An Introduction to the Principles of Morals and Legislation

Chapter XIII

Cases Unmeet for Punishment

§ 4. Cases where punishment is unprofitable.
These are,

XIII. 1. Where, on the one hand, the nature of the offense, on the other hand, that of the punishment, are, in the ordinary state of things, such, that when compared together, the evil of the latter will turn out to be greater than that of the former.

XIV. Now the evil of the punishment divides itself into four branches, by which so many different sets of persons are affected. 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. This is felt by those by whom the law is observed. 2. The evil of apprehension: or the pain which a man, who has exposed himself to punishment, feels at the thoughts of undergoing it. This is felt by those by whom the law has been broken, and who feel themselves in danger of its being executed upon them. 3. The evil of sufferance: or the pain which a man feels, in virtue of the punishment itself, from the time when he begins to undergo it. This is felt by those by whom the law is broken, and upon whom it comes actually to be executed. 4. The pain of sympathy, and the other derivative evils resulting to the persons who are in connection with the several classes of original sufferers just mentioned. Now of these four lots of evil, the first will be greater or less, according to the nature of the act from which the party is restrained: the second and third according to the nature of the punishment which stands annexed to that offence.

XV. On the other hand, as to the evil of the offense, this will also, 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 offence. 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; which is what will be the business of the body of the work.

XVI. 2. Where, although in the ordinary state of things, the evil resulting from the punishment is not greater than the benefit which is likely to result from the force with which it operates, during the same space of time, towards the excluding the evil of the offenses, yet it may have been rendered so by the influence of some occasional circumstances. In the number of these circumstances may be, 1. The multitude of delinquents at a particular juncture; being such as would increase, beyond the ordinary measure, the quantum of the second and third lots, and thereby also of a part of the fourth lot, in the evil of the punishment. 2. The extraordinary value of the services of some one delinquent; in the case where the effect of the punishment would be to deprive the community of the benefit of those services. 3. The displeasure of the people; that is, of an indefinite number of the members of the same community, in cases where (owing to of the influence of some occasional incident) they happen to conceive, that the offense or the offender ought not to be punished at all, or at least ought not to be punished in the way in question. 4. The displeasure of foreign powers; that is, of the governing body, or a considerable number of the members of some foreign community or communities, with which the community in question is connected.

[IPML, Chapter XIII, §3] [IPML, Chapter XIII, §5]