The General Laws of the Massachusetts Colony

The Body of Liberties, the “Ipswich Connection,” and the Origin of written Constitutionalism in Massachusetts

By Scott McDermott, Assistant Professor of History at Albany State University, and the author of The Puritan Ideology of Mobility: Corporatism, the Politics of Place and the Founding of New England Towns Before 1650.

My paper is somewhat unconventional for a panel on John Winthrop since I argue that Winthrop was actually less important to the development of Massachusetts political culture than has generally been believed. The belief in Winthrop’s preeminence has removed the need for scholars to engage the issue of Puritan political ideology. If Winthrop singlehandedly engineered a “rough consensus” that provided the foundation for Massachusetts politics, then there is little reason to think of the colony as a site for ideological contestation of the sort that interests academics. 1 Long after consensus history has been banished from every other area of historical interest, especially religious history, Massachusetts political history remains mired in a consensus model.2

Without disputing that consensus was a central aspiration for the Puritans themselves, I wish to show that Massachusetts political life was hotly and bitterly contested before Winthrop’s death in 1649. Winthrop faced determined and persevering opposition to his policies from a powerful clique of magistrates and ministers, most of whom lived in the village of Ipswich, Massachusetts. The members of this group, which I call the “Ipswich Connection,” shared many political assumptions with Winthrop based on the Protestant scholasticism of the English universities, especially Cambridge. These presuppositions included the natural law, the primacy of the common good in politics over individual prerogatives, the related idea of moral economy which enforced communal standards in the marketplace, and the notion of popular sovereignty, that only the people under God could bestow sovereignty on a ruler at the beginning of a new political system.

Also crucial was corporatism, really an image which suggested that society was analogous to a human body, whose members represented the different estates in a kingdom.3 Corporatism implied a certain degree of popular participation in a nation’s affairs, but at the same time reinforced a hierarchical vision of society which both Winthrop and the Ipswich Connection resolutely defended.

Winthrop and his opponents differed primarily on the issue of how to constitute the fundamental law of Massachusetts. Based on his experience as an English justice of the peace, Winthrop saw magistrates as a living law and disliked legislation by written statute. Thus in his 1644 “Discourse on Arbitrary Government,” Winthrop remarked that “Judges are Gods vpon earthe” and argued that “the Comon Lawes of Engl[an]d…are the ancient Lawes and of farre more esteem for their wisdom and equity, than the statute Lawes.”4

Winthrop wanted individual magistrates to create the colony’s fundamental law on a case-by-case basis, using their discretion as expressed in judicial decisions. The Ipswich Connection, however, embraced written law, not because of a progressive impulse or a tendency to abstraction, and not as a way to overwhelm the illiterate masses with the technology of writing. Rather, they saw statute law as a way to preserve traditional political ideas and immemorial customs that were threatened by developments in England and by the novelty of their situation in Massachusetts.

While still in England, members of the Ipswich Connection lobbied Parliament for statutory reforms on godly principles, but the colonial setting presented them with a new opportunity: the creation of a code of written fundamental law for Massachusetts. The Ipswich magistrates were the prime movers behind the colony’s first written law code, the 1641 Body of Liberties, passed by the General Court over John Winthrop’s strenuous objections. Along the way they helped eject Winthrop from the governorship twice, in 1634 and 1640, and offered dogged, frequently successful resistance to many of his policies.

So who made up the Ipswich Connection? Above all, they were intellectuals. Nathaniel Ward, the principal author of the Body of Liberties, took his M.A. from Emmanuel College, Cambridge, in 1603. Richard Saltonstall also attended Emmanuel, as did Master of Arts and future Governor Simon Bradstreet whose wife, Anne Bradstreet, was the first important Anglo-American poet. Daniel Denison, a local resident who took his B.A. degree from Emmanuel, became a major political figure in Massachusetts. Ipswich also attracted the minister John Norton, an alumnus of Peterhouse College, Cambridge, and important non-university men like Gov. Thomas Dudley, Anne Bradstreet’s father, Gov. Richard Bellingham, a member of the 1628 Parliament that produced the Petition of Right, and Deputy Gov. Samuel Symonds. 5

