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Key Documents of Liberty: 17th Century North America

This collection of Key Documents of Liberty documents the struggle to create free institutions from the ancient world to the modern. It is part of a series of Reading Lists which will include:

• Key Documents of Liberty: The Ancient and Medieval Periods
• Key Documents of Liberty: 17th Century England
• Key Documents of Liberty: 17th Century North America
• Key Documents of Liberty: 18th Century America

The following documents were taken from the collection:

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

• Back to Top

  1: 1619: Laws Enacted by the First General Assembly of Virginia

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 70: [Laws Enacted by the First General Assembly of Virginia]

  Accessed from oll.libertyfund.org/title/694/102708 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  70

  [Laws Enacted by the First General Assembly of Virginia]

  Complete text is taken from H. R. McIlwaine and John P. Kennedy, eds., Journals of the House of Burgesses of Virginia, vol. 1 (Richmond, 1905), 9–14.

  August 2–4, 1619

  In 1618 the council in London instructed the Virginia governor to initiate the first representative assembly in the colonies. It was felt that the colonists needed to have some voice in local affairs if order and economic prosperity were to be reestablished in the faltering colony. The legislature lasted until 1624, when a reorganization imposed by the king restored all power to the governor. The following document was passed by the legislature during its initial six-year official existence. Even though adopted by what turned out to be only a transitional institution, this document is still important because it was the first compact of any sort adopted in the colonies and therefore was the first foundation document to use some form of consent. After 1624 the governor continued to call the House of Burgesses for unofficial consultations; however, he was forced to rely primarily on the upper house, the Council of State appointed by the king, and he could not act without its approval. In 1638 the governor was again officially ordered to call a session of the House of Burgesses, and with this session it moved out of the shadows. The House of Burgesses, then the lower house of a bicameral legislature, gradually gained the upper hand over the Governor and Council—it did so primarily by gaining the power to levy taxes. Within a few years its consent was necessary for the enactment of all laws. Thus, while the legislature that passed the document below was officially terminated in 1624, it never really went out of existence; and the first elected colonial legislature eventually became the centerpiece of Virginia politics.

  By this present General Assembly be it enacted that no injury or oppression be wrought by the English against the Indians whereby the present peace might be distributed and ancient quarrels might be revived. And farther be it ordained that the Chicohomini are not to be excepted out of this law, until either that such order come out of England or that they do provoke us by some new injury.

  Against idleness, gaming, drunkenness, and excess in apparel the assembly has enacted as follows.

  First, in detestation of idlers, be it enacted that if any man be found to live as an idler or renegade, though a freed man, it shall be lawful for that incorporation or plantation to which he belongs to appoint him a master to serve for wages till he shows apparent signs of amendment.

  Against gaming at dice and cards be it ordained by this present assembly that the winner or winners shall lose all his or their winnings and both winners and losers shall forfeit ten shillings a man, one ten shillings whereof to go to the discoverer and the rest to charitable and pious uses in the incorporation where the faults are committed.

  Against drunkeness be it also decreed that if any private prsons be found culpable thereof, for the first time he is to be reproved privately by the minister, the second time publicly, the third time to lie in bolts 12 hours in the house of the provost marshal and to pay his fees, and if he still continue in that vice to undergo such severe punishment as the Governor and Council of Estate shall thinke fit to be inflicted on him. But if any officer offend in this crime, the first time he shall receive a reproof from the Governor, the second time he shall openly be reproved in the church by the minister, and the third time he shall first be committed and then degraded. Provided it be understood that the Governor has always power to restore him when he shall, in his discretion, think fit.

  Against excess of apparel, that every man be assessed in the church for all public contributions, if he be unmarried according to his own apparel, if he be married, according to his own and his wife’s or either of their apparel.

  As touching the instruction of drawing some of the better disposed of the Indians to converse with our people and to live and labor among them, the assembly, who know well their dispositions, think it fit to enjoin at least to counsel those of the colony neither utterly to reject them nor yet to draw them to come in. But in case they will of themselves come voluntarily to places well peopled, there to do service in killing of deer, fishing, beating corn, and other works, that then five or six may be admitted into every such place and no more, and that with the consent of the Governor, provided that good guard in the night be kept upon them, for generally, though some among many may prove good, they are a most treacherous people and quickly gone when they have done a villainy. And it were fit a house were built for them to lodge in apart by themselves, and lone inhabitants by no means to entertain them.

  Be it enacted by this present assembly that for laying a surer foundation of the conversion of the Indians to Christian religion, each town, city, borough, and particular plantation do obtain unto themselves by just means a certain number of the native’s children to be educated by them in true religion and civil course of life. Of which children the most towardly boys in wit and graces of nature to be brought up by them in the first elements of literature, so as to be fitted for the college intended for them, that from thence they may be sent to that work of conversion.

  As touching the business of planting corn, this present assembly does ordain that, year by year, all and every householder and householders have in store for every servant he or they shall keep, and also for his or their own persons, whether they have any servants or no, one spare barrel of corn to be delivered out yearly either upon sale or exchange, as need shall require. For the neglect of which duty he shall be subject to the censure of the Governor and Council of Estate; provided always, that for the first year of every new man this law shall not be in force.

  About the plantation of mulberry trees, be it enacted that every man, as he is seated upon his division does, for seven years together, every year plant and maintain in growth six mulberry trees at the least and as many more as he shall think convenient and as his virtue and industry shall move him to plant; and that all such persons as shall neglect the yearly planting and maintaining of that small proportion shall be subject to the censure of the Governor and the Councel of Estate.

  Be it further enacted, as concerning silk flax, that those men that are upon their division or settled habitation do this next year plant and dress 100 plants which being found a commodity may farther be increased. And whosoever do fail in the performance of this shall be subject to the punishment of the Governor and Council of Estate.

  For hemp also, both English and Indian, and for English flax and aniseeds, we do require and enjoin all householders of this colony, that have any of those seeds, to make trial thereof the next season.

  Moreover, be it enacted by this present assembly that every householder does yearly plant and maintain ten vines, until they have attained to the art and experience of dressing a vineyard, either by their own industry or by the instruction of some vigneron. And that upon what penalty soever the Governor and Council of Estate shall think fit to impose upon the neglecters of this act.

  Be it also enacted that all necessary tradesmen, or so many as need shall require, such as are come over since the departure of Sir Thomas Dale or that shall hereafter come, shall work at their trades for any other man; each one being paid according to the quality of his trade and work, to be estimated, if he shall not be contented, by the Governor and officers of the place where he works.

  Be it further ordained by this General Assembly, and we do by these presents enact, that all contracts made in England between the owners of land and their tenants and servants which they shall send hither may be caused to be duly performed and that the offenders be punished as the Governor and Council of Estate shall think just and convenient.

  Be it established also by this present assembly that no crafty or advantageous means be suffered to be put in practice for the enticing away the tenants and servants of any particular plantation from the place where they are seated. And that it shall be the duty of the Governor and Council of Estate most severely to punish both the seducers and the seduced and to return these latter into their former places.

  Be it further enacted that the orders for the magazine lately made be exactly kept and that the magazine be preserved from wrong and sinister practices and that, according to the orders of court in England, all tobacco and sassafras be brought by the planters to the cape merchant till such time as all the goods now or heretofore sent for the magazine be taken off their hands at the prices agreed on, that by this means the same going for England into one hand the price thereof may be upheld the better. And to the end that all the whol colony may take notice of the last order of court made in England, and all those whom it concerns may know how to observe it, we hold it fit to publish it here for a law among the rest of our laws, the which orders is as follows.

  Upon the 26th of October 1618, it was ordered that the magazine should continue during the term formerly prefixed and that certain abuses now complained of should be reformed; and that for preventing of all impositions, save the allowance of 25 in the hundred profit the Governor shall have an invoice as well as the cape merchant, that if any abuse in the sale of goods be offered, he, upon intelligence and due examination thereof, shall see it corrected. And for the encouragement of particular hundreds, as Smith’s hundred, Martin’s hundred, Lawn’s hundred and the like, it shall be lawful for them to return the same to their own adventurers; provided that the same commodity be of their own growing, without trading with any other, in one entire lump and not dispersed, and that at the determination of the joint stock the goods then remaining in the magazine shall be bought by the said particular colonies before any other goods which shall be sent by private men. And it is, moreover, ordered that if the Lady La warre, the Lady Dale, Captain Bargrave, and the rest would unite themselves into a settled colony, they might be capable of the same privileges that are granted to any of the foresaid hundreds. Hitherto the order.

  All the General Assembly by voices concluded not only the acceptances and observation of this order, but of the instruction also to Sir George Yeardley next preceding the same; provided, first, that the cape merchant do accept of the tobacco of all and every the planters here in Virginia, either for goods or upon bills of exchange at three shillings the pound the best and 18 shillings the second sort; provided, also, that the bills be duly paid in England; provided, in the third place, that if any other besides the magazine have at any time any necessary commodity which the magazine does want, it shall and may be lawful for any of the colony to buy the said necessary commodity of the said party, but upon the terms of the magazine, viz., allowing no more gain than 25 in the hundred, and that with the leave of the Governor; provided, lastly, that it may be lawful for the governor to give leave to any mariner, or any other person that shall have any such necessary commodity wanting to the magazine, to carry home for England so much tobacco or other natural commodities of the country as his customers shall pay him for the said necessary commodity or commodities. And to the end we may not only persuade and incite men but enforce them also thoroughly and loyally to cure their tobacco before they bring it to the magazine, be it enacted, and by these presents we do enact, that if upon the judgment of four sufficient men of any corporation where the magazine shall reside, having first taken their oaths to give true sentence, two whereof to be chosen by the cape merchant and two by the incorporation, any tobacco whatsoever shall not prove vendible at the second price, that it shall there immediately be burned before the owner’s face.

  It shall be free for every man to trade with the Indians, servants only excepted, upon pain of whipping unless the master redeem it off with the payment of an angel, one-fourth part whereof to go to the provost marshal, one-fourth part to the discoverer, and the other moiety to the public uses of the incorporation where he dwells.

  That no man do sell or give any Indians any piece, shot, or powder, or any other arms offensive or defensive, upon pain of being held a traitor to the colony and of being hanged as soon as the fact is proved, without all redemption.

  That no man do sell or give any of the greater howes to the Indians, or any English dog of quality, as a mastive, greyhound, blood hound, land or water spaniel, or any other dog or bitch whatsoever, of the English race, upon pain of forfeiting five pounds sterling to the public uses of the incorporation where he dwells.

  That no man may go above twenty miles from his dwelling place, nor upon any voyage whatsoever shall be absent from thence for the space of seven days together, without first having made the Governor or commander of the same place acquainted therewith, upon pain of paying twenty shillings to the public uses of the same incorporation where the party delinquent dwells.

  That no man shall purposely go to any Indian towns, habitation, or places of resort without leave from the Governor or commander of that place where he lives, upon pain of paying 40 shillings to public uses as aforesaid.

  That no man living in this colony but shall between this and the first of January next ensuing come or send to the Secretary of State to enter his own and all his servants names and for what term or upon what conditions they are to serve, upon penalty of paying 40 shillings to the said Secretary of State. Also, whatsoever masters or people do come over to this plantation that within one month of their arrival, notice being first given them of this very law, they shall likewise report to the Secretary of State and shall certify him upon what terms or conditions they become hither, to the end that he may record their grants and commissions and for how long time and upon what conditions their servants, in case they have any, are to serve them, and that upon pain of the penalty next above mentioned.

  All ministers in the colony shall once a year, namely in the month of March, bring to the Secretary of Estate a true account of all the christenings, burials, and marriages, upon pain, if they fail, to be censured for their negligence by the Governor and Council of Estate; likewise, where there be no ministers, that the commanders of the place do supply the same duty.

  No man without leave from the governor shall kill any neat cattle whatsoever, young or old, especially kine, heifers, or cow calves, and shall be careful to preserve their steers and oxen and to bring them to plough and such profitable uses, and, without having obtained leave as aforesaid, shall not kill them upon penalty of forfeiting the value of the beast so killed.

  Whosoever shall take any of his neighbors boats, oars, or canoes without leave from the owner shall be held and esteemed as a felon and so proceeded against. Also, he that shall take away by violence or steals any canoes or other things from the Indians shall make valuable restitution to the said Indians and shall forfeit, if he be a freeholder, five pounds, if a servant 40 shillings, or endure a whipping; and anything under the value of 13 pence shall be accounted petty larceny.

  All ministers shall duly read divine service and exercise their ministerial function according to the ecclesiastical laws and orders of the Church of England and every Sunday in the afternoon shall catechize such as are not yet ripe to come to the communion. And whosoever of them be found negligent or faulty in this kind shall be subject to the censure of the Governor and Council of Estate.

  The ministers and church wardens shall seek to prevent all ungodly disorders; the committers whereof if, upon good admonitions and mild reproof, they will not forbear the said scandalous offences, as suspicions of whoredoms, dishonest company keeping with women, and such like, they are to be presented and punished accordingly.

  If any person, after two warnings, does not amend his or her life in point of evident suspicion of incontinency or of the commission of any other enormous sins, that then he or she be presented by the church wardens and suspended for a time from the church by the minister. In which interim, if the same person do not amend and humbly submit him or herself to the church, he is then fully to be excommunicated and soon after a writ or warrant to be sent from the Governor for the apprehending of his person and seizing all his goods. Provided always, that all the ministers do meet once a quarter, namely at the feast of St. Michael the Archangel, of the Nativity of our Saviour, of the Annunciation of the Blessed Virgin, and about mid-summer, at James City or any other place where the Governor shall reside, to determine whom it is fit to excommunicate, and that they first present their opinion to the Governor ere they proceed to the act of excommunication.

  For reformation of swearing, every freeman and master of a family after thrice admonition shall give 5 shillings of the value upon present demand to the use of the church where he dwells, and every servant after the like admonition, except his master discharge the fine, shall be subject to whipping; provided, that the payment of the fine notwithstanding, the said servant shall acknowledge his fault publicly in the church.

  No man whatsoever coming by water from above, as from Henrico, Charles City, or any place from the westward of James City, and being bound for Kiccowtan or any other part on this side of the same, shall presume to pass by either by day or by night without touching first here at James City, to know whether the Governor will command him any service, and the like shall they perform that come from Kiccowtanward or from any place between this and that to go upward, upon pain of forfeiting ten pounds sterling a time to the Governor; provided, that if a servant having had instructions from his master to observe his service does, notwithstanding, transgress the same, that then the said servant shall be punished at the governor’s discretion, otherwise that the master himself shall undergo the foresaid penalty.

  No man shall trade into the bay either in shallop, pinnace, or ship without the Governor’s license and without putting in security that neither himself nor his company shall force or wrong the Indians, upon pain that doing otherwise they shall be censured at their return by the Governor and Council of Estate.

  All persons whatsoever, upon Sabbath days, shall frequent divine service and sermons both forenoon and afternoon and all such as bear arms shall bring their pieces, swords, powder and shot. And every one that shall transgress this law shall forfeit three shillings a time to the use of the church, all lawful and necessary impediments excepted. But if a servant in this case shall willfully neglect his master’s command he shall suffer bodily punishment.

  No maid or woman servant, either now resident in the colony or hereafter to come, shall contract herself in marriage without either the consent of her parents or her master or masters or of the magistrate and minister of the place both together. And whatsoever minister shall marry or contract any such persons without some of the aforesaid consents shall be subject to the severe censure of the Governor and Council of Estate.

  Be it enacted by the present assembly that whatsoever servant has heretofore or shall hereafter contract himself in England, either by way of indenture or otherwise, to serve any master here in Virginia and shall afterward, against his said former contract, depart from his master without leave or, being once embarked, shall abandon the ship he is appointed to come in and so being left behind shall put himself into the service of any other man that will bring him hither, that then at the same servant’s arrival here, he shall first serve out his time with that master that brought him hither and afterward also shall serve out his time with his former master according to his covenant.

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  2: 1620: The Mayflower Compact

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

  Accessed from oll.libertyfund.org/title/694/102425 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  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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  3: 1621: Constitution for the Council and Assembly in Virginia

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 71: Constitution for the Council and Assembly in Virginia

  Accessed from oll.libertyfund.org/title/694/102710 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  71

  Constitution for the Council and Assembly in Virginia

  Complete text taken verbatim from S. M. Bemiss, The Three Charters of the Virginia Company of London, with Seven Related Documents, 1606–1621 (Williamsburg: The University Press of Virginia, 1957), 126–28.

  July 24, 1621

  Although this document was written in England, it is included here because it was adopted at the behest of the colonists as to both form and content. In effect it legally ratifies what the colonists had established in the previous document [70], which in turn had been authorized by an order from England in 1618. The present document clarifies the precise structure and operation of Virginia’s local government, and it also reaffirms the subordination of that government to the council in England. The governmental system defined here parallels that established during the early years of most colonies, including those in New England. There is a governor, with a continuously sitting council to advise him. Once a year that council is joined by elected representatives from the towns and other localities to form a complete legislature, the General Assembly. See the introduction to the previous document [70] for further discussion of the historical context surrounding its enactment.

  To all people to whom these presents shall come, be seen, or heard, the Treasurer, Council and Company of Adventurers and Planters of the City of London for the first colony in Virginia send greeting.

  Know that we, the said Treasurer, Council and Company, taking into our careful consideration the present state of the said colony in Virginia and intending, by the divine assistance, to settle such a form of government there as may be to the greatest benefit and comfort of the people and whereby all injustice, grievance, and oppression may be prevented and kept off as much as possible from the said colony, have thought fit to make our entrance by ordaining and establishing such supreme counsels as may not only be assisting to the Governor for the time being in administration of justice and the executing of other duties to his office belonging, but also by their vigilant care and prudence may provide as well for remedy of all inconveniences growing from time to time, as also for the advancing of increase, strength, stability, and prosperity of the said colony,

  We, therefore, the said Treasurer, Council and Company, by authority directed to us from his Majesty under his great seal, upon mature deliberation do hereby order and declare that from hence forward there be two supreme councils in Virginia for the better government of the said colony as aforesaid. The one of which councils to be called the Council of State and whose office shall be chiefly assisting, with their care, advise, and circumspection, to the said Governor shall be chosen, nominated, placed, and displaced from time to time by us, the said Treasurer, Council and Company and our successors; which Council of State shall consist for the present only of those persons are here inserted, viz. Sir Francis Wyatt, Governor of Virginia; Captain Francis West; Sir George Yeardley, Knight; Sir William Newce, Knight, Marshal of Virginia; Mr. George Sandys, Treasurer; Mr. George Thorpe, Deputy of the College; Captain Thomas Newce, Deputy for the Company; Mr Christopher Davison, Secretary; Doctor Potts, physician to the company; Mr. Paulet; Mr. Leech; Captain Nathaniel Powell; Mr. Roger Smith; Mr. John Berkley; Mr. John Rolf; Mr. Ralph Hamer; Mr. John Pountus; Mr. Michael Lapworth; Mr. Harwood; Mr. Samuel Macocke. Which said councillors and council we earnestly pray and desire, and in his Majesty’s name strictly charge and command, that all factious partialities and sinister respects laid aside, they bend their care and endeavors to assist the said Governor first and principally in advancement and of the honor and service of Almighty God and the enlargement of His kingdom amongst those heathen people, and in erecting of the said colony in one obedience to his Majesty and all lawful authority from his Majesty’s derived, and lastly in maintaining the said people in justice and Christian conversation among themselves and in strength and hability to withstand their enemies. And this Council is to be always, or for the most part, residing about or near the said Governor, and yearly, of course, and no oftener but for very extraordinary and important occasions, shall consist for the present of the said Council of State and of two burgesses out of every town, hundred and other particular plantation to be respectfully chosen by the inhabitants. Which Council shall be called the General Assembly, wherein, as also in the said Council of State, all matters shall be decided, determined, and ordered by the greater part of the voices then present, reserving always to the Governor a negative voice. And this General Assembly shall have free power to treat, consult, and conclude as well of all emergent occasions concerning public weal of the said colony and every part thereof as shall from time to time appear necessary or requisite. Wherein, as in all other things, we require the said General Assembly, as also the said Council of State, to imitate and follow the policy of the form of government, laws, customs, manners of loyal and other administration of justice used in the realm of England, as near as may be even as ourselves by his Majesty’s letters patents are required; provided that no laws or ordinances made in the said General Assembly shall be and continue in force and validity unless the same shall be solemnly ratified and confirmed in a general greater court of the said court here in England and so ratified and returned to them under our seal. It being our intent to afford the like measure also unto the said colony that after the government of the said colony shall once have been well framed and settled accordingly, which is to be done by us as by authority derived from his Majesty and the same shall have been so by us declared, no orders of our court afterward shall bind the said colony unless they be ratified in like manner in their General Assembly.

  In witness whereof, we have hereunto set our common seal the 24th day of (July) 1621, and in the year of the reign of our governor, Lord James by the [...] of God of England, Scotland, France, and Ireland, King, Defender of the [...], viz, of England, France, and Scotland the nineteenth and of Scotland the four and fiftieth.

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  4: 1629: Agreement of the Massachusetts Bay Company

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 6: [Agreement of the Massachusetts Bay Company at Cambridge, England]

  Accessed from oll.libertyfund.org/title/694/102434 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  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

  [1. ]Hindrance, obstruction, or delay.

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

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  5: 1637: Providence Agreement

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: Rhode Island: 32: [Providence Agreement]

  Accessed from oll.libertyfund.org/title/694/102574 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

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  32

  [Providence Agreement]

  The complete 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): 424. Evans’s spelling is used.

  August 20, 1637

  Roger Williams, who refused to take any of the oaths required by the Massachusetts Bay Colony because he believed any oath constituted taking God’s name in vain, moved with his followers to Providence, which was founded using this document. The simple covenant formula is familiar, but without the oath it becomes a compact resting on implicit popular sovereignty. In addition to being one of the first political compacts, the Providence Agreement also contains the first expression in the new world of the separation of church and state—achieved by limiting the town meeting to “civil things.” The following year the second Rhode Island colony was established at Aquidneck (Pocasset), using an oath in the traditional covenant form (see the Government of Pocasset [33]). A minority withdrew the following year from Pocasset and drew up its civil compact at Newport without an oath (see the Newport Agreement [34]). Another colony, which was established at Portsmouth, drew up its new agreement two days after Newport’s (see the Government of Portsmouth [35]); unlike the Newport Agreement, the Portsmouth one contained an oath. The Providence Agreement of 1637 was replaced by the Plantation Agreement at Providence, 1640 [36]. Portsmouth and Newport joined in a federation in 1642 that allowed each town to retain its respective government and thus to preserve the differences (see the Organization of the Government of Rhode Island [37]). Warwick formed itself in 1647 [38], and finally, in 1647 these towns all united in the Acts and Orders [39], which was a complete constitution.

  We whose names are hereunder, desirous to inhabit in the town of Providence, do promise to subject ourselves in active and passive obedience to all such orders or agreements as shall be made for the public good of the body in an orderly way, by the major consent of present inhabitants, masters of families, incorporated together in a Towne fellowship, and others whom they shall admit unto them only in civil things.

  [Signed by Richard Scott and twelve others.]

  33

  [Government of Pocasset]

  Complete text, with the original spelling, taken from J. R. Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations in New England: Vol i, 1636 to 1663 (Providence: A. Crawford Greene and Brother, State Printers, 1856), 52–53.

  March 7, 1638

  Consult the comments accompanying the Providence Agreement [32] for the historical setting of this document. A typical political covenant, this document is distinguished by references to biblical passages containing the underlying principles. The reader might want to consult these passages. The second part of the agreement was passed later in the day after a break for lunch.

  The 7th day of the first month, 1638

  We whose names are underwritten do here solemnly in the presence of Jehovah incorporate ourselves into a Bodie Politick and as he shall help, will submit our persons, lives and estates unto our Lord Jesus Christ, the King of Kings and Lord of Lords and to all those perfect and most absolute laws of his given us in his holy word of truth, to be guided and judged thereby.

  Exod. 24. 3, 4.

  2 Cron. 11. 3

  2 Kings. 11. 17

  [Signed by William Coddington and eighteen others.]

  The 7th of the first month, 1638.

  We that are Freemen Incorporate of this Bodie Politick do Elect and Constitute William Coddington, Esquire, a Judge amongst us, and so covenant to yield all due honour unto him according to the lawes of God, and so far as in us lyes to maintaine the honour and privileges of his place which shall hereafter be ratifyed according unto God, the Lord helping us so to do. William Aspinwall, Sec’ry

  I, William Coddington, Esquire, being called and chosen by the Freemen Incorporate of this Bodie Politick, to be a Judge amongst them, do covenant to do justice and Judgment impartially according to the lawes of God, and to maintaine the Fundamentall Rights and Privileges of this Body Politick, which shall hereafter be ratifyed according unto God, the Lord helping us to do so.

  Wm. Coddington

  William Aspinwall is appointed Secretary.

  It is agreed that William Dyre shall be Clarke of this Body.

  34

  [Newport Agreement]

  The complete text, with the original spelling, is taken from Bartlett, Vol. i, 1636 to 1663, 69.

  April 28, 1639

  This is the document drawn up by the dissenting minority that withdrew from the settlement at Pocasset (see the discussion of the Providence Agreement [32]). It is not an oath but rests on the agreement among the people, implying popular sovereignty. It was drawn up in Pocasset before they left.

  Pocasset. On the 28th of the 2d [month], 1639

  It is agreed.

  By vs whose hands are underwritten, to propagate a Plantation in the midst of the Island or elsewhere; And doe engage ourselves to bear equall charges, answerable to our strength and estates in common; and that our determinations shall be by major voice of judge and elders; the Judge to have a double voice.

  [Signed by William Coddington and eight others.]

  35

  [The Government of Portsmouth]

  The complete text, with original spelling, is taken from Bartlett, Vol. i, 1636 to 1663, 70–71. The gaps are in the original, and brackets indicate illegible words that have been supplied on the basis of context.

  April 30, 1639

  See the discussion of the Providence Agreement [32] for events leading up to this agreement. The Portsmouth agreement is unusual in that it is a compact; however, those signing it invoke the authority of the king, although he is unaware his authority is being used. The compact thus has the form of a civil compact without the legal status because the king has not signed it. We can only guess at the reason for this format, but it avoids invoking God’s name as well as it avoids using an implicit popular sovereignty that might, for some reason, have made these people uneasy. It certainly would make it easier for the king to approve the document post hoc. Another unusual feature is that it appears to establish government by arbitration.

  Aprill the 30th, 1639

  We, whose names are under [written doe acknowledge] ourselves the legall subjects of [his Majestie] King Charles, and in his name [doe hereby binde] ourselves into a civill body politicke, unto his lawes according to matters of justice.

  [Signed by William Hutchinson and thirty associates.]

  According to the true intent of the [foregoing instrument, wee] whose names are above particularly [recorded, do agree] joyntly or by the major voice to g[overne ourselves by the] ruler or judge amongst us in all [transactions] for the space and tearme of one [yeare, he] behaving himselfe according to the t[enor of the same.]

  We have freely made choice of [   ] to be ruler or judge among us.

  We have also, for the help and ease [of the conducting of] public business and affairs for [the colony] for one yeare, allso chosen unto him William Ballston, William Freeborne, John Porter, John [   ], John Wall, Philip Sherman, as allso William Aspinwall to lay out lands as they shall be disposed.

  We have also made choice of [   ] amongst us for this yeare ensuing.

  It is appoynted that there shall be [a court held every] yeare, every quarter, one for to doe right betwixt man and [man—a] jury of twelve men; as also it is [ordered, that] the eight men chosen unto him [shall hold a] meeting amongst themselves, to consult [together]; as also to put an end to any controverzy, if it amount not to the value of fortie [shillings.] The Judge, with the rest of the eight men [shall decide it] if brought to ye publicke Court.

  36

  Plantation Agreement at Providence

  Taken from Bartlett, Vol. i, 1636 to 1663, 27–31. The text is complete, with the original spelling.

  August 27, 1640

  The Providence Agreement, 1637 [32] created a highly democratic political system centered around a town meeting. This document does not replace that one but supplements it. Apparently the town meeting was spending too much time resolving disagreements between individuals, many of the disagreements involving money and property; so here the town has created an arbitration structure, with a set of guidelines for the arbiters, aimed at resolving such disagreements. In England, and in most other places, these disagreements would normally be taken to a court. Here, the panel of elected arbiters stands in for a civil court, which guarantees such disputes will be settled more by the ethic of neighborliness using community values and standards rather than on the basis of legalisms and standing precedent.

  Report of Arbitrators at Providence, containing proposals for a form of government Providence the 27th of the 5th mo. in the yeare (so called) 1640.

  Wee, Robert Coles, Chad Browne, William Harris, and John Warner, being freely chosen by the consent of our louing friends and neighbours the Inhabitants of this Towne of Providence, having many differences amongst us, they being freely willing and also bound themselves to stand to our Arbitration in all differences amongst us to rest contented in our determination, being so betrusted we have seriously and carefully indeavoured to weigh and consider all those differences, being desirous to bringe vnity and peace, although our abilities are farr short in the due examination of such weighty things, yet so farre as we conceive in laying all things together we have gone the fairest and equallest way to produce our peace.

  i. Agreed, We have with one consent agreed that in parting those particler properties which some of our friends and neighbours have in Patuxit, from the general Common of our towne of Providence, to run vppon a streight line from a fresh spring being in the Gulley, at the head of that cove running by that point of land called Saxafras vnto the town of Mashipawog, to an oake tree standing neere vnto the corne field, being at this time the neerest corne field vnto Patuxit, the oake tree having four marks with an axe, till some other land marke be set for a certaine bound. Also, we agree that if any meadow ground lyeing and joineing to that Meadow, that borders uppon the River of Patuxit come within the aforesaid line, which will not come within a streight line from long Cove to the marked tree, then for that meadow to belong to Pawtuxit, and so beyond the towne of Mashipawog from the oake tree between the two fresh Rivers Pawtuxit and Wanasquatucket of an even Distance.

  ii. Agreed. We have with one consent agreed that for the disposeing, of those lands that shall be disposed belonging to this towne of Providence to be in the whole Inhabitants be the choise of five men for generall disposeall, to be betrusted with disposeall of lands and also of the towne Stocke, and all Generall things and not to receive in any six dayes as townesmen, but first to give the Inhabitants notice to consider if any have just cause to shew against the receiving of him as you can apprehend, and to receive none but such as subscribe to this our determination. Also, we agree that if any of our neighbours doe apprehend himselfe wronged by these or any of these 5 disposers, that at the General towne meeting he may have a tryall. Alsoe wee agree for the towne to choose beside the other five men one or more to keeppe Record of all things belonging to the towne and lying in Common.

  Wee agree, as formerly hath bin the liberties of the town, so still, to hould forth liberty of Conscience.

  iii. Agreed, that after many Considerations and Consultations of our owne State and alsoe of States abroad in way of government, we apprehend, no way so suitable to our Condition as government by way of Arbitration. But if men agree themselves by arbitration, no State we know of disallows that, neither doe we: But if men refuse that which is but common humanity betweene man and man, then to compel such vnreasonable persons to a reasonable way, we agree that the 5 disposers shall have power to compell him either to choose two men himselfe, or if he refuse, for them to choose two men to arbitrate his cause, and if these foure men chosen by every partie do end the cause, then to see theire determination performed and the faultive to pay the Arbitrators for theire time spent in it: But if those foure men doe not end it, then for the 5 disposers to choose the 3 men, and for the certainty hereof, wee agree the major part of the 5 disposers to choose the 3 men, and the major part of the 3 men to end the cause hauing power from the 5 disposers by a note under theire hand to performe it, and the faultive not agreeing in the first to pay the charge of the last, and for the Arbitrators to follow no imployment till the cause be ended without consent of the whole that have to doe with the cause.

  Instance. In the first Arbitration the offendor may offer reasonable terms of peace, and the offended may exact upon him and refuse and trouble men beyond reasonable satisfaction; so for the last arbitrators to judge where the fault was, in not agreeing in the first, to pay the charge of the last.

  iv. Agreed, that if any person damnify any man, either in goods or good name, and the person offended follow not the cause vppon the offendor, that if any person giue notice to the 5 Disposers, they shall call the party delinquent to answer by Arbitration.

  Instance. Thus, if any person abuse an other in person or goods, may be for peace sake, a man will at present put it vp, and it may so be resolue to revenge: therefore, for the peace of the state, the disposers are to look to it in the first place.

  v. Agreed, for all the whole Inhabitants to combine ourselves to assist any man in the pursuit of any party delinquent, with all our best endeavours to attack him: but if any man raise a hubbub, and there be no just cause, then for the party that raised the hubbub to satisfy men for their time lost in it.

  vi. Agreed, that if any man have a difference with any of the 5 Disposers which cannot be deferred till general meeting of the towne, then he may have the Clerk call the towne together at his [discretion] for a tryall.

  Instance. It may be, a man may be to depart the land, or to a farr parte of the land; or his estate may lye vppon a speedy tryall or the like case may fall out.

  vii. Agreed, that the towne, by the five men shall give every man a deed of all his lands lying within the bounds of the Plantation, to hould it by for after ages.

  viii. Agreed, that the 5 disposers shall from the date hereof, meete every month-day vppon General things and at the quarter-day to yeeld a new choise and give vp theire old Accounts.

  ix. Agreed, that the Clerke shall call the 5 Disposers together at the month-day, and the generall towne together every quarter, to meete vppon general occasions from the date hereof.

  x. Agreed, that the Clerke is to receive for every cause that comes to the towne for a tryall 4d.1 for making each deed 12d. and to give vp the booke to the towne at the yeeres end, and yeeld to a new choice.

  xi. Agreed, that all acts of disposall on both sides to stand since the difference.

  xii. Agreed, that every man that hath not paid in his purchase money for his Plantation shall make vp his 10s.2 to be 30s. eqval with the first purchasers: and for all that are received townsmen hereafter, to pay the like summe of money to the town stocke.

  These being those things wee have generally concluded on, for our peace, we desireing our loveing friends to receive as our absolute determination, laying ourselves downe as subjects to it.

  [Signed by the four writers in the document plus thirty-five others.]

  37

  [Organization of the Government of Rhode Island]

  Complete text, with the original spelling, taken from Bartlett, Vol. i, 1636 to 1663, 111–15.

  March 16–19, 1642

  Finding themselves sharing an island in Narragansett Bay, the towns of Portsmouth and Newport united using a document that mixed a few general principles and brief institutional descriptions with, among other miscellany, ordinances on the killing of foxes and deer. The most important result was the election of a common representative body. Another important feature, however, was religious toleration (it prohibited anyone from being held delinquent from doctrine). As a founding document this one is defective for two reasons—the colony-wide institutions are underspecified and the relationship between the colony governments and town governments is unclear. Although defective in these respects, as well as confusing in its organization and content, the document served as a kind of constitution for five years but was later replaced by the Acts and Orders of 1647 [39].

  The Generall Court of Election began and held at Portsmouth, from the 16th of March, to the 19th of the same mo., 1641.

  1. It was ordered and agreed, before the Election, that an Ingagement by oath should be taken of all the officers of this Body now to be elected, as likewise for the time to come; the ingagement which the severall officers of the State shall give is this; To the Execution of this office, I Judge myself bound before God to walk faithfully and this I profess in ye presence of God.

  by election.

  2. Mr. Will’m Coddington is chosen Governour for one whole yeare, or till a new be chosen.

  Mr. Wm. Brenton is chosen Dep’ty Governour, for one whole yeare, or, &c.

  Mr. John Coggshall is chosen Assistant for one whole yeare, or, &c.

  Mr. Rob’t Harding is chosen Assistant for one whole yeare, or, &c.

  Mr. Wm. Balston is chosen Assistant and Treasurer for one whole yeare, etc.

  Mr. John Porter is chosen Assistant for one whole yeare, or until, &c.

  Wm. Dyre is chosen Secretary for one whole yeare, or until, &c.

  Mr. Rob’t Jeoffreys is chosen Treasurer for one whole yeare, or, &c.

  Thomas Gorton and Henry Bull are chosen Sergeant Attendants of Portsmouth for one yeare, or till a new be chosen.

  Thomas Cornell and Henry Bishop are chosen Constables of Nuport, for one yeare, or till a new be chosen.

  3. It is ordered and unanimously agreed upon, that the Government which this Bodie Politick doth attend vnto in this Island, and the Jurisdiction thereof, in favour of our Prince is a democracie, or Popular Government; that is to say, It is in the Powre of the Body of Freemen orderly assembled, or the major part of them, to make or constitue Just Lawes, by which they will be regulated, and to depute from among themselves such Ministers as shall see them faithfully executed between Man and Man.

  4. It was further ordered, by the authority of this present Courte, that none bee accounted a Delinquent for Doctrine: Provided, it be not directly repugnant to ye Government or Lawes established.

  5. It was further ordered, that all such who shall kill a Fox shall have six shillings and eight pence, for his paines, duly paid vnto him by the Treasurer of ye Towne in which lands it was killed: Provided, that he bring the Head thereof to said Treasurer; and this order shall be of sufficient authority to the Treasurer to pay and discharge the said summ.

  6. It is further ordered, that all Men who shall kill any Deare (except it be upon his own proper Land), shall bring and deliver half the said Deare into the Treasurie, or pay Forty shillings; and further it is ordered, that the Governour and Deputy Governour shall have authority to give forth a Warrant to some one deputed of each Towne to kill some against the Court times for the Countries use, who shall by his Warrant have Libertie to kill wherever he find; Provided, it be not within any man’s enclosure, and to be paid by the Treasurer: Provided, also, that no Indian shall be suffered to kill or destroy at any time or any where.

  7. It is ordered from henceforth, that the Quarter Session Courts shall alway be kept the first, the first Tuesday in March; the second, the first Tuesday in June; the third, the first Tuesday in September; the last, the first Tuesday in December.

  8. It is ordered, that Eight Gunns and their furniture with two corsletts, now in the hands of Mr. Willbore, shall be taken off by the Threasurie Joint-lie, as part of satisfaction for what debts from him is now dew thereto: and that the said Armes be equally divided to each Towne.

