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CHAPTER TWENTY-THREE THE EXIGENCY OF RIGHTS Just as it contained fundamental rights, so also eighteenth-century British constitutional law contained their opposites, fundamental grievances , and these too were part of the American constitutional case leading to the Revolution. To say some rights were fundamental is not to say that there was a scale of importance to rights on which some were considered more fundamental or "higher" than others. The distinction, rather, was that some rights were less imperiled than others and that threats to rights were not all the same. The colonists would never have rebelled over denial of petition if that was the only right taken from them. Denial of the right to petition would not have aroused concern when the public press was uncensored and every petition was published. People knew that petitions were being read and, therefore, whether or not petitions were officially received, their chief function was served. The right to be taxed only by consent was different. It was too fundamental in British constitutionalism to be overlooked when in jeopardy. It could, however, be ignored when not in danger, as with the Tea Act at the time when dutied tea was not being landed and taxes were not being collected, or with the Sugar Act, when its terms were perceived as ambiguous and there was disagreement as to whether it was a tax measure or a trade regulation. THE EXIGENCY OF RIGHTS Eighteenth-century constitutional theory required that some rights, once threatened, be defended: rights essential to the contemporary definition of liberty, rights without which the British constitution could not exist. Some of these were factors in the revolutionary controversy. Taxation by consent was a right American whigs had to defend, even at the risk of war, as they showed when, in all but one of their seaports, they prevented the landing of East India tea. Another was the right to trial by jury. Americans were denied this right in very special circumstances, all of them pertaining to revenue cases. In fact, the colonial grievance of trial by jury was so closely associated with the grievance of parliamentary taxation for purpose of revenue, that, as a practical matter, it is difficult to separate the two grievances, and to imagine how the trial-byjury grievance alone could have produced rebellion. Moreover, jury trial was denied not by abolishing the right to a jury but by shifting special types of cases from common law to the vice-admiralty court, which sat without juries. Thus, although the substantive grievance may have been the denial of a jury, the constitutional grievance was the extension of the admiralty jurisdiction. The complaint had to be stated against the jurisdiction, and, as a result, the jury grievance was encompassed within the admiralty grievance. This was a matter of verbal expression that may not have affected the constitutional substance but did alter the appearance of constitutional grievances. An example is provided by the last New York petition of grievances complaining that Parliament had extended "the Courts of Admiralty beyond their ancient limits, giving them a concurrent jurisdiction, in causes heretofore cognizable only in Courts of Common Law, and by that means depriving the American subjects of a trial by Jury." The right to trial by jury was more fundamental than the right not to be tried at vice-admiralty, and, next to parliamentary taxation for purposes of revenue, Americans thought it their most serious "rights" grievance. Yet, because of the way the issue was wrapped up in another, it was not always stated in a form that expressed its constitutional importance.1 Quite different was the other jury grievance: change of venue. That could be stated in terms of constitutional survival, terms delineated by the Massachusetts House of Representatives when it condemned the "dockyards " act as "a measure repugnant to justice, highly derogatory to our rights, and shakes the very foundation of our constitution by not only depriving the American subjects of the very important right of juries from the vicinage but subjects them to be transported from their friends and neighbours to be tried in a distant country beyond the seas, in any county in Great Britain." A constitutional grievance could not be more strongly stated than that. To say it "shakes the very foundation" of constitutional THE EXIGENCY OF RIGHTS law is to label it an intolerable grievance. And yet the venue complaint turned out to be less a grievance about rights than about abortive parliamentary power. It was more...

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