Massachusetts Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

An English legal system founded twice

Massachusetts law came from England, and it was common law throughout. That is the frame for everything below: dower for widows, coverture for wives, and descent of land by statute rather than by contract.

Two separate colonies founded it. Plymouth Colony began in 1620 and kept its own laws and courts for seventy years. Massachusetts Bay Colony began in 1630 and produced the first law code in New England, the Body of Liberties of 1641, followed by the first printed one, the Laws and Liberties of 1648. The two merged under the royal charter of 1691, effective 1692. A single General Court then made law for the whole province.¹

The Puritan founders did not simply copy England. They wrote inheritance rules from the Bible. They gave probate — the court process that proves a will and settles an estate — to civil courts rather than church courts. And they required deeds to be recorded publicly.² Those three choices tell you where the records are. Wills, administrations, and guardianships sit with the county probate court. Deeds sit with the register of deeds for the county where the land lies. Marriage intentions, marriage returns, and tax lists sit with the town.

Plymouth Colony 1620 to 1691

For seventy years a Plymouth ancestor lived under a different legal system. Its printed laws set their own rules on adulthood, guardianship, marriage, land, and inheritance.³⁴ Those rules governed a Plymouth family until 1692. Each one appears in its own section below, with the Plymouth citation alongside the province and state ones.

Massachusetts Bay Colony 1630 to 1691

The Bay Colony wrote its own rules too, and several of them outlasted the colony. The Body of Liberties of 1641 fixed 21 as the age for making a will and for conveying land, and 21 again for voting and for giving a verdict as a juror.⁵⁶ It let a married woman or a child convey land only if the General Court ratified the deed.⁷ It gave the eldest son a double portion of an intestate estate and let daughters inherit together where there was no son — the rule the province act of 1692 later carried forward.⁸ It required a court to approve the placing of an orphan.⁹ And it permitted bond slavery for captives taken in war and for those sold or selling themselves.¹⁰

The colony's fuller codes of 1648, 1660, and 1672 add the working detail on marriage, deeds, wills, and taxes. They are reprinted in one modern volume, and that is where to look for a Bay Colony ancestor before 1692.¹¹

Dates that anchor the period

A handful of dates anchor the two and a half centuries that follow. Each marks a change you will see in the records:

• 1641 — the Body of Liberties fixed adulthood at 21 for land, votes, and verdicts.⁶
• 1692 — the province act on intestate estates set the pattern that ran to the Revolution.¹²
• 1790 — the eldest son's double portion ended, for deaths from 1 January.¹³
• 1834 — marriage intentions, publication, and parental consent were put on a single statutory footing.¹⁴
• 1842 — town clerks began sending yearly returns of births, marriages, and deaths to the state.¹⁵
• 1843 — the ban on interracial marriage was repealed.¹⁶
• 1845 and 1855 — married women gained separate property.¹⁷
• 1894 — a minimum marrying age appeared for the first time.¹⁸
• 1906 — juvenile courts took children under 17 out of the criminal courts.¹⁹

Legal Age of Adulthood

Adulthood began at 21

Full legal age in Massachusetts was 21, for women and men alike, through 1950. The rule is as old as the colony's first code. Persons of 21 and of right understanding had full power to make their wills and other lawful conveyances of their lands and estates, and 21 was also the age for giving a vote or a verdict.⁵⁶ Plymouth fixed the same age separately. No one there could pass away land or other estate, or sue or be sued in his own person, until he reached one and twenty years.²⁰ The statutes that followed used the phrase "full age" to mean the same thing.²¹ A person under 21 was an "infant" in legal language, even at 20.²²

What a minor could and could not do

A minor could own property outright. What the law limited was his power to dispose of it. His contract or deed was voidable rather than void: it stood until he chose to undo it. The Supreme Judicial Court put the principle plainly in 1816. Infancy is a personal privilege that none but the minor himself can use. So the bargain binds the grown party on the other side, and a guardian cannot undo a bargain the child profited from.²³

In practice a minor's land was not sold by the minor at all. It was sold by a guardian under a probate court license. That is why a child's land sale leaves a probate file rather than a simple deed.

Ages that were different for women

Adulthood was 21 for both sexes throughout. Two other ages did differ, and they are easy to confuse with it:

• Marriage. The marrying ages and the consent ages were both lower for girls. See the marriage section below.
• Taxes. The poll tax caught boys years before adulthood, but did not reach women at all until 1879. See the taxation section below.

Marriage

Who was old enough to marry

The common-law ages governed, and the statute simply wrote them down. A marriage was void where the male was under 14 or the female under 12, but only if the parties separated during that nonage and did not afterward live together.²⁴ The qualification matters. A marriage below those ages that the couple carried on with was a marriage. The Supreme Judicial Court said so in the leading case, where a girl of 13 who married without her mother's consent was held to be lawfully married.²⁵

The first minimum marrying age arrived in 1894, and it worked through the clerk rather than the couple. The town clerk or registrar could not receive a notice of intention of marriage from a male under 18 or a female under 16.²⁶ Below those ages the probate court for the county where the minor lived could hear the matter and allow the marriage. It needed the consent of the father, or of the mother where he was dead or absent, or of a guardian where neither parent lived in the state.²⁷ A Massachusetts marriage under 18 or 16 after 1894 should have a probate court order behind it, and that file names the parents.

Parental consent

In Plymouth Colony, consent was owed by anyone in another's household. No one under the charge of parents, guardians, masters, or overseers could marry without their consent and approval. Two magistrates could overrule a refusal made for a covetous or sinister reason.²⁸ The Bay Colony worked the same way from the other direction: a child whose parents unreasonably denied a timely marriage could complain to the authorities.²⁹

The province act of 1692 carried the idea into statute. A justice or minister could marry only persons who might lawfully marry and who had the consent of those whose immediate care and government they were under.³⁰ That is the rule for the whole province period, and it names no ages.

From 1834 to 1950 the rule held one shape. A magistrate or minister could not solemnize a marriage where the male was under 21 or the female under 18, except with the consent of the parent or guardian who had custody of the minor, if there was one in the state competent to act.³¹ Two things follow. A bride of 19 needed nobody's permission, but a groom of 19 did. And the duty and the penalty fell on the officiant, not on the couple.

How a marriage was made and what it left behind

The clerk gave the couple a certificate showing when the intention was entered and published. They handed it to the officiant before the ceremony.³³ That public notice was called the banns. Anyone could forbid them by filing written reasons with the clerk, and two justices of the peace then heard and decided the objection.³⁵ A forbidden-banns file is rare and rich.

Who could officiate stayed narrow. A justice of the peace could act within the county he was appointed for, where one of the parties lived in that county. An ordained minister could act if he lived in the state and was still preaching. Either way the marriage had to be solemnized in the town where the officiant lived or where one of the couple lived.³⁶

A ceremony was required

A valid Massachusetts marriage required a ceremony before an authorized officiant. Plymouth put it most plainly: no one could join persons in marriage but a magistrate, or a person the court authorized where no magistrate was near, and no couple could join themselves.³² The rule held through 1950. A couple who simply lived together remained single in law, and the Supreme Judicial Court settled the point in 1879.³⁷ Massachusetts marriage records are therefore intentions and returns. A marriage is proved from those, not from a declaration of long cohabitation.

Massachusetts also policed marriages made elsewhere. A resident who was barred from marrying here, and who went to another state to contract a marriage void by Massachusetts law and then came back, was treated as unmarried.³⁸ From 1913 the rule ran the other way as well. A non-resident could not marry here if the marriage would be void where they lived.³⁹

Who could not marry

Marriage within the prohibited degrees of kinship was forbidden. The statute set the degrees out as two long lists. For a man they were his mother, grandmother, daughter, granddaughter, stepmother, son's wife, wife's mother, wife's daughter, sister, niece, and aunt, with the mirror-image list for a woman.⁴⁰ A prohibition founded on marriage rather than blood continued after that marriage ended by death or divorce.⁴¹ Such a marriage was void without any decree.⁴²

A marriage contracted while a former husband or wife was living was void, unless that earlier marriage had been dissolved for some cause other than the remarrying party's own adultery.⁴³ So was a marriage where either party was insane.⁴⁴

Enslaved people, free people of color, and Native people

Enslaved people in Massachusetts married, and their marriages were recorded. This is unusual among the colonies, and it is the single most useful fact for early African American research here. Banns were published for enslaved couples in the ordinary way, and the marriages appear in town and church registers alongside everyone else's. The province act of 1705 that banned interracial marriage said so directly in the next breath, forbidding an enslaver to unreasonably deny marriage between the man he held and a woman of the same nation.⁴⁵ In practice the enslaver's consent controlled the match, and spouses could be sold apart, so a recorded marriage may describe a household later broken up.

Interracial marriage was banned from 1705 to 1843. The province act of 1705 forbade it, an act of 1786 restated and widened it, and the Revised Statutes carried it into the state code.⁴⁵ Where such a marriage was dissolved, the children were declared illegitimate.⁴⁶ An act of 1843 swept the ban away.¹⁶ From that year an interracial couple could marry in Massachusetts and appear in the ordinary town records. That is why couples from other states came here to do it, and why the 1913 statute above was passed to stop them.

Before 1843, couples used two routes that leave traces. They married out of state, or they lived together without a ceremony and their children were recorded as illegitimate.