The Ipswich magistrates shared an allegiance to the political precepts of Protestant scholasticism taught at the universities, which were in large part the political precepts of medieval Catholic scholasticism, natural law, the common good, popular sovereignty, moral economy, and corporatism. The Reformation had of course new-modelled the theology curriculum of the universities, but theology was a graduate course leading to a Bachelor of Divinity degree. The undergraduate and M.A. programs still rested on the medieval trivium and quadrivium as well as the three philosophies, natural, metaphysical, and moral. Politics, taught under the rubric of moral philosophy, remained largely Aristotelian. Winthrop’s Arbella sermon, for instance, makes it clear that he shared many of these scholastic presuppositions. But it is not accurate to lump Winthrop with the rest of Massachusetts’ intellectual elite as part of an undifferentiated “East Anglian Puritan intelligentsia.”6

Winthrop matriculated at Trinity College, Cambridge, in 1603, but dropped out within two years in order to marry. After that, his relationship to Cambridge centered on business; Winthrop held a position as Trinity’s financial auditor.7

By 1629, when Winthrop wrote his “Reasons To Be Considered” essay, he was thoroughly disillusioned with the universities. Winthrop declared that “The Fountaines of Learning and Religion are soe corrupted as…most children…are perverted, corrupted, and vtterlie overthrowne by the…licentious gouernment of those Seminaries, where men straine at knatts, and swallowe camells.”8

Winthrop’s distaste for contemporary scholastic learning influenced his political views. When Nathaniel Ward was chosen to deliver the Massachusetts election sermon in 1641, Winthrop complained to his journal that Ward’s sermon relied “much upon the old Roman and Grecian governments, which sure is an error…if religion and the word of God makes men wiser than their neighbors.” Winthrop’s comment helps explain why he supported John Cotton’s proposed Massachusetts law code based rigorously on the Scriptures rather than Ward’s Body of Liberties, which drew too much on the learning of what Winthrop called “heathen commonwealths.”9

Nathaniel Ward, on the other hand, paraded his scholastic learning unashamedly in his numerous published works, including the famed Simple Cobler of Aggawam, which was the Indian name for Ipswich. In that 1647 book, seeking to define “Gods rule” for society, Ward had recourse not to Scripture but to the “light of Nature” and the “for[um] rectae rationis,” the “forum of right reason.” He also poetically attacked Winthrop’s philosophy of magisterial discretion: “They that will end ill wars, must have the skill,/To make an end by Rule, and not by Will.” Ward went on to say that the “Essentialls” of political government should not be based on “one or a few Mens discretion, but lineally sanctioned by Supreame Councels.”10

In other words, legislators should define laws in writing. In his Discolliminium of 1650, Ward advocated “the strictest Government which may in reason be exercised, by certaine prescript Lawes, legally promulged.”11

I wish I had time to describe the various political disputes in which Winthrop faced off against the Ipswich magistrates, beginning with Thomas Dudley’s attempt to fortify Charlestown and make it a rival capital to Boston, the failure of which effort resulted in the Dudley family’s removal to Ipswich. Later, in 1642 and 1643, Richard Saltonstall and Richard Bellingham of Ipswich led the opposition to Winthrop on the issues of the standing council and the negative voice.

The standing council was a three-man committee led by Winthrop that claimed the right to legislate between meetings of the Massachusetts General Court. The negative voice empowered the Court of Assistants, the upper house of the General Court composed of magistrates, to veto actions of the Deputies, the lower house, an issue that erupted in 1642 over the famous case of Goody Sherman’s missing sow.

