The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Chapter I: Of the Principle of Utility
• Chapter II: Of Principles Adverse to That of Utility
• Chapter III: Of the Four Sanctions Or Sources of Pain and Pleasure
• Chapter IV: Value of a Lot of Pleasure Or Pain, How to Be Measured
• Chapter V: Pleasures and Pains, Their Kinds
• Chapter VI: Of Circumstances Influencing Sensibility
• Chapter VII: Of Human Actions In General
• Chapter VIII: Of Intentionality
• Chapter IX: Of Consciousness
• Chapter X: Of Motives
• § 1. Different Senses of the Word Motive.1
• § 2. No Motives Either Constantly Good Or Constantly Bad.
• § 3. Catalogue of Motives Corresponding to That of Pleasures and Pains.
• § 4. Order of Pre-eminence Among Motives.
• § 5. Conflict Among Motives.
• Chapter XI: Of Human Dispositions In General
• Chapter XII: Of the Consequences of a Mischievous Act
• §1. Shapes In Which the Mischief of an Act May Show Itself.
• § 2. How Intentionality, &c. May Influence the Mischief of an Act.
• Chapter XIII: Cases Unmeet For Punishment
• § 1. General View of Cases Unmeet For Punishment.
• § 2. Cases In Which Punishment Is Groundless.
• § 3. Cases In Which Punishment Must Be Inefficacious
• § 3. Cases Where Punishment Is Unprofitable.
• § 3. Cases Where Punishment Is Needless.
• Chapter XIV: Of the Proportion Between Punishments and Offences
• Chapter XV: Of the Properties to Be Given to a Lot of Punishment
• Chapter Xvi (sections 1-2): Division of Offences1
• §1. Classes of Offences.
• § 2. Divisions and Sub-divisions.
• Chapter Xvi (sections 3-4): Division of Offences1 (continued)
• § 3. Genera of Class I.
• § 4. Advantages of the Present Method.
• § 5. Characters of the Five Classes
• Chapter XVII: Of the Limits of the Penal Branch of Jurisprudence
• § 1. Limits Between Private Ethics and the Art of Legislation.
• § 2. Jurisprudence, Its Branches.

§ 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. 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.*

* See tit. [Simple merc. Defraudment].