their maisters seaven yeares, shall not be sent away emptie. And if any have bene unfaithfull, negligent or unprofitable in their service, notwithstanding the good usage of their maisters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authoritie.

liberties of forreiners and strangers

89. If any people of other Nations professing the true Christian Religion shall flee to us from the Tiranny or oppression of their persecutors, or from famyne, warres, or the like necessary and compulsarie cause, They shall be entertayned and succoured amongst us, according to that power and prudence god shall give us.

90. If any ships or other vessels, be it freind or enemy, shall suffer shipwrack upon our Coast, there shall be no violence or wrong offered to their persons or goods. But their persons shall be harboured, and relieved, and their goods preserved in safety till Authoritie may be certified thereof, and shall take further order therein.

91. There shall never be any bond slaverie villinage or Captivitie amongst us, unles it be lawfull Captives taken in just warres, and such strangers as willingly belie themselves or are sold to us. And these shall have all the liberties and Christian usages which the law of god established in Israell concerning such persons doeth morally require. This exempts none from servitude who shall be Judged thereto by Authoritie.

off the bruite creature

92. No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for mans use.

93. If any man shall have occasion to leade or drive Cattel from place to place that is far of, So that they be weary, or hungry, or fall sick, or lambe, It shall be lawful to rest or refresh them, for a competent time, in any open place that is not Corne, meadow, or inclosed for some peculiar use.

94.

1. If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death. dut. 13.6.10, dut. 17.2.6, ex. 22.20

2. If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death. ex. 22.18, lev. 20.27, dut. 18.10

3. If any person shall Blaspheme the name of God, the father, Sonne, or Holie ghost, with direct expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death. lev. 24.15.16

4. If any person committ any wilfull murther, which is manslaughter, committed upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death. ex. 21.12, numb. 35.13.14, 30.31

5. If any person slayeth an other suddainely in his anger or Crueltie of passion, he shall be put to death. numb. 25.20.21, lev. 24.17

6. If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death. ex. 21.14

7. If any man or woman shall lye with any beast or brute creature by Carnall Copulation, They shall surely be put to death. And the beast shall be slaine and buried and not eaten. lev. 19.23

8. If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death. lev. 19.22

9. If any person committeth Adultery with a married or espoused wife, the Adulterer and Adulteresse shall surely be put to death. ex. 20.14

10. If any man stealeth a man or mankinde, he shall surely be put to death. ex. 21.16

11. If any man rise up by false witnes, wittingly and of purpose to take away any man’s life, he shall be put to death. dut. 19.16, 18. 19

12. If any man shall conspire and attempt any invation, insurrection, or publique rebellion against our commonwealth, or shall indeavour to surprize any Towne or Townes, fort or forts therein, or shall treacherously and perfediouslie attempt the alteration and subversion of our frame of politie or Government fundamentallie, he shall be put to death.

95. A declaration of the Liberties the Lord Jesus hath given to the Churches.

1. All the people of god within this Jurisdiction who are not in a church way, and be orthodox in Judgement, and not scandalous in life, shall have full libertie to gather themselves into a Church Estaite. Provided they doe it in a Christian way, with due observation of the rules of Christ revealed in his word.

2. Every Church hath full libertie to exercise all the ordinances of god, according to the rules of Scripture.

3. Every Church hath free libertie of Election and ordination of all their officers from time to time, provided they be able pious and orthodox.

4. Every Church hath free libertie of Admission, Recommendation, Dismission, and Expulsion, or deposall of their officers, and members, upon due cause, with free exercise of the Discipline and Censures of Christ according to the rules of his word.

5. No Injunctions are to be put upon any Church, Church Officers or member in point of Doctrine, worship or Discipline, whether for substance or cercumstance besides the Institutions of the lord.

6. Every Church of Christ hath freedome to celebrate dayes of fasting and prayer, and of thanksgiveing according to the word of god.

7. The Elders of Churches have free libertie to meete monthly, Quarterly, or otherwise, in convenient numbers and places, for conferences, and consultations about Christian and Church questions and occasions.

8. All Churches have libertie to deale with any of their members in a church way that are in the hand of Justice. So it be not to retard or hinder the course thereof.

9. Every Church hath libertie to deal with any magestrate, Deputie of Court or other officer what soe ever that is a member in a church way in case of apparent and just offence given in their places. so it be done with due observance and respect.

10. Wee allowe private meetings for edification in religion amongst Christians of all sortes of people. So it be without just offence both for number, time, place, and other cercumstances.

11. For the preventing and removeing of errour and offence that may grow and spread in any of the Churches in this Jurisdiction. And for the preserveing of trueith and peace in the several churches within them selves, and for the maintenance and exercise of brotherly communion, amongst all the churches in the Countrie, It is allowed and ratified, by the Authoritie of this Generall Court as a lawfull libertie of the Churches of Christ. That once in every month of the yeare (when the season will beare it) It shall be lawfull for the minesters and Elders, of the Churches neere adjoyneing together, with any other of the breetheren with the consent of the churches to assemble by course in each severall Church one after an other. To the intent after the preaching of the word by such a minister as shall be requested thereto by the Elders of the church where the Assembly is held, The rest of the day may be spent in publique Christian Conference about the discussing and resolveing of any such doubts and cases of conscience concerning matter of doctrine or worship or government of the church as shall be propounded by any of the Breetheren of that church, with leave also to any other Brother to propound his objections or answeres for further satisfaction according to the word of god. Provided that the whole action be guided and moderated by the Elders of the Church where the Assemblie is helde, or by such others as they shall appoint. And that no thing be concluded and imposed by way of Authoritie from one or more Churches upon an other, but onely by way of Brotherly conference and consultations. That the trueth may be searched out to the satisfying of every man’s Conscience in the sight of god according to his worde. And because such an Assembly and the worke their of can not be duely attended to if other lectures be held in the same weeke. It is therefore agreed with the consent of the Churches. That in that weeke when such an Assembly is held. All the lectures in all the neighbouring Churches for the weeke shall be forborne. That so the publique service of Christ in this more solemne Assembly may be transacted with greater deligence and attention.

96. How so ever these above specified rites, freedomes, Immunities, Authorities and priveledges, both Civill and Ecclesiasticall are expressed onely under the name and title of Liberties, and not in the exact forme of Laws, or Statutes, yet we do with one consent fullie Authorise, and earnestly intreate all that are and shall be in Authoritie to consider them as laws, and not to faile to inflict condigne and proportionable punishments upon every man impartiallie, that shall infringe or violate any of them.

97. Wee likewise give full power and libertie to any person that shall at any time be denyed or deprived of any of them, to commence and prosecute their suite, Complaint, or action against any man that shall so doe, in any Court that hath proper Cognizance or judicature thereof.

98. Lastly because our dutie and desire is to do nothing suddainlie which fundamentally concerne us, we decree that these rites and liberties, shall be Audably read and deliberately weighed at ever Generall Court that shall be held, within three yeares next insueing, And such of them as shall not be altered or repealed they shall stand so ratified, That no man shall infringe them without due punishment.

And if any General Court within these next thre yeares shall faile or forget to reade and consider them as abovesaid. The Governor and Deputie Governor for the time being, and every Assistant present at such Courts shall forfeite 20 sh. a man, and everie Deputie 10 sh. a man for each neglect, which shall be paid out of their proper estate, and not by the Country or the Townes which choose them. And when so ever there shall arise any question in any Court amonge the Assistants and Associates thereof about the explanation of these Rites and liberties, The Generall Court onely shall have power to interprett them.

23

[The Combination of the Inhabitants upon the Piscataqua River for Government]

Text taken from Francis N. Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States (Washington, D.C.: Government Printing Office, 1907), 2445. The text is complete, and the spelling is as found in Thorpe.

October 22, 1641

It is instructive to compare this document with The Mayflower Compact [3]. The two are surprisingly similar, although it is certain those writing this document did not consult the earlier one. The major difference is that here God is not called upon as a witness, and therefore it is not a covenant but a compact. Note also that the king, although prominently mentioned, does not sanction this agreement either. Instead, the force of this document rests entirely on the people directly, which constitutes de facto popular sovereignty. Popular sovereignty, however, is not yet a legal or formal constitutional principle, which explains why the document is considered only temporary until the king’s approval can be obtained. This is an example, like many other documents during the colonial era, in which political practice preceded political theory, although practice tended to result from the habits of mind engendered by earlier theoretical formulations. In the case of popular sovereignty, that earlier theoretical formulation was to be found in theology.

Whereas sundry Mischiefs and Inconveniences have befallen us, and more and greater may, in regard of want of Civill Government, his gracious Majesty haveing settled no order for us, to our knowledge, we whose names are underwritten, being Inhabitants upon the River of Pascataqua have voluntarily agreed to combine ourselves into a body Politick, that wee may the more comfortably enjoy the Benefit of his Majesties Laws, and doe hereby actually engage ourselves to submit to his Royall Majesties Laws, together with all such Laws as shall be concluded by a major part of the Freemen of our Society, in Case they be not repugnant to the laws of England, and administered in behalf of his Majestie. And this wee have mutually promised, and engaged to doe, an so to continue till his excellent Majestie shall give other orders concerning us. In witness whereof Wee have hereunto set our hands, October 22. In the 16 year of the Reigne of our Sovereigne Lord, Charles by the grace of God, King of Great Brittaine, France and Ireland, Defender of the Faith, &c.

Subscribed by Thomas Larkham,

Richard Waldrene,

William Waldrene, [with thirty-eight more]

24

[Massachusetts Bicameral Ordinance]

Complete text with original spelling taken from Shurtleff, Massachusetts Colonial Records: Vol. ii, 58–59. Discussion of the historical context, as well as examples of related documents, can be found in Michael Kammen, Deputyes & Libertyes: The Origins of Representative Government in Colonial America (New York: Alfred A. Knopf, 1969).

March 7, 1644

It was not unusual for colonial legislatures to have two parts that together constituted the whole. One part elected by the towns (here the deputies) would elect the rest of the legislature (here termed the magistrates). Because the two parts sat together as the legislature, there was only an implicit bicameralism. The magistrates sat continuously to advise the governor, and only periodically would the deputies join them to form a sitting legislature. The Connecticut legislature was structured this way (see the Fundamental Orders of Connecticut, 1639 [43]), as was the Massachusetts legislature until this ordinance was passed in 1644. Here Massachusetts takes the next step and moves to two separate bodies. Note that the move to bicameralism rests on certain unspecified “inconveniences” as well as on the emulation of unspecified models rather than on theoretical principles. Americans would later develop a substantial theoretical justification for bicameralism—enhancing the pursuit of the common good through a more deliberative process as well as the preservation of liberty through separation of powers—but initially bicameralism had a practical, prudential grounding.

Forasmuch as, after long experience, wee find divers inconveniences in the manner of our proceeding in Courts by magistrates & deputies siting together, & accounting it wisdome to follow the laudable practice of other states who have layd groundworks for government & order in the issuing of business of greatest & highest consequence,—

It is therefore ordered, first, that the magistrates may sit & act busines by themselves, by drawing up bills & orders which they shall see good in their wisdome, which haveing agreed upon, they may present them to the deputies to bee considered of, how good & wholesome such orders are for the country, & accordingly to give their assent or dissent, the deputies in like manner siting apart by themselves, & consulting about such orders & lawes as they in their discretion & experience shall find meete for common good, which agreed upon by them they may present to the magistrates, who, according to their wisdome, haveing seriously considered of them, may consent unto them or disalow them; & when any orders have passed the approbation of both magistrates & deputies, then such orders to bee ingrossed, & in the last day of the Court to bee read deliberately, & full assent to bee given; provided, also, that all matters of judicature which this Court shall take cognisance of shal bee issued in like manner.

25

[Massachusetts Ordinance on the Legislature]

The complete and original text is taken from Shurtleff, Massachusetts Colonial Records: Vol. ii, 167–68.

November 13, 1644

This is a comprehensive ordinance altering the size and mode of electing the legislature (see documents 10, 14, and 24 for the original formation of this legislature and intervening alterations). Note that even though this is an ordinance passed by the legislature, it must be approved by the electorate before it becomes law—“if the freeman shall accept therof [this ordinance] ... assenting or dissenting to this proposition.” Also note that the magistrates are elected by aggregating the votes of all the individual electors in the colony, while the deputies are elected by aggregating the votes for each town. In this way, the deputies represent their respective town while the magistrates represent the entire colony (see the Fundamental Orders of Connecticut, 1639 [43] for a similar distinction). In the U.S. Constitution the House of Representatives will be elected by localities and the Senate by statewide electorates. Although the theoretical grounding for the national practice will be different than for colonial legislatures, the institutional design was developed during the colonial era on practical grounds and justified later.

It is ordered, that the freemen of this jurisdiction shall meete in their severall townes within two months after the date hereof, to consider of whom they would nominate to be put to vote upon the day of election of newe magistrates, to the number of seaven, at which meeting every freeman shall have liberty to put in his vote for whom hee thinketh fit, all which votes shal be sealed up at that meeting, & sent by some one or two (whom they shall choose) to the sheire townes in each sheire, upon the last 5th day of the last month, at which meeting the said selectmen of every towne (by whom the votes being brought) shall not have power to open them, being sealed up, as before, but shall choose one or two from amongst themselves, by whom they shall send the aforesaid votes, being all sealed up in one paper, unto Boston, on the last third day of the first month, at which meeting there shal be two magistrates, before whom the proxies shal be opened & sorted; & those persons nominated for magistrates that have most votes, to the number of seaven, shal be they that shal be put to vote at the day of election; & that such as have most votes to be first nominated & put to election, that the freemen may know for whom to send in their proxies. The select men of every sheire, being at this meeting, shall take care to send to the aforesaid selectmen of every towne whom they be that are to be put to vote, which select men of every towne shall call a meeting of their townes, & acquaint them whom they are, that so the freemen may have time to consider of them, & send in their proxies accordingly; & no other shal be put to vote but such as are agreed upon, as before.

Whereas wee haveing found by experience that the charge of this Generall Court groweth very great & burthensome, in regard of the continuall increase of deputies sent unto the same, & further forseeing that as townes increase the number wil be still augmented, to the unsupportable burthen of this common wealth; as also it being thought a matter worthy the triall, dureing the standing of this order, to have the use of the negative vote forborne, both by magistrates & deputies, the premisses considered, it is declared by the Court, (if the freemen shall accept thereof,) that a tryall shal be made for one yeare ensuing the day of election next, by choyce of twenty deputies out of the severall shires to equall the number of magistrates chosen upon the day of election, the choyce of them to be thus divided: Suffolke chall choose sixe, Middlesex sixe, & Essex & Norfolk, being joyned in one, shall chose eight; and further, to the end the ablest gifted men may be made use of in so weighty a worke, it shal be at the liberty of the freemen to choose them, in their own sheires, or elsewhere, as they shall see best, the choyce to be after this manner: the freemen of each shire, meeting in their owne severall townes together within two months next following, shall there give in their severall votes for so many deputies as belong unto their sheire to choose, which votes shal be forthwith sealed up, & one or two chosen to carry them sealed to their sheire town the last 5th day of the last month following, where, in the presence of one magistrate, they shal be opened & conferd togeather, & so many as shall have the major vote of the sheire are chosen, not exceeding the number aforesaid; & such as are so chosen shall assemble themselves at the next Court of Election, presented under the hands of those which were sent from the townes to the sheire meetings aforesaid, the names & severall number of vote they there had, from which assembly those onely that had the greatest number of votes, to equall the number of magistrates then chosen, shal be confirmed, & the rest dismissed from the present service, from every sheire a like number, so neare as may be; the magistrates & deputies thus chosen shall sit togeather as a full & sufficient Generall Court, to act in al things by the major vote of the whole Court; and further, it is declared, that every towne shall fourthwith, namely, by the last of the next month, send in under the hands of their late deputies their vote, assenting or dissenting to this proposition, to the house of Mr. Nowell, who, together with one of the late deputies of Charlestowne, one of Cambridge, & one of Boston, shall have power to peruse the said votes, & if they shall find that the greater number of the townes shall agree that this may be propounded to them shall proceed, they shall thereupon fourthwith certify the Governor thereof, who shall thereupon give speedy notice to every towne that they may proceed according to this declaration; & whereas it may fall out that two or more sheires may make choyce of one & the same men, it is therefore provided, that Suffolk shall begin makeing knowne to Middlesex whom they have chosen, who the next 4th day following shall make their choyce, & send word to Essex & Norfolke whom Suffolk & themselves have chosen; then the next 4th day shall Essex and Norfolke make their choyce.

26

The Laws and Liberties of Massachusetts

Only about 30 percent of the original text is reproduced here. It is based on the copy of the 1648 edition in the Henry E. Huntington Library as reproduced in The Laws and Liberties of Massachusetts (Cambridge: Harvard University Press, 1929). The volume has an introduction by Max Farrand but no listed editor. The spelling of the original has been retained, except for replacing the use of the German s with the standard English form. The sections of the text here omitted contain more mundane provisions concerning such things as the price of cattle, viewers of pipe-staves, the salting of fish, and surveying.

