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The Common Law of Colonial AmericaVolume I: The Chesapeake and New England 1607-1660$
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William E. Nelson

Print publication date: 2008

Print ISBN-13: 9780195327281

Published to Oxford Scholarship Online: September 2008

DOI: 10.1093/acprof:oso/9780195327281.001.0001

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Popular Power and the Rule of Law in Massachusetts

Popular Power and the Rule of Law in Massachusetts

(p.67) 4 Popular Power and the Rule of Law in Massachusetts
The Common Law of Colonial America

William E. Nelson (Contributor Webpage)

Oxford University Press

By the mid 1630s, the charter of Massachusetts Bay had been interpreted to balance aristocratic power located in the Court of Assistants and popular power centered in local communities through the restraint of both. Flexible judicial application of common law rules was balanced, for example, by codification of rules in the 1641 Body of Liberties and the Code of 1648. Even more important was the role of juries, which could not be compelled to determine cases contrary to their conscience. When juries and judges disagreed at trial, cases were appealed, ultimately to the General Court, where a series of shifting compromises balanced the power of local communities in the lower chamber against the power of the aristocracy represented in the upper house.

Keywords:   aristocratic power, Body of Liberties, Code of 1648, common law, Court of Assistants, General Court, juries, Massachusetts, popular power

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