trial-by-jury-book/edited/appendix.markdown

APPENDIX.

TAXATION.


It was a principle of the Common Law, as it is of the law of nature, and
of common sense, that no man can be taxed without his personal consent.
The Common Law knew nothing of that system, which now prevails in
England, of _assuming_ a man’s own consent to be taxed, because some
pretended representative, whom he never authorized to act for him, has
taken it upon himself to consent that he may be taxed. That is one of
the many frauds on the Common Law, and the English constitution, which
have been introduced since Magna Carta. Having finally established
itself in England, it has been stupidly and servilely copied and
submitted to in the United States.

If the trial by jury were reëstablished, the Common Law principle of
taxation would be reëstablished with it; for it is not to be supposed
that juries would enforce a tax upon an individual which he had never
agreed to pay. Taxation without consent is as plainly robbery, when
enforced against one man, as when enforced against millions; and it is
not to be imagined that juries could be blind to so self-evident a
principle. Taking a man’s money without his consent, is also as much
robbery, when it is done by millions of men, acting in concert, and
calling themselves a government, as when it is done by a single
individual, acting on his own responsibility, and calling himself a
highwayman. Neither the numbers engaged in the act, nor the different
characters they assume as a cover for the act, alter the nature of the
act itself.

If the government can take a man’s money without his consent, there is
no limit to the additional tyranny it may practise upon him; for, with
his money, it can hire soldiers to stand over him, keep him in
subjection, plunder him at discretion, and kill him if he resists. And
governments always will do this, as they everywhere and always have done
it, except where the Common Law principle has been established. It is
therefore a first principle, a very _sine qua non_ of political freedom,
that a man can be taxed only by his personal consent. And the
establishment of this principle, with _trial by jury_, insures freedom
of course; because: 1. No man would pay his money unless he had first
contracted for such a government as he was willing to support; and, 2.
Unless the government then kept itself within the terms of its contract,
juries would not enforce the payment of the tax. Besides, the agreement
to be taxed would probably be entered into but for a year at a time. If,
in that year, the government proved itself either inefficient or
tyrannical, to any serious degree, the contract would not be renewed.
The dissatisfied parties, if sufficiently numerous for a new
organization, would form themselves into a separate association for
mutual protection. If not sufficiently numerous for that purpose, those
who were conscientious would forego all governmental protection, rather
than contribute to the support of a government which they deemed unjust.

All legitimate government is a mutual insurance company, voluntarily
agreed upon by the parties to it, for the protection of their rights
against wrong-doers. In its voluntary character it is precisely similar
to an association for mutual protection against fire or shipwreck.
Before a man will join an association for these latter purposes, and pay
the premium for being insured, he will, if he be a man of sense, look at
the articles of the association; see what the company promises to do;
what it is likely to do; and what are the rates of insurance. If he be
satisfied on all these points, he will become a member, pay his premium
for a year, and then hold the company to its contract. If the conduct of
the company prove unsatisfactory, he will let his policy expire at the
end of the year for which he has paid; will decline to pay any further
premiums, and either seek insurance elsewhere, or take his own risk
without any insurance. And as men act in the insurance of their ships
and dwellings, they would act in the insurance of their properties,
liberties and lives, in the political association, or government.

The political insurance company, or government, have no more right, in
nature or reason, to _assume_ a man’s consent to be protected by them,
and to be taxed for that protection, when he has given no actual
consent, than a fire or marine insurance company have to assume a man’s
consent to be protected by them, and to pay the premium, when his actual
consent has never been given. To take a man’s property without his
consent is robbery; and to assume his consent, where no actual consent
is given, makes the taking none the less robbery. If it did, the
highwayman has the same right to assume a man’s consent to part with his
purse, that any other man, or body of men, can have. And his assumption
would afford as much moral justification for his robbery as does a like
assumption, on the part of the government, for taking a man’s property
without his consent. The government’s pretence of protecting him, as an
equivalent for the taxation, affords no justification. It is for himself
to decide whether he desires such protection as the government offers
him. If he do not desire it, or do not bargain for it, the government
has no more right than any other insurance company to impose it upon
him, or make him pay for it.

Trial by the country, and no taxation without consent, were the two
pillars of English liberty, (when England had any liberty,) and the
first principles of the Common Law. They mutually sustain each other;
and neither can stand without the other. Without both, no people have
any guaranty for their freedom; with both, no people can be otherwise
than free.[^118]

By what force, fraud, and conspiracy, on the part of kings, nobles, and
“a few wealthy freeholders,” these pillars have been prostrated in
England, it is designed to show more fully in the next volume, if it
should be necessary.

[Footnote 118: Trial by the country, and no taxation without consent,
mutually sustain each other, and can be sustained only by each other,
for these reasons: 1. Juries would refuse to enforce a tax against a man
who had never agreed to pay it. They would also protect men in forcibly
resisting the collection of taxes to which they had never consented.
Otherwise the jurors would authorize the government to tax themselves
without their consent,—a thing which no jury would be likely to do. In
these two ways, then, trial by the country would sustain the principle
of no taxation without consent. 2. On the other hand, the principle of
no taxation without consent would sustain the trial by the country,
because men in general would not consent to be taxed for the support of
a government under which trial by the country was not secured. Thus
these two principles mutually sustain each other.

But, if either of these principles were broken down, the other would
fall with it, and for these reasons: 1. If trial by the country were
broken down, the principle of no taxation without consent would fall
with it, because the government would then be _able_ to tax the people
without their consent, inasmuch as the legal tribunals would be mere
tools of the government, and would enforce such taxation, and punish men
for resisting such taxation, as the government ordered. 2. On the other
hand, if the principle of no taxation without consent were broken down,
trial by the country would fall with it, because the government, if it
could tax people without their consent, would, of course, take enough of
their money to enable it to employ all the force necessary for
sustaining its own tribunals, (in the place of juries,) and carrying
their decrees into execution.]