Property Ownership

Which men could own land

Any free man could acquire, hold, and convey land. A male could own land at any age, taking it from birth by inheritance, gift, or devise, which is a gift of land made by will. The age that mattered was the age at which he could deal in it himself. At 21 he bought, sold, and mortgaged in his own name.⁶⁴⁷ A deed he gave before 21 was voidable.²³

Free Black and mixed-race men held and conveyed land on the same terms as white men, and they appear in the deed books accordingly. No Massachusetts statute of this period put a racial condition on owning or conveying land.⁴⁸ Enslaved men had no legal capacity to own property while slavery lasted.

A foreign-born man's position improved over the period. Under the Revised Statutes an alien widow could be endowed of her husband's land, an alien could take a share of an intestate's personal estate, and an alien could serve as administrator. From 1852 the rule was general: aliens could take, hold, transmit, and convey real property, and no title was invalid because a former owner had been an alien.⁴⁹

How a Massachusetts deed was made

Public recording is the oldest feature of Massachusetts land law. Plymouth required every sale, exchange, gift, mortgage, or lease of houses and lands to be acknowledged before the Governor or one of the Assistants and entered on the public record.⁵⁰ The province and the state kept the same shape. A conveyance was made by deed, acknowledged by the seller before a justice of the peace or other authorized officer, and recorded in full in the registry of deeds for the county where the land lay. The statute added that no other act or ceremony was needed.⁵¹ Recording is what made the deed good against the world.

A deed witness qualified on competency alone: any person who understood an oath and could relate what they had seen. What made the deed recordable was the seller's acknowledgment before a magistrate, not the witnessing. So witnesses mattered chiefly when the seller died, left the state without acknowledging, or refused to acknowledge. The deed could then be proved in court by a subscribing witness, meaning a witness who had signed it, and one such witness was enough.⁵² The names at the foot of a Massachusetts deed are worth harvesting, and a deed without them is still a good deed.

Women and land

A single woman or widow — a feme sole, "woman alone" — could buy, own, sell, sue, and be sued exactly as a man could. A married woman was a feme covert, "covered woman," under coverture. That was the common-law rule that merged a wife's legal identity into her husband's. He managed her land and took its rents and profits, and her personal property became his.

Her own land was conveyed by a joint deed with her husband. That deed passed it exactly as she might have done alone if unmarried, though she was not bound by the promises in it.⁵³ Her signature on that deed was all the law asked of her. Southern states also required a privy examination, a private interview with an official away from her husband to certify that she signed willingly. In Massachusetts a wife's signature on a deed is a signature and nothing more elaborate, and there is no separate certificate to look for. Before 1692 the Bay Colony was stricter still: a married woman's or a child's conveyance was good only if the General Court ratified it.⁷

Coverture was dismantled in stages. The two central acts fell in 1845 and 1855, after which a married woman held and dealt with her own property and could make a will like anyone else.¹⁷ By the 1880s the codes describe a married woman as seized — owning and holding — to her "sole and separate use" as a matter of course.⁵⁴

When a wife had to sign her husband's deed

A wife's signature, or its absence, tells you whether the man was married.

The driver is dower. A widow taking dower got a life estate in one-third of her husband's land. That means the use of that third for the rest of her life, with the ownership passing to the heirs. Massachusetts kept dower at common law through 1950, and that phrase is load-bearing. Common-law dower attached to every parcel the husband held at any time during the marriage, not merely what he owned when he died. The words run unchanged through every compilation from 1836 to 1921.⁵⁵ Plymouth had already fixed the same fraction, giving a widow a third of her husband's lands for her life and a third of his goods at her own disposal.⁵⁶

The consequence is immediate. A buyer needed the wife to release her dower. She did it by joining in her husband's deed and releasing her claim, or by a later deed executed jointly with him.⁵⁷

A married man's Massachusetts deed without his wife's release is a deed with a defect in its title. Where a man conveys alone, look for a widower, a bachelor, or a problem.

Two Massachusetts quirks are worth knowing. Dower attached to cultivated land only. A widow took no dower in wild land, whether her husband died holding it or had conveyed it away, while woodlots and other land used with the farm or dwelling house counted as part of the farm and were dowable.⁵⁹ And she had the right to remain in her husband's house for forty days after his death while her dower was set out.⁶⁰

The husband's mirror-image right was curtesy. Into the nineteenth century it kept its common-law shape. Where a man and his wife owned an inheritable estate in her right, and a child was born alive who might have inherited it, he held her lands for his life after her death.⁶¹ From 1 January 1902 a statutory curtesy replaced it: one third of all land the wife owned at any time during the marriage, with no requirement that a child be born. A conveyance by a married woman left it standing unless the husband joined in the deed or released his right.⁶² So the reverse test applies too. A married woman's deed normally carries her husband's signature.

The same 1902 act made both rights elective. The survivor had to file a claim in the registry of probate within six months of the approval of the executor's or administrator's bond. On silence the survivor took the ordinary statutory share instead.⁵⁸ That six-month claim, or its absence, is a document in the probate file. Dower and curtesy were abolished outright long after this period, by the Massachusetts Uniform Probate Code.⁶³

The homestead

From 1851 a householder with a family had an estate of homestead in the dwelling and lot he occupied, exempt from his debts up to a value the statute set at $800.⁶⁴ It produces two records. To claim the exemption the householder either declared in the deed that bought the property that it was to be held as a homestead, or recorded a separate declaration of homestead in the registry of deeds. Either paper names him and fixes the family home. And to convey or release the homestead afterward, his wife had to join in the deed, in the very same way she released dower. So the homestead is one more place a wife's signature appears on her husband's deed.

Which children could own land

A child could own land at any age. Conveying it went through the probate court. The court licensed the sale on petition, a guardian gave bond, and the guardian executed the deed.⁶⁵ Where a Massachusetts deed conveys a child's land, the probate file holds the family.

How slavery ended

Slavery in Massachusetts rested on the Body of Liberties of 1641, which permitted bond slavery for lawful captives taken in just wars and for those who sold themselves or were sold.¹⁰ Enslaved people were listed as personal property in estate inventories, appraised alongside livestock and furniture, which means an inventory may name a person.

Slavery in Massachusetts ended by court decision. The Declaration of Rights in the Constitution of 1780 opened with the words that all men are born free and equal. In a series of prosecutions arising out of Quock Walker's claim to freedom, the Supreme Judicial Court held in 1783 that those words had abolished it.⁶⁶ The records follow from that route. What survives are freedom suits. Enslaved people sued in the ordinary courts, and those case files name them, their claimed enslavers, and often their parents. By the 1790 federal census the state returned a free population only.

Native people and their land

Native land was held under a restraint on sale, and Native communities were administered through guardians and overseers appointed by the state. Those officers managed tribal land and funds and accounted for them. The act of 1862 shows the system at work and is the best single entry point. It kept seven plantations outside ordinary citizenship: Chappaquiddick, Christiantown, Gay Head, Marshpee, Herring Pond, Fall River, and Dudley. And it required the district clerks and the guardians of the other tribes to keep three registers — one of members, one of marriages, births, and deaths, and one of every parcel of plantation land and every change in its holding.⁶⁷ Those guardians' and overseers' accounts and registers are among the richest sources for Native families anywhere in the state.

Two other consequences matter for research. Native people were exempt from taxation, so they are systematically absent from the tax lists that serve as census substitutes for everyone else. The taxation section below gives the statute. And the state's own survey of Native communities, the Earle Report of 1861, lists individuals by name. The act of 1869 then made all Indians and people formerly called Indians citizens of the Commonwealth, ended the restraint on selling their land, and dissolved the special status of the districts.⁶⁸ Allotment and heavy land loss followed.

Inheritance

One set of rules and one court

Massachusetts distributed real and personal property under related rules administered by one court. The probate court granted administration, took the inventory, paid the debts, and divided what was left. Land and goods went to the same people in the same proportions.⁶⁹⁷⁰ That is why a Massachusetts estate division so often names every child in one document.

The colonial pattern and the double portion

The Bay Colony set the shape first. Under the Body of Liberties the eldest son took a double portion of an intestate parent's whole estate, real and personal, and where there was no son the daughters inherited together as coparceners, meaning co-heirs holding as one.⁸

Plymouth wrote out the widow's share. Where a married man died intestate, his widow took one third of the rents and profits of his lands for her life, and a third of the goods and chattels at her own disposal once the debts were paid. Where he left several children the eldest son took a double portion, counting what he had already received, and the rest of the children inherited as copartners. The same laws let the court relieve a widow out of the estate where a will had left her without a reasonable allowance, especially where she had brought property to the marriage or had worked to build the estate.⁷¹

The province act of 1692–93 carried that pattern into the united colony, and it governed until the Revolution. Its preamble explains the policy in plain terms. Estates here consisted chiefly of land subdued and improved by the owner with the help of his children, and the younger children had generally served longest, so the land was to be divided rather than given to the eldest. Under that act:

• the widow took one-third of the personal estate forever, besides her dower;
• all the residue, real and personal, went in equal portions among the children, with advancements — property already given to a child during the parent's lifetime — counted against that child's share;
• the eldest son took two shares, a double portion;
• where there were no sons, the daughters inherited together; and
• the division of houses and land was made by five sufficient freeholders on oath, or any three of them, appointed and sworn by the judge.¹²

That freeholders' return is one of the best documents in colonial Massachusetts genealogy. It divides the homestead field by field and names everyone taking a share.

