§ 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.
III. It is plain, therefore, that in the following cases punishment ought not to be inflicted. 7. Where it is groundless: where there is no mischief for it to prevent; the act not being mischievous upon the whole. 8. Where it must be inefficacious: where it cannot act so as to prevent the mischief. 9. Where it is unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented. 10. 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. 1. 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: That the offence is such as admits of an adequate compensation: 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.
§ 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, Of an ex-post-facto law; where the legislator himself appoints not a punishment till after the act is done. 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.
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, 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. 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. 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.