1647

Essentially an organized codification of the laws passed in earlier years, with a number of new laws added, this organic act contains everything we might today expect in a constitution and indeed functioned as a constitution for the colony. The document has many notable features. Its preamble efficiently lays out the theoretical basis for government that underlies the document’s contents, and shows the manner and extent to which theological ideas and principles are involved. Note that creating a “city upon a hill” does not involve denigrating the governments of other nations. From the very beginning of the text there is an obvious concern for life, liberty, and property. In addition to laying out the basic institutions of government, The Laws and Liberties is an extended bill of rights that mixes very advanced features with some that are less so; for example, the more than two hundred crimes punishable by death under English common law at that time is reduced to sixteen.

The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets Collected Out of the Records of the General Court for the Several Years Wherein They Were Made and Established,

And now revised by the same Court and desposed into an Alphabetical order and published by the same Authoritie in the General Court held at Boston the fourteenth of the first month Anno 1647.

to our beloved brethren and neighbours

The Inhabitants of the Massachusets, the Governour, Assistants and Deputies assembled in the Generall Court of that Jurisdiction with grace and peace in our Lord Jesus Christ. So soon as God had set up Politicall Government among his people Israel hee gave them a body of lawes of judgement both in civil and criminal causes. These were brief and fundamental principles, yet withall so full and comprehensive as out of them clear deductions were to be drawne to all particular cases in future times. For a Common-wealth without lawes is like a Ship without rigging and steeradge. Nor is it sufficient to have principles or fundamentalls, but these are to be drawn out into so many of their deductions as the time and condition of that people may have use of. And it is very unsafe & injurious to the body of the people to put them to learn their duty and libertie from generall rules, nor is it enough to have lawes except they be also just. Therefore among other priviledges which the Lord bestowed upon his peculiar people, these he calls them specially to consider of, that God was neerer to them and their lawes were more righteous then other nations. God was sayd to be amongst them or neer to them because of his Ordnances established by himselfe, and their lawes righteous because himselfe was their Law-giver: yet in the comparison are implyed two things, first that other nations had something of Gods presence amongst them. Secondly that there was also somwhat of equitie in their lawes, for it pleased the Father (upon the Covenant of Redemption with his Son) to restore so much of his Image to lost man as whereby all nations are disposed to worship God, and to advance righteousnes: Which appears in that of the Apostle Rom. 1. 21. They knew God &c: and in the 2. 14. They did by nature the things conteined in the law of God. But the nations corrupting his ordinances (both of Religion, and Justice) God withdrew his presence from them proportionably whereby they were given up to abominable lusts Rom. 2.21. Wheras if they had walked according to that light & law of nature might have been preserved from such moral evils and might have injoyed a common blessing in all their natural and civil Ordinances: now, if it might have been so with the nations who were so much strangers to the Covenant of Grace, what advantage have they who have interest in this Covenant, and may injoye the special presence of God in the puritie and native simplicitie of all his Ordinances by which he is so neer to his owne people. This hath been no small priviledge, and advantage to us in New-England that our Churches, and civil State have been planted, and growne up (like two twinnes) together like that of Israel in the wilderness by which wee were put in minde (and had opportunitie put into our hands) not only to gather our Churches, and set up the Ordinances of Christ Jesus in them according to the Apostolick patterne by such light as the Lord graciously afforded us: but also withall to frame our civil Politie, and lawes according to the rules of his most holy word whereby each do help and strengthen other (the Churches the civil Authoritie, and the civil Authoritie the Churches) and so both prosper the better without such emulation, and contention for priviledges or priority as have proved the misery (if not ruine) of both in some other places.

For this end about nine years wee used the help of some of the Elders of our Churches to compose a modell of the Judiciall lawes of Moses with such other cases as might be referred to them, with intent to make sure of them in composing our lawes, but not to have them published as the lawes of this Jurisdiction: nor were they voted in Court. For that book intitled The Liberties &c: published about seven years since (which conteines also many lawes and orders both for civil & criminal causes, and is commonly [though without ground] reported to be our Fundamentalls that wee owne as established by Authoritie of this Court, and that after three years experience & generall approbation: and accordingly we have inserted them into this volume under the severall heads to which they belong yet not as fundamentalls, for divers of them have since been repealed, or altered, and more may justly be (at least) amended heerafter as further experience shall discover defects or inconveniences for Nihil simul natum et perfectum. The same must we lay of this present Volume, we have not published it as a perfect body of laws sufficient to carry on the Government established for future times, nor could it be expected that we should promise such a thing. For if it be no disparagement to the wisedome of that High Court of Parliament in England that in four hundred years they could not so compile their lawes, and regulate proceedings in Courts of justice &c: but that they had still new work to do of the same kinde almost every Parliament: there can be no just cause to blame a poor Colonie (being unfurnished of Lawyers and Statemen) that in eighteen years hath produced no more, nor better rules for a good, and setled Government then this Book holds forth: nor have you (our Bretheren and Neighbours) any cause, whether you look back upon our Native Country, or take your observation by other States, & Commonwealths in Europe) to complaine of such as you have imployed in this service; for the time which hath been spent in making laws, and repealing and altering them so often, nor of the charge which the Country hath been put to for those occasions, the Civilian gives you a satisfactorie reason of such continuall alterations additions &c: Crescit in Orbe dolus.

These Lawes which were made successively in divers former years, we have reduced under severall heads in an alphabetical method, that so they might the more readily ye be found, & that the divers lawes concerning one matter being placed together the scope and intent of the whole and of every of them might the more easily be apprehended: we must confesse we have not been so exact in placing every law under its most proper title as we might, and would have been: the reason was our hasty indeavour to satisfie your longing expectation, and frequent complaints for want of such a volume to be published in print: wherin (upon every occasion) you might readily see the rule which you ought to walke by. And in this (we hope) you will finde satisfastion, by the help of the references under the several heads, and the Table which we have added in the end. For such lawes and orders as are not of generall concernment we have not put them into this booke, but they remain still in force, and are to be seen in the booke of the Records of the Court, but all generall laws not heer inserted nor mentioned to be still of force are to be accounted repealed.

You have called us from amongst the rest of our Bretheren and given us power to make these lawes: we must now call upon you to see them executed: remembring that old & true proverb, The execution of the law is the life of the law. If one sort of you viz: non-Freemen should object that you had no hand in calling us to this worke, and therefore think yourselvs not bound to obedience &c. Wee answer that a subsequent, or implicit consent is of like force in this case, as an expresse precedent power: for in putting your persons and estates into the protection and way of subsistance held forth and exercised within this jurisdiction, you doe tacitly submit to this Government and to all the wholesome lawes thereof, and so is the common repute in all nations and that upon this Maxim.

If any of you meet with some law that seemes not to tend to your particular benefit, you must consider that lawes are made with respect to the whole people, and not to each particular person: and obedience to them must be yeilded with respect to the common welfare, not to thy private advantage, and as thou yeildest obedience to the law for comon good, but to thy disadvantage: so another must observe some other law for them good, though to his own damage; thus must we be content to bear one anothers burden and so fullfill the Law of Christ.

That distinction which is put between the Lawes of God and the laws of men, becomes a snare to many as it is mis-applyed in the ordering of their obedience to civil Authoritie; for when the Authoritie is of God and that in way of an Ordinance Rom. 13. 1. and when the administration of it is according to deductions, and rules gathered from the word of God, and the clear light of nature in civil nations, surely there is no humane law that tendeth to common good (according to those principles) but the same is mediately a law of God, and that in way of an Ordinance which all are to submit unto and that for conscience sake. Rom. 13. 5.

By order of the General Court.

increase nowel, secr.

The Book of the General Lauues and Libertyes Concerning &c:

forasmuch as the free fruition of such Liberties, Immunities, priviledges as humanitie, civilitie & christianity call for as due to everie man in his place, & proportion, without impeachment & infringement hath ever been, & ever will be the tranquility & stability of Churches & Comon-wealthes; & the deniall or deprivall thereof the disturbance, if not ruine of both:

It is therefore ordered by this Court, & Authority thereof, That no mans life shall be taken away; no mans honour or good name shall be stayned; no mans person shall be arrested, restrained, bannished, dismembred nor any wayes punished; no man shall be deprived of his wife or children; no mans goods or estate shall be taken away from him; nor any wayes indamaged under colour of law or countenance of Authoritie unles it be by the vertue or equity of some expresse law of the Country warranting the same established by a General Court & sufficiently published; or in case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembring or banishment according to that word to be judged by the General Court [1641]

abilitie.

All persons of the age of twenty one years, and of right understanding & memorie whether excommunicate, condemned or other, shall have full power and libertie to make their Wills & Testaments & other lawfull Alientations of their lands and estates. [1641]

actions.

All Action of debt, accounts, slaunder, and Actions of the case concerning debts and accounts shall henceforth be tryed where the Plantiffe pleaseth; so it be in the jurisdiction of that Court where the Plantiffe, or Defendant dwelleth: unles by consent under both their hands it appeare they would have the case tryed in any other Court. All other Actions shal be tryed within that jurisdiction where the cause of Action doth arise. [1642]

2. It is ordered by this Court & Authoritie thereof, That every person impleading another in any court of Assistants, or County court shal pay the sum of ten shillings before his case be entred, unless the court fee cause to admit any to sue in [1642]

3. It is ordered by the Authority aforesayd, That where the debt or damage recovered shall amount to ten pounds in every such case to pay five shillings more, and where it shall amount to twenty pounds or upward there to pay ten shillings more then the first ten shillings, which sayd additions shall be put to the Judgement and Execution to be levied by the Marshall and accounted for to the Treasurer. [1647]

4. In all actions brought to any court the Plantiffe shall have liberty to withdraw his action or to be non-suted before the Jurie have given in their verdict; in which case he shall alwayes pay full cost and charges to the Defendant, and may afterward renew his sute at another Court. [1641]

age.

It is ordered by this Court & the Authoritie thereof, that the age for passing away of lands, or such kinde of hereditaments, or for giving of votes, verdicts or sentences in any civil courts or causes, shall be twenty and one years: but in case of chusing of Guardions, fourteen years [1641 1647]

ana-baptists.

Forasmuch as experience hath plentifully & often proved that since the first arising of the Ana-baptists about a hundred years past they have been the Incendiaries of Common-Wealths & the Infectors of persons in main matters of Religion, & the Troublers of Churches in most places where they have been, & that they who have held the baptizing of Infants unlawful, have usually held other errors or heresies together therwith (though as hereticks used to doe they have concealed the same untill they espied a fit advantage and opportunity to vent them by way of question or scruple) and wheras divers of this kinde have since our coming into New-England appeared amongst our selvs, some whereof as others before them have denied the Ordinance of Magistracy, and the lawfulnes of making warre, others the lawfulnes of Magistrates, and their Inspection into any breach of the first Table: which opinions is conived at by us are like to be increased among us & so necessarily bring guilt up us, infection, & trouble to the Churches & hazzard to the whole Common-wealth:

It is therfore ordered by this Court & Authoritie therof, that if any person or persons within this Jurisdiction shall either openly condemn or oppose the baptizing of Infants, or goe about secretly to reduce others from the approbation or use thereof, or shall purposely depart the Congregation at the administration of that Ordinance; or shall deny the Ordinance of Magistracy, or their lawfull right or authoritie to make war, or to punish the outward breaches of the first Table, and shall appear to the Court wilfully and obstinately to continue therin, after due means of conviction, everie such person or persons shall be sentenced to Banishment. [1644] ...

arrests.

It is ordered and decreed by this Court & Authoritie thereof, That no mans person shall be arrested or imprisoned for any debt or fine if the law can finde any competent meanes of satisfaction otherwise from his estate. And if not this person may be arrested and imprisoned, where he shall be kept at his own charge, not the Plaintiffs, till satisfaction be made; unles the Court that had cognisance of the cause or some superiour Court shall otherwise determine: provided neverthelesse that no mans person shall be kept in prison for debt but when there appears some estate which he will not produce, to which end any Court or Commissioners authorized by the General Court may administer an oath to the partie or any others suspected to be privie in concealing his estate, but shall satisfie by service if the Creditor require it but shall not be solde to any but of the English nation. [1641: 1647] ...

bond-slavery.

It is ordered by this Court and authoritie thereof, that there shall never be any bond-slavery, villenage or captivitie amongst us; unless it be lawfull captives, taken in just warrs, and such strangers as willingly sell themselves, or are solde to us: and such shall have the libertyes and christian usages which the law of God established in Israell concerning such persons doth morally require, provided, this exempts none from servitude who shall be judged thereto by Authoritie. [1641] ...

capital lawes.

If any man after legal conviction shall have or worship any other God, but the lord god: he shall be put to death. Exod. 22. 20. Deut. 13.6. & 10. Deut. 17. 2. 6.

2. If any man or woman be a witch, that is, hath or consulteth with a familiar spirit, they shall be put to death. Exod. 22. 18. Levit. 20. 27. Deut. 18. 10. 11.

3. If any person within this Jurisdiction whether Christian or Pagan shall wittingly and willingly presume to blaspheme the holy Name of God, Father, Son or Holy-Ghost, with direct, expresse, presumptuous, or highhanded blasphemy, either by wilfull or obstinate denying the true God, or his Creation, or Government of the world: or shall curse God in like manner, or reproach the holy religion of God as if it were but a politick device to keep ignorant men in awe; or shal utter any other kinde of Blasphemy of the like nature & degree they shall be put to death. Levit. 24. 15. 16.

4. If any person shall commit any wilfull murther, which is Man slaughter, committed upon premeditate malice, hatred, or crueltie not in a mans necessary and just defence, nor by meer casualty against his will, he shall be put to death. Exod. 21. 12. 13. Numb. 35. 31.

5. If any person slayeth another suddenly in his anger, or cruelty of passion, he shall be put to death. Levit. 24. 17. Numb. 35. 20. 21.

6. If any person shall slay another through guile, either by poysoning, or other such devilish practice, he shall be put to death. Exod. 21. 14.

7. If any man or woman shall lye with any beast, or bruit creature, by carnall copulation; they shall surely be put to death: and the beast shall be slain, & buried, and not eaten. Lev. 20. 15. 16.

8. If any man lyeth with man-kinde as he lieth with a woman, both of them have committed abomination, they both shal surely be put to death: unles the one partie were forced (or be under fourteen years of age in which case he shall be seveerly punished) Levit. 20. 13.

9. If any person commit adulterie with a married or espoused wife; the Adulterer & Adulteresse shall surely be put to death. Lev. 20. 19. & 18. 20 Deu. 22. 23. 27.

10. If any man stealeth a man, or Man-kinde, he shall surely be put to death Exodus 21. 16.

11. If any man rise up by false-witnes wittingly and of purpose to take away any mans life: he shal be put to death. Deut. 19. 16. 18. 16.

12. If any man shall conspire, and attempt any Invasion, Insurrection, or publick Rebellion against our Common-Wealth: or shall indeavour to surprize any Town, or Townes, Fort, or Forts therin; or shall treacherously, & perfidiously attempt the Alteration and Subversion of our frame of Politie, or Government fundamentally he shall be put to death. Numb. 16. 2 Sam. 3. 2 Sam. 18. 2 Sam. 20.

13. If any child, or children, above sixteen years old, and of sufficient understanding, shall curse, or smite their natural father, or mother; he or they shall be put to death: unles it can be sufficiently testified that the Parents have been very unchristianly negligent in the education of such children; or so provoked them by extream, and cruel correction: that they have been forced therunto to preserve themselves from death or maiming. Exod. 21. 17. Lev. 20. 9. Exod 21. 15.

14. If a man have a stubborn or rebellious son, of sufficient years & uderstanding (viz) sixteen years of age, which will not obey the voice of his Father, or the voice of his Mother, and that when they have chastened him will not harken unto them: then shal his Father & Mother being his natural parents, lay hold on him, & bring him to the Magistrates assembled in Court & testifie unto them, that their Son is stubborn & rebellious & will not obey their voice and chastisement, but lives in sundry notorious crimes, such a son shal be put to death. Deut. 21. 20. 21.

15. If any man shal ravish any maid or single woman, comitting carnal copulation with her by force, against her own will; that is above the age of ten years he shal be punished either with death, or with some other greivous punishment according to circumstances as the Judges, or General court shal determin. [1641] ...

charges publick.

And it is further ordered that the Comissioners for the severall towns in everie Shire shall yearly upon the first fourth day of the week in the seventh month, assemble at their shire Town: & bring with them fairly written the just number of males listed as aforesaid, and the assessments of estates made in their several towns according to the rules & directions in this present order expressed, and the said Comissioners being so assembled shall duly and carefully examin all the said lists and assessments of the severall towns in that Shire, and shall correct & perfect the same according to the true intent of this order, as they or the major part of them shall determine, & the same so perfected they shal speedily transmit to the Treasurer under their hands or the hands of the major part of them and therupon the Treasurer shal give warrants to the Constables to collect & levie the same; so as the whole assessment both for persons & estates may be payd in unto the Treasurer before the twentith day of the ninth month, yearly, & everie one shal pay their rate to the Constable in the same town where it shal be assessed. Nor shall any land or estate be rated in any other town but where the same shal lye, is, or was improved to the owners, reputed owners or other propietors use or behoof if it be within this Jurisdiction. And if the Treasurer canot dispose of it there, the Constable shall send it to such place in Boston, or elswhere as the Treasurer shall appoint at the charge of the Countrie to be allowed the Constable upon his accout with the Treasurer. And for all peculiars viz: such places as are not yet layd within the bounds of any town the same lands with the persons and estates therupon shall be assessed by the rates of the town next unto it, the measure or estimation shall be by the distance of the Meeting houses ...

children.

