CASES UNMEET FOR PUNISHMENT.
§ 1. General view of cases unmeet for
I. The general object which all laws have, or ought to
have, in common, is to augment the total happiness of the community; and
therefore, in the first place, to exclude, as far as may be, every thing that
tends to subtract from that happiness: in other words, to exclude mischief.
II. But all punishment is mischief: all punishment in
itself is evil. Upon the principle of utility, if it ought at all to be
admitted, it ought only to be admitted in as far as it promises to exclude some
III. It is plain, therefore, that in the following
cases punishment ought not to be inflicted.
1. Where it is groundless: where there is no mischief for
it to prevent; the act not being mischievous upon the whole.
2. Where it must be inefficacious: where it cannot act so as to
prevent the mischief.
3. Where it is unprofitable, or too expensive: where the
mischief it would produce would be greater than what it prevented.
4. Where it is needless: where the mischief may be prevented, or
cease of itself, without it: that is, at a cheaper rate.
§ 2. Cases in which punishment is
IV. I. Where there has never been any mischief: where
no mischief has been produced to any body by the act in question. Of this
number are those in which the act was such as might, on a some occasions, be
mischievous or disagreeable, but the person whose interest it concerns gave his
consent to the performance of it.
This consent, provided it be free, and fairly obtained, is the best proof that can be produced, that, to
the person who gives it, no mischief, at least no immediate mischief, upon the
whole, is done. For no man can be so good a judge as the man himself, what it
is gives him pleasure or displeasure.
V. 2. Where the mischief was outweighed:
although a mischief was produced by that act, yet the same act was necessary to
the production of a benefit which was of greater value than the mischief. This may be the case with any
thing that is done in the way of precaution against instant calamity, as also
with any thing that is done in the exercise of the several sorts of powers
necessary to be established in every community, to wit, domestic, judicial,
military, and supreme.
VI. 3. Where there is a certainty of an adequate
compensation: and that in all cases where the offense can be committed. This
supposes two things: 1. That the offence is such as admits of an adequate
compensation: 2. That such a compensation is sure to be forthcoming. Of these
suppositions, the latter will be found to be a merely ideal one: a supposition
that cannot, in the universality here given to it, be verified by fact. It
cannot, therefore, in practice, be numbered amongst the grounds of absolute
impunity. It may, however, be admitted as a ground for an abatement of that
punishment, which other considerations, standing by themselves, would seem to
§ 3. Cases in which punishment must be
VII. 1. Where the penal provision is not
established until after the act is done. Such are the cases, 1. Of an
ex-post-facto law; where the legislator himself appoints not a punishment
till after the act is done. 2. Of a sentence beyond the law; where the judge,
of his own authority, appoints a punishment which the legislator had not
VIII. 2. Where the penal provision, though established,
is not conveyed to the notice of the person on whom it seems intended
that it should operate. Such is the case where the law has omitted to employ
any of the expedients which are necessary, to make sure that every person
whatsoever, who is within the reach of the law, be apprised of all the cases
whatsoever, in which (being in the station of life he is in) he can be
subjected to the penalties of the law.
IX. 3. Where the penal provision, though it were
conveyed to a man's notice, could produce no effect on him, with respect
to the preventing him from engaging in any act of the sort in question.
Such is the case, 1. In extreme infancy; where a man has not yet
attained that state or disposition of mind in which the prospect of evils so
distant as those which are held forth by the law, has the effect of influencing
his conduct. 2. In insanity; where the person, if he has attained to
that disposition, has since been deprived of it through the influence of some
permanent though unseen cause. 3. In intoxication; where he has been a
deprived of it by the transient influence of a visible cause: such as the use
of wine, or opium, or other drugs, that act in this manner on the nervous
system: which condition is indeed neither more nor less than a temporary
insanity produced by an assignable cause.