Finally came the 1643 kerfuffle over Winthrop’s impolitic decision to allow one of the claimants to the governorship of French Acadia to hire mercenaries and drill his troops in Boston, which the Ipswich Connection vehemently denounced in a letter signed by Saltonstall, Simon Bradstreet, Samuel Symonds, John Norton, Nathaniel Ward, and other Ipswich residents. None of these conflicts led to decisive victories for the Ipswich men; on the other hand, except for the issue of the capital’s location, Winthrop too failed to get his own way in these struggles.12

Winthrop’s most serious setback came with the adoption of the Body of Liberties, which Winthrop had done everything in his power to obstruct. In December, 1639, Ward’s draft of the Liberties and Cotton’s proposed code were submitted to the General Court. Winthrop’s diary entry is revealing. Noting that “the people had long desired a body of laws, and thought their condition very unsafe, while so much power rested in the discretion of magistrates,” Winthrop explained that he and his supporters had dragged their feet on the law code for two reasons. First, they believed “that such laws would be fittest for us, which should arise pro re nata [born from the case] upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs.” Second, they feared that a law code would violate the Bay Company’s charter by establishing laws “repugnant to the laws of England.”13

Here we see Winthrop’s hostility to written law and his preference for customary law. The catch was that since few customs had been established in the ten-year-old colony, magistrates in effect had to invent new customs by using their discretion in specific legal cases.14

Winthrop’s cause was lost, however, when in 1640 the freemen turned him out of the governor’s chair in favor of Thomas Dudley, who was succeeded the following year by Richard Bellingham.15 Accordingly it was the Body of Liberties, rather than Winthrop’s idea of discretion, that laid the lasting foundations for Massachusetts political culture. As its name suggests, the Body of Liberties took its inspiration less from Scripture than from the corporatist image of the body politic. It addressed in turn the liberties of various members of the social body, including freemen, women, children, servants, “Forreiners and Strangers,” the churches, and even domestic animals. The Body of Liberties does appeal to Scripture, chiefly in its list of capital crimes, based on the Ten Commandments, which the Puritans identified with the natural law.

Thus the capital crimes provide one locus for the natural law in the document, and they are accompanied by exceptions that reveal a more scholastic understanding of natural law. For instance, in imposing the death penalty for premeditated murder, the code makes an exception for self-defense, according to the natural law of self-preservation. Natural rights, a corollary to natural law, are protected in the first Liberty: “No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arrested, restrayned, banished, dismembred, nor any ways punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him…unlesse it be by vertue or equitie of some expresse law of the Country.” In this way individual rights are protected but subordinated to the common good, represented by its defender, the General Court. Moral economy appears in Liberty 9’s prohibition of monopolies, Liberty 16’s preservation of common fishing and fowling rights and Liberty 93’s provision for grazing rights, and Liberty 23’s ban on usury.16

Several liberties seek to promote the political participation of the freemen, who had to be adult male church members. The Body of Liberties guarantees that public deliberations will be open to popular participation, that the towns and counties can make regulations for themselves, and that the freemen will elect members of the General Court. The document also provides for popular sovereignty in the stricter scholastic sense, by declaring in the Preamble that “We…ratify them [the Liberties] with our sollemne consent.” Liberty 98 confirms that this ratification was a popular process not confined to the members of the General Court. “We decree that these rites and liberties, shall be Audably read and deliberately weighted at every Generall Court that shall be held, within three years next insueing. And such of them as shall not be altered or repealed shall stand so ratified.” 17

Further documentation of this ratification process is scarce, but we do have evidence that the people of Woburn gave their consent to the Body of Liberties by incorporating its language into their town covenant.18 And the stipulation that the Liberties had to be “Audably read” to the freemen at the General Court should dispel the idea that written constitutionalism was meant to overawe the illiterate with the technology of writing.

However benign Winthrop’s intentions were, the system he tried to construct rested on the discretion, or will, of individual magistrates. However, he was defeated by the Ipswich Connection’s campaign for the “skill” or “rule” of written law; and if we still prize the ideal that government should operate based on laws, not men, we owe that partly to their promotion of the Body of Liberties

Nearly all the provisions of the Body of Liberties were incorporated into Massachusetts’ next law code, the Lawes and Libertyes of 1648.19 With its emphasis on the scholastic precepts of corporatism, natural law, natural rights, moral economy, and popular sovereignty, the Body of Liberties brought medieval concepts into American political culture. Indeed, it is hard to account for the presence of such ideas in the founding documents of the United States without considering their inclusion in this first tentative attempt at a written constitution within the English colonies.