The eldest son's double portion ended for deaths on or after 1 January 1790. An act of June 1789 recited the double-portion exception and directed that from the first day of January next, real estate and personal estate alike should descend in equal shares among the children and those representing a deceased child, exactly as they would have done if that exception had never been written.¹³ The date of death is the test, and the line is sharp. An intestate dying in December 1789 has an eldest son with a double share. One dying in January 1790 has children sharing equally.

After 1789 equal shares

From then on land descended in equal shares to the children. The children of a child who had died took their dead parent's share between them, which the statutes call taking by right of representation. Where there were no children it went to all the other lineal descendants.⁶⁹ Property given to a child during the parent's lifetime as an advancement was counted as part of the estate for the purpose of dividing it.⁷²

The widow's share of the personal estate

The fractions are precise, and they hold whatever the number of children:⁷⁰

Those were the shares under the Revised Statutes, and they were the widow's interest in the goods on top of her dower in the land. Before any of it she took her own clothing and ornaments, and a provision of necessaries for herself and the family in her care. The probate court allowed that ahead of the husband's creditors, and she took it whether he died intestate or she waived his will.⁷⁰ The allowance is a separate paper in the probate file, and it usually names the widow and the children.

Two later refinements changed what a widow actually held. By 1882, where her husband died intestate leaving no children, she took his real estate outright to a value of $5,000, plus a life interest in half the rest. She could instead take dower, by filing an election in the probate office within six months of letters of administration, the court's written authority to the administrator to act.⁷³ By 1921 the same $5,000 rule was stated for the surviving husband or wife alike, with the survivor taking the whole where the estate did not exceed that sum.⁷⁴

Waiving the will

Where a husband left a will she disliked, a widow could waive it within six months of probate by filing a signed writing in the registry of probate. She then took the share she would have had if he had died intestate.⁷⁵ Her waiver, or its absence, is in the probate file, and it tells you which she chose. A similar election ran where a jointure — a settlement of land or money made for her before the marriage — had been provided.⁷⁶

Guardians and the age of fourteen

A guardian was appointed because a minor had property to manage. Where a child inherited nothing, often no guardianship record was created. A minor's inheritance went to a guardian appointed by the probate court, under bond, who inventoried the property, managed it, accounted for it, and handed it over at 21.⁷⁷ The guardian's final account is filed when the minor turns 21. It brackets the minor's birth year within months, and it frequently reveals a young woman's married surname.

The age of choice is 14, for both sexes, and it is one of the oldest rules in the state. The Bay Colony already required a court to approve the placing of an orphan.⁹ Plymouth allowed an orphan to choose a guardian at 14 to secure or defend the estate.²⁰ Under 14, the probate court nominated and appointed the guardian. Above 14, the minor nominated his own, and the court appointed the nominee if it approved.⁷⁸ A minor living more than ten miles from the next probate court could make the nomination before a justice of the peace or the town clerk, who certified it to the judge.⁷⁹ A guardianship record in which the child chooses is evidence the child had reached 14.

Guardianship of the estate ended at 21. Custody of the person was different. The father while living, and after his death the mother while she remained unmarried, kept the custody and education of the child even where someone else managed the money.⁸⁰ So look for two roles, and sometimes two people. A father could appoint a guardian by will, and if he died without exercising that power, the mother could.⁸¹

Children born outside marriage

For a child born outside marriage, Massachusetts extended inheritance on the mother's side early, and on the father's side through legitimation.

From the mother: every illegitimate child was an heir of his mother and inherited her estate as if born in lawful wedlock, though he could not claim through her in the estates of her kindred.⁸² If such a child died intestate without children, his estate went to his mother.⁸³ The rule was later widened so that the child was heir of the mother and of any maternal ancestor.⁸⁴

From the father, by legitimation: where the parents afterward married and the father then acknowledged the child as his, the child was legitimate to all intents and purposes.⁸⁵ Note the two requirements. The marriage alone did not do it. So when an inheritance runs to a child born before the parents' marriage, look for both the marriage record and an acknowledgment.

Paternity of a child born outside marriage was determined in a bastardy proceeding against the reputed father. It was a support action, and the file names him.⁸⁶

Making a will and choosing an executor

The age to make a will was 21, for land and goods alike, and one rule covered both. Every person of full age and sound mind could devise land,⁸⁷ and every person of full age and sound mind could bequeath — give by will — personal estate.⁸⁸ The rule was still stated the same way in 1921.⁸⁹

A Massachusetts will needed three witnesses. It had to be in writing and signed by the testator, the person making the will, or by someone in his presence at his direction. It then had to be attested and subscribed in his presence by three or more competent witnesses. A will written entirely in the testator's own hand got no exemption from that: it needed the same three witnesses as any other.⁹⁰ A witness competent when he attested stayed good even if he later became incompetent.⁹¹

A witness could be of any age. What mattered was that the witness took nothing under the will. A gift of land or money to a subscribing witness was wholly void unless there were three other competent subscribing witnesses.⁹² So a legatee — someone left a gift — among the three witnesses means the gift failed. It also tells you the drafter thought that person close enough to the family to leave something to.

A soldier in actual military service or a mariner at sea could dispose of personal property by a spoken will.⁹³

The age to serve as executor or executrix was 21. Where the person named was under 21 when the will was proved, the court granted administration with the will annexed, which is a court appointment to settle the estate under the terms of the will, during his minority, unless another named executor accepted.⁹⁴ Where there were other executors, they administered the estate until the minor came of age, and he was then admitted as a co-executor on giving bond.⁹⁵ A change of administrator some years after a probate is often a named executor simply turning 21, and it dates his birth.

One quirk worth watching: the marriage of an administratrix ended her authority,⁹⁶ so a change of administrator right after a wedding is usually the reason.

Taxation

The annual list

Everything turns on the assessors' annual valuation list, which named every taxable person in the town every year.⁹⁷ It is the closest thing Massachusetts has to an annual census.

Four kinds of tax fell on individuals. The poll tax, also called a head or capitation tax, was a flat charge on a person simply for existing. The property tax fell on real and personal estate. Income from a profession, trade, or employment was folded into personal estate and taxed with it. Two more were added late: a tax on property passing at death, the collateral legacies and successions tax of 1891, and a state income tax levied from 1916 under a constitutional amendment of 1915.⁹⁸

Personal estate for tax purposes was defined broadly. It took in goods, money at interest, debts due, ships, public stocks and shares, and income from any profession, trade, or employment or from an annuity.⁹⁷ An ancestor's occupation may therefore surface on a tax list.

Who paid the poll tax and at what age

The early rule is the one that pays, and it is remarkably stable: 16 from the first province tax act of 1692 all the way to 1860. For those 168 years a boy's first appearance on a poll list brackets his sixteenth birthday, five years before he could make a will or convey his land. From 1860 the test was being above the age of twenty, so a first entry marks his passing 20 instead, and the sixteen-year-old bracket is gone.

One early-state refinement is worth hunting for. From 1801 the assessors' return to the secretary's office counted rateable polls of 16 to 20 separately from those of 21 and upwards, in two columns. It counted male polls who were not rateable separately again, with those supported by the town in a column of their own.¹⁰⁰ Where that return survives it puts a man in one of two age bands, and it marks the town's paupers.

Where a minor was taxed, the poll was assessed in the town where his parent, master, or guardian lived, not where he was. But a minor with no parent, master, or guardian in the state was taxed personally for his poll as if he were of full age.¹⁰⁴ That single clause is a strong signal. A boy in his late teens taxed in his own right, in his own town, is very likely an orphan with no guardian.

Why a man drops off the tax list

The exemption clauses explain most disappearances from a poll list by someone who is demonstrably still alive:

• The polls and estates of all Indians were exempt.¹⁰⁵ Native families are therefore systematically missing from the tax lists.
• The polls and estates of persons who by reason of age, infirmity, and poverty were in the assessors' judgment unable to contribute were exempt.¹⁰⁶

Before 1860 a man also dropped off simply by turning 70. After 1860 there was no upper age, and the poverty and infirmity exemption did that work instead. Either way, a man vanishing from the list in later life is usually still alive.

One further use of the list explains why the assessors' work was so thorough. From 1822 a man qualified to vote by having paid a state or county tax assessed on him within the two preceding years, and the collectors kept lists of who had paid.¹⁰⁷ For those decades a tax list is also a voter list. That qualification was annulled in 1891,¹⁰⁸ after which the list stops serving as a proxy, though the poll tax itself was levied well beyond that.

Courts

Jury service

Massachusetts tied the jury to the ballot box. Every person qualified to vote for representatives to the General Court was liable to be drawn as a juror.¹⁰⁹ The rule was the same in 1921 as in 1836.¹¹⁰ The colony had reached the same place two centuries earlier by a different route: the Body of Liberties fixed 21 as the age for giving a verdict.⁶

Two things follow. The jury age was 21, because that was the voting age. And the qualification was tax payment rather than land: the jury statute set no freehold requirement, so once a man could vote he could be drawn. Talesmen — bystanders summoned on the spot to fill out a short jury — had to be qualified as jurors and no more.¹¹¹

Voting was not the only test, though, and this is the part most often missed. The selectmen prepared the jury list themselves, at least once every three years. They were to enter the inhabitants they thought well qualified to serve, being persons of good moral character, of sound judgment, and free from all legal exceptions. The list had to hold between one name for every hundred inhabitants and one for every sixty, and the town could add or strike names at a town meeting.¹¹² So the working test was an adult male citizen of 21 who had paid his tax and whom the selectmen and his neighbors thought fit.