  9. It is ordered, that the Deputie Governour and Mr. Willbore, and Mr. Coggshall, and Mr. Jeremy Clarke, shall be joyned in commission with the Two Treasurers that now bee, to examine the Treasurie, and to even the accounts, and then to present them so rectified to the next General Court; and what oneveness there is found to bee, the one Treasurer shall make payment to the other Treasurer within twentie dayes after the period of their commission: the limits which are set for the performance of this, shall be three weeks from the date hereof.

  10. It is ordered, that Mr. Porter, Mr. Balston, Mr. Easton, and Mr. Jeoffreys shall runn the line between the two Towns within twentie dayes after the date hereof, or else shall forfeit a Mark a peece; and performing it within the (time or) tearme they shall have a Mark a peace for their Labour.

  11. It is ordered, that each Towne shall provide a Towne Book, wherein they shall Record the Evidences of the Lands by them impropriated; and shall also have Powre to give forth a Coppie thereof, which shall be a clear evidence for them and theirs, to whom it is so granted.

  12. It is ordered, that the Officers of Justices of the Peace is confirmed to the Magistrates.

  13. It is ordered, that no Fiers shall be kindled by any whatsoever to runn at Randome, eyther in Meadows or Woods; but what by him that so kindled it shall forthwith be put out, that it damnifie none. And that if damage shall accrew, satisfaction to the utmost shall be awarded.

  14. It is ordered, that a Booke shall be provided, wherein the Secretary shall write all such Lawes and Acts, as are made and constituted by the Body, to be left alway in that Towne where the said Secretary is not resident; and also that coppies of such Acts as shall be made now or hereafter, at the Generall Courts concerning necessary uses and ordinances to be observed, shall be fixed upon some public place where all men may see and take notice of them; or that coppies thereof be given to the Clerks of the Band, who shall read them at the head of the Companie.

  15. It is ordered, that a Manual Seale shall be provided for the State, and that the Signett or Engraving thereof, shall be a sheafe of Arrows bound up, and in the Liess or Bond, this motto indented: Amor vincent omnia.

  16. It is ordered, that Ingagement shall be taken by the Justices of the Peace in their Quarter Sessions of all men or youth above fifteen years of age, eyther by the oath of Fidelity, or some other strong cognizance.

  17. It is ordered, that a Line be drawen and a way be cleared between the Townes of Nuport and Portsmouth, by removing of the wood and mowing it; that drift Cattle may sufficiently pass; and for the performance thereof, Capt. Morris, of the one Towne, and Mr. Jeoffreys of the other, are appointed to draw the Line, and to be paid therefore, and the Townes to perform the rest.

  18. It is ordered, that the Traine Bands shall choose among the Freemen, one or more such as shall be for their commanders, and present them to the Towne. The Major vote of the Towne, by the Authority of this Court, shall have the negative voise for the Establishment of them, and shall order their Powre till the next Generall Courte.

  19. It is ordered, that the major part of the Courts, being lawfully assembled at the place and houre appointed, shall have full Powre to transact the business that shall be Presented: Provided, it be the Major part of the Body entire, if it be the Generall Court (present) or the Major part of the Magistrates, with the Jury in the inferior Courts; and that such acts concluded and issued be of as full authority as if there were all present. Provided, there be due and seasonable notice given of every such Court.

  38

  [Warwick Agreement]

  Complete text, with the original spelling, taken from Bartlett, Vol. i, 1636–1663, 134–35.

  August 8, 1647

  Unlike Providence, Pocasset, Portsmouth, and Newport, Warwick did not write its own founding document prior to the granting of an official charter in 1644 because its inhabitants did not feel it lawful to erect their own government without explicit authority from England. Written three years after Rhode Island was chartered as a colony, the Warwick Agreement reflects the need to fit into the frame of that charter. The result is the purest example during the colonial era of a civil covenant sanctioned by the king.

  Know all men, Colonies, Peoples, and Nations, unto whom the same hereof shall come; that wee, the chiefe Sachems, Princes or Governours of the Nanhigansets (in the part of America, now called New-England), together with the joynt and unanimous consent of all our people and subjects, inhabitants thereof, do upon serious consideration, mature and deliberate advise and counsell, great and weighty grounds and reasons moving us thereunto, whereof one most effectual unto us, is, that noble fame we have heard of that Great and mighty Prince, Charles, King of Great Britaine, in that honorable and princely care he hath all his servants, and true and loyall subjects, the consideration whereof moveth and bendeth our hearts with one consent, freely, voluntarily, and most humbly to submit, subject, and give over ourselves, peoples, lands, rights, inheritances, and possessions whatsoever, in ourselves and our heires successively for ever, unto the protection, care and government of that worthy and royal Prince, Charles, King of Great Britaine and Ireland, his heires and successors forever, to be ruled and governed according to the ancient and honorable lawes and customes, established in that so renowned realme and kingdome of Old England; we do, therefore, by these presents, confesse, and most willingly and submissively acknowledge ourselves to be the humble, loving and obedient servants and subjects of his Majestie; to be ruled, ordered, and disposed of, in ourselves and ours, according to his princely wisdome., counsell and lawes of that honorable State of Old England;

  and wrighting us of what wrong is, or may be done unto us, according to his honorable lawes and customes, exercised amongst his subjects, in their preservation and safety, and in the defeating and overthrow of his, and their enemies; not that we find ourselves necessitated hereunto, in respect of our relation, or occasion we have, or may have, with any of the natives in these parts, knowing ourselves sufficient defence, and able to judge in any matter or cause in that respect; but have just cause of jealousy and suspicion of some of His Majesty’s pretended subjects. Therefore our desire is, to have our matters and causes heard and tried according to his just and equall lawes, in that way and order His Highness shall please to appoint:

  having ourselves been the chief Sachems, or Princes successively, of the country, time out of mind; and for our present and lawfull enacting hereof, being so farre remote from His Majestie, wee have, by joynt consent, made choice of foure of his loyall and loving subjects, our trusty and well-beloved friends, Samuel Gorton, John Wickes, Randall Houlden and John Warner, whom we have deputed, and made our lawful Attornies or Commissioners, not only for the acting and performing of this our Deed, in the behalfe of his Highnesse, but also for the safe custody, careful conveyance, and declaration hereof unto his grace: being done upon the lands of the Nanhigansett, at a Court or Generall Assembly called and assembled together, of purpose, for the publick enacting, and manifestation hereof.

  And for the further confirmation, and establishing of this our Act and Deed, wee, the abovesaid Sachems or Princes, have, according to that commendable custome of Englishmen, subscribed our names and sett our seals hereunto, as so many testimonies of our fayth and truth, our love and loyalty to that our dread Soveraighne, and that according to the Englishmen’s account.

  39

  Acts and Orders of 1647

  Spelling is as it appears in Bartlett, Vol. i, 1636 to 1663, 38–65. The text is quite lengthy and herein is reproduced only in part. Sections excluded deal with more standard or mundane aspects of law, such as fraud, forgery, trespassing, larceny, assault, robbery, and burglary.

  The Acts and Orders of 1647, like the Pilgrim Code of Law, 1636 [20] and Fundamental Orders of Connecticut, 1639 [43], is a complete document of foundation and qualifies as a true constitution. Like these other early colonial constitutions, the Acts and Orders creates a federal system wherein the towns composing it continue to have functioning governments with their own powers and competencies. In 1663 Rhode Island received a new charter from the king, which essentially ratified the government established by the Acts and Orders. In 1776 Rhode Island retained this charter as the constitution for its new independent statehood simply by removing any references to the king, and the charter was not replaced until 1842. Scholars of American constitutionalism thus put the duration of the Acts and Orders, Rhode Island’s first constitution, at 195 years, which was a record duration for a modern constitution until the Massachusetts Constitution of 1780 turned 196 in 1976. The Acts and Orders is also notable in that it was the first colonial foundation document specifically based on English principles of law instead of principles and practices derived from religion.

  Acts and Orders

  Made and agreed upon at the Generall Court of Election, held at Portsmouth, in Rhode Island, the 19, 20, 21 of May, Anno. 1647, for the Colonie and province of Providence.

  Mr. John Coggeshall is chosen Moderator of the present Assembly.

  2. It was Voted and found, that the major part of the Colonie was present at this Assemblie, whereby there was full power to transact.

  3. It was further agreed, that in case the Assemblie departe unto the number of Fortie; those fortie shall stay and act as if the whole were present, and be of as full authoritie.

  4. It was agreed, that all should set their hands to an engagement to the Charter.

  5. It was agreed and ordered, that a week before any General Courte, notice should be given to every Towne by the head officer, that they chuse a Committee for the Transaction of the affaires there, except it bee for the Election of Generall Officers; and such as go not, may send their votes sealed.

  6. It was ordered, upon the request of the Commissioners of the Towne of Providence, that their second instruction should be granted and established unto the, Vidg’t. Wee do voluntarily assent, and are freely willing to receive and to be governed by the Lawes of England, together with the way of the Administration of them, soe far as the nature and constitution of this Plantation will admit, desiring (soe far as possible may be,) to hold a correspondence with the whole Colonie in the modell that hath been latelie shewn vnto us by our worthy Friends of the Island, if the Generall Court shall compleate and confirm the same, or any other Modell as the Generall Courte shall agree vpon according to our Charter.

  7. It was unanimously agreed, That we do all owne and submit to the Lawes, as they are contracted in the Bulke with the Administration of Justice, according thereto, which are to stand in force till the next Generall Courte of Election, and every Towne to have a Coppie of them, and then to present what shall appeare therein not to be suitable to the Constitution of the place, and then to amend it.

  8. It was agreed, that Warwick should have the same priviledges as Providence.

  9. It was agreed, that the Generall Courte of Tryall should be held at Newport vpon the second Tuesday of June next ensuing.

  10. It was agreed, that the Election of Offices should be by papers.

  Mr. John Coggeshall is chosen President of this Province, or Colonie.

  Mr. Roger Williams is chosen Assistant of Providence,

  Mr. John Samford is chosen Assistant of Portsmouth,

  Mr. Wm. Coddington is chosen Assistant of Newport,

  Mr. Randall Holden is chosen Assistant of Warwick,

  William Dyre is chosen Gen. Recorder,

  Mr. Jeremy Clerke is chosen Treasurer.

  11. It is ordered, that all cases presented, concerning General Matters for the Colony, shall be first stated in the Townes, Vigd’t, That is, when a case is propounded, The Towne where it is propounded, shall agitate and fully discuss the matter in their Towne Meetings and conclude by Vote; and then shal the Recorder of the Towne, or Towne Clerk, send a coppy of the agreement to every of the other three Townes, who shall agitate the case likewise in each Towne and vote it, and collect the votes. Then shall they commend it to the Committee for the General Courte (then a meeting called,) who being assembled and finding the Major parte of the Colonie concurring in the case, it shall stand for a Law till the next Generall Assembly of all the people, then and there to be considered, whether any longer to stand yea or no; Further it is agreed, that six men of each Towne shall be the number of the Committe premised, and to be freely chosen. And further it is agreed, that when the General Courte thus assembled, shall determine the cases before hand thus presented, It shall also be lawful for the said General Court, and hereby are they authorized, that if vnto them or any of them some case or cases shall be presented that may be deemed necessary for the public weale and good of the whole, they shall fully debate, discuss and determine ye matter among themselves; and then shall each Committee returning to their Towne declare what they have done in the case or cases premised. The Townes then debating and concluding, the votes shall be collected and sealed up, and then by the Towne Clarke of each Towne shall be sent with speed to the General Recorder, who, in the presence of the President shall open the votes; and if the major vote determine the case, it shall stand as a Law till the next General Assemblie then or there to be confirmed or nullified.

  12. It is ordered, that the Courte of Election shall alway be held upon the first Tuesday after the 15th of May, annually, if wind or weather hinder not. Then the General Court of Tryall immediately to succeed vpon the dissolving of the said General Court, Vidg’t: the next day; and that the next General Court of Election shall be held at Providence Towne. Further, it is agreed, that forasmuch as many may be necessarily detained, that they cannot come to the General Court of Election, that then they shall send their votes sealed upon unto the said Court, which shall be as effectual as their personal appearances.

  13. It is ordered, that each Towne shall choose and order ye authoritie of two Surveyors for the Highways, and appoint time to mend them; also that they are to have notice of all cattle that shall be exported, and returne the marks of them unto the Towne; and if any shall presume to export any without giving notice of it to the men appointed, or their Deputies he shall forfeit all such Cattle so exported, or the worth of them.

  14. It is ordered, that the Inhabitants of Portsmouth and Newport here present doe presently choose their officers of the Island; but that this act shall be not precedent for the future, but that the constant course of choosing shall be hereafter, when as the year is out, as the Major votes of the Townes of Portsmouth and Newport shall order it sometimes before the year is out, in some peaceable and moderate way which they shall agree upon.

  the engagement of the officers

  You. A. B ———, being called and chosen vnto public employment, and the office of ———, by the free vote and consent of ye Inhabitants of the Province of Providence Plantations (now orderly met), do, in the present Assemblie, engage yourself faithfully and truly to the utmost of your power to execute the commission committed vnto you; and do hereby promise to do neither more nor less in that respect than that which the Colonie [authorized] you to do according to the best of your understanding.

  We, the Inhabitants of the Province of Providence Plantations being here orderly met, and having by free vote chosen you ———, to public office and officers for the due administration of Justice and the execution thereof throughout the whole Colonie, do hereby engage ourselves to the utmost of our power to suport and vphold you in your faithful performance thereof.

  15. It is ordered, that the Councills of Newport and Portsmouth, shall consult and agree how and in what manner (within these thirtie dayes) the monthly and quarterly Courts shall be ordered, and who shall sit therein; further, it is agreed, that all cases depending shall be heard and issued at the next Generall Court of Tryall.

  16. It is ordered, that the Townes shall appoint men to view all Goates and Swine killed or to be killed, and shew the eare markes of them unto the said persons or one of them, whereby it may appeare to be their own; and if any shall presume to conceale eyther Swine or Goats so killed or to be killed, shall forfeit five pounds; one half to the State, the other to him that will sue for it, eyther by action or bill. It shall be lawfull also, for those that are appointed to the service being necessarily detayned, to make, constitute, and appoint a Deputie.

  17. It is ordered, that John Cooke and Thomas Brownell, are chosen Water Bailies for the Colonie.

  18. It is ordered, that the Seale of the Province shall be an Anchor.

  19. It is ordered, that the Councils of the Townes consisting of six men shall be chosen at their next Towne Meetings.

  20. It is ordered, that the Sea Lawes, otherwise called the Lawes of Oleron, shall be in force among us for the benefit of Seamen (vpon ye Island,) and the Chief Officers in the Towne shall have power to summon the Court and determine the cause or causes presented.

  21. It is ordered, that none shall goe out of the Court without leave; or if any do depart, he shall leve his vote behind him, that his power remain, though his person be absent.

  22. It is ordered, forasmuch as Mr. Roger Williams hath taken great paines and expended much time in the obtayning of the Charter for this Province of Noble Lords and Governors; be it enacted and established, that in regard of his so great travaile, charges and good endeavours, we do freely give and grant to the said Roger Williams one hundred pounds, to be levied out of the three townes, Vidg’t: Fifty pounds out of Newport, thirtie pounds out of Portsmouth, and twentie pounds out of Providence, which rate is to be levied and paid in by the last of November next.

  23. It is ordered, that forasmuch as there are some remote places inhabited and possessed within our Charter, and it is found necessary that a vigilant eye be had over them, it is ordered, that Newport shall take into their custody the Trading house or houses of the Narragansett Bay; Portsmouth to take in Prudence; and Patuxet shall be left to their choice, whether they will have Providence, Portsmouth or Newport over them. And it is ordered, that the officers of each Towne shall have full power and authoritie in them or eyther of them, according to their precincts, by this present Court assyned.

  24. It is ordered, that there is free Libertie granted for the free Inhabitants of ye Province (if they will) to erect an Artillery Garden, and those that are desirous to advance the Art Military, shall have freedom to exercise themselves therein, and to agree of their forme, and choose their officers, as they shall agree among themselves.

  25. Provided, [   ] shall choose their officers after the 15th of June next, vpon paine of forfeiting Tenn pounds a Town, if neglected.

  26. It is ordered, that in cases of necessity without the bounds of the Townes, a special officer for ye execution of Justice, may be authorized by any of the Generall Officers for a general case.

  27. It is ordered, that ye General Officers shall write to the Bay about Patuxet Inhabitants; and also write to the Inhabitants thereof to owne and choose the Government of the Province.

  28. It is ordered, that the Dutch, French or other Alliants, or any Englishman inhabiting among them, shall pay the like customs and duties, as we doe among them for all such goods as shall be imported for the English, excepting beaver. Also, we do absolutely prohibit them or any of them to trade or barter with the Indians within our Jurisdiction, upon paine of forfeiture of Shipp and Goods; and this to take effect after due notice given. The Generall Officers are ordered to write to the Dutch Governor, and upon the returne of the answer it shall be commended to the Townes to consider of.

  29. It is ordered, that all ye Inhabitants in each Towne shall choose their Military Officers from among themselves on the first Tuesday after the 12th of March; and that eight sevarall times in the yeare, the Bands of each plantation or Towne, shall, openlie in the field, be exercised and disciplined by their Commanders and Officers, in the months of May, August, January and February excepted; and on the first Monday of ye other months, all the Train Bands to make their personal appearances completely armed, to attend their colors, by 8 o’clock in the morning, at the second beate of ye Drum; and if any appear not, they shall forfeit and pay five shillings into the hands of the Clarke of ye Band; and if any shall come defective in his Armes or furniture, he shall forfeit and pay ye sum of twelve pence, after the Town Council have caused them to be supplied; and that all men who shall come and remaine ye space of twenty days, shall be liable to ye injunction of this order; Provided, herdsmen, fighter-men and such as be left of necessity at Farmes, shall pay two shilings and sixpence for every dayes absence: And that the two Chief officers in each Towne, to witt: one of the Commonweale, the other of the Band, upon the exhibition of the complaint by ye Clark (which shall be within three dayes after the fault committed,) shall judge and determine of ye reasons of the excuses, who, upon the hearing thereof, shall determine whether every such person shall pay five shillings, two shillings and sixpence, or nothing; and according as they find any defective, shall give their warrants to ye Clark to distraine their Goods if they shall refuse to pay what is ordered. And if the Clarke shall neglect to gather up what is ordered, he shall forfeit and pay so much into the hands of the Captain, the next training day; And that all the fines and forfeitures shall be imployed to the use and service of the Band. And the Towne Councils shall have power to cause those which are defective in armes, to be supplied in an equal way according to Estate and strength. And if any of ye Traine Band after his appearance shall refuse or neglect the command of his Captain, to be exercised and disciplined, he shall forfeit as much as if he had not appeared: And that the Town Council shall order the power of the Military Officers within the Towne, and in all caes that concerne ye whole, the President and ye foure assistants, and ye Captains of every Band shall be the Councill of Warr; that if any of the Officers of ye Band be at any time left out, they shall beare Armes again, for ye Constitution of our place will not beare the contrary: that every Inhabitant of the Island above sixteen or under sixty yeares of age, shall alwayes be provided of a Musket, one pound of powder, twenty bullets, and two fadom of Match, with sword, rest, bandaleers all completely furnished.

  30. It is ordered, that in regard of ye many incursions that we are subjected vnto, and that an Alarum for ye giving of notice thereof is necessary when occasion is offered. It is agreed, that this form be observed. Vidg’t: Three Muskets distinctly discharged, and a Herauld appointed to go speedilie threw the Towne, and crie, Alarum! Alarum!! and the Drum to beate incessantly; upon which, all to repair (upon forfeiture and the Town Councill shall order) unto the Town House, there to receive information of the Town Councill what is farther to be done.

  31. It is ordered and agreed, that if any person or persons, shall sell, give deliver, or any otherwayes convey any powder, shott, lead, gunn, pistoll, sword, dagger, halberd or pike to the Indians that are or may prove offensive to this Colonie, or any member thereof, he or they, for the first offence, shall forfeit ye sum of five pounds; and for his second offence, offending in the same kind, and being lawfully convicted, shall forfeit ten pounds; half to the State, and half to him that will sew for it, and no wager of Law by any means to be allowed to the offender. And, it is further ordered, that if any person shall mend or repaire their Guns, or [   ] he shall forfeit the same penaltie.

  32. It is ordered, that the Towne Officers shall given their engagements in their severall Townes to ye General Officer in that Towne, before they execute their office.

  33. It is ordered, that if the Indians shall offer to putt away upon exchange or barter, their false peag for good, and warrant it so to be, and it be found otherwise, it shall be confiscated to the Public Treasury.

  34. It is ordered, that every Towne shall have a coppy of the Lawes and Orders, and that each Towne shall pay for their coppy; and also, that the Councell for the Townes shall order the fees for their Officers, and the Generall Officers shall order the fees of the General Officers: Provided, that nothing already concluded in the Bulck of Lawes be any wayes crossed or envaded.

  for the province of providence.

  Forasmuch as we have received from our Noble Lords and Honored Governours, and that by virtue of an ordinance of the Parliament of England, a free and absolute Charter of Civill incorporation, &c. Wee do joyntlie agree to incorporate ourselves, and soe to remaine a Body Politicke by the authoritie thereof, and therefore do declare to own ourselves and one another to be Members of the same Body, and to have right to the Freedome and priviledges thereof by subscribing our names to these words, following: vidg’t.

  Wee, whose names are here vnder written, doe engage ourselves to the vttmost of our Estates and Strength, to mainteyne the authority and to enjoy the Libertie granted to vs by our Charter, in the extent of itt according to the Letter, and to mainteyne each other by the same authoritie, in his lawfull right and Libertie.

  And with this our Charter gives vs powre to governe ourselves and such other as come among vs, and by such a forme of Civill Government as by the Voluntarie consent, &c., shall be found most suitable to our Estate and condition,

  It is agreed, by this present Assembly thus incorporate, and by this present act declared, that the forme of Government established is democraticall; that is to say, a Government held by ye free and voluntarie consent of all, or the greater parte of the free Inhabitants.

  And now to the end that we may give, each to other, (notwithstanding our different consciences, touching the truth as it is in Jesus, whereof, upon the point we all make mention,) as good and hopeful assurance as we are able, touching each man’s peaceable and quiett enjoyment of his lawfull right and Libertie, we doe agree vnto, and by the authoritie above said, Inact, establish, and confirme these orders following.

  touching lawes.

  That no person, in this Colonie, shall be taken or imprisoned, or be disseized of his Lands or Liberties, or be Exiled, or any other otherwise molested or destroyed, but by the Lawfull judgment of his Peeres, or by some known Law, and according to the Letter of it, Ratified and confirmed by the major part of the Generall Assembly lawfully met and orderly managed.

  2. That no person shall (but at his great perill,) presume to beare or execute any office, that is not lawfuly called to it, and confirmed in it; nor though he be lawfully called and confirmed, presume to doe more or less than those that had powre to call him, or did authorize him to doe.

  3. That no Assembly shall have powre to constitute any Lawes for the binding of others, or to ordaine Officers for the execution thereof, but such as are founded upon the Charter and rightlie derived from the General Assemblie, lawfully met and orderly managed.

  4. That no person be employed in any service for the Publick Administration of Justice and Judgment vpon offenders, or between Man and Man, without good encouragement, and due satisfaction from the Publick, eyther out of the common stock, or out of the stocks of those that have occasioned his service; that so, those that are able to serve, may not be unwilling, and those that are able and willing, may not be disabled by being overburthened. And then, in case a man be called vnto Office by a lawfull Assemble, and refuse to beare office, or be called by an officer to assist in the execution of his office, and refuse to assist him, he shall forfeit as much again as his wages would have amounted unto, or be otherwise fined by the judgment of his Peers, and to pay his fine or forfeiture, unless the Colony, or that lawful Assembly release him. But in case of eminent danger, no man shall refuse.

  And now, forasmuch as our Charter gives us powre to make such Lawes, Constitutions, Penalties, and Officers of Justice for the execution thereof as we, or the greater part of vs shall, by free consent, agree vnto, and yet does premise that those Lawes, Constitutions, and Penalties soe made shall be conformable to the Lawes of England, soe far as the nature and constitution of our place will admit, to the end that we may show ourselves not only unwilling that our popularity should prove (as some conjecture it will,) an Anarchie, and so a common Tyranny, but willing and exceedingly desirous to preserve every man safe in his person, name and estate; and to show ourselves, in soe doing, to be also vnder authoritie, by keeping within the verge and limitts prescribed us in our Charter, by which we have Authoritie in this respect to act; Wee do agree and by this present act determine, to make such Lawes and Constitutions soe conformable, &c., or rather to make those Lawes ours, and better known among us; that is to say, such of them, and so farr, as the nature and constitution of our place will admit.

  touching the common law.

  It being the common right among common men, and is profitable eyther to direct or correct all, without exception; and it being true, which that Great Doctor of the Gentiles once said, that the Law is made or brought to light, not for a righteous man, who is a Law vnto himselfe, but for the Lawless and disobedient in the Generall, but more particularly for murderers of Fathers and Mothers; for Manslayers, for whoremongers, and those that defile themselves with mankind; for Menstealers, for Lyars and perjured persons, vnto which, vpon the point, may be reduced the common Law of the Realme of England, the end of which is, as is propounded, to preserve every man safe in his own person, name and estate; Wee doe agree to make, or rather to bring such Lawes to light for the direction or correction of such lawless persons, and for their memories sake to reduce them to these five generall Lawes or Heads; viz.:

  1. Under that head of murdering Fathers and Mothers, being ye highest and most unnatural, are comprehended those Lawes that concerne High Treason, Pettie Treason, Rebellion, Misbehaviour, and their accessaries.

  2. Under the Law for Manslayers, are comprehended those Lawes that concerne Self-murder, Murder, Homicide, Misadventure, casual death, cutting out the Tongue or Eyes, Witchcraft, Burglarie, Robberie, Burning of Houses, Forcible entryes, Rescues and Escape, Riotts, Routs and Unlawfull Assemblies, Batteries, Assaults and Threats and their accessaries.

  3. Under the Law for Whoremongers, and those that defile themselves with mankind, being the chief of that nature, are comprehended those Lawes that concerne Sodomie, Buggerie, Rape, Adulterie, Fornication, and their Accessaries.

  4. Under the Law for Menstealers, being the chief of that nature, are comprehended those Lawes that concern Theft of men, Larcenie, Trespasses by Men or beasts, Fraudulent dealing by deceitfull bargaine, Covenants, Conveyances by Barratrie, Conspiracie, Champertie and Maintenance, by forging or rasing records, Writs, Deeds, Leases, Bills, &c., and by using fallse weights and measures and their accessaries.

  5. Under the Law for Lyars and perjured persons, being the chiefe of that nature, are comprehended such as concerne perjurie itselfe, breach of covenant, Slander, False witnesse-bearing, and their accessories.

  And as necessary concomitants hereof, to prevent Murder, Theft and Perjury, We do joyntlie agree in this present Assemblie, to make or produce such Laws as concerne provision for the poore, soe that the impotent shall be mainteyned and the able employed. And to prevent Poverties, it is agreed, that such Lawes be made and produced as concernes ye ordering of Alehouses, and Taverns, Drunkenness and unlawfull gaming therein; and instead of such to propagate Archerie, which is both man-like and profitable; and to prevent whoredom and those evils before mentioned, it is agreed by this present Assemble to constitute and establish some ordinance touching Marriage, Probate of Wills, and Intestates ...

  Rebellion.

  It is agreed and enacted by this present Assemblie, that no inferiour shall rise up or rebell against his superiour, especially such to whom he more directlie owes faith, dutie, and ready obedience; it being altogether unsuitable to civill order, which by the authoritie of our Charter we purpose to propagate; wherefore, we doe declare that we counte it a kind of Rebellion for a servant to threat, assault, or strike his master; and the penaltie for a threat or assault shall be, to be bound to his good behaviour; for striking especially if it be malitiouslie, to be sent to the House of Correction, there to remaine for six months, or to satisfie his master. It is allso Rebellion for a child to threat, assault, or strike his Parents, and his Penaltie shall be, to be sent to the House of Correction, there to remaine a twelve-month, or to humble himself to his parents’ satisfaction. It is allso Rebellion to threat, assault or strike a Judge of Record; and the penaltie to be bound to his good behaviour, and further fined by his Peers. It is also a kind of Rebellion to withstand an arrest, and the execution of Judgment; the penaltie to be bound to his good behaviour, and to be judged by his Peers.

  Misbehaviour.

  It is agreed by this present Assemblie, and by this act declared, that for any man to sue words of contempt against a chief officer, especially in the execution of his office, is against good manners, and misbehaviour; and his penaltie shall be, to be bound to appeare at the next Court, where such matters are to be Tryed: where, being lawfully convict by his Peers, he shall be bound to his good behaviour, so to remaine for three months space, or till the next Court following ...

  Touching Whoremongers.

  First of Sodomie, which is forbidden by this present Assemblie threwout the whole Colonie, and by Sundry Statutes of England. 25 Hen. viii. 6; 5 Eliz. xvii. It is a vile affection, whereby men given up thereto, leave the natural use of woman, and burne in their lusts, one toward another; and so men with men worke that which is vnseemly, as that Doctor of the Gentiles in his letter to the Romans once spake, i. 27; The Penaltie concluded by that State under whose authoritie we are, is Felonie of death, without remedye. See 5 Eliz. 17.

  Buggerie.

  Buggerie is forbidden by this present Assembly threwout the whole Colonie, and also strengthened by the same Statute of England. It is a most filthy lying with a beast as with a woman, and is abomination and confusion; the just reward whereof prepared to our hands, is Felonie of death, without remedie. See 5 Eliz. 17.

  Rape.

  Rape is forbidden by this present Assembly threwout the whole Colonie; and we do hereby declare, that it is when a man through his vile and unbridled affection, lyeth with, forceth a woman against her will; like hereunto is the knowing of a maid carnally who is vnder ye age of Tenn yeares, though it be with her consent. The penaltie we do declare to be Felonie of death. See, for confirmation, 13 Edw. i. 34; and if the Woman consent after, she loseth her dowre of Lands. See 6 Rich. ii. 6. And so doth a married wife that elopeth with her adventurer. 13 Edw. i. 34.

  Adulterie and Fornication.

  Is forbidden by this present Assembliy threwout the Colonie, with this memento, that the Most High will judge them. 13 Hen. iv. Adultery is declared to be a vile affection, whereby men do turn aside from ye naturall use of their own wives, and do burn in their lusts towards strange flesh; and we do agree, that what penaltie the Wisdome of the State of England have or shall appoint touching these transgressions, the accessarie and effects shall stand in force threwout the whole Colonie.

  Touching Menstealers.

  It is agreed, and by this present Assembly enacted, that the taking away, deflouring or contracting in marriage a maid under sixteen yeares of age, against the will of, or vnknown to the Father or Mother of the Maid, is a kind of stealing of her; and that the penaltie shall be eyther five years’ imprisonment or satisfaction of her parents. 4 Will. and Mary, 8 ...

  Touching Liars and Perjured Persons.

  Forasmuch as the consciences of sundry men, truly conscienable, may scruple the giving or taking of an oath, and it would be noways suitable to the nature and constitution of our place (who professeth ourselves to be men of different consciences, and no one wiling to force another) to Debar such as cannot do so, eyther from bearing office amongst vs, or from giving in testimony in a case depending.

  Be it enacted by the authority of this present Assembly, that a solemn profession or Testimony in a Court of Record, or before a Judge of Record, shall be accounted, threwout the whole Colonie of as full force as an oath; and because many, in giving engagement or testimony, are usually more over awed with the Penaltie which is known, than with the most High, who is little known in the Kingdoms of men.

  It is, therefore, further agreed and ordered, that he that falsifieth such a solemn profession or testimony, shall be accounted among vs as a perjured person, and his penaltie shall be that, looke what detriment is or might be brought vpon others by falsifying his engagement or testimony, the same shall fall upon himself. He shall also forfeit five pounds, and be disenabled eyther to beare office, or to give in Testimony in any Court of Record, vntill the Colonie release him; and this forfeiture and determinet, (the partie being lawfully convicted,) shall be, one halfe to the King’s Custome, and the other shall go to the partie grieved that sues for it, by action of debt or bill: but in case the partie be not worth so much, then shall he be imprisoned in the House of Correction till it be wrought out, or else sett in the Pillory in some open place, and have his Eares nayled thereto; and then may the partie grieved receive his dammages; and the procurer shall have the like penaltie. See 5 Eliz. 9.

  Breach of Covenant.

  Breach of Covenant is by the present Assembly, forbidden threwout the whole Colonie.

  It is enacted, and agreed, that they that perform not their Covenants made eyther by word or writing, (excepting those before excepted,) shall be liable to satisfie what the other can prove he is damnified by reason of the non-performance thereof, which he may recover upon an action of the case.

  And be it further enacted, that no person retayning a servant, shall putt their servant away, nor no person retayned shall depart from their master, mistress or dame, untill the end of the term covenanted for, vss it be for some reasonable and sufficient cause, witnessed before and allowed by the Head Officer or Officers of the Towne, and three or foure able and discreet men of the Comon Councill or Towne appointed thereto, vnder their hands in writing, for the discharge eyther of Master or Servant.

  And be it enacted further, that that Master, Mistress or Dame, that putts away their servant without sufficient cause, and so allowed with such a discharge, shall forfeit the sum of forty shillings; and if any servant departe from his or her Master, Mistress or Dame’s service before the end of the Terme covenanted for, vnless it be for some sufficient cause allowed of as before, or not serve according to the Tenure of the promise or covenant, vpon complaint vnto the Head Officers of the Towne and their associates, the matter being fully proved, he shall be committed to Ward without Baile or Mainprize, vntill by sufficient sureties he be bound to his Master, Mistress or Dame, to perform the engagement.

  Be it enacted, by the authoritie above said, that he that shall retaine a Servant now lawfully dismissed and sett at liberty from his Master, shall forfeit for every such offence five pounds, which the Master may recover by an action of Debt. See 5 Eliz. 4 ...

  Slaunder.

  Forasmuch as a good name is better than precious ointment, and Slaunderers are worser than dead flies to corrupt and alter the savour thereof, it is agreed, by this present Assembly, to prohibitt the raysing or spreading of false reports, Slaunderers and Libells throwout the whole Colonie; and we further declare that the partie offended or grieved by such False reports, Slaunders, and Libells as hereafter followeth, may bring his action of slaunder against the reporter and speaker thereof, in case vpon demand he reaveale not the author, but if revealed, then against the Author, and shall recover sufficient damages. The cases actionable are these; for a man to say eyther by word or writing, and yet not able to prove it, that another is a Traytor, a Fellon, a Thiefe, a Cutt-purse, or hath stole something; a perjured person, or hath forsworn himselfe in any man’s case; a Bankrupt, a Cheater, or one that lives by cheating; to call and be not able to prove it, an unmarried woman a whore; a young man unmarried, a whoremaster; to say a young man keepeth a House of Bawdery; or that a Tradesman maketh nothing but bad wares; or that a Merchant or shop-keeper hath nothing but rotten, bad and vnsound wares in his house or shopp, or to speak any thing in the dispragement of a Man’s goods that he putts to sale whereby he may be damnified.

  Poore.

  It is agreed and ordered, by this present Assembly, that each Towne shall provide carefully for the reliefe of the poore, to maintaiyne the impotent, and to employ the able, and shall appoint an overseer for the same purpose. See 43 Eliz. 2.

  Scoulds.

  It is ordered, Common Scoulds shall be punished with the Ducking Stoole.

  Ale Houses.

  It is ordered, by the authority of this present Assembly, that no Taverne, Alehouse or Victualling House, shall be kept threwout the whole Colonie without Licence or Allowance; and whosoever shall keep Taverne or Alehouse, or Victualling house without licence, shall forfeit twenty shillings, which shall be levied to the vse of the poore, and shall by the head officer of the Towne be forthwith discharged. See 3 Car. 3.

  Licenses.

  Be it also enacted by the authority of this present Assembly, that each Towne shall have power to allow Tavernes, Alehouses, and Victualling houses within its own precincts; and the Head officer of the Towne shall binde by Recognizance every such Taverne, Alehouse keeper and Victualler so allowed, with two such sufficient sureties to keep good order in his house, and not to vse such games as are judged by the Lawes of England to be vnlawfull in such Common houses, as Carding, Dicing, Slide, Groat, &c., and not to suffer any Townsmen to remeine tipling therein for one hours space, vnder the penaltie of ten shillings for every such default, vpon the view of the head officers, or vpon the information of sufficient witnesses vpon their solemn testimony, or by his owne confession; And every Townsman so taken, shall forfeit for every time, three shillings and four pence; which forfeitures shall be taken by distreint and given to the overseer for the use of the Poore.

  Drunkenness.

  Drunkenness is forbidden throwout this whole Colonie; and it is further agreed, that the head officer of each Towne, or any other Magistrate shall have powre upon his owne view, confession of the partie or proof vpon one witness his Testimony, to convict a person of drunkenness, who shall be by him enjoyned to pay five shillings, for that fact into the hands of the overseer for the vse of the poore, within one week after the same conviction; and in case the partie refuse so to do or be not able; then shall he be sett in the Stocks, and there remaine for the space of six houres; and for the second offence, being convicted as aforesaid, he shall forfeit ten shillings, to be paid as before; and shall be bound by the head officer or magistrate before whom he is convicted, to his good behaviour, with two sufficient sureties in the summe of tenpounds. 21 Jac. 7 ...

  Marriage.

  It is agreed, and ordered by this present Assemblie, for the preventing of many evills and mischiefs that may follow thereon, that no contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawfull marriage, nor their Children or Issue so coming together to be legitimate or lawfullie begotten, but such as are, in the first place, with the parents, then orderly published in two severall meetings of the Townsmen, and lastly confirmed before the head officer of the Towne, and entered into the Towne clerk’s Booke. And that man that goes contrarie to this present Ordinance established, shall forfeit five pounds to the parents of the Maid, and be bound to his good behavior; and all the accessories shall forfeit five pounds a man, halfe whereof shall go to the grieved parents and the other halfe of the Towne ...

  Touching the Public Administration of Justice

  According to the Lawes Agreed Upon and

  Established Throwout the Whole Colonie.

  Be it enacted by this present Assemblie, that for matters of greater weight and moment, there shall be erected a Generall Court of Tryalls for the whole Colonie, and Generall Officers for the Administration of Justice therein.