The Enlightenment, of course, reintroduced these concepts in America, but partly because of the Body of Liberties, they were already deeply embedded in American life in a more pristine and medieval form. I do not wish to suggest that the Body of Liberties represents a Whiggish revolt against a tyrannical John Winthrop; indeed, one of the Ipswich leaders’ main complaints against Winthrop was that he was too lax in his generous dispensing of equity in court, and they hoped that a written law code, by specifying penalties for crimes, would promote a stricter social order. Nevertheless, the goal of the Body of Liberties was to produce a well-regulated body politic based on participation by the various orders in society, thus making arbitrary government impossible. As Edward Johnson, the town clerk of Woburn, put it in a poem praising Richard Bellingham,

With labours might, thy pen indite doth Lawes for peoples learning: That judge with skill, and not with will, unarbitrate discerning…20 .

However benign Winthrop’s intentions were, the system he tried to construct rested on the discretion, or will, of individual magistrates. However, he was defeated by the Ipswich Connection’s campaign for the “skill” or “rule” of written law; and if we still prize the ideal that government should operate based on laws, not men, we owe that partly to their promotion of the Body of Liberties.

Notes & sources:

1 Francis J. Bremer, Congregational Communion: Clerical Friendship in the Anglo-American Political Community, 1610-1692 (Boston: Northeastern University Press, 110-111.

2 On the destruction of the consensus model in Massachusetts religious history see Janice Knight, Orthodoxies in Massachusetts: Rereading American Puritanism (Cambridge, MA: Harvard University Press, 1994).

3 On Protestant scholasticism, see Richard A. Muller, After Calvin: Studies in the Development of a Theological Tradition (Oxford: Oxford University Press, 2003); Richard A. Muller, Post-Reformation Reformed Dogmatics: The Rise and Development of Reformed Orthodoxy, ca. 1520 to ca. 1725, 4 vols. (Grand Rapids, MI: Baker Academic, 2003); Richard A. Muller, “Reformation, Orthodoxy, ‘Christian Aristotelianism,’ and the Eclecticism of Early Modern Philosophy,” Dutch Review of Church History 81, no. 3 (2001): 306-325; Willem J. van Asselt, “Protestant Scholasticism: Some Methodological Considerations in the Study of Its Development,” Dutch Review of Church History 81, no. 3 (2001): 265- 274; Reformation and Scholasticism: An Ecumenical Enterprise, Willem J. van Asselt and Eef Dekker, eds. (Grand Rapids, MI: Baker Academic, 2001); Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978); Paul F. Grendler, “The Universities of the Renaissance and Reformation,” Renaissance Quarterly 57, no. 1 (Spring 2004): 20; Donald Sinnema, “The Discipline of Ethics in Early Reformed Orthodoxy,” Calvin Theological Journal 28, no. 1 (1993); David VanDrunen, Natural Law and the Two Kingdoms: A Study in the Development of Reformed Social Thought (Grand Rapids, MI: William B. Eerdmans, 2010); Stephen J. Grabill, Rediscovering the Natural Law in Reformed Theological Ethics (Grand Rapids, MI: William B. Eerdmans, 2006). On corporatism, see Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University Press, 1957). On the scholasticism of the English universities, see Lisa Jardine, “The Place of Dialectic Teaching in Sixteenth-Century Cambridge,” Studies in the Renaissance 21 (1974): 31-62; William T. Costello, S.J., The Scholastic Curriculum at Early Seventeenth-Century Cambridge (Cambridge, MA: Harvard University Press, 1958); Sarah Bendall, Christopher Brooke, and Patrick Collinson, A History of Emmanuel College, Cambridge (Woodbridge, UK: Boydell Press, 1999); Charles B. Schmitt, John Case and Aristotelianism in Renaissance England (Kingston, Canada: McGillQueen’s University Press, 1983).

