George Mason on County Court Levying Taxes to Build or Repair Court Would Violate Virginia's Bill of Rights
Translation Provided by Virginia1774.org
"At a Court continued and held for the County of Fairfax the 20th day of January 1789.
Present
Robert Adams, George Gilpin, David Axell, David Stuart, James Wren, John Moss, Charles Broadwater, Richard Conway, Roger West, William Syles, John Fitzgerald, William Brown, Benjamin Dulaney, William Herbert } Gentl. Justices
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Present George Mason, Charles Alexander, Martin Cockburn, Richard Chichester, and John Potts Gentleman.
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Present Charles Little, William Payne, and Thomas Gunnell Gent.
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On a motion for levying Tobacco to erect a new Courthouse or repair the present one it was objected that the Court had no legal authority to levy on the inhabitants of the County any money or Tobacco for any purpose whatever and the question being put whether they were vested with Power or not: George Mason, Charles Broadwater, Martin Cockburn, Richard Chichester, David Axell, Charles Little, William Payne, Charles Alexander, Roger West, William Syles, William Herbert, and Thomas Gunnell were of the opinion that that power was taken from the County Courts by the Bill of Rights of this Commonwealth, and Robert Adams, George Gilpin, John Moss, David Stuart, James Wren, Richard Conway, John Fitzgerald, William Brown, Benjamin Dulaney and John Potts Gentlemen were of a contrary opinion.
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A remonstrance against levying Tobacco or money for the purpose of building or repairing a Courthouse in the town of Alexandria signed by a number of inhabitants of this County was produced in Court and read, which is ordered to be certified.
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Then the Court adjourned till tomorrow morning nine o'clock.
Signed
George Gilpin"
Source: Fairfax County Court Order Book, Pt.1, 84-85 (1788-1792).
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George Mason as the author of the Virginia Declaration of Rights carried the day and delivered a 12-10 vote that the Court had no authority to levy Tobacco or money on the inhabitants of Fairfax County. This highlights the fact that not everybody agreed with the well known patriots of Virginia who established the new Commonwealth. The Virginia Bill of Rights stated:
5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into the body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.
6. That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, the attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for publick uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.
14. That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.
These three sections combined in pari materia clearly only allow the elected legislative branch of government to tax the people.
George Mason wrote the following petition seven years earlier against the same county levy. Fairfax County Petition Protesting Certain Actions by the Justices of the Peace.
"That the Power exercised by the Justices of the County Courts, of levying unlimitted Sums of Tobacco or Money upon the People, is not only inconsistent with the fundamental Principles of a free Government, but expressly contrary to the Spirit and Letter of our own Bill of Rights; which declares that the People shall not, "be taxed or deprived of their Property for public Uses, without their own Consent, or that of their Representatives.
That the Justices of the County Courts are so far from being the Representatives of the People, or amenable to them, that by a very faulty Part of our Constitution, they are a self-continued Body, with the Power of filling up their own Vacancys; a Power unknown in any other Part of the Constitution, and which must one day have the most dangerous and fatal Effects, in perverting the Administration of Justice into Party and Faction, or prostituting it to the Purposes of private Interest, or personal Malice; for whenever a Majority of the Members of any County Court shall happen to be leagued together in any sinister Views or Party-Interest, they can strengthen and for ever keep up their own Party, by confining their Recommendation to Men of simular Character and Principles; And from a Court so constituted common Justice is hardly to be expected."
This is consistent with his earlier writing about the subject in 1770: "We have always acknowledged, we are always ready to recognize, the sovereignty of Great Britain, but we will not submit to have our own money taken out of our pockets without our consent; because if any man or any set of men take from us without our consent or that of our representatives one shilling in the Pound we have not Security for the remaining nineteen. We owe our mother-country the duty of subjects but will not pay her the submission of slaves. " George Mason, December 6, 1770.
See Also: Marshall v. Northen Virginia Transporation Authority, 275 Va. 419, __, __ S.E.2d 71, 75, (2008). "This power to tax, which is inherent in every sovereign state government, is a legislative power that the Constitution vests in the General Assembly."