By Carl Watner

In the August 1994 issue of The Voluntaryist, I wrote about Charles Lane, a friend and confidant of Henry David Thoreau. After reviewing my files about Lane and Thoreau, which have accumulated over the years, I found some new material which I thought would be interesting to the readers of this newsletter.

The story of Thoreau's night in jail is told in his essay "On the Duty of Civil Disobedience." This well-known event took place on the evening of July 23 or 24th, 1846 at Concord, Massachusetts. Few people realize that Thoreau's arrest and imprisonment were unnecessary and illegal. Walter Harding was the first that I know of to point this out in his article "Thoreau In Jail," appearing in the August 1975 issue of AMERICAN HERITAGE.

"The poll, or capitation, tax was a standard source of revenue in colonial times," and even Thoreau's "self-sufficiency" at Walden Pond would not allow him to escape the tax. The poll tax was a tax on one's person, and could only be avoided by living beyond the pale of "civilized" government. John C. Broderick described its legal basis in his article on "Thoreau, Alcott, And The Poll Tax" [53 STUDIES IN PHILOLOGY (1956), pp. 612-626]. The Massachusetts Constitution of 1780 re-affirmed the constitutionality of such a tax and "provided that 'the public charges of government' should be assessed" on each male citizen sixteen years or older (except those "who by reason of age, infirmity, and poverty, may in the judgment of the assesors be unable to contribute toward the public charges.") [Mass. Constitution, chap. I, sec. I, art. IV]. The poll tax was to be assessed upon "each taxable person in the town, where he shall be an inhabitant on the first day of May in each year." Minors' poll taxes were to be assessed upon parents or guardians. During the mid-1840s, the maximum amount of any such tax was $1.50.

The Massachusetts Revised Statutes of 1836 (Title III, chap. 7, secs. 1, 5, 6, 17, 27, 29; chap. 8 sec. 11) provided the authority by which the town of Concord assessed and collected the poll tax. Town assessors imposed the tax, which was then recorded in an annual manuscript account book. The town government itself did not directly collect the tax. Tax collections for Concord were put out on bid. "For 1841 Orin Wilson had been appointed tax-collector on the basis of his bid of one cent on the dollar. However, Wilson declined to serve, and James P. Brown, the collector of the preceding year, was appointed in his place at the higher rate of one and three-fourths cents on the dollar. In 1842 Samuel Staples was appointed collector at the rate of one cent. Staples served for four years, charging more each year, until 1845, when he received one and one-half cents. For 1846 Addison G. Fay was appointed at one and one-fourth cent." When Staples retired in early 1846, the last year of taxes that he would have been responsible for was 1845. Since "the tax collector was responsible to the town for the amount authorized by the assessors," it was natural that Staples would have made every effort to collect all taxes due him. He had to pay the town its taxes, whether he collected them or not. Thus his efforts to complete his tax-collections led to Thoreau's imprisonment.

Thoreau's first legal encounter with the political authorities in Massachusetts took place in 1838, when he turned twenty-one. The State demanded that he pay the one dollar ministerial tax, in support of a clergyman "whose preaching my father attended but never I myself." The tax was paid by another (much as his contested poll tax was paid), probably by one of his aunts. In order to avoid the ministerial tax in the future, Thoreau had to execute what was known as a "certificate bow," an affidavit attesting that he was not a member of the church. It is interesting to note that Thoreau had to assert his non-membership, rather than the church having to prove his membership in the congregation.

Although it is presumed that Thoreau's poll taxes as a minor were paid by his father, his name next occurs "in the Concord tax books in 1839 when he is charged one dollar and fifty cents for the town and county poll tax. He is charged the same amount throughout the 1840s except for 1843 when his name fails to appear because of his seven-month residence in New York." John C. Broderick presents evidence that Thoreau paid his poll tax for 1839, 1840, and 1841, and began resisting the poll tax after it was assessed for the year 1842. His friend, Bronson Alcott, was arrested on January 17, 1843 for non-payment of his own 1842 poll tax. The tax was paid by Samuel Hoar, Concord's "leading citizen, who thought Alcott's protest a blot on the town's" reputation. Slightly less than a year later, in mid-December 1843, Charles Lane was similarly detained and arrested until someone paid his 1842 poll tax.

