Lysander Spooner argues that according to the traditional English common law, taxation would not be upheld because no explicit consent was given by individuals to be taxed (1852)
One of the demands of the American revolutionaries was “no taxation without representation”; Spooner takes this demand one step further by stating “no taxation without explicit consent”:
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.
Tucked away at the back of his book on Trial by Jury (1852) is this small gem of an Appendix on Taxation. Spooner is convinced that, if the laws of taxation were tested in a traditional common law trial by jury and if (a big if one might say) juries were allowed to pronounce on the justice of the law as well as any crime committed under that law, then they would find any reluctant taxpayer not guilty of refusing to pay their taxes. Once again, Spooner wants to push explicit consent theory and his natural law beliefs to their logical conclusion.