The Rationale of Punishment

Book IV

Proper Seat of Punishment

Section III


Punishment is mis-seated in either of two cases 1. Where the delinquent himself is not made to suffer at all, but some other is in his stead.---2. When the delinquent himself is punished and some other guiltless person with him in virtue of an express provision by law.

If the delinquent himself is not punished, but some other person is in his stead, the punishment may be called vicarious punishment. It is thus that in the case of a suicide, who is of course removed beyond the reach of human punishment, suffering is inflicted on his wife, his children, or his dependants.

When in virtue of a social connexion between the delinquent and some other person, it passes from the delinquent upon that other, it may be stiled transitive punishment. It is thus that in our law the children and other descendants in many cases are punished with their parents, for the delinquencies of their parents and other ancestors.

Where a large body of persons are punished at once, upon a presumption that the delinquent or delinquents are to be met with in that body, it may be stiled collective punishment. Thus it is, in our law, corporations are in several cases punishable for the delinquencies of the co-corporators.

Lastly, where along with the delinquent a person is punished who is a total stranger to him; the punishment in this case may, as far as the stranger is concerned, be stiled random punishment. Thus it is that by our law a person who, after certain acts of delinquency secretly committed, has bought land of the delinquent, loses his money and the land.

Punishment by lot, as is sometimes practised where the delinquents are numerous, as in large bodies of soldiery, comes not within this case. The persons who are made to cast lots are all supposed to be delinquents. There is therefore, no punishment but what is in propriam personam in this case. It is not random punishment, but random pardon.

In vicarious punishment, we see it is a third person, as the phrase is, that is punished alone. In transitive punishment, a third person with the delinquent in virtue of his connection with him. In collective punishment, a large body of third persons, uncertain and indeterminate, because probably the delinquent is of the number. In random punishment, a single third person, who, for certain is not the delinquent, and with whom the delinquent has nothing to do.

[RP, Book IV, §2] [RP, Book IV, §4]