X. 4. Where the penal provision (although, being
conveyed to the party's notice, it might very well prevent his engaging in acts
of the sort in question, provided he knew that it related to those acts) could
not have this effect, with regard to the individual act he is about to
engage in: to wit, because he knows not that it is of the number of those to
which the penal provision relates. This may happen, 1. In the case of
unintentionality; where he intends not to engage, and thereby knows not
that he is about to engage, in the act in which eventually he is about
to engage. 2. In the case of
unconsciousness; where, although he may know that he is about to engage
in the act itself, yet, from not knowing all the material
circumstances attending it, he knows not of the tendency it has
to produce that mischief, in contemplation of which it has been made penal in
most instances 3. In the case of missupposal; where, although he may
know of the tendency the act has to produce that degree of mischief, he
supposes it, though mistakenly, to be attended with some circumstance, or set
of circumstances, which, if it had been attended with, it would either not have
been productive of that mischief, or have been productive of such a greater
degree of good, as has determined the legislator in such a case not to make it
XI. 5. Where, though the penal clause might exercise a
full and prevailing influence, were it to act alone, yet by the
predominant influence of some opposite cause upon the will, it must
necessarily be ineffectual; because the evil which he sets himself about to
undergo, in the case of his not engaging in the act, is so great, that the evil
denounced by the penal clause, in case of his engaging in it, cannot appear
greater. This may happen, 1. In the case of physical danger; where the
evil is such as appears likely to be brought about by the unassisted powers of
nature. 2. In the case of a threatened mischief; where it is such as
appears likely to be brought about through the intentional and conscious agency
XII. 6. Where (though the penal clause may exert a full
and prevailing influence over the will of the party) yet his physical
faculties (owing to the predominant influence of some physical cause) are
not in a condition to follow the determination of the will: insomuch that the
act is absolutely involuntary. Such is the case of physical
compulsion or restraint, by whatever means brought about; where
the man's hand, for instance, is pushed against some object which his will
disposes him not to touch; or tied down from touching some object which
his will disposes him to touch.
§ 4. Cases where punishment is
XIII. 1. Where, on the one hand, the nature of the
offense, on the other hand, that of the punishment, are, in the ordinary
state of things, such, that when compared together, the evil of the latter
will turn out to be greater than that of the former.
XIV. Now the evil of the punishment divides itself into
four branches, by which so many different sets of persons are affected. 1. The
evil of coercion or restraint: or the pain which it gives a man
not to be able to do the act, whatever it be, which by the apprehension of the
punishment he is deterred from doing. This is felt by those by whom the law is
observed. 2. The evil of apprehension: or the pain which a man,
who has exposed himself to punishment, feels at the thoughts of undergoing it.
This is felt by those by whom the law has been broken, and who feel
themselves in danger of its being executed upon them. 3. The evil of
sufferance: or the pain which a man
feels, in virtue of the punishment itself, from the time when he begins to
undergo it. This is felt by those by whom the law is broken, and upon whom it
comes actually to be executed. 4. The pain of sympathy, and the other
derivative evils resulting to the persons who are in connection
with the several classes of original sufferers just mentioned. Now of these four lots of evil, the first will be
greater or less, according to the nature of the act from which the party is
restrained: the second and third according to the nature of the punishment
which stands annexed to that offence.
XV. On the other hand, as to the evil of the offense,
this will also, of course, be greater or less, according to the nature of each
offense. The proportion between the one evil and the other will therefore be
different in the case of each particular offence. The cases, therefore, where
punishment is unprofitable on this ground, can by no other means be discovered,
than by an examination of each particular offense; which is what will be the
business of the body of the work.
XVI. 2. Where, although in the ordinary state of
things, the evil resulting from the punishment is not greater than the benefit
which is likely to result from the force with which it operates, during the
same space of time, towards the excluding the evil of the offenses, yet it may
have been rendered so by the influence of some occasional circumstances.
In the number of these circumstances may be, 1. The multitude of delinquents at
a particular juncture; being such as would increase, beyond the ordinary
measure, the quantum of the second and third lots, and thereby also of a
part of the fourth lot, in the evil of the punishment. 2. The extraordinary
value of the services of some one delinquent; in the case where the effect of
the punishment would be to deprive the community of the benefit of those
services. 3. The displeasure of the people; that is, of an indefinite
number of the members of the same community, in cases where (owing to of
the influence of some occasional incident) they happen to conceive, that the
offense or the offender ought not to be punished at all, or at least ought not
to be punished in the way in question. 4. The displeasure of foreign
powers; that is, of the governing body, or a considerable number of the
members of some foreign community or communities, with which the
community in question is connected.
§ 5. Cases where punishment is
XVII. 1. Where the purpose of putting an end to the
practice may be attained as effectually at a cheaper rate: by instruction, is
for instance, as well as by terror: by informing the understanding, as well as
by exercising an immediate influence on the will. This seems to be the case
with respect to all those offenses which consist in the disseminating
pernicious principles in matters of duty; of whatever kind the duty be;
whether political, or moral, or religious. And this, whether such principles be
disseminated under, or even without; a sincere persuasion of
their being beneficial. I say, even without: for though in such a case
it is not instruction that can prevent the writer from endeavouring to
inculcate his principles, yet it may the readers from adopting them: without
which, his endeavouring to inculcate them will do no harm. In such a case, the
sovereign will commonly have little need to take an active part: if it be the
interest of one individual to inculcate principles that are pernicious,
it will as surely be the interest of other individuals to expose them.
But if the sovereign must needs take a part in the controversy, the pen is the
proper weapon to combat error with, not the sword.