  The Court shall be held twice in the yeare, in case there be matters that are then and there to be Tryed, Sci: upon the next day after the dissolving of the Court of Election held in May, and the other upon the last Tewsday of the eighth moneth, commonly called October, and these Courts to be held at ———.

  It is further agreed, that to these Colonie Courts of Tryall, shall appertaine the Tryall of such Crimes as may hazard Life, Limbe, Disfranchisement or Bannishment; and such Trespasses, Debts, and differences (as by the Common Councill eyther of Towne or Townes shall be judged too weightie for a more private determining). Also, such matters of difference as fall out betweene Towne and Towne, or between parties dwelling in two Townes more remote, or in the case of an arrest of a man belonging to a neighbour Colonie, or, in cases of great importance; also, attaints of Inquests, and Tryalls of perjuries, and finally all such matters as are not referred, by any charter or order, vnto any Towne apart, or to the Island, or two Townes joyntlie.

  Be it enacted further by the authority of this present Assemblie, that the Generall Officer for the whole Colonie shall be these, Sci: One President, foure Assistants, in every Towne one, one General Recorder, one Publick Treasurer, and a General Sargent; which Officers shall be chosen every yeare in the General Assembly, and towards the latter end of that Session. They shall also be chosen after this matter: for President, Recorder, Treasurer and Serjant each Towne shall present one; and he which the major part of the General Assembly pitcheth upon by paper, shall stand and be confirmed in his Office for that yeare; and for Assistant, each Towne shall present two, and he which the vote by paper pitcheth upon, shall be the Assistant in that Towne.

  Be it further enacted, that the President and Assistants shall have such a Commission by which they shall be conservators of the peace in the same Towne where they live and throwout the whole Colony. By this Commission, they shall keep the peace, and in case it be broke by threats, assaults, or affrayes, eyther before any of them or vpon lawfull complaint, he or they shall bind the parties by recognizance with two sufficient sureties vnto the peace, and to prepare at that Court where such matters are to be tryed, and soe to remaine, vntill by proclamation in open Court he shall be acquitted ...

  president’s commission.

  By a speciall commission, the President shall sitt as Chief Judge in the Colonie Courts of Tryall, to see that order and course of Law appointed thereto be dulie observed, and the verdict being given in, he is to pronounce the sentence.

  In case it be a matter of Felonie, to deliver vp to the Generall Sargent to the execution, or see it done and performed.

  In case it be a matter of Trespass, debt or any other difference betweene Man and Man; he is, together with the Assistants, to tax the costs and to send forth a Writ of Execution unto the Generall Sargant at least tenn dayes before, to give the whole Colonie notice, to the end they may prepare for the Generall Assemblie.

  assistants.

  By a speciall commission, all the assistants, if not necessarily deteyned, shall sit with the President in ye Generall Courts of Tryall, and shall supply the roome of a Coroner in each Towne where they dwell.

  touching the generall recorder.

  Be it enacted by this present Assemblie, that the Generall Recorder’s Office shall be in the generall, to keep a Coppie of all the Records or Acts of the Generall Assemblie, Generall and particular Courts of Judicature, Rolles of the Freemen of the Colonie, Records, Evidences, Sales and Bargaines of Land, Wills and Testaments of the Testators, and orders of the Townsmen touching the Intestate, Records of the Limitts and Bounds of Townes, their Highways, Driftwayes, Commons and Fencings, Priviledges and Liberties. And forasmuch as matters of greatest concernement ought to be kept and preserved with the greatest vigilance: Be it enacted, that the Generall purchases, (which are all we can shew for our right to our Lands, and the Charter which is that which gives vs who are Subjects right to exercise authority one over another,) be kept in a strong chest, having foure severall Locks annexed thereto, and that each Towne keep a key thereof, that soe, as there is a common right and interest therein, there may be no access vnto them in a divided way, (lest also, they be divided) but with a common consent. And let it be further enacted, that this chest be placed in the safest place of the Colonies; and the Generall Recorder, also, shall have the key to the Roome in which it is placed.

  Be it also enacted, that he that is Generall Recorder, shall supply the roome of the Clerke of the peace or assizes, in the Generall Court of Tryall, as it is a Court of Assize or Goale delivery. And as Clark of assize, his office shall be to receive examination, information, recognizances and bailments, presented by the Officer who committed the Felon to prison. He shall also receive the bill of indictments presented by him who was bound to prosecute the prisoner; he shall read the indictments and enroll the acts of the Court itself, the indictment, the process, the answer, the traverse itself, the verdict, the judgment thereupon, and the execution. And as this Court is a Court of Common Please, soe he shall supply the roome of the master of the office, and in that regard his office shall be, vpon the request of the plaintiff or his Attorney, (in matters that clearly appertaine vnto that Court,) to direct a Writ to the General Sargant to arrest the defendant, in such an action, of such a man, and to take baile for his appearance by such a day as the writ makes mention to be returnable; and in case the General Sargant returne ye defendants Bond by the day appointed, then shall he enter into his appearance, and in case they proceed, his office shall be, to file such declarations and answers. But in case after a declaration is filed in expectation of an answer, or to make his defence, and he doth not, then the plaintiff taketh him by fault, which is called confessing the action; and then the Recorders office shall be, to enter and record a nihil dicit (id est,) he saith nothing thereon, and so shall be send out a writ of enquiry of dammages vnto the Towne where the defendant lives. And the head officer of the Towne, at the next Towne Court, shall enquire of damages, and by a writ of destringes to the Sargant, shall cause the defendant for that purpose to come to the Court, and in case he appeare not, he shall forfeit the distraint, and the head officer of the Towne may distraine again and again. The matter being issued in the Towne, it shall be returned into the office, and the Recorder shall then enter the postia returne, and give forth to the General Sargent a writ of Execution.

  touching the publick treasurer.

  Be it enacted, that the Publick Treasurer shall only receive such finds, forfeitures, amercements and taxes, as fall vpon such as are not within the liberties of the three Townes specified in the Charter; and Warwick, that is invested with the like priviledges and powre; and that the Townes mentioned shall receive and keep safe in their custody all finds, forfeitures and amercements that shall be levied upon the Inhabitants thereof vntill they be called for by the authority from England; but if vpon our humble petition, they be granted to the Colony, then shall they enjoy them as a helpe in their Government as their custom forever. Moreover, looke what comes into the Publick Treasury by that way, he shall give account of in the Generall Assembly.

  touching the generall sargant.

  Be it enacted by this present Assemblie, that he that is chosen Generall Sargant shall be an able man of Estate, for so ought a Sheriff to be, whose place he supplies; whose office shall be to attend all Colonye Courts of Tryall, and to serve eyther by himselfe or the Serjants of each Towne, all Writts originall or judiciall; who having arrested a man for that which he is bailable, he shall take baile by an obligation to himselfe, with sufficient sureties; the condition of which shall be, to make appearance in the place, and at the time, the bill, writt, or warrant specifies. He shall also gather vp all fines, forfeitures and amercements, that are made at the Colonie Courts of Tryall, and shall returne them faithfully unto the Treasurie to which they appertaine. When he is chosen, he shall be solemnly engaged to exact no more than his wages, and to take no more than is forfeited; for not serving writts and warrants, he shall lose to the party grieved, treble damages, forfeit Forty Pounds; twentie whereof is the King’s Custome, and twentie shall be to the party that sueth. And he that summons or doth arrest without warrant, shall be imprisoned till he pay to the party grieved ten pounds, his costs and damages, and twentie pounds to the King. See the 43 Eliz. 6. He shall also have the charge of the prison for the Colony, and the prisoners therein.

  But forasmuch as Justice cannot be had in the general Court of Judicature, notwithstanding these Officers, without Pleaders and Tryars, be it enacted, that there shall be both, and rules given for their orderly proceedings.

  touching the inquest for tryars.

  To save needless expenses and travailes, be it enacted, by the authority of this present Assemblie, that all Traitors, Felons, and such as are suspected thereof shall be indicted by twelve or sixteen honest and lawful men of, and also in the Towne where the person was taken, or of, and in the Towne where his Tryall shall be, and at the Court of Tryall. And that three of the most sufficient and least suspicious persons in each Towne bee chosen by the Townsmen tenn days before, and sent to that Court to attend the Tryall of such matters as shall be presented, and that these be returned and arrayed by the General Sargent, so that the parties may have knowledge of them foure dayes before the Sessions of the Justices upon paine of ten pounds; and that they be chosen by neyther old men above seventy yeares, nor mean men, nor such as have a charter of exemption, nor an indictor, nor interested in the deliverance of an indictee. See 42 Edw. iii. 11; 13 Edw. i. 37; 25 Edw. iii. 3; 3 Hen. v. 3; 23 Hen. vi. 9.

  And be it further enacted, that no man shall pass vpon the Life of a Man in this Colonie, nor in plea real, no, nor personal in any issue joyned, that amounts in the dammage to the value of forty marks, nor touching forcible entry, nor touching Riotts, who is not clear worth forty pounds, nor in smaller matters in the Towne that is not clearly worth twenty pounds.

  And be it further enacted, that men have their peremptory and other challenges, to the full, as they have them in England, where for petty Treason, Murder and Felony, they may challenge to the number of twentie. See 32 Hen. viii. 3.

  And be it enacted, that the inquest upon the Tryall of persons indicted of Felonie, shall eyther allow of, or reject the witnesses according to their consciences, of all or the major part of them. 4 Jac. 3.

  And be it further enacted, that the inquest being thus chosen by the Townes, and summoned by the Sargant, in case any of them appeare not, their roome shall be supplied by such among those that stand about, or that live in the same Towne (and they refusing, the same fine,) where the Colonie Court of Tryall is held, and every man soe chosen and summoned, if he appeares not, shall lose and forfeit five shillings and ten pence; or what he might have gott if he had attended the service which the Court shall determine, which, by a distringas from the Court, the Serjant shall require, and levie and deliver into the Treasury to which it belongs.

  And be it further enacted by the authority of this present Assemblie, that if any false verdict be given in any action, suit, or demand, either in this or in any other Court of the Colonie, in any thing personall, as Trespass, Debt, Difference, &c.; the party grieved shall have a writ of attaint out of this Court of the Colonie, putting in sufficient security against each partie giving in such an untrue verdict, whereby yee parties shall be summoned by great distresses; and in case the thing in demand and the verdict surmounts forty pounds, to the three able men of each Towne shall be added twelve of the same Towne, where the Colonie Court of Tryall shall be, being worth three score pounds a piece, if such and so many are to be had, and in case these find they gaven an vntrue verdict, every one of the former inquest shall forfeit twenty pounds, ten whereof is the King’s custome, and ten pounds shall go to the partie grieved, that sues for it; he shall be also not of credence, neither shall his solemn testimony be taken in any Court, vntill the Colonie release him. But if, eyther the demand or verdict be vnder forty pounds, then shall the inquest be worth fifty pounds a man; and every one of the petty inquest being found guilty, shall forfeit five pounds, the like punishment as is before specified. See 23 Hen. viii. 3; 37 Hen. viii. 5. And in case he that sues for the writ of attaint makes it not good, every party attainted may have his action against him, and recover sufficient dammages.

  touching pleaders.

  Be it enacted by the authority of this present Assembly, that any man may plead his own case in any Court, or before any Judge of Record Throwout the whole Colonie, or may make his Attorney to plead for him, or may vse the Attorney that belongs to the Court which may be two in a Towne, to wit; discreet, honest and able men for understanding, chosen by the Townsmen of the same Towne, and solemnly engaged by the head officer thereof, not to vse any manner of deceit to beguile eyther Court or partie. And these being thus chosen and confirmed, shall be authorized, being entertayned, to plead to any Court in the Colonie; but in case such pleader or Attorney shall vse any manner of deceit as is aforesaid, and be thereof attainted, or that shall be notoriously in any default of record, he shall forfeit his place, and never more be admitted to plead in any Court of the Colonie. See 3 Edw. 1, 28; 4 Hen. iv. 18.

  Be it also further enacted, that in matters of oversie betweene partie and partie, or Towne and Towne, that belongs to the hearing and determination of the Colony Court of Tryall, the partie complaining, or his attorney, shall goe to the General Record, and in his office shall enter his action; then shall he request a writ to arrest the defendant as is abovesaid, returnable at least twenty dayes before the Court; the bond of the defendant being returned into the Recorder’s Office, the plaintiff or his Attorney, shall, within foure dayes after, file his declaration in the Recorder’s Office (or he shall be non-suited) where the defendant or his Attorney may see it and take forth a coppie thereof; then shall the defendant or his Attorney, file the answer eight dayes before the Court. And so shall they join issue, that Court, and proceed to Tryall, where the witnesses to prove or disprove the issue being produced, the plaintiff and defendant may plead their own cause, or have their Attorneys plead for them before ye Bench, and the inquest; and the verdict and judgment being given, the Recorder shall enter it. But in case the defendant puts in his answer, and at the Court makes his demurr, then shall the Court judge of the sufficiency thereof, and so shall accept the demurr, or proceed; but in case he neyther puts in his answer, nor demurr, or gives in his answer, but puts not in his demurr, and yet appeares not, then shall be entered, he saith nothing; and so shall it be taken for granted he confesseth the action, and then shall go forth a writ from the Court vnto the Towne in which he lives, to enquire of dammages, which being returned to the Recorder, a process or writ shall go forth for Execution.

  And now forasmuch as we have prescribed Rules and orders, whereby are declared both the authoritie, office and duty of every person that shall be employed about this Colonie Court of Tryall, and have likewise declared, that the President’s and foure assistants’ office (among other things that belong to their care) is to see that order and course of Law appointed to this Court be dewly observed.

  It is agreed, and by the authority of this present Assemblie enacted, that as the former Lawes are committed to their custodie to see them observed or executed, soe are these constitutions, so farr, as they have a respect vnto an orderly finding out of Justice and the administration thereof, committed to their charge, to see them observed.

  And furthermore be it enacted, as that which adds to the comely and commendable order of this Court of Judicature, that at eight of the clock in the morning of those dayes vpon which the Court is appointed at the farthest, the President, the Towne Assistants, and the Head Officers of the same Towne where the Court shall be kept, (for their Councill and helpe,) shall sit in the publicke Sessions house, and also the Generall Recorder, where shall attend those that seeke for justice, their pleaders, witnesses, Tryars and the Generall Sarjant with his prisoners ready either to rid his hands of them, or else to doe execution vpon them or others as Justice shall require.

  In the first place, the Recorder shall present, and if there be time read over the bills of indictment; and if, in case they have been examined or presented by an inquest before, then shall he pass them over; if not, then shall the President sett apart the honest and lawfull men prepared for that purpose, by a solemn engagement, faithfully to enquire touching the bills, and soe shall send them forth with the same.

  Then, in case there be any controversies or difficulties between partie and partie that are lawfully and orderly presented to that Court for Tryall, the Recorder shall read them over in the open Courte, and that which was first joyned for issue, shall come first to the hearing. And because the twelve men are to have the hearing and determining of all controversies and differences depending between partie and partie, they shall be first called forth by the President and placed in order before those that are to be judged, from whom they shall receive a solemn charge vpon the perill and penaltie the law hath provided, to do justice between the parties contending, according to evidence. This done, then shall the parties, (having first had their lawfull challenges,) or their Attornies plead their cases before them, produced their witnesses for what they affirme, which shall be taken upon the like perill. When they have sufficiently discussed the difference, then shall the President or any other of the Assistants mind the inquest of the most material passages and arguments that are brought by one and other for the case and against it, without alteration or leaning to one party or another, (which is too commonly seene,) and soe shall the President advise the inquest to goe forth and do justice and right between their neighbours, according to the evidence that has been brought, for what has been pleaded. These being gone forth, then may the Court proceed to deale with such as are bound by recognizance eyther to release them or to continue their Bonds, according as there is just cause, and may read over the Indictments that have been enquired into before, and are now presented as true bills, or that were committed to the inquest in the beginning of the Court and are returned true bills, The twelve men returning with a verdict it shall be recorded, and soe shall they be employed, vntill all the differences be ended.

  And forasmuch as it belongs to the Justices to taes the costs, lett the vacant times be so employed.

  These controversies, differences and demands being thus all issued, then let the Recorder call to ye Sarjant to bring forth ye Prisoners. Before each prisoner lett his inductment be read, and he demanded what he saieth to the indictment, whether Guilty or not. If he answer Guilty, his confession shall be recorded. If he sayeth not Guilty, then lett him be demanded if he will be tryed by God and the Country, sci: his countrymen. If he consents, the President shall call forth the twelve men before him, wish him to look upon them, and ask if he have any thing against them; if not, then he shall charge them vpon the former perill, to deale faithfully and truly in the matter; it being a matter of consequence and moment, and to proceed to determine according to the light of their consciences, vpon the evidence given in, and if any be found Guilty of death, to be reprieved to the next Court. And thus having issued all matters depending, the President with the assistants and councellors shall give forth writs vnto the Generall Sarjant for the severall executions, and so break vp the Court for that time and sitting.

  And be it further enacted, by the authoritie of this present Assemblie, that the perill that any officer shall susteyne, for going without, besides, or beyond his Commission, shall be first lawfuly and orderly judged. And that no officer employed in this Colonie shall think it strange or hard dealing to be brought to his faire Tryall, and Judgment for what he hath done amiss.

  Be it enacted, that the Cheife Officers of the Colonie, Island, or Townes, shall be tryed and judged in the Generall Assembly by a committe of the most able and impartiall men, chosen out from among them, against whom they may have also their lawfull challenges: and that all other officers abusing their offices, shall be tryed and judged eyther in the Towne by which they were chosen; or, if the Towne please, or if not chosen by the Towne, then shall they be tryed and judged by the Colonie Courts of Tryalls, And in case any man sues for Justice against an officer or other, and he cannot be heard, or is heard and cannot be righted by any Law extant among vs, then shall the partie grieved petition to the Generall or Law making Assemblie, and shall be relieved.

  And now forasmuch as the choice of all the officers that are to be employed in this Colonie, like the Colonies about vs, once a year, whereby it may be easily collected, that he that hath an office or charge this yeare, may have none another; and it would be too prejudicial to the peace of the place or quiet Government thereof, for a man out of a discontented selfwill, or other pretence, not to resigne, together with his office, belonging to the Colonie, Island or Towne, to him that is chosen and appointed thereto ...

  40

  Charter of Providence

  Taken from Bartlett, Vol. i, 1636 to 1663, 214–16. The text, with the original spelling, is complete.

  March 14, 1649

  This is not a true charter insofar as it does not proceed from the king. Rather it is typical of many early colonial documents because it proceeds from powers of self-government frequently granted in the original charters from England. It is one of the earliest examples of a town charter being granted from what we would today consider the state level—equivalent to the state of Texas granting Houston a city charter. Note the inhabitants are taking it upon themselves to act on their own and are careful to cite their authority to do so under the charter granted by the king, implying that the king is sanctioning this document. The colonists see a federal relationship between the king and colony and therefore have no difficulty imagining a federal relationship between the colony government and its town governments.

  Charter of Providence

  Whereas, by virtue of a free and absolute charter of civill incorporation, granted to the free inhabitants of the colonie of Providence, by the Right Honorable Robert, Earl of Warwick, Governor in chiefe with the rest of the Honorable Commoners, bearing the date the 7th day of March, Anno 1643, givinge and grantinge full power and authoritie vnto the said inhabitants to governe themselves and such others as shall come among them, as also to make, constitute and ordaine such lawes, orders and constitutions, and to inflict such punishments and penalties as is conformable to the lawes of England, so neare as the nature and constitution of the place will admit, and which may best suite the estate and condition thereof, and whereas the said towns of Providence, Portsmouth, Newport and Warwick are far remote from each other, whereby so often and free intercourse of help, in decidinge of differences and trying of causes and the like, cannot easilie and at all times be had and procured of that kind is requisite; therefore, upon the petition and humble request of the freemen of the Town of Providence, exhibited unto this present session of the General Assembly, wherein they desire freedome and libertie to incorporate themselves into a body politicke, and we, the said Assembly, having duly weighed and seriously considered the premises, and being willing and ready to provide for the ease and libertie of the people, have thought fit, and by the authoritie aforesaid, and by these presents, do give, grant and confirme unto the free Inhabitants of the towne of Providence, a free and absolute charter of civill incorporation and government, to be knowne by the Incorporation of Providence Plantation in the Narrangansett Bay, in New-England, together with full power and authoritie to governe and rule themselves, and such others as shall hereafter inhabit within any part of the said Plantation, by such a form of civill government, as by voluntarie consent of all, or the greater part of them, shall be found most suitable unto their estate and condition; and, to that end, to make and ordaine such civill orders and constitutions, to inflict such punishments upon transgressors, and for execution thereof, and of the common statute lawes of the colonye agreed unto, and the penalties and so many of them as are not annexed already unto the colonye court of trialls, so to place and displace officers of justice, as they or the greater parte of them shall, by one consent, agree unto. Provided, nevertheless, that the said lawes, constitutions and punishments, for the civill government of the said plantation, be conformable to the lawes of England, so far as the nature and constitution of the place will admit, yet, always reserving to the aforesaid General Assemblie power and authoritie so to dispose the generall governmente of that plantation as it stands in reference to the rest of the plantations, as they shall conceive, from time to time, most conducing to the generall good of the said plantations. And we the said Assemblie, do further authorise the aforesaid inhabitants to elect and engage such aforesaide officers upon the first second day of June, annually. And, moreover, we authorize the said inhabitants, for the better transacting of their publicke affaires, to make and use a publicke seal as the knowne seale of Providence Plantation, in the Narrangansett Bay, in New-England.

  In testimonie whereof, we the said Generall Assemblie, have hereunto sett oure handes and seales the 14th of March, anno 1648.

  John Warner

  Clerk of the Assemblie.

  41

  [General Assembly of Rhode Island Is Divided into Two Houses]

  Taken without alteration from Bartlett, Vol. ii, 1664 to 1677, 110.

  March 27, 1666

  Several colonies independently made this important move to a bicameral legislature—Massachusetts (Massachusetts Bicameral Ordinance [24]) and Connecticut (Division of the Connecticut General Assembly [54]) are others noted in this collection. To a certain extent these moves to bicameralism were attempts to emulate the structure and processes of the British Parliament, and to a certain extent they were a response to colonial political inclinations. The documents provide only vague reasons for bicameralism, but it is certain that the British model was not so much slavishly imitated as it was studied for beneficial design characteristics. In British North America, with no true aristocracy to serve as the basis for an upper house, bicameralism was grounded in the desire for a careful, deliberative process as well as in a desire to distinguish representation of specific geographical units, such as towns and counties, from representation of the interests of the entire colony. In short, bicameralism provided a way for the colonists to respond simultaneously to two of their fundamental values—localism and the common good.

  The Assembly having taken notice of the motion from the townes of Portsmouth and of Warwick, desiring the Assembly would order that the deputyes may sitt apart from the magistrates as a House by themselves; and consequently the magistrates to sitt as a House by themselves; and that of these two houses may consist the law makeing power, called in the Charter the Gennerall Assembly, of this body, collony, or corporation of Rhode Island and Providence Plantations. At this present Assembly haveing well weighed such conveniances, and such considerationes as may perswade to grant the same, and yett to provide against such inconveniancyes as may for want of mature and sound advice proceed therefrom, doe in this presant Assembly enacte and declare that it is freely agreed, that the request of the townes aforesaid, be granted and ordered, that the magistrates sitt by themselves, and the deputyes by themselves, and that each house soe sitting have equal power and priviledge in the proposeing, composing and propagating any act, order and law in Gennerall Assembly; and that neither house in Gennerall Assembly shall have power without the concurrance of the majour part of the other House, to make any law or order to be accounted as an acte of the Gennerall Assembly. This in gennerall, is fully ordered, with a recommendation of the more pertickelar and methodicall settleing the ways and circumstances of ordering and regulating the afaires in each house and addresses, &c., from the one house to the other, vnto the consideration of the Gennerall Assembly, that is to sitt the first Wednesday in the month of May, now next ensuinge: where it is hopefully expected the matter may be fully debated and sett in a good way vpon more deliberation than this presant time can afford. The Court haveing alredye sate long on other weighty matters that lay before them.

  Ordered, that the Recorder shall have for his atendance on the Gennerall Assembly in October, and for the Assembly now in March, 1666, for coppies of both, twenty five shillings from each towne.

  Ordered, that coppies shall spedily goe forth vnder the seale to each towne.

  [1. ]Four pence.

  [2. ]Ten shillings.

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  6: 1638: An Act for Church Liberties (Maryland)

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 64: An Act for Church Liberties

  Accessed from oll.libertyfund.org/title/694/102692 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  64

  An Act for Church Liberties

  Text complete as found in Browne, Archives of Maryland: Vol. i, 40.

  1638

  One of the first colonial statements on religious freedom, this act is notable for extending the principle to Catholics. Later in the century a Protestant majority would temporarily rescind the right for Catholics but a few years later would include them again. In 1638, because the proprietor, Lord Calvert, was a Catholic, the Assembly had no choice but to include Catholics.

  Be it enacted by the Lord Proprietarie of this Province by and with the Advice and approbation of the ffreemen of the same that Holy Church within this Province shall have all her rights liberties and immunities safe whole and inviolable in all things This act to continue till the end of the next Generall Assembly and then with the Consent of the Lord Proprietarie to be perpetuall.

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  7: 1638: An Act for the Liberties of the People (Maryland)

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 67: An Act for the Liberties of the People

  Accessed from oll.libertyfund.org/title/694/102699 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  67

  An Act for the Liberties of the People

  Taken from Browne, Archives of Maryland: Vol. i, 41.

  1638

  Along with the Pilgrim Code of Law [20] and the Massachusetts Body of Liberties [22], this is one of the earliest attempts to specify and protect the rights of citizens inhabiting a colony as distinct from the rights of proprietors. Each of these three documents takes a different approach to the problem. The document below, as well as the others from colonial Maryland reproduced in this volume, is notable for placing a time limit on the duration of rights. The implication is quite straightforward that the rights being protected, far from being inalienable, result from action by the body politic and can be rescinded for reasons acceptable to the legislature.

  Be it Enacted By the Lord Proprietarie of this Province of and with the advice and approbation of the ffreemen of the same that all the Inhabitants of this Province being Christians (Slaves excepted) Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any naturall born subject of England hath or ought to have or enjoy in the Realm of England by force or vertue of the common law or Statute Law of England (saveing in such Cases as the same are or may be altered or changed by the Laws and ordinances of this Province)

  And Shall not be imprisoned nor disseissed or dispossessed of their freehold goods or Chattels or be out Lawed Exiled or otherwise destroyed fore judged or punished then according to the Laws of this province saveing to the Lord proprietarie and his heirs all his rights and prerogatives by reason of his domination and Seigniory over this Province and the people of the same. This Act to Continue till the end of the next Generall Assembly.

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  8: 1639: Fundamental Orders of Connecticut

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 43: Fundamental Orders of Connecticut

  Accessed from oll.libertyfund.org/title/694/102633 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  43

  Fundamental Orders of Connecticut

  The text, complete and with the original spelling, is taken from Thorpe, Federal and State Constitutions, 519–23.

  January 14, 1639

  Along with the Pilgrim Code of Law [20] and the Fundamental Articles of New Haven [46], this document is a candidate for being the earliest written constitution in America. It describes itself internally as a “combination” and “confederation,” although one could with equal truth call it a compact. It should be noted that this document, as well as the Pilgrim Code of Law, prominently displays oaths for officeholders as an essential part of the agreement, which underscores the importance of the other oaths for establishing government (see, for example, documents 4, 9, 15, 16, 47, and 65). In 1662 the king signed a new charter for the combined colonies of Connecticut and New Haven that essentially ratified the political system defined here. In 1776 the people of Connecticut adopted the charter as their new state constitution after removing references to the king. The 1776 constitution was replaced in 1816, which means that the Fundamental Orders of Connecticut effectively served as a constitution for 177 years. Like many of the colonial founding compacts and constitutions, the Fundamental Orders of Connecticut was not written in as orderly a manner as we would expect in modern documents. The reader must carefully consider the entire document, because institutions described toward the beginning of the document often have important components described later. As was usually the case with colonial constitutions, this document creates a federal political system.

  Forasmuch as it hath pleased the Allmighty God by the wise disposition of his diuyne1 pruidence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Harteford and Wethersfield are now cohabiting and dwelling in and vppon the River of Conectecotte and the Lands thereunto adioyneing; and Well knowning where a people are gathered togather the word of God requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Gouerment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selues to be as one Publike State or Commonwelth; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and prsearue the liberty and purity of the gospell of our Lord Jesus wch we now prfesse, as also the disciplyne of the Churches, wch according to the truth of the said gospell is now practised amongst vs; As also in o[u]r Cieuell2 Affaires to be guided and gouerned according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed, as followeth:—

  1. It is Ordered, sentenced and decreed, that there shall be yerely two generall Assemblies or Courts, the [first] on the second thursday in Aprill, the other the second thursday in September, following; the first shall be called the Courte of Election, wherein shall be yerely Chosen fro[m] tyme to tyme soe many Magestrats and other publike Officers as shall be found requisitte: Whereof one to be chosen Gouernour for the yeare ensueing and vntill another be chosen, and noe other Magestrate to be chosen for more then one yeare; pruided allwayes there be sixe chosen besids the Gouernour; wch being chosen and sworne according to an Oath recorded for that purpose shall haue power to administer iustice according to the Lawes here established, and for want thereof according to the rule of the word of God, wch choise shall be made by all that are admitted freemen and haue taken the Oath of Fidellity, and doe cohabitte wthin this Jurisdiction, (Hauing been admitted Inhabitants by the major prt of the Towne wherein they liue,) or the mayor prte of such as shall be then prsent.

  2. It is Ordered, sentensed and decreed, that the Election of the aforesaid Magestrats shall be on this manner: euery prson prsent and quallified for choyse shall bring in (to the prsons deputed to receaue them) one single papr wth the name of him written in yt whome he desires to haue Gouernour, and he that hath the greatest number of papers shall be Gouernor for that yeare. And the rest of the Magestrats or publike Officers to be chosen in this manner: The Secrtary for the tyme being shall first read the names of all that are to be put to choise and then shall seuerally nominate them distinctly, and euery one that would haue the prson nominated to be chosen shall bring in one single paper written vppon, and he that would not haue him chosen shall bring in a blanke: and euery one that hath more written papers than blanks shall be a Magistrat for that yeare; wch papers shall be receaued and told by one or more that shall be then chosen by the court and sworne to be faythfull therein; but in case there should not be sixe chosen as aforesaid, besids the Gouernor, out of those wch are nominated, then he or they wch haue the most written paprs shall be a Magestrate or Magestrats for the ensueing yeare, to make vp the aforesaid number.

  3. It is Ordered, sentenced and decreed, that the Secretary shall not nominate any prson, nor shall any prson be chosen newly into the Magestracy wch was not prpownded in some Generall Courte before, to be nominated the next Election; and to that end yt shall be lawfull for ech of the Townes aforesaid by their deputyes to nominate any two who they conceaue fitte to be put to election; and the Courte may ad so many more as they iudge requisitt.

  4. It is Ordered, sentenced and decreed that noe prson be chosen Gouernor aboue once in two years, and that the Gouernor be always a member of some approved congregation, and formerly of the Magestracy wthin this Jurisdiction; and all the Magestrats Freemen of this Comonwelth: and that no Magestrate or other publike officer shall execute any prte of his or their Office before they are seuerally sworne, wch shall be done in the face of the Courte if they be prsent, and in case of absence by some deputed for that purpose.

  5. It is Ordered, sentenced and decreed, that to the aforesaid Courte of Election the seurall Townes shall send their deputyes, and when the Elections are ended they may prceed in any publike searuice as at other Courts. Also the other Generall Courte in September shall be for makeing of lawes, and any other publike occation, wch conserns the good of the Commonwealth.

  6. It is Ordered, sentenced and decreed, that the Gournor shall, ether by himselfe or by the secretary, send out summons to the Constables of eur3 Towne for the cauleing of these two standing Courts, on month at lest before their seurall tymes: And also if the Gournor and the gretest prte of the Magestrats see cause vppon any spetiall occation to call a generall Courte, they may giue order to the secretary soe to do wthin fowerteene dayes warneing; and if vrgent necessity so require, vppon a shorter notice, giueing sufficient grownds for yt to the deputyes when they meete, or else be questioned for the same; And if the Gournor and Mayor4 prte of Magestrats shall ether neglect or refuse to call the two Generall standing Courts or ether of them, as also at other tymes when to occations of the Commonwelth require, the Freemen thereof, or the Mayor prte of them, shall petition to them soe to doe: if then yt be ether denyed or neglected the said Freemen or the Mayor prte of them shall haue power to giue order to the Constables of the seuerall Townes to doe the same, and so may meete togather, and chuse to themselues a Moderator, and may prceed to do any Acte of power, wch any other Generall Courte may.

  7. It is Ordered, sentenced and decreed that after there are warrants giuen out for any of the said Generall Courts, the Constable or Constables of ech Towne shall forthwth give notice distinctly to the inhabitants of the same, in some Publike Assembly or by goeing or sending from howse to howse, that at a place and tyme by him or them lymited and sett, they meet and assemble themselues togather to elect and chuse certen deputyes to be att the Generall Courte then following to agitate the afayres of the comonwelth; wch said Deputyes shall be chosen by all that are admitted Inhabitants in the seurall Townes and haue taken the oath of fidellity; pruided that non be chosen a Deputy for any Generall Courte wch is not a Freeman of this Commonwelth.

  The a-foresaid deputyes shall be chosen in manner following: euery prson that is prsent and quallified as before exprssed, shall bring the names of such, written in seurall papers, as they desire to haue chosen for that Imployment, and these 3 or 4, more or lesse, being the number agreed on to be chosen for that tyme, that haue greatest number of papers written for them shall be dputyes for that Courte; whose names shall be endorsed on the backe side of the warrant and returned into the Courte, wth the Constable or Constables hand vnto the same.

  8. It is Ordered, sentenced and decreed, that Wyndsor, Hartford and Wethersfield shall haue power, ech Towne, to send fower of their freemen as deputyes to euery Generall Courte; and whatsoeuer other Townes shall be hereafter added to this Jurisdiction, they shall send so many deputyes as the Courte shall judge meete, a resonable prportion to the number of Freemen that are in the said Townes being to be attended therein; wch deputyes shall have the power of the whole Towne to giue their voats and alowance to all such lawes and orders as may be for the publike good, and unto wch the said Townes are to be bownd.

  9. It is ordered and decreed, that the deputyes thus chosen shall haue power and liberty to appoynt a tyme and a place of meeting togather before any Generall Courte to aduise and consult of all such things as may concerne the good of the publike, as also to examine their owne Elections, whether according to the order, and if they or the gretest prte of them find any election to be illegall they may seclud such for prsent from their meeting, and returne the same and their resons to the Courte; and if yt proue true, the Courte may fyne the prty or prtyes so intruding and the Towne, if they see cause, and giue out a warrant to goe to a newe election in a legall way, either whole or in prte. Also the said deputyes shall haue power to fyne any that shall be disorderly at their meetings, or for not coming in due tyme or place according to appoyntment; and they may return the said fynes into the Courte if yt be refused to be paid, and the tresurer to take notice of yt, and to estreete or levy the same as he doth other fynes.

  10. It is Ordered, sentenced and decreed, that euery Generall Courte, except such as through neglecte of the Gournor and the greatest prte of Magestrats the Freemen themselves doe call, shall consist of the Gouernor, or some one chosen to moderate the Court, and fower other Magestrats at lest, wth the mayor prte of the deputyes of the seuerall Townes legally chosen; and in case the Freemen or mayor prte of them through neglect or refusall of the Gouernor and mayor prte of the magestrats, shall call a Courte, that yt shall consist of the mayor prte of Freemen that are prsent or their deputyes, wth a Moderator chosen by them: In wch said Generall Courts shall consist the supreme power of the Commonwelth, and they only shall haue power to make laws or repeale them, to graunt leuyes, to admitt of Freemen, dispose of lands vndisposed of, to seuerall Townes or prsons, and also shall haue power to call ether Courte or Magestrate or any other prson whatsoeuer into question for any misdemeanour, and may for just causes displace or deale otherwise according to the nature of the offence; and also may deale in any other matter that concerns the good of this commonwelth, excepte election of Magestrats, wch shall be done by the whole boddy of Freemen: In wch Courte the Gouernour or Moderator shall haue power to order the Courte to giue liberty of spech, and silence vnceasonable and disorderly speakeings, to put all things to voate, and in case the vote be equall to haue the casting voice. But non of these Courts shall be adiorned or dissolued wthout the consent of the major prte of the Court.

  11. It is ordered, sentenced and decreed, that when any Generall Courte vppon the occations of the Commonwelth haue agreed vppon any sume or somes of mony to be leuyed vppon the seuerall Townes wthin this Jurisdiction, that a Committee be chosen to sett out and appoynt wt shall be the prportion of euery Towne to pay of the said leuy, prvided the Committees be made vp of an equall number out of each Towne.

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

  The Oath of the Gournor, for the Prsent

  I N.W. being now chosen to be Gournor wthin this Jurisdiction, for the yeare ensueing, and vntil a new be chosen, doe sweare by the greate and dreadful name of the everliueing God, to prmote the publicke good and peace of the same, according to the best of my skill; as also will mayntayne all lawfull priuiledges of this Commonwealth: as also that all wholsome lawes that are or shall be made by lawfull authority here established, be duly executed; and will further the execution of Justice according to the rule of Gods word; so helpe me God, in the name of the Lo: Jesus Christ.

  The Oath of a Magestrate, for the Prsent

  I, N.W. being chosen a Magestrate wthin this Jurisdiction for the yeare ensueing, doe sweare by the great and dreadfull name of the euerliueing God, to prmote the publike good and peace of the same, according to the best of my skill, and that I will mayntayne all the lawfull priuiledges therof according to my vnderstanding, as also assist in the execution of all such wholsome lawes as are made or shall be made by lawfull authority heare established, and will further the execution of Justice for the tyme aforesaid according to the righteous rule of Gods word; so helpe me God, etc.

  [1. ]In this document, as in others, the letters u and v are often interchanged. Divine is here effectively rendered divyne. The letters i and j are likewise often interchanged.

