Looking to the Founders: Government Shouldn’t Profit from Crime

“And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” – Declaration of Independence

The 56 signers of the Declaration of Independence knew they were committing high treason against the British Crown, and that if caught, they would have been tortured and then killed in one of the gruesomest manners possible. Their assets would have been seized, leaving their widows and families penniless. They knew the odds were against them, but still pledged their unwavering support to the cause of Revolution.

From the time of William the Conqueror, the King of England owned all property as a de facto principle of law. As a matter of common law, “owners” of property held it as a privilege from the Crown — a privilege that was not absolute. In particular, felons forfeited all property to their lord (or the Crown or church, depending on the crime), often leaving their families in poverty.

The nobility and the Crown profited greatly from seizing property — and over time expanded the number of offenses included in forfeiture to increase their own wealth and control. At the time of the American Revolution, 220 crimes were punishable by death — with some as trivial as stealing 12-pence worth of property.

In 1776, standing mute (refusing to enter a plea) was equivalent to a guilty plea in English courts — often with immediate imposition of sentence, including asset seizure.

Colonial courts were not carbon copies of their English counterparts. By 1776, a number of colonies had already abolished statutory forfeiture.

George Mason, the father of the Bill of Rights, brought up the issue of forfeiture at the Constitutional Convention. A widow’s dower had been long protected by Virginia law from seizure–Mason did not want to see the federal government denying that protection.

Certain features of forfeiture, like bills of attainder, were forbidden in the Constitution. The first Congress took immediate steps to eliminate most forms of forfeiture under federal law, with most states immediately following suit in their own state constitutions.

In 1970, the Racketeer Influenced and Corrupt Organizations Act — or RICO — was designed to break the power of organized crime and seize property involved in the commission of a crime. Like British forfeiture laws, it turned out to be a big money maker for the federal government and 33 states adopted similar seizure laws within 5 years.

Currently, 15 federal agencies have the power to seize assets, with the daily “income” to the federal government averaging around $13 million in 2012. Over the past 12 years, the federal government has seized over $20 billion in property from United States citizens, often without trial or indictment for a crime.

The problem goes far beyond the federal government, with municipalities enjoying the same money-making schemes by having “for-profit policing.” Recent news in Ferguson, Missouri, highlighted how the city funded 25 percent of its operating budget through the collection of court fines.

I believe the signers of the Declaration of Independence would cringe seeing these developments. The signers’ actions would be more than justification for the government to seize their property today — the same as in 1776.

There’s a medieval English folktale that warns us of the dangers of the police collecting the government’s taxes, and it doesn’t end too well for the government.

We need to step away from the Sheriff of Nottingham model of tax collection and really think about what the Founders risked when they pledged to each other their lives, their fortunes, and their sacred honor.

Image: George Mason by Albert Rosenthal