All punishment being in itself 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.
It is plain, therefore, that in the following cases punishment ought not to be inflicted: 1. Where it is groundless: 2. Where it must be inefficacious; because it cannot act so as to prevent the mischief: 3. Where it is unprofitable or too expensive: 4. Where it is needless; because the mischief may be prevented or cease of itself without it.
1. Where there has never been any mischief, as in the case of consent: Such consent, provided it be free and fairly given, being the best proof that can be obtained, that at least no immediate mischief upon the whole has been done to the party who gives it.
2. Where the mischief is outweighed by the production of a benefit of greater value, as in precautions against instant calamity, and the exercise of domestic, judicial, military, and supreme powers.
These are, 1. Where the penal provision is not established until after the act is done. Such are the cases of an ex post facto law, and of a sentence beyond the law. 2. Where the penal provision, though established, is not conveyed to the notice of the person on whom it is intended to operate, as from want of due promulgation. 3. Where the penal provision, though it were conveyed to the individual's notice, could produce no effect with respect to preventing his engaging in the act prohibited: as in the cases of extreme infancy, insanity, and intoxication. 4. Where the penal provision, though present to the party's notice, does not produce its effect, because he knows not the act he is about to engage in is of the number of those to which the penal provision relates. 5. Where, though the penal clause might exert a full and prevailing influence were it to act alone yet by the predominant influence of some opposite cause upon the will, such as physical danger or threatened mischief, it must necessarily be ineffectual. 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 his will: insomuch that the act is absolutely involuntary, as through compulsion or restraint.
If the evil of the punishment exceed the evil of the offence, the punishment will be unprofitable. The legislator will have produced more suffering than he has prevented. He will have purchased exemption from one evil at the expense of a greater.
The evil resulting from punishment divides itself into four branches:—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. 2. The evil of apprehension, or the pain which a man, who has exposed himself to punishment, feels at the thoughts of undergoing it. 3. The evils of sufferance, or the pain which a man feels, in virtue of the punishment itself, from the time when he begins to undergo it. 4. The pain of sympathy, and the other derivative evils resulting to the persons who are in connection with those who suffer from the preceding causes.
A punishment is needless, where the purpose of putting an end to the practice may be attained as effectually at a cheaper rate, by instruction, 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 offences which consist in the disseminating pernicious principles in matters of duty, of whatever kind the duty may be, whether political, 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 individual from endeavouring to inculcate his principles, yet it may prevent others from adopting them: without which, the endeavours to inculcate them will do no harm. In such a case, the sovereign will commonly have little occasion to take an active part: if it be the interest of one individual to inculcate opinions that are pernicious, it will 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 wherewith to combat error, and not the sword.
On the other hand, as to the evil of the offense, this will, 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 offense. 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.
These considerations ought at all times to be present to the mind of the legislator, whenever he establishes any punishment. It is from them that he will derive his principal reasons for general amnesties, on account of the multitude of delinquents: for the preservation of a delinquent whose talents could not be replaced, or whose punishment would excite the public displeasure, or the displeasure of foreign powers.