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CHAPTER SEVEN EQUALITY OF RIGHTS "The excise has been lately extended in this country," Richard Hussey, barrister and bencher of the Middle Temple, was quoted as telling his colleagues in the House of Commons, but he believed "no Minister would dare to propose to take away the trial by jury in all cases relating to the revenue. We should be shocked at this proposal here; why should the honest Americans be more submissive?" For us today Hussey seems to be talking politics, but American colonists listening to his speech would have thought he was talking constitutional law. He stated a constitutional right, the right to equality, a right of special interest as it is only the second so far encountered in which colonial constitutional theory diverged from that of the mother country. The divergence was not in definition, but in emphasis. The concept of equality was expanding in American jurisprudence , largely in reaction to the imperial relationship, and was emerging as a right utilized to protect other rights. Consider, for example, its use by "about 1200 Freemen and Freeholders of New York City" who argued that to be deprived of trial by jury meant that they were not treated equally with other British citizens. "Without these Bulwarks our Fellow Subjects in England would not think themselves either safe or free; nor can we see any Reason why American Subjects should not set an equal Value upon these Privileges, which are equally essential to both."l 60 EQUALITY OF RIGHTS 61 The same complaint was directed against the vice-admiralty jurisdiction . Voters of Boston were disturbed to find in the same statute reforming vice admiralty in the colonies - indeed, on the "same Page"- "that all Penalties and Forfeitures which shall be incurred in Great Britain, shall be prosecuted Sued for and recovered, in any of his Majestys Courts of Record in Westminster, or in the Court of Exchequer in Scotland respectively." Here is a Contrast that stares us in the Facel A partial distinction that is made between the Subjects in Great Britain and the Subjects in Americal the Parliament in one Section guarding the People of the Realm and securing to them the benefit of a tryal by Jury and the Law of the Land, and by the next Session [sic] depriving Americans of those important Rights. 2 The grievance was twofold: Americans were denied a British constitutional right and were not treated equally. "[W]e are unhappily distinguished from our fellow subjects in Britain," the government of Rhode Island complained.3 "Why are not His Majesty's good Subjects of Great Britain thus treated?" the voters of Cambridge, Massachusetts, asked. "[W]hy must we in America . .. be thus discriminated?"4 Inequality was a matter proven by facts and American apprehensions of inequality were disputed on the facts. It was pointed out that in Great Britain stamp duties and most excises were recoverable without a jury, indeed that most revenue matters tried in the mother country were without juries.5 Unlike so many other disputes of facts, such as the imperial contract, this contention of fact drew little argument from American whig writers. They thought it largely irrelevant. Both the right to jury trial and the right to equality were still violated. The right to trial by jury was not less a constitutional right because it was denied to someone else. And although in Great Britain the government prosecuted some tax questions without juries, generally they were tried before justices of the peace or other common-law judges by common-law procedures, and not in civil law. The denial of common law made Americans unequal with their fellow subjects and was per se a denial of their right to equality. There were two ways that the concept of equality was stated during the eighteenth century. One was to speak of equality not as a constitutional right, but as a source of rights. Because all British people were equal they shared an equality in rights and the rights of one were the rights of all. If the English, Scots, or Irish claimed a particular privilege, the principle of equality gave an equal claim to Carolinians, New Yorkers, or Jamaicans. The other way of stating equality was as a constitutional right. Most often the right of equality was asserted to secure a right al- EQUALITY OF RIGHTS ready possessed by the British on the grounds that Americans had a right to equality, or, to state the principle most narrowly, a right to...

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