despise. The multiplicity of our hanging laws, has produced these two things; frequency of executions and frequent pardons. As hope is the first and greatest spring of action, if it was so, that out of twenty convicts one only was to be pardoned, the thief would say, "why may not I be that one?" But since, as our laws are actually administered, not one in twenty is executed, the thief acts on a chance of twenty to one in his favor; he acts on a fair and reasonable presumption of indemnity; and I verily believe, that the confident hope of indemnity is the cause of nineteen in twenty robberies that are committed."

Several causes have concurred to prevent any considerable improvement in the criminal code. Men appear often to entertain an idea of justice as of a physical being or power, something which physically exists,* whereas, it is only the result of certain relations; civil justice results from the relations of men in civil society; beyond these, it has no relation nor even mental existence. This notion has done infinite mischief in the world. It has represented justice, as really offended in proportion to the degree of the crime committed, and inexorably demanding satisfaction by a certain determinate punishment to be inflicted on the offender; like the malevolent deities of some nations who are propitiated by human sacrifices only. By considering a satisfaction to justice as the principal end of punishment, and disregarding its utility to society, the safe and certain criterion of the justice and propriety of any class of civil or social actions, it has served to reconcile people, in other respects of a refined sensibility, to an excess of cruelty in the enacting and the execution of laws.

A punishment annexed to a crime is, by association, viewed in connexion with the crime, and often serves as a measure for the degree of its guilt, which arises only from its relation to society. When from any cause the perpetration of any particular species of crimes has become frequent, the minds of legislators are irritated against the perpetrators and against the crime. Determined to apply an effectual remedy they are

* Beccaria on Crimes and Punishments, Ch. 2.

too prone, without adverting to the cause of the evil, to enhance the penalty, thus augmenting the uncertainty of the punishment, which was perhaps before the most powerful cause.

It is, however, for the interest of humanity and a wise disposition of providence, that in a state of any considerable degree of refinement, sanguinary laws should always defeat the end of their institution. If the penalty imposed by law exceed the demerit of the crime in the estimation of the people, whose general semtiments are, in this case, the best criterion of what ought to have been done, the law is rarely executed. Humanity, whose dictates are more readily obeyed than the requisitions of such laws, is interested in the escape or acquittal of the criminal. When the severity of the punishment excites the compassion of the people, the effect of the punishment is more than lost. While they pity the criminal, they forget his crime, or diminish its guilt, and conceive an abhorrence of the law. If the criminal be detected and condemned, he is viewed as unfortunate, rather than guilty.

From an attention to the state of crimes in different societies we shall find, that in those governments whose legislators have swelled the list of capital offences and by applying the same ultimate punishment to crimes of very different grades have confounded all degrees of guilt, the same crimes are more frequently committed, than in those governments where the laws have been enacted with more mildness, and different degrees of guilt distinguished by different degrees of punishment. The punishment ought never to exceed, but to rather fall short of the demerit of the crime in the sentiments of the people. Where this is the case, humanity is engaged on the side of the law, and the punishment is rendered as certain as the perpetration of the crime. This adds a mild, but irresistible energy to the execution of the law. It is universally true, that certainty of punishment has a much more powerful effect than severity in the prevention of crimes. Indeed, the resentment and contempt of mankind, which always pursue the perpetrator of a crime, if not converted into compassion by the severity of the law, constitute a punishment of no inconsiderable efficacy.

Such is the right of government to punish, and such the principles which ought to be invariably pursued in the enact

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.

CHAPTER VI.

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, even 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 has 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;