For as much as the good education of children is of singular behoof and benefit to any Common-wealth; and wher as many parents & masters are too indulgent and negligent of their duty in that kinde. It is therefore ordered that the Selectmen of every town, in the severall precincts and quarters where they dwell, shall have a vigilant eye over their brethren & neighbours, to see, first that none of them shall suffer so much barbarism in any of their families as not to indeavour to teach by themselves or others, their children & apprentices so much learning as may inable them perfectly to read the english tongue, & knowledge of the Capital laws: upon penaltie of twentie shillings for each neglect therin. Also that all masters of families doe once a week (at the least) catechize their children and servants in the grounds & principles of Religion, & if any be unable to doe so much: that then at the least they procure such children or apprentices to learn some short orthodox catechism without book, that they may be able to answer unto the questions that shall be propounded to them out of such catechism by their parents or masters or any of the Selectmen when they shall call them to a tryall of what they have learned in this kinde. And further that all parents and masters do breed & bring up their children & apprentices in some honest lawful calling, labour or imploymet, either in husbandry, or some other trade profitable for themselves, and the Common-wealth if they will not or cannot train them up in learning to fit them for higher imployments. And if any of the Selectmen after admonition by them given such masters of families shal finde them still negligent of their dutie in the particulars aforementioned, wherby children and servants become rude, stubborn & unruly; the said Selectmen with the help of two Magistrates, or the next County court for that Shire, shall take such children or apprentices from them & place them with some masters for years (boyes till they come to twenty-one, and girls eighteen years of age compleat) which will more strictly look unto, and force them to submit unto government according to the rules of this order, if by fair means and former instructions they will not be drawn unto it. [1642]

2. Wheras sundry gentlemen of qualitie, and others oft times send over their children into this country unto some freinds heer, hoping at the least therby to prevent their extravagant and riotous courses, who not with standing by means of some unadvised and ill-affected persons, which give them credit, in expectation their freinds, either in favour to them or prevention of blemish to themselves, will discharge what ever is done that way, they are no lesse lavish & profuse heer to the great greif of their freinds, dishonour of God & reproach of the Countrie.

It is therefore ordered by this Court & authoritie thereof; That if any person after publication heerof shall any way give credit to any such youth, or other person under twentie one years of age, without order from such their freinds, heer, or elswhere, under their hands in writing they shall lose their debt whatever it be. And further if such youth or other person incur any penalty by such means and have not wherwith to pay, such person, or persons, as are occasions therof shall pay it as delinquents in the like case should doe. [1647]

3. If any parents shall wilfully, and unreasonably deny any childe timely or convenient marriage, or shall exercise any unnaturall severeitie towards them such children shal have libertie to complain to Authoritie for redresse in such cases. [1641]

4. No Orphan during their minority which was not committed to tuition, or service by their parents in their life time, shall afterward be absolutely disposed of by any without the consent of some Court wherin two Assistants (at least) shall be present, except in case of marriage, in which the approbation of the major part of the Selectmen, in that town or any one of the next Assistants shall be sufficient. And the minoritie of women in case of marriage shall be till sixteen years. [1646] ...

councill.

This Court considering how the weighty affairs of this Jurisdiction whether they concern this peculiarly or have reference to the rest of our confederated Colonies may be duly and speedily transacted in the vacancy of the Generall Court for the satisfaction of the Comissioners, in respect of the weighty and sodain occasions which may be then in hand, doth heerby expresse and declare, That the General Court ought to be called by the Governour, when the importancy of the busines doth require it, and that time and opportunitie will safely admit the same, and that all other necessary matters are to be ordered and dispatched by the major part of the Council of the Common-wealth, & therfore to that end letters signifying, breifly, the busines and the time and place of meeting for consultation ought to be sent unto the Assistants. Also it is heerby declared, that seven of the said Assistants meeting, the Governour or Deputy Governour being one is a sufficient Assembly to act, by impressing of soldiers or otherwise as need shall be. And in case of extream and urgent necessitie, when indeavours are reasonably used to call together the Assistants and the busines will not admit delay, then the acts of so many as do assemble are to be accounted, and are accounted valid, & sufficient. Also it is intended that the generall words aforementioned contein in them power to impresse & send forth soldiers, and all manner of victuails, vessels at sea, carriages and all other necessaries, and to send warrants to the Treasurer to pay for them. [1645]

courts.

For the better administration of justice and easing the Countrie of unnecessary charge and travells: it is ordered by this Court and Authoritie thereof;

That there shal be four Quarter Courts of Assistants yearly kept by the Governour, or Deputy Gover: and the rest of the Magistrates, the first of them on the first third day (viz: tuisday) in the fourth month called June: the second on the first third day of the seventh month: the third on the first third day of the tenth month: the fourth on the first third day of the first month called March. Also there be four County Courts held at Boston, by such of the Magistrates as shall reside in, or neer the same, viz: by any five, four or three of them, who shall have power to assemble together upo the last fift day of the eight, eleventh, second & fift months everie year, and there to hear & determin all civil causes & criminal, not extending to life, member or banishment according to the course of the court of Assistnts, & to summon Juries out of the neighbour towns, & the Marshall & other Officers shall give attendance there as at other Courts. And it is further ordered that there shall be four Quarter Courts kept yearly by the Magistrates of Essex, with such other persons of worth as shall fro time to time be apointed by the General Court; at the nomination of the towns in that Shire by orderly agreement among themselves, to be joyned in Commission with them so that with the Magistrates they be five in all and so that no Court be kept without one Magistrate at the least: and so any three of the Commissioners aforesaid may keep Court in the absence of the rest: yet none of all the Magistrates are excluded from any of these Courts who can, and please to attend the same. And the General Court to appoint from time to time, which of the said Magistrates shall specially belong to everie of the said Courts. Two of these Quarter Courts shall be kept at Salem, the other at Ipswitch. The first, the last third day of the week in the seventh month at Ipswitch. The second at Salem the last third day of the tenth month. The third at Ipswitch the last third day of the first month. The fourth the last third day of the fourth month at Salem. All and every which Courts shall be holden by the Magistrates of Salem and Ipswitch with the rest of that County or so many of them shall attend the same; but no Jurie men shal be warned from Ipswitch to Salem nor from Salem to Ipswitch. Also there shall be a Grand Jurie at either place, once a year. Which Courts shall have the same power in civil and criminal causes as the courts of Assistants have (at Boston) except tryalls for life, limb or banishment, which are wholy reserved unto the courts of Assistants. The like libertie for County courts and tryall of causes is graunted to the Shire town of Cambridge for the County of Midlesex, as Essex hath, to be holden by the Magistrates of Midlesex & Suffolk & such other men of worth as shall be nominated and chosen as aforesaid, one of which Courts shall be holden on the last third day of the eight month, and another on the last third day of the second month from year to year. And the like libertie for County Courts and tryall of causes is graunted to the County of Norfolk to be holden at Salisburie on the last third day of the second month; and another at Hampton on such day as the General Court shall appoint to be kept in each place from time to time. And if any shal finde himselfe greived with the sentence of any the said County courts he may appeal to the next court of Assistants. Provided he put in sufficient caution according to law. Lastly, it is ordered by the Authoritie aforesaid that all causes brought to the courts of Assistants by way of appeal, and other causes specially belonging to the said courts, shall be first determined from time to time: & that causes of divorce shall be tryed only in the said court of Assistants. [1635 1636 1639 1641 1642]

2. For the more speedy dispatch of all causes which shall concern Strangers, who cannot stay to attend the ordinary Courts of justice, It is ordered by this Court and Authoritie therof;

That the Governour or Deputy Governour with any two other Magistrates, or when the Governour or Deputy Governour cannot attend it, that any three Magistrates shall have power to hear and determin by a Jurie of twelve men, or otherwise as is used in other Courts, all causes civil and criminal triable in County Courts, which shall arise between such Strangers, or wherin any such Stranger shall be a partie. And all records of such proceedings shall be transmitted to the Records of the Court of Assistants, to be entered as tryalls in other Courts, all which shall be at the charge of the parties, as the Court shall determin, so as the Country be no wayes charged by such courts. [1639]

3. For the electing of our Governour, Deputy Governor, Assistants and other general Officers upon the day or dayes appointed by our Pattent to hold our yearly Court being the last fourth day of the week (viz: Wednesday) of every Easter Term; it is solemnly and unanimously decreed and established,

That henceforth the Freemen of this Jurisdiction shal either in person or by proxie without any Summons attend & consummate the Elections, at which time also they shal send their Deputies with full power to consult of and determin such matters as concern the welfare of this Common-wealth; from which General Court no Magistrates or Deputy shall depart or be discharged without the consent of the major part both of Magistrates and Deputies, during the first four dayes of the first Session therof, under the penaltie of one hundred pounds for everie such default on either part. And for the after Sessions, if any be, the Deputies for Dover are at libertie whether to atted or not. [1643]

4. Forasmuch as after long experience wee finde divers inconveniences in the manner of our proceeding in Courts by Magistrates and Deputies sitting together, and account it wisedome to follow the laudable practice of other States, who have layd ground works for government and order for issuing busines of greatest and highest consequence: it is therfore ordered by this Court and Authoritie therof,

That henceforth the Magistrates may sit and act busines by themselves, by drawing up Bills and Orders which they shall see good in their wisdom, which having agreed upon, they may present them to the Deputies to be considered of, how good and wholesom such orders are for the Countrie & accordingly to give their assent or dissent. The Deputies in like manner sitting apart by themselves and consulting about such orders and laws as they in their discretion and experience shall finde meet for the common good: which agreed upon by them they may present to the Magistrates who having seriously considered of them may manifest their consent or dissent thereto. And when any Orders have passed the approbation of both Magistrates and Deputies, then to be ingrossed: which in the last day of this Court or Sessions shal be deliberately read over. Provided also that all matters of Judicature which this Court shall take cognisance of, shall be issued in like manner (unles the Court upon some particular occasion or busines agree otherwise). [1644] ...

deputies for the generall court.

For easing the body of Freemen now increasing, and better dispatching the busines of General Courts, It is ordered and by this Court declared;

That henceforth it shall be lawfull for the Freemen of everie Plantation to choose their Deputies before every Generall Court, to confer of, and prepare such publick busines as by them shall be thought fit to consider of at the next General court. And that such persons as shall be heerafter so deputed by the Freemen of the several Plantations to deal on their behalfe in the publick affairs of the Common-wealth, shall have the full power and voices of all the said Freemen derived to them for the making and establishing of Laws, graunting of lands, and to deal in all other affairs of the Comon-wealth wherin the Freemen have to doe: the matter of election of Magistrates and other officers only excepted wherin every Freeman is to give his own voice. [1634]

2. Forasmuch as through the blessing of God the number of towns are much increased, It is therfore ordered and by this Court enacted;

That henceforth no town shall send more then two Deputies to the General Court; though the number of Freemen in any town be more then twenty. And that all towns which have not to the number of twenty Freemen shall send but one Deputy, & such towns as have not ten Freemen shall send none, but such Freemen shall vote with the next town in the choice of their Deputie or Deputies til this Court take further order. [1636 1638]

3. It is ordered by this Court and Authoritie therof, That when the Deputyes for severall towns are met together before, or at any General court, it shall be lawfull for them or the major part of them to hear and determin any difference that may arise about the election of any of their members, and to order things amongst themselves that may concern the well ordering of their body. And that heerafter the Deputies for the General court shall be elected by papers as the Governour is chosen. [1634 1635]

4. It is ordered by this Court and Authoritie therof; That the Freemen of any Shire or town have liberty to choose such Deputies for the General court either in their own Shire, Town, or elsewhere, as they judge fittest, so be it they be Freemen and inhabiting within this Jurisdiction. And because wee cannot foresee what variety and weight of occasions may fall into future consideration, & what counsells we may stand in need of: wee decree that the Deputies to attend the General court in behalfe of the Coutry shall not at any time be stated and enacted but from court to court, or at the most but for one year, that the Countrie may have an annual liberty to doe in what case what is most behoofefull for the best welfare therof. [1641] ...

ecclesiasticall:

1. All the people of God within this Jurisdiction who are not in a Church way and be orthodox in judgement and not scandalous in life shall have full libertie to gather themselves into a Church estate, provided they doe it in a christian way with due observation of the rules of Christ revealed in his word. Provided also that the General Court doth not, nor will heerafter approve of any such companyes of men as shall joyne in any pretended way of Church fellowship unles they shall acquaint the Magistrates and the Elders of the neighbour Churches where they intend to joyn, & have their approbation therin.

2. And it is farther ordered, that no person being a member of any Church which shal be gathered without the approbation of the Magistrates and the said Churches shal be admitted to the Freedom of this Common-wealth.

3. Everie Church hath free liberty to exercise all the Ordinances of God according to the rules of the Scripture.

4. Everie Church hath free libertie of election and ordination of all her Officers from time to time. Provided they be able, pious and orthodox.

5. Everie Church hath also free libertie of admission, recommendation, dismission & expulsion or deposall of their Officers and members upon due cause, with free exercise of the disciplin and censures of Christ according to the rules of his word.

6. No injuction shall be put upon any Church, church Officer or member in point of doctrine, worship or disciplin, whether for substance or circumstance besides the institutions of the Lord.

7. Everie Church of Christ hath freedom to celebrate dayes of Fasting and prayer and of Thanksgiving according to the word of God.

8. The Elders of churches also have libertie to meet monthly, quarterly or otherwise in convenient numbers and places, for conference and consultations about christian and church questions and occasions.

9. All Churches also have libertie to deal with any their members in a church way that are in the hands of justice, so it be not to retard and hinder the course therof.

10. Everie Church hath libertie to deal with any Magistrate, Deputy of court, or other Officer whatsoever that is a member of theirs, in a church way in case of apparent and just offence, given in their places, so it be done with due observance and respect.

11. Wee also allow private meetings for edification in Religion amongst christians of all sorts of people so it be without just offence, both for number, time, place and other circumstances.

12. For the preventing and removing of errour and offence that may grow and spread in any of the Churches in this jurisdiction, and for the preserving of truth & peace in the severall Churches within themselves, and for the maintainance and exercise of brotherly comunion amongst all the Churches in the country.

It is allowed and ratified by the authoritie of this Court, as a lawfull libertie of the Churches of Christ, that once in every month of the year (when the season will bear it) it shall be lawfull for the Ministers and Elders of the Churches neer adjoyning, together with any other of the Brethren, with the consent of the Churches, to assemble by course in everie several church one after another, to the intent, that after the preaching of the word, by such a Minister as shal be requested therto, by the Elders of the Church where the Assemby is held, the rest of the day may be spent in public christian conference, about the discussing and resolving of any such doubts & cases of consciences concerning matter of doctrine, or worship, or government of the Church as shall be propounded by any of the Brethren of that Church; with leave also to any other Brother to propound his objections, or answers, for further satisfaction according to the word of God. Provided that the whole action be guided and moderated by the Elders of the Church where the Assembly is held, or by such others as they shall appoint. And that nothing be concluded and imposed by way of Authoritie from one, or more Churches, upon another, but only by way of brotherly conference & consultations, that the truth may be searched out to the satisfying of every mans conscience in the sight of God according to his word. And because such an Assemblie and the work therof cannot be duly attended if other lectures be held the same week, it is therfore agreed with the consent of the Churches, that in what week such an Assembly is held all the Lectures in all the neighbouring Churches for the week dayes shall be forborne, that so the publick service of Christ in this Assembly may be transacted with greater diligence & attention. [1641]

13. Forasmuch as the open contempt of Gods word and Messengers therof is the desolating sinne of civil States and Churches and that the preaching of the word by those whom God doth send, is the chief ordinary means ordained of God for the converting, edifying and saving the souls of the Elect through the presence and power of the Holy-Ghost, therunto promised: and that the ministry of the word, is set up by God in his Churches, for those holy ends: and according to the respect or contempt of the same and of those whom God hath set apart for his own work & imployment, the weal or woe of all Christian States is much furthered and promoted; it is therefore ordered and decreed,

That if any christian (so called) within this Jurisdiction shall contemptuously behave himselfe toward the Word preached or the Messengers therof called to dispense the same in any Congregation; when he doth faithfully execute his Service and Office therin, according to the will and word of God, either by interrupting him in his preaching, or by charging him falsely with any errour which he hath not taught in the open face of the Church: or like a son of Korah cast upon his true doctrine or himselfe any reproach, to the dishonour of the Lord Jesus who hath sent him and to the disparagement of that his holy Ordinance, and making Gods wayes contemptible and ridiculous: that everie such person or persons (whatsoever censure the Church may passe) shall for the first scandall be convented and reproved openly by the Magistrate at some lecture, and bound to their good behaviour. And if a second time they break forth into the like contemptuous carriages, they shall either pay five pounds to the publick Treasurie; or stand two hours openly upon a block or stool, four foot high on a lecture day with a paper fixed on his breast, written in Capital letters [an open and obstinate contemner of gods holy ordinances] that others may fear and be ashamed of breaking out into the like wickednes. [1646]

14. It is ordered and decreed by this Court and Authoritie thereof; That wheresoever the ministry of the word is established according to the order of the Gospell throughout this Jurisdiction every person shall duly resort and attend therunto respectively upon the Lords days & upon such publick Fast dayes & dayes of Thanksgiving as are to be generally kept by the appointmet of Authoritie: & if any person within this Jurisdiction shal without just and necessarie cause withdraw himselfe from hearing the publick ministry of the word after due meanes of conviction used, he shall forfeit for his absence from everie such publick meeting five shillings. All such offences to be heard and determined by any one Magistrate or more from time to time. [1646]

15. Forasmuch as the peace and prosperity of Churches and members therof as well as civil Rights & Liberties are carefully to be maintained, it is ordered by this Court & decreed, That the civil Authoritie heer established hath power and liberty to see the peace, ordinances and rules of Christ be observed in everie Church according to his word. As also to deal with any church-member in a way of civil justice notwithstanding any church relation, office, or interest; so it be done in a civil and not in an ecclesiastical way. Nor shall any church censure degrade or depose any man from any civil dignity, office or authoritie he shall have in the Commonwealth. [1641]

16. Forasmuch as there are many Inhabitants in divers towns, who leave their several habitations and therby draw much of the in-come of their estates into other towns wherby the ministry is much neglected, it is therfore ordered by this Court and the authoritie therof; That from henceforth all lands, cattle and other estates of any kinde whatsoever, shall be lyable to be rated to all common charges whatsoever, either for the Church, Town or Comon-wealth in the same place where the estate is from time to time. And to the end there may be a convenient habitation for the use of the ministry in everie town in this Jurisdiction to remain to posterity. It is decreed by the authoritie of this Court that where the major part of the Inhabitants (according to the order of regulating valid town acts) shall graunt, build, or purchase such habitation it shall be good in law, and the particular sum upon each person assessed by just rate, shal be duly paid according as in other cases of town rates. Provided alwayes that such graunt, deed of purchase and the deed of gift therupon to the use of a present preaching Elder and his next successour and so from time to time to his successors: be entred in the town book and acknowledged before a Magistrate, and recorded in the Shire court. [1647]

elections.