The historical evidence suggests that non-payment of poll taxes was fairly common in Massachusetts, especially during the decade of the 1830s. According to the manuscript accounts in the Concord Free Public Library some "seventy-three persons failed to pay their taxes for 1834-1835, of whom forty-six were liable only for the poll tax." Instructions found in these tax books authorized the tax-collector to "distrain the good or chattels" of any person who "shall refuse or neglect to pay the sum he is assessed." And "for the want of goods and chattels whereon to make distress" the collector is instructed to "take the body of such so refusing and neglecting and him to commit unto the common goal [sic] of the Country [sic], there to remain until he pay the same, or such part thereof as shall not be abated by the assessors." Similar guidelines were provided in state legislation in Chapter 8 of the Revised Statutes of 1836:

Sect. 7. If any person shall refuse or neglect to pay his [poll] tax, the collector shall levy the same by distress and sale of his goods, ....

Sect. 8. The collector shall keep the goods distrained, at the expense of the owner, for the space of four days, at the least, and shall, within seven days after the seizure, sell the same by public auction, ....

Sec. 11. If the collector cannot find sufficient goods, upon which it may be levied, he may take the body of such person and commit him to prison, there to remain, until he shall pay the tax and charges of commitment and imprisonment or shall be discharged by order of law.

Walter Harding suggests that both Staples, the tax-collector, and Thoreau were probably unaware of the provisions of the statute, because Thoreau owned a collection of books, numbering more than a hundred and forty volumes. Thoreau's library could have been distrained and auctioned for more than the amount of poll tax he owed. Although Thoreau could have avoided arrest by telling Staples to seize his books, it may have been easier for Staples to imprison Thoreau than to go through the distraint and auction procedures. In any case, Thoreau was probably not interested in avoiding arrest because the whole idea of his act of civil disobedience was "to protest by not paying his tax, rather than to pay the tax" even "under protest."

Thoreau makes one interesting comment about taxes in his essay on civil disobedience. He wrote that he wished to never "rely on the protection of the State," and refused to tend it his allegiance. Despite this, he "never declined paying the highway tax, because I am as desirous of being a good neighbor as I am of being a bad subject; ." While he wins points for wanting to be a good neighbor, as voluntaryists we need to call the consistency of his reasoning in to question. A tax is a tax, regardless of why it is levied or how it is spent. Good neighbors need to point out the dangers of setting precedents: if the state can collect a highway tax it can institute a poll tax, an income tax, a sales tax, an excess profits tax, a value-added tax. A hundred and fifty years after Thoreau's confrontation with the state gives us adequate proof of the importance of taking a consistent and principled stand: ALL taxes are theft. Even Charles Lane had noted in his letters on "A Voluntary Political Government" (March 27, 1843) that there was no requirement for highway taxes: "the common road, like the railroad, [might] be made into a shop keeping business, and paid for by every one who used it."

Thoreau was not a complete voluntaryist. In his essay "On the Duty of Civil Disobedience, he distinguished himself from "those who call[ed] themselves no-government men": "I ask for, not at once no government, but at once a better government," conveniently overlooking the fact that improving an institution does not change its essential (in this case, coercive) nature. Despite this fact Thoreau opened his essay by stating his belief that "That government is best which governs not at all." Voluntaryists can surely agree with him on that.

[Editor's Note: The following excerpts are taken from pages 232-234 of Chapter XVIII, "The Insurance of Seamen Against Illness," appearing in Henry W. Farnam, CHAPTERS IN THE HISTORY OF SOCIAL LEGISLATION IN THE UNITED STATES TO 1860 (Washington: Carnegie Institution of Washington, 1939). The Constitution of 1789 authorized no federal power over labor conditions, and prohibited direct taxation of the new nation's citizens. In 1798, Congress passed, and President John Adams signed, legislation (United States STATUTES AT LARGE, I, 605-606, Chapter lxxvii) that exceeded these constitutional boundaries. Although the Whiskey Rebellion had occurred four years earlier, this action undoubtedly has to stand as one of the earliest examples of government usurpation. Innocuous as this action might appear, it clearly demonstrates the impossibility of maintaining "limited" government for even a short time.]