Long exemption lists kept particular men off. The 1836 list ran to state officers, judges and court officers, registers of probate and of deeds, sheriffs and constables, attorneys, settled ministers, officers of colleges, teachers, licensed physicians and surgeons, bank cashiers, ferrymen, and every man over 65. By the 1921 code it had grown to take in legislators while the General Court sat, militia members, prison and hospital staff, lighthouse keepers, and railroad conductors and engine drivers.¹¹³ If your ancestor never served, his occupation may be the reason.

Women as jurors

Jury service was limited to men until 1950. Women in Massachusetts gained the vote with the Nineteenth Amendment in 1920, and since the jury statute keyed eligibility to voting, the question was whether that made them jurors. The Supreme Judicial Court said it did not. Reviewing the enactment of the General Laws, the court held in 1931 that the General Court had not intended the words describing those liable to serve to include women, and that a jury list drawn only from men was proper.¹¹⁴ The Supreme Court of the United States declined to review it.

The legislature settled it instead. An act of 1949 rewrote the jury statute so that a person of either sex qualified to vote, whether registered or not, was liable to serve, and it took effect on 1 July 1950.¹¹⁵ One town, Uxbridge, had put women's names forward as early as 1922.¹¹⁶

Two features of that act shape what you will find on a jury list, and both are easy to misread as absence of evidence. A woman could claim exemption in writing, and the board was then forbidden to put her name on the list.¹¹⁷ And the exemption clause was widened for women in particular, taking in nurses, hospital assistants, members of religious orders, and mothers or custodians of children under 16.¹¹⁸ A woman could also be excused from prosecutions for rape or for offenses against chastity, on telling the judge the testimony would embarrass her.¹¹⁹ So a Massachusetts woman missing from a post-1950 jury list may simply have claimed her exemption, in writing.

People of color as jurors and witnesses

Black men in Massachusetts were competent witnesses and eligible for jury service throughout. The voting statute reached every male citizen of 21, without racial qualification, and because jury eligibility followed voting, a Black man who met the residence and tax tests was eligible to be drawn.¹²⁰ Black Bostonians voted, held office, and testified in court through the years before the Civil War. This is a real difference from the southern states, and it means a Massachusetts ancestor of color may well appear in court and jury records.

The age of criminal responsibility

Massachusetts took its criminal law from England and fixed no minimum age by statute before 1906. At common law a child under 7 could not commit a crime. Between 7 and 14 the law presumed incapacity, and the prosecution had to overcome the presumption. From 14 the child bore full responsibility and was tried as an adult.¹²¹ The Massachusetts cases treated the rule cautiously rather than mechanically, so a young defendant was not automatically beyond prosecution.¹²²

From 1870 a child under 16 was taken out of the police court. Where such a child was brought before a trial justice or a police or municipal court on a complaint for an offense not punishable by imprisonment for life, the fact was endorsed on the warrant and the child was taken before the judge of probate instead.¹²³ An act of 1906 then defined a delinquent child as any boy or girl between the ages of seven and seventeen who violated a city ordinance, a town by-law, or any law not punishable by death or life imprisonment. It directed that proceedings under it were not criminal proceedings, and that such children were to be treated as children in need of aid, encouragement, and guidance.¹⁹ So in practice no one under 17 was convicted as an adult after 1906, and the record you want sits in the juvenile files, where it is likely to be closed.

Witnesses

A witness of any age could testify, if the person understood the obligation of an oath and could give a rational account of what they had seen. The statute put the test as sufficient understanding, not age: any person of sufficient understanding could testify in any proceeding, civil or criminal.¹²⁴ Competency was decided by the trial judge witness by witness, and he questioned a child personally before allowing the testimony. Children did testify. A very young child's uncorroborated word carried little weight, but that was a question of weight, not competency. The colony had said much the same thing far earlier, directing that children be given such allowance in any cause, criminal or otherwise, as religion and reason require.¹²⁵

Women were competent witnesses throughout the period. What reached a married woman's evidence was the law on husbands and wives, which applied to both alike. Neither spouse testified to private conversations with the other, and neither could be compelled to testify against the other in a criminal case.¹²⁶

Sources and Where to Verify

Constitutions

• Massachusetts. Constitution of 1780, with the Declaration of Rights and the Articles of Amendment — including Part II, ch. VI, art. VI (continuing the earlier law in force), art. III of 1821 (the taxpaying voter qualification), arts. XXVIII and XXXI (veterans and the poll tax), art. XXXII (annulling the taxpaying qualification), and art. XLIV of 1915 (the income-tax power). Massachusetts General Court. https://malegislature.gov/laws/constitution (accessed 26 July 2026).

Codes and Compilations

• The General Laws of the Commonwealth of Massachusetts. Enacted 22 December 1920, to take effect 1 January 1921. Boston: Wright & Potter Printing Co., State Printers, 1921. 2 vols. The code in force for the last decades covered here. The derivation chain for every section is printed in the margin, which makes it the fastest route backward. Digital images. Internet Archive. Vol. 1 (chs. 1–117, including taxation), https://archive.org/details/generallawsofcom01mass; vol. 2 (chs. 118–280), https://archive.org/details/generallawsofcom02mass (accessed 26 July 2026).
• The General Laws of the Commonwealth of Massachusetts (current). Each section printed with its derivation. Massachusetts General Court. https://malegislature.gov/Laws/GeneralLaws (accessed 26 July 2026).
• The Revised Laws of the Commonwealth of Massachusetts. Enacted 21 November 1901, to take effect 1 January 1902. Boston: Wright & Potter Printing Co., State Printers, 1902. 2 vols. Digital images of vol. 2 (chs. 109–227). Internet Archive. https://archive.org/details/revisedlawsofcom1902mass (accessed 26 July 2026).
• The Public Statutes of the Commonwealth of Massachusetts. Enacted 19 November 1881, to take effect 1 February 1882. Boston: Rand, Avery, & Company, Printers to the Commonwealth, 1882. Carries the $5,000 widow's provision (ch. 124) and a glossary defining minor and infant. Digital images. Internet Archive. https://archive.org/details/publicstatutesof00mass (accessed 26 July 2026).
• The General Statutes of the Commonwealth of Massachusetts. Boston: William White, 1860. Digital images. Internet Archive. https://archive.org/details/generalstatuteso1860mass (accessed 26 July 2026).
• The Revised Statutes of the Commonwealth of Massachusetts. Boston: Dutton & Wentworth, 1836. The essential volume for the first half of the period: taxation, ch. 7; voters, ch. 3; deeds, ch. 59; dower and curtesy, ch. 60; descent, ch. 61; wills, ch. 62; distribution, ch. 64; marriage, ch. 75; void marriages, ch. 76; guardians, ch. 79; juries, ch. 95. Digital images. Internet Archive. https://archive.org/details/revisedstatuteso00mass (accessed 26 July 2026).

Session Laws and Colonial Records

• Acts and Resolves Passed by the General Court. Boston: Secretary of the Commonwealth. The State Library of Massachusetts run of the session laws, volume by volume. Read the pivotal acts here: the province acts for 1692–1714 (https://archive.org/details/actsresolvespass9214mass); the state tax acts of 1780–81 fixing the poll at sixteen (https://archive.org/details/actsresolvespass178081mass); the equal-distribution act of 1789, ch. 2 (https://archive.org/details/actsresolvespass178889mass); the valuation act of 1800, ch. 66, with the return form that splits polls at 21 (https://archive.org/details/actsresolvespass180001mass); the vital registration act of 1842, ch. 95 (https://archive.org/details/actsresolvespass183942mass); the act of 1862, ch. 184, on the Indians of the Commonwealth (https://archive.org/details/actsresolvespass1862mass); the Indian enfranchisement act of 1869, ch. 463 (https://archive.org/details/actsresolvespass1869mass); the juvenile offenders act of 1870, ch. 359 (https://archive.org/details/actsresolvespass1870mass); the collateral legacies and successions tax of 1891, ch. 425 (https://archive.org/details/actsresolvespass1891mass); the delinquent children act of 1906, ch. 413 (https://archive.org/details/actsresolvespass1906mass); the income tax act of 1916, ch. 269, in the volume that also prints the Constitution with the ratification date of every Article of Amendment (https://archive.org/details/actsresolvespass1916mass); and the women-jurors act of 1949, ch. 347 (https://archive.org/details/actsresolvespass1949mass). Accessed 26 July and 10 August 2026.
• Acts and Resolves Passed by the General Court of Massachusetts in the Years 1843, 1844, 1845. Boston: Dutton and Wentworth, Printers to the Commonwealth, 1845. Holds the Act of 1843, ch. 5, repealing the ban on interracial marriage, and the married women's property act of 1845, ch. 208. Digital images. Internet Archive. https://archive.org/details/actsresolvespass184345mass (accessed 26 July 2026).
• Acts and Resolves Passed by the General Court of Massachusetts. Boston: William White, Printer to the State, 1854. The bound volume covering 1854 and 1855; holds the married women's property act of 1855, ch. 304. Digital images. Internet Archive. https://archive.org/details/actsresolvespass185455mass (accessed 26 July 2026).
• The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay. Boston: Wright & Potter, Printers to the State, 1869–1922. 21 vols. Vol. 1 (1692–1714) holds the act of 1692–93, ch. 14, on intestate estates; the tax acts of 1692–93, chs. 4 and 41, which set the poll at sixteen; the marriage act of 1692–93, ch. 25; and the act of 1705–6, ch. 10, on marriage between the races. Digital images of vol. 1. Internet Archive. https://archive.org/details/actsresolvespass9214mass (accessed 26 July 2026).
• Whitmore, William H., editor. The Colonial Laws of Massachusetts, Reprinted from the Edition of 1660, with the Supplements to 1672; Containing Also, the Body of Liberties of 1641. Boston: Rockwell and Churchill, City Printers, 1889. The Massachusetts Bay codes in one volume, and the place to look for a Bay Colony ancestor before 1692. Digital images. Internet Archive. https://archive.org/details/coloniallawsofma1660mass (accessed 10 August 2026).
• The Massachusetts Body of Liberties (1641). The first code in New England: § 11 (making a will), § 14 (conveyances by married women and children), § 52 (children in court), § 53 (age of discretion for land, votes, and verdicts), §§ 81–84 (inheritance, marriage, and orphans), § 91 (bond slavery). Digital text. Hanover Historical Texts Project, Hanover College. https://history.hanover.edu/texts/masslib.html (accessed 26 July 2026).
• Brigham, William, superintendent of publication. The Compact, with the Charter and Laws of the Colony of New Plymouth. Boston: Dutton and Wentworth, Printers to the State, 1836. The Plymouth laws in full: adulthood and choice of guardian (p. 255); marriage (pp. 272–73); land recording and a wife's part (p. 43); intestate estates (pp. 281–82). Digital images. Internet Archive. https://archive.org/details/compactwithchart00newp (accessed 26 July 2026).
• Massachusetts State Archives. Acts and Resolves of Massachusetts, 1692–1959, and the State Library compilations collection. https://archives.lib.state.ma.us/handle/2452/124177 (accessed 26 July 2026).

