Front Page Titles (by Subject) § 2. Cases in which punishment is groundless. - An Introduction to the Principles of Morals and Legislation
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§ 2. Cases in which punishment is groundless. - Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 
An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, 1907).
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§ 2. Cases in which punishment is groundless.
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,70 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 value71 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.72
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.73
[70.]See B. I. tit. [Justifications].
[71.]See supra, ch. iv. [Value].
[72.]See Book I. tit. [Justifications].
[73.]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.*