Sparks Commentary: How did the Massachusetts Body of Liberties influence the Bill of Rights?

“No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.”

– The Massachusetts Body of Liberties (1641), Section 47

The Massachusetts Body of Liberties codified many of the basic rights and privileges that we enjoy today. It had an early form of freedom of speech, and a right to petition the government with a “complaint.” It listed several rights of the accused; such as a protection from double jeopardy, a protection from forced confessions, and a protection from excessive bail. It gave them rights to a trial in criminal cases, and the right to an attorney to represent them in these trials. It gave them protections of life and property (as well as the right to challenge jurors), and some potent protections against any “inhumane Barbarous or cruel” bodily punishments. All of these things influenced the United States Bill of Rights, and it is hard to imagine life in this country without them. Our country would be in a much worse shape, if we didn't have these things. Thus, an examination of these rights would seem to be appropriate here. (I have decided to preserve the original spellings of its passages when quoting them, to give the reader something of their style and flavor.)

The document is called “Liberties of the Massachusets Collonie in New England” (1641)

The document bears the formal title of “The Liberties of the Massachusets Collonie in New England, 1641.” (Source: The title) Its Preamble said that they would hold it to be their “dutie and safetie … 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.” (Source: Preamble) It also said that they therefore “religiously and unanimously decree and confirme these following Rites [Rights], liberties and priveledges concerneing our Churches, and Civill State to be respectively impartiallie and inviolably enjoyed and observed throughout our Jurisdiction for ever.” (Source: Preamble) This would influence the Preamble to the United States Constitution, which said that the people of the United States would “ordain and establish this Constitution,” in order to “secure the blessings of liberty to ourselves and our posterity” (Source: Preamble to the Constitution). Both documents thus clarified that “liberty” was their most important goal.

Some degree of freedom of speech and petition (influenced First Amendment)

The Massachusetts Body of Liberties also said that “Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councel, or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so [long as] it be done in convenient time, due order, and respective manner.” (Source: Section 12) This would influence the United States Bill of Rights, which said that Congress shall make no law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Source: First Amendment). Although not exactly identical, the First Amendment would nonetheless draw heavily upon the Massachusetts Body of Liberties in this respect.

No man can be sentenced twice for “the same Crime” (influenced Fifth Amendment)

The Massachusetts Body of Liberties said that “No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.” (Source: Section 42) This would influence the United States Bill of Rights, which said that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” (Source: Fifth Amendment).

Oldest wooden jail in America, built in 1690 and operated until 1820 - Barnstable, Massachusetts

No man shall be forced by torture to “confesse” (influenced Fifth Amendment)

The Massachusetts Body of Liberties also aid that “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.” (Source: Section 45) Although it allowed forced confessions in some circumstances, the fact that some forced confessions were being prohibited at all would influence the United States Bill of Rights in this respect. Specifically, the Fifth Amendment would say that “nor shall [any person] be compelled in any criminal case to be a witness against himself” (Source: Fifth Amendment).

Protections of life and property (influenced Fifth Amendment)

The Massachusetts Body of Liberties said that “No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published,” or in case of the “defect” of a law (in any particular case) by “the word of God.” (Source: Section 1) Along with John Locke’s “life, liberty, and estate,” this would influence the United States Bill of Rights; which said that “nor [shall any person] be deprived of life, liberty, or property, without due process of law” (Source: Fifth Amendment).

Restrictions on eminent domain (influenced Fifth Amendment)

The Massachusetts Body of Liberties also said that “No mans Cattel or goods of what kinde soever shall be pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford. And if his Cattle or goods shall perish or suffer damage in such service, the owner shall be suffitiently recompenced.” (Source: Section 8) This would influence the Eminent Domain Clause of the Constitution, which said that “nor shall private property be taken for public use without just compensation” (Source: Fifth Amendment).

United States Bill of Rights

Right to trial in criminal cases (influenced Sixth Amendment)

The Massachusetts Body of Liberties said that “Everie man that is to Answere for any criminall cause, whether he be in prison or under bayle [bail], his cause shall be heard and determined at the next Court that hath proper Cognizance thereof, And may be done without prejudice of Justice.” (Source: Section 41) This would influence the United States Bill of Rights, which said that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial” (Source: Sixth Amendment). The mention of bail would also influence another amendment in the Bill of Rights, which said that “Excessive bail shall not be required” (Source: Eighth Amendment).

Right to counsel in a trial (influenced Sixth Amendment)

The Massachusetts Body of Liberties also said that “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.” (Source: Section 26). The prohibition against giving a “fee or reward” to one's counsel put some major limitations on the right to counsel. Nonetheless, this section would influence the United States Bill of Rights, which said that the accused shall “have the assistance of counsel for his defense” in a trial (Source: Sixth Amendment).

The fictional defense attorney "Perry Mason," as played by Raymond Burr on the "Perry Mason" TV show

Right to challenge jurors (influenced Sixth Amendment)

The Massachusetts Body of Liberties also said that “It shall be in the libertie both of plantife 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” (Source: Section 30) Although this was in the context of civil law rather than criminal law, this would nonetheless influence the United States Bill of Rights; because the right to challenge biased “jurors” thus implied a right to an “impartial jury.” The relevant portion of the Sixth Amendment said that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed” (Source: Sixth Amendment).

Scene from "12 Angry Men" (1957), a movie that dramatizes the trial by jury system

Right to reasonable bail (influenced Eighth Amendment)

The Massachusetts Body of Liberties said that “No mans person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle [bail] 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.” (Source: Section 18) This mention of “bail” would also influence the United States Bill of Rights, which said simply that “Excessive bail shall not be required” (Source: Eighth Amendment).

Restrictions on “cruel” bodily punishments (influenced Eighth Amendment)

The Massachusetts Body of Liberties said that “For bodilie punishments we allow amongst us none that are inhumane Barbarous or cruel.” (Source: Section 46) This would influence the later United States Bill of Rights, which said that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Source: Eighth Amendment).

Conclusion: The Massachusetts Body of Liberties influenced the federal Bill of Rights

Finally, the Massachusetts Body of Liberties said that “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.” (Source: Section 96) The Massachusetts Body of Liberties was thus a powerful influence on the United States Bill of Rights. While our Constitution does show the influence of Greece and Rome (not to mention Great Britain), it also shows the influence of our own history in America, as colonies in the New World. Many innovations in law and politics were made on this continent; and it would seem that the Massachusetts Body of Liberties would be among these innovations.

Footnote to this blog post:

The Massachusetts Body of Liberties had one other clause that I would like to note here before moving on. I cannot think of any particular clauses in the Constitution that it influenced, but it nonetheless seemed worthy of being included in a series like this.

The clause that I refer to said that “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” (Source: Section 36) This right of “appeale” would thus seem to have influenced our judicial system, even if our Constitution did not write it explicitly.

If you liked this post, you might also like:

When King John signed the Magna Carta, it was like signing a surrender document ...

The Petition of Right influenced the United States Bill of Rights

A review of Ric Burns' "The Pilgrims" (PBS)

The "Fundamental Orders of Connecticut" may be the world's first written constitution

The Habeas Corpus Act and the English Bill of Rights influenced our Constitution

The Virginia Declaration of Rights influenced the federal Bill of Rights

The Constitution of Massachusetts influenced the national Constitution

The Constitution of Massachusetts influenced the Bill of Rights

Part of a series about

The Constitution