by Carl Watner
From Number 71 – December 1994

In the August 1994 issue of The Voluntaryist, I wrote about Charles Lane, a friend and confidant of Henry David Thoreau. After reviewing my files about Lane and Thoreau, which have accumulated over the years, I found some new material which I thought would be interesting to the readers of this newsletter.

The story of Thoreau’s night in jail is told in his essay “On the Duty of Civil Disobedience.” This well-known event took place on the evening of July 23 or 24th, 1846 at Concord, Massachusetts. Few people realize that Thoreau’s arrest and imprisonment were unnecessary and illegal. Walter Harding was the first that I know of to point this out in his article “Thoreau In Jail,” appearing in the August 1975 issue of AMERICAN HERITAGE.

“The poll, or capitation, tax was a standard source of revenue in colonial times,” and even Thoreau’s “self-sufficiency” at Walden Pond would not allow him to escape the tax. The poll tax was a tax on one’s person, and could only be avoided by living beyond the pale of “civilized” government. John C. Broderick described its legal basis in his article on “Thoreau, Alcott, And The Poll Tax” [53 STUDIES IN PHILOLOGY (1956), pp. 612-626]. The Massachusetts Constitution of 1780 re-affirmed the constitutionality of such a tax and “provided that ‘the public charges of government’ should be assessed” on each male citizen sixteen years or older (except those “who by reason of age, infirmity, and poverty, may in the judgment of the assesors be unable to contribute toward the public charges.”) [Mass. Constitution, chap. I, sec. I, art. IV]. The poll tax was to be assessed upon “each taxable person in the town, where he shall be an inhabitant on the first day of May in each year.” Minors’ poll taxes were to be assessed upon parents or guardians. During the mid-1840s, the maximum amount of any such tax was $1.50.

The Massachusetts Revised Statutes of 1836 (Title III, chap. 7, secs. 1, 5, 6, 17, 27, 29; chap. 8 sec. 11) provided the authority by which the town of Concord assessed and collected the poll tax. Town assessors imposed the tax, which was then recorded in an annual manuscript account book. The town government itself did not directly collect the tax. Tax collections for Concord were put out on bid. “For 1841 Orin Wilson had been appointed tax-collector on the basis of his bid of one cent on the dollar. However, Wilson declined to serve, and James P. Brown, the collector of the preceding year, was appointed in his place at the higher rate of one and three-fourths cents on the dollar. In 1842 Samuel Staples was appointed collector at the rate of one cent. Staples served for four years, charging more each year, until 1845, when he received one and one-half cents. For 1846 Addison G. Fay was appointed at one and one-fourth cent.” When Staples retired in early 1846, the last year of taxes that he would have been responsible for was 1845. Since “the tax collector was responsible to the town for the amount authorized by the assessors,” it was natural that Staples would have made every effort to collect all taxes due him. He had to pay the town its taxes, whether he collected them or not. Thus his efforts to complete his tax-collections led to Thoreau’s imprisonment.

Thoreau’s first legal encounter with the political authorities in Massachusetts took place in 1838, when he turned twenty-one. The State demanded that he pay the one dollar ministerial tax, in support of a clergyman “whose preaching my father attended but never I myself.” The tax was paid by another (much as his contested poll tax was paid), probably by one of his aunts. In order to avoid the ministerial tax in the future, Thoreau had to execute what was known as a “certificate bow,” an affidavit attesting that he was not a member of the church. It is interesting to note that Thoreau had to assert his non-membership, rather than the church having to prove his membership in the congregation.

Although it is presumed that Thoreau’s poll taxes as a minor were paid by his father, his name next occurs “in the Concord tax books in 1839 when he is charged one dollar and fifty cents for the town and county poll tax. He is charged the same amount throughout the 1840s except for 1843 when his name fails to appear because of his seven-month residence in New York.” John C. Broderick presents evidence that Thoreau paid his poll tax for 1839, 1840, and 1841, and began resisting the poll tax after it was assessed for the year 1842. His friend, Bronson Alcott, was arrested on January 17, 1843 for non-payment of his own 1842 poll tax. The tax was paid by Samuel Hoar, Concord’s “leading citizen, who thought Alcott’s protest a blot on the town’s” reputation. Slightly less than a year later, in mid-December 1843, Charles Lane was similarly detained and arrested until someone paid his 1842 poll tax.

The historical evidence suggests that non-payment of poll taxes was fairly common in Massachusetts, especially during the decade of the 1830s. According to the manuscript accounts in the Concord Free Public Library some “seventy-three persons failed to pay their taxes for 1834-1835, of whom forty-six were liable only for the poll tax.” Instructions found in these tax books authorized the tax-collector to “distrain the good or chattels” of any person who “shall refuse or neglect to pay the sum he is assessed.” And “for the want of goods and chattels whereon to make distress” the collector is instructed to “take the body of such so refusing and neglecting and him to commit unto the common goal [sic] of the Country [sic], there to remain until he pay the same, or such part thereof as shall not be abated by the assessors.” Similar guidelines were provided in state legislation in Chapter 8 of the Revised Statutes of 1836:

Sect. 7. If any person shall refuse or neglect to pay his [poll] tax, the collector shall levy the same by distress and sale of his goods, ….

Sect. 8. The collector shall keep the goods distrained, at the expense of the owner, for the space of four days, at the least, and shall, within seven days after the seizure, sell the same by public auction, ….

Sec. 11. If the collector cannot find sufficient goods, upon which it may be levied, he may take the body of such person and commit him to prison, there to remain, until he shall pay the tax and charges of commitment and imprisonment or shall be discharged by order of law.

Walter Harding suggests that both Staples, the tax-collector, and Thoreau were probably unaware of the provisions of the statute, because Thoreau owned a collection of books, numbering more than a hundred and forty volumes. Thoreau’s library could have been distrained and auctioned for more than the amount of poll tax he owed. Although Thoreau could have avoided arrest by telling Staples to seize his books, it may have been easier for Staples to imprison Thoreau than to go through the distraint and auction procedures. In any case, Thoreau was probably not interested in avoiding arrest because the whole idea of his act of civil disobedience was “to protest by not paying his tax, rather than to pay the tax” even “under protest.”

Thoreau makes one interesting comment about taxes in his essay on civil disobedience. He wrote that he wished to never “rely on the protection of the State,” and refused to tend it his allegiance. Despite this, he “never declined paying the highway tax, because I am as desirous of being a good neighbor as I am of being a bad subject; .” While he wins points for wanting to be a good neighbor, as voluntaryists we need to call the consistency of his reasoning in to question. A tax is a tax, regardless of why it is levied or how it is spent. Good neighbors need to point out the dangers of setting precedents: if the state can collect a highway tax it can institute a poll tax, an income tax, a sales tax, an excess profits tax, a value-added tax. A hundred and fifty years after Thoreau’s confrontation with the state gives us adequate proof of the importance of taking a consistent and principled stand: ALL taxes are theft. Even Charles Lane had noted in his letters on “A Voluntary Political Government” (March 27, 1843) that there was no requirement for highway taxes: “the common road, like the railroad, [might] be made into a shop keeping business, and paid for by every one who used it.”

Thoreau was not a complete voluntaryist. In his essay “On the Duty of Civil Disobedience, he distinguished himself from “those who call[ed] themselves no-government men”: “I ask for, not at once no government, but at once a better government,” conveniently overlooking the fact that improving an institution does not change its essential (in this case, coercive) nature. Despite this fact Thoreau opened his essay by stating his belief that “That government is best which governs not at all.” Voluntaryists can surely agree with him on that.