  [2. ]Civil.

  [3. ]Every.

  [4. ]Major.

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  9: 1641: The Massachusetts Body of Liberties

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 22: [The Massachusetts Body of Liberties]

  Accessed from oll.libertyfund.org/title/694/102485 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  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.

  [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.

• Back to Top

  10: 1642: Organization of the Government of Rhode Island

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 37: [Organization of the Government of Rhode Island]

  Accessed from oll.libertyfund.org/title/694/102589 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  37

  [Organization of the Government of Rhode Island]

  Complete text, with the original spelling, taken from Bartlett, Vol. i, 1636 to 1663, 111–15.

  March 16–19, 1642

  Finding themselves sharing an island in Narragansett Bay, the towns of Portsmouth and Newport united using a document that mixed a few general principles and brief institutional descriptions with, among other miscellany, ordinances on the killing of foxes and deer. The most important result was the election of a common representative body. Another important feature, however, was religious toleration (it prohibited anyone from being held delinquent from doctrine). As a founding document this one is defective for two reasons—the colony-wide institutions are underspecified and the relationship between the colony governments and town governments is unclear. Although defective in these respects, as well as confusing in its organization and content, the document served as a kind of constitution for five years but was later replaced by the Acts and Orders of 1647 [39].

  The Generall Court of Election began and held at Portsmouth, from the 16th of March, to the 19th of the same mo., 1641.

  1. It was ordered and agreed, before the Election, that an Ingagement by oath should be taken of all the officers of this Body now to be elected, as likewise for the time to come; the ingagement which the severall officers of the State shall give is this; To the Execution of this office, I Judge myself bound before God to walk faithfully and this I profess in ye presence of God.

  by election.

  2. Mr. Will’m Coddington is chosen Governour for one whole yeare, or till a new be chosen.

  Mr. Wm. Brenton is chosen Dep’ty Governour, for one whole yeare, or, &c.

  Mr. John Coggshall is chosen Assistant for one whole yeare, or, &c.

  Mr. Rob’t Harding is chosen Assistant for one whole yeare, or, &c.

  Mr. Wm. Balston is chosen Assistant and Treasurer for one whole yeare, etc.

  Mr. John Porter is chosen Assistant for one whole yeare, or until, &c.

  Wm. Dyre is chosen Secretary for one whole yeare, or until, &c.

  Mr. Rob’t Jeoffreys is chosen Treasurer for one whole yeare, or, &c.

  Thomas Gorton and Henry Bull are chosen Sergeant Attendants of Portsmouth for one yeare, or till a new be chosen.

  Thomas Cornell and Henry Bishop are chosen Constables of Nuport, for one yeare, or till a new be chosen.

  3. It is ordered and unanimously agreed upon, that the Government which this Bodie Politick doth attend vnto in this Island, and the Jurisdiction thereof, in favour of our Prince is a democracie, or Popular Government; that is to say, It is in the Powre of the Body of Freemen orderly assembled, or the major part of them, to make or constitue Just Lawes, by which they will be regulated, and to depute from among themselves such Ministers as shall see them faithfully executed between Man and Man.

  4. It was further ordered, by the authority of this present Courte, that none bee accounted a Delinquent for Doctrine: Provided, it be not directly repugnant to ye Government or Lawes established.

  5. It was further ordered, that all such who shall kill a Fox shall have six shillings and eight pence, for his paines, duly paid vnto him by the Treasurer of ye Towne in which lands it was killed: Provided, that he bring the Head thereof to said Treasurer; and this order shall be of sufficient authority to the Treasurer to pay and discharge the said summ.

  6. It is further ordered, that all Men who shall kill any Deare (except it be upon his own proper Land), shall bring and deliver half the said Deare into the Treasurie, or pay Forty shillings; and further it is ordered, that the Governour and Deputy Governour shall have authority to give forth a Warrant to some one deputed of each Towne to kill some against the Court times for the Countries use, who shall by his Warrant have Libertie to kill wherever he find; Provided, it be not within any man’s enclosure, and to be paid by the Treasurer: Provided, also, that no Indian shall be suffered to kill or destroy at any time or any where.

  7. It is ordered from henceforth, that the Quarter Session Courts shall alway be kept the first, the first Tuesday in March; the second, the first Tuesday in June; the third, the first Tuesday in September; the last, the first Tuesday in December.

  8. It is ordered, that Eight Gunns and their furniture with two corsletts, now in the hands of Mr. Willbore, shall be taken off by the Threasurie Joint-lie, as part of satisfaction for what debts from him is now dew thereto: and that the said Armes be equally divided to each Towne.

  9. It is ordered, that the Deputie Governour and Mr. Willbore, and Mr. Coggshall, and Mr. Jeremy Clarke, shall be joyned in commission with the Two Treasurers that now bee, to examine the Treasurie, and to even the accounts, and then to present them so rectified to the next General Court; and what oneveness there is found to bee, the one Treasurer shall make payment to the other Treasurer within twentie dayes after the period of their commission: the limits which are set for the performance of this, shall be three weeks from the date hereof.

  10. It is ordered, that Mr. Porter, Mr. Balston, Mr. Easton, and Mr. Jeoffreys shall runn the line between the two Towns within twentie dayes after the date hereof, or else shall forfeit a Mark a peece; and performing it within the (time or) tearme they shall have a Mark a peace for their Labour.

  11. It is ordered, that each Towne shall provide a Towne Book, wherein they shall Record the Evidences of the Lands by them impropriated; and shall also have Powre to give forth a Coppie thereof, which shall be a clear evidence for them and theirs, to whom it is so granted.

  12. It is ordered, that the Officers of Justices of the Peace is confirmed to the Magistrates.

  13. It is ordered, that no Fiers shall be kindled by any whatsoever to runn at Randome, eyther in Meadows or Woods; but what by him that so kindled it shall forthwith be put out, that it damnifie none. And that if damage shall accrew, satisfaction to the utmost shall be awarded.

  14. It is ordered, that a Booke shall be provided, wherein the Secretary shall write all such Lawes and Acts, as are made and constituted by the Body, to be left alway in that Towne where the said Secretary is not resident; and also that coppies of such Acts as shall be made now or hereafter, at the Generall Courts concerning necessary uses and ordinances to be observed, shall be fixed upon some public place where all men may see and take notice of them; or that coppies thereof be given to the Clerks of the Band, who shall read them at the head of the Companie.

  15. It is ordered, that a Manual Seale shall be provided for the State, and that the Signett or Engraving thereof, shall be a sheafe of Arrows bound up, and in the Liess or Bond, this motto indented: Amor vincent omnia.

  16. It is ordered, that Ingagement shall be taken by the Justices of the Peace in their Quarter Sessions of all men or youth above fifteen years of age, eyther by the oath of Fidelity, or some other strong cognizance.

  17. It is ordered, that a Line be drawen and a way be cleared between the Townes of Nuport and Portsmouth, by removing of the wood and mowing it; that drift Cattle may sufficiently pass; and for the performance thereof, Capt. Morris, of the one Towne, and Mr. Jeoffreys of the other, are appointed to draw the Line, and to be paid therefore, and the Townes to perform the rest.

  18. It is ordered, that the Traine Bands shall choose among the Freemen, one or more such as shall be for their commanders, and present them to the Towne. The Major vote of the Towne, by the Authority of this Court, shall have the negative voise for the Establishment of them, and shall order their Powre till the next Generall Courte.

  19. It is ordered, that the major part of the Courts, being lawfully assembled at the place and houre appointed, shall have full Powre to transact the business that shall be Presented: Provided, it be the Major part of the Body entire, if it be the Generall Court (present) or the Major part of the Magistrates, with the Jury in the inferior Courts; and that such acts concluded and issued be of as full authority as if there were all present. Provided, there be due and seasonable notice given of every such Court.

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  11: 1644: Roger Williams, The Bloody Tenent, of Persecution, for Cause of Conscience

  Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: The Bloody Tenent, of Persecution, for Cause of Conscience

  Accessed from oll.libertyfund.org/title/669/206039 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  The Bloody Tenent, of Persecution, for Cause of Conscience

  roger williams

  1644

  Roger Williams (1603–83) began his career as a minister in the Church of England. His Puritan ideas caused him to immigrate to New England in 1631, where his religious beliefs continued to change. He first became a kind of Baptist, then refused to adhere to any single Christian doctrine. He was banished from Massachusetts Bay in 1636 for preaching his beliefs. Soon thereafter, Williams helped found the colony of Rhode Island. This colony lacked a charter, so, in 1643, Williams returned to England to secure one. He also set about writing The Bloody Tenent, of Persecution, for Cause of Conscience, discussed, in a Conference betweene Truth and Peace. The “conference” between Truth and Peace (with Truth speaking for Williams) begins after the portion reproduced here. This portion is taken up with Williams’s dedication to the English parliament and a “letter” that Williams sent to Puritan leader John Cotton, which was purportedly written by a man who had been imprisoned for his religious beliefs. The letter seeks Cotton’s opinion as to whether the persecution of religious dissent can ever be properly imposed. Williams’s book begins with this letter, which is followed by Cotton’s reply, which in turn is followed by the conference between Truth and Peace.

  The Bloody Tenent, of Persecution, for Cause of Conscience

  To the Right Honorable, both Houses of the High Court of Parliament

  Right Honourable and Renowned Patriots:

  Next to the saving of your own soules (in the lamen-table shipwrack of Mankind) your taske (as Christians) is to save the Soules, but as Magistrates, the Bodies and Goods of others.

  Many excellent Discourses have been presented to your Fathers hands and Yours in former and present Parliaments: I shall be humbly bold to say, that (in what concernes your duties as Magistrates, towards others) a more necessary and seasonable debate was never yet presented.

  Two things your Honours here may please to view (in this Controversie of Persecution for cause of Conscience) beyond what’s extant.

  First the whole Body of this Controversie form’d & pitch’d in true Battalia.

  Secondly (although in respect of my selfe it be impar congressus, yet in the power of that God who is Maximus in Minimis, Your Honours shall see the Controversie is discussed with men as able as most, eminent for abilitie and pietie, Mr. Cotton, and the New English Ministers.

  When the Prophets in Scripture have given their Coats of Armes and Escutchions to Great Men, Your Honours know the Babylonian Monarch hath the Lyon, the Persian the Beare, the Grecian the Leopard, the Romane a compound of the former 3. most strange and dreadfull, Dan. 7.

  Their oppressing, plundring, ravishing, murthering, not only of the bodies, but the soules of Men are large explaining commentaries of such similitudes.

  Your Honours have been famous to the end of the World, for your unparallel’d wisdome, courage, justice, mercie, in the vindicating your Civill Lawes, Liberties, &c. Yet let it not be grievous to your Honours thoughts to ponder a little, why all the Prayers and Teares and Fastings in this Nation have not pierc’d the Heavens, and quench’d these Flames, which yet who knowes how far they’ll spread, and when they’ll out!

  Your Honours have broke the jawes of the Oppressour, and taken the prey out of their Teeth (Iob. 29.) For which Act I believe it hath pleased the most High God to set a Guard (not only of Trained Men, but) of mighty Angels, to secure your sitting and the Citie.

  I feare we are not pardoned, though reprieved: O that there may be a lengthning of Londons tranquilitie, of the Parliaments safetie, by mercy to the poore! Dan. 4.

  Right Honorable, Soule yokes, Soule oppression, plundrings, ravishings, &c. are of a crimson and deepest dye, and I believe the chiefe of Englands sins, unstopping the Viols of Englands present sorrowes.

  This glasse presents your Honours with Arguments from Religion, Reason, Experience, all proving that the greatest yoakes yet lying upon English necks, (the peoples and Your own) are of a spirituall and soule nature.

  All former Parliaments have changed these yoakes according to their consciences, (Popish or Protestant) ’Tis now your Honours turne at helme, and (as your task, so I hope your resolution, not to change (for that is but to turne the wheele, which another Parliament, and the very next may turne againe:) but to ease the Subjects and Your selves from a yoake (as was once spoke in a case not unlike Act. 15.) which neither You nor your Fathers were ever able to beare.

  Most Noble Senatours, Your Fathers (whose seats You fill) are mouldred, and mouldring their braines, their tongues, &c. to ashes in the pit of rottenesse: They and You must shortly (together with two worlds of men) appeare at the great Barre: It shall then be no griefe of heart that you have now attended to the cries of Soules, thousands oppressed, millions ravished by the Acts and Statutes concerning Soules, not yet repealed.

  Of Bodies impoverished, imprisoned, &c. for their soules beliefe, yea slaughtered on heapes for Religions controversies in the Warres of present and former Ages.

  “Notwithstanding the successe of later times, (wherein sundry opinions have been hatched about the subject of Religion) a man may clearly discerne with his eye, and as it were touch with his finger that according to the verity of holy Scriptures, &c. mens consciences ought in no sort to be violated, urged or constrained. And whensoever men have attempted any thing by this violent course, whether openly or by secret meanes, the issue hath beene pernicious, and the cause of great and wonderfull innovations in the principallest and mightiest Kingdomes and Countries, &c.

  It cannot be denied to be a pious and prudentiall act for Your Honours (according to your conscience) to call for the advice of faithfull Councellours in the high debates concerning Your owne, and the soules of others.

  Yet let it not be imputed as a crime for any suppliant to the God of Heaven for You, if in the humble sense of what their soules beleeve, they powre forth (amongst others) these three requests at the Throne of Grace.

  First, That neither Your Honours, nor those excellent and worthy persons, whose advice you seek, limit the holy One of Israel to their apprehensions, debates, conclusions, rejecting or neglecting the humble and faithfull suggestions of any, though as base as spittle and clay, with which sometimes Christ Iesus opens the eyes of them that are borne blinde.

  Secondly, That the present and future generations of the Sons of Men may never have cause to say that such a Parliament (as England never enjoyed the like) should modell the worship of the living, eternall and invisible God after the Bias of any earthly interest, though of the highest concernment under the Sunne: And yet, faith that learned Sir Francis Bacon (how ever otherwise perswaded, yet thus he confesseth:) “Such as hold pressure of Conscience, are guided therein by some private interests of their owne.”

  Thirdly, What ever way of worshipping God Your owne Consciences are perswaded to walke in, yet (from any bloody act of violence to the consciences of others) it may bee never told at Rome nor Oxford, that the Parliament of England hath committed a greater rape, then if they had forced or ravished the bodies of all the women in the World.

  And that Englands Parliament (so famous throughout all Europe and the World) should at last turne Papists, Prelatists, Presbyterians, Independents, Socinians, Familists, Antinomians, &c. by confirming all these sorts of Consciences, by Civill force and violence to their Consciences.

  Scriptures and Reasons written long since by a Witnesse of Jesus Christ, close Prisoner in Newgate, against Persecution in cause of Conscience; and sent some while since to Mr. Cotton, by a Friend who thus wrote:

  In the multitude of Councellours there is safety: It is therefore humbly desired to be instructed in this point: viz.

  Whether Persecution for cause of Conscience be not against the Doctrine of Jesus Christ the King of Kings. The Scriptures and Reasons are these.

  Because Christ commandeth that the Tares and Wheat (which some understand are those that walke in the Truth, and those that walke in Lies) should be let alone in the World, and not plucked up untill the Harvest, which is the end of the World, Matth. 13. 30. 38. &c.

  The same commandeth Matth. 15. 14. that they that are Blinde (as some interpret, led on in false Religion, and are offended with him for teaching true Religion) should be let alone, referring their punishment unto their falling into the Ditch.

  Againe, Luke 9. 54, 55. hee reproved his Disciples who would have had Fire come downe from Heaven and devoure those Samaritanes who would not receive Him, in these words: Ye know not of what Spirit ye are, the son of Man is not come to destroy Mens lives, but to save them.

  Paul the Apostle of our Lord teacheth, 2 Tim. 24. 2. That the servant of the Lord must not strive, but must be gentle toward all Men, suffering the Evill Men, instructing them with meeknesse that are contrary minded, proving if God at any time will give them repentance, that they may acknowledge the Truth, and come to amendment out of that snare of the devill, &c.

  According to these blessed Commandements, the holy Prophets foretold, that when the Law of Moses (concern-ing Worship) should cease, and Christs Kingdome be established, Esa. 2. 4. Mic. 4. 3, 4. They shall breake their Swords into Mathookes, and their Speares into Sithes. And Esa. 11. 9. Then shall none hurt or destroy in all the Mountaine of my Holinesse, &c. And when he came, the same he taught and practised, as before: so did his Disciples after him, for the Weapons of his Warfare are not carnall (saith the Apostle) 2 Cor. 10. 4.

  But he chargeth straitly that his Disciples should be so far from persecuting those that would not bee of their Religion, that when they were persecuted they should pray (Matth. 5.) when they were cursed they should blesse, &c.

  And the Reason seemes to bee, because they who now are Tares, may hereafter become Wheat; they who are now blinde, may hereafter see; they that now resist him, may hereafter receive him; they that are now in the devils snare, in adversenesse to the Truth, may hereafter come to repentance; they that are now blasphemers and persecutors (as Paul was) may in time become faithfull as he; they that are now idolators as the Corinths once were (1 Cor. 6. 9.) may hereafter become true worshippers as they; they that are now no people of God, nor under mercy (as the Saints sometimes were, 1 Pet. 2. 20.) may hereafter become the people of God, and obtaine mercy, as they.

  Some come not till the 11. houre, Matth. 20. 6. if those that come not till the last houre should be destroyed, because they come not at the first, then should they never come but be prevented.

  All which premises are in all humility referred to your godly wise consideration.

  Because this persecution for cause of conscience is against the profession and practice of famous Princes.

  First, you may please to consider the speech of King James, in his Majesties Speech at Parliament, 1609. He saith, it is a sure Rule in divinity, that God never loves to plant his Church by violence and bloodshed.

  And in his Highnesse Apologie, pag. 4. speaking of such Papists that tooke the Oath, thus:

  “I gave good proofe that I intended no persecution against them for conscience cause, but onely desired to bee se-cured for civill obedience, which for conscience cause they are bound to performe.”

  And pag. 60. speaking of Blackwell1 (the Arch-priest) his Majesty saith, “It was never my intention to lay any thing to the said Arch-Priests charge (as I have never done to any) for cause of conscience.” And in his Highnesse Exposition on Revel. 20. printed 1588. and after [in] 1603. his Majesty writeth thus: “Sixthly, the compassing of the Saints and the besieging of the beloved City, declareth unto us a certaine note of a false Church, to be Persecution, for they come to seeke the faithfull, the faithfull are them that are sought: the wicked are the besiegers, the faithfull are the besieged.”

  Secondly, the saying of Stephen King of Poland: 2 “I am King of Men, not of Consciences, a Commander of Bodies, not of Soules.”

  Thirdly, the King of Bohemia hath thus written:

  “And notwithstanding the successe of the later times (wherein sundry opinions have beene hatched about the subject of Religion) may make one clearly discerne with his eye, and as it were to touch with his Finger, that according to the veritie of Holy Scriptures, and a Maxime heretofore told and maintained, by the ancient Doctors of the Church; That mens consciences ought in no sort to bee violated, urged, or constrained; and whensoever men have attempted any thing by this violent course, whether openly or by secret meanes, the issue hath beene pernicious, and the cause of great and wonderfull Innovations in the principallest and mightiest Kingdomes and Countries of all Christendome.”

  And further his Majesty saith: “So that once more we doe professe before God and the whole World, that from this time forward wee are firmly resolved not to persecute or molest, or suffer to be persecuted or molested, any person whosoever for matter of Religion, no not they that professe themselves to be of the Romish Church, neither to trouble or disturbe them in the exercise of their Religion, so they live conformable to the Lawes of the States, &c.” 3

  And for the practice of this, where is persecution for cause of conscience except in England and where Popery reignes, and there neither in all places, as appeareth by France, Poland, and other places.

  Nay, it is not practised amongst the Heathen that acknowledge not the true God, as the Turke, Persian, and others.

  Thirdly, because persecution for cause of conscience is condemned by the ancient and later Writers, yea and Papists themselves.

  Hilarie against Auxentius4 saith thus: The Christian Church doth not persecute, but is persecuted. And lamentable it is to see the great folly of these times, and to sigh at the foolish opinion of this world, in that men thinke by humane aide to helpe God, and with worldly pompe and power to undertake to defend the Christian Church. I aske you Bishops, what helpe used the Apostles in the publishing of the Gospel? with the aid of what power did they preach Christ, and converted the Heathen from their idolatry to God? When they were in prisons, and lay in chaines, did they praise and give thankes to God for any dignities, graces, and favours received from the Court? Or do you thinke that Paul went about with Regall Mandates, or Kingly authority, to gather and establish the Church of Christ? sought he protection from Nero, Vespasian?

  The Apostles wrought with their hands for their owne maintenance, travailing by land and water from Towne to Citie, to preach Christ: yea the more they were forbidden, the more they taught and preached Christ. But now alas, humane helpe must assist and protect the Faith, and give the same countenance to and by vaine and worldly honours.5 Doe men seek to defend the Church of Christ? as if hee by his power were unable to performe it.

  The same against the Arrians.

  The Church now, which formerly by induring misery and imprisonment was knowne to be a true Church, doth now terrifie others by imprisonment, banishment, and misery, and boasteth that she is highly esteemed of the world, when as the true Church [she] cannot but be hated of the same.

  Tertull. ad Scapulam:6 It agreeth both with humane reason, and naturall equity, that every man worship God uncompelled, and beleeve what he will; for it neither hurteth nor profiteth any one another mans Religion and Beleefe: Neither beseemeth it any Religion to compell another to be of their Religion, which willingly and freely should be imbraced, and not by constraint: for as much as the offerings were required of those that freely and with good will offered, and not from the contrary.

  Jerom. in proaem. lib. 4. in Jeremiam. 7 Heresie must be cut off with the Sword of the Spirit: let us strike through with the Arrowes of the Spirit all Sonnes and Disciples of mis-led Heretickes, that is, with Testimonies of holy Scriptures. The slaughter of Heretickes is by the word of God.

  Brentius 8 upon 1 Cor. 3. No man hath power to make or give Lawes to Christians, whereby to binde their consciences; for willingly, freely, and uncompelled, with a ready desire and cheerfull minde, must those that come, run unto Christ.

  Luther in his Booke of the Civill Magistrate9 saith; The Lawes of the Civill Magistrates government extends no further then over the body or goods, and to that which is externall: for over the soule God will not suffer any man to rule: onely he himselfe will rule there. Wherefore whosoever doth undertake to give Lawes unto the Soules and Consciences of Men, he usurpeth that government himselfe which appertaineth unto God, &c.

  Therefore upon 1 Kings 5. 10 In the building of the Temple there was no sound of Iron heard, to signifie that Christ will have in his Church a free and a willing People, not compelled and constrained by Lawes and Statutes.

  Againe he saith upon Luk. 22. 11 It is not the true Catholike Church, which is defended by the Secular Arme or humane Power, but the false and feigned Church, which although it carries the Name of a Church yet it denies the power thereof.

  And upon Psal. 17. 12 he saith: For the true Church of Christ knoweth not Brachium saeculare, which the Bishops now adayes, chiefly use.

  Againe, in Postil. Dom. 1. post Epiphan.13 he saith: Let not Christians be commanded, but exhorted: for, He that willingly will not doe that, whereunto he is friendly exhorted, he is no Christian: wherefore they that doe compell those that are not willing, shew thereby that they are not Christian Preachers, but Worldly Beadles.

  Againe, upon 1 Pet. 3. 14 he saith: If the Civill Magistrate shall command me to believe thus and thus: I should answer him after this manner: Lord, or Sir, Looke you to your Civill or Worldly Government, Your Power extends not so farre as to command any thing in Gods Kingdome: Therefore herein I may not heare you. For if you cannot beare it, that any should usurpe Authoritie where you have to Command, how doe you thinke that God should suffer you to thrust him from his Seat, and to seat your selfe therein?

  Lastly, the Papists, the Inventors of Persecution, in a wicked Booke of theirs set forth in K. James his Reigne, thus:

  Moreover, the Meanes which Almighty God appointed his Officers to use in the Conversion of Kingdomes and Nations, and People, was Humilitie, Patience, Charitie; saying, Behold I send you as Sheepe in the midst of Wolves, Mat. 10. 16. He did not say, Behold I send you as Wolves among Sheepe, to kill, imprison, spoile and devoure those unto whom they were sent.

  Againe vers. 7. he saith: They to whom I send you, will deliver you up into Councells, and in their Synagogues they will scourge you; and to Presidents and to Kings shall you be led for my sake. He doth not say: You whom I send, shall deliver the people (whom you ought to convert) unto Councells, and put them in Prisons, and lead them to Presidents, and Tribunall Seates, and make their Religion Felony and Treason.

  Againe he saith, vers. 32. When ye enter into an House, salute it, saying, Peace be unto this House: he doth not say, You shall send Pursevants to ransack or spoile his House.

  Againe he said, John 10. The good Pastour giveth his life for his Sheep, the Thiefe commeth not but to steale, kill and destroy. He doth not say, The Theefe giveth his life for his Sheep, and the Good Pastour commeth not but to steale, kill and destroy.

  So that we holding our peace, our Adversaries themselves speake for us, or rather for the Truth.

  To Answer Some Maine Objections

  And first, that it is no prejudice to the Common wealth, if Libertie of Conscience were suffred to such as doe feare God indeed, as is or will be manifest in such mens lives and conversations.

  Abraham abode among the Canaanites a long time, yet contrary to them inReligion, Gen. 13. 7. & 16. 13. Againe he sojourned in Gerar, and K.Abimelech gave him leave to abide in his Land, Gen. 20. 21. 23. 24.

  Isaack also dwelt in the same Land, yet contrary in Religion, Gen. 26.

  Jacob lived 20 yeares in one House with his Unkle Laban, yet differed in Religion, Gen. 31.

  The people of Israel were about 430 yeares in that infamous land of Egypt, and afterwards 70 yeares in Babylon, all which time they differed in Religion from the States, Exod. 12. & 2 Chron. 36.

  Come to the time of Christ, where Israel was under the Romanes, where lived divers Sects of Religion, as Herodians, Scribes and Pharises, Saduces and Libertines, Thudaeans and Samaritanes, beside the Common Religion of the Jewes, Christ and his Apostles. All which differed from the Common Religion of the State, which was like the Worship of Diana, which almost the whole world then worshipped, Acts 19. 20.

  All these lived under the Government of Caesar, being nothing hurtfull unto the Common-wealth, giving unto Caesar that which was his. And for their Religion and Consciences towards God, he left them to themselves, as having no Dominion over their Soules and Consciences. And when the Enemies of the Truth raised up any Tumults, the wisedome of the Magistrate most wisely appeased them, Acts 18 14. & 19. 35.

  [1. ] George Blackwell, a Roman Catholic divine, was commissioned to act as archpriest over the secular clergy in England by Cardinal Cajetan, March 7, 1598, in order to meet some of the difficulties arising from the lack of a Romish episcopate, and was confirmed and approved by a bull from Pope Clement VIII, April 6, 1599. He took the oath of allegiance enacted in consequence of the Gunpowder Plot, and openly expressed his approbation of it, though Paul V. had condemned it. His superiors at Rome could not endure his attempts to induce Roman Catholics to take the oath, and he was superseded in 1508. Rose, Biog. Dict., IV; Wood’s Athenae Oxonienses, ii: 122.— Ed.

  [2. ] Stephen Bathori was King of Poland 1575–1586. Though a convert to the Roman Church he used no intolerance towards his Protestant subjects. He said, “I reign over persons; but it is God who rules the conscience. Know that God has reserved three things to himself; the creation of something out of nothing, the knowledge of futurity, and the government of the conscience.” Lardner’s Cabinet Cyclopedia, Poland, p. 167.—Ed.

  [3. ] This paragraph, quoted also in the Address to Parliament, p. 7, is from the manifesto issued by the Elector Palatine, Frederick the Fifth, who had been elected King of Bohemia against Ferdinand the Second, Archduke of Austria and Emperor of Germany, at the beginning of the Thirty Years War. Schiller, Thirty Years War, Book I. James the First, whose daughter he married, was entirely opposed to his taking the crown, and refused to recognise him. Hume, History of England, Chap. 48. It was in the same year (1620) in which he was defeated that this “Humble Supplication” from which these “Scriptures and Reasons” are taken was printed. The Commons had boldly declared their sympathy with his misfortunes, and so circumstances gave significance to opinions uttered by one who was considered a representative of the Protestant cause, and which were so much in advance of those of James. Brandt, The History of the Reformation in and about the Low Countries, iv: lib. 52, p. 200.—Ed.

  [4. ] S. Hilarii Opera, Lib. I, Contra Arianos vel Auxentium, Cap. 3, 4, pp. 465, 466; Venetiis, 1749.—Ed.

  [5. ] This sentence may be read with a period after “countenance,” the remaining words being connected with the following interrogation: or by changing the order of the words, thus, “and give countenance to the same by vaine and worldly honours.”—Ed.

  [6. ] Tertulliani Opera, Tom. 1, Cap. 2, p. 152, Antverpiae, 1583; Lib’ry of Fathers, Tertullian, i: 143, Oxford, 1842.—Ed.

  [7. ] S. Hieronymi Opera, in praemium lib. 4, in Jeremiam, pp. 615–616, Parisiis, 1704. Only the first member of this sentence is found in the place cited. “Quod si cavendum nobis est, ne veterem laedere videa-mur necessitudinem, si superbissimam haeresim spirituali mucrone truncemus.”—Ed.

  [8. ] The works of Brentius, 8 vols. folio, Tubingen, 1575–1590, are not within the Editor’s reach, nor on the catalogues of any of the public libraries of the country, so far as examined.—Ed.

  [9. ] Luther’s Sämtliche Schriften, herausgegeben J. G. Walch, 10^r Theil, 452. Halle. 1744.—Ed.

  [10. ] Schriften, x: 438.—Ed.

  [11. ] Schriften, xiii: 2818. Auslegung des Evangelii am Bartholomews Tag, Luke xxii: 24–30. “God will keep and govern his Church only by his Word, and not by human power.” It may be that the reference is to some other passage.—Ed.

  [12. ] This passage is not found in his explanation of the 117th Psalm, Theil 4^r, 1261.—Ed.

  [13. ] Schriften, xii: 429. Auslegung der Epistel am ersten Sonntage nach Epiphania.—Ed.

  [14. ] Schriften, ix: 740. Auslegung der ersten Ep. Petri, cap. 2, v. 17.—Ed.

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  12: 1647: Acts and Orders (Rhode Island)

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 39: Acts and Orders of 1647

  Accessed from oll.libertyfund.org/title/694/102595 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  39

  Acts and Orders of 1647

  Spelling is as it appears in Bartlett, Vol. i, 1636 to 1663, 38–65. The text is quite lengthy and herein is reproduced only in part. Sections excluded deal with more standard or mundane aspects of law, such as fraud, forgery, trespassing, larceny, assault, robbery, and burglary.

  The Acts and Orders of 1647, like the Pilgrim Code of Law, 1636 [20] and Fundamental Orders of Connecticut, 1639 [43], is a complete document of foundation and qualifies as a true constitution. Like these other early colonial constitutions, the Acts and Orders creates a federal system wherein the towns composing it continue to have functioning governments with their own powers and competencies. In 1663 Rhode Island received a new charter from the king, which essentially ratified the government established by the Acts and Orders. In 1776 Rhode Island retained this charter as the constitution for its new independent statehood simply by removing any references to the king, and the charter was not replaced until 1842. Scholars of American constitutionalism thus put the duration of the Acts and Orders, Rhode Island’s first constitution, at 195 years, which was a record duration for a modern constitution until the Massachusetts Constitution of 1780 turned 196 in 1976. The Acts and Orders is also notable in that it was the first colonial foundation document specifically based on English principles of law instead of principles and practices derived from religion.

  Acts and Orders

  Made and agreed upon at the Generall Court of Election, held at Portsmouth, in Rhode Island, the 19, 20, 21 of May, Anno. 1647, for the Colonie and province of Providence.

  Mr. John Coggeshall is chosen Moderator of the present Assembly.

  2. It was Voted and found, that the major part of the Colonie was present at this Assemblie, whereby there was full power to transact.

  3. It was further agreed, that in case the Assemblie departe unto the number of Fortie; those fortie shall stay and act as if the whole were present, and be of as full authoritie.

  4. It was agreed, that all should set their hands to an engagement to the Charter.

  5. It was agreed and ordered, that a week before any General Courte, notice should be given to every Towne by the head officer, that they chuse a Committee for the Transaction of the affaires there, except it bee for the Election of Generall Officers; and such as go not, may send their votes sealed.

  6. It was ordered, upon the request of the Commissioners of the Towne of Providence, that their second instruction should be granted and established unto the, Vidg’t. Wee do voluntarily assent, and are freely willing to receive and to be governed by the Lawes of England, together with the way of the Administration of them, soe far as the nature and constitution of this Plantation will admit, desiring (soe far as possible may be,) to hold a correspondence with the whole Colonie in the modell that hath been latelie shewn vnto us by our worthy Friends of the Island, if the Generall Court shall compleate and confirm the same, or any other Modell as the Generall Courte shall agree vpon according to our Charter.

  7. It was unanimously agreed, That we do all owne and submit to the Lawes, as they are contracted in the Bulke with the Administration of Justice, according thereto, which are to stand in force till the next Generall Courte of Election, and every Towne to have a Coppie of them, and then to present what shall appeare therein not to be suitable to the Constitution of the place, and then to amend it.

  8. It was agreed, that Warwick should have the same priviledges as Providence.

  9. It was agreed, that the Generall Courte of Tryall should be held at Newport vpon the second Tuesday of June next ensuing.

  10. It was agreed, that the Election of Offices should be by papers.

  Mr. John Coggeshall is chosen President of this Province, or Colonie.

  Mr. Roger Williams is chosen Assistant of Providence,

  Mr. John Samford is chosen Assistant of Portsmouth,

  Mr. Wm. Coddington is chosen Assistant of Newport,

  Mr. Randall Holden is chosen Assistant of Warwick,

  William Dyre is chosen Gen. Recorder,

  Mr. Jeremy Clerke is chosen Treasurer.

  11. It is ordered, that all cases presented, concerning General Matters for the Colony, shall be first stated in the Townes, Vigd’t, That is, when a case is propounded, The Towne where it is propounded, shall agitate and fully discuss the matter in their Towne Meetings and conclude by Vote; and then shal the Recorder of the Towne, or Towne Clerk, send a coppy of the agreement to every of the other three Townes, who shall agitate the case likewise in each Towne and vote it, and collect the votes. Then shall they commend it to the Committee for the General Courte (then a meeting called,) who being assembled and finding the Major parte of the Colonie concurring in the case, it shall stand for a Law till the next Generall Assembly of all the people, then and there to be considered, whether any longer to stand yea or no; Further it is agreed, that six men of each Towne shall be the number of the Committe premised, and to be freely chosen. And further it is agreed, that when the General Courte thus assembled, shall determine the cases before hand thus presented, It shall also be lawful for the said General Court, and hereby are they authorized, that if vnto them or any of them some case or cases shall be presented that may be deemed necessary for the public weale and good of the whole, they shall fully debate, discuss and determine ye matter among themselves; and then shall each Committee returning to their Towne declare what they have done in the case or cases premised. The Townes then debating and concluding, the votes shall be collected and sealed up, and then by the Towne Clarke of each Towne shall be sent with speed to the General Recorder, who, in the presence of the President shall open the votes; and if the major vote determine the case, it shall stand as a Law till the next General Assemblie then or there to be confirmed or nullified.

  12. It is ordered, that the Courte of Election shall alway be held upon the first Tuesday after the 15th of May, annually, if wind or weather hinder not. Then the General Court of Tryall immediately to succeed vpon the dissolving of the said General Court, Vidg’t: the next day; and that the next General Court of Election shall be held at Providence Towne. Further, it is agreed, that forasmuch as many may be necessarily detained, that they cannot come to the General Court of Election, that then they shall send their votes sealed upon unto the said Court, which shall be as effectual as their personal appearances.

  13. It is ordered, that each Towne shall choose and order ye authoritie of two Surveyors for the Highways, and appoint time to mend them; also that they are to have notice of all cattle that shall be exported, and returne the marks of them unto the Towne; and if any shall presume to export any without giving notice of it to the men appointed, or their Deputies he shall forfeit all such Cattle so exported, or the worth of them.

  14. It is ordered, that the Inhabitants of Portsmouth and Newport here present doe presently choose their officers of the Island; but that this act shall be not precedent for the future, but that the constant course of choosing shall be hereafter, when as the year is out, as the Major votes of the Townes of Portsmouth and Newport shall order it sometimes before the year is out, in some peaceable and moderate way which they shall agree upon.

  the engagement of the officers

  You. A. B ———, being called and chosen vnto public employment, and the office of ———, by the free vote and consent of ye Inhabitants of the Province of Providence Plantations (now orderly met), do, in the present Assemblie, engage yourself faithfully and truly to the utmost of your power to execute the commission committed vnto you; and do hereby promise to do neither more nor less in that respect than that which the Colonie [authorized] you to do according to the best of your understanding.

  We, the Inhabitants of the Province of Providence Plantations being here orderly met, and having by free vote chosen you ———, to public office and officers for the due administration of Justice and the execution thereof throughout the whole Colonie, do hereby engage ourselves to the utmost of our power to suport and vphold you in your faithful performance thereof.

  15. It is ordered, that the Councills of Newport and Portsmouth, shall consult and agree how and in what manner (within these thirtie dayes) the monthly and quarterly Courts shall be ordered, and who shall sit therein; further, it is agreed, that all cases depending shall be heard and issued at the next Generall Court of Tryall.

  16. It is ordered, that the Townes shall appoint men to view all Goates and Swine killed or to be killed, and shew the eare markes of them unto the said persons or one of them, whereby it may appeare to be their own; and if any shall presume to conceale eyther Swine or Goats so killed or to be killed, shall forfeit five pounds; one half to the State, the other to him that will sue for it, eyther by action or bill. It shall be lawfull also, for those that are appointed to the service being necessarily detayned, to make, constitute, and appoint a Deputie.

