Attorney Mayo Talks Law - A Peek at Puritan Law - 1648

America's "first" Bill of Rights...
Jonathan D. Mayo, Esq.

As we all know Massachusetts was a focal point of the American Revolution, and the Massachusetts Constitution actually preceded and informed the US Constitution. But a precursor to both constitutions came in 1648, with The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets. This document, offered by the General Court" noted that a "Common-wealth without lawes is like a Ship without rigging and steeradge," expressing fledgling rules for our modern bill of rights, crimes, civil procedure for lawsuits, and even trade regulation. Let's take a trip back some 370 years and revisit "olde" language on the "lawe."

Introduction

The "Book of the General Lawes" leads with the General Court's explanation of the book's authorship, which came from a 9-year collaboration between the Court and Church elders. Many of the laws codified in this 1648 document had been in effect in previous 30 or so years, with the "General Lawes" acting as a sort of restatement and collection of the emerging "lawes" of the land. One passage from the introduction is apt even today.

"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 yielded with respect to the common welfare, not to thy private advantage." Hear, Hear!

America's "first" Bill of Rights

From the outset, just as in subsequent constitutions, the 1648 "General Laws" expressed a sort of bill of rights, albeit male -centric.

"It is therefore ordered by this Court, & Authority therof, That no man's life shall be taken away; no mans honour or good name shall be stayned; no mans person shal be arrested, restrained, bannished, dismembred nor any wayes punished; no man shall be deprived of his wife or children; no mans goods or estate shal 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 espresse 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 excõmunicate, condemned or other, shall have full power and libertie to make their Wills & Testaments & other lawfull Alienations of their lands and estates"

Though couched in painful language, that paragraph embodies several basic tenets of modern law.

First rules of Civil Procedure

Any lawyer will affirm the importance of rules of "civil procedure," and the 1648"General Lawes" laid the groundwork for subsequent centuries of civil  law.

"All Actions of debt, accounts, slaunder, and Actions of the case concerning debts and accounts shall henceforth be tryed where the Plaintiffe 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 the Action doth arise. "

 In addition to touching upon civil procedure, the "General Lawes" offer early examples of trade regulation.

Trade Regulation

The "General Lawes" required that "Every Baker shall have a distinct mark for his bread, & keep the true [sizes] as...expressed." "Pipe Staves" were also regulated. The General Court complained of  " insufficiencie of our Pipe-staves in regard especially of worm holes" requiring that "Select-men of Boston and Charlstown...where Pipe-staves [are] shipped;" nominate skilled inspectors to assure quality of pipe staves arriving to Boston.

Penalties for "Idleness"

"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 [*26] 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.

Shuffleboard Prohibited

"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 every such offence twenty shillings:..."

Other Unmentionables

The "General Lawes" also had a fair bit of content that would be considered atrocious by today's standards, like the death penalty for same-sex relations, marking the foreheads of adulterers, whippings between 10 and 40 "stripes," and the placing of folks in the '"stocks." And no Puritan inspired document would leave out condemnation of witchcraft-as here it is punishable by death.

In Conclusion

Take some time to read the 1648 "General Lawes." The document heralds the emergence of now centuries-old maxims in law and equity. It also reminds us the hazards of theocracy.

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