Was Lysander Spooner Mistaken?

by Carl Watner

In his short essay on “Taxation,” which was printed as the “Appendix” to his 1852 ESSAY ON THE TRIAL BY JURY, Lysander Spooner wrote

It was a principle of the Common Law … 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. [p. 222]

The veracity of Spooner’s assertion that under the Common Law taxation requires individual consent came into question upon my reading of J. P. Sommerville’s book, POLITICS AND IDEOLOGY IN ENGLAND 1603-1640. At one point, Sommerville appears to agree with Spooner, for he writes

In the early seventeenth century … [t]o say that something was a man’s property, - or and this was by far the commoner usage - that he had property in something, was precisely to say that the thing in question could not be taken from him without his consent. To take property without consent was to steal, and thus to break the Eighth Commandment. [Chapter 5, Paragraph 6, p. 147]

In correspondence with Professor Sommervile, I asked him if it was his opinion that Englishmen of the 17th Century considered taxation without personal consent to be stealing. He replied

The usual argument in that period was that parliament (and especially the House of Commons) represent[ed] everyone in the country and that the consent of parliament therefore includes the consent of every individual. What parliament does, people said, was done by “common consent.” Laws (including laws instituting taxes) bound individuals even if they had not explicitly consented to them, because they had virtually consented through parliament.

It was clearly recognized in Section X of the Petition of Right (1628) “that … no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament; … .” According to Professor Sommerville “The Petition outlawed benevolences, which were (theoretically) free gifts granted to the monarch by individuals, because monarchs can easily coerce (or persuade, or encourage) individuals to hand over cash. The Petition therefore said that even if an individual consents to giving the monarch money, the gift is illegal unless it has parliamentary endorsement.”

So accepting Professor Sommerville’s argument on face value, parliament was supreme. It could approve taxes even though not consented to by an individual; and it could annul a benevolence even though an individual had granted it.

Although Spooner offers no historical evidence to buttress his case, there is some modicum of support to be found in STUDIES IN MEDIEVAL TAXATION UNDER JOHN AND HENRY III (1914). As Sydney Knox Mitchell observed, “The source of modern taxation was the feudal aid, the voluntary contribution which the vassal made to relieve the wants of his lord.” [p. 346] However, this statement is followed by the acknowledgement that “There were certain aids which were not voluntary, but which were fixed by feudal law.” According to Chapter 12 of Magna Carta, these three payments were for ransom of the king, financial support in making the king’s eldest son a knight, and payments toward marrying the king’s eldest daughter. Such scutages were not dependent on individual consent, but rather on the “general consent” of the kingdom.

If as historians we accept THE NEW SHORTER OXFORD ENGLISH DICTIONARY definition of common law, which is “the part of English law … not fully prescribed by statute, purporting instead to be derived from ancient usage and judicial decisions,” then I think it is safe to conclude that Spooner was mistaken: it was not a principle of the English constitution or the Common Law “that no man can be taxed without his personal consent.” Yet, as voluntaryists we can agree with Spooner’s conclusion that if a “government can take a man’s money without his consent, [then] there is no limit to the additional tyranny it may practice 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 will always do this, as they everywhere and always have done … .” [“Appendix,” p. 222]

The proof is in the pudding. Taxation is robbery any way you consider it: without consent it is clearly stealing. On the other hand, would anyone ever ‘consent’ to taxation? Who would enter into an agreement whereby he or she in effect writes a blank check to be cashed by whomever has the most votes? Who would agree to an open-ended obligation to be determined by a legislative majority? Such an arrangement would effectively dispossess the taxpayers of any and all rights to their property since there would be no limit to how much tax could be assessed. If Spooner were here today and experienced taxation as we know it, he would clearly label it nothing more than sophisticated slavery - at its best - and communism - at its worst.