Court Cases

• Massachusetts decisions carry two numbers, because the older volumes were cited by the reporter's own surname — Pickering, Metcalf, Cushing, Gray, Allen — before being renumbered into the continuous Massachusetts Reports. So 1 Gray 119 and 67 Mass. 119 are the same page of the same case, and either number will find it.
• Commonwealth v. Green. 2 Pick. 380 (1824). The Massachusetts touchstone for the common-law treatment of a child defendant, quoted and cited in Commonwealth v. a Juvenile, 399 Mass. 451 (1987). Justia. https://law.justia.com/cases/massachusetts/supreme-court/1987/399-mass-451-2.html (accessed 10 August 2026).
• Commonwealth v. Jennison. (1783). The Quock Walker case. https://teachingamericanhistory.org/document/commonwealth-v-nathaniel-jennison/ (accessed 26 July 2026).
• Commonwealth v. Munson. 127 Mass. 459 (1879). http://masscases.com/cases/sjc/127/127mass459.html (accessed 26 July 2026).
• Commonwealth v. Welosky. 276 Mass. 398 (1931), cert. denied, 284 U.S. 684 (1932). http://masscases.com/cases/sjc/276/276mass398.html (accessed 26 July 2026).
• Oliver v. Houdlet. 13 Mass. 237 (1816). In Reports of Cases Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts, vol. 13, reported by Dudley Atkins Tyng. Boston: Little, Brown and Company, 1864. Digital images. Internet Archive. https://archive.org/details/reportcasesargu02courgoog (accessed 26 July 2026).
• Parton v. Hervey. 67 Mass. (1 Gray) 119 (1854). http://masscases.com/cases/sjc/67/67mass119.html (accessed 26 July 2026).

Secondary and Reference Works

• Boston Public Library. "Court & Misc. Government Records." Genealogy: Records & Resources. What probate, town, and tax records contain and where they were filed. https://guides.bpl.org/genrecords/court (accessed 26 July 2026).
• Commonwealth of Massachusetts. "The Massachusetts Constitution and the Abolition of Slavery." The Quock Walker cases and the 1780 Declaration of Rights. https://www.mass.gov/guides/massachusetts-constitution-and-the-abolition-of-slavery (accessed 26 July 2026).
• Earle, John Milton. Report to the Governor and Council concerning the Indians of the Commonwealth. 1861. A community-by-community survey listing individuals by name. Digital images. Digital Commonwealth. https://www.digitalcommonwealth.org/collections/commonwealth:mc87xc666 (accessed 26 July 2026).
• FamilySearch. "Massachusetts Probate Records." The contents of a probate file — wills, guardianships, bonds, petitions, accounts, inventories, administrations, and distributions — and their custody in the county courthouses. https://www.familysearch.org/en/wiki/Massachusetts_Probate_Records (accessed 26 July 2026).
• Massachusetts Department of Youth Services. "Juvenile Justice Legal Issues." The 1906 delinquency code and the 7-to-17 jurisdiction. https://www.mass.gov/info-details/juvenile-justice-legal-issues (accessed 26 July 2026).
• Massachusetts Trial Court Law Libraries. Research guides on marriage, on wills and estates, and on the history of the jury system. https://www.mass.gov/info-details/massachusetts-law-about-marriage (accessed 26 July 2026).
• Moulton, Amber D. The Fight for Interracial Marriage Rights in Antebellum Massachusetts. Cambridge: Harvard University Press, 2015. The 1705 ban, its 1786 expansion, and the 1843 repeal. https://www.hup.harvard.edu/books/9780674967625 (accessed 26 July 2026).
• National Park Service. "Slavery and the Law in Early Massachusetts." The 1641 Body of Liberties provision and its later extension. https://www.nps.gov/articles/000/slavery-and-law-in-early-ma.htm (accessed 26 July 2026).
• Office of Jury Commissioner. "Women and the Courts in Massachusetts." Dates the first women jurors to 1950 and the Uxbridge summonses to 1922. https://www.mass.gov/service-details/ojc-poster-women-and-the-courts (accessed 26 July 2026).
• University of Massachusetts Amherst Libraries. "Massachusetts Probate Records." Genealogy. Published county probate indexes and what a probate packet yields. https://guides.library.umass.edu/c.php?g=672399&p=4737799 (accessed 26 July 2026).
• U.S. Women's Bureau. The Legal Status of Women in the United States of America: Report for Massachusetts. Bulletin No. 157-20. Law stated as of about 1 January 1938, with a 1953 addendum. Series index. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/title/legal-status-women-united-states-america-5430 (accessed 26 July 2026).