  17. It is ordered, that John Cooke and Thomas Brownell, are chosen Water Bailies for the Colonie.

  18. It is ordered, that the Seale of the Province shall be an Anchor.

  19. It is ordered, that the Councils of the Townes consisting of six men shall be chosen at their next Towne Meetings.

  20. It is ordered, that the Sea Lawes, otherwise called the Lawes of Oleron, shall be in force among us for the benefit of Seamen (vpon ye Island,) and the Chief Officers in the Towne shall have power to summon the Court and determine the cause or causes presented.

  21. It is ordered, that none shall goe out of the Court without leave; or if any do depart, he shall leve his vote behind him, that his power remain, though his person be absent.

  22. It is ordered, forasmuch as Mr. Roger Williams hath taken great paines and expended much time in the obtayning of the Charter for this Province of Noble Lords and Governors; be it enacted and established, that in regard of his so great travaile, charges and good endeavours, we do freely give and grant to the said Roger Williams one hundred pounds, to be levied out of the three townes, Vidg’t: Fifty pounds out of Newport, thirtie pounds out of Portsmouth, and twentie pounds out of Providence, which rate is to be levied and paid in by the last of November next.

  23. It is ordered, that forasmuch as there are some remote places inhabited and possessed within our Charter, and it is found necessary that a vigilant eye be had over them, it is ordered, that Newport shall take into their custody the Trading house or houses of the Narragansett Bay; Portsmouth to take in Prudence; and Patuxet shall be left to their choice, whether they will have Providence, Portsmouth or Newport over them. And it is ordered, that the officers of each Towne shall have full power and authoritie in them or eyther of them, according to their precincts, by this present Court assyned.

  24. It is ordered, that there is free Libertie granted for the free Inhabitants of ye Province (if they will) to erect an Artillery Garden, and those that are desirous to advance the Art Military, shall have freedom to exercise themselves therein, and to agree of their forme, and choose their officers, as they shall agree among themselves.

  25. Provided, [   ] shall choose their officers after the 15th of June next, vpon paine of forfeiting Tenn pounds a Town, if neglected.

  26. It is ordered, that in cases of necessity without the bounds of the Townes, a special officer for ye execution of Justice, may be authorized by any of the Generall Officers for a general case.

  27. It is ordered, that ye General Officers shall write to the Bay about Patuxet Inhabitants; and also write to the Inhabitants thereof to owne and choose the Government of the Province.

  28. It is ordered, that the Dutch, French or other Alliants, or any Englishman inhabiting among them, shall pay the like customs and duties, as we doe among them for all such goods as shall be imported for the English, excepting beaver. Also, we do absolutely prohibit them or any of them to trade or barter with the Indians within our Jurisdiction, upon paine of forfeiture of Shipp and Goods; and this to take effect after due notice given. The Generall Officers are ordered to write to the Dutch Governor, and upon the returne of the answer it shall be commended to the Townes to consider of.

  29. It is ordered, that all ye Inhabitants in each Towne shall choose their Military Officers from among themselves on the first Tuesday after the 12th of March; and that eight sevarall times in the yeare, the Bands of each plantation or Towne, shall, openlie in the field, be exercised and disciplined by their Commanders and Officers, in the months of May, August, January and February excepted; and on the first Monday of ye other months, all the Train Bands to make their personal appearances completely armed, to attend their colors, by 8 o’clock in the morning, at the second beate of ye Drum; and if any appear not, they shall forfeit and pay five shillings into the hands of the Clarke of ye Band; and if any shall come defective in his Armes or furniture, he shall forfeit and pay ye sum of twelve pence, after the Town Council have caused them to be supplied; and that all men who shall come and remaine ye space of twenty days, shall be liable to ye injunction of this order; Provided, herdsmen, fighter-men and such as be left of necessity at Farmes, shall pay two shilings and sixpence for every dayes absence: And that the two Chief officers in each Towne, to witt: one of the Commonweale, the other of the Band, upon the exhibition of the complaint by ye Clark (which shall be within three dayes after the fault committed,) shall judge and determine of ye reasons of the excuses, who, upon the hearing thereof, shall determine whether every such person shall pay five shillings, two shillings and sixpence, or nothing; and according as they find any defective, shall give their warrants to ye Clark to distraine their Goods if they shall refuse to pay what is ordered. And if the Clarke shall neglect to gather up what is ordered, he shall forfeit and pay so much into the hands of the Captain, the next training day; And that all the fines and forfeitures shall be imployed to the use and service of the Band. And the Towne Councils shall have power to cause those which are defective in armes, to be supplied in an equal way according to Estate and strength. And if any of ye Traine Band after his appearance shall refuse or neglect the command of his Captain, to be exercised and disciplined, he shall forfeit as much as if he had not appeared: And that the Town Council shall order the power of the Military Officers within the Towne, and in all caes that concerne ye whole, the President and ye foure assistants, and ye Captains of every Band shall be the Councill of Warr; that if any of the Officers of ye Band be at any time left out, they shall beare Armes again, for ye Constitution of our place will not beare the contrary: that every Inhabitant of the Island above sixteen or under sixty yeares of age, shall alwayes be provided of a Musket, one pound of powder, twenty bullets, and two fadom of Match, with sword, rest, bandaleers all completely furnished.

  30. It is ordered, that in regard of ye many incursions that we are subjected vnto, and that an Alarum for ye giving of notice thereof is necessary when occasion is offered. It is agreed, that this form be observed. Vidg’t: Three Muskets distinctly discharged, and a Herauld appointed to go speedilie threw the Towne, and crie, Alarum! Alarum!! and the Drum to beate incessantly; upon which, all to repair (upon forfeiture and the Town Councill shall order) unto the Town House, there to receive information of the Town Councill what is farther to be done.

  31. It is ordered and agreed, that if any person or persons, shall sell, give deliver, or any otherwayes convey any powder, shott, lead, gunn, pistoll, sword, dagger, halberd or pike to the Indians that are or may prove offensive to this Colonie, or any member thereof, he or they, for the first offence, shall forfeit ye sum of five pounds; and for his second offence, offending in the same kind, and being lawfully convicted, shall forfeit ten pounds; half to the State, and half to him that will sew for it, and no wager of Law by any means to be allowed to the offender. And, it is further ordered, that if any person shall mend or repaire their Guns, or [   ] he shall forfeit the same penaltie.

  32. It is ordered, that the Towne Officers shall given their engagements in their severall Townes to ye General Officer in that Towne, before they execute their office.

  33. It is ordered, that if the Indians shall offer to putt away upon exchange or barter, their false peag for good, and warrant it so to be, and it be found otherwise, it shall be confiscated to the Public Treasury.

  34. It is ordered, that every Towne shall have a coppy of the Lawes and Orders, and that each Towne shall pay for their coppy; and also, that the Councell for the Townes shall order the fees for their Officers, and the Generall Officers shall order the fees of the General Officers: Provided, that nothing already concluded in the Bulck of Lawes be any wayes crossed or envaded.

  for the province of providence.

  Forasmuch as we have received from our Noble Lords and Honored Governours, and that by virtue of an ordinance of the Parliament of England, a free and absolute Charter of Civill incorporation, &c. Wee do joyntlie agree to incorporate ourselves, and soe to remaine a Body Politicke by the authoritie thereof, and therefore do declare to own ourselves and one another to be Members of the same Body, and to have right to the Freedome and priviledges thereof by subscribing our names to these words, following: vidg’t.

  Wee, whose names are here vnder written, doe engage ourselves to the vttmost of our Estates and Strength, to mainteyne the authority and to enjoy the Libertie granted to vs by our Charter, in the extent of itt according to the Letter, and to mainteyne each other by the same authoritie, in his lawfull right and Libertie.

  And with this our Charter gives vs powre to governe ourselves and such other as come among vs, and by such a forme of Civill Government as by the Voluntarie consent, &c., shall be found most suitable to our Estate and condition,

  It is agreed, by this present Assembly thus incorporate, and by this present act declared, that the forme of Government established is democraticall; that is to say, a Government held by ye free and voluntarie consent of all, or the greater parte of the free Inhabitants.

  And now to the end that we may give, each to other, (notwithstanding our different consciences, touching the truth as it is in Jesus, whereof, upon the point we all make mention,) as good and hopeful assurance as we are able, touching each man’s peaceable and quiett enjoyment of his lawfull right and Libertie, we doe agree vnto, and by the authoritie above said, Inact, establish, and confirme these orders following.

  touching lawes.

  That no person, in this Colonie, shall be taken or imprisoned, or be disseized of his Lands or Liberties, or be Exiled, or any other otherwise molested or destroyed, but by the Lawfull judgment of his Peeres, or by some known Law, and according to the Letter of it, Ratified and confirmed by the major part of the Generall Assembly lawfully met and orderly managed.

  2. That no person shall (but at his great perill,) presume to beare or execute any office, that is not lawfuly called to it, and confirmed in it; nor though he be lawfully called and confirmed, presume to doe more or less than those that had powre to call him, or did authorize him to doe.

  3. That no Assembly shall have powre to constitute any Lawes for the binding of others, or to ordaine Officers for the execution thereof, but such as are founded upon the Charter and rightlie derived from the General Assemblie, lawfully met and orderly managed.

  4. That no person be employed in any service for the Publick Administration of Justice and Judgment vpon offenders, or between Man and Man, without good encouragement, and due satisfaction from the Publick, eyther out of the common stock, or out of the stocks of those that have occasioned his service; that so, those that are able to serve, may not be unwilling, and those that are able and willing, may not be disabled by being overburthened. And then, in case a man be called vnto Office by a lawfull Assemble, and refuse to beare office, or be called by an officer to assist in the execution of his office, and refuse to assist him, he shall forfeit as much again as his wages would have amounted unto, or be otherwise fined by the judgment of his Peers, and to pay his fine or forfeiture, unless the Colony, or that lawful Assembly release him. But in case of eminent danger, no man shall refuse.

  And now, forasmuch as our Charter gives us powre to make such Lawes, Constitutions, Penalties, and Officers of Justice for the execution thereof as we, or the greater part of vs shall, by free consent, agree vnto, and yet does premise that those Lawes, Constitutions, and Penalties soe made shall be conformable to the Lawes of England, soe far as the nature and constitution of our place will admit, to the end that we may show ourselves not only unwilling that our popularity should prove (as some conjecture it will,) an Anarchie, and so a common Tyranny, but willing and exceedingly desirous to preserve every man safe in his person, name and estate; and to show ourselves, in soe doing, to be also vnder authoritie, by keeping within the verge and limitts prescribed us in our Charter, by which we have Authoritie in this respect to act; Wee do agree and by this present act determine, to make such Lawes and Constitutions soe conformable, &c., or rather to make those Lawes ours, and better known among us; that is to say, such of them, and so farr, as the nature and constitution of our place will admit.

  touching the common law.

  It being the common right among common men, and is profitable eyther to direct or correct all, without exception; and it being true, which that Great Doctor of the Gentiles once said, that the Law is made or brought to light, not for a righteous man, who is a Law vnto himselfe, but for the Lawless and disobedient in the Generall, but more particularly for murderers of Fathers and Mothers; for Manslayers, for whoremongers, and those that defile themselves with mankind; for Menstealers, for Lyars and perjured persons, vnto which, vpon the point, may be reduced the common Law of the Realme of England, the end of which is, as is propounded, to preserve every man safe in his own person, name and estate; Wee doe agree to make, or rather to bring such Lawes to light for the direction or correction of such lawless persons, and for their memories sake to reduce them to these five generall Lawes or Heads; viz.:

  1. Under that head of murdering Fathers and Mothers, being ye highest and most unnatural, are comprehended those Lawes that concerne High Treason, Pettie Treason, Rebellion, Misbehaviour, and their accessaries.

  2. Under the Law for Manslayers, are comprehended those Lawes that concerne Self-murder, Murder, Homicide, Misadventure, casual death, cutting out the Tongue or Eyes, Witchcraft, Burglarie, Robberie, Burning of Houses, Forcible entryes, Rescues and Escape, Riotts, Routs and Unlawfull Assemblies, Batteries, Assaults and Threats and their accessaries.

  3. Under the Law for Whoremongers, and those that defile themselves with mankind, being the chief of that nature, are comprehended those Lawes that concerne Sodomie, Buggerie, Rape, Adulterie, Fornication, and their Accessaries.

  4. Under the Law for Menstealers, being the chief of that nature, are comprehended those Lawes that concern Theft of men, Larcenie, Trespasses by Men or beasts, Fraudulent dealing by deceitfull bargaine, Covenants, Conveyances by Barratrie, Conspiracie, Champertie and Maintenance, by forging or rasing records, Writs, Deeds, Leases, Bills, &c., and by using fallse weights and measures and their accessaries.

  5. Under the Law for Lyars and perjured persons, being the chiefe of that nature, are comprehended such as concerne perjurie itselfe, breach of covenant, Slander, False witnesse-bearing, and their accessories.

  And as necessary concomitants hereof, to prevent Murder, Theft and Perjury, We do joyntlie agree in this present Assemblie, to make or produce such Laws as concerne provision for the poore, soe that the impotent shall be mainteyned and the able employed. And to prevent Poverties, it is agreed, that such Lawes be made and produced as concernes ye ordering of Alehouses, and Taverns, Drunkenness and unlawfull gaming therein; and instead of such to propagate Archerie, which is both man-like and profitable; and to prevent whoredom and those evils before mentioned, it is agreed by this present Assemble to constitute and establish some ordinance touching Marriage, Probate of Wills, and Intestates ...

  Rebellion.

  It is agreed and enacted by this present Assemblie, that no inferiour shall rise up or rebell against his superiour, especially such to whom he more directlie owes faith, dutie, and ready obedience; it being altogether unsuitable to civill order, which by the authoritie of our Charter we purpose to propagate; wherefore, we doe declare that we counte it a kind of Rebellion for a servant to threat, assault, or strike his master; and the penaltie for a threat or assault shall be, to be bound to his good behaviour; for striking especially if it be malitiouslie, to be sent to the House of Correction, there to remaine for six months, or to satisfie his master. It is allso Rebellion for a child to threat, assault, or strike his Parents, and his Penaltie shall be, to be sent to the House of Correction, there to remaine a twelve-month, or to humble himself to his parents’ satisfaction. It is allso Rebellion to threat, assault or strike a Judge of Record; and the penaltie to be bound to his good behaviour, and further fined by his Peers. It is also a kind of Rebellion to withstand an arrest, and the execution of Judgment; the penaltie to be bound to his good behaviour, and to be judged by his Peers.

  Misbehaviour.

  It is agreed by this present Assemblie, and by this act declared, that for any man to sue words of contempt against a chief officer, especially in the execution of his office, is against good manners, and misbehaviour; and his penaltie shall be, to be bound to appeare at the next Court, where such matters are to be Tryed: where, being lawfully convict by his Peers, he shall be bound to his good behaviour, so to remaine for three months space, or till the next Court following ...

  Touching Whoremongers.

  First of Sodomie, which is forbidden by this present Assemblie threwout the whole Colonie, and by Sundry Statutes of England. 25 Hen. viii. 6; 5 Eliz. xvii. It is a vile affection, whereby men given up thereto, leave the natural use of woman, and burne in their lusts, one toward another; and so men with men worke that which is vnseemly, as that Doctor of the Gentiles in his letter to the Romans once spake, i. 27; The Penaltie concluded by that State under whose authoritie we are, is Felonie of death, without remedye. See 5 Eliz. 17.

  Buggerie.

  Buggerie is forbidden by this present Assembly threwout the whole Colonie, and also strengthened by the same Statute of England. It is a most filthy lying with a beast as with a woman, and is abomination and confusion; the just reward whereof prepared to our hands, is Felonie of death, without remedie. See 5 Eliz. 17.

  Rape.

  Rape is forbidden by this present Assembly threwout the whole Colonie; and we do hereby declare, that it is when a man through his vile and unbridled affection, lyeth with, forceth a woman against her will; like hereunto is the knowing of a maid carnally who is vnder ye age of Tenn yeares, though it be with her consent. The penaltie we do declare to be Felonie of death. See, for confirmation, 13 Edw. i. 34; and if the Woman consent after, she loseth her dowre of Lands. See 6 Rich. ii. 6. And so doth a married wife that elopeth with her adventurer. 13 Edw. i. 34.

  Adulterie and Fornication.

  Is forbidden by this present Assembliy threwout the Colonie, with this memento, that the Most High will judge them. 13 Hen. iv. Adultery is declared to be a vile affection, whereby men do turn aside from ye naturall use of their own wives, and do burn in their lusts towards strange flesh; and we do agree, that what penaltie the Wisdome of the State of England have or shall appoint touching these transgressions, the accessarie and effects shall stand in force threwout the whole Colonie.

  Touching Menstealers.

  It is agreed, and by this present Assembly enacted, that the taking away, deflouring or contracting in marriage a maid under sixteen yeares of age, against the will of, or vnknown to the Father or Mother of the Maid, is a kind of stealing of her; and that the penaltie shall be eyther five years’ imprisonment or satisfaction of her parents. 4 Will. and Mary, 8 ...

  Touching Liars and Perjured Persons.

  Forasmuch as the consciences of sundry men, truly conscienable, may scruple the giving or taking of an oath, and it would be noways suitable to the nature and constitution of our place (who professeth ourselves to be men of different consciences, and no one wiling to force another) to Debar such as cannot do so, eyther from bearing office amongst vs, or from giving in testimony in a case depending.

  Be it enacted by the authority of this present Assembly, that a solemn profession or Testimony in a Court of Record, or before a Judge of Record, shall be accounted, threwout the whole Colonie of as full force as an oath; and because many, in giving engagement or testimony, are usually more over awed with the Penaltie which is known, than with the most High, who is little known in the Kingdoms of men.

  It is, therefore, further agreed and ordered, that he that falsifieth such a solemn profession or testimony, shall be accounted among vs as a perjured person, and his penaltie shall be that, looke what detriment is or might be brought vpon others by falsifying his engagement or testimony, the same shall fall upon himself. He shall also forfeit five pounds, and be disenabled eyther to beare office, or to give in Testimony in any Court of Record, vntill the Colonie release him; and this forfeiture and determinet, (the partie being lawfully convicted,) shall be, one halfe to the King’s Custome, and the other shall go to the partie grieved that sues for it, by action of debt or bill: but in case the partie be not worth so much, then shall he be imprisoned in the House of Correction till it be wrought out, or else sett in the Pillory in some open place, and have his Eares nayled thereto; and then may the partie grieved receive his dammages; and the procurer shall have the like penaltie. See 5 Eliz. 9.

  Breach of Covenant.

  Breach of Covenant is by the present Assembly, forbidden threwout the whole Colonie.

  It is enacted, and agreed, that they that perform not their Covenants made eyther by word or writing, (excepting those before excepted,) shall be liable to satisfie what the other can prove he is damnified by reason of the non-performance thereof, which he may recover upon an action of the case.

  And be it further enacted, that no person retayning a servant, shall putt their servant away, nor no person retayned shall depart from their master, mistress or dame, untill the end of the term covenanted for, vss it be for some reasonable and sufficient cause, witnessed before and allowed by the Head Officer or Officers of the Towne, and three or foure able and discreet men of the Comon Councill or Towne appointed thereto, vnder their hands in writing, for the discharge eyther of Master or Servant.

  And be it enacted further, that that Master, Mistress or Dame, that putts away their servant without sufficient cause, and so allowed with such a discharge, shall forfeit the sum of forty shillings; and if any servant departe from his or her Master, Mistress or Dame’s service before the end of the Terme covenanted for, vnless it be for some sufficient cause allowed of as before, or not serve according to the Tenure of the promise or covenant, vpon complaint vnto the Head Officers of the Towne and their associates, the matter being fully proved, he shall be committed to Ward without Baile or Mainprize, vntill by sufficient sureties he be bound to his Master, Mistress or Dame, to perform the engagement.

  Be it enacted, by the authoritie above said, that he that shall retaine a Servant now lawfully dismissed and sett at liberty from his Master, shall forfeit for every such offence five pounds, which the Master may recover by an action of Debt. See 5 Eliz. 4 ...

  Slaunder.

  Forasmuch as a good name is better than precious ointment, and Slaunderers are worser than dead flies to corrupt and alter the savour thereof, it is agreed, by this present Assembly, to prohibitt the raysing or spreading of false reports, Slaunderers and Libells throwout the whole Colonie; and we further declare that the partie offended or grieved by such False reports, Slaunders, and Libells as hereafter followeth, may bring his action of slaunder against the reporter and speaker thereof, in case vpon demand he reaveale not the author, but if revealed, then against the Author, and shall recover sufficient damages. The cases actionable are these; for a man to say eyther by word or writing, and yet not able to prove it, that another is a Traytor, a Fellon, a Thiefe, a Cutt-purse, or hath stole something; a perjured person, or hath forsworn himselfe in any man’s case; a Bankrupt, a Cheater, or one that lives by cheating; to call and be not able to prove it, an unmarried woman a whore; a young man unmarried, a whoremaster; to say a young man keepeth a House of Bawdery; or that a Tradesman maketh nothing but bad wares; or that a Merchant or shop-keeper hath nothing but rotten, bad and vnsound wares in his house or shopp, or to speak any thing in the dispragement of a Man’s goods that he putts to sale whereby he may be damnified.

  Poore.

  It is agreed and ordered, by this present Assembly, that each Towne shall provide carefully for the reliefe of the poore, to maintaiyne the impotent, and to employ the able, and shall appoint an overseer for the same purpose. See 43 Eliz. 2.

  Scoulds.

  It is ordered, Common Scoulds shall be punished with the Ducking Stoole.

  Ale Houses.

  It is ordered, by the authority of this present Assembly, that no Taverne, Alehouse or Victualling House, shall be kept threwout the whole Colonie without Licence or Allowance; and whosoever shall keep Taverne or Alehouse, or Victualling house without licence, shall forfeit twenty shillings, which shall be levied to the vse of the poore, and shall by the head officer of the Towne be forthwith discharged. See 3 Car. 3.

  Licenses.

  Be it also enacted by the authority of this present Assembly, that each Towne shall have power to allow Tavernes, Alehouses, and Victualling houses within its own precincts; and the Head officer of the Towne shall binde by Recognizance every such Taverne, Alehouse keeper and Victualler so allowed, with two such sufficient sureties to keep good order in his house, and not to vse such games as are judged by the Lawes of England to be vnlawfull in such Common houses, as Carding, Dicing, Slide, Groat, &c., and not to suffer any Townsmen to remeine tipling therein for one hours space, vnder the penaltie of ten shillings for every such default, vpon the view of the head officers, or vpon the information of sufficient witnesses vpon their solemn testimony, or by his owne confession; And every Townsman so taken, shall forfeit for every time, three shillings and four pence; which forfeitures shall be taken by distreint and given to the overseer for the use of the Poore.

  Drunkenness.

  Drunkenness is forbidden throwout this whole Colonie; and it is further agreed, that the head officer of each Towne, or any other Magistrate shall have powre upon his owne view, confession of the partie or proof vpon one witness his Testimony, to convict a person of drunkenness, who shall be by him enjoyned to pay five shillings, for that fact into the hands of the overseer for the vse of the poore, within one week after the same conviction; and in case the partie refuse so to do or be not able; then shall he be sett in the Stocks, and there remaine for the space of six houres; and for the second offence, being convicted as aforesaid, he shall forfeit ten shillings, to be paid as before; and shall be bound by the head officer or magistrate before whom he is convicted, to his good behaviour, with two sufficient sureties in the summe of tenpounds. 21 Jac. 7 ...

  Marriage.

  It is agreed, and ordered by this present Assemblie, for the preventing of many evills and mischiefs that may follow thereon, that no contract or agreement between a Man and a Woman to owne each other as Man and Wife, shall be owned from henceforth threwout the Whole Colonie as a lawfull marriage, nor their Children or Issue so coming together to be legitimate or lawfullie begotten, but such as are, in the first place, with the parents, then orderly published in two severall meetings of the Townsmen, and lastly confirmed before the head officer of the Towne, and entered into the Towne clerk’s Booke. And that man that goes contrarie to this present Ordinance established, shall forfeit five pounds to the parents of the Maid, and be bound to his good behavior; and all the accessories shall forfeit five pounds a man, halfe whereof shall go to the grieved parents and the other halfe of the Towne ...

  Touching the Public Administration of Justice

  According to the Lawes Agreed Upon and

  Established Throwout the Whole Colonie.

  Be it enacted by this present Assemblie, that for matters of greater weight and moment, there shall be erected a Generall Court of Tryalls for the whole Colonie, and Generall Officers for the Administration of Justice therein.

  The Court shall be held twice in the yeare, in case there be matters that are then and there to be Tryed, Sci: upon the next day after the dissolving of the Court of Election held in May, and the other upon the last Tewsday of the eighth moneth, commonly called October, and these Courts to be held at ———.

  It is further agreed, that to these Colonie Courts of Tryall, shall appertaine the Tryall of such Crimes as may hazard Life, Limbe, Disfranchisement or Bannishment; and such Trespasses, Debts, and differences (as by the Common Councill eyther of Towne or Townes shall be judged too weightie for a more private determining). Also, such matters of difference as fall out betweene Towne and Towne, or between parties dwelling in two Townes more remote, or in the case of an arrest of a man belonging to a neighbour Colonie, or, in cases of great importance; also, attaints of Inquests, and Tryalls of perjuries, and finally all such matters as are not referred, by any charter or order, vnto any Towne apart, or to the Island, or two Townes joyntlie.

  Be it enacted further by the authority of this present Assemblie, that the Generall Officer for the whole Colonie shall be these, Sci: One President, foure Assistants, in every Towne one, one General Recorder, one Publick Treasurer, and a General Sargent; which Officers shall be chosen every yeare in the General Assembly, and towards the latter end of that Session. They shall also be chosen after this matter: for President, Recorder, Treasurer and Serjant each Towne shall present one; and he which the major part of the General Assembly pitcheth upon by paper, shall stand and be confirmed in his Office for that yeare; and for Assistant, each Towne shall present two, and he which the vote by paper pitcheth upon, shall be the Assistant in that Towne.

  Be it further enacted, that the President and Assistants shall have such a Commission by which they shall be conservators of the peace in the same Towne where they live and throwout the whole Colony. By this Commission, they shall keep the peace, and in case it be broke by threats, assaults, or affrayes, eyther before any of them or vpon lawfull complaint, he or they shall bind the parties by recognizance with two sufficient sureties vnto the peace, and to prepare at that Court where such matters are to be tryed, and soe to remaine, vntill by proclamation in open Court he shall be acquitted ...

  president’s commission.

  By a speciall commission, the President shall sitt as Chief Judge in the Colonie Courts of Tryall, to see that order and course of Law appointed thereto be dulie observed, and the verdict being given in, he is to pronounce the sentence.

  In case it be a matter of Felonie, to deliver vp to the Generall Sargent to the execution, or see it done and performed.

  In case it be a matter of Trespass, debt or any other difference betweene Man and Man; he is, together with the Assistants, to tax the costs and to send forth a Writ of Execution unto the Generall Sargant at least tenn dayes before, to give the whole Colonie notice, to the end they may prepare for the Generall Assemblie.

  assistants.

  By a speciall commission, all the assistants, if not necessarily deteyned, shall sit with the President in ye Generall Courts of Tryall, and shall supply the roome of a Coroner in each Towne where they dwell.

  touching the generall recorder.

  Be it enacted by this present Assemblie, that the Generall Recorder’s Office shall be in the generall, to keep a Coppie of all the Records or Acts of the Generall Assemblie, Generall and particular Courts of Judicature, Rolles of the Freemen of the Colonie, Records, Evidences, Sales and Bargaines of Land, Wills and Testaments of the Testators, and orders of the Townsmen touching the Intestate, Records of the Limitts and Bounds of Townes, their Highways, Driftwayes, Commons and Fencings, Priviledges and Liberties. And forasmuch as matters of greatest concernement ought to be kept and preserved with the greatest vigilance: Be it enacted, that the Generall purchases, (which are all we can shew for our right to our Lands, and the Charter which is that which gives vs who are Subjects right to exercise authority one over another,) be kept in a strong chest, having foure severall Locks annexed thereto, and that each Towne keep a key thereof, that soe, as there is a common right and interest therein, there may be no access vnto them in a divided way, (lest also, they be divided) but with a common consent. And let it be further enacted, that this chest be placed in the safest place of the Colonies; and the Generall Recorder, also, shall have the key to the Roome in which it is placed.

  Be it also enacted, that he that is Generall Recorder, shall supply the roome of the Clerke of the peace or assizes, in the Generall Court of Tryall, as it is a Court of Assize or Goale delivery. And as Clark of assize, his office shall be to receive examination, information, recognizances and bailments, presented by the Officer who committed the Felon to prison. He shall also receive the bill of indictments presented by him who was bound to prosecute the prisoner; he shall read the indictments and enroll the acts of the Court itself, the indictment, the process, the answer, the traverse itself, the verdict, the judgment thereupon, and the execution. And as this Court is a Court of Common Please, soe he shall supply the roome of the master of the office, and in that regard his office shall be, vpon the request of the plaintiff or his Attorney, (in matters that clearly appertaine vnto that Court,) to direct a Writ to the General Sargant to arrest the defendant, in such an action, of such a man, and to take baile for his appearance by such a day as the writ makes mention to be returnable; and in case the General Sargant returne ye defendants Bond by the day appointed, then shall he enter into his appearance, and in case they proceed, his office shall be, to file such declarations and answers. But in case after a declaration is filed in expectation of an answer, or to make his defence, and he doth not, then the plaintiff taketh him by fault, which is called confessing the action; and then the Recorders office shall be, to enter and record a nihil dicit (id est,) he saith nothing thereon, and so shall be send out a writ of enquiry of dammages vnto the Towne where the defendant lives. And the head officer of the Towne, at the next Towne Court, shall enquire of damages, and by a writ of destringes to the Sargant, shall cause the defendant for that purpose to come to the Court, and in case he appeare not, he shall forfeit the distraint, and the head officer of the Towne may distraine again and again. The matter being issued in the Towne, it shall be returned into the office, and the Recorder shall then enter the postia returne, and give forth to the General Sargent a writ of Execution.

  touching the publick treasurer.

  Be it enacted, that the Publick Treasurer shall only receive such finds, forfeitures, amercements and taxes, as fall vpon such as are not within the liberties of the three Townes specified in the Charter; and Warwick, that is invested with the like priviledges and powre; and that the Townes mentioned shall receive and keep safe in their custody all finds, forfeitures and amercements that shall be levied upon the Inhabitants thereof vntill they be called for by the authority from England; but if vpon our humble petition, they be granted to the Colony, then shall they enjoy them as a helpe in their Government as their custom forever. Moreover, looke what comes into the Publick Treasury by that way, he shall give account of in the Generall Assembly.

  touching the generall sargant.

  Be it enacted by this present Assemblie, that he that is chosen Generall Sargant shall be an able man of Estate, for so ought a Sheriff to be, whose place he supplies; whose office shall be to attend all Colonye Courts of Tryall, and to serve eyther by himselfe or the Serjants of each Towne, all Writts originall or judiciall; who having arrested a man for that which he is bailable, he shall take baile by an obligation to himselfe, with sufficient sureties; the condition of which shall be, to make appearance in the place, and at the time, the bill, writt, or warrant specifies. He shall also gather vp all fines, forfeitures and amercements, that are made at the Colonie Courts of Tryall, and shall returne them faithfully unto the Treasurie to which they appertaine. When he is chosen, he shall be solemnly engaged to exact no more than his wages, and to take no more than is forfeited; for not serving writts and warrants, he shall lose to the party grieved, treble damages, forfeit Forty Pounds; twentie whereof is the King’s Custome, and twentie shall be to the party that sueth. And he that summons or doth arrest without warrant, shall be imprisoned till he pay to the party grieved ten pounds, his costs and damages, and twentie pounds to the King. See the 43 Eliz. 6. He shall also have the charge of the prison for the Colony, and the prisoners therein.

  But forasmuch as Justice cannot be had in the general Court of Judicature, notwithstanding these Officers, without Pleaders and Tryars, be it enacted, that there shall be both, and rules given for their orderly proceedings.

  touching the inquest for tryars.

  To save needless expenses and travailes, be it enacted, by the authority of this present Assemblie, that all Traitors, Felons, and such as are suspected thereof shall be indicted by twelve or sixteen honest and lawful men of, and also in the Towne where the person was taken, or of, and in the Towne where his Tryall shall be, and at the Court of Tryall. And that three of the most sufficient and least suspicious persons in each Towne bee chosen by the Townsmen tenn days before, and sent to that Court to attend the Tryall of such matters as shall be presented, and that these be returned and arrayed by the General Sargent, so that the parties may have knowledge of them foure dayes before the Sessions of the Justices upon paine of ten pounds; and that they be chosen by neyther old men above seventy yeares, nor mean men, nor such as have a charter of exemption, nor an indictor, nor interested in the deliverance of an indictee. See 42 Edw. iii. 11; 13 Edw. i. 37; 25 Edw. iii. 3; 3 Hen. v. 3; 23 Hen. vi. 9.

  And be it further enacted, that no man shall pass vpon the Life of a Man in this Colonie, nor in plea real, no, nor personal in any issue joyned, that amounts in the dammage to the value of forty marks, nor touching forcible entry, nor touching Riotts, who is not clear worth forty pounds, nor in smaller matters in the Towne that is not clearly worth twenty pounds.

  And be it further enacted, that men have their peremptory and other challenges, to the full, as they have them in England, where for petty Treason, Murder and Felony, they may challenge to the number of twentie. See 32 Hen. viii. 3.

  And be it enacted, that the inquest upon the Tryall of persons indicted of Felonie, shall eyther allow of, or reject the witnesses according to their consciences, of all or the major part of them. 4 Jac. 3.

  And be it further enacted, that the inquest being thus chosen by the Townes, and summoned by the Sargant, in case any of them appeare not, their roome shall be supplied by such among those that stand about, or that live in the same Towne (and they refusing, the same fine,) where the Colonie Court of Tryall is held, and every man soe chosen and summoned, if he appeares not, shall lose and forfeit five shillings and ten pence; or what he might have gott if he had attended the service which the Court shall determine, which, by a distringas from the Court, the Serjant shall require, and levie and deliver into the Treasury to which it belongs.

  And be it further enacted by the authority of this present Assemblie, that if any false verdict be given in any action, suit, or demand, either in this or in any other Court of the Colonie, in any thing personall, as Trespass, Debt, Difference, &c.; the party grieved shall have a writ of attaint out of this Court of the Colonie, putting in sufficient security against each partie giving in such an untrue verdict, whereby yee parties shall be summoned by great distresses; and in case the thing in demand and the verdict surmounts forty pounds, to the three able men of each Towne shall be added twelve of the same Towne, where the Colonie Court of Tryall shall be, being worth three score pounds a piece, if such and so many are to be had, and in case these find they gaven an vntrue verdict, every one of the former inquest shall forfeit twenty pounds, ten whereof is the King’s custome, and ten pounds shall go to the partie grieved, that sues for it; he shall be also not of credence, neither shall his solemn testimony be taken in any Court, vntill the Colonie release him. But if, eyther the demand or verdict be vnder forty pounds, then shall the inquest be worth fifty pounds a man; and every one of the petty inquest being found guilty, shall forfeit five pounds, the like punishment as is before specified. See 23 Hen. viii. 3; 37 Hen. viii. 5. And in case he that sues for the writ of attaint makes it not good, every party attainted may have his action against him, and recover sufficient dammages.

  touching pleaders.

  Be it enacted by the authority of this present Assembly, that any man may plead his own case in any Court, or before any Judge of Record Throwout the whole Colonie, or may make his Attorney to plead for him, or may vse the Attorney that belongs to the Court which may be two in a Towne, to wit; discreet, honest and able men for understanding, chosen by the Townsmen of the same Towne, and solemnly engaged by the head officer thereof, not to vse any manner of deceit to beguile eyther Court or partie. And these being thus chosen and confirmed, shall be authorized, being entertayned, to plead to any Court in the Colonie; but in case such pleader or Attorney shall vse any manner of deceit as is aforesaid, and be thereof attainted, or that shall be notoriously in any default of record, he shall forfeit his place, and never more be admitted to plead in any Court of the Colonie. See 3 Edw. 1, 28; 4 Hen. iv. 18.

  Be it also further enacted, that in matters of oversie betweene partie and partie, or Towne and Towne, that belongs to the hearing and determination of the Colony Court of Tryall, the partie complaining, or his attorney, shall goe to the General Record, and in his office shall enter his action; then shall he request a writ to arrest the defendant as is abovesaid, returnable at least twenty dayes before the Court; the bond of the defendant being returned into the Recorder’s Office, the plaintiff or his Attorney, shall, within foure dayes after, file his declaration in the Recorder’s Office (or he shall be non-suited) where the defendant or his Attorney may see it and take forth a coppie thereof; then shall the defendant or his Attorney, file the answer eight dayes before the Court. And so shall they join issue, that Court, and proceed to Tryall, where the witnesses to prove or disprove the issue being produced, the plaintiff and defendant may plead their own cause, or have their Attorneys plead for them before ye Bench, and the inquest; and the verdict and judgment being given, the Recorder shall enter it. But in case the defendant puts in his answer, and at the Court makes his demurr, then shall the Court judge of the sufficiency thereof, and so shall accept the demurr, or proceed; but in case he neyther puts in his answer, nor demurr, or gives in his answer, but puts not in his demurr, and yet appeares not, then shall be entered, he saith nothing; and so shall it be taken for granted he confesseth the action, and then shall go forth a writ from the Court vnto the Towne in which he lives, to enquire of dammages, which being returned to the Recorder, a process or writ shall go forth for Execution.

  And now forasmuch as we have prescribed Rules and orders, whereby are declared both the authoritie, office and duty of every person that shall be employed about this Colonie Court of Tryall, and have likewise declared, that the President’s and foure assistants’ office (among other things that belong to their care) is to see that order and course of Law appointed to this Court be dewly observed.

  It is agreed, and by the authority of this present Assemblie enacted, that as the former Lawes are committed to their custodie to see them observed or executed, soe are these constitutions, so farr, as they have a respect vnto an orderly finding out of Justice and the administration thereof, committed to their charge, to see them observed.