There is not a word in the Constitution regarding either workmen's insurance or hospitals or the care of sailors. Nevertheless, in the very first Congress, which met March 4, 1789 it was ordered, under resolution of July 20, "That a committee be appointed to bring in a bill or bills, providing for the establishment of hospitals for sick and disabled seamen...." This did not at once result in any law creating the service, but at least five different bills were brought up from time to time, and a law was finally passed, July 16, 1798. This law was in line with the English and Virginian precedents. It provided for the temporary maintenance of sick or disabled seamen in hospitals or other institutions established in the ports of the United States, and arranged for the levying of a tax of 20 cents a month for this purpose, to be deducted from the wages of each seaman and applied to his support when sick. It involved two distinct activities on the part of the Government, the collection of a direct tax, and the establishment of hospitals or other agencies for the care of sick seamen. The constitutionality of this measure does not seem to have been seriously questioned at the time of its adoption. The ANNALS OF CONGRESS contain no account of any debate on the subject in the Senate and only a few pages are devoted to the debate in the House. A number of persons took part in this debate, among them Mr. Sewall of Massachusetts, Mr. Pinckney of South Carolina, Mr. Livingston of New York. Most of the discussion seems to have turned upon the question of fairness to the seamen in obliging them to pay for care which would ordinarily be considered a charge upon public charity.Somewhat oddly, the chief opponent of the measure seems to have been Mr. Sewall of Massachusetts, although, as the bulk of the seamen were from New England, it was thought that they would profit most from a general tax which would care for them, if they fell ill in the South, while the people of the Northeast would be relieved of certain demands upon their charity. The constitutionality of the measure seems to have been questioned only by Mr. Varnum, who said, regarding the measure, that he did not know how he would reconcile it with that clause of the Constitution which says "that no capitation or other direct tax, shall be laid, unless in proportion to the census or enumeration directed to be taken." This objection, however, did not seem to make much impression, nor did it prevent the bill from being passed. In 1849, more than 50 years after the first act, the justification of the act was thus stated in a report of a Congressional commission: "This is almost the only direct tax laid by government. The power to lay it has always been granted on account of the highly charitable object had in view. From the income of a proverbially improvident class in the community a specific deduction has been madeand government becomes self-constituted guardian and trustee. ... As the questionable legality of the taxation is laid aside by common consent, it is only asked that, while it is continued, it may be rendered distinct in all its operations."

Its practical justification, apart from the question of its constitutionality, lay, as stated above, in the fact that sailors are improvident and irresponsible and that their vocation is peculiarly dangerous. It takes them away from home, few of them have families who can care for them in illness, and even if they have, they are liable to be sick at a distance from their regular homes. The fact that their work is performed without access to the ordinary diversions of the landsman makes them especially lavish in paying for amusement when they have a few days on shore, so that they seldom save money, and if they are desirous of saving, they have no safe place in which to deposit their funds. Hence they are liable to become the prey of swindlers and robbers. They have not even a pauper settlement, if taken sick away from home, and as a rule pay no direct State taxes. The consequence is that the Government has not only made this provision for those that are sick, but has also enacted elaborate laws to protect them against imposition and abuses.

There was another reason for the interest of the Government in sailors. It seemed very important to build up a strong merchant marine in order to provide a supply of seamen for the men-of-war in case of hostilities with other nations. The law was, therefore, not simply a piece of social politics, but also of naval politics, a combination of humanity and national defense which is by no means unusual in the history of labor legislation. The first child labor law of Prussia was inspired by the observation that the recruits for the army in the textile districts were deteriorating in size and strength, and similar considerations have been used in England as an argument for improved labor laws.

by David McKells

[Editor's Note: The following article first appeared in the Spring 1991 issue of SMALL FARMER'S JOURNAL (Box 1627, Sisters, OR 97759), a publication which advocates horse-powered, family farming. Although the topics of voluntaryism and the survival of small farming may seem miles apart, in fact, there is a close parallel which is brought out in this article. Freedom can only grow and thrive if we practice it ourselves and pass its spirit along to our children and close friends, just as small farming can survive only, as the author of this piece concludes, if they "work, practically, gracefully, and with dignity."

His most important point, however, is that the Hopi Indians understood that the enemy "is a state of mind." Stockpiling guns to defend ourselves against the State or trying to get elected to some office may seem like powerful strategies, but, in fact, they are not. Both mimic the enemy, by attempting to fight the State on its own ground. Such strategies are a failure, from the voluntaryist point of view, because they only reinforce the attitudes that make it possible for the State to exist in the first place. If we want to deal voluntarily with other people, and have them deal with us likewise, then we need to practice freedom and liberty in our own lives. It may seem difficult to "resist not evil," but there are powerful reasons, both moral and utilitarian, for heeding that advice. "Those who fight evil necessarily take on the characteristics of the enemy and become evil themselves."

