One class of cases may be marked out in which a punishment to which it may happen in appearance to be mis-seated is not mis-seated in reality. The offense is committed by A, who is a person under power; the punishment is inflicted on B, in whom the power resides. In other words, the superordinate is made responsible for the subordinate.
To this class of cases may be aggregated the following:---
In all these cases, though to appearance the punishment may be mis-seated, yet in point of fact the punishment is inflicted on the person having the power, not under the notion of innocence on his part, but in contemplation of delinquency on the score of negligence for an ill choice of, or want of attention to, his subordinates. It is on his part a transgression of the negative cast, consisting in the omitting to take proper precautions for the prevention of the positive offence committed by his subordinates.
Under our law, the sheriff is punished if any of the prisoners under the gaoler's custody escape. The sheriff has not the immediate custody of the prisoners; his other duties are incompatible with that. From this circumstance alone then there is no reason for supposing any complicity on his part. But the gaoler is appointed by him; and the object of the law is to render him circumspect, in his choice. The gaoler himself is the person immediately responsible, but as the safe custody of prisoners is a matter of the highest importance, the punishment levelled at the sheriff is in the highest degree expedient, and the more so as the amount of it is in certain cases left to the discretion of the Judge.
The responsibility thus imposed on superiors for the acts of their subordinates is founded not only on the reasons above mentioned, but on others; equally substantial, which have been more particularly developedin another work.