4 Winthrop Papers (Boston: Massachusetts Historical Society, 1944), 4:476,:487.

5 Recepta ab Ingredientibus (Register of Admissions, 1584-1713) [hereafter ECA CHA.1.4(c)], Emmanuel College Archives, Cambridge, UK, 130v, 138v, 128v, 139v, 121r; Morison, Founding, 403-404, 399, 375, 392, 408-409; Samuel Eliot Morison, Builders of the Bay Colony (Boston: Houghton Mifflin, 1930), 269-271; J.A. Venn, Alumni Cantabrigienses…Part I: From the Earliest Times to 1751 (Cambridge: Cambridge University Press, 1922-1927), 4:333, 4:10, 1:203, 2:31, 3:268; William Haller, Jr., The Puritan Frontier: Town-Planting in New England Colonial Development 1630-1660, Studies in History, Economics and Public Law 568 (New York: Columbia University Press, 1951), 95; Edward Johnson, Wonder-Working Providence of Sions Saviour in New-England…. (1654; repr., Delmar, NY: Scholars’ Facsimiles & Reprints, 1974), 67-68; Francis J. Bremer, John Winthrop: America’s Forgotten Founding Father, 243, 354-355, 358.

6 Darren Staloff, The Making of an American Thinking Class: Intellectuals and Intelligentsia in Puritan Massachusetts (Oxford: Oxford
University Press, 1998), 3.

7 Venn, Alumni Cantabrigienses…Part I, 4:441; Bremer, John Winthrop, 5, 68, 80; Victor Morgan, A History of the University of Cambridge,
1546-1750, vol. 2 of A History of the University of Cambridge, ed. Christopher Brooke (Cambridge: Cambridge University Press, 2004), 188.

8 Winthrop Papers, 2:139.

9 John Winthrop, The Journal of John Winthrop, 1630-1649, ed. Richard S. Dunn, James Savage, and Laetitia Yeandle (Cambridge, MA: Harvard
University Press, 1996), 359.

10 Nathaniel Ward, The Simple Cobler of Aggawam in America, (1647; repr., New York: Scholars’ Facsimiles and Reprints, 1937), 13, 44, 49, 50-51.

11 Nathaniel Ward, Discolliminium (London, 1650), 50-52, in Early English Books Online, accessed May 2, 2013.

12 See Scott McDermott, “Body of Liberties: Godly Constitutionalism and the Origin of Written Fundamental Law in Massachusetts, 1634-1666” (PhD. diss., Saint Louis University, 2014), 138-142, 194-205, ProQuest Dissertations & Theses; Richard Saltonstall and Others to the Governor, Deputy Governor, Assistants, and Elders, July 14, 1643, in Winthrop Papers, 4:401.

13 Winthrop, Journal, 314-315.

14 See R[alph] H. C[lover], “The Rule of Law in Colonial Massachusetts,” University of Pennsylvania Law Review 108, no. 7 (May 1960): 1016.

15 Nathaniel B. Shurtleff, ed., Records of the Governor and Company of the Massachusetts Bay in New England, 5 vols. in 6 (Boston: W. White, 1853-1854), 1:288, 1:319, accessed February 18, 2013, Internet Archive.

16 William H. Whitmore, ed., A Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686 (Boston: Rockwell and Churchill, 1890), 53, 55, 33, 35, 37, 53, 39, accessed December 14, 2013, Internet Archive.

17 Whitmore, Bibliographical Sketch, 35, 47, 49, 33, 61.

18 Samuel Sewall, The History of Woburn, Middlesex County, Mass. (Boston: Wiggin and Lunt, 1868), 74, accessed December 11, 2013, Internet Archive.

19 Thomas G. Barnes, introduction to The Book of the “General Lawes and Libertyes” Concerning the Inhabitants of the Massachusets, ed. Thomas G. Barnes (San Marino, CA: Huntington Library, 1975), 8, 10.

20 Edward Johnson, Wonder-Working Providence of Sions Saviour in New-England…. (1654; repr., Delmar, NY: Scholars’ Facsimiles & Reprints, 1974), 67-68.

1 thought on “The Body of Liberties, the “Ipswich Connection,” and the Origin of written Constitutionalism in Massachusetts”

  1. This interesting read is a testament to our early town troublemakers, who by wit and will, and fueled by a belief of impartial justice, initiated the idea that our government is a system of laws, not men. An idea that is challenged every now and then and must relearned by each generation.

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