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ment of all penal laws. I add with entire satisfaction, that under no form of government is a certain degree of mildness more requisite, in none more effectual to the prevention of crimes, than under the representative form of popular government. An equitable moderation in punishments, while it exhibits the powers of government in the amicable light of humanity, cherishes and invigorates its only efficient principle, a sentimental attachment to its institutions and laws.
Of Taxation, or Laws for raising a Public Revenue.
The right of taxation is no more than the right of punishment on arbitrary institutions of civil government. To whatever organ the exercise of the right is committed, it is a trust for the benefit of the community. It is perceived, eren by the most simple, that from the relations of men in civil society, there results a duty upon them, not only to forbear to injure the society, but also to contribute to its support and prosperity ; that common conception of the individuality of a society, which has been before explained, has no inconsiderable effect in rendering the perception of this duty distinct and in collecting and fixing its object. The duty may be called the duty of contribution on the one hand, from which, on the other, results the right of taxation. The right of taxation is nothing more than the right to enforce the duty of contribution, to which every member of the community is originally bound. The duty, and he right wherever it resides are reciprocal. The duty is the same upon every individual, as to the reality, not as to the quantity of the contribution.
No civil duty, perhaps, can less be intrusted to the voluntary conduct of individuals ;-none more needs a provision of general rules, to secure equal justice, both to individuals and the community. The utility of the community cannot be opposed to that of the individual members in gereral ; nevertheless, the latter, from its being more immediate, so far outweighs the former, that they are often viewed in opposition. The duty would, therefore, never be performed, unless there somewhere resided a right, with authority, as well to enforce it, as to apportion the several quotas. The end of this right and duty is the utility of the community ; not indeed in an absolute sense, but in certain relation, proportion, and agreement with the utility of individuals.
The right of determining the amount, of apportioning the contribution, and enforcing the duty-which is the right of taxation—is originally in the community, considered as an aggregate body. The organ by which it shall be exercised, is, as in the case of punishment, a consideration of propriety, safety, and convenience, and the apportionment must be made by equal and general rules, and the demand enforced by the sanction of law. It is, therefore, with propriety and convenience, committed to the legislative body. If such body be composed of a full and equal representation of the several interests of the citizens, the trust is safely deposited with them. The power and right of taxation can be safely intrusted to no man, or body of men, who are not amenable to the people for the exercise, and who do not equally share the burdens which they impose, without a moral certainty of oppression, the final annihilation of liberty, and all security of private property.
The great question, therefore, about taxation, and representation, is a question about the mode, rather than the right; a consideration of safety to the rights of the people. It is, indeed a most important consideration ; but it does not reach the original right of taxation, founded on the duty of contribution. The representation of any portion of the people in the national legislature is a proof of an intimate civil connexion which clearly subjects them to the duty of contribution ; but if the
people choose to intrust the power of taxation in any other mode, or to any other body, the exercise, if not equally safe, may be equally legitimate. It is not easy, perhaps, to ascertain with precision, what degree of social union among individuals will incur the duty of contribution. It is, however, clear that one community can have no right to tax personally the members of another community, where the citizens of both are not united ultimately by an internal, reciprocal, civil connexion.
States in league, may, as far as the league extends, incur one to another, the duty of contribution; but the duty is demandable against each state collectively, not against the individual citizens. Each state has a demand against the other, and the several states against their citizens individually, to enable them to fulfil their engagements. Between the several states the right to enforce the duty resides equally in every part, till by mutual agreement, a body is formed for its exercise. Till this bas taken place, it remains, like that of independent individuals, a voluntary duty, or to be enforced only by the law of nations,—the right of the sword.
So different are the interests, both general and particular, in different states, that no general rules can be prescribed as to the particular mode of taxation, which shall be equally applicable to all; it must ever be considered as a matter of public convenience and private equity. There are, however, certain principles which ought ever to be considered as fundamental, in all laws upon this subject. The lawful interest of no citizen or class of citizens, can, without injustice, and a violation of equal rights, be sacrificed to that of another, or even that of the whole. That mode ought to be adopted which, as far as general rules can extend, will operate agreeable to the rule of mutual compromise,-a rule very general indeed, which is applied in ethics, may, with great propriety, be applied in this case. Requisition shall be made of a man according to that which he hath, not according to that which he hath not. Taxes, therefore, ought not to be apportioned upon. persons, but upon things-upon property possessed or used by individuals.
Smith, in his Wealth of Nations, in treating of taxes, has laid down the four following rules, or maxims as he calls them;
“1. The subjects of every state ought to contribute toward the support of government, as nearly as possible in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state.
"II. The tax which each individual is bound to pay, ought to be certain and not arbitrary. The time of payment, the manner of payment, the quantity to be paid, ought to be clear and plain to the contributor, and to every other person.
“III. Every tax ought to be levied at the time, or in the manner in which it is most likely to be convenient to the contributor.
“IV. Every tax ought to be so contrived, as both to take out and to keep out of the pockets of the people, as little as possible over and above what it brings into the treasury of the state.”—To which may be added
V. Every tax ought to be so contrived, as to cause as little vexation, and to embarrass as little as possible the common business of the citizens.
Taxes have generally been reckoned of two kinds, and denominated direct and indirect taxes. Those of the first class are called direct taxes, because they are assessed upon the person or upon the property in his possession or use, and of which he is supposed to be the proprietor. Of this we shall first treat;some of our observations will, however, be alike applicable to both kinds of taxes.
First. A direct tax, we have said, is assessed upon the person, or on the property. That which is assessed on the person is called a capitation tax. In the assessment of this tax no regard is had to the means of payment. The same sum is demanded of the poorest as of the wealthiest subject of the same rank; it is in its operation unequal in the extreme, and can never be adopted by a government that would pay any regard to the just and equal distribution of the public burdens.
When* direct taxes are assessed upon property, it has been used to apportion them upon a valuation of the property or thing to be taxed. This will be just and equal, provided the valuation be made--not according to the market value, butaccording to the income it may produce with ordinary management. There are, however, some exceptions which will occur in their proper place.
Protection has, by many, been held to be the consideration, on the one side, on which is founded the right of taxation on the other. If it were so, the degree of protection should serve as a measure for the apportionment of taxes on individuals. But this is not the case. The mutual protection of its members is one great end proposed in the civil compact. But the duty of contribution, and consequently the right of taxation, arises from the whole relation in which men stand in society. The same thing is true of every civil right and duty. The general relations are connected and form a certain internal relation
among themselves. If we take away one relation, it deranges the connexion, varies the mutual relations, and of course the result.
In those governments in which the rights of the sovereign are supposed to be original, and independent of the rights of the people, it is in perfect consistency with the principles of the government, to derive the sovereign's right of taxation from the protection afforded to the subject, although in practice as it always happens with such absurd principles ; it is destructive of the consideration itself, and the source of the most grievous oppression. But where, as in popular governments, those who exercise the sovereign power are merely constituted organs, and exercise only the power of the people, associated in civil government, that consideration between the sovereign and the people does not exist. The sovereign power,--the whole right is the power and right of the people thus associated,—not individually, but collectively.
It is true, that the laws of nature, from which result all civil rights and duties, are always directed to some useful end; but the useful end to be attained is the criterion by which to judge of their authenticity, rather than the consideration of the duty imposed; the final, rather than the efficient cauşe.
The right of the citizen to civil protection does not arise from any such consideration, and an apportionment of taxes upon that principle, would be grossly unequal and oppressive. It would make the poor and the weak the greatest debtors to the state ; for, contributors they could not be. The consideration of abstract relations and abstract rights,-fabrications of the mind only,