  And furthermore be it enacted, as that which adds to the comely and commendable order of this Court of Judicature, that at eight of the clock in the morning of those dayes vpon which the Court is appointed at the farthest, the President, the Towne Assistants, and the Head Officers of the same Towne where the Court shall be kept, (for their Councill and helpe,) shall sit in the publicke Sessions house, and also the Generall Recorder, where shall attend those that seeke for justice, their pleaders, witnesses, Tryars and the Generall Sarjant with his prisoners ready either to rid his hands of them, or else to doe execution vpon them or others as Justice shall require.

  In the first place, the Recorder shall present, and if there be time read over the bills of indictment; and if, in case they have been examined or presented by an inquest before, then shall he pass them over; if not, then shall the President sett apart the honest and lawfull men prepared for that purpose, by a solemn engagement, faithfully to enquire touching the bills, and soe shall send them forth with the same.

  Then, in case there be any controversies or difficulties between partie and partie that are lawfully and orderly presented to that Court for Tryall, the Recorder shall read them over in the open Courte, and that which was first joyned for issue, shall come first to the hearing. And because the twelve men are to have the hearing and determining of all controversies and differences depending between partie and partie, they shall be first called forth by the President and placed in order before those that are to be judged, from whom they shall receive a solemn charge vpon the perill and penaltie the law hath provided, to do justice between the parties contending, according to evidence. This done, then shall the parties, (having first had their lawfull challenges,) or their Attornies plead their cases before them, produced their witnesses for what they affirme, which shall be taken upon the like perill. When they have sufficiently discussed the difference, then shall the President or any other of the Assistants mind the inquest of the most material passages and arguments that are brought by one and other for the case and against it, without alteration or leaning to one party or another, (which is too commonly seene,) and soe shall the President advise the inquest to goe forth and do justice and right between their neighbours, according to the evidence that has been brought, for what has been pleaded. These being gone forth, then may the Court proceed to deale with such as are bound by recognizance eyther to release them or to continue their Bonds, according as there is just cause, and may read over the Indictments that have been enquired into before, and are now presented as true bills, or that were committed to the inquest in the beginning of the Court and are returned true bills, The twelve men returning with a verdict it shall be recorded, and soe shall they be employed, vntill all the differences be ended.

  And forasmuch as it belongs to the Justices to taes the costs, lett the vacant times be so employed.

  These controversies, differences and demands being thus all issued, then let the Recorder call to ye Sarjant to bring forth ye Prisoners. Before each prisoner lett his inductment be read, and he demanded what he saieth to the indictment, whether Guilty or not. If he answer Guilty, his confession shall be recorded. If he sayeth not Guilty, then lett him be demanded if he will be tryed by God and the Country, sci: his countrymen. If he consents, the President shall call forth the twelve men before him, wish him to look upon them, and ask if he have any thing against them; if not, then he shall charge them vpon the former perill, to deale faithfully and truly in the matter; it being a matter of consequence and moment, and to proceed to determine according to the light of their consciences, vpon the evidence given in, and if any be found Guilty of death, to be reprieved to the next Court. And thus having issued all matters depending, the President with the assistants and councellors shall give forth writs vnto the Generall Sarjant for the severall executions, and so break vp the Court for that time and sitting.

  And be it further enacted, by the authoritie of this present Assemblie, that the perill that any officer shall susteyne, for going without, besides, or beyond his Commission, shall be first lawfuly and orderly judged. And that no officer employed in this Colonie shall think it strange or hard dealing to be brought to his faire Tryall, and Judgment for what he hath done amiss.

  Be it enacted, that the Cheife Officers of the Colonie, Island, or Townes, shall be tryed and judged in the Generall Assembly by a committe of the most able and impartiall men, chosen out from among them, against whom they may have also their lawfull challenges: and that all other officers abusing their offices, shall be tryed and judged eyther in the Towne by which they were chosen; or, if the Towne please, or if not chosen by the Towne, then shall they be tryed and judged by the Colonie Courts of Tryalls, And in case any man sues for Justice against an officer or other, and he cannot be heard, or is heard and cannot be righted by any Law extant among vs, then shall the partie grieved petition to the Generall or Law making Assemblie, and shall be relieved.

  And now forasmuch as the choice of all the officers that are to be employed in this Colonie, like the Colonies about vs, once a year, whereby it may be easily collected, that he that hath an office or charge this yeare, may have none another; and it would be too prejudicial to the peace of the place or quiet Government thereof, for a man out of a discontented selfwill, or other pretence, not to resigne, together with his office, belonging to the Colonie, Island or Towne, to him that is chosen and appointed thereto ...

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  13: 1647: The Laws and Liberties of Massachusetts

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 26: The Laws and Liberties of Massachusetts

  Accessed from oll.libertyfund.org/title/694/102500 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  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] ...

• Back to Top

  14: 1649: Maryland Toleration Act

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 68: [Maryland Toleration Act]

  Accessed from oll.libertyfund.org/title/694/102701 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  68

  [Maryland Toleration Act]

  Text, complete and with original spelling, taken from Browne, Archives of Maryland: Vol. i, 244–47.

  April 21, 1649

  Passed in accordance with instructions from Lord Baltimore, this document protected Maryland from the charge of intolerance toward Protestants. When the Protestants were in charge of the colony for a time after 1654, Catholics were not protected in their faith, but this document was reinstated with the restoration of Lord Baltimore as proprietor. The Maryland Toleration Act constitutes the broadest definition of religious freedom during the seventeenth century and was an important step toward true freedom of religion. It sounds strange to our ears that such a harshly worded document should be called a toleration act, but the breadth of toleration defended also required that the sensibilities of religious people not be offended regardless of denomination. Aside from prohibitions on the calling of names, the meat of the act is found near the end of the text—no one will be punished or disadvantaged because of his religious beliefs. In any case, the harsh blasphemy provisions were never enforced.

  Acts and Orders of Assembly assented vnto Enacted and made at a Generall Sessions of the said Assembly held at St Maries on the one and twentieth day of Aprill Anno Domini 1649 as followeth viz:

  an act concerning religion

  fforasmuch as in a well governed and Xpian1 Common Weath2 matters concerning Religion and the honor of God ought in the first place to bee taken, into serious consideracion and endeavoured to bee settled. Be it therefore ordered and enacted by the Right Noble Cecilius Lord Baron of Baltemore absolute Lord and Proprietary of this Province with the advise and consent of this Generall Assembly. That whatsoever pson or psons within this Province and the Islands thereunto belonging shall from henceforth blaspheme God, that is Curse him, or deny our Saviour Jesus Christ to bee the sonne of God, or shall deny the holy Trinity the ffather sonne and holy Ghost, or the Godhead of any of the said Three psons of the Trinity or the Vnity of this Godhead, or shall use or utter any reproachfull Speeches, words or language concerning the said Holy Trinity, or any of the said three psons thereof, shalbe punished with death and confiscation or forfeiture of all his or her lands and goods to the Lord Proprietary and his heires, And bee it also Enacted by the Authority and with the advise and assent aforesaid. That whatsoever pson or psons shall from henceforth use or utter any reproachfull words or Speeches concerning the blessed Virgin Mary the Mother of our Saviour or the holy Apostles or Evangelists or any of them shall in such case for the first offence forfeit to the said Lord Proprietary and his heirs Lords and Proprietaries of this Province the sume of ffive pound Sterling or the value thereof to be Levyed on the goods and chattells of every such pson soe offending, but in case such Offender or Offenders, shall not then have such goods and chattells sufficient for the satisfyeing of such forfeiture, or that the same bee not otherwise speedily satisfyed that then such Offender or Offenders shalbe publiquely whipt and bee ymprisoned during the pleasure of the Lord Proprietary or the Leivet3 or cheife Governor of this Province for the time being. And that every such Offender or Offenders for every second offence shall forfeit tenne pound sterling or the value thereof to bee levyed as aforesaid, or in case such offender or Offenders shall not then haue goods and chattells within this Province sufficient for that purpose then to be publiquely and severly whipt and imprisoned as before is expressed. And that every pson or psons before mentioned offending herein the third time, shall for such third Offence forfeit all his lands and Goods and bee for ever banished and expelled out of this Province. And be it also further Enacted by the same authority advise and assent that whatsoever pson or psons shall from henceforth vppon any occasion or otherwise in a reproachful manner or Way declare call or denominate any pson or psons whatsoever inhabiting residing traffiqueing trading or comerceing within this Province or within any the Ports, Harbors, Creeks or Havens to the same belonging to an heritick, Scismatick, Idolator, Puritan, Independent, Prespiterian popish prest, Jesuite, Jesuited Papist, Lutheran, Calvenist, Anabaptist, Brownist, Antinomian, Barrowist, Roundhead, Sepatist, or any other name or terme in a reproachfull manner relating to matter of Religion shall for every such Offence forfeit and loose the some of tenne shillings sterling or the value thereof to bee levyed on the goods and chattells of every such Offender and offenders, the one half thereof to be forfeited and paid unto the person and persons of whom such reproachfull words are or shalbe spoken or vttered, and the other half thereof to the Lord Proprietary and his heires Lords and Proprietries of this Province, But if such pson or psons who shall at any time vtter or speake any such reproachful words or Language shall not have Goods or Chattells sufficient and overt within this Province to bee taken to satisfie the penalty aforesaid or that the same bee not otherwise speedily satisfied, that then the pson or psons soe offending shalbe publickly whipt, and shall suffer imprisonmt without baile or maineprise vntill hee shee or they respectively shall satisfy the party soe offended or grieved by such reproachfull Language by asking him or her respectively forgivenes publiquely for such his Offence before the Magistrate or chiefe Officer or Officers of the Towne or place where such Offence shalbe given. And be it further likewise Enacted by the Authority and consent aforesaid That every person and persons within this Province that shall at any time hereafter prophane the Sabbath or Lords day called sunday by frequent swearing, drunkennes or by any uncivill or disorderly recreacion, or by working on that day when absolute necessity doth not require it shall for every such first offence forfeit 2s. 6d 4 sterling or the value thereof, and for the second offence 5s sterling or the value thereof, and for the third offence and soe for every time as shall offend in like manner afterwards 10s sterling or the value thereof. And in case such offender and offenders shall not have sufficient goods or chattels within this Province to satisfy any of the said Penalties respectively hereby imposed for prophaning the Sabbath or Lords day called Sunday as aforesaid, That in Every such case the partie soe offending shall for the first and second offence in that kinde be imprisoned till hee or shee shall publickly in open court before the chiefe Commander Judge or Magistrate, or that County Towne or precinct where such offence shalbe committed acknowledge the Scandall and offence he hath in that respect given against God and the good and civill Govern[m]ent of this Province And for the third offence and for every time after shall also bee publickly whipt. And whereas the inforceing of the conscience in matters of Religion hath frequently fallen out to be of dangerous Consequence in those commonwealthes where it hath been practised, And for the more quiett and peaceable government of this Province, and the better to preserve mutuall Love and amity amongst the Inhabitants thereof. Be it Therefore also by the Lo: Proprietary with the advise and consent of this Assembly Ordeyned & enacted (except as in this psent Act is before Declared and sett forth) that noe person or psons whatsoever within this Province, or the Islands, Ports, Harbors, Creekes, or havens thereunto belonging professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion not in the free exercise thereof within this Province or the Islands thereunto belonging nor any way compelled to the beliefe or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Govern[m]ent established or to bee established in this Province vnder him or his heires. And that all & every pson and psons that shall presume contrary to this Act and the true intent and meaning thereof directly or indirectly either in person or estate willfully to wrong disturbe trouble or molest any person whatsoever within this Province professing to believe in Jesus Christ for or in respect of his or her religion or the free exercise thereof within this Province other than is provided for in this Act that such pson or psons soe offending, shalbe compelled to pay trebble damages to the party soe wronged or molested, and for every such offence shall also forfeit 20s sterling in money or the value thereof, half thereof for the vse of the Lo: Proprietary, and his heires Lords and Propietaries of this Province, and the other half for the vse of the party soe wronged or molested as aforesaid, Or if the ptie soe offending as aforesaid shall refuse or bee vnable to recompense the party soe wronged, or to satisfy such ffyne or forfeiture, then such Offender shalbe severely punished by publick whipping & imprisonmt during the pleasure of the Lord Proprietary, or his Leivetenant or cheife Governor of this Province for the tyme being without baile or maineprise And bee it further alsoe Enacted by the authority and consent aforesaid That the Sheriff or other Officer or Officers from time to time to bee appointed & authorized for that purpose, of the County Towne or precinct where every particular offence in this psent Act conteyned shall happen at any time to bee committed and wherevppon there is hereby a fforfeiture ffyne or penalty imposed shall from time to time distraine and seise the goods and estate of every such pson soe offending as aforesaid against this psent Act or any part thereof, and sell the same or any part thereof for the full satisfaccion of such forfeiture, ffine, or penalty as aforesaid, Restoring vnto the ptie soe offending the Remainder or overplus of the said goods or estate after such satisfaccion soe made as aforesaid

  The freemen haue assented. Tho: Hatton

  Enacted by Governor Wllm Stone

  69

  Articles, Laws, and Orders, Divine, Politic, and Martial for the Colony in Virginia

  Text taken from D. H. Flaherty, ed., Laws Divine, Moral, and Martial Compiled by William Strachey (Charlottesville: The University Press of Virginia, 1969), 9–25. Flaherty retains the original spelling and punctuation, except to transpose i and j, and u and v, respectively, to correspond to modern usage. The usual practice is to reproduce only pages 9–25 of the Strachey version, as is done here, but the complete document is 101 pages long. The balance of the document contains a detailed discussion of the colony’s martial laws and specific instructions from the marshal to every rank concerning duties and bearing. The Flaherty volume contains a discussion of the historical context surrounding this document, as well as the complete text.

  1610–1611

  Under its initial charter, Virginia was run by a cumbersome double council. A thirteen-member royal council in London appointed a thirteen-member council in Virginia to carry out its will. The system did not work, and the Virginia governor had to become a virtual dictator to maintain order. The following document was issued under martial law but still reflects the values that were generally accepted by the colonists. It is equivalent to a code of law and may be fruitfully compared with other codes of law in this collection, such as documents 2, 20, 22, 26, 30, 39, and 52. Religion plays an important role in this Virginia document, as it did in codes elsewhere, and the moral content looks similar to that of New England codes. Virginia, however, was not a Puritan colony but Church of England country—Anglicanism was for a long while the colony’s established church. The similarities with the Puritans may have been due to the predominance of “low church” members who, while remaining securely in the fold, shared many of the Puritan inclinations against pomp, statues, and other vestiges of what was termed covert popery. The extent of this low church influence was revealed when in the 1690s the king proposed sending an Anglican bishop to Virginia, and every pastor in the colony signed a letter asking that the bishop not be sent. Despite its determined attempt to re-create English country life in America, Virginia society did not include members of the English aristocracy, and its religious inclinations were similarly nonhierarchical compared with the English at home. Still, this was not New England Puritanism, which is reflected in the large number of capital crimes typical of English common law at the time rather than the restricted list of capital crimes listed in, for example, the Massachusetts Body of Liberties [22]. Many laws are aimed at preserving the extremely limited goods in the colony, which reflects the desperate situation faced in the early years of colonization.

  Articles, Lawes, and Orders, Divine, Politique, and Martiall for the Colony in Virginea: first established by Sir Thomas Gates Knight, Lieutenant Generall, the 24th of May 1610. exemplified and approved by the Right Honourable Sir Thomas West Knight, Lord Lawair, Lord Governor and Captaine Generall the 12th day of June 1610. Againe exemplified and enlarged by Sir Thomas Dale Knight, Marshall, and Deputie Governour, the 22nd of June, 1611.

  Whereas his Majestie like himselfe a most zealous Prince hath in his owne Realmes a principall care of true Religion, and reverence to God, and hath alwaies strictly commaunded his Generals and Governours, with all his forces wheresoever, to let their waies be like his ends for the glorie of God.

  And forasmuch as no good service can be performed, or warre well managed, where militarie discipline is not observed, and militarie discipline cannot be kept, where the rules or chiefe parts thereof, be not certainely set downe, and generally knowne, I have (with the advise and counsell of Sir Thomas Gates Knight, Lieutenant Generall) adhered unto the lawes divine, and orders politique, and martiall of his Lordship (the same exemplified) an addition of such others, as I have found either the necessitie of the present State of the Colonie to require, or the infancie, and weaknesses of the body thereof, as yet able to digest, and doe now publish them to all persons in the Colonie, that they may as well take knowledge of the Lawes themselves, as of the penaltie and punishment, which without partialitie shall be inflicted upon the breakers of the same.

  1 First since we owe our highest and supreme duty, our greatest, and all our allegeance to him, from whom all power and authoritie is derived, and flowes as from the first, and onely fountaine, and being especiall souldiers emprest in this sacred cause, we must alone expect our successe from him, who is only the blesser of all good attempts, the King of kings, the commaunder of commaunders, and Lord of Hostes, I do strictly commaund and charge all Captaines and Officers, of what qualitie or nature soever, whether commanders in the field, or in towne, or townes, forts or fortresses, to have a care that the Almightie God bee duly and daily served, and that they call upon their people to heare Sermons, as that also they diligently frequent Morning and Evening praier themselves by their owne exemplar and daily life, and duties herein, encouraging others thereunto, and that such, who shall often and wilfully absent themselves, be duly punished according to the martiall law in that case provided.

  2 That no man speake impiously or maliciously, against the holy and blessed Trinitie, or any of the three persons, that is to say, against God the Father, God the Son, and God the holy Ghost, or against the knowne Articles of the Christian faith, upon paine of death.

  3 That no man blaspheme Gods holy name upon paine of death, or use unlawful oathes, taking the name of God in vaine, curse, or banne,1 upon paine of severe punishment for the first offence so committed, and for the second, to have a bodkin2 thrust through his tongue, and if he continues the blaspheming of Gods holy name, for the third time so offending, he shall be brought to a martiall court, and there receive censure of death for his offence.

  4 No man shall use any traiterous words against his Majesties Person, or royall authority upon paine of death.

  5 No man shall speake any word, or do any act, which may tend to the derision, or despight3 of Gods holy word upon paine of death: Nor shall any man unworthily demeane himself unto any Preacher, or Minister of the same, but generally hold them in all reverent regard, and dutiful intreatie,4 otherwise he the offender shall openly be whipt three times, and ask publike forgivenesse in the assembly of the congregation three several Saboth Daies.

  6 Everie man and woman duly twice a day upon the first towling of the Bell shall upon the working daies repaire unto the Church, to hear divine Service upon pain of losing his or her dayes allowance for the first omission, for the second to be whipt, and for the third to be condemned to the Gallies for six Moneths. Likewise no man or woman shall dare to violate or breake the Sabboth by any gaming, publique or private abroad, or at home, but duly sanctifie and observe the same, both himselfe and his familie, by preparing themselves at home with private prayer, that they may be the better fitted for the publique, according to the commandements of God, and the orders of our Church, as also every man and woman shall repaire in the morning to the divine service, and Sermons preached upon the Saboth day, and in the afternoon to divine service, and Catechising, upon paine for the first fault to lose their provision, and allowance for the whole weeke following, for the second to lose the said allowance, and also to be whipt, and for the third to suffer death.

  7 All Preachers or Ministers within this our Colonie, or Colonies, shall in the Forts, where they are resident, after divine Service, duly preach every Sabbath day in the forenoone, and Catechise in the afternoone, and weekly say the divine service, twice every day, and preach every Wednesday, likewise every Minister where he is resident, within the same Fort, or Fortresse, Townes or Towne, shall chuse unto him, foure of the most religious and better disposed as well to informe of the abuses and neglects of the people in their duties, and service to God, as also to the due reparation, and keeping of the Church handsome, and fitted with all reverent observances thereunto belonging: likewise every Minister shall keepe a faithful and true Record, or Church Booke of all Christnings, Marriages, and deaths of such our people, as shall happen within their Fort, or Fortresses, Townes or Towne at any time, upon the burthen of a neglectfull conscience, and upon paine of losing their Entertainment.5

  8 He that upon pretended malice, shall murther or take away the life of any man, shall bee punished with death.

  9 No man shal commit the horrible, and detestable sins of Sodomie upon pain of death; and he or she that can be lawfully convict of Adultery shall be punished with death. No man shall ravish or force any woman, maid or Indian, or other, upon pain of death, and know that he or shee, that shall commit fornication, and evident proofe made thereof, for their first fault shall be whipt, for the second they shall be whipt, and for their third they shall be whipt three times a weeke for one month, and aske publique forgivenesse in the Assembly of the Congregation.

  10 No man shall bee found guilty of Sacriledge, which is a Trespasse as well committed in violating the abusing any sacred ministry, duty or office of the Church, irreverently, or prophanely, as by beeing a Church robber, to filch, steale or carry away anything out of the Church appertaining thereunto, or unto any holy, and consecrated place, to the divine Service of God, which no man should doe upon paine of death: likewise he that shall rob the store of any commodities therein, of what quality soever, whether provisions of victuals, or of arms, Trucking stuffe,6 Apparrell, Linnen, or Wollen, Hose or Shooes, Hats or Caps, Instruments or Tooles of Steele, Iron, etc. or shall rob from his fellow souldier, or neighbor, any thing that is his, victuals, apparell, household stuffe, toole, or what necessary else soever, by water or land, out of boate, house, or knapsack, shall bee punished with death.

  11 Hee that shall take an oath untruly, or beare false witnesse in any cause, or against any man whatsoever, shall be punished with death.

  12 No manner of person whatsoever, shall dare to detract, slaunder, columniate, or utter unseemly, and unfitting speeches, either against his Majesties Honourable Councell for this Colony, resident in England, or against the Committees, Assistants unto the said Councell, or against the zealous indeavors, and intentions of the whole body of Adventurers for this pious and Christian Plantation, or against any publique book, or bookes, which by their mature advise, and grave wisdomes, shall be thought fit, to be set foorth and publisht, for the advancement of the good of this Colony, and the felicity thereof, upon paine for the first time so offending, to be whipt three severall times, and upon his knees to acknowledge his offence and to aske forgivenesse upon the Saboth day in the assembly of the congregation, and for the second time so offending to be condemned to the Galley for three yeares, and for the third time so offending to be punished with death.

  13 No manner of person whatsoever, contrarie to the word of God (which tyes every particular and private man, for conscience sake to obedience, and duty of the Magistrate, and such as shall be placed in authoritie over them, shall detract, slaunder, calumniate, murmur, mutenie, resist, disobey, or neglect the commaundments, either of the Lord Governour, and Captaine Generalle, the Lieutenant Generall, the Martiall, the Councell, or any authorised Captaine, Commaunder or publike Officer, upon paine for the first time so offending to be whipt three severall times, and upon his knees to acknowledge his offence, with asking forgivenesse upon the Saboth day in the assembly of the congregation, and for the second time so offending to be condemned to the Gally for three yeares: and for the third time so offending to be punished with death.

  14 No man shall give any disgraceful words, or commit any act to the disgrace of any person in this Colonie, or any part thereof, upon paine of being tied head and feete together, upon the guard everie night for the space of one moneth, besides to bee publikely disgraced himselfe, and be made incapable ever after to possesse any place, or execute any office in this imployment.

  15 No man of what condition soever shall barter, trucke, or trade with the Indians, except he be thereunto appointed by lawful authority upon paine of death.

  16 No man shall rifle or dispoile, by force or violence, take away any thing from any Indian coming to trade, or otherwise, upon paine of death.

  17 No Cape Marchant,7 or Provant Master,8 or Munition Master, or Truck Master, or keeper of any store, shall at any time imbezell, sell, or give away any thing under his Charge to any Favorite, of his, more than unto any other, whome necessity shall require in that case to have extraordinary allowance of provisions, nor shall they give a false accompt unto the Lord Governour, and Captaine Generall, unto the Lieutenant Generall, unto the Marshall, or any deputed Governor, at any time having the commaund of the Colony, with intent to defraud the said Colony, upon paine of death.

  18 No man shall imbezel or take away the goods of any man that dyeth, or is imployed from the town or Fort where he dwelleth in any other occasioned remote service, for the time, upon pain of whipping three severall times, and restitution of the said goods againe, and in danger of incurring the penalty of the tenth Article, if so it may come under the construction of theft. And if any man die and make a will, his goods shall be accordingly disposed; if hee die intestate, his goods shall bee put into the store, and being valued by two sufficient praisors, his next of kinne (according to the common Lawes of England), shall from the Company, Committees, or adventurers, receive due satisfaction in moneys, according as they were praised, by which means the Colonie shall be better furnished; and the goods more carefully preserved, for the right heire, and the right heire receive content for the same in England.

  19 There shall be no Capttain, Master, Marriner, saylor, or any else of what quality or condition soever, belonging to any Ship or Ships, at this time remaining, or which shall hereafter arrive within this our River, bargaine, buy, truck, or trade with any one member in this Colony, man, woman, or child, for any toole or instrument of iron, steel, or what else, whether appertaining to Smith Carpenter, Joyner, Shipwright, or any manuall occupation, or handicraft man whatsoever, resident within our Colonie, nor shall they buy or bargaine, for any apparell, linnen, or wollen, householdstuffe, bedde, bedding, sheete towels, napkins, brasse, pewter, or such like, eyther for ready money, or provisions, nor shall they exchange their provisions, of what quality soever, whether Butter, Cheese, Bisket, meal, Oatmele, Aquavite,9 oyle, Bacon, any kind of Spice, or such like, for any such aforesaid instruments, or tooles, apparell, or householdstuffe, at any time, or so long as they shall here remain, from the date of these presents upon paine of losse of their wages in England, confiscation and forfeiture of such their monies and provisions, and upon peril beside of such corporall punishment as shall be inflicted upon them by verdict and censure of a martiall Court: Nor shall any officer, souldier, or Trades man, or any else of what sort soever, members of this Colony, dare to sell any such Toole, or instruments, necessary and usefull, for the businesse of the Colonie, or trucke, sell, exchange, or give away his apparell, or household stuffe of what sort soever, unto any such Seaman, either for mony, or any such foresaid provisions, upon paine of 3 times severall whipping, for the one offender, and the other upon perill of incurring censure, whether of disgrace, or addition of such punishment, as shall bee thought fit by a Court martiall.

  20 Whereas sometimes heeretofore the covetous and wide affections of some greedy and ill disposed Seamen, Saylers, and Marriners, laying hold upon the advantage of the present necessity, under which the Colony sometimes suffered, have sold unto our people, provisions of Meale, Oatmeale, Bisket, Butter, Cheese etc., at unreasonable rates, and prises unconscionable: for avoiding the like to bee now put in practise, there shall no Captain, Master, Marriner, or Saylor, or what Officer else belonging to any ship, or shippes, now within our river, or heereafter which shall arrive, shall dare to bargaine, exchange, barter, truck, trade, or sell, upon paine of death, unto any one Landman10 member of this present Colony, any provisions of what kind soever, above the determined valuations, and prises, set downe and proclaimed, and sent therefore unto each of your severall ships, to bee fixed uppon your Maine mast, to the intent that want of due notice, and ignorance in this case, be no excuse, or plea, for any offender herein.

  21 Sithence11 we are not to bee a little carefull, and our young Cattell, and Breeders may be cherished, that by the preservation, and incrase of them, the Colony heere may receive in due time assured and great benefite, and the adventurers at home may be eased of so great a burthen, by sending unto us yeerely supplies of this kinde, which now heere for a while, carefully attended, may turne their supplies unto us into provisions of other qualities, when of these wee shall be able to subsist our selves, and which wee may in short time, be powerful enough to doe, if we wil according to our owne knowledge of what is good for our selves, forbeare to work into our own wants, againe, by over hasty destroying, and devouring the stockes, and authors of so profitable succeeding a Commodity, as increase of Cattell, Kine, Hogges, Goates, Poultrie etc. must of necessity bee granted, in every common mans judgement, to render unto us: Now know thee therefore, these promises carefully considered, that it is our will and pleasure, that every one, of what quality or condition soever hee bee, in this present Colony, to take due notice of this our Edict, whereby wee do strictly charge and command, that no man shall dare to kill, or destroy any Bull, Cow, Calfe, Mare, Horse, Colt, Goate, Swine, Cocke, Henne, Chicken, Dogge, Turkie, or any tame Cattel, or Poultry, of what condition soever; whether his owne, or appertaining to another man, without leave from the Generall, upon paine of death in the Principall, and in the accessary, burning in the Hand, and losse of his eares, and unto the concealer of the same four and twenty houres of whipping, with addition of further punishment, as shall be thought fitte by the censure, and verdict of a Martiall Court.

  22 There shall no man or woman, Launderer or Launderesse, dare to wash any uncleane Linnen, drive bucks,12 or throw out the water or sudes of fowle cloathes, in the open streete, within the Pallizadoes,13 or within forty foote of the same, nor rench,14 and make cleane, any kettle, pot, or pan, or such like vessell within twenty foote of the olde well, or new pump; nor shall any one aforesaid, within less than a quarter of one mile from the pallizadoes, dare to doe the necessities of nature, since by these unmanly, slothfull, and loathsome immodesties, the whole Fort may bee choaked, and poisoned with ill aires, and so corrupt (as in all reason cannot but much infect the same) and this shall they take notice of, and avoide, upon paine of whipping and further punishment, as shall be thought meete, by the censure of a martiall Court.

  23 No man shall imbezell, lose, or willingly breake, or fraudulently make away, either Spade, Shovell, Hatchet, Axe, Mattocke,15 or other toole or instrument upon paine of whipping.

  24 Any man that hath any edge toole, either of his owne, or which hath heeretofore beene belonging to the store, see that he bring it instantly to the storehouse, where he shall receive it againe by a particular note, both of the toole, and of his name taken, that such a toole unto him appertaineth, at whose hands, upon any necessary occasion, the said toole may be required, and this shall he do, upon paine of severe punishment.

  25 Every man shall have an especiall and due care, to keepe his house sweete and cleane, as also so much of the streete, as lieth before his door, and especially he shall so provide, and set his bedstead whereon he lieth, that it may stand three foote at least from the ground, as will answere the contrarie at a martiall Court.

  26 Every tradesman in their severall occupation, trade and function, shall duly and daily attend his worke upon his said trade or occupation, upon perill for his first fault, and negligence therein, to have his entertainment checkt for one moneth, for his second fault three moneth, for his third one yeare, and if he continue still unfaithfull and negligent therein, to be condemned to the Gally for three yeare.

  27 All overseers of workemen, shall be carefull in seeing that performed, which is given them in charge, upon paine of such punishment as shall be inflicted upon him by a martiall Court.

  28 No souldier or tradesman, but shall be readie, both in the morning, and in the afternoone, upon the beating of the Drum, to goe out unto his worke, nor shall hee return home, or from his worke, before the Drum beate againe, and the officer appointed for that business, bring him of, upon perill for the first fault to lie upon the Guard head and heeles together all night, for the second time so faulting to be whipt, and for the third time so offending to be condemned to the Gallies for a yeare.

  29 No man or woman, (upon paine of death) shall runne away from the Colonie, to Powhathan, or any savage Weroance16 else whatsoever.

  30 He that shall conspire any thing against the person of the Lord Governour, and Captaine Generall, against the Lieutenant Generall, or against the Marshall, or against any publike service commaunded by them, for the dignitie, and advancement of the good of the Colony, shall be punished with death: and he that shall have knowledge of any such pretended act of disloyalty or treason, and shall not reveale the same unto his Captaine, or unto the Governour of that fort or Towne wherein he is, within the space of one houre, shall for the concealing of the same after that time, be not onely held an accessary, but alike culpable as the principall traitor or conspirer, and for the same likewise he shall suffer death.

  31 What man or woman soever, shall rob any garden, publike or private, being set to weed the same, or wilfully pluck up therein any roote, herbe, or flower, to spoile and wast or steale the same, or robbe any vineyard, or gather up the grapes, or steale any eares of the corne growing, whether in the ground belonging to the same fort or towne where he dwelleth, or in any other, shallbe punished with death.

  32 Whosoever Seaman, or Landman or what qualitie, or in what place of commaund soever, shall be imployed upon any discovery, trade, or fishing voiage into any of the rivers within the precincts of our Colonie, shall for the safety of those men who are committed to his commaund, stand upon good and carefull guard, for the prevention of any treachery in the Indian, and if they touch upon any shore, they shal be no less circumspect, and warie, with good and carefull guard day and night, putting forth good Centinell, and observing the orders and discipline of watch and ward, and when they have finished the discovery, trade, or fishing, they shall make hast with all speed, with such Barke or Barkes, Pinisse, Gallie, Ship. etc. as they shall have the commaund of, for the same purpose, to James towne againe, not presuming to goe beyond their commission, or to carry any such Barke or Barkes, Gally, Pinnice, Ship. etc. for England or any other countrey in the actual possession of any Christian Prince, upon perill to be held an enemie to this plantation, and traitor thereunto, and accordingly to lie liable unto such censure of punishment (if they arrive in England) as shall be thought fit by the Right Honourable Lords, his Majesties Councell for this Colonie, and if it shall so happen, that he or they shall be prevented, and brought backe hither againe into the Colonie, their trecherous flight to be punished with death.

  33 There is not one man nor woman in this Colonie now present, or hereafter to arrive, but shall give up an account of his and their faith, and religion, and repaire unto the Minister, that by his conference with them, hee may understand, and gather, whether heretofore they have beene sufficiently instructed, and catechised in the principles and grounds of Religion, whose weaknesse and ignorance herein, the Minister finding, and advising them in all love and charitie, to repaire often unto him, to receive therein a greater measure of knowledge, if they shal refuse so to repaire unto him, and he the Minister give notice thereof unto the Governour, or that chiefe officer of that towne or fort, wherein he or she, the parties so offending shall remaine, the Governour shall cause the offender for his first time of refusall to be whipt, for the second time to be whipt twice, and to acknowledge his fault upon the Saboth day, in the assembly of the congregation, and for the third time to be whipt every day until he heath made the same acknowledgement, and asked forgivenesse for the same, and shall repaire unto the Minister, to be further instructed as aforesaid: and upon the Saboth when the Minister shall catechise, and of him demaund any question concerning his faith and knowledge, he shall not refuse to make answere upon the same perill.

  34 What man or woman soever, Laundrer or Laundresse appointed to wash the foule linnen of any one labourer or souldier, or any one else as it is their duties so to doe, performing little, or no other service for their allowance out of the store, and daily provisions, and supply of other necessaries unto the Colonie, and shall from the said labourer or souldier, or any one else of what qualitie whatsoever, either take any thing for washing, or withhold or steale from him any such linnen committed to her to wash, or change the same willingly and wittingly, with purpose to give him worse, old and torne linnen for his good, and proofe shall be made thereof, she shall be whipped for the same, and lie in prison till she make restitution of such linnen, withheld or changed.

  35 No Captaine, Master, or Mariner, of what condition soever, shall depart or carry out of the river, any Ship, Barke, Barge, Gally, Pinnace etc. Roaders17 belonging to the Colonie, either now therein, or hither arriving, without leave and commission from the Generall or chiefe Commaunder of the Colonie upon paine of death.

  36 No man or woman whatsoever, members of this Colonie, shall sell or give unto any Captine, Marriner, Master, or Sailer, etc. any commoditie of this countrey, of what quality soever, to be transported out of the Colonie, for his or their owne private uses, upon paine of death.

  37 If any souldier indebted, shall refuse to pay his debts unto his creditor, his creditor shall informe his Captaine, if the Captaine cannot agree the same, the creditor shall informe the Marshals civill and principall officer, who shall preferre for the creditor a bill of complaint at the Marshals Court, where the creditor shal have Justice.

  All such Bakers as are appointed to bake bread, or what else, either for the store to be given out in generall, or for any one in particular, shall not steale nor imbezell, loose, or defraud any man of his due and proper weight and measure, nor use any dishonest and deceiptfull tricke to make the bread weight heavier, or make it courser upon purpose to keepe backe any part or measure of the flower or meale committed unto him, nor aske, take, or detaine any one loafe more or lesse for his hire or paines for so baking, since whilest he who delivered unto him such meale or flower, being to attend the businesse of the Colonie, such baker or bakers are imposed upon no other service or duties, but onely so to bake for such as do worke, and this shall hee take notice of, upon paine for the first time offending herein of losing his eares, and for the second time to be condemned a yeare to the Gallies, and for the third time offending, to be condemned to the Gallies for three yeares.

  All such cookes as are appointed to seeth,18 bake or dresse any manner of way, flesh, fish, or what else, of what kind soever, either for the generall company, or for any private man, shall not make lesse, or cut away any part or parcel of such flesh, fish, etc. Nor detaine or demaund any party or parcell, as allowance or hire for his so dressing the same, since as aforesaid of the baker, hee or they such Cooke or Cookes, exempted from other publike works abroad, are to attend such seething and dressing of such publike flesh, fish, or other provisions of what kind soever, as their service and duties expected from them by the Colony, and this shall they take notice of, upon paine for the first time offending herein, of losing his eares, and for the second time to be condemned a yeare to the Gallies: and for the third time offending to be condemned to the Gallies for three years.

  All fishermen, dressers of Sturgeon or such like appointed to fish, or to cure the said Sturgeon for the use of the Colonie, shall give a just and true account of all such fish as they shall take by day or night, of what kinds soever, the same to bring unto the Governour: As also of all such kegges of Sturgeon or Caviare as they shall prepare and cure upon perill for the first time offending heerein, of loosing his eares, and for the second time to be condemned a yeare to the Gallies, and for the third time offending, to be condemned to the Gallies for three yeares. Every Minister or Preacher shall every Sabboth day before Catechising, read all these lawes and ordinances, publikely in the assembly of the congregation upon paine of his entertainment checkt for that weeke.

  [1. ]Christian. An X followed by a subscript p was a common symbol for Christ.

  [2. ]In the original text there was a line over the letter e. In the shorthand practice of the day, a line over a letter meant that one or more letters to follow have been omitted.

  [3. ]Lieutenant.

  [1. ]Calling down evil upon a person.

  [2. ]A small dagger or stiletto.

  [3. ]Open defiance.

  [4. ]Treatment.

  [5. ]Provisions.

  [6. ]Materials for barter or exchange.

  [7. ]An officer who supervised the provision house of a fort.

  [8. ]The master of the provisions, who also provided the soldiers’ allowance.

  [9. ]Spirits or alcoholic beverages.

  [10. ]Literally a man of the land—not a sailor.

