The Declaration: Taxation without representation

In celebration of the 250th anniversary of the nation's founding, Inland Empire Law Weekly is examining each of the 27 reasons for independence as argued in the Declaration of Independence. Grievance number 17: "For imposing taxes on us without our consent."

No taxation without representation is the slogan everyone remembers from school, but people often forget the "without representation" clause and just remember "no taxation." The patriots didn't have an issue with taxes; they had an issue with being cut out of the decision making process.

This argument comes from old English law, including the Magna Carta, signed in 1215.

"No ‘scutage’ (a type of tax paid instead of military service) or ‘aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes only a reasonable ‘aid’ may be levied. ‘Aids’ from the city of London are to be treated similarly," the Magna Carta says.

The English Bill of Rights of 1689 affirmed this right.

"That levying money for or to the use of the Crown by pretense of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal."

In 1764, attorney James Otis, Jr., wrote The Rights of the Colonists Asserted and Proven:

"It would be impossible for the Parliament to judge so well, of their abilities to bear taxes, impositions on trade, and other duties and burdens, or of the local laws that might be really needful, as a legislature here."

"These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further...Taxes are not to be laid on the people, but by their consent in person, or by deputation."

"Is there the least difference, as to the consent of the colonists, whether taxes and impositions are laid on their trade, and other property, by the crown alone, or by the Parliament? As it is agreed on all hands, the crown alone cannot impost them. We should be justifiable in refusing to pay them, but must and ought to yield obedience to an act of Parliament, although erroneous, until repealed."

"I can see no reason to doubt, but that the imposition of taxes, whether on trade, or on land, or houses, or ships, on real or personal, fixed or floating property, in the colonies, is absolutely irreconcilable with the rights of the colonists, as British subjects, and as men. I say men, for in a state of nature, no man can take my property from me, without my consent: If he does, he deprives me of my liberty, and makes me a slave. If such a proceeding is a breach of the law of nature, no law of society can make it just. The very act of taxing, exercised over those who are not represented, appears to me to be depriving them of one of their most essential rights, as freemen; and if continued, seems to be in effect an entire disfranchisement of every civil right. For what one civil right is worth a rush, after a man’s property is subject to be taken from him at pleasure, without his consent. If a man is not his own assessor in person, or by deputy, his liberty is gone, or lays entirely at the mercy of others."

"This (British) constitution is the most free one, and by far the best, now existing on earth—that by this constitution, every man in the dominion is a free man—that no parts of his majesty’s dominions can be taxed without their consent—that every part has a right to be represented in the supreme or some subordinate legislature—that the refusal of this, would seem to be a contradiction in practice to the theory of the constitution."

The phrase "no taxation without representation" wasn't used until 1769, by South Carolinan John Joachim Zubly.

"In England there can be no taxation without representation, and no representation without election; but it is undeniable that the representatives of Great-Britain are not elected by nor for the Americans, and therefore cannot represent them; and so, if the Parliament of Great-Britain has a right to tax America, that right cannot possibly be grounded on the consideration that the people of Great-Britain have chosen them their representatives, without which choice they would be no Parliament at all," Zubly wrote.

In 1782, Thomas Paine wrote "The Necessity of Taxation," in which he argued for increased taxes to help support the Revolutionary War, and criticized anti-tax campaigners.

"It is pity but some other word beside taxation had been devised for so noble an extraordinary occasion, as the protection of liberty in the establishment of an independent world. We have given to a popular subject and on popular name, and injured the service by a wrong assemblage of ideas. A man would be ashamed to be told that he signed a petition, praying that he might pay less than his share of the public expense, or that those who had trusted the public might never receive their money; yet he does the same thing when he petitions against taxation, and the only differences, that by taking shelter under the name, he seems to conceal the meanness he would otherwise blush at. Is it popular to pay our debts, to do justice, to defendant injured and insulted country, to protect the aged and the infant, and to give to liberty a land to live in? then must taxation, as the means by which those things are to be done, the popular likewise.

"But to take a more local view of matters. Why has the backcountry been ravaged by the repeated incursions of the enemy and the Indians, but from the inability of the revenue to provide means for their protection? And yet the inhabitants of those countries were among the first to petition against taxation. In so doing, they eventually prayed for their own distraction, and, unhappily for them, their prayer was answered. Their quota of taxes would have been trifling, compared with their losses, and, what is still worse, their domestic sorrows. Alas! how unwisely, how unfeelingly, does a man argue, when he puts the safety of his family in competition with his tax.

"There is so much of the honour, interest and independence of America staked upon taxation, that the subject must to every reflective mind make a strong impression. As we are now circumstanced, it is the criterion of public spirit; the touchstone over good affections; and he who pays it the instant it is called for, does more for his country’s good than the loudest talker in America. In vain are all our huzzas for liberty, without accompanying them with solid support. They will neither fill the soldier’s belly, nor cloathe his back, they will neither pay the public creditors, nor purchase our supplies. They are well enough in their places, and though they are the effusions of our hearts, they are no part of our substance," Paine wrote.