Front Page Titles (by Subject) CHAPTER XII.: OF RESTITUTION IN KIND. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER XII.: OF RESTITUTION IN KIND. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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OF RESTITUTION IN KIND.
Restitution in kind is principally of importance with regard to things which possess a value in affection.*
But it ought to be made on all occasions, if possible. The law ought to ensure to me every thing which is mine, without forcing me to accept equivalents, which are not even such so soon as I dislike them. Without restitution in kind, security is not complete. What security is there for the whole, when there is no security for any part?
A thing taken away, either honestly or dishonestly, may have passed into the hands of an honest acquirer. Shall it be restored to the first proprietor? shall it be continued in the possession of the second? The rule is simple: it ought to remain with him who may be presumed to have the greatest affection for it. Now this superior degree of affection may be easily presumed from the relation which has been borne to it, from the time that it has been possessed, from the services which have been drawn from it, from the care and expense which it has cost. These indications commonly unite in favour of the true original proprietor.†
The preference is equally due to him in the cases in which there is any doubt; for these reasons:—1. The last proprietor may have been an accomplice, without the proofs of this complicity having been obtained. Is the suspicion unjust? Formed by the law, and not by the man, bearing upon the species, and not upon the individual, it does not produce any impeachment of honour. 2. If the acquirer be not an accomplice, he may be culpable from negligence or temerity, either by omitting the ordinary precautions for verifying the title of the vender, or by giving too easy a belief to slight indications. 3. With respect to weighty offences, such as violent robbery, it is proper to give the preference to the first possessor, in order to strengthen the motives which engage him in pursuit of the offender. 4. Has the spoliation arisen from malice? to leave the thing in the possession of any one besides the stript proprietor, would be to leave the offender in possession of the profit of his crime.
A purchase at a low price ought always to be followed by restitution, on the price being repaid. This circumstance, if it do not prove complicity, is at least a strong presumption of dishonesty. The buyer could not hide from himself the probability of an offence on the part of the seller; for that which causes the low price of stolen goods, is the danger of taking them to an open market.
When the acquirer, being deemed innocent, is obliged, on account of the dishonesty of the seller, to restore any article to the original proprietor, this ought to be accompanied by the payment of a pecuniary equivalent, regulated by the judge.
The simple expense of keeping—for still stronger reasons, improvements and extraordinary expenses—ought to be liberally repaid to the posterior acquirer. This is not only a means of promoting the general wealth; it is also the interest even of the original proprietor. According as this indemnity is granted or refused, the improvement of the article is either promoted or hindered.‡
Neither the original proprietor, nor the posterior acquirer, ought to gain at the expense, the one of the other: the loser ought to have recourse for his indemnity, in the first instance, to the delinquent, afterwards to the subsidiary funds, of which we shall hereafter speak.∥
When identical restitution is impossible, restitution of a similar thing ought, as far as possible, to be substituted. Suppose two rare medals of the same die: the possessor of one of them, after having got possession of the other, either by negligence or design, destroys or loses it. The best satisfaction in this case, is to transfer the medal which belongs to him, to the party injured.
Pecuniary satisfaction, in offences of this kind, is apt to be found insufficient, or even null. Value in affection is rarely appreciated by third persons. It requires a highly enlightened benevolence, an uncommon philosophy, in order to sympathize with tastes which are not our own.
The Dutch florist, paying in pounds of gold for a tulip bulb, smiles at the antiquary who purchases at a great price a rusty lamp.*
Legislators and judges have often thought like the vulgar: they have applied unpolished rules to what demanded a delicate discernment. To offer, in certain cases, an indemnification in money, is no satisfaction—it is insult. Would gold be taken for the portrait of a beloved object, if stolen by a rival?
Simple restitution in kind leaves a deficiency in the satisfaction, proportioned to the value of the enjoyment lost during the continuance of the offence. How shall this value be estimated? This will be made clear by an example. A statue has been illegally taken away: this statue, sold by auction, would fetch one hundred pounds, according to the opinion of the best judges. Between the taking away and the restitution, a year has elapsed: the interest of money is five per cent.; place to the head of satisfaction for the past, ordinary interest, five pounds; for penal interest (according to chap. xi.) say two and a half; total, seven pounds ten shillings per cent.
In valuing interests, the deterioration, whether accidental or necessary, that the object may have undergone in the interval between the commission of the offence and the fact of restitution, ought not to be neglected. The statue may not necessarily have lost any thing, but a horse of the same price would necessarily have diminished in value. A collection of tables of natural deterioration, year by year, according to the nature of the object, is one of the articles needed in the library of justice.
[* ]Of this kind are immoveables in general; family relics, portraits, works executed by esteemed individuals—domestic animals, antiquities, curiosities, pictures, manuscripts, instruments of music; in fact, all that is unique, or appears to be so.
[† ]If it refer to a thing or an animal which reproduces, a judgment may be formed in the same manner, as to the side on which the superiority of affection will be found with respect to the fruits and the products; as the wine of a particular vine, the foal of a favourite horse, &c. However, the pretensions of the anterior proprietor have not so much force in this case, as in the other. The last possessor is only the second proprietor of the animal or thing which produces, but he is first proprietor of the productions themselves.
[‡ ]It matters not whether the acquirer be honest or dishonest. It is not for him, but for you the true proprietor, that an interest is given to him in taking care of the estate or thing which has fallen into his possession. That he should derive a profit from all the good he does to it, nothing can be more wise. It would be possible to establish a punishment against the omissions which should cause it to perish; but its maintenance will be better secured by offering a reward, or rather an indemnification for, care in its preservation. There are many cases in which it would be difficult to prove the offence of negligence; and besides, when reward finds its natural place, and does not produce danger, reward and punishment together are worth more than punishment alone.
[∥ ]I lose a horse worth thirty pounds; you buy it of a man who sells it to you as his own for ten pounds. In virtue of the above rule, you would be obliged to give it up to me, on receiving from me what you gave for it. I am the loser: It remains for me to recover from the seller my ten pounds, and on his default I ought to have relief from the public treasure. But if, instead of adjudging the horse to me, it had been adjudged to you (which might be reasonable under certain circumstances,) then you ought to be obliged to pay me his full value, otherwise I am made to suffer a loss, in order to procure a gain for you. But in this case, you have your remedy against the property of the offender, or, on his default, against the public treasure.
[* ]Some years ago a Canary bird gave rise to a lawsuit before one of the Parliaments in France. A journalist, who has given an account of it, amused himself at the expense of both parties, and regarded the whole affair as ridiculous. I am not of his opinion. It is imagination which gives their value to the objects we esteem most precious. In laws made solely in accordance with the universal opinions of men, can too marked an attention be made to the preservation of every thing which constitutes their happiness? Ought this sensibility, which attaches us to the beings which we have reared, which we have become accustomed to, and whose whole affections are fixed on us, to be forgotten? This suit, so frivolous in the eyes of the journalist, was only too serious, since one of the parties sacrificed to it, not only his money, but his probity and his honour. An object esteemed at such a price cannot be called a bagatelle.