All animals are equal, but some animals are more equal than others.
— George Orwell, Animal Farm (New York: Harcourt, Brace, 1954).
So The Legal Genealogist was poking around in old records again and came across one line in a set of legal principles that couldn’t help but evoke the signature “rule” of George Orwell’s Animal Farm.
The year was 1641. The place, the Massachusetts Bay Colony. And the General Court of the colony adopted as law a remarkable set of principles. For its time, the document — known as the Massachusetts Body of Liberties — was quite forward-looking: it generally stated the rules in terms of the rights of the colonists, as opposed to the powers of the government.
As described by The Winthrop Society, a lineage society “open to all men and women of good character and proven descent from one or more passengers of the Winthrop fleet, or of others who settled in the Bay Colony and down east before 1636”1:
Perhaps no other writing from the Puritan Era had so far-reaching an effect as this document, which laid the foundations of Massachusetts liberties, for which New Englishmen fought against the Empire in the 1680′s and during the American Revolution, and which became a pattern of the United States Constitution. It is remarkable as a code of law, in that it lays out a structure of jurisprudence in terms of liberties rather than restrictions. In this it echoes the Magna Charta, and foreshadows our Bill of Rights.2
And it begins with this guarantee:
No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor in any way damaged under color of law, or countenance of authority, unless it be by virtue or equity of some express law of the Country warranting the same established by a General Court and sufficiently published, or in case of the defect of a law in any particular case by the word of God (the laws of the Bible).3
So why the Animal Farm reference? Because deep within the liberties comes this provision, jarring to The Legal Genealogist‘s 21st century soul:
No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equal to a gentleman, be punished with a whipping, unless his crime be very shameful, and his course of life vicious and profligate.4
Okay. So every man committing an offense could be whipped… except the true gentleman or a man equal to a gentleman.
Which, of course, raises the question: just who exactly was a “true gentleman” in the world of 1641?
According to John Bouvier in his 1856 legal dictionary, a gentleman “in the English law, … is one who bears a coat of armor. In the United States, this word is unknown to the law, but in many places it is applied, by courtesy, to all men.”5 In the first edition of his dictionary, published in 1891, Henry Campbell Black defined the term this way:
In English law. A person of superior birth. Under the denomination of “gentlemen” are comprised all above yeoman; whereby noblemen are truly called “gentlemen” …
A gentleman is defined to be one who, without any title, bears a coat of arms, or whose ancestors have been freemen; and, by the coat that a gentleman giveth, he is known to be, or not to be, descended from those of his name that lived many hundred years since.6
Which, of course, means we need to know what a yeoman was, since a gentleman was above a yeoman. And, under English law, a yeoman was “a commoner; a freeholder under the rank of gentleman…. A man who has free land of forty shillings by the year; who was anciently thereby qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires one that is probus et legalis homo.”7
The key distinction here is one of rank and the right to a coat of arms: in the 17th century, “for the complete gentleman the possession of a coat of arms was … considered necessary.”8 Any man with a coat of arms had the rank of gentleman; anyone with a noble rank was considered a true gentleman.
So if you had enough rank, you couldn’t be punished with a whipping, unless of course the crime was “very shameful” and the course of your life was “vicious and profligate.”
In other words, all men were equal in 1641 Massachusetts, but the gentlemen were more equal than others.
Image: Richard Brathwait, The Complete English Gentleman (1630), via Wikimedia Commons.
- Home page, The Winthrop Society (http://www.winthropsociety.com/ : accessed 21 Apr 2013). ↩
- “The Massachusetts Body of Liberties adopted as law by the General Court of the Commonwealth of Massachusetts Bay December, 1641,” The Winthrop Society (http://www.winthropsociety.com/ : accessed 21 Apr 2013). ↩
- Ibid., paragraph 1. ↩
- Ibid., paragraph 43. ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 21 Apr 2013), “gentleman.” ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 538, “gentleman.” ↩
- Ibid., 1251, “yeoman.” The term “probus et legalis homo” means a good and lawful man, one whose character was unexceptional and who was qualified to serve on a jury or as a witness. Ibid., 946, “probus et legalis homo.” ↩
- Encyclopedia Britannica, 11th ed. (New York : Encyclopedia Britannica, 1911), vol. 11, entry for “Gentleman,” 604; digital images, Internet Archive (http://www.archive.org : accessed 21 Apr 2013). ↩