It is ordered by this Court and Authoritie therof: That for the yearly choosing of Assistants for the time to come instead of papers the Freemen shall use indian corn and beans. The indian corn to manifest election, the beans for blanks. And that if any Freeman shall put in more then one indian corn or bean for the choise or refusal of any publick Officer, he shall forfeit for everie such offence ten pounds. And that any man that is not free or otherwise hath not libertie of voting, putting in any vote shal forfeit the like sum of ten pounds. [1643]

2. For the preventing of many inconveniences that otherwise may arise upon the yearly day of Election, and that the work of that day may be the more orderly, easily and speedily issued, it is ordered by this Court and the authoritie thereof.

That the Freemen in the several towns and villages within this Jurisdiction, shall this next year from time to time either in person or by proxie sealed up, make all their elections, by papers, indian corn and beans as heerafter is expressed, to be taken, sealed up & sent to the court of Election as this order appoints, the Governour, Deputie Governour, Major Generall, Treasurer, Secretary and Comissioners for the united Colonies to be chosen by writing, open or once folded, not twisted or rolled up, that so they may be the sooner and surer perused: and all the Assistants to be chosen by indian corn and beans, the indian corn to manifest election as in Sect: I; and for such small villages as come not in person and that send no Deputies to the Court, the Constable of the said village, together with two or three of the chiefe Freemen shall receive the votes of the rest of their Freemen, and deliver them together with their own sealed up to the Deputie or Deputies for the next town, who shall carefully convey the same unto the said Court of Election. [1647]

3. For asmuch as the choice of Assistants in case of supply is of great concernment, and with all care and circumspection to be attended; It is therfore ordered by this Court and Authoritie therof,

That when any Assistants are to be supplyed, the Deputies for the General Court shall give notice to their Constables or Selectmen to call together their freemen in their severall towns: to give in their votes unto the number of seven persons, or as the General Court shall direct, who shall then and there appoint one to carrie them sealed up unto their Shire towns upon the last fourth day of the week in the first month from time to time; which persons for each town so assembled shall appoint one for each Shire to carrie them unto Boston the second third day of the second month there to be opened before two Magistrates. And those seven or other number agreed upon as aforesaid, that have most votes shall be the men which shall be nominated at the court of Election for Assistants as aforesaid. Which persons the Agents for each Shire shall forthwith signifie to the Constables of all their several towns in writing under their hands with the number of votes for each person: all which the said Constables shall forthwith signifie to their Freemen. And as any hath more votes then other so shall they be put to vote. [1647]

4. It is decreed and by this Court declared That it is the constant libertie of the Freemen of this Jurisdiction to choose yearly at the court of Election out of the Freemen, all the general Officers of this Jurisdiction, and if they please to discharge them at the court of Election by way of vote they may doe it without shewing cause. But if at any other General Court, we hold it due justice that the reason therof be alledged and proved. By general Officers we mean our Governour, Deputy Governour, Assistants, Treasurer, General of our wars, our Admirall at sea, Commissioners for the united-Colonies and such others as are, or heerafter may be of the like general nature. [1641]

fornication

It is ordered by this Court and Authoritie therof, That if any man shall commit Fornication with any single woman, they shall be punished either by enjoyning to Marriage, or Fine, or corporall punishment, or all or any of these as the Judges in the courts of Assistants shall appoint most agreeble to the word of God. And this Order to continue till the Court take further order. [1642]

freemen, non-freemen.

wheras there are within this jurisdiction many members of churches who to exempt themselves from all publick service in the Common-wealth will not come in, to be made Freemen, it is therfore ordered by this Court and the Authoritie therof,

That all such members of Churches in the severall towns within this Jurisdiction shall not be exempted from such publick service as they are from time to time chosen to by the Freemen of the severall towns: as Constables, Jurors, Select-men and Surveyors of highwayes. And if any such person shall refuse to serve in, or take upon him any such Office being legally chosen therunto, he shall pay for every such refusall such Fine as the town shall impose, not exceeding twenty shilings as Freemen are lyable to in such cases. [1647]

fugitives, strangers.

It is ordered by this Court and Authoritie therof, That if any people of other nations prosessing the true Christian Religion shall flee to us from the tyranie or oppression of their persecutors, or from Famine, Wars, or the like necessarie and compulsarie cause, they shall be entertained and succoured amongst us according to that power and prudence God shall give us. [1641]

gaming.

upon Complaint of great disorder by the use of the game called Shuffle-board, in houses of common entertainment, wherby much pretious time is spent unfruitfully and much wast of wine and beer occasioned; it is therfore ordered and enacted by the Authoritie of this Court;

That no person shall henceforth use the said game of Shuffle-board in any such house, nor in any other house used as common for such purpose, upon payn for every Keeper of such house to forfeit for everie such offence five shillings: Nor shall any person at any time play or game for any monie, or mony-worth upon penalty of forefeiting treble the value therof: one half to the partie informing, the other half to the Treasurie. And any Magistrate may hear and determin any offence against this Law. [1646 1647]

general court.

It is ordered, and by this Court declared that the Governour and Deputie Governour joyntly consenting, or any three Assistants concurring in consent shall have power out of Court to reprieve a condemned malefactor till the next Court of Assistants: or General Court. And that the General Court only shall have power to pardon a condemned malefactor.

Also it is declared that the General Court hath libertie and Authoritie to send forth any member of this Common-wealth, of what qualitie and condition or office whatsoever into forrein parts, about any publick Message or negociation: notwithstanding any office or relation whatsoever. Provided the partie so sent be acquainted with the affairs he goeth about, and be willing to undertake the service.

Nor shall any General Court be dissolved or adjourned without the consent of the major part therof. [1641]

governour.

It is ordered, and by this Court declared that the Governour shall have a casting vote whensoever an equivote shall fall out in the Court of Assistants, or general Assemblie: so shall the President or Moderatour have in all civil Courts or Assemblies [1641]

heresie.

although no humane power be Lord over the Faith & Consciences of men, and therfore may not constrein them to beleive or professe against their Consciences: yet because such as bring in damnable heresies, tending to the subversion of the Christian Faith, and destruction of the soules of men, ought duly to be restreined from such notorious impiety, it is therfore ordered and decreed by this Court;

That if any Christian within this Jurisdiction shall go about to subvert and destroy the christian Faith and Religion, by broaching or mainteining any damnable heresie; as denying the immortalitie of the Soul, or the resurrection of the body, or any sin to be repented of in the Regenerate, or any evil done by the outward man to be accounted sin: or denying that Christ gave himself a Ransom for our sins, or shal affirm that wee are not justified by his Death and Righteousnes, but by the perfection of our own works; or shall deny the moralitie of the fourth commandement, or shall indeavour to seduce others to any the herisies aforementioned, everie such person continuing obstinate therin after due means of conviction shall be sentenced to Banishment. [1646] ...

idlenes.

It is ordered by this Court and Authoritie therof, that no person, Housholder or other shall spend his time idlely or unproffitably under pain of such punishment as the Court of Assistants or County Court shall think meet to inflict. And for this end it is ordered that the Constable of everie place shall use speciall care and diligence to take knowledge of offenders in this kinde, especially of common coasters, unproffitable fowlers and tobacco takers, and present the same unto the two next Assistants, who shall have power to hear and determin the cause, or transfer it to the next Court. [1633]

jesuits.

this court taking into consideration the great wars, combustions and divisions which are this day in Europe: and that the same are observed to be raysed and fomented chiefly by the secret underminings, and solicitations of those of the Jesuiticall Order, men brought up and devoted to the religion and court of Rome; which hath occasioned divers States to expell them their territories; for prevention wherof among our selves, It is ordered and enacted by Authoritie of this Court,

That no Jesuit, or spiritual or ecclesiastical person [as they are termed] ordained by the authoritie of the Pope, or Sea of Rome shall henceforth at any time repair to, or come within this Jurisdiction: And if any person shal give just cause of suspicion that he is one of such Societie or Order he shall be brought before some of the Magistrates, and if he cannot free himselfe of such suspicion he shall be committed to prison, or bound over to the next Court of Assistants, to be tryed and proceeded with by Banishment or otherwise as the Court shall see cause: and if any person so banished shall be taken the second time within this Jurisdiction upon lawfull tryall and conviction he shall be put to death. Provided this Law shall not extend to any such Jesuit, spiritual or ecclesiasticall person as shall be cast upon our shoars, by ship-wrack or other accident, so as he continue no longer then till he may have opportunitie of passage for his departure; nor to any such as shall come in company with any Messenger hither upon publick occasions, or any Merchant or Master of any ship, belonging to any place not in emnitie with the State of England, or our selves, so as they depart again with the same Messenger, Master or Merchant, and behave themselves inoffensively during their abode heer. [1647] ...

impresses.

It is ordered, and by this Court declared, that no man shall be compelled to any publick work, or service, unlesse the Presse be grounded upon some act of the General Court; and have reasonable allowance therfore: nor shall any man be compelled in person to any office, work, wars, or other publick service that is necessarily and sufficiently exempted, by any natural or personal impediment; as by want of years, greatnes of age, defect of minde, failing of senses, or impotencye of lims. Nor shall any man be compelled to go out of this Jurisdiction upon any offensive wars, which this Common-wealth, or any of our freinds or confoederates shall voluntarily undertake; but only upon such vindictive and defensive wars, in our own behalf, or the behalf of our freinds and confoederates; as shall be enterprized by the counsell, and consent of a General Court, or by Authoritie derived from the same. Nor shall any mans cattle or goods of what kinde soever be pressed, or taken for any publick use or service; unles it be by Warrant grounded upon some act of the General Court: nor without such reasonable prizes and hire as the ordinarie rates of the Countrie doe afford. And if his cattle or goods shall perish, or suffer damage in such service, the Owner shall be sufficiently recompenced. [1641]

imprisonment.

It is ordered, and by this Court declared; that no mans person shall be restreined or imprisoned by any authoritie whatsoever before the Law hath sentenced him therto: if he can put in sufficient securitie, Bayle or Mainprize for his appearance, and good behaviour in the mean time: unles it be in crimes Capital, and contempt in open Court, and in such cases where some expresse Act of Court doth allow it. [1641]

indians

It is ordered by Authoritie of this Court; that no person whatsoever shall henceforth buy land of any Indian, without license first had & obtained of the General Court: and if any shall offend heerin, such land so bought shall be forfeited to the Countrie.

Nor shall any man within this Jurisidiction directly or indirectly amend, repair, or cause to be amended or repaired any gun, small or great, belonging to any Indian, nor shall indeavour the same. Nor shall sell or give to any Indian, directly or indirectly any such gun, or any gun-powder, shot or lead, or shotmould, or any militarie weapons or armour: upon payn of ten pounds fine, at the least for everie such offence: and that the court of Assistants shall have power to increase the Fine; or to impose corporall punishment (where a Fine cannot be had) at their discretion.

It is ordered by the Authoritie aforesaid that everie town shall have power to restrein all Indians from profaning the Lords day. [1633 1637 1641]

2. Wheras it appeareth to this Court that notwithstanding the former Laws, made against selling of guns, powder and Ammunition to the Indians, they are yet supplyed by indirect means, it is thefore ordered by this Court and Authoritie therof;

That if any person after publication heerof, shall sell, give or barter any gun or guns, powder, bullets, shot or lead to any Indian whatsoever, or unto any person inhabiting out of this Jurisdiction without license of this Court, or the court of Assistants, or some two Magistrates, he shall forfeith for everie gun so sold, given or bartered ten pounds: and for everie pound of powder five pounds: and for everie pound of bullets, shot or lead fourty shillings: and so proportionably for any greater or lesser quantitie. [1642]

3. It is ordered by this Court and Authoritie therof, that in all places, the English and such others as co-inhabit within our Jurisidiction shall keep their cattle from destroying the Indians corn, in any ground where they have right to plant; and if any of their corn be destroyed for want of fencing, or herding; the town shall make satisfaction, and shall have power among themselves to lay the charge where the occasion of the damage did arise. Provided that the Indians shall make proof that the cattle of such a town, farm, or person did the damage. And for encouragement of the Indians toward the fencing in their corn fields, such towns, farms or persons, whose cattle may annoy them that way, shall direct, assist and help them in felling of trees, ryving, and sharpening of rayls, & holing of posts: allowing one English-man to three or more Indians. And shall also draw the fencing into place for them, and allow one man a day or two toward the setting up the same, and either lend or sell them tools to finish it. Provided that such Indians, to whom the Countrie, or any town hath given, or shall give ground to plant upon, or that shall purchase ground of the English shall fence such their corn fields or ground at their own charge as the English doe or should doe; and if any Indians refuse to fence their corn ground (being tendred help as aforesaid) in the presence and hearing of any Magistrate or selected Townsmen being met together they shall keep off all cattle or lose one half of their damages.

And it is also ordered that if any harm be done at any time by the Indians unto the English in their cattle; the Governour or Deputie Governour with two of the Assistants or any three Magistrates or any County Court may order satisfaction according to law and justice. [1640 1648]

4. Considering that one end in planting these parts was to propagate the true Religion unto the Indians: and that divers of them are become subjects to the English and have ingaged themselves to be willing and ready to understand the Law of God, it is therfore ordered and decreed,

That such necessary and wholsom Laws, which are in force, and may be made from time to time, to reduce them to civilitie of life shall be once in the year (if the times be safe) made known to them, by such fit persons as the General Court shall nominate, having the help of some able Interpreter with them.

Considering also that interpretation of tongues is appointed of God for propagating the Truth: and may therfore have a blessed successe in the hearts of others in due season, it is therfore farther ordered and decreed,

That two Ministers shall be chosen by the Elders of the Churches everie year at the Court of Election, and so be sent with the consent of their Churches (with whomsoever will freely offer themselves to accompany them in that service) to make known the heavenly counsell of God among the Indians in most familiar manner, by the help of some able Interpreter; as may be most available to bring them unto the knowledge of the truth, and their conversation to the Rules of Jesus Christ. And for that end that something be allowed them by the General Court, to give away freely unto those Indians whom they shall perceive most willing & ready to be instructed by them.

And it is farther ordered and decreed by this Court; that no Indian shall at any time powaw, or performe outward worship to their false gods: or to the devil in any part of our Jurisdiction; whether they be such as shall dwell heer, or shall come hither: and if any shall transgresse this Law, the Powawer shall pay five pounds; the Procurer five pounds; and every other countenancing by his presence or otherwise being of age of discretion twenty shillings. [1646]

inditements.

