The Pamphlet Collection of Sir Robert Stout: Volume 14
54.—Therefore Inequitable and Unconstitutional
54.—Therefore Inequitable and Unconstitutional.
In saying that the Land Tax was for a century illegally levied, and consequently that the present Land Tax, being founded on that mode of levying the tax, is founded on illegal proceedings, I do not say in terms that the present Land Tax is illegal; since undoubtedly those who have the power of making the laws can make anything they please legal. Thus they may make a thing legal which is not only at variance with the notions of justice or equity which are universally received among all the tribes or communities of men making the slightest pretensions to civilization, but in direct opposition to what has been for many ages the settled course of law in the community for which they are legislating. The two primary rights which the law of England is commonly understood to confer upon every man are the right to the liberty and security of his person and the right to his property; yet a law made by those who have the power to make it, imposing a tax upon one class of persons which ought to be borne by another class, though in natural equity a downright robbery, it would evidently be a contradiction in terms to denominate "illegal," but it may most correctly be denominated "inequitable" and "unconstitutional." To put a still stronger case, if the same law-making persons were to think fit to pass a law enabling them to sell a certain number of Englishmen page 198 for slaves, and put the money in their pockets, undoubtedly such a proceeding, being founded on an Act of the Legislature, would be legal; but though there are probably few words used more vaguely and loosely, with less precise and definite meaning than the words "constitution" and "constitutional"—nor indeed am I aware of the existence of any tolerably clear and precise definition of the words—yet I do not think that any man, in England at least, would be found, who would term such an act constitutional; who would not on the contrary term it unconstitutional; and it appears to me that the term has about an equal right to be applied to the Land Tax in its present state. Between a constitutional right and a strictly legal right there exists also, I apprehend, this important distinction, that the former neither fails within the jurisdiction of the ordinary tribunals nor within the ordinary statutes for limiting the time in which the legal right may be recovered; in the case, then, of the legal right, the right is, for all practical purposes, barred after a certain fixed time, by the remedy's being gone; but in the case of a constitutional right the remedy is always open, the Statutes of Limitation not applying thereto. Consequently, in that Court, viz., the High Court of Parliament, which is the proper tribunal for the determination of constitutional as distinguished from legal rights, those who may feel themselves aggrieved by the loss of certain constitutional rights in the present instance must seek for the recovery of those rights.