Appendix to AN ESSAY ON THE TRIAL BY JURY (1852)
"Taxation"
Lysander Spooner
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 re-established, the
Common Law principle of taxation would be re-established 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
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 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
a 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. [1]
By what force, fraud, and conspiracy, on the part of kings,
nobles, and "a few wealthy freeholders," these pillars have been
prostrated in England [as in the rest of the world], it is desired to show more fully in the
next volume, if it should be necessary.
[1] Trial by the country, and no taxation without consent,
mutually sustain each other, and can be sustained only by each
other, for these reasons:
- 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.
- 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: 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.
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.
