View single post by Joe Kelley
 Posted: Fri May 5th, 2017 04:06 pm
PM Quote Reply Full Topic
Joe Kelley

 

Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6408
Status: 
Offline
Mana: 
http://oll.libertyfund.org/titles/spooner-an-essay-on-the-trial-by-jury-1852


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 [essential] 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. *

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.

* 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.

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.


On government by consent and taxation is this:

Reference link 1:
http://unionstatesassembly.info/journals/secret%20journals%20of%20the%20acts%20and%20proceedings%20of%20congress%20-%20volume%201.pdf

Reference link 2:
https://tinyurl.com/lo82dtu
Quote:_____________________
To the officers and soldiers in the service of the king of Great Britain, not subjects of the said king :

The citizens of the United States of America are engaged in a just and necessary war—a war in which they are not the only persons interested. They contend for the rights of human nature, and therefore merit the patronage and assistance of all mankind. Their success will secure a refuge from persecution and tyranny to those who wish to pursue the dictates of their own consciences, and to reap the fruits of their own industry.

That kind Providence, who from seeming evil often produces real good, in permitting us to be involved in this cruel war, and you to be compelled to aid our enemies in their vain attempts to enslave us, doubtless hath in view to establish perfect freedom in the new world, for those who are borne down by the oppression and tyranny of the old.

Considering, therefore, that you are reluctantly compelled to be instruments of avarice and ambition, we not only forgive the injuries which you have been constrained to offer us, but we hold out to your acceptance a participation of the privileges of free and independent states. Large and fertile tracts of country invite and will amply reward your industry.

Townships, from twenty to thirty thousand acres of land, shall be laid out and appropriated to such of you as will come over to us, in the following manner.

[Every captian who shall bring with himself forty men from the service of the enemy, before the first day of September, 1778, shall receive eight hundred acres of good woodland; also four oxen, one bull, three cows, and four hogs.2 If this captain is accompanied with his lieutenant, the lieutenant shall receive four hundred acres of woodland, also two oxen, two cows, and four hogs.
[Every sergeant who shall accompany his captain shall receive two hundred acres of land, two oxen, one bull, one cow, and three hogs.

[Every soldier who shall accompany his captain shall receive fifty acres of land, one ox, one cow, and two hogs.
[If a lieutenant, or other commissioned officer under the rank of a captain, shall bring off from his company twenty five men, he shall receive six hundred acres of land, two oxen, two cows, and four hogs.
[Every sergeant, or non-commissioned officer who shall bring off parties of men, shall receive an additional bounty of twenty acres of land for every man so brought off. And every soldier, who shall come off without a commissioned or non-commissioned officer, shall receive fifty acres of land; and if he brings off his arms and accoutrements, an additional bounty of twenty dollars.

Both Officers and Soldiers who shall come off together, shall be at Liberty either to separate themselves, or to unite for the purpose of affording to each other Mutual Succor in the Establishments they make, and to form themselves into Townships after the Model of many German Settlements in various Parts of these States, which Exhibit an Example of that Happiness which is now offered to those who are wise Enough to accept of it.

[Such officers and soldiers shall be at Liberty immediately to employ themselves in the settlement of their farms, without being obliged to do any military duty;2 and they shall receive rations in proportion to their rank for the space of six weeks.3

[The stock hereby offered shall be given to such officers and soldiers as shall actually settle on the lands respectively granted to them.4

Such of the officers and non-commissioned officers as choose to enter into the military line, shall receive an additional rank in detached corps, which shall be formed of native Germans of those who now reside in America; which corps shall not be employed but with their own consent in any other service than that of guards at a distance from the enemy, or in garrison upon the western frontier. 1

Such of you as are skilled in manufactures, over and above these lands and other articles, will find riches in prosecuting your occupations, the necessaries of life being very cheap in proportion to the price of manufactures, and the demand for them is so great, that every mechanick will find full employment. Some of you have had an opportunity of observing the truth of these assertions, and will doubtless inform their countrymen and acquaintance of these facts.

We have hitherto met you in the field of battle, with hostile minds, urged on by the great principle of self-defense; yet in those instances, where the fortune of war hath delivered any of your countrymen into our hands, we appeal to them that our enmity hath ceased the moment they were disarmed; and we have treated them more like citizens than prisoners of war. We now address you as part of the great family of mankind, whose freedom and happiness we most earnestly wish to promote and establish.

Distain, then, to continue the instruments of frantick ambition and lawless power. Fee the dignity and importance of your nature. Rise to the rank of free citizens of free states. Desist from the vain attempt to ravage and depopulate a country you cannot subdue, and accept from our munificence what can never be obtained from our fears. We are willing to receive you with open arms into the bosom of our country. Come, then, and partake of the blessings we tender to you in sincerity of heart.