  [11. ]Seeing that.

  [12. ]Bleach clothes.

  [13. ]Pallisades.

  [14. ]Rinse.

  [15. ]A tool used to remove trees.

  [16. ]A powerful chief of an Indian confederation south of the Potomac River.

  [17. ]A vessel used in sheltered water near the shore.

  [18. ]Boil.

• Back to Top

  15: 1661: An Act of the General Court (Mass.)

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 31: [An Act of the General Court]

  Accessed from oll.libertyfund.org/title/694/102570 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  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.

  32

  [Providence Agreement]

  The complete 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): 424. Evans’s spelling is used.

  August 20, 1637

  Roger Williams, who refused to take any of the oaths required by the Massachusetts Bay Colony because he believed any oath constituted taking God’s name in vain, moved with his followers to Providence, which was founded using this document. The simple covenant formula is familiar, but without the oath it becomes a compact resting on implicit popular sovereignty. In addition to being one of the first political compacts, the Providence Agreement also contains the first expression in the new world of the separation of church and state—achieved by limiting the town meeting to “civil things.” The following year the second Rhode Island colony was established at Aquidneck (Pocasset), using an oath in the traditional covenant form (see the Government of Pocasset [33]). A minority withdrew the following year from Pocasset and drew up its civil compact at Newport without an oath (see the Newport Agreement [34]). Another colony, which was established at Portsmouth, drew up its new agreement two days after Newport’s (see the Government of Portsmouth [35]); unlike the Newport Agreement, the Portsmouth one contained an oath. The Providence Agreement of 1637 was replaced by the Plantation Agreement at Providence, 1640 [36]. Portsmouth and Newport joined in a federation in 1642 that allowed each town to retain its respective government and thus to preserve the differences (see the Organization of the Government of Rhode Island [37]). Warwick formed itself in 1647 [38], and finally, in 1647 these towns all united in the Acts and Orders [39], which was a complete constitution.

  We whose names are hereunder, desirous to inhabit in the town of Providence, do promise to subject ourselves in active and passive obedience to all such orders or agreements as shall be made for the public good of the body in an orderly way, by the major consent of present inhabitants, masters of families, incorporated together in a Towne fellowship, and others whom they shall admit unto them only in civil things.

  [Signed by Richard Scott and twelve others.]

• Back to Top

  16: 1682: Charter of Liberties and Frame of Government of the Province of Pennsylvania

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 59: Charter of Liberties and Frame of Government of the Province of Pennsylvania in America

  Accessed from oll.libertyfund.org/title/694/102678 on 2010-02-10

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  59

  Charter of Liberties and Frame of Government of the Province of Pennsylvania in America

  Taken from Votes and Proceedings, vol. 1, xxvii–xxviii. The complete text retains the original spelling.

  May 5, 1682

  It is an understatement to term the following document impressive. The preface clearly and efficiently lays out its underlying theory, which blends biblical principles with contemporary political theory. Although it is his colony, Penn establishes the principle of popular sovereignty. Innovations abound, including term limits and separation of powers. The large upper house of the bicameral legislature, the Provincial Council, has staggered three-year terms so that one-third of its members are elected each year. The Council sits continuously. Aside from representing the people rather than states, the Charter of Liberties is the most direct precursor to the U.S. Senate in its institutional characteristics. The Council had four standing committees at a time when specialized, standing committees did not exist anywhere else in the colonies or in the British Parliament. The General Assembly, initially consisting of all the freemen (the town meeting writ large), started with as many as two hundred members and could grow to five hundred as the population grew. Article xxxix created the first formal amendment process in history. Before composing his bill of rights, Penn consulted the Massachusetts, New York, and Virginia constitutions. He synthesized these lists and highlighted religious freedom for anyone who believed in a deity. With these constitutional roots and the principle of free economic development outlined in the previous document [58], Pennsylvania developed into a prosperous, highly diverse constitutional democracy.

  The frame of the government of the province of Pensilvania, in America: together with certain laws agreed upon in England, by the Governor and divers freemen of the aforesaid province. To be further explained and confirmed there, by the first provincial Council that shall be held, if they see meet.

  the preface

  When the great and wise God had made the world, of all his creatures, it pleased him to chuse man his Deputy to rule it: and to fit him for so great a charge and trust, he did not only qualify him with skill and power, but with integrity to use them justly. This native goodness was equally his honour and his happiness; and whilst he stood here, all went well; there was no need of coercive or compulsive means; the precept of divine love and truth, in his bosom, was the guide and keeper of his innocency. But lust prevailing against duty, made a lamentable breach upon it; and the law, that before had no power over him, took place upon him, and his disobedient posterity, that such as would not live comformable to the holy law within, should fall under the reproof and correction of the just law without, in a judicial administration.

  This the Apostle teaches in divers of his epistles: “The law (says he) was added because of transgression,” In another place, “Knowing that the law was not made for the righteous man, but for the disobedient and ungodly, for sinners, for unholy and prophane, for murderers, for whoremongers, for them that defile themselves with mankind, and for man-stealers, for lyers, for perjured persons,” &c., but this is not all, he opens and carries the matter of government a little further: “Let every soul be subject to the higher powers; for there is no power but of God. The powers that be are ordained of God: whosoever therefore resisteth the power, resisteth the ordinance of God. For rulers are not a terror to good works, but to evil: wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same.” “He is the minister of God to thee for good.” “Wherefore ye must needs be subject, not only for wrath, but for conscience sake.”

  This settles the divine right of government beyond exception, and that for two ends: first, to terrify evil doers: secondly, to cherish those that do well; which gives government a life beyond corruption, and makes it as durable in the world, as good men shall be. So that government seems to me a part of religion itself, a thing sacred in its institution and end. For, if it does not directly remove the cause, it crushes the effects of evil, and is as such, (though a lower, yet) an emanation of the same Divine Power, that is both author and object of pure religion; the difference lying here, that the one is more free and mental, the other more corporal and compulsive in its operations: but that is only to evil doers; government itself being otherwise as capable of kindness, goodness and charity, as a more private society. They weakly err, that think there is no other use of government, than correction, which is the coarsest part of it: daily experience tells us, that the care and regulation of many other affairs, more soft, and daily necessary, makeup much of the greatest part of government; and which must have followed the peopling of the world, had Adam never fell, and will continue among men, on earth, under the highest attainments they may arrive at, by the coming of the blessed Second Adam, the Lord from heaven. Thus much of government in general, as to its rise and end.

  For particualar frames and models it will become me to say little; and comparatively I will say nothing. My reasons are:

  First. That the age is too nice and difficult for it; there being nothing the wits of men are more busy and divided upon. It is true, they seem to agree to the end, to wit, happiness; but, in the means, they differ, as to divine, so to this human felicity; and the cause is much the same, not always want of light and knowledge, but want of using them rightly. Men side with their passions against their reason, and their sinister interests have so strong a bias upon their minds, that they lean to them gainst the good of the things they know.

  Secondly. I do not find a model in the world, that time, place, and some singular emergences have not necessarily altered; nor is it easy to frame a civil government, that shall serve all places alike.

  Thirdly. I know what is said by the several admirers of monarchy, aristocracy and democracy, which are the rule of one, a few, and many, and are the three common ideas of government, when men discourse on the subject. But I chuse to solve the controversy with this small distinction, and it belongs to all three: Any government is free to the people under it (whatever be the frame) where the laws rule, and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion.

  But, lastly, when all is said, there is hardly one frame of government in the world so ill designed by its first founders, that, in good hands, would not do well enough; and [hi]story tells us, the best, in ill ones, can do nothing that is great or good; witness the said states. Governments, like clocks, go from the motion men give them; and as governments are made and moved by men, so by them they are ruined too. Wherefore governments rather depend upon men, than men upon governments. Let men be good, and the government cannot be bad; if it be ill, they will cure it. But, if men be bad, let the government be never so good, they will endeavor to warp and spoil it to their turn.

  I know some say, let us have good laws, and no matter for the men that execute them: but let them consider, that though good laws do well, good men do better: for good laws may want good men, and be abolished or evaded1 by ill men; but good men will never want good laws, nor suffer ill ones. It is true, good laws have some awe upon ill ministers, but that is where they have not power to escape or abolish them, and the people are generally wise and good: but a loose and depraved people (which is the question) love laws and an administration like themselves. That, therefore, which makes a good constitution, must keep it, viz: men of wisdom and virtue, qualities, that because they descend not with worldly inheritances, must be carefully propagated by a virtuous education of youth; for which after ages will owe more to the care and prudence of founders, and the successive magistracy, than to their parents, for their private patrimonies.

  These considerations of the weight of government, and the nice and various opinions about it, made it uneasy to me to think of publishing the ensuing frame and conditional laws, foreseeing both the censures, they will meet with, from men of differing humours and engagements, and the occasion they may give of discourse beyond my design.

  But, next to the power of necessity, (which is a solicitor, that will take no denial) this induced me to a compliance, that we have (with reverence to God, and good conscience to men) to the best of our skill, contrived and composed the frame and laws of this government, to the great end of all government, viz: To support power in reverence with the people, and to secure the people from the abuse of power; that they may be free by their just obedience, and the magistrates honourable, for their just adminstration: for liberty, without obedience is confusion, and obedience without liberty is slavery. To carry this evenness is partly owing to the constitution, and partly to the magistracy: where either of these fail, government will be subject to convulsions; but where both are wanting, it must be totally subverted; then where both meet, the government is like to endure.

  Which I humbly pray and hope God will please to make the lot of this Pensilvania. Amen.

  willam penn.

  the frame, &c—april 25, 1682

  To all Persons, to whom these presents may come. whereas king Charles the Second, by his letters patents, under the great seal of England bearing date the fourth day of March in the Thirty and Third Year of the King, for divers consideration therein mentioned, hath been graciously pleased to give and grant unto me William Penn, by the name of William Penn, Esquire, son and heir of Sir William Penn, deceased, and to my heirs and assigns forever, all that tract of land, or Province called Pennsylvania, in America, with divers great powers, preheminences, royalties, jurisdictions, and authorities, necessary for the well-being and government thereof: Now know ye, that for the well-being and government of the said province, and for the encouragement of all the freemen and planters that may be therein concerned, in pursuance of the powers aforementioned, I, the said William Penn have declared, granted, and confirmed, and by these presents, for me, my heirs and assigns, do declare, grant, and confirm unto all the freemen, planters and adventurers of, in and to the said province, these liberties, franchise, and properties, to be held, enjoyed and kept by the freemen, planters, and inhabitants of the said province of Pennsylvania for ever.

  Imprimis. That the government of this province shall, according to the powers of the patent, consist of the Governor and freemen of the said province, in form of a provincial Council and General Assembly, by whom all laws shall be made, officers chosen, and public affairs transacted, as is hereafter respectively declared, that is to say—

  ii. That the freemen of the said province shall, on the twentieth day of the twelfth month, which shall be in the present year one thousand six hundred eighty and two, meet and assemble in some fit place, of which timely notice shall be before hand given by the Governor or his Deputy; and then, and there, shall chuse out of themselves seventy-two persons of most note for their wisdom, virtue and ability, who shall meet, on the tenth day of the first month next ensuing, and always be called, and act as, the provincial Council of the said province.

  iii. That, at the first choice of such provincial Council, one-third part of the said provincial Council shall be chosen to serve for three years, then next ensuing; one-third party, for two years then next ensuing; and one-third party, for one year then next ensuing each election, and no longer; and that the said third part shall go out accordingly; and on the twentieth day of the twelfth month, as aforesaid, yearly for ever afterwards, the freemen of the said province shall, in like manner, meet and assemble together, and then chuse twenty-four persons, being one-third of the said number, to serve in provincial Council for three years: it being intended, that one-third part of the whole provincial Council (always consisting, and to consist, of seventy-two persons, as aforesaid) falling off yearly, it shall be yearly supplied by such new yearly elections, as aforesaid; and that no one person shall continue therein longer than three years: and, in case any member shall decease before the last election during his time, that then at the next election ensuing his decease, another shall be chosen to supply his place, for the remaining time, he has to have served, and no longer.

  iv. That, after the first seven years, every one of the said third parts, that goeth yearly off, shall be uncapable of being chosen again for one whole year following: that so all may be fitted for government and have experience of the care and burden of it.

  v. That the provincial Council, in all cases and matters of moment, as their arguing upon bills to be passed into laws, erecting courts of justice, giving judgment upon criminals impeached, and choice of officers, in such manner as is hereinafter mentioned, not less than two-thirds of the whole provincial Council shall make a quorum and that the consent and approbation of two-thirds of such quorum shall be had in all such cases and matters of moment. And moreover that, in all cases and matters of lesser moment, twenty-four Members of the said provincial Council shall make a quorum the majority of which twenty-four shall, and may, always determine in such cases and causes of lesser moment.

  vi. That, in this provincial Council, the Governor or his Deputy, shall or may, always preside, and have a treble voice; and the said provincial Council shall always continue, and sit upon its own adjournments and committees.

  vii. That the Governor and provincial Council shall prepare and propose to the General Assembly, herafter mentioned, all bills, which they shall, at any time, think fit to be passed into laws, within the said province; which bills shall be published and affixed to the most noted places, in the inhabited parts thereof, thirty days before the meeting of the General Assembly, in order to the passing them into laws or rejecting of them, as the General Assembly shall see meet.

  viii. That the Governor and provincial Council shall take care, that all laws, statutes and ordinances, which shall at any time be made within the said province, be duly and diligently executed.

  ix. That the Governor and provincial Council shall, at all times, have the care of the peace and safety of the province, and that nothing be by any person attempted to the subversion of this frame of government.

  x. That the Governor and provincial Council shall, at all times, settle and order the situation of all cities, ports, and market towns in every county, modelling therein all public buildings, streets, and market places, and shall appoint all necessary roads, and high-ways in the province.

  xi. That the Governor and provincial Councill shall, at all times, have power to inspect the management of the public treasury, and punish those who shall convert any part thereof to any other use, than what hath been agreed upon by the Governor, provincial Council, and General Assembly.

  xii. That the Governor and provincial Council, shall erect and order all public schools, and encourage and reward the authors of useful sciences and laudable inventions in the said province.

  xiii. That, for the better management of the power and trust aforesaid, the provincial Council shall, from time to time, divide itself into four distinct and proper committees, for the more easy administration of the affairs of the Province, which divides the seventy-two into four eighteens, every one of which eighteens shall consist of six out of each of the three orders, or yearly elections, each of which shall have a distinct portion of business, as followeth: First, a committee of plantations, to situate and settle cities, ports, and market towns, and high-ways, and to hear and decide all suits and controversies relating to plantations. Secondly, a committee of justice and safety, to secure the peace of the Province, and punish the mal-administration of those who subvert justice to the prejudice of the public, or private, interest. Thirdly, a committee of trade and treasury, who shall regulate all trade and commerce, according to law, encourage manufacture and country growth, and defray the public charge of the Province. And, Fourthly, a committee of manners, education, and arts, that all wicked and scandalous living may be prevented, and that youth may be successively trained up in virtue and useful knowledge and arts: the quorum of each of which committees being six, that is, two out of each of the three orders, or yearly elections, as aforesaid, make a constant and standing Council of twenty-four which will have the power of the provincial Council, being the quorum of it, in all cases not excepted in the fifth article; and in the said committees, and standing Council of the Province, the Governor, or his Deputy, shall, or may preside, as aforesaid; and in the absence of the Governor, or his Deputy, if no one is by either of them appointed, the said committees or Council shall appoint a President for that time, and not otherwise; and what shall be resolved at such committees, shall be reported to the said Council of the province, and shall be by them resolved and confirmed before the same shall be put in execution; and that these respective committees shall not sit at one and the same time, except in cases of necessity.

  xiv. And, to the end that all laws prepared by the Governor and provincial Council aforesaid, may yet have the more full concurrence of the freemen of the province, it is declared, granted and confirmed, that, at the time and place or places, for the choices of a provincial council, as aforesaid, the said freemen shall yearly chuse Members to serve in a General Assembly, as their representatives, not exceeding two hundred persons, who shall yearly meet on the twentieth day of the second month, which shall be in the year one thousand six hundred eighty and three following, in the capital town, or city, of the said province, where, during eight days, the several Members may freely confer with one another; and, if any of them see meet, with a committee of the provincial Council (consisting of three out of each of the four committees aforesaid, being twelve in all) which shall be, at that time, purposely appointed to receive from any of them proposals, for the alterations or amendment of any of the said proposed and promulgated bills: and on the ninth day from their so meeting, the said General Assembly, after reading over the proposed bills by the Clerk of the provincial Council, and the occasions and motives for them being opened by the Governor or his Deputy, shall give their affirmative or negative, which to them seemeth best, in such manner as hereinafter is expressed. But not less than two-thirds shall make a quorum in the passing of laws, and choice of such officers as are by them to be chosen.

  xv. That the laws so prepared and proposed, as aforesaid, that are assented to by the General Assembly, shall be enrolled as laws of the Province, with this stile: By the Governor, with the assent and approbation of the freemen in provincial Council and General Assembly.

  xvi. That, for the establishment of the government and laws of this province, and to the end there may be an universal satisfaction in the laying of the fundamentals thereof: the General Assembly shall, or may, for the first year, consist of all the freemen of and in the said province; and ever after it shall be yearly chosen, as aforesaid; which number of two hundred shall be enlarged as the country shall increase in people, so as it do not exceed five hundred, at any time; the appointment and proportioning of which, as also the laying and methodizing of the choice of the provincial Council and General Assembly, in future times most equally to the divisions of the hundreds and counties, which the country shall hereafter be divided into, shall be in the power of the provincial Council to propose, and the General Assembly to resolve.

  xvii. That the Governor and the provincial Council shall erect, from time to time, standing courts of justice, in such places and number as they shall judge convenient for the good government of the said province. And that the provincial Council shall, on the thirteenth day of the first month, yearly, elect and present to the Governor, or his Deputy, a double number of persons, to serve for Judges, Treasurers, Masters of Rolls, within the said province, for the year next ensuing; and the freemen of the said province, in the county courts, when they shall be erected, and till then, in the General Assembly, shall, on the three and twentieth day of the second month, yearly, elect and present to the Governor, or his Deputy, a double number of persons, to serve for Sheriffs, Justices of the Peace, and Coroners, for the year next ensuing; out of which respective elections and presentments, the Governor or his Deputy shall nominate and commissionate the proper number for each office, the third day after the said presentments, or else the first named in such presentment, for each office, shall stand and serve for that office the year ensuing.

  xviii. But forasmuch as the present condition of the province requires some immediate settlement, and admits not of so quick a revolution of officers; and to the end the said Province may, with all convenient speed, be well ordered and settled, I, William Penn, do therefore think fit to nominate and appoint such persons for Judges, Treasurers, Masters of the Rolls, Sheriffs, Justices of the Peace, and Coroners, as are most fitly qualified for those employments; to whom I shall make and grant commissions for the said offices, respectively, to hold to them, to whom the same shall be granted, for so long time as every such person shall well behave himself in the office, or place, to him respectively granted, and no longer. And upon the decease or displacing of any of the said officers, the succeeding officer, or officers, shall be chosen, as aforesaid.

  xix. That the General Assembly shall continue so long as may be needful to impeach criminals, fit to be there impeached, to pass bills into laws, that they shall think fit to pass into laws, and till such time as the Governor and provincial Council shall declare that they have nothing further to propose unto them, for their assent and approbation: and that declaration shall be a dismiss to the General Assembly for that time; which General Assembly shall be, notwithstanding, capable of assembling together into laws, and till such time as the Governor and provincial Council shall declare that they have nothing further to propose unto them, for their assent and approbation: and that declaration shall be a dismiss to the General Assembly for that time; which General Assembly shall be, notwithstanding, capable of assembling together upon the summons of the provincial Council, at any time during that year, if the said provincial Council shall see occasion for their so assembling.

  xx. That all the elections of members, or representatives of the people, to serve in provincial Council and General Assembly, and all questions to be determined by both, or either of them, that relate to passing of bills into laws, to the choice of officers, to impeachments by the General Assembly, and judgment of criminals upon such impeachments by the provincial Council, and to all other cases by them respectively judged of importance, shall be resolved and determined by the ballot, and unless on sudden and indispensible occasions, no business in provincial Council, or its respective committees, shall be finally determined the same day that it is moved.

  xxi. That at all times when, and so often as it shall happen that the Governor shall or may be an infant, under the age of one and twenty years, and no guardians or commissioners are appointed in writing, by the father of the said infant, or that such guardians or commissioners shall be deceased; that during such minority, the provincial Council shall, from time to time, as they shall see meet, constitute and appoint guardians or commissioners, not exceeding three, one of which three shall preside as deputy and chief guardian, during such minority, and shall have and execute, with the consent of the other two, all the power of a Governor, in all the public affairs and concerns of the said province.

  xxii. That, as often as any day of the month, mentioned in any article of this charter, shall fall upon the first day of the week, commonly called the Lord’s Day, the business appointed for that day shall be deferred till the next day, unless in case of emergency.

  xxiii. That no act, law, or ordinance whatsoever, shall at any time hereafter, be made or done by the Governor of this province, his heirs or assigns, or by the freemen in the provincial Council, or the General Assembly, to alter, change, or diminish the form, or effect, of this charter, or any part, or clause thereof, without the consent of the Governor, his heirs, or assigns, and six parts of seven of the said freemen in provincial Council and General Assembly.

  xxiv. And lastly, that I, the said for myself, my heirs and assigns, have solemnly declared, granted and confirmed, and do hereby solemnly declare, grant and confirm, that neither I, my heirs, nor assigns, shall procure to do any thing or things, whereby the liberties, in this charter contained and expressed, shall be infringed or broken; and if any thing be procured by any person or persons contrary to these premises, it shall be held of no force or effect. In witness whereof, I, the said William Penn, have unto this present character of liberties set my hand and broad seal, this five and twentieth day of the second month, vulgarly called April, in the year of our Lord one thousand six hundred and eighty-two.

  william penn.

  laws agreed upon in england, &c.

  i. That the charter of liberties, declared, granted and confirmed the five and twentieth day of the second month, called April, 1682, before divers witnesses, by William Penn, Governor and chief Proprietor of Pennsylvania, to all the freemen and planters of the said province, is hereby declared and approved, and shall be for ever held for fundamental in the government thereof, according to the limitations mentioned in the said charter.

  ii. That every inhabitant in the said province, that is or shall be, a purchaser of one hundred acres of land, or upwards, his heirs and assigns, and every persons who shall have paid his passage, and taken up one hundred acres of land, at one penny an acre, and have cultivated ten acres threof, and every person, that hath been a servant, or bondsman, and is free by his service, that shall have taken up his fifty acres of land, and cultivated twenty thereof, and every inhabitant, artificer, or other resident in the said province, that pays scot and lot to the government; shall be deemed and accounted a freeman of the said province: and every such person shall, and may, be capable of electing, or being elected, representatives of the people, in provincial Council, or General Assembly, in the said province.

  iii. That all elections of members, or representatives of the people and freemen of the province of Pennsylvania, to serve in provincial Council, or General Assembly, to be held within the said province, shall be free and voluntary: and that the elector, that shall receive any reward or gift, in meat, drink, monies, or otherwise, shall forfeit his right to elect: and such person as shall directly or indirectly give, promise, or bestow any such reward as aforesaid, to be elected, shall forfeit his election, and be thereby incapable to serve as aforesaid: and the provincial Council and General Assembly shall be the sole judges of the regularity, or irregularity of the elections of their own respective Members.

  iv. That no money or goods shall be raised upon, or paid by, any of the people of this province by way of public tax, custom or contribution, but by a law, for that purpose made; and whoever shall levy, collect, or pay any money or goods contrary thereunto, shall be held a public enemy to the province and a betrayer of the liberties of the people thereof.

  v. That all courts shall be open, and justice shall neither be sold, denied or delayed.

  vi. That, in all courts all persons of all persuasions may freely appear in their own way, and acording to their own manner, and there personally plead their own cause themselves; or, if unable, by their friends: and the first process shall be the exhibition of the complaint in court, fourteen days before the trial; and that the party, complained against, may be fitted for the same, he or she shall be summoned, no less than ten days before, and a copy of the complaint delivered him or her, at his or her dwelling house. But before the complaint of any person be received, he shall solemnly declare in court that he believes, in his conscience, his cause is just.

  vii. That all pleadings, processes and records in courts, shall be short, and in English, and in an ordinary and plain character, that they may be understood, and justice speedily administered.

  viii. That all trials shall be by twelve men, and as near as may be, peers or equals, and of the neighborhood, and men without just exception; in cases of life, there shall be first twenty-four returned by the sheriffs, for a grand inquest, of whom twelve, at least, shall find the complaint to be true; and then the twelve men, or peers, to be likewise returned by the sheriff, shall have the final judgment. But reasonable challenges shall be always admitted against the said twelve men, or any of them.

  ix. That all fees in all cases shall be moderate, and settled by the provincial Council, and General Assembly, and be hung up in a table in every respective court; and whosoever, shall be convicted of taking more, shall pay twofold, and be dismissed his employment; one moiety of which shall go to the party wronged.

  x. That all prisons shall be work-houses, for felons, vagrants, and loose and idle persons; whereof one shall be in every county.

  xi. That all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great.

  xii. That all persons wrongfully imprisoned, or prosecuted at law, shall have double damages against the informer, or prosecutor.

  xiii. That all prisons shall be free, as to fees, food, and lodging.

  xiv. That all lands and goods shall be liable to pay debts, except where there is legal issue, and then all the goods, and one-third of the land only.

  xv. That all wills, in writing, attested by two witnesses, shall be of the same force as to lands, as other conveyances, being legally proved within forty days, either within or without the said province.

  xvi. That seven years quiet possession shall give an unquestionable right, except in cases of infants, lunatics, married women, or persons beyond the seas.

  xvii. That all briberies and extortion whatsoever shall be severely punished.

  xviii. That all fines shall be moderate, and saving men’s contenements, merchandize, or wainage.

  xix. That all marriages (not forbidden by the law of God, as to nearness of blood and affinity by marriage) shall be encouraged; but the parents, or guardians, shall be first consulted, and the marriage shall be published before it be solemnized; and it shall be solemnized by taking one another as husband and wife, before credible witnesses; and a certificate of the whole, under the hands of parties and witnesses, shall be brought to the proper register of that county, and shall be registered in his office.

  xx. And, to prevent frauds and vexatious suits within the said province, that all charters, gifts, grants, and conveyances (except leases for a year or under) and all bills, bonds, and specialties above five pounds, and not under three months, made in the said province, shall be enrolled, or registered in the public enrolment office of the said province, within the space of two months next after the making thereof, else to be void in law, and all deeds, grants, and conveyances of land (except as aforesaid) within the said province, and made out of the said province, shall be enrolled or registered, as aforesaid, within six months next after the making thereof, and settling and constituting an enrolment office or registry within the said province, else to be void in law against all persons whatsoever.

  xxi. That all defacers or corrupters of charters, gifts, grants, bonds, bills, wills, contracts, and conveyances, or that shall deface or falsify any enrolment, registry or record, within this province, shall make double satisfaction for the same; half whereof shall go to the party wronged, and they shall be dismissed of all places of trust, and be publicly disgraced as false men.

  xxii. That there shall be a register for births, marriages, burials, wills, and letters of administration, distinct from the other registry.

  xxiii. That there shall be a register for all servants, where their names, time, wages, and days of payment shall be registered.

  xxiv. That all lands and goods of felons shall be liable, to make satisfaction to the party wronged twice the value; and for want of lands or goods, the felons shall be bondmen to work in the common prison, or work-house, or otherwise, till the party injured be satisfied.

  xxv. That the estates of capital offenders, as traitors and murderers, shall go, one-third to the next of kin to the sufferer, and the remainder to the next of kin to the criminal.

  xxvi. That all witnesses, coming, or called, to testify their knowledge in or to any matter or thing, in any court, or before any lawful authority, within the said province, shall there give or delivery in their evidence, or testimony, by solemnly promising to speak the truth, the whole truth, and nothing but the truth, to the matter, or thing in question. And in case any person so called to evidence, shall be convicted of wilful falsehood, such person shall suffer and undergo such damage or penalty, as the person, or persons, against whom he or she bore false witness, did, or should, undergo; and shall also make satisfaction to the party wronged, and be publicly exposed as a false witness, never to be credited in any court, or before any Magistrate, in the said province.

  xxvii. And, to the end that all officers chosen to serve within this province, may, with more care and dilligence, answer the trust reposed in them, it is agreed, that no such person shall enjoy more than one public office, at one time.

  xxviii. That all children, within this province, of the age of twelve years, shall be taught some useful trade or skill, to the end none may be idle, but the poor may work to live, and the rich, if they become poor may not want.

  xxix. That servants be not kept longer than their time, and such as are careful, be both justly and kindly used in their service, and put in fitting equipage at the expiration thereof, according to custom.

  xxx. That all scandalous and malicious reporters, backbiters, defamers and spreaders of false news, whether against Magistrates, or private persons, shall be accordingly severely punished, as enemies to the peace and concord of this province.

  xxxi. That for the encouragement of the planters and traders in this province, who are incorporated into a society, the patent granted to them by William Penn, Governor of the said province, is hereby ratified and confirmed.

  xxxii. * * *

  xxxiii. That all factors or correspondents in the said province, wronging their employers, shall make satisfaction, and one-third over, to their said employers: and in case of the death of any such factor or correspondent, the committee of trade shall take care to secure so much of the deceased party’s estate as belongs to his said respective employers.

  xxxiv. That all Treasurers, Judges, Masters of the Rolls, Sheriffs, Justices of the Peace, and other officers and persons whatsoever, relating to courts, or trials of causes, or any other service in the government; and all Members elected to serve in provincial Council and General Assembly, and all that have right to elect such Members, shall be such as possess faith in Jesus Christ, and that are not convicted of ill fame, or unsober and dishonest conversation, and that are of one and twenty years of age, at least; and that all such so qualified, shall be capable of the said several employments and privileges, as aforesaid.

  xxxv. That all persons living in this province, who confess and acknowledge the one Almighty and eternal God, to be the Creator, Upholder and Ruler of the world; and that hold themselves obliged in conscience to live peaceable and justly in civil society, shall, in no ways, be molested or prejudiced for their religious persuasion, or practice, in matters of faith and worship, nor shall they be compelled, at any time, to frequent or maintain any religious worship, place or ministry whatever.

  xxxvi. That, according to the good example of the primitive Christians, and the case of the creation, every first day of the week, called the Lord’s day, people shall abstain from their common daily labour, that they may better dispose themselves to worship God according to their understandings.

  xxxvii. That as a careless and corrupt administration of justice draws the wrath of God upon magistrates, so the wildness and looseness of the people provoke the indignation of God against a country: therefore, that all such offences against God, as swearing, cursing, lying, prophane talking, drunkenness, drinking of healths, obscene words, incest, sodomy, rapes, whoredom, fornication, and other uncleanness (not to be repeated) all treasons, misprisions, murders, duels, felony, seditions, maims, forcible entries, and other violences, to the persons and estates of the inhabitants within this province; all prizes, stage-plays, cards, dice, May-games, gamesters, masques, revels, bull-baitings, cock-fightings, bear-baitings, and the like, which excite the people to rudeness, cruelty, looseness, and irreligion, shall be respectively discouraged, and severely punished, according to the appointment of the Governor and freemen in provincial Council and General Assembly; as also all proceedings contrary to these laws, that are not here made expressly penal.

  xxxviii. That a copy of these laws shall be hung up in the provincial Council, and in public courts of justice: and that they shall be read yearly at the opening of every provincial Council and General Assembly, and court of justice; and their assent shall be testified, by their standing up after the reading thereof.

  xxxix. That there shall be, at no time, any alteration of any of these laws, without the consent of the Governor, his heirs, or assigns, and six parts of seven of the freemen, met in provincial Council and General Assembly.

  xl. That all other matters and things not herein provided for, which shall, and may, concern the public justice, peace, or safety of the said province; and the raising and imposing taxes, customs, duties, or other charges whatsoever, shall be, and are, hereby referred to the order, prudence and determination of the Governor and freemen, in Provincial Council and General Assembly, to be held, from time to time, in the said province.

  Signed and sealed by the Governor and freemen aforesaid, the fifth day of the third month, called one thousand six hundred and eighty-two.

  [1. ]Invaded in Franklin’s print.

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  17: 1682: An Act for Freedom of Conscience (Penn.)

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 60: An Act for Freedom of Conscience

  Accessed from oll.libertyfund.org/title/694/102683 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  60

  An Act for Freedom of Conscience

  Text is from J. T. Mitchell and Henry Flanders, eds., Statutes at Large of Pennsylvania from 1682 to 1801, vol. 1 (Harrisburg, 1896), 107–9. The sections are misnumbered in the original, so that there is no section iv.

  December 7, 1682

  William Penn was deeply committed to religious freedom, but his commitment was not absolute. Although anyone who professed a belief in God could live undisturbed, one had to believe in Jesus Christ in order to vote and hold office (see the Pennsylvania Frame of Government [59], Articles xxxiv and xxxv of the Laws Agreed Upon in England). Coupled with a belief in toleration was the belief that true liberty, political virtue, and civil justice rested on Christian principles. The following ordinance is an attempt to further explicate freedom of religion and its limits.

  Wheras the glory of almighty God and the good of mankind is the reason and end of government and, therefore, government in itself is a venerable ordinance of God. And forasmuch as it is principally desired and intended by the Proprietary and Governor and the freemen of the province of Pennsylvania and territories thereunto belonging to make and establish such laws as shall best preserve true christian and civil liberty in opposition to all unchristian, licentious, and unjust practices, whereby God may have his due, Caesar his due, and the people their due, from tyranny and oppression on the one side and insolence and licentiousness on the other, so that the best and firmest foundation may be laid for the present and future happiness of both the Governor and people of the province and territories aforesaid and their posterity.

  Be it, therefore, enacted by William Penn, Proprietary and Governor, by and with the advice and consent of the deputies of the freemen of this province and counties aforesaid in assembly met and by the authority of the same, that these following chapters and paragraphs shall be the laws of Pennsylvania and the territories thereof.

  Chap. i. Almighty God, being only Lord of conscience, father of lights and spirits, and the author as well as object of all divine knowledge, faith, and worship, who can only enlighten the mind and persuade and convince the understandings of people. In due reverence to his sovereignty over the souls of mankind;

  Be it enacted, by the authority aforesaid, that no person now or at any time hereafter living in this province, who shall confess and acknowledge one almighty God to be the creator, upholder, and ruler of the world, and who professes him or herself obliged in conscience to live peaceably and quietly under the civil government, shall in any case be molested or prejudiced for his or her conscientious persuasion or practice. Nor shall he or she at any time be compelled to frequent or maintain any religious worship, place, or ministry whatever contrary to his or her mind, but shall freely and fully enjoy his, or her, christian liberty in that respect, without any interruption or reflection. And if any person shall abuse or deride any other for his or her different persuasion and practice in matters of religion, such person shall be looked upon as a disturber of the peace and be punished accordingly.

  But to the end that looseness, irreligion, and atheism may not creep in under pretense of conscience in this province, be it further enacted, by the authority aforesaid, that, according to the example of the primitive Christians and for the ease of the creation, every first day of the week, called the Lord’s day, people shall abstain from their usual and common toil and labor that, whether masters, parents, children, or servants, they may the better dispose themselves to read the scriptures of truth at home or frequent such meetings of religious worship abroad as may best suit their respective persuasions.

  Chap. ii. And be it further enacted by, etc., that all officers and persons commissioned and employed in the service of the government in this province and all members and deputies elected to serve in the Assembly thereof and all that have a right to elect such deputies shall be such as profess and declare they believe in Jesus Christ to be the son of God, the savior of the world, and that are not convicted of ill-fame or unsober and dishonest conversation and that are of twenty-one years of age at least.

  Chap. iii. And be it further enacted, etc., that whosoever shall swear in their common conversation by the name of God or Christ or Jesus, being legally convicted thereof, shall pay, for every such offense, five shillings or suffer five days imprisonment in the house of correction at hard labor to the behoof of the public and be fed with bread and water only during that time.

  Chap. v. And be it further enacted, etc., for the better prevention of corrupt communication, that whosoever shall speak loosely and profanely of almighty God, Christ Jesus, the Holy Spirit, or the scriptures of truth, and is legally convicted thereof, shall pay, for every such offense, five shillings or suffer five days imprisonment in the house of correction at hard labor to the behoof of the public and be fed with bread and water only during that time,

  Chap. vi. And be it further enacted, etc., that whosoever shall, in their conversation, at any time curse himself or any other and is legally convicted thereof shall pay for every such offense five shillings or suffer five days imprisonment as aforesaid.

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  18: 1683: Charter of Liberties and Privileges (NY)

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 56: Charter of Liberties and Privileges

  Accessed from oll.libertyfund.org/title/694/102671 on 2010-02-05

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  56

  Charter of Liberties and Privileges

  Complete text is taken from The Colonial Laws of New York, vol. 1, 111–16. For the circumstances surrounding this document and the similar charter of 1691, see Charles M. Andrews, The Colonial Period of American History, vol. 3 (New Haven: Yale University Press, 1936), chap. 3; and David S. Lovejoy, “Equality and Empire: The New York Charter of Libertyes, 1683,” William and Mary Quarterly, 3d ser., 21 (1964): 493–515.

  October 30, 1683

  Although essentially based on the British parliamentary model, the structure of New York’s government described in this document looks quite similar to that developed elsewhere in the colonies. The true bicameralism, however, that developed in some of the other colonies is missing in New York because the Governor’s Council is not elective and is really a privy council. The bill of rights is derived from English common law, and although quite liberal by European standards, is less robust than those developed in other colonies using a theological grounding. Also, an appeal to popular sovereignty, implicit or otherwise, is conspicuously missing. Authority instead rests explicitly with the governor, council, and assembly combined under the implied sovereignty of the monarch.

