Probably the most weighty and concrete judicial opinion on this subject was that given by the Supreme Court of the United States in 1874 in the now celebrated case of the Loan Association vs. Topeka, 20 Wallace, in which the late Justice Miller, with the substantial concurrence of his associates, indorsed and amplified the opinion of Chief-Justice Marshall touching the reservation of individual rights under a free government as follows:
"It must be conceded," he said, "that there are rights in every free government beyond the control of the state. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unbounded control of even the most democratic depositary of power, is after all but a despotism. The theory of our governments, State and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations of such powers which grow out of the essential nature of all free governments—implied reservations of individual rights, without which the social compact could not exist, which are respected by all governments entitled to the name. . . . Of all the powers conferred upon the Government that of taxation is most liable to abuse. Given a purpose or object for which taxation may be lawfully used, and the extent of its exercise is in its very nature unlimited. This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there are no implied limitations of the uses for which the power may be exercised. To lay with one hand the power of the Government on the property of the citizen, and with the other bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less robbery because it is done under the forms of the law and is called taxation. This is not legislation. It is a decree under legislative forms." And in the same case the same court declared that "the whole theory of our governments—State and national—is opposed to the deposit of unlimited power anywhere."
No one would probably question that if an assemblage of men reasonably intelligent—though not versed in law, political economy, or the teachings of social science—were to come together for the purpose of founding a state de novo, they would, while recognizing at once, and as it were instinctively, the necessity of insuring to the government of such state a revenue adequate to its support, never even so much as dream for one moment of intrusting to it a power to take the property of any individual member of such assemblage, except so far as might be absolutely necessary to carry out and fulfill the purposes for which it was proposed to