In the name of these sovereign, free, and independent states we promise and engage to you that great privilege of man, the free and uninterrupted exercise of your religion, complete protection of your persons from injury, the peaceable possessions of the fruits of your honest industry, the absolute property in the soil granted to you to defend, unless you shall otherwise dispose of it, to your children and your children's children for ever.1

Resolved, That it be recommended to the several states, who have vacant lands, to lay off with as much expedition as possible, a sufficient quantity of lands to answer the purposes expressed in the forgoing address; for which lands no charge is to be made against the United States.1


the absolute property in the soil granted to you to defend


An Essay on the Trial by Jury (Lysander Spooner) Footnote 4
http://www.barefootsworld.net/trial01.html#fn4a

Hallam says, "The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as much to the sovereign as to inferior lords. * * If a, vassal was aggrieved, and if justice was denied him, he sent a defiance, that is, a renunciation of fealty to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, advantageous or otherwise, according to the fortune of war. * * There remained the original principle, that allegiance depended conditionally upon good treatment, and that an appeal might be lawfully made to arms against an oppressive government. Nor was this, we may be sure, left for extreme necessity, or thought to require a long-enduring forbearance. In modern times, a king, compelled by his subjects' swords to abandon any pretension, would be supposed to have ceased to reign; and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But ruder ages had ruder sentiments. Force was necessary to repel force; and men accustomed to see the king's authority defied by a private riot, were not much shocked when it was resisted in defence of public freedom." - 3 Middle Age, 240-2.

The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party.


Elliot's Debates Volume I (Congressional Record First Congress)

That the question was not whether, by a declaration of independence, we should make ourselves what we are not; but whether we should declare a fact which already exists:

That, as to the people or Parliament of England, we had always been independent of them, their restraints on our trade deriving efficacy from our acquiescence only, and not from any rights they possessed of imposing them; and that, so far, our connection had been federal only, and was now dissolved by the commencement of hostilities:

That, as to the king, we had been bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of Parliament, by which he declares us out of his protection, and by his levying war on us—a fact which had long ago proved us out of his protection, it being a certain position in law, that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn:


An Essay on the Trial by Jury
Lysander Spooner
The History of Magna Carta

The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply theCommon Law,usually called “the law of the land,” which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.) This “law of the land” seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him.

It was under these circumstances, that the Great Charter of English Liberties was granted. The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws, unless with the consent of the peers—that is, the equals—of the accused.


punish no freeman for a violation of any of his laws, unless with the consent of the peers

The question here arises, Whether the barons and people intended that those peers (the jury) should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the justice of the laws they should be called on to enforce? Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury (“the country”) the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple fact whether those laws had been transgressed? Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man, against their king? Was it on such a charter that they intended to rely, for all future time, for the security of their liberties? No. They were engaged in no such senseless work as that. On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those peers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority, on the part of the king. In this way they took the liberties of each individual—and thus the liberties of the whole people—entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties.


In this way they took the liberties of each individual—and thus the liberties of the whole people—entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves.


Footnote concerning Magna Carta:

It is plain that the king and all his partisans looked upon the charter as utterly prostrating the king’s legislative supremacy before the discretion of juries. When the schedule of liberties demanded by the barons was shown to him, (of which the trial by jury was the most important, because it was the only one that protected all the rest,) “the king, falling into a violent passion, asked, Why the barons did not with these exactions demand his kingdom?* *and with a solemn oath protested, that he would never grant such liberties as would make himself a slave.” * * But afterwards, “seeing himself deserted, and fearing they would seize his castles, he sent the Earl of Pembroke and other faithful messengers to them, to let them know he would grant them the laws and liberties they desired.” * * But after the charter had been granted, “the king’s mercenary soldiers, desiring war more than peace, were by their leaders continually whispering in his ears,that he was now no longer king, but the scorn of other princes; and that it was more eligible to be no king, than such a one as he.” * * He applied “to the Pope, that he might by his apostolic authority make void what the barons had done. * * At Rome he met with what success he could desire, where all the transactions with the barons were fully represented to the Pope, and the Charter of Liberties shown to him, in writing; which, when be had carefully perused, he, with a furious look, cried out, What! Do the barons of England endeavor to dethrone a king, who has taken upon him the Holy Cross, and is under the protection of the Apostolic See; and would they force him to transfer the dominions of the Roman Church to others? By St. Peter, this injury must not pass unpunished. Then debating the matter with the cardinals, he, by a definitive sentence, damned and cassated forever the Charter of Liberties, and sent the king a bull containing that sentence at large.”—Echard’s History of England,p. 106-7.

These things show that the nature and effect of the charter were well understood by the king and his friends; that they all agreed that he was effectually stripped of power. Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement.


Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement.