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SECTION II: Power of imposing Taxes. - Henry Home, Lord Kames, Sketches of the History of Man, vol. 2 [1778]

Edition used:

Sketches of the History of Man Considerably enlarged by the last additions and corrections of the author, edited and with an Introduction by James A. Harris (Indianapolis: Liberty Fund, 2007). 3 Vols. Vol. 2.

Part of: Sketches of the History of Man, 3 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


SECTION II

Power of imposing Taxes.

That to impose taxes belongs to the sovereign, and to him only, is undoubted. But it has been doubted, whether even King and parliament, who pos-sess the sovereign authority in Britain, can legally impose a tax without consent of the people. The celebrated Locke, in his essay on Government (a) , lays down the following proposition as fundamental. “ ’Tis true, governments cannot be supported without great charge; and ’tis fit every one who enjoys his share of protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them; for if any one shall claim a power to lay and levy taxes on the people by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government. For what property have I in that which another may by right take when he pleases to himself?” No author has reflected more honour on his native country, and on mankind, than Mr. Locke. Yet no name is above truth; and I am obliged to observe, tho’ with regret, that in the forego-ing reasoning the right of imposing taxes is laid upon a very crazy foundation. It may indeed be said with some colour, that the freeholders virtually impower their representatives to tax them. But their vassals and tenants, who have no vote in electing members of parliament, empower none to tax them: yet they are taxed like others; and so are the vassals and tenants of peers. Add to these an immense number of artisans, manufacturers, day-labourers, domestics, &c. &c. with the whole female sex; and it will appear, that those who are represented in parliament, make not the hundreth part of the taxable people. But further, it is acknowledged by our author, that the majority of the Lords and Commons must bind the minority. This circumstance might have opened his eyes: for surely the minority in this case are bound without their consent; nay, against their consent. That a state cannot tax its subjects without their consent, is a rash proposition, totally subversive of government. Locke himself has suggested the solid foundation of taxes, tho’ inadvertently he lays no weight on it. I borrow his own words: “That every one who enjoys his share of protection, should pay out of his estate his proportion for the maintenance of the government.” The duties of sovereign and of subject are reciprocal; and common justice requires, that a subject, or any person who is protected by a government, ought to pay for that protection. Similar instances without number of such reciprocal duties, occur in the laws of every civilized nation. A man calls for meat and drink in a tavern: is he not bound to pay, tho’ he made no agreement beforehand? A man wafted over a river in a ferry-boat, must pay the common fare, though he made no promise. Nay, it is every man’s interest to pay for protection: government cannot subsist without a public fund: and what will become of individuals, when left open to every rapacious invader? Thus taxes are implied in the very nature of government; and the interposition of sovereign authority is only necessary for determining the expediency of a tax; and the quota, if found expedient.

Many writers, misled by the respectable authority of Locke, boldly maintain, that a British parliament cannot legally tax the American colonies, who are not represented in parliament. This proposition, which has drawn the attention of the public of late years has led me to be more explicit on the power of imposing taxes, than otherwise would be necessary. Those who favour the independence of our colonies urge, “That a man ought to have the disposal of what he acquires by honest industry, subject to no control: whence the necessity of a parliament for imposing taxes, where every individual is either personally present, or by a representative of his own election. The aid accordingly given to a British sovereign, is not a tribute, but a free and voluntary gift.” What is said above will bring the dispute within a very narrow compass. If our colonists be British subjects, which hitherto has not been controverted, they are subjected to the British legislature in every article of government; and as from the beginning they have been protected by Britain, they ought, like other subjects, to pay for that protection. There never was a time less favourable to their claim of freedom from taxes, than the close of the late war with France.2 Had not Britain seasonably interposed, they would have been swallowed up by France, and become slaves to despotism.

If it be questioned, By what acts is a man understood to claim protection of a government; I answer, By setting his foot within the territory. If, upon landing at Dover, a foreigner be robbed, the law interposes for him as for a native. And as he is thus protected, he pays for protection when he purchases a pair of shoes, or a bottle of beer. The case is clear, with respect to a man who can chuse the place of his residence. But what shall be said of children, who are not capable of choice, nor of consent? They are protected; and protection implies the reciprocal duty of paying taxes. As soon as a young man is capable of acting for himself, he is at liberty to chuse other protectors, if those who have hitherto protected him be not to his taste.

If a legal power to impose taxes without consent of the people, did necessarily imply a legal power to impose taxes at pleasure, without limitation, Locke’s argument would be invincible, in a country of freedom at least. A power to impose taxes at pleasure, would indeed be an invasion of the fundamental law of property; because, under pretext of taxing, it would subject every man’s property to the arbitrary will of the sovereign. But the argument has no weight, where the sovereign’s power is limited. The reciprocal duties between sovereign and subject imply, that the people ought to contribute what sums are necessary for the support of government, and that the sovereign ought not to demand more. It is true, that there is no regular check against him, when he transgresses his duty in this particular: but there is an effectual check in the nature of every government that is not legally despotic, viz. a general concert among all ranks, to vindicate their liberty against a course of violence and oppression; and multiplied acts of that kind have more than once brought about such a concert.

As every member of the body-politic is under protection of the government, every one of them, as observed above, ought to pay for being protected; and yet this proposition has been controverted by an author of some note (a) ; who maintains, “That the food and raiment furnished to the society by husbandmen and manufacturers, are all that these good people are bound to contribute: and supposing them bound to contribute more, it is not till others have done as much for the public.” At that rate, lawyers and physicians ought also to be exempted from contributing; especially those who draw the greatest sums, because they are supposed to do the most good. That argument, the suggestion of a benevolent heart, is no proof of an enlightened understanding. The labours of the farmer, of the lawyer, of the physician, contribute not a mite to the public fund, nor tend to defray the expence of government. The luxurious proprietor of a great estate has a still better title to be exempted than the husbandman; because he is a great benefactor to the public, by giving bread to a variety of industrious people. In a word, every man ought to contribute for being protected; and if a husbandman be protected in working for himself one-and-fifty weeks yearly, he ought thankfully to work one week more, for defraying the expence of that protection.

[(a) ]Chap. 11. § 140.

[2. ]Kames is presumably referring to the Seven Years’ War, which ended in 1763.

[(a) ]L’ami des hommes [[i.e., Mirabeau.

]]