If any person shall be indicted of any capital crime (who is not then in durance) & shall refuse to render his person to some Magistrates within one month after three Proclaimations publickly made in the town where he usually abides, there being a month betwixt Proclaimation and Proclaimation, his lands and goods shall be seized to the use of the common Treasurie, till he make his lawfull appearance. And such withdrawing of himselfe shall stand in stead of one wittnes to prove his crime, unles he can make it appear to the Court that he was necessarily hindred. [1646]

in-keepers, tippling, drunkenes.

forasmuch as there is a necessary use of houses of common entertainment in every Common-wealth, and of such as retail wine, beer and victuals; yet because there are so many abuses of that lawfull libertie, both by persons entertaining and persons entertained, there is also need of strict Laws and rules to regulate such an employment: It is therfore ordered by this Court and Authoritie therof;

That no person or persons shall at any time under any pretence or colour whasoever undertake to be a common Victuailer, Keeper of a Cooks shop, or house for common entertainment, Taverner, or publick seller of wine, ale, beer or strong-water (by re-tale), nor shall any sell wine privately in his house or out of doors by a lesse quantitie, or under a quarter cask: without approbation of the selected Townsmen and Licence of the Shire Court where they dwell: upon pain of forfeiture of five pounds for everie such offence, or imprisonment at pleasure of the Court, where satisfaction cannot be had.

And every person so licenced for common entertainment shall have some inoffensive Signe obvious for strangers direction, and such as have no such Signe after three months so licensed from time to time shall lose their license: and others allowed in their stead. Any licensed person that selleth beer shall not sell any above two-pence the ale-quart: upon penaltie of three shillings four pence for everie such offence. And it is permiteed to any that will to sell beer out of doors at a pennie the ale-quart and under.

Neither shall any such licenced person aforesaid suffer any to be drunken, or drink excessively viz: above half a pinte of wine for one person at one time; or to continue tippling above the space of half an hour, or at unreasonable times, or after nine of the clock at night in, or about any of their houses on penaltie of five shillings for everie such offence.

And everie person found drunken viz: so that he be therby bereaved or disabled in the use of his understanding, appearing in his speech or gesture in any the said houses or elsewhere shall forfeith ten shillings. And for excessive drinking three shillings four pence. And for continuing above half an hour tippling two shillings six pence. And for tippling at unreasonable times, or after nine a clock at night five shillings: for everie offence in these particulars being lawfully convict therof. And for want of payment such shall be imprisoned untill they pay: or be set in the Stocks one hour or more [in some open place] as the weather will permit not exceeding three hours at one time ...

juries, jurors.

It is ordered by this Court and Authoritie therof, that the Constable of everie town upon Proces from the Recorder of each Court, shall give timely notice to the Freemen of their town, to choos so many able discreet men as the Proces shal direct which men so chosen he shall warn to attend the Court wherto they are appointed, and shall make return of the Proces unto the Recorder aforesaid: which men so chosen shall be impannelled and sworn truly to try betwixt partie and partie, who shall finde the matter of fact with the damages and costs according to their evidence, and the Judges shall declare the Sentence (or direct the Jurie to finde) according to the law. And if there be any matter of apparent equitie as upon the forfeiture of an Obligation, breach of covenant without damage, or the like, the Bench shall determin such matter of equitie.

2. Nor shall any tryall passe upon any for life or bannishment but by a special Jurie so summoned for that purpose, or by the General Court.

3. It is also ordered by the Authoritie aforesaid that there shall be Grand-Juries summoned everie year unto the several Courts, in each Jurisdiction; to inform the Court of any misdemeanours that they shall know or hear to be committed by any person or persons whatsoever within this Jurisdiction. And to doe any other service of the Common-wealth, that according to law they shall be injoyned to by the said Court; and in all cases wherin evidence is so obscure or defective that the Jurie cannot clearly and safely give a positive verdict, whether it be Grand, or Petty Jurie, it shall have libertie to give a [verdict] or a special verdict, in which last, that is, a special verdict the judgement of the Cause shall be left unto the Bench. And all jurors shall have libertie in matters of fact if they cannot finde the main issue yet to finde and present in their verdict so much as they can.

4. And if the Bench and Jurors shall so differ at any time about their verdict that either of them cannot proceed with peace of conscience, the Case shall be referred to the General Court who shall take the question from both and determin it.

5. And it is farther ordered that whensoever any Jurie of tryalls, or Jurors are not clear in their judgements or consciences, concerning any Case wherin they are to give their verdict, they shall have libertie, in open court to advise with any man they shall think fit to resolve or direct them, before they give in their verdict. And no Freeman shall be compelled to serve upon Juries above one ordinary Court in a year: except Grand-jurie men, who shall hold two Courts together at the least, and such others as shall be summoned to serve in case of life and death or bannishment. [1634 1641 1642]

justice.

It is ordered, and by this Court declared; that every person within this Jurisdiction, whether Inhabitant or other shall enjoy the same justice and law that is general for this Jurisdiction which wee constitute and execute one towards another, in all cases proper to our cognisance without partialitie or delay. [1641] ...

liberties common

It is ordered by this Court, decreed and declared; that everie man whether Inhabitant or Forreiner, Free or not Free shall have libertie to come to any publick Court, Counsell, or Town-meeting; and either by speech or writing, to move any lawfull, reasonable, or material question; or to present any necessarie motion, complaint, petition, bill or information wherof that Meeting hath proper cognisance, so it be done in convenient time, due order and respective manner. [1641]

2. Everie Inhabitant who is an hous-holder shall have free fishing and fowling, in any great Ponds, Bayes, Coves and Rivers so far as the Sea ebs and flows, within the precincts of the town where they dwell, unles the Freemen of the same town, or the General Court have otherwise appropriated them. Provided that no town shall appropriate to any particular person or persons, any great Pond conteining more then ten acres of land: and that no man shall come upon anothers proprietie without their leave otherwise then as heerafter expressed; the which clearly to determin, it is declared that in all creeks, coves and other places, about and upon salt water where the Sea ebs and flows, the Proprietor of the land adjoyning shall have proprietie to the low water mark where the Sea doth not ebb above a hundred rods, and not more wheresoever it ebs farther. Provided that such Proprietor shall not by this libertie have power to stop or hinder the passage of boats or other vessels in, or through any sea creeks, or coves to other mens houses or lands. And for great Ponds lying in common though within the bounds of some town, it shall be free for any man to fish and fowl there, and may passe and repasse on foot through any mans proprietie for that end, so they trespasse not upon any mans corn or meadow. [1641 1647]

3. Every man of, or within this Jurisdiction shall have free libertie, (notwithstanding any civil power) to remove both himself and his familie at their pleasure out of the same. Provided there be no legal impediment to the contrary. [1641]

lying.

wheras truth in words as well as in actions is required of all men, especially of Christians who are the professed Servants of the God of Truth; and wheras all lying is contrary to truth, and some sorts of lyes are not only sinfull (as all lyes are) but also pernicious to the Publick-weal, and injurious to particular persons; it is therfore ordered by this Court and Authoritie therof,

That everie person of the age of discretion [which is accounted fourteen years] who shall wittingly and willingly make, or publish any Lye which may be pernicious to the publick weal, or tending to the damage or injurie of any particular person, or with intent to deceive and abouse the people with false news or reports: and the same duly proved in any Court or before any one Magistrate (who hath heerby power graunted to hear, and determin all offences against this Law) such person shall be fined for the first offence ten shillings, or if the partie be unable to pay the same then to be set in the stocks so long as the said Court of Magistrate shall appoint, in some open place, not exceeding two hours. For the second offence in that kinde wherof any shall be legally convicted the sum of twenty shillings, or be whipped upon the naked body not exceeding ten stripes. And for the third offence that way fourty shillings, or if the partie be unable to pay, then to be whipped with more stripes, not exceeding fifteen. And if yet any shall offend in the like kinde, and be legally convicted therof, such person, male or female, shall be fined ten shillings a time more then formerly: or if the partie so offending be unable to pay, then to be whipped with five, or six more stripes then formerly not exceeding fourty at any time.

The aforesaid fines shall be levied, or stripes inflicted either by the Marshal of that Jurisdiction, or Constable of the Town where the offence is committed according as the Court or Magistrate shall direct. And such fines so levied shall be paid to the Treasurie of that Shire where the Cause is tried.

And if any person shall finde himselfe greived with the sentence of any such Magistrate out of Court, he may appeal to the next Court of the same Shire, giving sufficient securitie to prosecute his appeal and abide the Order of the Court. And if the said Court shall judge his appeal causlesse, he shall be double fined and pay the charges of the Court during his Action, or corrected by whipping as aforesaid not exceeding fourtie stripes; and pay the costs of Court and partie complaining or informing, and of Wittnesses in Case.

And for all such as being under age of discretion that shall offend in lying contrary to this Order their Parents or Masters shall give them due correction, and that in the presence of some Officer if any Magistrate shall so appoint. Provided also that no person shall be barred of his just Action of Slaunder, or otherwise by an proceeding upon this Order. [1645]

magistrates.

this court being sensible of the great disorder growing in this Commonwealth through the contempts cast upon the civil Authoritie, which willing to prevent, doe order and decree;

That whosoever shall henceforth openly or willingly defame any Court of justice, or the Sentences or proceedings of the same, or any of the Magistrates or other Judges of any such Court in respect of any Act or Sentence therin passed, and being therof lawfully convict in any General Court or Court of Assistants shall be punished for the same by Fine, Imprisonment, Disfranchisement or Bannishment as the qualitie and measure of the offence shall deserve.

And if any Magistrate or other member of any court shall use any reproachfull, or un-beseeming speeches, or behaviour towards any Magistrate, Judge, or member of the Court in the face of the said Court he shall be sharply reproved, by the Governour, or other principal Judge of the same Court for the time being. And if the qualitie of the offence be such as shall deserve a farther censure, or if the person so reproved shall reply again without leave, the same Court may proceed to punish any such offender by Fine, or Imprisonment, or it shall be presented to, and censured at the next superiour Court.

2. If in a General Court any miscarriage shall be amongst the Magistrates when they are by themselves, it shall be examined, and sentenced amongst themselves. 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 together, it shall be judged by the whole Court, and not severall as before. [1637 1641]

3. And it is ordered by the Authoritie of this Court that the Governour, Deputie Governour, or greater part of the Assistants may upon urgent occasion call a General Court at any time. [1647]

4. And wheras there may arise some difference of judgement in doubtfull cases, it is therfore farther ordered;

That no Law, Order, or Sentence shall passe as an Act of the Court without the consent of the greater part of the Magistrates on the one partie, and the greater number of the Deputies on the other part.

5. And for preventing all occasions of partial and undue proceeding in Courts of justice, and avoyding of jealousies which may be taken up against Judges in that kinde, it is farther ordered,

That in everie Case of civil nature between partie and partie where there shall fall out so neer relation between any Judge and any of the parties as between Father and Son, either by nature or marriage, Brother and Brother; in like kinde Uncle and Nephew, Land-lord and Tenent in matter of considerable value, such Judge though he may have libertie to be present in the Court at the time of the tryall, and give reasonable advice in the Case, yet shall have no power to vote or give sentence therin, neither shall Sit as Judge, but beneath the Bench when he shall so plead or give advice in the Case. [1635]

monopolies.

It is ordered, decreed and by this Court declared; that there shall be no Monopolies graunted or allowed amongst us, but of such new inventions that are profitable for the Countrie, and that for a short time. [1641]

oaths, subscription

It is ordered and decreed, and by this Court declared; that no man shall be urged to take any oath, or subscribe any Articles, Covenants, or remonstrance of publick and civil nature but such as the General Court hath considered, allowed and required. And that no oath of Magistrate, counceller or any other Officer shall binde him any farther, or longer then he is resident, or reputed an Inhabitant of this Jurisdiction [1641]

oppression

For avoyding such mischeifs as may follow by such illdisposed persons as may take libertie to oppresse and wrong their neighbours, by taking excessive wages for work, or unreasonable prizes for such necessarie merchandizes or other commodities as shall passe from man to man, it is ordered, That if any man shall offend in any of the said cases he shall be punished by Fine, or Imprisonment according to the qualitie of the offence, as the Court to which he is presented upon lawfull tryall & conviction shall adjudge. [1635] ...

profane swearing.

It is ordered, and by this Court decreed, that if any person within this Jurisdiction shall swear rashly and vainly either by the holy Name of God, or any other oath, he shall forfeit to the common Treasurie for everie such severall offence ten shillings. And it shall be in the power of any Magistrate by Warrant to the Constable to call such person before him, and upon sufficient proof to passe sentence, and levie the said penaltie according to the usuall order of Justice. And if such person be not able, or shall utterly refuse to pay the aforesaid Fine, he shall be committed to the Stocks there to continue, not exceeding three hours, and not lesse then one hour. [1646] ...

punishment

It is ordered, decreed, and by this Court declared; that no man shall be twice sentenced by civil Justice for one and the same Crime, offence or Trespasse. And for bodily punishments, wee allow amongst us none that are in-humane, barbarous or cruel. [1641]

schools.

It being one chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures, as in former times keeping them in an unknown tongue, so in these later times by perswading from the use of Tongues, that so at least the true sense and meaning of the Original might be clowded with false glosses of Saint-seeming-deceivers; and that Learning may not be buried in the graves of our fore-fathers in Church and Commonwealth, the Lord assisting our indeavours: it is therfore ordered by this Court and Authoritie therof;

That everie Township in this Jurisdiction, after the Lord hath increased them to the number of fifty Householders shall then forthwith appoint one within their Town to teach all such children as shall resort to him to write and read, whose wages shall be paid either by the Parents or Masters of such children, or by the Inhabitants in general by way of supply, as the major part of those that order the prudentials of the Town shall appoint. Provided that those which send their children be not oppressed by paying much more then they can have them taught for in other Towns.

2. And it is farther ordered, that where any Town shall increase to the number of one hundred Families or Householders they shall set upon a Grammar-School, the Masters therof being able to instruct youth so far as they may be fitted for the Universitie. And if any Town neglect the performance heerof above one year then everie such town shall pay five pounds per annum to the next such School, till they shall perform this Order. [1647] ...

strangers.

It is ordered by this Court and the Authoritie therof; that no Town or person shal receive any stranger resorting hither with intent to reside in this Jurisdiction, nor shall allow any Lot or Habitation to any, or entertain any such above three weeks, except such person shall have allowance under the hand of some one Magistrate, upon pain of everie Town that shall give, or sell any Lot or Habitation to any not so licenced such Fine to the Countrie as the County Court shall impose, not exceeding fifty pounds, nor lesse then ten pounds. And of everie person receiving any such for longer time then is heer expressed or allowed, in some special cases as before, or in case of entertainment of friends resorting from other parts of this Country in amitie with us, shall forfeit as aforesaid, not exceeding twenty pounds, nor lesse then four pounds: and for everie month after so offending, shal forfeit, as aforesaid not exceeding ten pounds, nor lesse then fourty shillings. Also, that all Constables shall inform the Courts of new commers which they know to be admitted without licence, from time to time. [1637 1638 1647]

summons.

It is ordered, and by this Court declared; that 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 circumstantial errors or mistakes, if the person and the Cause be rightly understood and intended by the Court.

2. And that in all cases where the first Summons are not served six dayes before the Court, and the Case briefly specified in the Warrant where appearance is to be made by the partie summoned; it shall be at his libertie whether he will appear, or not, except all Cases that are to be handled in Courts suddenly called upon extraordinarie occasions. And that in all cases where there appears present and urgent cause any Assistant or Officer appointed shall have power to make out Attachments for the first Summons. Also, it is declared that the day of Summons or Attachment served, and the day of appearance shall be taken inclusively as part of the six dayes. [1641 1647]

suits, vexatious suits.

It is ordered and decreed, and by this Court declared; that in all Cases where it appears to the Court that the Plaintiffe hath willingly & wittingly done wrong to the Defendant in commencing and prosecuting any Action, Suit, Complaint or Indictment in his own name or in the name of others, he shall pay treble damages to the partie greived, and be fined fourty shillings to the Common Treasurie. [1641 1646] ...

tobacco.

This Court finding that since the repealing of the former Laws against Tobacco, the same is more abused then before doth therfore order,

That no man shall take any tobacco within twenty poles of any house, or so neer as may indanger the same, or neer any Barn, corn, or hay-cock as may occasion the fyring therof, upon pain of ten shillings for everie such offence, besides full recompence of all damages done by means therof. Nor shall any take tobacco in any Inne or common Victualing-house, except in a private room there, so as neither the Master of the said house nor any other Guests there shall take offence therat, which if any doe, then such person shall forthwith forbear, upon pain of two shillings sixpence for everie such offence. And for all Fines incurred by this Law, one half part shall be to the Informer the other to the poor of the town where the offence is done. [1638 1647]

torture.

It is ordered, decreed, and by this Court declared; that no man shall be forced by torture to confesse any crime against himselfe or any other, unles it be in some Capital where he is first fully convicted by clear and sufficient evidence to be guilty. After which, if the Case be of that nature that it is very apparent there be other Conspirators or Confoederates with him; then he may be tortured, yet not with such tortures as be barbarous and inhumane.

2. And that no man shal be beaten with above fourty stripes for one Fact at one time. Nor shall any man be punished with whipping, except he have not otherwise to answer the Law, unles his crime be very shamefull, and his course of life vitious and profligate. [1641]

townships.

It is ordered, decreed, and by this Court declared, that if any man shall behave himselfe offensively at any Town-meeting, the rest then present shall have power to sentence him for such offence, so be it the mulct or penalty exceed not twenty shillings.

2. and that the Freemen of everie Township, and others authorized by law, shall have power to make such Laws and Constitutions as may concern the welfare of their Town. Provided they be not repugnant to the publick Laws and Orders of the Countrie. And if any Inhabitant shall neglect or refuse to observe them, they shall have power to levie the appointed penalties by distresse.

3. Also that the Freemen of everie town or Township, with such other the Inhabitats as have taken the Oath of fidelitie shall have full power to choos yearly, or for lesse time, within each Township a convenient number of fit men to order the planting and prudential occasions of that Town, according to instructions given them in writing.

Provided, nothing be done by them contrary to the publick Laws and Orders of the Countrie. Provided also that the number of such Select persons be not aboue nine.

4. Farther, it is ordered by the Authoritie aforesayd, that all Towns shall take care from time to time to order and dispose of all single persons, and In-mates within their Towns to service, or otherwise. And if any be greived at such order or dispose, they have libertie to appeal to the next County Court.

5. This Court taking into considerattion the usefull Parts and abilities of divers Inhabitants amongst us, which are not Freemen, which if improved to publick use, the affairs of this Common-wealth may be the easier caried an end in the severall Towns of this Jurisdiction doth order, and heerby declare;

That henceforth it shall may be lawfull for 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 fidelitie to this Government to be Jurie-men, and to have their Vote in the choice of the Select-men for the town Affairs, Assessements of Rates, and other Prudentials proper to the Select-men of the several Towns. Provided still that the major part of all companyes of Select-men be Free-men from time to time that shall make any valid Act. As also, where no Select-men are, to have their Vote in ordering of Schools, hearing of cattle, laying out of High-wayes and distributing of Lands; any Law, Use or Custom to the contrary notwithstanding. Provided also that no non-Freeman shall have his Vote, untill he have attained the age of twenty one years. [1636 1641 1647]

tryalls.

Wheras this Court is often taken up in hearing and deciding particular Cases, between partie and partie, which more properly belong to other inferiour Court. And that if the partie against whom the Judgment shall have any new evidence, or other new matter to plead, he may desire a new Tryall in the same Court upon a Bill or review. And if justice shall not be done him upon that Tryall he may then come to this Court for releif. [1642]

2. it is ordered, and by this Court declared, that in all Actions of Law it shall be the libertie of the Plaintiffe and Defendant by mutuall consent to choos whether they will be tryed by the Bench or a Jurie, unles it be where the Law upon just reason hath otherwise determined. The like libertie shall be graunted to all persons in any criminal Cases.

3. Also it shall be in the libertie both of Plaintiffe and Defendant, & likewise everie delinquent to be judged by a Jurie, to challenge any of the Jurors, & if the challenge be found just and reasonable, by the Bench or the rest of the Jurie as the Challenger shall choos, it shall be allowed him, & impannelled in their room.

4. Also, children, Ideots, distracted persons and all that are strangers or new comers to our Plantation shall have such allowances, and dispensations in any Case, whether criminal or others, as Religion and reason require. [1641]

votes.

It is ordered, decreed and by this Court declared; that all, and everie Freeman, and others authorized by Law, called to give any Advice, Vote, Verdict or Sentence in any Court, Council or civil Assemblie, shall have full freedom to doe it according to their true judgements and consciences, so it be done orderly and inoffensively, for the manner. And that in all cases wherin any Freeman or other is to give his Vote be it in point of Election, making Constitutions and Orders or passing Sentence in any case of Judicature or the like, if he cannot see light or reason to give it positively, one way or other, he shall have libertie to be silent, and not pressed to a determinate vote. And farther that whensoever any thing is to be put to vote, and Sentence to be pronounced or any other matter to be proposed, or read in any Court or Assemblie, if the President or Moderator shall refuse to perform it, the major part of the members of that Court or Assemblie shall have power to appoint any other meet man of them to doe it. And if there be just cause, to punish him that should, and would not. [1641]

userie.

It is ordered, decreed & by this Court declared, that no man shall be adjudged for the meer forbearance of any debt, above eight pounds in the hundred for one year, and not above that rate proportionably for all sums whatsoever, Bills of Exchange excepted, neither shall this be a colour or countenance to allow any usurie amongst us contrary to the Law of God. [1641 1643] ...

witnesses.

It is ordered, decreed, and by this Court declared, that no man shall be put to death without the testimonie of two or three witnesses, or that which is equivalent therunto. [1641]

2. And it is ordered by this Court and the Authoritie therof, that any one Magistrate, or Commissioner authorized therunto by the General Court may take the Testimonie of any person of fourteen years of age, or above, of sound understanding and reputation, in any Case civil or criminal; and shall keep the same in his own hands till the Court, or deliver it to the Recorder, publick Notarie or Clerk of the writs to be recorded, that so nothing may be altered in it. Provided, that where any such witnesse shall have his abode within ten miles of the Court, and there living and not disabled by sicknes, or other infirmitie, the said Testimonie so taken out of court shall not be received, or made use of in the Court, except the witnes be also present to be farther examined about it. Provided also, that in all capital cases all witnesses shall be present wheresoever they dwell.

3. And it is farther ordered by the Authoritie aforesaid, that any person summoned to appear as a witnes in any civil Court between partie and partie, shall not be compellable to travell to any Court or place where he is to give his Testimonie, except he who shall so summon him shall lay down or give him satisfaction for his travell and expences, out-ward and home-ward; and for such time as he shall spend in attendance in such case when he is at such Court or place, the Court shall award due recompence. And it is ordered that two shillings a day shall be accounted due satisfaction to any Witnes for travell and expences: and that when the Witnes dwelleth within three miles, and is not at charge to passe over any other Ferrie than betwixt Charlstown and Boston then one shilling six pence per diem shall be accounted sufficient. And if any Witnes after such payment or satisfaction shall fail to appear to give his Testimonie he shall be lyable to pay the parties damages upon an action of the Case. And all Witnesses in criminal cases shall have suitable satisfaction, payd by the Treasurer upon Warrant from the Court or Judge before whom the case is tryed. And for a general rule to be observed in all criminal causes, both where the Fines are put in certain, and also where they are otherwise, it is farther ordered by the Authoritie aforesayd, that the charges of Witnesses in all such cases shall be borne by the parties delinquent, and shall be added to the Fines imposed; that so the Treasurer having upon Warrant from the Court or other Judge satisfied such Witnesses, it may be repayd him with the Fine: that so the Witness may be timely satisfied, and the countrie not damnified. [1647] ...

27

[Massachusetts Ordinance on Legislative Procedure]

Text taken from Shurtleff, Massachusetts Colonial Records: Vol. ii, 194–98. Text is complete, with the original spelling.

October 18, 1648

The following ordinance qualifies as a founding document because it creates and describes the duties of elected officers of the legislature. Very little survives concerning colonial legislative processes, so this document is doubly interesting because it is the oldest surviving description of how a colonial legislature went about its business. It is clear that the purpose of the ordinance is not only to maintain orderly processes and systematic record keeping but also to ensure that legislative proceedings and decisions are available to the public in a form that allows them to remain informed. Earlier documents in this collection have clearly implied a de facto popular sovereignty, and thus, the systematic keeping of public legislative records is in keeping with that implication. Because colonial legislatures passed relatively few laws by today’s standards and were quite small, they could easily conduct their business without dividing into committees. Therefore it is noteworthy that the Massachusetts legislature (General Court) was apparently already using a committee system, especially since the British Parliament, with much larger concerns and a much heavier legislative load, had moved to an intermittent committee system only a few years earlier. The use of a committee system, however, also made the process much more deliberative, and a deliberative decision making process was highly valued in colonial America as a means of pursuing the consensual common good as opposed to mere majority rule. The commitment to deliberative processes is reflected in a variety of documents, but see documents 46 and 62 for more obvious examples.

For the better carrying on the occassions of the Generall Court, & to the end that the records of the same, together with what shall be presented by way of petition, etc., or passes by way of vote, either amongst the magistrates or deputies, may hereafter be more exactly recorded, & kept for public use,—

It is hereby ordered, that as there is a secretary amongst the magistrates, (who is the generall officer of the common wealth, for the keeping the publike records of the same,) so there shall be a clarke amongst the deputies, to be chosen by them, from time to time; that (by the Court of Elections, and then the officers to begin their entryes, their recompence accordingly) there be provided, by the auditor, four large paper books, in folio, bound up with velum & pastboard, two whereof to be delivered to the secretary, & two to the clarke of the House of Deputies, one to be a journall to each of them, the other for the faire entry of all lawes, acts, & orders, etc., that shall passe the magistrates and deputies, that of the secretaries to be the publike record of the country, that of the clarkes to be a book onely of coppies.

That the secretary & clarke for the deputies shall briefly enter into their journals, respectively, the title of all bills, orders, lawes, petitions, etc., which shal be presented & read amongst them, what are referd to committees, & what are voted negatively or affirmatively, & so for any addition or alteration.

That all bills, lawes, petitions, etc, which shal be last concluded amongst the magistrates, shall remaine with the Governor till the latter end of that session, & such as are last assented to by the deputies shall remaine with the speaker till the said time, when the whole Courte shall meete together, or a committee of magistrates & deputies, to consider what hath passed that session, where the secretary & clarke shall be present, & by their journals call for such bils, etc, as hath passed either house, & such as shall appeare to have passed the magistrates & deputies shall be delivered to the secretary to record, who shall record the same within one month after every session, which being done, the clarke of the deputies shall have liberty, for one month after, to transcribe the same into his booke; & such bills, orders, etc, that hath onely passed the magistrates, shall be delivered to the secretary to keepe upon file, & such as have onely passed the deputies shal be delivered to their clarke to be kept upon file, in like manner, or otherwise disposed of, as the whole Court shall appoint; that all lawes, orders, & acts of Courte, contained in the ould bookes, that are of force, & not ordered to be printed, be transcribed in some alphabeticall or methodicall way, by direction of some committee that this Courte shall please to appoint, & delivered to the secretary to record in the first place, in the said booke of records, & then the acts of the other sessions in order accordingly, & a coppy of all to be transcribed by the clarke of the deputies, as aforesaid.

28

[Towns of Wells, Gorgiana, and Piscataqua Form an Independent Government]

Text is complete and taken from Kavenaugh, Foundations of Colonial America, 1: 263–64.

July 1649

This document is typical of those written during the Cromwellian era, when the interruption of the monarchy cast into doubt the continued legality of the charters written earlier in the century and coherent instructions from England were not forthcoming. While many colonies continued under their former organic documents, other colonies like this one felt compelled to refound themselves. Unremarked in the document itself but implied in the generic title, the document is notable for creating a federation out of the three towns. Documents that created federal systems, among others, include the General Laws and Liberties of New Hampshire, 1680 [2]; the Pilgrim Code of Law, 1636 [20]; the Massachusetts Ordinance on the Legislature, 1644 [25]; the Organization of the Government of Rhode Island, 1642 [37]; the Fundamental Orders of Connecticut, 1639 [43]; the Structure of Town Governments, 1639 [45]; and the New Haven Fundamentals, 1643 [50]. Again we see the de facto use of an important American constitutional principle before there was a theoretical grounding other than that found in theology—in this case covenant theology. The three towns in this document later became part of the state of Maine, but during the colonial era were claimed by Massachusetts.

Whereas the inhabitants of Piscataqua, Gorgiana, and Wells in the province of Maine, have here begun to propogate and populate these parts of the country, did formerly by power derivative from Sir Ferdinando Gorges, Knight, exercise the regulating the affairs of the country as nigh as we could according to the laws of England, and such other ordinances as was thought meet and requisite for the better regulating thereof. Now, forasmuch as Sir Ferdinando Gorges is dead, the country by their general letters sent to his heirs in June 1647 and 48, but by the said distractions in England no return is yet come to hand, and command from the Parliament not to meddle in so much as was granted to Mr. Rigley, most of the commissioners being departed the province, the inhabitants are for present in some distraction about the regulating of the affairs of these sites. For the better ordering whereof, till further order, power, and authority shall come out of England, the inhabitants with one free and univeranimus consent do bind themselves in a body politic, a combination to see these parts of the country and province regulated according to such laws as formerly have been exercised and such others as shall be thought meet, not repugnant to the fundamental laws of our native country, and to make choice of such governor or governess and magistrates as by most voices they shall think meet. Dated in Gorgiana, alias Accomenticus, the [ ] day of July 1649. The privileges of Accomenticus’ charter excepted.

29

[The Cambridge Agreement of October 4, 1652]

The complete text is taken from The Records of the Town of Cambridge (Formerly Newtowne) Massachusetts, 1630–1703 (Cambridge: University Press, John Wilson and Son, 1901), 2: 99–100. The spelling is the same as in the original except that the German s has been transcribed as an English s, where appropriate.

This agreement is simultaneously a reformation of the civil polity and a set of instructions from the town meeting to those individuals selected to act in their name between meetings. The practice of town meetings giving instructions to the elected officers and representatives was a common one in the colonies and was extended to colony-wide, and later state-wide, representative bodies. Often the purpose of the town meeting was to press for specific legislation, but many, as in this case, were designed to formalize fundamental community values and principles to guide the actions of those in government. Once again we see de facto popular sovereignty implied.

At a Genrall meeting of the Towne ye 4th (10) 1652.

Theis prpositions here under written were voted, and joyntly agreed uppon by the Inhabitants, for the instructions to be given to the Townsmen.

That wt eur1 worke or buissines is by order of Court assigned to the Townsmen or injoyned on the Town That the Townsmen shall make due care to effect the same so as may best conduce to a publique good and no damage by neglect thereof

2. That as often as they shall see needfull, they shall giue publique notice to the inhabitants to meet together and wt eur orders or determinations shalbe passed by a publique vote of the Towne, or are already made by the Towne or ye select men, that the Townsmen take due care to execute fullfill and accomplish the same with out respect of any mans person, according to yr best wisdome.

3. That wt eur damage they shall conceiue or apprehend to come to the Towne, by any person with in or with out the Towne by appropriating intruding or damnifying or exceeding there owne due prportion in any wise, any of the Commons, landes or woodes, or other publique stocke liberties or interests of the Towne according to there best discretion they shall prvent and remoue the same.

4. That they take due care for the maintenance and reparation and well ordering of all such thinges wherin the Towne hath a Common interest, as the meeting house Common gates and high wayes, Common heards and ye like.

5. That they make such wholesome orders and impose such Penalties, and duly publish and execute the same as may best effect the execution of the premises.

6. That the necessary charges yt shalbe expended in ye execution of the premises be yearly discharged by an equall rate, made by the Townsmen, and leuied by the Cunstable on ye seurall Inhabitants

7. That The Cunstables giue in a yearly account of wt they receiue of the publique stocke of the Towne by rate or otherwise, and how they haue disbursed the same, the same to be done before ye yearly Election of the Townsmen, and kept uppon Record in a booke fairely written and in case the Cunstables shall faile herein, then to Continue in there office another yeare, except the Towne shall see meet otherwise to dispose.

8. That the Surveyours of the high wayes take due care for the reparation of all the Comon high wayes with in ye towne, and keep uppon Record the names of Such persons as are improued therein during ye yeare, and deliur the same in a list fairely written to the Townsmen then in place at ye end of there year that so no man may be wronged in doing more than his due proportion.

At the same time the buissines about stinting2 ye Cow Comon3 was debated, and by a publicke Vote agreed that it should be refferred to ye magestrates of the next County Cort in Midlesex, to determine wheth [ ] or Cow Common were already lawfully stinted.

also there is chosen for a committe to effect this buissines with the Magestrates by prsenting ye true state of the buissines, mr Joseph Cooke John Bridge, Gregory Stone, Edward Goffe Ri: Jacson and Edward Winship.

30

[Puritan] Laws and Liberties

The text is based on the one found in Shurtleff and Pulsifer, Vol. ii, Laws, 147–67. The text is here reproduced only in part since the document is a revision of The Pilgrim Code of Law and therefore repeats much of what is found in the earlier document. The shorthand in the earlier document is tortuous, so changes have been made for the modern reader, but these are minimal.

September 29, 1658

A revision of the Pilgrim Code of Law, 1636 [20], this is simultaneously a code of law, an amended version of the earlier constitution, and thus a constitution itself. The colony of Plymouth, almost from the beginning, was composed of several towns, each with its own covenant and town meeting. Thus, like the nearby Massachusetts Bay Colony, Plymouth had a functioning federal system. The Puritans begin the present document, as they did the earlier one, by rehearsing the basis for their action. They refer to both their charter and their founding covenant, the Plymouth Combination, 1620 (The Mayflower Compact [3]), as the grounding for their civil body politic. Their careful discussion in this regard implies a de facto federal relationship between the colonies and the mother country, which essentially rehearses the position that will be taken during the Stamp Act crisis and on the eve of the Revolution to explain the colonial view of that relationship. A section-by-section comparison with the earlier Code of Law it replaces reveals an essential continuity since 1620.

