CHAPTER XIII.



CASES UNMEET FOR PUNISHMENT.



§ 1. General view of cases unmeet for punishment.



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 greater evil.[1]



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 groundless.



                       These are,



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.[2] This consent, provided it be free, and fairly 

obtained,[2] 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[3] 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.[4]



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 dictate.[5]



§ 3. Cases in which punishment must be inefficacious.



                       These are,



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 appointed.



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.[6]



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.[7] 



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.[8] 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 penal.[9]



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 of man.[10]



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 unprofitable.



                       These are,



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:[11] 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.[12] 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 needless.



                       These are,



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.[13] 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 dispensed with.



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,[14] 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 

sharping.[15]



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 

other.[16] 



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. [Extenuations].