Front Page Titles (by Subject) CHAPTER XVII.: OF SUBSTITUTIVE SATISFACTION, OR AT THE EXPENSE OF A THIRD PARTY. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER XVII.: OF SUBSTITUTIVE SATISFACTION, OR AT THE EXPENSE OF A THIRD PARTY. - 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 SUBSTITUTIVE SATISFACTION, OR AT THE EXPENSE OF A THIRD PARTY.
In the most common case, it is upon the author of the evil that the expense of satisfaction ought to be fixed. Why? because, when fixed in this manner, it tends, in quality of punishment, to prevent the evil, by diminishing the frequency of the offence: fixed upon another individual, it would not have this effect.
Does this reason no longer exist with regard to the first respondent? does it apply to another in default of the first? The law of responsibility ought to be modified in consequence; or, in other terms, a third person ought to be called upon to pay, instead of the author of the mischief, when he cannot furnish the satisfaction, and when the obligation imposed upon this third party tends to prevent the offence.
This may happen in the following cases:—
Responsibility of a Master for his Servant.
This responsibility is founded upon two reasons; the one of security, the other of equality. The obligation imposed upon the master acts as a punishment, and diminishes the chance of similar misfortunes. He is interested in knowing the character and watching over the conduct of those for whom he is answerable. The law makes him an inspector of police, a domestic magistrate, by rendering him answerable for their imprudence.
Besides, the condition of master almost necessarily supposes a certain fortune; the circumstance of being the party injured, the object of the misfortune, supposes no such thing: when there is an inevitable evil to be borne by one of two persons, it is most desirable that its weight should be thrown upon him who is best able to bear it.
This responsibility may have certain inconveniences; but if it did not exist, the inconveniences would be still greater. Did a master wish to commit waste on the lands of his neighbour,—to expose him to some accident,—to wreak his vengeance on him,—to make him live in continual uneasiness, he need only choose some vicious servants, whom he might instigate to serve his passions and his enmities, without commanding any thing, without being their accomplice, or without it being possible to find proofs of it; always ready to urge them on, or to disavow them, he might make them the instruments of his designs, and run no risk himself.* By showing them a little more than ordinary confidence—by taking advantage of their attachment and devotedness, of their servile vanity, there is nothing which he may not obtain by general instigations, without exposing himself to the danger of directing any thing in particular; and he would rejoice with impunity over the evil which he had done by the hand of others. “Unhappy that I am!” cried Henry the Second, one day, vexed with the haughtiness of an insolent prelate: “what! so many servants who boast of their zeal, and not one who will avenge me?” The effect of this imprudent or criminal apostrophe was the murder of the archbishop.
But that which essentially diminishes for the master the danger of his responsibility, is the responsibility of the servant. The real author of the mischief, according to circumstances, ought to be the first to bear its disagreeable consequences, as far as he is able, that the negligent or vicious servant may not be able coolly to say, when doing mischief, “It is my master’s affair, and not mine.”
Besides, the responsibility of the master is not always the same: it ought to vary according to many circumstances, which ought to be examined with attention.
The first thing to be considered is the degree of connexion which subsists between the master and the servant. Is he a day-labourer, or a man engaged by the year?—a workman out of doors, or one dwelling in the house?—an apprentice or a slave? It is clear, that the stronger the connexion is, the more his responsibility ought to be increased. An agent is less dependent upon his principal than a lackey upon his master.
The second thing to be considered is the nature of the work on which the servant is employed. The presumptions against the master are less strong, with regard to work in which his interest would be liable to suffer from the fault of his agents, and they would be stronger in the contrary case. In the first case, the master has already a sufficient motive for exercising his superintendence: in the second, he cannot have this motive; the law must supply it.
3. The responsibility of the master is much greater, if the mischief have happened on account of his service, or during such service; because it is to be presumed that he may have directed it, that he ought to have foreseen the event, and that he might have watched over his servants at this time, more easily than during the hours of their liberty.
There is one case which seems exceedingly to reduce, even if it does not altogether destroy, the strongest reason for responsibility, when the mischief has for its cause a serious offence, accompanied consequently by a proportional punishment. If my servant, for example, having a personal quarrel with my neighbour, set fire to his granaries, ought I to be answerable for a damage that I could not hinder? If the madman do not dread being hanged, will he dread being driven from my service?
Such are the presumptions which serve as a foundation for responsibility: presumption of negligence on the part of the master, presumption of superior wealth on the part of the master above the party injured, &c.; but it ought not to be forgotten, that these presumptions are nothing, when they are contradicted by facts. An accident, for example, has happened by the overturning of a carriage. Nothing is known of the party injured. It is presumed that he is in a situation to receive an indemnity from its owner, who, it is presumed, is in a condition to bear the loss. But what becomes of this presumption, when it is known that this owner is a poor farmer, and the party injured a wealthy noble? that the first would be ruined if he had to pay the indemnity, which is of little consequence to the other. Hence presumptions ought to guide, but they ought never to enslave. The legislator ought to consult them in establishing general rules, but he ought to allow the judge to modify their application according to individual cases.
The general rule establishes the responsibility of the master; but the judge, according to the nature of the circumstances, should change this arrangement, and cause the weight of the loss to fall upon the true author of the evil.
By leaving to the judge the greatest latitude with respect to this reparation, the greatest abuse which can result will be the occasional introduction of the inconvenience which the general rule would necessarily produce, on whichever side it may be fixed. If the judge favour the author of the mischief on one occasion, and the master on another, he who is improperly treated by the free choice of the judge, is not worse off than if he had been thus improperly treated by the inflexible choice of the law.