The Booke of the Generall Lawes and Liberties of the Inhabitants of the Jurisdiction of New Plymouth Collected out of the Records of the generall Court; and lately Reuised and established and deposed into an Alphabeticall order and published by the Authoritie of the generall Court held att New Plymouth the 29th day of September: Anno 1658

Bee Subject to every
ordinance of Man for
the Lords sake
1 peter 2cond 13th

To our beloued bretheren and Naighbours the Inhabitants of the Jurisdiction of New Plymouth; the Gour: Assistants and Deputies assembled att the generall Court of that Jurisdiction held att the Towne of Plymouth the 29th day of September Anno: Dom: 1658, wisheth grace and peace in our Lord Jesus Christ; it was the great privilidge of Israell of old and soe was acknowlidged by them Nehemiah the 9:13 That God gaue them right Judgments and true lawes; for God being the God of order and not of confusion hath Comaunded in his word; and put man into a capasitie in some measure to obserue and bee guided by good and wholsome lawes which are soe fare good and wholsome; as by how much they are deriued from and agreeable to; the Ancient platforme of Gods lawe; for although sundry pticulares in the Judiciall law which was of old jnioyned to the Jewes: did more especially (att least in some cercomstances) befitt their Pedagogye; yett are (they for the maine) soe exemplary being grounded on principalls of morall equitie as that all men; (Christians especially) ought alwaies to haue an eye thervnto; in the framing of theire Politique Constitutions; and although seuerall of the heathen National whoe were Ignorant of the true God and of his lawe haue bine famous in theire times for the enacting and execution of such lawes as haue proued profitable for the Gourment of theire Comonwealth in the times wherin they liued; yett notwithstanding theire exelencye appeered so fare; as they were founded vpon grounds of morall equitie which hath its originall from the lawe of God; and accordingly wee whoe haue bine actors in the framing of this smale body of lawes together with other vsefull Instruments who are gone to theire rest; can safely say; both for ourselues and them; that wee haue had an eye principally and primarily vnto the aforsaid platforme; and Secondaryly vnto the Right Improuement of the liberteis graunted vnto vs by our Superiours the state of England att the first begining of this infant plantation which was to enact such lawes as should most befitt a state in the nonage therof; not rejecting or omiting to obserue such of the lawes of our Natiue Countrey as would conduce vnto the good and grouth of soe weake a begining as ours in this Wilderness as any Impartiall eye not forestaled with prejudice may eazely descerne in the pusall1 of this smale booke of the lawes of our Collonie; The prmises duely considered might worke euery consiencious sperit to faithfull obeidience; and although wee hold and doe affeirme that both Courts of Justice and Majestrates; whoe are the minnesters of the lawe are esencially Ciuill; Notwithstanding wee conceiue that as the Majestrate hath his power from God soe vndoubtedly hee is to Improue it for the honor of God; and that in the vphoulding of his worship and seruice and against the contrary; with due respect alsoe to bee had vnto those that are really consciencious; though differing and discenting in some smaller matters; but if any really or in the pretence of consience shall professe that which eminently tendeth to the Invndation of Ciuill State and violation of Naturall bonds or the ouerthrow of the Churches of God or of his Worship; that heer prudence is to bee Improued in a speciall manor in the enacting and execution of lawes; It hath bine our endeauors in framing of our lawes that nothinge should bee found amongst them but that which fall vnder the same pticulares; wee haue likewise reduced them to such order as they may most conduce to our vtillitie and profitt; posibly it may bee that weaknes may appeer in the composure of sundry of them for want of such plenty of able instruments as others are furnished withall; howeuer lett this suffice the gentle Reader; that our ends are to the vtmost of our powers; in these our endeauors to promote both Church and State both att the psent and for the future; and therfore soe fare as wee haue aimed att the glory of God and comon good; and acted according to God; bee not found a Resister but obeidient; least therby thou Resist the ordinance of God and soe Incurr the displeasure of God vnto damnation; Romans 13:2:

A Declaration demonstrating the warrantable grounds and proceedings of the first associates of the Gourment of New Plymouth in theire laying the first foundation of the Gourment in this Jurisdiction for makeing of lawes and disposing of lands and all such thinges as shall or may Conduce to the welbeing of this Corporation of New Plymouth;

Whereas John Carver William Bradford Edward Winslow William Brewster Isacke Allerton and diuers others the subjects of our late Sour:2 Lord Kinge James by the grace of God Kinge of England Scotland ffrance and Ireland Defendor of the faith did in the eighteenth yeare of his Raigne of England ffrance and ireland; and of Scotland the fifty fourth which was in the year of our Lord God one thousand six hundred and twenty; vndertake a voyage into that pte of America called Verginnia or New England thervnto adjoyning; there to erect a plantation and Collonie of English; Intending the Glory of God the enlargment of his Maties dominnions and the speciall good of the English Nation.

And Wheras by the good Prouidence of God the said John Caruer William Bradford Edward Winslow William Brewster Isacke Allerton and theire associates ariued in New England aforsaid in the harbour of Cape Cod or Paomett Scittuate and being in New England aforsaid; where all the said psons entered into a Ciuill Combination; being the eleuenth day of Nouember in the yeare aforemencioned; as the subjects of our said Sour: Lord the Kinge; to become a body Pollitique binding our selues to obserue such lawes and ordinances and obey such officers as from time to time should bee made and Chosen for their well ordering and guidance; and thervpon by the fauor of the Almighty; began the first Collonie in New England; there being then none other within the said Continent; att a place Called by the Natiues Apaum alliis Patuxett; and by the English New Plymouth; all which Lands being void of Inhabitants; Wee the said John Carver William Bradford Edward Winslow William Brewster Isacke Allerton and the rest of our Associates; entering into a league of Peace with Massasoiett since called Woosamequen Prince or Sachem of these ptes; hee the said Massasoiett freely gaue them all the lands adjacent to them; and theire heires for euer, acknowlidging himselfe content to become the subject of our Sour Lord the Kinge aforsaid his heires and Successors and takeing protection of vs the said John Carver William Bradford Edward Winslow William Brewster Isacke Allerton and theire Associates the naturall subjects of our Sour: Lord the Kinge aforsaid But haueing noe speciall letters Patents for the said ptes of New England but onely the generall leaue and libertie of our Consiences in the publicke worship of God where euer wee should settle; being therefore now settled and requiring speciall lycence and Comission from his Matie3 for the ordering of our affaires vnder his graciouse protection; had sundry Comissions made and Confeirmed by his Maties Councell for New England to John Peirse and his associates; whose names wee onely made vse of and whose associates wee were in the late happy and memorable Raigne of our said Sour: Lord King James; But finding our selues still straightened;4 and a willingnes in the honoble Councell aforsaid to enlarge vs; ptely in regard of the many difficulties wee had vndergone; and ptely in regard of the good service wee had done; as well in releiueing his Maties Subjects as otherwise wee procured a further enlargement vnder the name of Willam Bradford aforsaid and his Associates whose names wee likewise vsed; and whose associates as formerly wee still are; By vertue of which said letters Pattents libertie is giuen to vs deriuatory from our Sour: Lord King Charles bearing date the thirteenth of January 1629 being the fift yeare of his raigne of England Scotland ffrance and Ireland &c and signed by the Right honoble Robert Earle of Warwicke in the behalfe of his Maties said Councell for New England; and sealed with theire Comon seale to frame and make orders ordinances and Constitutions for the ordering disposing and Gouning of our psons and distributeing of our Lands within the said Lymetts To bee holden of his Matie his heires and successors as of his mannor of East greenwich in the County of Kent in free and Comon Soccage and not in Capite nor by Knights seruice,5 viz: all that pte of America and tract and tracts of land that lyeth within or between a sertaine Rivolett or Rundelett comonly called Coahassett alliis Conahassett towards the north; and the Riuer called Narrangansett Riuer towards the south and the great Westerne Ocean towards the East; and within and between a straight line directly extending into the maine towards the west; from the mouth of the said Riuer called Narranganssett Riuer to the vtmost bounds and lymetts of a Countrey or place in New England called Pocanacutt alliis Puckanakicke alliis Sowamsett doth extend; together with the one halfe of the said Riuer called Narrangansetts; and the said Riuolett or Rundelett called Coahassett allis Conahassett; and all lands Riuers waters hauens creekes ports ffishings fowlings; and all heredetiments profitts Comodities and emoluments whatsoeuer; Scittuate lying and being arising within or between the said lymetts or bounds or any of them; furthermore all that Tract or pte of land in New England or pte of america aforsaid which lyeth within or between; and extendeth it selfe from the vtmost lymetts of Cobbasecontee alliis Comacecontee which adjoyneth to the Riuer of Kennebecke alliis Kennebekicke towards the westerne Ocean; and a place called the falls at Nequamkicke in America aforsaid; and the space of fifteen English miles on each side of the said Riuer comonly called Kenebecke Riuer; that lyeth within the said bounds Eastwards Westwards Northwards and southwards last aboue mentioned; and all lands grounds soyles Riuers waters ffishings heridetiments and prof fitts whatsoeuer scittuate lying and being arising happening or accrewing in or within the said lymetts or bounds or either of them; together with free Ingresse egresse and Regresse with shipps boates shallops and other vessels from the sea called the westeren ocean; to the Riuer called Kennebecke and from the said Riuer to the said Westeren Occean; together with all prorogatiues Rights Royalties Jurisdictions priuilidges franchises liberties and amunities and alsoe marine liberties with the escheats and causualties therof; the Admiraltie Jurisdiction excepted; with all the Interest right title claime and demaund whatsoeuer which the said Councell and theire successors now haue or ought to haue or may haue or require heerafter in or to any of the said Tract or portion of lands heerby mencioned to bee graunted; or any the pmises in as free large ample and benificiall manor to all Intents and constructions whatsoeuer as the said Councell by vertue of his Maties said letters may or can graunt; To haue and to hold the said Tract and tracts of land and all and singulare the pmises aboue mencioned to bee graunted with theire and euery of theire appurtenances; To the said Willam Bradford his heires associates and assignes for euer To the onely proper vse and absolute behoofe of the said Willam Bradford his heires associates and assignes for euer; yeilding and paying vnto our said Sour: Lord the Kinge his heires and successors for euer; one fift pte of the Oare of the mines of Gould and siluer; and one other fift pte therof to the Presedent and Councell; which shalbee had posessed and obtained within the precincts aforsd for all seruices and demaunds whatsoeuer; allowing the said Willam Bradford his associates and assignes and euery of them his and theire agents tenants and servants; and all such as hee or they shall send or Imploy about his said pticulare plantation; shall and may from time to time freely and lawfully goe and returne trad or trafficke as well with the English as any the Natiues within the precincts aforsaid; with libertie of fishing vpon any pte of the sea coast and sea shores of any the seas or Ilands adjacent; and not being Inhabited or otherwise disposed of by order of the said Presedent and Councell forbiding all others to traffick with the Natiues or Inhabitants in any of the said Lymetts; without the speciall leaue of the said Willam Bradford his heires and associates; and allowing the said Willam Bradford his heires and associates to take apprehend seize and make prise of all such psons theire Shipes and goods as shall attempt to Inhabite or trad with the salvage people as aforsaid;

Morouer Wheras in the first begining of this Collonie diuers Marchants and others of the Citty of London and elsewhere adventured diuers sumes of money with the said John Caruer William Bradford Edward Winslow William Brewster Isacke Allerton and the rest of theire asosiates on certaine tearmes of ptenorship6 to continew for the tearme of seauen yeares the said tearm being expired; the plantation by reason of manifold losses and Crosses by sea and land in the begining of soe great a worke being largly Indebted and noe meanes to pay the said debtes but by the sale of the whole and the same being put vpon sale; the said William Bradford Edward Winsow William Brewster Isacke Allerton and other our associates the Inhabitants of New Plymouth and elswhere being loth to bee depriued of our labours bought the same; for and in consideration of eighteen hundred pounds sterling viz: all and singulare the priuilidges lands goods Chattles ordinance amunition or whatsoeuer appertained to the said plantation or the adventures; with all and singulare the priuilidges thervnto belonging; as appeers by a deed between the said Isacke Allerton then agent for the said William Bradford and his Associates on the one pte; and John Pococke Robert Keine Edward Basse James Sherley and John Beachamp on the other pte being thervnto deputed by the said Marchants and the rest adventuring as aforsaid; as appeers by a Deed bearing date the sixt of Nouember in the third yeare of the Raigne of our Sour: Lord Charles by the grace of God Kinge of England Scotland ffrance and Ireland

Anno Dom: 1627 one thousand six hundred twenty and seauen; Bee it Knowne vnto all men by these psents that according to our first Intents for the better effecting the glory of God; the Inlargment of the dominnions of our said Sour: Lord the Kinge, and the speciall good of his subjects by vertue as well of our Combination aforsaid; as alsoe the seuerall graunts by vs procured; in the Names of John Peirce and William Bradford theire heires and associates together with our lawful right in respect of vacancye donation or Purchase of the Natiues and our full purchase of the adventures before expressed; haue giuen vnto and alloted assigned and graunted to all and euery pson and psons whose name or names shall follow vpon this publicke Record such proportion or proportions of Grounds with all and singulare the priuilidges thervnto belonging as aforsaid to him or them his or theire heires and Assignes Successiuely for euer to bee holden of his Maties of England his heires and Successors as of his manor of East greenwich in the Countey of Kent in free and comon Sockage and not in Capitie nor by Knights Service yeilding and paying to our said Sou: Lord the Kinge his heires and Successors for euer one fift pte of the Oare of the mines of Gould and siluer and one other fift pte to the psedent and Councell which shalbee had possesed and obtained as aforsaid and whatsoeuer lands are graunted vnto any by the said William Bradford Edward Winslow William Brewster Isaack Allerton or their heires or Associates as aforsaid being acknowlidged in publicke Court and brought to this booke of Records of the seuerall Inheritances of the Subjects of our Soueraigne Lord the King within this Gouerment; It shalbee lawfull for the Gour of New Plymouth aforsaid from time to time and att all times for all Intents and purposes; the said ptie or pties his or theire heires or assignes for euer; To haue and to hold the said portion of lands soe graunted bounded and recorded as aforsaid with all and singulare the Apurtenances thervnto belonging to the onely proper and Absolute vse and behoofe of the said ptie or pties his or theire heires and Assignes for euer;

Wee the Associates of New Plymouth coming hether as freeborne Subjects of the State of New England Indowed with all and singulare the privilidges belonging to such being Assembled Doe ordeine constitute and enacte that noe acte Imposition law or ordinance bee made or Imposed vpon vs att prsent or to come but such as shalbee made and Imposed by consent of the body of the Associates or theire Representatives legally assembled, which is according to the free liberties of the State of England;

It is further enacted

That all our Courts bee kept att the Towne of Plymouth except the Gour and Assistants shall see Reason to keep som Courts of Assistants elswhere within this Gourment.

Whereas by the first Associates of this Gourment the Courts of Election were held in the month of January Anually and afterwards in the month of March Anually; By reason of the vnseasonablenes of those times of the yeare; It is enacted by the Court and the Authoritie therof That the election Courts bee holden the first Tusday in June Annually; And the other Generall Courts bee holden the first Tusday in October and the first Tusday in March Anually; and that the Courts of Assistants bee holden the first Tusday in August the first Tusday in December the first Tusday in ffebrewary and the first Tusday in May Anually.

It is enacted by the Court and the Authoritie therof that all such as shalbee admited freemen of this Corporation shall stand one whole yeare propounded to the Court viz: to bee propounded att one June Court and to stand so propounded vntill the June Court following and then to bee admited if the Court shall not see cause to the Contrary.

Wheras A Comittee was chosen viz: Mrh Tho: Prence Mr Willam Collyare Mr Tho: Dimmacke Mr James Cudworth Mr Josias Winslow John Dunham senir. Gorge Soule and Constant Southworth to consider of the proposition propounded by the deputies att the Court held in October 1650 concerning the major pte of the Courts to order the adjournments and desolutions of the generall Courts and the makeing and repealing of lawes they the said Comittee declared theire minds to bee that matters in the aforsaid respects to rest vnaltered as they were and that for the future as formerly in the makeing and repealing of lawes and adjornment of Courts wherin Comittes are resquisite the majestrates and deputies bee considered as one body.

Wheras diuers actes and orders touching the making and repealing of lawes att June Courts and the adjournments therof is rendered with a dubiouse Interpretation; and this Court haueing by propositions to the freemen of the seuerall Townships desired theire answares in order to the regulateing therof but not receiueing any answare from sundry of them haue seen cause to declare theire owne sence therof and therfor doe enact That fitt and able psons bee anually chosen out of the freemen to attend June courts and the seuerall adjornments therof by the approued Inhabitants quallified as in such case is prouided of this Jurisdiction in theire respectiue townshipps for deputies vnto whom with the majestrates as the body Representatiue is comitted full power for the makeing and repealing of all lawes as vpon theire seriouse considerations they shall find meet for the publicke weale of this Jurisdiction and that then onely such lawes bee enacted or repealed except the Gour for the time being shall see waightey and nessesary cause by the complaint of the freemen or otherwise to call a special Court either of the whole body of the ffreemen or theire deputies; the freemen of this Jurisdiction being left to theire liberties to send theire voate by proxey for the choise of Gour Assistants Comissioners and Treasurer in such way as by order of Court is alreddy prouided and this order to stand in full force till the whole body of ffreemen shall take further order therin; It is alsoe further provided that vpon notice giuen in an orderly way to the Gour by the major pte of the ffreemen of this Jurisdiction of theire apprehensions of a nessesitie of the body of ffreemen to come together; then the Gour for the time being shall take the first oppertunitie to Summon in the body of ffreemen to aduise and acte ther as the matter shall require;

the oath of a ffreeman.