Citations

1. Province charter of 1691, effective 1692; the intestacy act is 1692–93, ch. 14. The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay (Boston: Wright & Potter, Printers to the State, 1869–1922), 21 vols., vol. 1 (1692–1714); digital images, Internet Archive (https://archive.org/details/actsresolvespass9214mass : accessed 26 July 2026) ↩
2. For probate in the civil courts and public registration of deeds see The Revised Statutes of the Commonwealth of Massachusetts (Boston: Dutton & Wentworth, 1836), ch. 83 (jurisdiction of the probate courts) and ch. 59, §§ 1, 28 (deeds acknowledged and recorded in the registry of deeds for the county where the land lies); digital images, Internet Archive (https://archive.org/details/revisedstatuteso00mass : accessed 26 July 2026) ↩
3. William Brigham, superintendent of publication, The Compact, with the Charter and Laws of the Colony of New Plymouth (Boston: Dutton and Wentworth, Printers to the State, 1836), published under the resolve of 5 April 1836; digital images, Internet Archive (https://archive.org/details/compactwithchart00newp : accessed 26 July 2026) ↩
4. Brigham, Compact, with the Charter and Laws of the Colony of New Plymouth, pp. 43, 255, 272–73, 281–82 ↩
5. The Massachusetts Body of Liberties (1641), § 11: every person of 21 and of right understanding has full power to make a will and other lawful conveyances of land and estate; digital text, Hanover Historical Texts Project, Hanover College (https://history.hanover.edu/texts/masslib.html : accessed 26 July 2026) ↩ ↩
6. Body of Liberties (1641), § 53: the age of discretion for passing away land, and for giving votes, verdicts, or sentence in any civil court, is 21 ↩ ↩ ↩ ↩ ↩
7. Body of Liberties (1641), § 14: a conveyance of land or other estate by a married woman, a child under age, or a person of unsound mind is good only if ratified by the General Court ↩ ↩
8. Body of Liberties (1641), §§ 81–82: on an intestate death the eldest son takes a double portion of the whole estate, real and personal, unless the General Court orders otherwise; where there is no son the daughters inherit as coparceners ↩ ↩
9. Body of Liberties (1641), § 84: an orphan not placed by the parents in their lifetime may not be disposed of by kindred, executor, township, or church, nor by the orphan, without the consent of a court at which two Assistants at least are present ↩ ↩
10. Body of Liberties (1641), § 91: bond slavery permitted only for lawful captives taken in just wars and for those who sell themselves or are sold ↩ ↩
11. The Massachusetts Bay codes. The Colonial Laws of Massachusetts, Reprinted from the Edition of 1660, with the Supplements to 1672; Containing Also, the Body of Liberties of 1641, edited by William H. Whitmore (Boston: Rockwell and Churchill, City Printers, 1889); digital images, Internet Archive (https://archive.org/details/coloniallawsofma1660mass : accessed 10 August 2026). The 1641 text is quoted here from the transcription at Hanover Historical Texts Project, Hanover College (https://history.hanover.edu/texts/masslib.html : accessed 10 August 2026). The colony’s own printing of 1648, The Book of the General Lawes and Libertyes, survives in a single copy and is reproduced in the 1660 reprint above ↩
12. Province Acts 1692–93, ch. 14 ↩ ↩
13. Act of 1789, ch. 2 (May session), “An Act directing an equal distribution of the estates of intestates,” approved 8 June 1789, operative for deaths on or after 1 January 1790. Its preamble recites the double-portion exception in the Act of 1783, ch. 36, and directs that real and personal estate alike descend in equal shares among the children and those representing a deceased child. Acts and Resolves Passed by the General Court, vol. for 1788–89; digital images, Internet Archive (https://archive.org/details/actsresolvespass178889mass : accessed 26 July 2026) ↩ ↩
14. Act of 1834, ch. 177, § 2; the rule running through the Revised Statutes of 1836, ch. 75, §§ 7–8, 15, the General Statutes of 1860, ch. 106, § 13, the Public Statutes of 1882, ch. 145, § 6, the Revised Laws of 1902, ch. 151, § 7, and the General Laws of 1921, ch. 207, § 7 ↩
15. Act of 1842, ch. 95, “An Act relating to the Registry and Returns of Births, Marriages, and Deaths,” approved 3 March 1842, requiring the clerk of every town and city to send the secretary of the Commonwealth a certified copy of the town’s record of births, marriages, and deaths every May, on blank forms the secretary supplied. Acts and Resolves Passed by the General Court, vol. for 1839–42; digital images, Internet Archive (https://archive.org/details/actsresolvespass183942mass : accessed 10 August 2026) ↩ ↩
16. Act of 1843, ch. 5, “An Act relating to Marriages between individuals of certain races,” approved 25 February 1843. The whole act is one sentence, repealing so much of ch. 75, § 5 and ch. 76, § 1 of the Revised Statutes as related to marriages between white persons and persons of African or Native descent. The prohibition accordingly appears at Revised Statutes of 1836, ch. 75, § 5 and is absent from the General Statutes of 1860 and every later code. Acts and Resolves Passed by the General Court of Massachusetts in the Years 1843, 1844, 1845 (Boston: Dutton and Wentworth, Printers to the Commonwealth, 1845); digital images, Internet Archive (https://archive.org/details/actsresolvespass184345mass : accessed 26 July 2026) ↩ ↩
17. Act of 1845, ch. 208 (property conveyed by deed or bequest to married women; married women may hold property and sue and be sued); Act of 1855, ch. 304, “An Act to protect the Property of Married Women.” Acts and Resolves Passed by the General Court of Massachusetts (Boston: William White, Printer to the State, 1854), the bound volume covering 1854 and 1855; digital images, Internet Archive (https://archive.org/details/actsresolvespass185455mass : accessed 26 July 2026), and the 1843–1845 volume cited above ↩ ↩
18. Act of 1894, ch. 401, § 1; the rule running through the Revised Laws of 1902, ch. 151, § 19, and the General Laws of 1921, ch. 207, § 24 ↩
19. Act of 1906, ch. 413, “An Act relative to Delinquent Children,” §§ 1–3; digital images of the session-law volume for 1906, Internet Archive (https://archive.org/details/actsresolvespass1906mass : accessed 26 July 2026) ↩ ↩
20. Brigham, Compact, with the Charter and Laws of the Colony of New Plymouth, p. 255, § 17 ↩ ↩
21. Revised Statutes of 1836, ch. 62, §§ 1, 5, using “full age” for the same thing ↩
22. The glossary printed at the end of the Public Statutes of 1882 defines a minor as a person, male or female, who has not reached 21, and notes that minors are also called infants in law ↩
23. Oliver v. Houdlet, 13 Mass. 237, 239–240 (1816). Wilde, J., for the court: infancy is a personal privilege of which none but the infant can take advantage, so his contracts, although voidable by him, bind the party of full age; and a guardian may not undo a contract from which the child derived a benefit. Reports of Cases Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts, vol. 13, containing the cases for the year 1816, reported by Dudley Atkins Tyng (Boston: Little, Brown and Company, 1864), digital images, Internet Archive (https://archive.org/details/reportcasesargu02courgoog : accessed 26 July 2026) ↩ ↩
24. The General Laws of the Commonwealth of Massachusetts (Boston: Wright & Potter Printing Co., State Printers, 1921), 2 vols., ch. 207, § 9: a marriage solemnized when the male was under 14 or the female under 12 is void, without any decree, if the parties separate during that nonage and do not afterward live together; digital images of vol. 2, Internet Archive (https://archive.org/details/generallawsofcom02mass : accessed 26 July 2026). The section prints its own derivation: General Statutes of 1860, ch. 107, § 3; Public Statutes of 1882, ch. 145, § 8; Revised Laws of 1902, ch. 151, § 9 ↩
25. Parton v. Hervey, 67 Mass. (1 Gray) 119 (1854); Massachusetts Trial Court Law Libraries (http://masscases.com/cases/sjc/67/67mass119.html : accessed 26 July 2026) ↩
26. General Laws of 1921, ch. 207, § 24, carried from the Act of 1894, ch. 401, § 1 ↩
27. General Laws of 1921, ch. 207, § 25; carried from the Revised Laws of 1902, ch. 151, § 20 ↩
28. Brigham, Compact, with the Charter and Laws of the Colony of New Plymouth, p. 272, § 3 ↩
29. Body of Liberties (1641), § 83: a child whose parents unreasonably deny a timely marriage may complain to authority for redress ↩
30. Province Acts 1692–93, ch. 25, “An Act for the Orderly Consummating of Marriages,” § 1: a justice of the peace in his own county, or a settled minister in his own town, may solemnize a marriage between persons who may lawfully marry, having the consent of those whose immediate care and government they are under, and the intention first published either by asking the banns at three public meetings in both towns or by posting the names for fourteen days, with a certificate of publishment from the town clerk or constable; § 3 requires the officiant to keep a register and return it quarterly to the clerk of the sessions of the peace ↩ ↩
31. Revised Statutes of 1836, ch. 75, § 15, derived from the Act of 1834, ch. 177, § 2; General Laws of 1921, ch. 207, § 7 ↩
32. Brigham, Compact, with the Charter and Laws of the Colony of New Plymouth, pp. 272–73, § 4 ↩ ↩
33. Revised Statutes of 1836, ch. 75, §§ 7–9 ↩ ↩
34. Revised Statutes of 1836, ch. 75, §§ 17–18, derived from the Act of 1834, ch. 177, § 5 ↩
35. Revised Statutes of 1836, ch. 75, §§ 10–14 ↩
36. Revised Statutes of 1836, ch. 75, § 16 ↩
37. Commonwealth v. Munson, 127 Mass. 459 (1879); Massachusetts Trial Court Law Libraries (http://masscases.com/cases/sjc/127/127mass459.html : accessed 26 July 2026) ↩
38. Revised Statutes of 1836, ch. 75, § 6; General Laws of 1921, ch. 207, § 10 ↩
