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).
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. 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.
These two sections combined in pari materia clearly only allow the elected legislative branch of government to tax the people.
"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 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."