You shalbee truely Loyall to our Sour Lord the King his heires and Successors. You shall not speake or doe deuise or aduise Any thinge or things Act or Actes directly or Indirectly by Land or Water that doth shall or may tend to the destruction or ouerthrow of these prsent Plantations or Townshipes of the Corporation of New Plymouth neither shall you suffer the same to bee spoken or done but shall hinder oppose and descouer the same to the Gour And assistants of the said Collonie for the time being; or some one of them; you shall faithfully Submitt vnto such good and wholsome Lawes and ordinances as either are or shalbee made for the ordering and Gourment of the same; and shall Indeuor to aduance the grouth and good of the seuerall townshipes and plantations within the Lymetts of this Corporation by all due meanes and courses; All which you pmise and Sweare by the Name of the great God of heauen and earth simply truely and faithfully to pforme as you hope for healp from God who is the God of truth and punisher of falchood.

It is enacted by the Court and the Authoritie therof; That on the first Tusday in June anually there shalbee a Gour and seauen Assistants chosen to Rule and Gouerne the said Plantations and Townshipes within the Lymetts of this Corporation and this election to bee made onely by the ffreemen therof;

And that the Gour in due season by warrant directed to the seuerall Cunstables in the Name of his Matie giue warning to the ffreemen either to make their psonall appeerance att the Courts of election or to send theire voates by proxey for the choise of officers according to the following order; and that all our Courts warrants Summons and comaunds bee all done directed and made in the Name of our Sour Lord the King

Wheras in regard of age disabilletie of body vrgent occations and other Inconveniencies that doe acrew sundry of the ffreemen are hindered that they can not appeer att Courts of election, In consideration wherof it is enacted by the Court and the Authoritie therof that any freeman of this Corporation shall haue libertie to send his voate by proxey for the choise of Gour Assistants Comissioners and Treasurer; And that the deputies of the seuerall townes chosen to attend the Courts of election and the seuerall adjournments therof shall in the towne meeting in which they are chosen they or either of them giue notice vnto the freemen that those that Intend not to make theire psonall appeerance att the Court of election are now to giue in theire voates Sealed vp for the chosing of Gour Assistants Comissioners and Treasurer; and the said deputies to obserue by a list of their Names whoe hath voted and whoe hath not; The which voates soe brought in to bee ymediately Sealed vp and brought vnto and deliuered in open Court by the said deputies.

It is enacted by the Court that att Courts of election the voates of all the ffreemen prsent bee first read and Next after them the deputies of the suerall townes shall orderly prsent the proxey of theire owne towne.

It is enacted by the Court and the Authoritie therof that other public offecers besides Gour and Assistants bee chosen and established att the Court in June Anually viz: Comissioners and Treasurrer; and that other Inferior officers; as Cunstables grandjurymen and Survayors for the highwaies bee then alsoe confeirmed if approued by the Court.

It is enacted by the Court and the Authoritie therof that incase there shalbee occation for a Corroner that the Next majestrate where such accedent falls shall sitt as Corrowner and execute that office according to the Custome of England as near as may bee.

It is enacted by the Court and the Authoritie therof that all our Courts summons and comaunds bee all done directed and made in the Name of his Matie of England our dread Sour and alsoe that all Ciuill officers and minnesters of Justice in this Jurisdiction to be sworne in his said Maties name and alsoe that the oath of fidelitie and all other oathes shall goe in that tenure.

the office of the gour:

The office of the Gour for the time being consisteth in the execution of such lawes and ordinances as are or shalbee made and established for the good of this Corporation according to the bounds and Lymitts therof viz: in calling together or aduising with the Assistants or Councell of the said Corporation vpon such matteriall occations (or soe seeming to him) as time shall bring forth, In wch Assembly and all other the Gour to propound the Occation of the Assembly and haue a double voyce therin; if the Assistants Judge the case too great to bee desided by them and refer it to the Genrall Court then the Gourr to Summon a Courty by warning all the ffreemen that are then extant; as alsoe incase the major pte of the ffreemen seeing waighty cause for the whole body to meet together and in an orderly way acquaint him with theire desires therof; Then hee shall Summon the whole body of ffreemen together with all convenient Speed; and there alsoe to propound causes and goe before the Assistants in the examination of pticulares and to propound such Centance as shalbee determined; further it shalbee lawfull for him to Arrest and comitt to Ward any offendors; provided that with all Convenient Speed hee shall bring the cause to hearing either of the Assistants or generall Court according to the nature of the offence; Alsoe it shalbee lawfull for him to examine any suspicious psons for euill against the Collonie as alsoe to Interupt or oppose such letters as hee conceiueth may tend to the ouerthrow of the same; and that this office continew one whole yeare and noe more without renewing by election;

the oath of the gour:

You Shalbee truely Loyall to our Sour Lord King Charles his heires and Successors Also according to that measure of Wisdome vnderstanding and deserning giuen vnto you shall faithfully Equally and Indifferently without respect of psons Adminnester Justice in all Cases coming before you as the Gour of New Plymouth; You shall in like manor faithfully duely and truely exequte the Lawes and ordinances of the Same; and shall laboure to Advance and further the good of The Townshipes and plantations within the Lymitts therof to the vttermost of youer power and oppose any thing that shall seeme to hinder the same Soe healp you God whoe is the God of truth and the punisher of falshood.

the office of ann assistant.

The office of an Assistant for the time being consisteth in appeering att the Gournors Summons and in giueing his best advise both in publicke court and private Councell with the Gour for the good of the seuerall Townships and plantations within the lymetts of this Gourment; not to disclose but to keep secrett such things as concerne the publique good and shalbee thought meet to bee concealed by the Gour and Councell of Assistants in haueing a speciall hand in the examination of publicke offendors and in contriueing the affaires of the Collonie to haue a voyce in the censuring of such offendors as shalbee brought to publicke Court; That if the Gour haue occation to bee absent from the Collonie for a short time by the Gour with concent of the rest of the Assistants hee may bee deputed to Gouerne in the absence of the Gour alsoe it shalbee lawfull for him to examine and comitt to ward where any occation ariseth where the Gour is absent prouided the pson bee brought to hearing with all convenient Speed before the Gour and the rest of the Assistants; alsoe it shalbee lawfull for him in his Maties Name to direct his warrants to any Cunstable within the Gourment whoe ought faithfully to execute the same according to the Nature and tenure therof and may bind ouer psons for matters of crime to answare att the next ensueing Court of his said Mtie after the fact comitted or the pson apprehended;

the oath of an assistant.

You shall all sweare to bee truely Loyall to our Sour Lord King Charles his heires and Successors you shall faithfully truely and Justly according to the measure of deserning and descretion God hath giuen you bee Assistant to the Gour for this prsent yeare for the execution of Justice in all cases and towards all psons coming before you without parciallitie according to the Nature of the Office of an Assistant read vnto you; Morouer you shall dilligently duely and truely see that the Lawes and ordinances of this Corporation bee duely executed and shall labour to Advance the good of the seuerall plantations within the lymetts therof and oppose any thinge that shall hinder the same by all due meanes and courses Soe healp you God whoe is the God of truth and punisher of falshood;

It is enacted by the Court and the Authorite thereof that the Gour and two of the Assistants at the least shall as occation shalbee offered in time convenient determine in such triviall cases viz. vnder forty shillinges between man and man as shall come before them as alsoe in offences of smale Nature shall determine doe and execute as in wisdome God shall direct them;

It is enacted by the Court and the authoritie therof That att euery election Court some one of the Assistants or some other suficient man bee chosen Treasurer for the yeare following whose place it shalbee to demaund and receiue in whatsoeuer sume or sumes shall appertaine to the Royaltie of the place either coming in by way of fine Amercment or otherwise and shall Improue the same for the publicke benefitt of this Corporation by order of the Gourment.

It is further enacted by the Court that the Treasurer shall att the election Courts Anually giue in his accounts of his receipts and paiments for his yeare to any that the Court shall appoint and to bee entered vpon Record and thervpon to bee discharged.

It is likewise enacted by the Court that the Treasurer by vertue of his said office shall take order that all debts due to the Countrey bee seasonbly brought in vnto such place or places as hee shall appoint that soe all dues and debts due vnto any pson or psons from the Contrey may bee seasonably and Satisfactorily defrayed except the publice officers wages which is otherwise prouided for.

It is enacted by the Court that it shalbee in the libertie of the Treasurer after a month is past after Judgment by his warrant to require in any fine as hee shall see reason;

Wheras the Court haue taken notice that diuers of the ffreemen of this Corporation doe neither appeer att Courts of election nor send theire voates by proxey for the choise of majestrates It is enacted by the Court and the authoritie therof That whosoeuer of the ffreemen of this Corporation that shall not appeer att the Court of election att Plymouth in June annually nor send theire voate by proxey according to order of Court for the Choise of Gour Assistants Comissioners and Treasurer shall be fined to the Collonies vse the sume of ten shillinges for euery such default; vnlesse some vnavoidable Impediment hinder such in theire appeerance.

Memorand that an oath bee formed for the Treasurer and next entered.

the oath of the treasurer.

You shall faithfully serue in the office of the Treasurer in the Jurisdiction of New Plymouth for this prsent yeare during which time you shall dillegently enquire after demaund and receiue whatsoeuer sum or sumes shall appertaine to this Gourment; arising by way of fine amersment Royaltie or otherwise and shall faithfully Improue the same for the vse of the Gourment and according to order dispose therof as occation shall require you shalbee reddy to giue in a true account vnto the Court of youer actings in youer said office yearly att June Courts; Soe healp you God

the oath of a grandjuryman.

You shall true prsentment make of all thinges giuen you in charge you shall prsent Nothing of Mallice or illwill youer owne Councell and youer fellowes in reference to this oath you shall well and truely keep soe healp you God.

the oath of the clarke of the court.

You shall faithfully serue in the office of the Clarke of the Court for the Jurisdiction of New Plymouth You shall attend the Generall Courts held for this Gourment att Plymouth Aforsaid and the suerall Adjournments therof; and the Courts of Assistants and there Imploy youerselfe in such occations as are behoofull to youer said place and office you shall likewise Attend such other meetings of the majestrates of like Nature as aboue expressed that shall or may fall out in the Interims of time betwixt the said Courts you shall not disclose but keep secrett such things as concerne the publicke good and shalbee thought meet to bee Concealled by the Gour and Councell of Assistants You shall faithfully Record all such thinges as you shall haue order from Authoritie to Comitte to publicke Record and shall faithfully keep the publicke Records of this Jurisdiction Soe healp you God who is the God of truth and the punisher of falshood; ...

31

[An Act of the General Court]

The text is taken from Shurtleff, Massachusetts Colonial Records: Vol. iv, 25–26.

June 10, 1661

The charter of 1629 creating the Massachusetts Bay Company not only had the standard provision providing for local self-government but also had the peculiarity of failing to make any specific reference to parliamentary authority. This was interpreted to mean, at least by the colonists, that the English Parliament had no power over the colony. The Massachusetts Body of Liberties, 1641 [22], also implied that the colony was bound only by laws of its own choosing. The document below was passed by the Massachusetts General Court in a bold attempt to essentially declare their autonomy from allegiance to the king as well, or at least to render that allegiance so tenuous as to make it meaningless. This move to enlarge the liberties of the colonies is one more major attempt by the colonists to create a political foundation based completely upon their own consent. Indeed, the document spells out clearly the major principles that underlay the evolving colonial constitutionalism. The Crown eventually revoked the colony’s charter in 1684, and this document was a major reason for that royal action.

concerning our liberties

1. We conceive the patent (under God) to be the first and main foundation of our civil polity here, by a Governor and Company, according as is therein expressed.

2. The Governor and Company are, by the patent, a body politic, in fact and name.

3. This body politic is vested with power to make freemen.

4. These freemen have power to choose annually a governor, deputy governor, assistants, and their select representatives or deputies.

5. This government has power also to set up all sorts of officers, as well superior as inferior, and point out their power and places.

6. The governor, deputy governor, assistants, and select representatives or deputies have full power and authority, both legislative and executive, for the government of all the people here, whether inhabitants or strangers, both concerning ecclesiastics and in civils, without appeal, excepting law or laws repugnant to the laws of England.

7. The government is privileged by all fitting means (yea, if need be, by force of arms) to defend themselves, both by land and sea, against all such person or persons as shall at any time attempt or enterprise the destruction, invasion, detriment, or annoyance of this plantation, or the inhabitants therein, besides other privileges mentioned in the patent, not here expressed.

8. We conceive any imposition prejudicial to the country contrary to any just law of ours, not repugnant to the laws of England, to be an infringement of our right.

concerning our duties of allegiance to our sovereign lord, the king

1. We ought to uphold and, to our power, maintain his place, as of right belonging to Our Sovereign Lord, The King, as holden of His Majesty’s manor of East Greenwich, and not to subject the same to any foreign prince or potentate whatsoever.

2. We ought to endeavor the preservation of His Majesty’s royal person, realms, and dominions, and so far as lies in us, to discover and prevent all plots and conspiracies against the same.

3. We ought to seek the peace and prosperity of Our King and nation by a faithful discharge in the governing of his people committed to our care.

First, by punishing all such crimes (being breaches of the First or Second Table) as are committed against the peace of Our Sovereign Lord, The King, his Royal Crown, and dignity.

Second, in propagating the Gospel, defending and upholding the true Christian or Protestant religion according to the faith given by our Lord Christ in His word; our dread sovereign being styled “defender of the faith.”

The premises considered, it may well stand with the loyalty and obedience of such subjects as are thus privileged by their rightful sovereign (for Himself, His Heirs, and Successors forever) as cause shall require, to plead with their prince against all such as shall at any time endeavor the violation of their privileges ... And, also, that the General Court may do safely to declare that in case (for the future) any legally obnoxious, and flying from the civil justice of the state of England, shall come over to these parts, they may not here expect shelter.

[1. ]The words “a true christian” were later struck out and the phrase in brackets substituted so that the last sentence read: “to perform as you hope for help from God....”

[1. ]Hindrance, obstruction, or delay.

[2. ]The archaic symbol for an English pound.

[1. ]In the late Middle Ages, “to convent” someone meant to call him to an assembly.

[1. ]A summary of these rights and their origins can be found in Donald S. Lutz, A Preface to American Political Theory (Lawrence: University Press of Kansas, 1992), chap. 3.

[2. ]Provision of military equipment by a feif.

[3. ]Maintenance allowance provided by a feif.

[4. ]A tax paid by the eldest to retain title to property.

[5. ]Inheritance tax.

[1. ]This reads, “That what our work ...”

[2. ]Making an allotment, apportioning, setting limits to.

[3. ]A cow common was a field or group of fields owned by the town but set aside for anyone to graze his cattle. In effect, it was a town commons.

[1. ]Perusal.

[2. ]“Sovr,” or sovereign.

[3. ]Majesty.

[4. ]In serious straits, or in serious difficulties.

[5. ]To be held without owing any of the traditional feudal duties, such as providing soldiers or military service.

[6. ]Tenancy, held as a tenant.

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Massachusetts: 3: [Agreement Between the Settlers at New Plymouth] (The Mayflower Compact) - Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History [1998]

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3

[Agreement Between the Settlers at New Plymouth] (The Mayflower Compact)

[The Plymouth Combination, or The Mayflower Compact]

4

[Plymouth Oath of Allegiance and Fidelity]

form of oath for all inhabitants

form of the oath given the governor and council at every election

5

[The Salem Covenant of 1629]

6

[Agreement of the Massachusetts Bay Company at Cambridge, England]

The true coppie of the Agreement of Cambridge, August 26. 1629.

7

[The Watertown Covenant of July 30, 1630]

July 30, 1630

8

[Massachusetts Election Agreement]

9

The Oath of a Freeman, or of a Man to Be Made Free

The Oath of a Freeman, or a Man to be Made Free

10

[The Massachusetts Agreement on the Legislature]

A General Court, holden att Boston, May 9th, 1632

11

[Cambridge Agreement]

Ann Agreement made by A Gennerall Conf for a mounthly meeting.

12

[Dorchester Agreement]

An agreement made by the whole consent and vote of the plantation made Mooneday 8th of October, 1633.

13

[Cambridge Agreement on a Town Council]

14

[Massachusetts Agreement on the Legislature]

15

The Oath of a Freeman

Att a Genrall Courte, holden att Boston, May 14, 1634.

the oath of a freeman

16

[Salem Oath for Residents]

At A Court holden att Boston, April 1th, 1634.

the oath of residents

17

[Watertown Agreement on Civil Officers]

August 23, 1634.

18

[The Enlarged Salem Covenant of 1636]

Gather my Saints together unto me that have made a Covenant with me by sacrifyce. psa. 50:5:

19

[Plymouth Agreement]

20

[Pilgrim Code of Law]

the office of the governor

the oath of the governor

the oath of a freeman

the office of an assistant

the oath of the assistants

the oath of any residing within the government

the oath of a constable

21

[Dedham Covenant]

22

[The Massachusetts Body of Liberties]

A Coppie of the Liberties of the Massachusets Collonie in New England

liberties more peculiarlie concerning the free men.