  Ffor The better Establishing the Government of this province of New Yorke and that Justice and Right may be Equally done to all persons within the same.

  bee It Enacted by the Governour Councell and Representatives now in General Assembly mett and assembled and by the authority of the same.

  that The Supreme Legislative Authority under his Majesty and Royall Highnesse James Duke of Yorke Albany &c Lord proprietor of the said province shall forever be and reside in a Governour, Councell, and the people mett in General Assembly.

  that The Exercise of the Cheife Magistracy and Administration of the Government over the said province shall bee in the said Governour assisted by a Councell with whose advice and Consent or with at least four of them he is to rule and Governe the same according to the Lawes thereof.

  that in Case the Governour shall dye or be absent out of the province and that there be noe person within the said province Comissionated by his Royal Hignesse his heirs or Successours to be Governour or Comander in Cheife there That then the Councell for the time being or Soe many of them as are in the Said province doe take upon them the Administration of the Governour and Execution of the Lawes thereof and powers and authorityes belonging to the Governour and Councell the first in nomination in which Councell is to preside untill the said Governour shall returne and arrive in the said province againe, or the pleasure of his Royall Highnesse his heires or Successours Shall be further knowne.

  that According to the usage Custome and practice of the Realme of England a session of a Generall Assembly be held in this province once in three yeares at least. that Every ffreeholder within this province and ffreeman in any Corporation Shall have his free Choise and Vote in the Electing of the Representatives without any manner of constraint or Imposition. And that in all Elections the Majority of Voices shall carry itt and by freeholders is understood every one who is Soe understood according to the Lawes of England.

  that the persons to be Elected to sitt as representatives in the Generall Assembly from time to time for the severall Cittyes townes Countyes Shires or Divisions of this province and all places within the same shall be according to the proportion and number hereafter Expressed that is to say for the Citty, and County of New Yorke four, for the County of Suffolke two, for Queens County two, for Kings County two, for the County of Richmond two for the County of West Chester two, for the County of Ulster two for the County of Albany two and for Schenectade within the said County one, for Dukes County two, for the County of Cornwall two and as many more as his Royall Highnesse shall think fitt to Establish.

  that All persons Chosen and Assembled in manner aforesaid or the Major part of them shall be deemed and accounted the Representatives of this province which said Representatives together with the Governour and his Councell Shall forever be the Supreame and only Legislative power under his Royall Hignesses of the said province.

  that The said Representatives may appoint their owne Times of meeting dureing their sessions and may adjourne their house from time to time to such time as to them shall seeme meet and convenient.

  that The said Representatives are the sole Judges of the Qualifications of their owne members, and likewise of all undue Elections and may from time to time purge their house as they shall see occasion dureing the said sessions.

  that noe member of the general Assembly or their servants dureing the time of their Sessions and Whilest they shall be goeing to and returning from the said Assembly shall be arrested sued imprisoned or any wayes molested or troubled nor be compelled to make answere to any suite, Bill plaint, Declaration or otherwise, (Cases of High Treason and felony only Excepted) provided the number of the said servants shall not Exceed three.

  that All bills agreed upon by the said Representatives or the Major part of them shall be presented unto the Governour and his Councell for their Approbation and Consent All and Every which Said Bills soe approved or Consented to by the Governour and his Councell shall be Esteemed and accounted the Lawes of the province, Which said Lawes shall continue and remaine of force untill they shall be repealed by the authority aforesaid that is to say the Governour Councell and Representatives in General Assembly by and with the Approbation of his Royal Highnesse or Expire by their owne Limittations.

  that In All Cases of death or removall of any of the said Representatives The Governour shall issue out Sumons by Writt to the Respective Townes Cittyes Shires Countryes or Divisions for which he or they soe removed or deceased were chosen willing and requireing the ffreeholders of the Same to Elect others in their place and stead.

  that Noe freeman shall be taken and imprisoned or be disseized of his ffreehold or Libertye or ffree Customes or be outlawed or Exiled or any other wayes destroyed nor shall be passed upon adjudged or condemned But by the Lawfull Judgment of his peers and by the Law of this province. Justice nor Right shall be neither sold denyed or deferred to any man within this province.

  that Noe aid, Tax, Tallage, Assessment, Custome, Loane, Benevolence or Imposition whatsoever shall be layed assessed imposed or levyed on any of his Majestyes Subjects within this province or their Estates upon any manner of Colour or pretence but by the act and Consent of the Governour Councell and Rpresentatives of the people in Generall Assembly mett and Assembled.

  that Noe man of what Estate or Condition soever shall be putt out of his Lands or Tenements, nor taken, nor imprisoned, nor dishereited, nor banished nor any wayes distroyed without being brought to Answere by due Course of Law.

  that A ffreeman Shall not be amerced for a small fault, but after the manner of his fault and for a great fault after the Greatnesse thereof Saveing to him his freehold, And a husbandman saveing to him his Wainage and a merchant likewise saveing to him his merchandize, And none of the said Amerciaments shall be assessed but by the oath of twelve honest and Lawfull men of the Vicinage provided the faults and misdemeanours be not in Contempt of Courts of Judicature.

  all Tryalls shall be by the verdict of twelve men, and as neer as many be peers or Equalls And of the neighbourhood and in the County Shire or Division where the Fact Shall arise or grow Whether the Same be by Indictment Information Declaration or otherwise against the person Offender or Defendant.

  that In all Cases Capitall or Criminall there shall be a grand Inquest who shall first present the offence and then twelve men of the neighbourhood to try the Offender who after his plea to the Indictment shall be allowed his reasonable Challenges.

  that In all Cases whatsoever Bayle by sufficient Suretyes Shall be allowed and taken unlesse for treason or felony plainly and specially Expressed and menconed in the Warrant of Committment provided Alwayes that nothing herein contined shall Extend to discharge out of prison upon bayle any person taken in Execution for debts or otherwise legally sentenced by the Judgment of any of the Courts of Record within the province.

  that Noe ffreeman shall be compelled to receive any Marriners or Souldiers into his house and there suffer them to Sojourne, against their willes provided Alwayes it be not in time of Actuall Warr within this province.

  that Noe Comissions for proceeding by Marshall Law against any of his Majestyes Subjects within this province shall issue forth to any person or persons whatsoever Least by Colour of them any of his Majestyes Subjects bee destroyed or putt to death Except all such officers persons and Soldiers in pay throughout the Government.

  that from hence forward Noe Lands Within this province shall be Esteemed or accounted a Chattle or personall Estate but an Estate of Inheritance according to the Custome and practice of his Majesties Realme of England.

  that Noe Court or Courts within this province have or at any time hereafter Shall have any Jurisdiction power or authority to grant out any Execution or other writt whereby any mans Land may be sold or any other way disposed of without the owners Consent provided Alwayes That the issues or meane proffitts of any mans Lands shall or may be Extended by Execution or otherwise to satisfye just debts Any thing to the Contrary hereof in any wise Notwithstanding.

  that Noe Estate of a feme Covert shall be sold or conveyed But by Deed Acknowledged by her in Some Court of Record the Woman being secretly Examined if She doth it freely without threats or Compulsion of her husband.

  that All Wills in writeing attested by two Credible Witnesses shall be of the same force to convey Lands as other Conveyances being registered in the Secretaryes Office within forty dayes after the testators death.

  that A widdow after the death of her husband shall have her Dower And shall and may tarry in the Cheife house of her husband forty dayes after the death of her husband within which forty dayes her Dower shall be assigned her And for her Dower shallbe assigned unto her the third party of all the Lands of her husband dureing Coverture, Except shee were Endowed of Lesse before Marriage.

  that All Lands and Heritages within this province and Dependencyes shall be free from all fines and Lycences upon Alienations and from all Herriotts Ward Shipps Liveryes primer Seizins yeare day and Wast Escheates and forfeitures upon the death of parents and Ancestors naturall unaturall casuall or Judiciall, and that forever; Cases of High treason only Excepted.

  that Noe person or persons which professe ffaith in God by Jesus Christ Shall at any time be any wayes molested punished disquieted or called in Question for Difference in opinion or Matter of Religious Concernment, who doe not actuall disturb the Civill peace of the province, But that all and Every such person or prsons may from time to time and at all times freely have and fully enjoy his or their Judgments or Consciencyes in matters of Religion throughout all the province, they behaveing themselves peaceably and quietly and not useing this Liberty to Lycentiousnesse nor to the civill Injury or outward disturbance of others provided Alwayes that this liberty or any thing contained therein to the Contrary shall never be Construed or improved to make void the Settlement of any publique Minister on Long Island Whether Such Settlement be by two thirds of the voices in any Towne thereon which shall alwayes include the Minor part Or by Subscriptions of perticuler Inhabitants in Said Townes provided they are the two thirds thereon Butt that all such agreements Covenants and Subscriptions that are there already made and had Or that hereafter shall bee in this Manner Consented to agreed and Subscribed shall at all time and times hereafter be firme and Stable And in Confirmation hereof

  It is Enacted by the Governour Councell and Representatives; That all Such Sumes of money soe agreed on Consented to or Subscribed as aforesaid for maintenance of said public Ministers by the two thirds of any Towne on Long Island Shall alwayes include the Minor part who shall be regulated thereby And also Such Subscriptions and agreements as are before mentioned are and Shall be alwayes ratified performed and paid, And if any Towne on said Island in their publick Capacity of agreement with any Such minister or any perticuler persons by their private Subscriptions as aforesaid Shall make default deny or withdraw from Such payment Soe Covenanted to agreed upon and Subscribed That in Such Case upon Complaint of any Collector appointed and Chosen by two thirds of Such Towne upon Long Island unto any Justice of that County Upon his hearing the Same he is hereby authorized impowered and required to issue out his warrant unto the Constable or his Deputy or any other person appointed for the Collection of Said Rates or agreement to levy upon the goods and Cattles of the Said Delinquent or Defaulter all such Sumes of money Soe covenanted and agreed to be paid by distresse with Costs and Charges without any further Suite in Law Any Lawe Custome or usage to the Contrary in any wise Notwithstanding.

  provided Alwayes the said sume or sumes be under forty shillings otherwise to be recovered as the Law directs.

  and whereas All the Respective Christian Churches now in practice within the City of New Yorke and the other places of this province doe appeare to be priviledged Churches and have beene Soe Established and Confirmed by the former authority of this Government bee it hereby Enacted by this Generall Assembly and by the authority thereof That all the Said Respective Christian Churches be hereby Confirmed therein And that they and Every of them Shall from henceforth forever be held and reputed as priviledged Churches and Enjoy all their former freedomes of their Religion in Divine Worshipp and Church Discipline And that all former Contracts made and agreed upon for the maintenances of the severall ministers of the Said Churches shall stand and continue in full force and virtue And that all Contracts for the future to be made Shall bee of the same power And all persons that are unwilling to performe their part of the said Contract Shall be Constrained thereunto by a warrant from any Justice of the peace provided it be under forty Shillings Or otherwise as this Law directs provided allsoe that all Christian Churches that Shall hereafter come and settle within this province shall have the Same priviledges.

  57

  Fundamentals of West New Jersey

  The text is reproduced as found in Thorpe, Federal and State Constitutions, 2565–67.

  1681

  The middle colonies, developed later than those in New England and the South, did not have the freedom to develop from the bottom up on their own as some of the early colonies did. A strong governor was a central reality from the beginning. In New Jersey, as in New York, the legislature and constitution were added to the political system rather than founding it, and the English system was essentially used as a model. Central to that model was the principle that there should be no taxation without representation. Because the Glorious Revolution had not yet occurred in Britain, the colonies were still under the king through the charters he had granted them rather than under Parliament. Financial support was therefore not forthcoming for the king’s colonial governors unless the king asked for it—and he would rather do other things with any levy he could extract—hence the need for local legislatures to vote such support from the colonists. In order for a meaningful, viable legislature to exist, however, some major chunks had to be carved out of the governor’s powers. As a result, the New Jersey document is interesting because its central focus is a set of limits on the governor, which together make room for the legislature.

  Forasmuch as it hath pleased God, to bring us into this Province of West New Jersey, and settle us here in safety, that we may be a people to the praise and honour of his name, who hath so dealt with us, and for the good and welfare of our posterity to come, we the Governor and Proprietors, freeholders and inhabitants of West New Jersey, by mutual consent and agreement, for the prevention of innovation and oppression, either upon us or our posterity, and for the preservation of the peace and tranquility of the same; and that all may be encouraged to go chearfully in their several places: We do make and constitute these our agreements to be as fundamentals to us and our posterity, to be held inviolable, and that no person or persons whatsoever, shall or may make void or disanul the same upon any pretence whatsoever.

  i. That there shall be a General Free Assembly for the Province aforesaid, yearly and every year, at a day certain, chosen by the free people of the said Province, whereon all the representatives for the said Province, shall be summoned to appear, to consider of the affairs of the said Province, and to make and ordain such acts, and laws, as shall be requisite and necessary for the good government and prosperity of the free people of the said Province; and (if necessity shall require) the Governor for the time being, with the consent of his Council, may and shall issue out writts to convene the Assembly sooner, to consider and answer the necessities of the people of the said Province.

  ii. That the Governor of the Province aforesaid, his heirs or successors for the time being, shall not suspend or defer the signing, sealing and confirming of such acts and laws as the General Assembly (from time to time to be elected by the free people of the Province aforesaid) shall make or act for the securing of the liberties and properties of the said free people of the Province aforesaid.

  iii. That it shall not be lawful for the Governor of the said Province, his heirs or successors for the time being, and Council, or any of them, at any time or times hereafter, to make or raise war upon any accounts or pretence whatsoever, or to raise any military forces within the Province aforesaid, without the consent of the General Free Assembly for the time being.

  iv. That it shall not be lawful for the Governor of the said Province, his heirs or successors for the time being, and Council, or any of them, at any time or times hereafter, to make or enact any law or laws for the said Province, without the consent, act and concurrence of the General Assembly; and if the Governor for the time being, his heirs or successors and Council, or any of them, shall attempt to make or enact any such law or laws of him or themselves without the consent, act and concurrence of the General Assembly; that from thenceforth, he, they, or so many of them as shall be guilty thereof, shall, upon legal conviction, be deemed and taken for enemies to the free people of the said Province; and such act so attempted to be made, to be of no force.

  v. That the General Free Assembly from time to time to be chosen as aforesaid, as the representatives of the people, shall not be prorogued or dissolved (before the expirance of one whole year, to commence from the day of their election) without their own free consent.

  vi. That it shall not be lawful for the Governor of the said Province, his heirs or successors for the time being, and Council, or any of them, to levy or raise any sum or sums of money, or any other tax whatsoever, without the act, consent and concurrence of the General Assembly.

  vii. That all officers of State, or trust, relating to the said Province, shall be nominated and elected by the General Free Assembly for the time being, or by their appointment; which officer and officers shall be accountable to the General Free Assembly, or to such as the said Assembly shall appoint.

  viii. That the Governor of the Province aforesaid, his heirs, or successor for the time being, or any of them, shall not send ambassadors, or make treaties, or enter into an alliance upon the publick account of the said Province, without the consent of the said General Free Assembly.

  ix. That no General Free Assembly hereafter to be chosen by the free people of the Province aforesaid, shall give to the Governor of the said Province for the time being, his heirs or successors, any tax, or custom for a longer time than for one whole year.

  x. That liberty of conscience in matters of faith and worship towards God, shall be granted to all people within the Province aforesaid; who shall live peaceably and quietly therein; and that none of the free people of the said Province shall be rendered uncapable of office in respect of their faith and worship.

  Upon the Governors acceptance and performance of the proposals herein before expressed, we the General Free Assembly Proprietors and freeholders of the Province of West New Jersey aforesaid, do accept and receive Samuel Jenings as Deputy Governor.

  In testimony whereof I have hereunto put my hand and seal, the day and year above written.

  samuel jennings,

  Deputy Governor.

  Thomas Ollive, Speaker, to the General Free Assembly per order and in the name of the whole Assembly.

  The fundamentals aforesaid being signed and sealed by the Deputy Governor, were ordered and appointed by the said Deputy Governor, and General Free Assembly, to be recorded the day and year first aforesaid, by me Thomas Revell, clerk to the General Assembly.

  58

  Concessions to the Province of Pennsylvania

  Text is taken from Votes and Proceedings of the House of Representatives of the Province of Pennsylvania, 1682–1776, vol. 1 (Philadelphia: B. Franklin and D. Hall, printers, 1752), xxiv–xxvi.

  1681

  William Penn sought to create a refuge in America for Quakers and other dissenting religious minorities. Regardless of his intent, he, like all colonial founders, had to induce enough people to migrate for the colony to be viable. As documents 58–61 show, Penn was of a generous bent of mind and did not hesitate to provide the strongest inducements possible—political, religious, and those of economic liberty. The document below lays out the original inducements, which are largely of an economic nature. In return Penn extracts his own concessions—free, fair, and orderly economic behavior plus equitable treatment of the Indians. His plan worked. Pennsylvania grew more rapidly than any other colony and in less than a century, even though starting three-quarters of a century after Virginia, surpassed Virginia and Massachusetts in population (not counting slaves). On the eve of the Revolution Philadelphia was the largest city in the colonies, with approximately 40,000 inhabitants versus runners-up New York City (25,000) and Boston (16,000).

  Certain conditions, or concessions, agreed upon by William Penn, Proprietary and Governor of the province of Pennsylvania, and those who are the adventurers and purchasers in the same province, the eleventh of July, one thousand six hundred and eighty-one.

  first

  That as soon as it pleaseth God that the abovesaid persons arrive there, a certain quantity of land, or ground plat, shall be laid out, for a large town or city, in the most convenient place, upon the river, for health and navigation; and every purchaser and adventurer shall, by lot, have so much land therein as will answer to the proportion, which he hath bought, or taken up, upon rent: but it is to be noted, that the surveyors shall consider what roads or high-ways will be necessary to the cities, towns, or through the lands. Great roads from city to city not to contain less than forty foot, in breadth, shall be first laid out and declared to be for high-ways, before the dividend of acres be laid out for the purchaser, and the like observation to be had for the streets in the towns and cities, that there may be convenient roads and streets preserved, not to be encroached upon by any planter or builder, that none may build irregularly to the damage of another. In this, custom governs.

  ii. That the land in the town be laid out together after the proportion of ten thousand acres of the whole country, that is, two hundred acres, if the place will bear it: however, that the proportion be by lot, and entire, so as those that desire to be together, especially those that are, by the catalogue, laid together may be so laid together both in the town and country.

  iii. That, when the country lots are laid out, every purchaser, from one thousand, to ten thousand acres, or more, not to have above one thousand acres together, unless in three years they plant a family upon every thousand acres; but that all such as purchase together, lie together; and, if as many as comply with this condition, that the whole be laid out together.

  iv. That, where any number of purchasers, more or less, whose number of acres amounts to five or ten thousand acres, desire to sit together in a lot, or township, they shall have their lot, or township, cast together, in such places as have convenient harbours, or navigable rivers attending it, if such can be found; and in case any one or more purchasers plant not according to agreement, in this concession, to the prejudice of others of the same township, upon complaint thereof made to the Governor, or his Deputy, with assistance, they may award (if they see cause) that the complaining purchaser may, paying the survey money, and purchase money, and interest thereof, be entitled, enrolled and lawfully invested, in the lands so not seated.

  v. That the proportion of lands, that shall be laid out in the first great town, or city, for every purchaser, shall be after the proportion of ten acres for every five hundred acres purchased, if the place will allow it.

  vi. That nowithstanding there be no mention made, in the several deeds made to the purchasers; yet the said William Penn does accord and declare, that all rivers, rivulets, woods, and underwoods, waters, watercourses, quarries, mines, and minerals, (except mines royal) shall be freely and fully enjoyed, and wholly by the purchasers, into whose lot they fall.

  vii. That, for every fifty acres, that shall be allotted to a servant, at the end of his service, his quit-rent shall be two shillings per annum, and the master, or owner of the servant, when he shall take up the other fifty acres, his quit-rent, shall be four shillings by the year, or, if the master of the servant (by reason of the indentures he is so obliged to do) allot out to the servant fifty acres in his own division, the said master shall have, on demand, allotted him, from the governor, the one hundred acres, at the chief rent of six shillings per annum.

  viii. And, for the encouragement of such as are ingenious and willing to search out gold and silver mines in this province, it is hereby agreed, that they have liberty to bore and dig in any man’s property, fully paying the damages done; and in case a discovery should be made, that the discoverer have one-fifth, the owner of the soil (if not the discoverer) a tenth part, the Governor two-fifths, and the rest to the public treasury, saving to the king the share reserved by patent.

  ix. In every hundred thousand acres, the Governor and Proprietary, by lot, reserveth ten to himself, what shall lie but in one place.

  x. That every man shall be bound to plant, or man, so much of his share of land as shall be set out and surveyed, within three years after it is so set out and surveyed, or else it shall be lawfull for new comers to be settled thereupon, paying to them their survey money, and they go up higher for their shares.

  xi. There shall be no buying and selling, be it with an Indian, or one among another, of any goods to be exported, but what shall be performed in public market, when such places shall be set apart, or erected, where they shall pass the public stamp, or mark. If bad ware, and prized as good, or deceitful in proportion or weight, to forfeit the value, as if good and full weight and proportion, to the public treasury of this province, whether it be the merchandize of the Indian, or that of the planters.

  xii. And forasmuch, as it is usual with the planters to over-reach the poor natives of the country, in trade, by goods not being good of the kind, or debased with mixtures, with which they are sensibly aggrieved, it is agreed, whatever is sold to the Indians, in consideration of their furs, shall be sold in the market place, and there suffer the test, whether good or bad; if good, to pass; if not good, not to be sold for good, that the natives may not be abused, nor provoked.

  xiii. That no man shall, by any ways or means, in word, or deed, affront, or wrong any Indian, but he shall incur the same penalty of the law, as if he had committed it against his fellow planter, and if any Indian shall abuse, in word, or deed, any planter of this province, that he shall not be his own judge upon the Indian, but he shall make his complaint to the governor of the province, or his lieutenant, or deputy, or some inferior magistrate near him, who shall, to the utmost of his power, take care with the king of the said Indian, that all reasonable satisfaction be made to the said injured planter.

  xiv. That all differences, between the planters and the natives, shall also be ended by twelve men, that is, by six planters and six natives; that so we may live friendly together as much as in us lieth, preventing all occasions of heart-burnings and mischief.

  xv. That the Indians shall have liberty to do all things relating to improvement of their ground, and providing sustenance for their families that any of the planters shall enjoy.

  xvi. That the laws, as to slanders, drunkenness, swearing, cursing, pride in apparel, trespasses, distriesses, replevins, weights, and measures, shall be the same as in England, till altered by law in this province.

  xvii. That all shall mark their hogs, sheep and other cattle, and what are not marked within three months after it is in their possession, be it young or old, it shall be forfeited to the governor, that so people may be compelled to avoid the occasions of much strife between the planters.

  xviii. That, in clearing ground, care be taken to leave one acre of trees for every five acres cleared, especially to preserve oak and mulberries, for silk and shipping.

  xix. That all ship-masters shall give an account of their countries, names, ships, owners, freights and passengers, to an officer to be appointed for that purpose, which shall be registered within two days after their arrival, and if they shall refuse so to do, that then none presume to trade with them, upon forfeiture thereof; and that such masters be looked upon as having an evil intention to the province.

  xx. That no person leave the province, without publication being made thereof, in the market place, three weeks before, and a certificate from some justice of the peace, of his clearness with his neighbours and those he dealt withal, so far as such an assurance can be attained and given: and if any master of a ship shall, contrary hereunto, receive and carry away any person, that hath not given that public notice, the said master shall be liable to all debts owing by the said person so secretly transported from the province.

  Lastly, That these are to be added to, or corrected, by and with the consent of the parties hereunto subscribed.

  william penn.

  Sealed and delivered in the presence of—

  • william boelham,
  • harbert springet,
  • thomas prudyard.

  Sealed and delivered in the presence of all of the proprietors, who have hereunto subscribed, except Thomas Farrinborrough and John Goodson, in presence of—

  HUGH CHAMBERLEN,	william powel,
  R. MURRAY,	richard davie,
  HARBERT SPRINGET,	griffith jones,
  HUMPHREY SOUTH,	hugh lambe,
  THOMAS BARKER,	thomas farrinborrough,
  SAMUEL JOBSON,	john goodson.
  JOHN JOSEPH MOORE,

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  19: 1701: Pennsylvania Charter of Liberties

  Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998). Chapter: 61: [Pennsylvania Charter of Liberties]

  Accessed from oll.libertyfund.org/title/694/102685 on 2010-02-10

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  61

  [Pennsylvania Charter of Liberties]

  The text is complete and as found in Thorpe, Federal and State Constitutions, 3076–81.

  1701

  The 1682 Frame of Government [59], amplified by the Frame of 1683, was replaced by the 1696 Frame. The 1683 document is not reproduced in this collection because its changes were minor. The 1696 document is not reproduced because of its considerable length and essential redundancy with the 1682 document. The present document replaced the 1696 Frame and defined the Pennsylvania political system until 1776. One major difference vis à vis the 1682 Frame is the creation of a unicameral legislature. Eliminating the Council was part of the successful attempt by the freemen to eliminate the proprietor’s legislative veto. The Pennsylvania Constitution of 1776 returned to two elected bodies, but the elected Council, instead of being an upper house, was part of the executive branch—effectively an elected privy council, which in this instance provided a means for the people to keep the executive branch under control. The document below is also notable for the care Penn takes in outlining its status with respect to earlier foundation documents in both England and America, thus establishing its pedigree and its legitimacy. Penn’s concern for liberty of conscience is again underlined—it is the first substantive matter addressed, and the guarantee of religious liberty is repeated at length later in the document. As with earlier Pennsylvania foundation documents, the Charter of Liberties was formulated by Penn and then consented to by the people or their elected representatives. That Penn consulted carefully with the Assembly while formulating his constitutions made popular acceptance a foregone conclusion.

  Charter of Privileges Granted by William Penn, Esquire, to the Inhabitants of Pennsylvania and Territories October 28, 1701

  William Penn, Proprietary and Governor of the province of Pennsylvania and territories thereunto belonging, to all to whom these presents shall come, sends greeting.

  Whereas King Charles the Second, by his letters patents under the great seal of England, bearing date the fourth day of March in the year one thousand six hundred and eighty-one, was graciously pleased to give and grant unto me and my heirs and assigns, forever, this province of Pennsylvania, with diverse great powers and jurisdictions for the well government thereof.

  And whereas the King’s dearest brother, James Duke of York and Albany, etc., by his deeds of feoffment, under his hand and seal duly perfected, bearing date the twenty-fourth day of August, one thousand six hundred eighty and two, did grant unto me, my heirs and assigns, all that tract of land now called the territories of Pennsylvania, together with powers and jurisdictions for the good government thereof.

  And whereas for the encouragement of all the freemen and planters that might be concerned in the said province and territories and for the good government thereof, I, the said William Penn, in the year one thousand six hundred eighty and three, for me, my heirs and assigns, did grant and confirm unto all the freemen, planters, and adventurers therein diverse liberties, franchises, and properties, as by the said grant, entitled, The Frame of the Government of the Province of Pennsylvania, and Territories Thereunto Belonging, in America, may appear; which charter or frame, being found in some parts of it not so suitable to the present circumstances of the inhabitants, was in the third month in the year one thousand seven hundred delivered up to me, by six parts of seven of the freemen of this province and territories in General Assembly met, provision being made in the said charter for that end and purpose.

  And whereas I was then pleased to promise that I would restore the said charter to them again with necessary alterations, or, in lieu thereof, give them another better adapted to answer the present circumstances and conditions of the said inhabitants; which they have now, by their representatives in General Assembly met at Philadelphia, requested me to grant.

  Know you, therefore, that for the further well-being and good government of the said province and territories, and in pursuance of the rights and powers before mentioned, I, the said Wiliam Penn, do declare, grant, and confirm unto all the freemen, planters, and adventurers, and other inhabitants of this province and territories, these following liberties, franchises, and privileges, so far as in me lies, to be held, enjoyed, and kept by the freemen, planters, and adventurers, and other inhabitants of and in the said province and territories thereunto annexed, forever.

  First

  Because no people can be truly happy, though under the greatest enjoyment of civil liberties, if abridged of the freedom of their consciences as to their religious profession and worship. And Almighty God being the only lord of conscience, father of light and spirits, and the author as well as object of all divine knowledge, faith, and worship, who only does enlighten the minds and persuade and convince the understandings of people, I do hereby grant and declare that no person or persons inhabiting in this province or territories, who shall confess and acknowledge one almighty God, the creator, upholder and ruler of the world; and profess him or themselves obliged to live quietly under the civil government, shall be in any case molested or prejudiced in his or their person or estate because of his or their conscientious persuasion or practice, nor be compelled to frequent or maintain any religious worship, place, or ministry contrary to his or their mind, or to do or suffer any other act or thing contrary to their religious persuasion.

  And that all persons who also profess to believe in Jesus Christ, the saviour of the world, shall be capable, notwithstanding their other persuasions and practices in point of conscience and religion, to serve this government in any capacity, both legislatively and executively, he or they solemnly promising, when lawfully required, allegiance to the King as sovereign and fidelity to the proprietary and Governor, and taking the attests as now established by the laws made at Newcastle, in the year one thousand and seven hundred, entitled An Act Directing the Attests of Several Officers and Ministers, as now amended and confirmed this present Assembly.

  ii,

  For the well-governing of this province and territories there shall be an Assembly yearly chosen by the freemen thereof, to consist of four persons out of each county, of most note for virtue, wisdom, and ability, or of a greater number at any time as the Governor and assembly shall agree, upon the first day of October, forever; and shall sit on the fourteenth day of the same month at Philadelphia, unless the Governor and Council for the time being shall see cause to appoint another place within the said province or territories. Which Assembly shall have power to choose a speaker and other their officers and shall be judges of the qualifications and elections of their own members, sit upon their own adjournments, appoint committees, prepare bills in order to pass into laws, impeach criminals and redress grievances, and shall have all other powers and privileges of an Assembly, according to the rights of the freeborn subjects of England and as is usual in any of the King’s plantations in America.

  And if any county or counties shall refuse or neglect to choose their respective representatives, as aforesaid, or, if chosen, do not meet to serve in Assembly, those who are so chosen and met shall have the full power of an Assembly, in as ample manner as if all the representatives had been chosen and met, provided they are not less than two-thirds of the whole number that ought to meet.

  And that the qualifications of electors and elected, and all other matters and things relating to elections of representatives to serve in Assemblies, though not herein particularly expressed, shall be and remain as by a law of this government made at Newcastle in the year one thousand seven hundred entitled, An Act to Ascertain the Number of Members of Assembly and to Regulate the Elections.

  iii.

  That the freemen in each respective county, at the time and place of meeting for electing their representatives to serve in Assembly, may, as often as there shall be occasion, choose a double number of persons to present to the Governor for sheriffs and coroners to serve for three years, if so long they behave themselves well. Out of which respective elections and presentments the Governor shall nominate and commissionate one for each of the said offices, the third day after such presentment, or else the first named in such presentment for each office, as aforesaid, shall stand and serve in that office for the time before respectively limited; and in case of death or default, such vacancies shall be supplied by the Governor to serve to the end of the said term.

  Provided always, that if the said freeman shall at any time neglect or decline to choose a person or persons for either or both of the aforesaid offices, then and in such case the persons that are or shall be in the respective offices of sheriffs or coroners, at the time of election, shall remain therein until they be removed by another election, as aforesaid.

  iv.

  That the laws of this government shall be in this style, viz., By the Governor, with the consent and approbation of the Freemen of the General Assembly met; and shall be, after confirmation by the Governor, forthwith recorded in the Rolls Offices and kept at Philadelphia, unless the Governor and Assembly shall agree to appoint another place.

  v.

  That all criminals shall have the same privileges of witnesses and counsel as their prosecuters.

  vi.

  That no person or persons shall or may, at any time hereafter, be obliged to answer any complaint, matter, or thing, whatsoever relating to property, before the Governor and Council or in any other place, but in ordinary course of justice, unless appeals thereunto shall be hereafter by law appointed.

  vii.

  That no person within this government shall be licensed by the Governor to keep an ordinary, tavern, or house of public entertainment, but such who are first recommended to him under the hands of the justices of the respective counties, signed in open court. Which justices are and shall be hereby empowered to supress and forbid any person keeping such public house, as aforesaid, upon their misbehavior, on such penalties as the law does or shall direct; and to recommend others from time to time as they shall see occasion.

  viii.

  If any person, through temptation or melancholy, shall destroy himself, his estate, real and personal, shall, notwithstanding, descend to his wife and children or relations as if he had died a natural death; and if any person shall be destroyed or killed by casualty or accident, there shall be no forfeiture to the Governor by reason thereof.

  And no act, law, or ordinance whatsoever shall at any time hereafter be made or done to alter, change, or diminish the form or effect of this charter, or of any part or clause therein, contrary to the true intent and meaning thereof, without the consent of the Governor for the time being and six parts of seven of the Assembly met.

  But because the happiness of mankind depends so much upon the enjoying of liberty of their consciences, as aforesaid, I do hereby solemnly declare, promise, and grant, for me, my heirs and assigns, that the first article of this charter relating to liberty of conscience, and every part and clause therein, according to the true intent and meaning thereof, shall be kept and remain without any alteration, inviolably forever.

  And lastly, I, the said William Penn, Proprietary and Governor of the province of Pennsylvania and territories thereunto belonging, for myself, my heirs and assigns, have solemnly declared, granted, and confirmed, and do hereby solemnly declare, grant, and confirm, that neither I, my heirs or assigns, shall procure or do anything or things whereby the liberties in this charter contained and expressed, nor any part thereof, shall be infringed or broken. And if anything shall be procured or done by any person or persons contrary to these presents, it shall be held of no force or effect.

  In witness whereof, I, the said William Penn, at Philadelphia in Pennsylvania, have unto this present charter of liberties, set my hand and broad seal, this twenty-eighth day of October, in the year of our Lord, one thousand seven hundred and one, being the thirteenth year of the reign of King William the Third, over England, Scotland, France, and Ireland, etc., and the twenty-first year of my government.

  And notwithstanding the closure and test of this present charter, as aforesaid, I think fit to add this following proviso thereunto, as part of the same, that is to say, that, notwithstanding any clause or clauses in the abovementioned charter obliging the province and territories to join together in legislation, I am content and do hereby declare that if the representatives of the province and territories shall not hereafter agree to join together in legislation, and if the same shall be signified unto me or my Deputy in open Assembly, or otherwise from under the hands and seals of the representatives, for the time being, of the province and territories, or the major part of either of them, at any time within three years from the date hereof, that in such case the inhabitants of each of the three counties of this province shall not have less than eight persons to represent them in Assembly for the province; and the inhabitants of the town of Philadelphia, when the said town is incorporated, two persons to represent them in Assembly for the province; and the inhabitants of each county in the territories shall have as many persons to represent them in a distinct Assembly for the territories, as shall by them requested as aforesaid.

  Notwithstanding which separation of the province and territories, in respect of legislation I do hereby promise, grant, and declare that the inhabitants of both province and territories shall separately enjoy all other liberties, privileges, and benefits, granted jointly to them in this charter, any law, usage or custom of that government heretofore made and practiced, or any law made and passed by this General Assembly, to the contrary hereof notwithstanding.

  William Penn

  The charter of privileges being distinctly read in Assembly, and the whole and every part thereof being approved and agreed to by us, we do thankfully receive the same from our proprietary and Governor, at Philadelphia, this twenty-eighth day of October, one thousand seven hundred and one. Signed on behalf and by order of the Assembly.

  Per Joseph Growden

  Speaker

  Edward Shippen	Griffith Owen
  Phineas Pemberton	Caleb Pusey
  Samuel Carpenter	Thomas Story
  Proprietary and Governor’s Council

  62

  Orders Devised and Published by the House of Assembly to be Observed During the Assembly

  The text is complete and with the spelling found in W. H. Browne et al., eds., Archives of Maryland: Vol. i, Proceedings and Acts of the General Assembly of Maryland, January, 1637/8–September, 1664 (Baltimore: Maryland Historical Society, 1883), 32–33.

  February 25, 1638

  One of the core commitments in American political thought is to a political process that is highly deliberative. To a certain extent the English commitment to rule of law lay behind colonial decision making processes, as well as the pragmatic belief that several heads are better than one; however, the extraordinary care the colonists took in this regard (see Fundamental Articles of New Haven [46] for a good example) also resulted from another influence. The theological perspective dominant in the American colonies held that as a result of original sin humans could see only “as through a glass darkly,” because sinful pride and self-interest tended to cloud individual judgment. The belief in a fallen human nature plus the commitment to seeking the common good led colonists to rely more heavily than most peoples on public discussions structured so as to minimize passion, self-interest, and incomplete information. The inclination toward open public records, as well as toward open political gatherings, is a reflection of the colonial commitment to a deliberative process. The document below is one of several examples surviving from seventeenth-century colonial America that illustrate the concern for calm, open, fair, and orderly processes during collective decision making. It is perhaps no accident that the behavior elicited tended to resemble that found in church.

  The Lieutenant General shall be called President of the Assembly and shall appoint & direct all things that Concern Form and decency to be used in the house and shall Command Observance thereof as he shall see Cause upon pain of imprisonment or fine as the house shall take Precedence according to this Order.

  When any one of the house is to speak to any Bill he shall stand up and be Bareheaded and direct his speech to the President only and if two or more stand up together the President shall appoint who shall speak.

  No man shall stand up to speak to any Bill until the party that last spake have sat down nor shall any One refute another with any nipping or vncivill terms nor shall name another but by some Circumloquation as the Gentleman or Burgess that spake last or that argued for or against this Bill or the Bill

  The house shall sit every day holy days excepted unless it be adjourned at eight of the Clock in the morning at the furthest and at two of the Clock in the afternoon & if any Gentlemen or Burgess not appearing upon call at such time as the President is set at or after either of the said hours shall be amerced 20lb of Tobacco to be forthwth paid to the use of the house

  After any Bill hath been once read in the house the Bill shall be read ingrossed or utterly rejected and upon any day or day appointed for a Session all Bills engrossed shall be put to the question and such as are assented to by the Greater part of the house and if the Votes be equal that shall be judged the Greater part which hath the Consent of the Lieutenant General shall be undersigned by the Secretary in these words [“]the freemen have assented[”] and after that the President shall be demanded his assent in the name of the Lord proprietary and if his assent be to the Bill, the Bill shall be undersigned by the said Secretary in these words [“]the Lord Proprietary willeth that this be a Law[”]