In our systems of jurisprudence, these modifications have not been observed. The burden of the entire loss is thrown sometimes upon the servant, sometimes upon the master; from which it results, that sometimes security, and at other times equality, have been neglected, whilst the one or the other ought to have been preferred, according to the nature of the case.
Responsibility of a Guardian for his Ward.
The ward is not among the number of the goods of the guardian: he is, on the contrary, among the number of his charges. Has the pupil sufficient fortune to furnish the satisfaction? it is not necessary that another should pay it for him. Has he not the means? the guardianship is in this case too weighty a burthen to be surcharged with factitious responsibility. All that ought to be done is to attach to the negligence of the guardian, proved or even presumed, a fine, larger or smaller according to the nature of the proofs, but which ought not to exceed the expense of satisfaction to the party injured.
Responsibility of a Father for his Children.
If a master ought to be responsible for the faults of his servants, much more ought a father to be so for the faults of his children. Is it possible, and ought the master to watch over those who depend upon him? It is a much more pressing duty upon a father, and much more easy to be fulfilled: he exercises over them, not only the authority of a domestic magistrate, but he possesses all the ascendancy of affection: he is not only the guardian of their physical existence; he may command all the sentiments of their souls. The master may not have been able to restrain or to watch a servant who announces dangerous dispositions; but the father, who might have fashioned at his own will the character and the habits of his children, may be considered the author of all the dispositions which they manifest. Are they depraved? it is almost always the effect of his negligence or of his vices. He ought, therefore, to bear the consequences of an evil which he ought to have prevented.
If it be necessary to add a new reason after so strong a one, it may be said that the children, with the exception of the rights which belong to them as sentient beings, are part of a man’s property, and ought to be considered as such. He who enjoys the advantages of the possession, ought to bear its inconveniences: the good much more than compensates for the evil. It would be very singular, if the loss or destruction occasioned by children should be borne by an individual who knows nothing of them, but their malice or their imprudence, rather than by him who finds in them the greatest source of his happiness, and may indemnify himself by a thousand hopes for the actual cares of their education.*
But this responsibility has a natural limit. The majority of a son, or the marriage of a daughter, putting an end to the authority of the father, causes the responsibility which the law throws upon a father to cease. He ought no longer to bear the punishment of an action which he has no longer the power to hinder.
To perpetuate during his whole life the responsibility of a father, as the author of the vicious dispositions of his children, would be cruel and unjust. For, in the first place, it is not true that all the vices of an adult may be attributed to the defects of his education: different causes of corruption, after the period of independence, may triumph over the most virtuous education; and besides this, the condition of a father is sufficiently unhappy, when the evil dispositions of a child, arrived at the age of manhood, have broken out into crime. After all that he has already suffered in the bosom of his family, the pain which he experiences from the misconduct or dishonour of his child, is a species of punishment which nature itself inflicts upon him, and which it is not necessary that the law should aggravate. This would be to spread poison over his wounds, without hope either of repairing the past, or guarding against the future. Those who would justify this barbarous jurisprudence by the example of the Chinese, have not recollected that the authority of the father in that country ceases only with his life, and that it is just that his responsibility should continue as long as his power.
Responsibility of the Mother for her Child.
The obligation of the mother, in similar cases, is naturally regulated by the rights she possesses.
Is the father still alive? the responsibility of the mother, as well as her power, remain absorbed in that of her husband. Is he deceased? as she takes in hand the reins of domestic government, she becomes responsible for those who are subject to her empire.
Responsibility of the Husband for his Wife.
This case is as simple as the preceding. The obligation of the husband depends on his rights; the administration of their goods belongs to him alone: unless the husband were responsible, the party injured would be without remedy.
As to the rest, the order generally established is supposed here: that order so necessary to the peace of families, the education of children, and the maintenance of manners; that order, so ancient and so universal, which places the wife under the authority of the husband. As he is her head and guardian, he answers for her before the law: he is even charged with a more delicate responsibility before the tribunal of public opinion; but this observation does not belong to our present subject.
Responsibility of an innocent Person who has profited by the Offence.
It often happens that a person, without having had any share in an offence, derives from it a sensible profit. Is it not proper that this person should be called upon to indemnify the party injured, if the guilty party cannot be found, or if he be not able to furnish an indemnity?
This proceeding would be conformable to the principles we have laid down,—in the first place, with regard to security; for he may have been an accomplice without its having been proved: also with regard to equality; for it is more desirable that one person should be simply deprived of a gain, rather than that another should suffer an equal loss.
A few examples will suffice to explain this subject.
By piercing a dike, the land of one party has been deprived of the benefit of the water which he formerly possessed, and it has been given to another. He who comes into the enjoyment of this unexpected advantage, owes at least a part of his gain to him who has suffered loss.
A tenant in possession, whose estate passes to a stranger by entail, has been killed, and has left a family in want. The tenant in tail, who thus comes into a premature enjoyment of the estate, ought to be accountable for a certain satisfaction to the family of the deceased.
A benefice has become vacant, because its possessor has been killed, it matters not how. If he have left a wife and children in poverty, the successor owes them an indemnity proportioned to their necessity, and the enjoyment they had anticipated.*
[* ]There are many methods of doing evil by means of another, without any trace of complicity. I have heard it said by a French counsellor, that when the parliaments wished to save a guilty person, they designedly chose some unskilful person as a reporter, hoping that his unskilfulness would give birth to some means of nullity. This was truly employing ingenuity in the service of prevarication.
[* ]It was a maxim of the Roman law—Qui sentit commodum sentire debet et onus.
[* ]It is a common maxim—Neminem oportet alterius incommodo [Editor: illegible word] fieri.