Bob LeFevre used to draw a large "T" chart on the blackboard. One side he would describe as the State and City Hall. The other side of the "T" he would label "Freedom and Liberty." To which side of the "T" do you want to devote your life's energies - fighting City Hall or becoming a better person, raising a family and operating a profitable, honest business? Portrayed graphically in this manner, the question leaves little room for hesitation. The voluntaryist will never hesitate to opt for "Freedom and Liberty," knowing that "if you take care of the means, the end will take care of itself." Or as the Hopi elder put it, "strong and deliberate persistence in one's own way and prayer (are always) the best weapons."]

I read the 'editorial debate' in the Winter '91 issue with great interest. It was especially meaningful to me that Arthur and Zelka should cite the federal government's attempt to relocate the Navajo and Hopi from Big Mountain, Arizona, so that Peabody Coal can strip-mine coal to ship to Japan. They cite this issue as compelling them to turn their interest towards activism.

It was exactly this issue that compelled me to move from activism (no matter how good that "steadfast self-martyring gaze" felt) to the much more focused task of trying to run the family farm.

I was in graduate school at the University of Colorado when I first heard of the ongoing tragedy of Big Mountain. I was deeply touched, for I had been the sixth generation on a farm located between the Tennessee and Cumberland Rivers in western Kentucky. My family settled there in the 1780s. The federal government ran us off our land in the 1960s when Kentucky and Barkeley Dams were built so that "Land Between the Lakes" recreation area could be formed. Many tried to resist with lawyers and sometimes more desperate means.

The image of an old, one-legged woman holding off the government men with a double-barreled shotgun is permanently etched into my mind. Those who tried to hold out, including the old woman, had their houses bulldozed and burned with all their belongings still inside.

I had always tried to tell myself that this sort of thing could not happen anymore, but here were Indians trying to hold off the same treatment from the same government. I joined a group working on this issue and spent time at Big Mountain talking with these people. It was during this time that things started to click. They had been on their land a long time. The Hopi have been farming on the same ground for 10 to 15 thousand years. Many of them had never bothered to learn English. All they knew was their way. And it was enough. They knew that their lives were a direct expression of that piece of land. And they understood that their farming practices and religious attitude (the two are not separate) tied them to their land through each complex interaction. Too many people think being moved to "better" real estate would be a great deal. But this is because they are native to no place. Home is a place to commute from.

A Hopi Elder told me that the bulldozers and federal marshals supporting Peabody Coal were not the enemy. The enemy, he said, is a state of mind. It's a state of mind that has been carrying out a conquest of this continent ever since it hit the East Coast. The conquest was not about guns vs. arrows. That was a symptom of the disease. The disease was a clash between states of mind. If you fight a state of mind with confrontation, he told me, you strengthen that state of mind. (Resist not evil.) Our enemy, he said, is on a different plane from the bulldozers. He thought strong and deliberate persistence in one's own way and prayer were the best weapons.

I understand the predicament these people are in. I had been there as a kid. Then an interesting sequence of events occurred. I found myself in a university working with lawyers and professional activists. I was trying to help the "native" cause from the position of a conquistador. I felt like the people Wendell Berry speaks of who oppose power plants from their air-conditioned homes. Then I got word that an offer had been made on my maternal grandparents' farm. This hundred-acre farm, about twenty miles from the paternal family farm now covered with Winnebagoes, was going to be subdivided unless somebody in the family wanted it. And no one else did.

Something snapped. Had we not been native to these farms? Was not the subdividing of that farm more of the conquest I was wanting to help stop? That state of mind which holds no place in reverence, which turns husbandry into agribusiness, and would willingly strip-mine farm for money, was about to consume my family farm for the second time. The notion of "home" in its full sense became very real.

Now my only connection with a university is when I get a soil test. I mend fences my grandfather built. I cut hay he sowed in fields he cleared. I water my horses in creeks I played in as a child. I have repaired the barn my father and both grandfathers built together. And I build fences and outbuildings my kids may someday repair. But perhaps most of all, I cultivate an intimate knowledge, love, and reverence for this place in all its intricate complexity. Does this help the Hopi and Navajo who are at this moment trying to patiently outlast Peabody Coal and the federal bureaucracy? Not on the plane where bulldozers exist.

But the conquest is very quietly going on all around us. Speaking out, passing petitions, etc., all need to be done. But I believe the strongest blow I can make against that state of mind -the one trying to gobble up the last remnants of traditional Indians as well as the last remnants of the family farms - is to be truly at home in my place. To raise a family here and pray the kids will understand. To nurture a native, respectful state of mind.

Perhaps the strongest, most direct weapon we have is to make our farms work, practically, gracefully and with dignity. And do it out front and in the open for everyone to see.