its government, or because it is free; or, as Chief-Justice Marshall expressed it, "by the implied reservations of individual rights growing out of the nature of a free government, and the maintenance of which is essential to its existence."
From the first dawn among the Anglo-Saxon race of the idea of a constitutional or free government, the necessity of establishing an inhibition on the power of government, in respect to the taking of property, was recognized; expressed or implied in the Magna Charta, and subsequently incorporated in the Federal Constitution, through its provisions respecting the equality of taxation, and that private property shall under no circumstances be taken for public uses without just compensation.
The necessity of a free state may, however, be so great i. e.,—in the prosecution of war for national defense, or the maintenance of national existence—as to require that the entire resources of its people should be at the disposal of the Government, and compel a resort to taxation, even to the exhaustion of everything—property and business—which may be its objective; and in this sense—i. e., for the preservation of individual liberty and property—and in this sense only, is involved any inherent power or right in taxation to destroy. The nature of the principle involved also finds illustration in the circumstance that municipal authorities are warranted, in the case of extensive conflagrations, in absolutely destroying large amounts of property in the shape of buildings and their contents, in order to preserve a much larger amount of like property from destruction. The principle under discussion would not accordingly justify the use of taxation in time of peace (as has been exercised by the Federal Government of the United States) for the primary purpose of destruction, and not for revenue or the preservation of property. Clearly, if this right of taxation is unlimited, the property of every citizen would be subject to the absolute disposition and control of the depositary of power in the state for the time being; and the recognition or nonrecognition of such limitation marks, as before pointed out, more than any other one thing, the dividing line between a free government and a despotism.[1]
- ↑ The dictum of Chief-Justice Marshall, used by this distinguished jurist in the heat of argument, has been adopted by many courts as justifying the uncontrolled exercise of the taxing power. A slight consideration will not justify the dictum. The proposition that the power to tax is the power to destroy is in opposition to the fundamental principles of a free government. It asserts the broad doctrine that the power to tax, one of the legislative powers, is unlimited and arbitrary. It is claimed that there is no such thing as arbitrary power in this country: that the form of government being republican, those who exercise the powers of government, whether executive, legislative, or judicial, are clothed with a trust which is not to be executed in accordance with a mere whim, or in an arbitrary manner, but according to the purpose of its creation."—Burroughs' s Law of Taxation, 1877.