1. What follows, relative to the subject of punishment,
ought regularly to be preceded by a distinct chapter on the ends of punishment.
But having little to say on that particular branch of the subject, which has
not been said before, it seemed better, in a work which will at any rate be but
too voluminous, to omit this title, reserving it for another, hereafter to be
published, intituled The Theory of Punishment. To the same work I must refer the analysis of the
several possible modes of punishment, a particular and minute examination of
the nature of each, and of its advantages and disadvantages, and various other
disquisitions, which did not seem absolutely necessary to be inserted here. A
very few words, however, concerning the ends of punishment, can scarcely be
The immediate principal end of punishment is to control action. This action
is either that of the offender, or of others: that of the offender it controls
by its influence, either on his will, in which case it is said to operate in
the way of reformation; or on his physical power, in which case it is
said to operate by disablement: that of others it can influence
otherwise than by its influence over their wills, in which ease it is said to
operate in the way of example. A kind of collateral end, which it has a
natural tendency to answer, is that of affording a pleasure or satisfaction to
the party injured, where there is one, and, in general, to parties whose
ill-will whether on a self-regarding account, or on the account of sympathy or
antipathy, has been excited by the offense.. This purpose, as far as it can be
answered gratis, is a beneficial one. But no punishment ought to be
allotted merely to this purpose, because (setting aside its effects in the way
of control) no such pleasure is ever produced by punishment as can be
equivalent to the pain. The punishment, however, which is allotted to the other
purpose, ought, as far as it can be done without expense, to be accommodated to
this. Satisfaction thus administered to a party injured, in the shape of a
dissocial pleasure, may be styled a
vindictive satisfaction or compensation: as a compensation, administered in the
shape of self-regarding profit, or stock of pleasure, may be styled a lucrative
one. See B. I. tit. vi. [Compensation]. Example is the most important end of
all, in proportion as the number of the persons under temptation to
offend is to one.
2. See B. I. tit. [Justifications].
3. See supra, ch. iv. [Value].
4. See Book I. tit. [Justifications].
5. This, for example, seems to have been one ground, at
least, of the favour shown by perhaps all systems of laws, to such offenders as
stand upon a footing of responsibility: shown, not directly indeed to the
persons themselves; but to such offenses as none but responsible persons are
likely to have the opportunity of engaging in. In particular, this seems to be
the reason why embezzlement, in certain cases, has not commonly been punished
upon the footing of theft: nor mercantile frauds upon that of common
6. See Book II. Appendix tit. iii. [Promulgation].
7. Notwithstanding what is here said, the cases of
infancy and intoxication (as we shall see hereafter) cannot be looked upon in
practice as affording sufficient grounds for absolute impunity. But this
exception in point of practice is no objection to the propriety of the rule in
point of theory. The ground of the exception is neither more nor less than the
difficulty there is of ascertaining the matter of fact: viz. whether at the
requisite point of time the party was actually in the state in question; that
is, whether a given case comes really under the rule. Suppose the matter of
fact capable of being perfectly ascertained, without danger or mistake. the
impropriety of punishment would be as indubitable in these cases as in any
The reason that is commonly assigned for the establishing an exemption from
punishment in favour of infants, insane persons, and persons under
intoxication, is either false in fact, or confusedly expressed. The phrase is
that the will of these persons concurs not with the act; that they have no
vicious will; or, that they have not the free use of their will. But suppose
all this to be true? What is it to the purpose? Nothing: except in as far as it
implies the reason given in the text.
8. See ch. viii. [Intentionality].
9. See ch. ix. [Consciousness].
10. The influences of the moral and
religious sanctions, or, in other words, of the motives of love of
reputation and religion, are other causes, the force of which may,
upon particular occasions, come to be greater than that of any punishment which
the legislator is able, or at least which he will think proper,
to apply. These, therefore, it will be proper for him to have his eye upon. But
the force of these influences is variable and different in different times and
places: the force of the foregoing influences is constant and the same, at all
times and every where. These, therefore, it can never be proper to look upon as
safe grounds for establishing absolute impunity: owing (as in the
above-mentioned cases of infancy and intoxication) to the impracticability of
ascertaining the matter of fact.
11. See ch. v. [Pleasures and Pains].
12. See ch. xii. [Consequences] iv.
13. This is the work which, from the Author's papers,
has since been published by Mr. Dumont in French, in company with The Theory
of Reward and added to it, for the purpose of mutual illustration, It is
in contemplation to publish them both in English, from the Author's
manuscripts, with the benefit of any amendments that have been made by Mr.
Dumont. [Note to Edition of 1823.]
14. See ch. x. [Motives].
15. See tit. [Simple merc. Defraudment].
16. See B. I. tit. iv. [Exemptions]. and tit. vii.
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