39. General Laws of 1921, ch. 207, §§ 11–13, enacted 1913; repealed by the Acts of 2008, ch. 216 ↩
40. Revised Statutes of 1836, ch. 75, §§ 1–2; General Laws of 1921, ch. 207, §§ 1–3 ↩
41. Revised Statutes of 1836, ch. 75, § 3 ↩
42. General Laws of 1921, ch. 207, § 8 ↩
43. Revised Statutes of 1836, ch. 75, § 4, which excepts a former marriage dissolved for some cause other than the adultery of the person contracting the second one; General Laws of 1921, ch. 207, § 4 ↩
44. Revised Statutes of 1836, ch. 75, § 5; General Laws of 1921, ch. 207, § 5 ↩
45. Province Laws 1705–6, ch. 10, “An Act for the Better Preventing of a Spurious and Mixt Issue,” § 4 (barring marriage between a white person and a person of African descent, and barring any officiant from joining them) and § 5 (no enslaver to unreasonably deny marriage between the man he held and a woman of the same nation); Acts and Resolves of the Province, vol. 1, p. 578. Carried forward by the Act of 1786, ch. 3, and the Revised Statutes of 1836, ch. 75, § 5 ↩ ↩
46. Revised Statutes of 1836, ch. 76, § 21 ↩
47. Revised Statutes of 1836, ch. 59, § 1: land may be conveyed by deed executed by any person having authority to convey it, acknowledged and recorded as the chapter directs, and without any other act or ceremony whatsoever ↩
48. No Massachusetts statute of the period imposed a racial qualification on holding or conveying land. The conveyancing chapter is written in general terms — Revised Statutes of 1836, ch. 59, § 1, “any person having authority to convey” — and the exceptions listed in that chapter and in ch. 61 (descent) are about age, coverture, and unsound mind, not race. Compare Massachusetts Constitution of 1780, Declaration of Rights, art. I; Massachusetts General Court (https://malegislature.gov/laws/constitution : accessed 26 July 2026) ↩
49. Revised Statutes of 1836, ch. 60, § 14 (alienage not to bar a widow’s dower), with the related provisions on an alien’s distributive share and appointment as administrator; General Laws of 1921, ch. 184, § 1, headed “Aliens may take and convey real property,” carried from the acts of 1852, chs. 29 and 86 ↩
50. Brigham, Compact, with the Charter and Laws of the Colony of New Plymouth, p. 43, headed “Sale of Lands Acknowledged before One of Assistants” ↩
51. Revised Statutes of 1836, ch. 59, §§ 1, 12–13, 22 ↩
52. Revised Statutes of 1836, ch. 59, §§ 14–15, 21 ↩
53. Revised Statutes of 1836, ch. 59, § 2: a husband and wife may by their joint deed convey the wife’s real estate as she might have done alone if unmarried, but she is not bound by the covenants in it ↩
54. Public Statutes of 1882, ch. 124, § 1 ↩
55. Revised Statutes of 1836, ch. 60, § 1: “Every woman shall be entitled to her dower at common law, in the lands of her husband”; the rule running through the province act of 1692–93, ch. 14, § 1, the acts of 1783, ch. 36, §§ 4–5, and 1805, ch. 90, § 1, the General Statutes of 1860, ch. 90, § 1, the Public Statutes of 1882, ch. 124, § 1, and the General Laws of 1921, ch. 189, § 1 ↩ ↩
56. Brigham, Compact, with the Charter and Laws of the Colony of New Plymouth, p. 43, headed “A Wives Part of Lands and Goods” ↩
57. Revised Statutes of 1836, ch. 60, § 7: dower barred where the wife joins in her husband’s conveyance, or releases her claim by a later deed executed jointly with him ↩ ↩
58. General Laws of 1921, ch. 189, § 1, requiring the surviving husband or wife to file the claim in the registry of probate within six months after approval of the executor’s or administrator’s bond, otherwise the estate is held to be waived; the same section abolishes curtesy as it stood before 1 January 1902 ↩ ↩
59. Revised Statutes of 1836, ch. 60, § 12 ↩
60. Revised Statutes of 1836, ch. 60, § 16 ↩
61. Revised Statutes of 1836, ch. 60, § 17 ↩
62. General Laws of 1921, ch. 189, § 1, giving the husband one third of all land owned by the wife at any time during the marriage; the statutory curtesy enters with the Act of 1902, ch. 482, § 1 ↩
63. Massachusetts General Laws, ch. 190B, § 2-112, effective 2012; Massachusetts General Court (https://malegislature.gov/Laws/GeneralLaws : accessed 26 July 2026) ↩
64. Act of 1851, ch. 340, establishing the estate of homestead; the exemption was fixed at $800 by the Act of 1857, ch. 298, § 1. The rule ran through the General Statutes of 1860, ch. 104, §§ 1, 7–8, 12, the Public Statutes of 1882, ch. 123, the Revised Laws of 1902, ch. 131, and the General Laws of 1921, ch. 188, §§ 1, 7, which require the wife to join in the deed to release the homestead and continue it for the widow and minor children ↩
65. Revised Statutes of 1836, ch. 79, §§ 1, 5, for the guardian’s appointment and bond; General Laws of 1921, ch. 202, § 5 (guardian licensed to sell the minor’s real estate) and § 14 (sale at public auction on the petitioner’s request), carried from the province act of 1696, ch. 10 ↩
66. Commonwealth v. Jennison (1783), the last of the Quock Walker cases; no contemporary reporter citation exists, and the holding is known from Chief Justice Cushing’s charge to the jury — Teaching American History (https://teachingamericanhistory.org/document/commonwealth-v-nathaniel-jennison/ : accessed 26 July 2026); Massachusetts Constitution of 1780, Declaration of Rights, art. I ↩
67. Act of 1862, ch. 184, “An Act concerning the Indians of the Commonwealth,” approved 30 April 1862. § 1 places all Indians and their descendants on the same legal footing as other inhabitants except those supported by the state and those living on the plantations of Chappaquiddick, Christiantown, Gay Head, Marshpee, Herring Pond, Fall River, and Dudley; § 2 lets an excepted person record a desire for citizenship with the town clerk and become a citizen on paying a poll tax; § 5 requires the clerks of the Marshpee and Gay Head districts and the guardians of the other tribes to keep a register of members, of all marriages, births, and deaths, and of the land of each plantation and every change in its holding. Acts and Resolves Passed by the General Court, vol. for 1862; digital images, Internet Archive (https://archive.org/details/actsresolvespass1862mass : accessed 10 August 2026) ↩
68. Act of 1869, ch. 463, “An Act to enfranchise the Indians of the Commonwealth,” § 1 and the sections following on Indian lands; digital images of the session-law volume for 1869, Internet Archive (https://archive.org/details/actsresolvespass1869mass : accessed 26 July 2026) ↩
69. Revised Statutes of 1836, ch. 61, § 1; General Laws of 1921, ch. 190, § 3; the rule running through the province act of 1692–93, ch. 14, § 1, the province acts of 1710–11, ch. 2, § 1, 1719–20, ch. 10, § 4, and 1734–35, ch. 16, and the acts of 1783, ch. 36, §§ 1–2, 1789, ch. 2, § 1, and 1805, ch. 90, §§ 1–2 ↩ ↩
70. Revised Statutes of 1836, ch. 64, § 1, the shares at Fourthly through Eightly, and the widow’s apparel and provision of necessaries at Firstly, allowed under ch. 65; derived from the acts of 1805, ch. 90, § 1, and 1833, ch. 40 ↩ ↩ ↩
71. Brigham, Compact, with the Charter and Laws of the Colony of New Plymouth, pp. 281–82, §§ 4–6 ↩
72. Revised Statutes of 1836, ch. 61, § 6, with §§ 7–11 on how an advancement is valued and charged ↩
73. Public Statutes of 1882, ch. 124, § 3 ↩
74. General Laws of 1921, ch. 190, § 1 ↩
75. General Laws of 1921, ch. 191, § 15 ↩
76. Revised Statutes of 1836, ch. 60, §§ 8–11 ↩
77. Revised Statutes of 1836, ch. 79, §§ 1, 5 ↩
78. Revised Statutes of 1836, ch. 79, § 2, derived from the Act of 1783, ch. 38, § 1; General Laws of 1921, ch. 201, § 2 ↩
79. Revised Statutes of 1836, ch. 79, § 3 ↩
80. Revised Statutes of 1836, ch. 79, § 4 ↩
81. General Laws of 1921, ch. 201, § 3; the rule running through the Revised Statutes of 1836, ch. 79, § 6, the General Statutes of 1860, ch. 109, § 8, the Act of 1877, ch. 128, the Public Statutes of 1882, ch. 139, § 5, the Act of 1898, ch. 138, and the Revised Laws of 1902, ch. 145, § 5 ↩
82. Revised Statutes of 1836, ch. 61, § 2, derived from the Act of 1828, ch. 139 ↩
83. Revised Statutes of 1836, ch. 61, § 3 ↩
84. General Laws of 1921, ch. 190, § 5; the rule running through the Revised Statutes of 1836, ch. 61, § 2, the Act of 1851, ch. 211, the General Statutes of 1860, ch. 91, § 2, the Public Statutes of 1882, ch. 125, § 3, and the Revised Laws of 1902, ch. 133, § 3 ↩
85. Revised Statutes of 1836, ch. 61, § 4; General Laws of 1921, ch. 190, § 7; the rule running through the Act of 1832, ch. 147, the Act of 1853, ch. 253, the General Statutes of 1860, ch. 91, § 4, and the Public Statutes of 1882, ch. 125, § 5 ↩
86. General Laws of 1921, ch. 273, “Desertion, Non-Support and Bastardy,” § 15, an adjudication of paternity being conclusive; carried from the Act of 1785, ch. 66, § 2 ↩
87. Revised Statutes of 1836, ch. 62, § 1, derived from the Act of 1783, ch. 24, § 1 ↩
88. Revised Statutes of 1836, ch. 62, § 5 ↩
89. General Laws of 1921, ch. 191, § 1; the rule running through 29 Car. II, ch. 3, § 5 (the English Statute of Frauds), the province acts of 1692–93, ch. 14, § 1 and ch. 15, § 3, the Act of 1783, ch. 24, §§ 1–2, the Revised Statutes of 1836, ch. 62, §§ 1, 5–6, and the Public Statutes of 1882, ch. 127, § 1 ↩
90. Revised Statutes of 1836, ch. 62, § 6, derived from the Act of 1783, ch. 24, § 2; General Laws of 1921, ch. 191, § 1. Nothing but a spoken will by a soldier or mariner is excepted, so a will in the testator’s own handwriting needed the same three witnesses as any other ↩
91. Revised Statutes of 1836, ch. 62, § 6; General Laws of 1921, ch. 191, § 3 ↩
92. Revised Statutes of 1836, ch. 62, § 8; General Laws of 1921, ch. 191, § 2 ↩
93. Revised Statutes of 1836, ch. 62, § 7 ↩
94. General Laws of 1921, ch. 193, § 8; the rule running through the Act of 1783, ch. 24, § 17, the Revised Statutes of 1836, ch. 63, § 6, the General Statutes of 1860, ch. 93, § 7, the Public Statutes of 1882, ch. 130, § 7, and the Revised Laws of 1902, ch. 137, § 7. The same sections use “executor or executrix,” so the age was 21 for a woman as well as a man ↩
