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.

§ 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.74

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.75

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.76 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.77

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.78

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.

[74.]See B. II. Appendix, tit. iii. [Promulgation].

[75.]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.*

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.

* See B. I. tit. iv. [Exemptions]. and tit. vii. [Extenuations].

[76.]See ch. viii. [Intentionality].

[77.]See ch. ix. [Consciousness].

[78.]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.