What is here meant by mis-seated punishment is not that which in another place was meant by groundless punishment.
The case in which the epithet groundless was applied to the subject punishment, is that in which by the supposition there was no offence in the case, no act to which, by the annexation of eventual punishment, any such character as that of an offence ought, by the legislatures to have been superinduced.
The case in which the epithet mis-seated is applied to the same subject, the case which on the present occasion is in view---is that in which there exists an offence, that is, an act fit to be, as above, converted into an offense---an act to which it is fit that punishment be accordingly attached, and in which case punishment is attached accordingly. Thus far all is right: but what there is wrong in the case consists in this, that punishment is to be found, which, in consideration of the same offence, has been attached to a wrong person: that some persons, one or many, are to be found on whom, in respect of that same offense, no punishment from which they could have been saved ought to have been attached, but on whom punishment, o f some sort or other, from which they might have been saved, does notwithstanding stand attached.
When, in so far as by appointment of the legislator or of the Judge, acting (as in all cases of unwritten or judge-made law) in the place of the legislator, punishment is inflicted on ally person by whom no part has been borne in the offence, it may be said to be mis-seated: seated in a place which is not its proper place.
In this case, if along with the non-offender, no offender suffers, the mis-seated punishment may be, as in practice it has been termed, vicarious: if in the contrary case, extravasated punishment---that is, flowing in a wrong channel.
Punishment ought naturally to be the work of reflection: but whether it be vicarious or extravasated, should there be found an instance in which the infliction of it appears to have been the result, not so much of reflection and thought, as of want of thought, (and the mass of such instances will be found but too extensive) in such case it may be termed random punishment.
Punishment (which is mis-seated, and in particular that which is in an extravasated state), may be so unavoidably or avoidably.
First, as to the case in which the extravasation is unavoidable. On another occasion, in another work, and for another purpose, this case has already been brought to view: viz. under the head of ``Circumstance influencing sensibility''.
Whether in the way and for the purpose of punishment, or in any other way, and for any other purpose, a man cannot be made to suffer, but his connections, if he have any---always his connections in the way of sympathy, frequently his connections in the way of interest, (understand self-regarding interest) are made to suffer along with him: and forasmuch as it can only be by some rare accident, that a man can be found, who has not in either of those ways any connections; thence it follows, that if where it is unavoidable the certainty or probability of its extravasation were regarded as a sufficient cause for forbearing to inflict punishment, it would only be by correspondently rare accident, that any thing could be done for the prevention of offenses of any sort; the consequence of which would be general impunity to crimes and other offences of all sorts, and with it the destruction of society itself.
In so far as it is mis-seated, and is not unavoidably so, punishment, it is almost needless to observe, is, with reference to the person on wholly it is thrown, groundless: as such it is thrown away: it is so much evil expended in waste:---reformation, determent, disablement---it contributes not any thing to any one of the proper ends of punishment; not so much as to vindictive satisfaction for injury, at least to any mind that is not more or less deranged; it is repugnant to utility, inconsistent with humanity, inconsistent with justice.
To all these it is repugnant; but what it is not repugnant to, is English law, written as well as unwritten; for under both these dispensations, instances of it are to be found---instances altogether deplorable in extent as well as abundance.
When the epithet unavoidable is on this occasion, employed, some such limitative clause as is expressed by the words without preponderant inconvenience must be understood. For, in point of possibility, punishment, i.e. the infliction of suffering on that score, being on the part of the legislator and the Judge an act of the will, to avoid inflicting it will on this as on every other occasion, be respectively in their power at all times, not only on this but on every occasion. On so simple a condition as that of seeing government, and with it society itself, perish, you may avoid inflicting punishment altogether.
Bearing continually in mind this necessary and not unobvious limitation, in answer to the question, what, in regard to mis-seated punishment, ought to be the conduct of the legislator, two simple propositions may be laid down without difficulty.
Unhappily there exists not a system of established law which does not exhibit instances in which mis-seated punishment is thus wrongfully employed.
First, as to the case when the application thus made of the matter of punishment is unavoidable not to be avoided without letting in, in some other shape, evil in such a quantity, as after deduction made of the evil saved on the score of punishment, shall leave a net balance on the side of evil upon the whole.
Now, taking the matter on the footing of the principles of utility, punishment however mis-seated, not only may be, but ought to be introduced: and on the part of him by whom that principle is embraced, and taken for his constant guide, to say that of punishment so circumstanced that it ought not to be introduced, would be equivalent to a contradiction in terms.
But, says an objector, punishment in so far as it is inflicted falls upon the guiltless, and to inflict punishment on the guiltless is to violate one of the most important, and fundamental, and universally recognized principles of justice.
The answer is---this being one of those principles which in substance are continually alluded to, but which in truth are not any where to be found, cannot with propriety be employed in the character of an objection to any rule which, standing expressed in a determinate form of words, is seen to be unexceptionable.
To inflict punishment when, without introducing preponderant inconvenience, the infliction of such punishment is avoidable, is, in the case of the innocent, contrary to the principle of utility. Admitted:---and so is it in the case of the guilty likewise.
To punish where, without introducing preponderant inconvenience, such punishment, is unavoidable, is not in either case contrary to the principle of utility:---not in the case of the guilty: no, nor yet in the case of the innocent.
What then are the cases in which the application of punishment to the innocent is avoidable? What the cases in which it is unavoidable?
Answer. Wheresoever, punishment not being in the case in question, in itself undue, it is in your power to apply to the guilty punishment as great a quantity as (supposing it actually administered) is commensurate to the end of punishment---namely, without having recourse to the innocent, there the evil, whatsoever it be, that would be produced by the infliction of punishment on the innocent is avoidable.
Now the fact is, and so it will be found, that (with the exception of such suffering as extravasates and overflows upon the innocent, in consequence of their connexion in the way of sympathy or particular and casual interest) wheresoever the nature of the case admits of the distinguishing who is innocent from who is guilty, the infliction of suffering on the innocent is avoidable.
Define punishment in a certain way, and even the above limitation need not be made. Say that to give it the character of punishment, it is necessary that the suffering that is inflicted should, the whole of it, be directly intentional; that is, either mediately or ultimately intentional; and in that case, such part of the: suffering as, in virtue of their connexion with the guilty person, falls unavoidably upon third persons (a wife or husband, children, relations, dependants, friends or creditors, and so forth) is not punishment---does not come under the denomination of punishment.
This, however, is but a question of words. Take any lot of evil you will, such as it is, it is, whatsoever be its name. Say that it is punishment, the reason for avoiding to produce it, if unavoidable, will not be the stronger; say that it is not punishment, the reason for avoiding to produce it, if avoidable, will not be the weaker.