95. General Laws of 1921, ch. 192, § 6 ↩
96. Revised Statutes of 1836, ch. 64, § 17 ↩
97. Revised Statutes of 1836, ch. 7, § 4 ↩ ↩
98. Act of 1891, ch. 425, “An Act imposing a Tax on Collateral Legacies and Successions,” now General Laws of 1921, ch. 65; digital images of the session-law volume for 1891, Internet Archive (https://archive.org/details/actsresolvespass1891mass : accessed 26 July 2026). Massachusetts Constitution, Articles of Amendment, art. XLIV (1915), granting the power to tax income, exercised by the Act of 1916, ch. 269, now General Laws of 1921, ch. 62; digital images of the session-law volume for 1916, Internet Archive (https://archive.org/details/actsresolvespass1916mass : accessed 26 July 2026) ↩
99. Province Acts 1692–93, ch. 4, “An Act for the Granting to Their Majesties an Assessment upon Polls and Estates,” requiring a true list of the male persons in each town from sixteen years old and upwards, and ch. 41 of the same session, rating each male person of sixteen and upwards, except those the law excepts, at ten shillings by the poll, with an exemption for those excused for age and infirmity ↩
100. The state tax acts of 1780–81 direct the assessors to assess all the male polls above the age of sixteen, expressly including Black and mixed-race men, those under the government of a master or mistress being taxed to the master; digital images, Internet Archive (https://archive.org/details/actsresolvespass178081mass : accessed 26 July 2026). The Act of 1800, ch. 66, “An Act for ascertaining the rateable property within this Commonwealth,” requires a list of all male polls of sixteen and upwards distinguishing those from sixteen to twenty-one from those of twenty-one and upwards, the annexed return form carrying separate columns for each band and for male polls not rateable, supported and not supported by the town; digital images, Internet Archive (https://archive.org/details/actsresolvespass180001mass : accessed 26 July 2026) ↩ ↩
101. Act of 1830, ch. 131, § 2, carried into the Revised Statutes of 1836, ch. 7, § 1, taxing every male inhabitant between the ages of sixteen and seventy, whether a citizen of the United States or an alien, with the derivation “1830, 131, § 2” printed in that section’s margin. No upper age appears in the province acts or in the state acts of 1780–81 and 1800–01 ↩
102. General Statutes of 1860, ch. 11, § 1, assessing the poll tax on every male inhabitant above the age of twenty, with no upper limit; the derivation printed at Public Statutes of 1882, ch. 11, § 1 carries that section forward with no intervening amendment ↩
103. Public Statutes of 1882, ch. 11, § 1, extending the poll tax to every female citizen who complies with the registration provision for the school-committee vote in ch. 6, § 9; derived, as its margin shows, from the Act of 1879, ch. 223, § 2 ↩
104. Revised Statutes of 1836, ch. 7, § 6; General Statutes of 1860, ch. 11, § 6 ↩
105. Revised Statutes of 1836, ch. 7, § 5, seventh; General Statutes of 1860, ch. 11, § 5, twelfth ↩
106. Revised Statutes of 1836, ch. 7, § 5, eighth ↩
107. Revised Statutes of 1836, ch. 3, §§ 1–3, “Every male citizen of twenty one years of age and upwards, (excepting paupers and persons under guardianship,)” with the derivation “1822, 104, § 1” printed in the margin, and resting on art. III of the Amendments to the Constitution (1821) ↩
108. Massachusetts Constitution, Articles of Amendment, art. XXXII, annulling the taxpaying clause of art. III of the Amendments (1821); the annulled words are those printed at Revised Statutes of 1836, Constitution, Amendments, art. 3. Massachusetts General Court (https://malegislature.gov/laws/constitution : accessed 26 July 2026). Art. XXXII was ratified 3 November 1891, per the list of ratification dates printed with the Constitution in the session-law volume for 1916 (https://archive.org/details/actsresolvespass1916mass : accessed 26 July 2026). Compare art. XXVIII (ratified 8 November 1881), as amended by art. XXXI (ratified 4 November 1890), under which a man who had served in the army or navy in time of war and been honorably discharged kept his vote despite non-payment of a poll tax ↩
109. Revised Statutes of 1836, ch. 95, § 1: all persons qualified to vote in the choice of representatives in the General Court are liable to be drawn as jurors, except as the chapter provides ↩
110. General Laws of 1921, ch. 234, § 1 ↩
111. Revised Statutes of 1836, ch. 95, § 26 ↩
112. Revised Statutes of 1836, ch. 95, §§ 4–6: the selectmen prepare, at least once in three years, a list of inhabitants not exempted whom they think well qualified to serve, being persons of good moral character, of sound judgment, and free from all legal exceptions, the list to hold between one name in every hundred inhabitants and one in every sixty; the town may add or strike names ↩
113. Revised Statutes of 1836, ch. 95, §§ 2–3, the shorter list; General Laws of 1921, ch. 234, § 1, the longer one ↩
114. Commonwealth v. Welosky, 276 Mass. 398 (1931), cert. denied, 284 U.S. 684 (1932); Massachusetts Trial Court Law Libraries (http://masscases.com/cases/sjc/276/276mass398.html : accessed 26 July 2026) ↩
115. Act of 1949, ch. 347, “An Act regulating the preparation of jury lists and making women, with certain exceptions, liable to serve as jurors in certain cases,” approved 26 May 1949; § 1, replacing General Laws (Ter. Ed.), ch. 234, § 1 as amended by the Act of 1936, ch. 25; § 5 fixed the effective date at 1 July 1950; digital images of the session-law volume for 1949, Internet Archive (https://archive.org/details/actsresolvespass1949mass : accessed 26 July 2026) ↩
116. Office of Jury Commissioner, “Women and the Courts in Massachusetts,” which dates the first women jurors to 1950 and the Uxbridge summonses to 1922; Mass.gov (https://www.mass.gov/service-details/ojc-poster-women-and-the-courts : accessed 26 July 2026) ↩
117. Act of 1949, ch. 347, § 3, amending General Laws (Ter. Ed.), ch. 234, § 4 ↩
118. Act of 1949, ch. 347, § 1 ↩
119. Act of 1949, ch. 347, § 2, adding General Laws, ch. 234, § 1A ↩
120. The jury statute keyed service to the vote — Revised Statutes of 1836, ch. 95, § 1 — and the voter qualification reached “every male citizen of twenty one years of age and upwards” with no racial words: Revised Statutes of 1836, ch. 3, §§ 1–3. The witness statute was likewise general: General Laws of 1921, ch. 233, § 20. Massachusetts had abolished slavery by 1783 and imposed no racial bar on voting, so no statute of this period excluded a Black man from either role ↩
121. Massachusetts Constitution of 1780, Part II, ch. VI, art. VI, continuing in force all laws previously adopted, used, and approved in the province, colony, or state, which carried the English common law into the Commonwealth; Massachusetts General Court (https://malegislature.gov/laws/constitution : accessed 26 July 2026). The common-law rule is that a child under 7 could not be convicted, that between 7 and 14 the prosecution had to show the child knew the act was wrong, and that from 14 the child answered as an adult. Massachusetts fixed no minimum age by statute before 1906 ↩
122. Commonwealth v. Green, 2 Pick. 380, 381–382 (1824), the Massachusetts touchstone for the common-law treatment of a child defendant: a boy under 14 could still be tried for assault with intent, even though the rule of the common law treated him as not punishable for the completed felony — a rule the court itself called artificial. The Supreme Judicial Court later noted that it had never directly decided whether that rule applied in the Commonwealth. Commonwealth v. a Juvenile, 399 Mass. 451, 452 (1987), which quotes and cites Green; Justia (https://law.justia.com/cases/massachusetts/supreme-court/1987/399-mass-451-2.html : accessed 10 August 2026). So the old presumption should not be read too firmly into any particular Massachusetts prosecution ↩
123. Act of 1870, ch. 359, “An Act relating to the State Visiting Agency and Juvenile Offenders,” § 7: where a boy or girl under 16 was brought before a trial justice or a police or municipal court on a complaint for an offense not punishable by imprisonment for life, the fact was endorsed on the warrant and the child was taken before the judge of probate, who had jurisdiction; §§ 8–12 required notice to the state visiting agent and governed the disposition of the child. Acts and Resolves Passed by the General Court, vol. for 1870; digital images, Internet Archive (https://archive.org/details/actsresolvespass1870mass : accessed 10 August 2026) ↩
124. General Laws of 1921, ch. 233, § 20: any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, subject only to the exceptions that follow; carried from the acts of 1852, ch. 312, § 60, and 1857, ch. 305, § 1, through the General Statutes of 1860, ch. 131, §§ 13, 14, 16, the Public Statutes of 1882, ch. 169, § 18, and the Revised Laws of 1902, ch. 175, § 20 ↩
125. Body of Liberties (1641), § 52: children, and others named with them, are to have such allowance in any cause, criminal or otherwise, as religion and reason require ↩
126. General Laws of 1921, ch. 233, § 20, First and Second: neither husband nor wife to testify as to private conversations with the other, and neither compelled to testify in a criminal proceeding against the other, with the exception for prosecutions under ch. 273, §§ 1–10 ↩

Note: This law guide was created with assistance from multiple AI tools. Though a diligent effort was made to ensure the accuracy of the information provided, there may be unintentional errors. It's important to check the primary sources as needed to ensure accuracy.