152 POPULAR SCIENCE MONTHLY, 



its government, or because it is free ; or, as Chief- Justice Marsliall 

 expressed it, "by the implied reservations of individual rights 

 growing out of the nature of a free government, and the main- 

 tenance 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 establish- 

 ing an inhibition on the power of government, in respect to the 

 taking of property, was recognized ; expressed or implied in the 

 Magjia 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 prop- 

 erty 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 abso- 

 lutely destroying large amounts of property in the shape of build- 

 ings 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 reve- 

 nue or the preservation of property. Clearly, if this right of taxa- 

 tion 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 nonrecog- 

 nition of such limitation marks, as before pointed out, more than 

 any other one thing, the dividing line between a free govern- 

 ment and a despotism.* 



* " 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, IS'ZV. 



