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The Constitution’s Deep Roots
by Congress, Federal judges have thus been required to have some knowledge of Anglo-American equity law in order to carry out their duties. Because the equity power is not defined in the Constitution and tends to
expand the power and jurisdiction of the Federal courts, it has played a
significant role in the growth of judicial power, especially in recent times.
Indeed, some Anti-Federalists warned that the fusion of law and equity
in the Supreme Court might degenerate into arbitrary judicial discretion,
allowing the judges to exceed their powers and ignore the law in the
name of ‘‘justice.’’ The equity jurisprudence we inherited from England
is limited by general rules, however, and it does not authorize the judges
to rule as they please. Its proper application thus requires judicial selfrestraint.
It is noteworthy that the first great constitutional quarrel between the
English and the Americans, prompted by the Stamp Act of 1765, was
based on a claim that the statute violated both constitutional and common law rights. The Act provided a stamp tax on the issuance of college
diplomas, licenses, commercial paper, deeds of property, leases, and land
grants, and on sales of newspapers, pamphlets, and printed advertisements. Even sales of playing cards and dice were subjected to the tax. The
Act further stipulated that prosecutions for violations of the law would
be tried not at common law, as constitutional custom dictated, but in
vice-admiralty courts. These were administrative courts which relied on
the civil law and did not use juries. Lord North’s administration was persuaded that the Act would not be enforced in the regular courts of law
because local juries would sympathize with colonial defendants.
The Stamp Act was repealed before it could be enforced, but not before Americans loudly protested. Among the most cherished common
law rights in both England and America was the right of trial by jury,
which had traditionally provided an essential check on government and
protected the rights of property and individual liberty. Trial without jury,
Maryland legislators argued during the Stamp Act crisis, ‘‘renders the
Subject insecure in his Liberty and Property.’’ The New York assembly
asserted that trial by jury was ‘‘essential to the Safety’’ of the ‘‘Lives, Liberty, and Property’’ of British subjects, and the Virginia House of Burgesses echoed these sentiments, insisting that it was ‘‘the surest Support
of Property.’’ Speaking for the citizens of Braintree, Massachusetts, John