Quotation du Jour
Posted in Quote of the Day by Richard Adams
In Edward Corwin's famous, "'Higher Law' Background of American Constitutional Law," Corwin notes:
The opinion of a Massachusetts magistrate in 1657 holding void a tax by the town of Ipswitch for the purpose of presenting the local minister with a dwelling house. Such a tax, said the magistrate, "to take from Peter to give it to Paul," is against fundamental law.
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Is it your point that Elizabethan poor law was 'against fundamental law'?
The Puritans were not fans of the poor laws, but in this case the transfer is going to someone who is not truly poor. To take from everyone and give to someone who is not starving is different from giving to someone who otherwise will starve. There might also be the matter of consent in this case. How was the assessment done?
You produced the quotation for display, presumably you know the context. The statement "to take from Peter to give it to Paul" does not (in and of itself) make a distinction between types of recipients.
As for the assessment, presumably it was enacted by the town selectmen so was compulsory. One might wager that a township in Massachusetts Bay in 1657 had a small population so the selectmen would have had to personally confront the injured parties on a mundane basis, though, early colonial American being the way it was, some such parties were likely insufficiently propertied for suffrage.
Again, what is your point? Salaries for public officials drawn from the treasury also 'take from Peter to give it to Paul'. Given the population and character of the community and attendant state-society relations, is not the town minister something of a public official? What principle are you attempting to articulate? Using the public treasury as a patronage mill is bad business, but having judges continually second-guessing the decisions of elected legislators is not necessarily better business.
(Given the population and character of the community and attendant state-society relations, is not the town minister something of a public official, btw?)
In colonial Massachusetts ministers were not public officials. They were not allowed to hold office.
As I understand the origin of the phrase, it has to do with taking from one to give to another with no good cause, other than ot make the one richer. Hence the distinction between helping someone who is too poor to put food on his table and someone who is not is perfectly reasonable, and consistent with the way the phrase was used.
Presumably the town meeting would be the proper authority to raise such a tax, if there were to be one. The taxing power could not be delegated.
I'll also not that in the world of Coke and the other great common law men, "fundamental law" was not the same thing as whatever a judge happens to think is right. It had specific maxims, rules, and precedents.