on the solicitude of the state for security with respect to such of the citizens’ actions as relate directly to others. (civil laws.)

The subject to which we have now to direct our attention, or the consideration of actions which relate immediately to others, although it is in general more complicated than the last, does not imply so much difficulty as regards the present inquiry. For where rights are infringed on by such actions, it is clearly the duty of the State to restrict them, and compel the agents to repair the injury they have inflicted. But according to the position we endeavoured to enforce in a preceding chapter, these actions do no violence to right except when they deprive another of a part of his freedom or possessions without, or against, his will. When any one has suffered wrong, he has a right to redress; but when once, as a member of a community, he has transferred his private revenge to the State, to nothing more. He, therefore, who has committed the wrong is bound to restore to him who has sustained it, all of which he has been deprived; or, should this be impossible, to make sufficient amends, standing security for this to the full extent of his means and of all that his powers may enable him to acquire. To deprive a man of his personal liberty,—as is practised, for instance, in the case of insolvent debtors,—can only be admitted as a subordinate means, where otherwise the creditor should run the risk of losing the debtor’s future earnings. Now while the State is not to refuse any just means of redress to the person injured, it must take care that a spirit of revenge does not turn this fair demand into a pretext for injustice. This seems the more necessary when we reflect, first, that in a state of nature the person originally committing the wrong would resist him who sought satisfaction, should he trespass the confines of right in his eagerness for revenge; whereas here, the irresistible authority of the State comes in to check further retaliation; and secondly, that general definitions (which are always necessary when a third is to decide) invariably tend to encourage the pretext before-mentioned. The imprisonment of debtors therefore might seem to require still further exceptions, as the greater number of laws relating to them allow.

Actions which are undertaken by mutual agreement are exactly similar to those which a man performs of himself, without immediate reference to others, and I have only to repeat of them what I have already observed of the latter. There is one class of such actions, however, which requires wholly special regulations; I mean those which are not concluded at once, but extend in their operation to the future. Under this head come promises or engagements which impose perfect duties on the parties to the engagement, whether it be mutual or not. By these, portions of property are made over from one person to another; and if the party transferring it retracts from his engagement by trying to recover what has been transferred, security is disturbed. It is therefore one of the most important duties pertaining to the State to see that such engagements are binding. But the restraint which every engagement imposes is then only just and salutary, when, firstly, the implied limitation extends to him alone who enters into it; and secondly, when he has in general, and at the time of the engagement, acted with a proper capacity of reflection, and exercised a free power of decision. Wherever such is not the case, coercion is as unjust in principle as it is pernicious in its effects. On the one hand, also, the deliberation as regards the future can never be perfectly just and complete; and on the other, there are many obligations contracted, of a nature to impose such fetters on liberty, as prove serious hindrances to the man’s complete development. Hence there devolves a second duty on the State—to refuse the support of the law to such engagements as are contrary to right, and to take all necessary precautions (consistent with the security of property) to prevent a moment’s want of reflection from entailing such restrictions on a man as to retard or prevent his own perfect development. It comes within the province of juridical theories, to detail all that is necessary for the validity of contracts or engagements. It only remains for me to observe, with regard to their objects, that a State, to which (according to our former principles) nothing beyond the solicitude for security is allowed, may not regard any other objects as exceptional save those which are already shown to be such by general considerations of right, or by the solicitude for security. Of this class we may notice the following cases, as being the most remarkable:—1. When the party promising cannot transfer any right of coercion without making himself a tool for the designs of others—as, for example, in every contract which ends in the slavery of the person contracting; 2. Where the party promising has no power to grant what is promised, according to its very nature—as is the case, for instance, in all matters of feeling or belief; 3. When the promise in itself, or in its implied consequences, is either incompatible with, or dangerous to, the rights of others, in which case the principles established in our last chapter are here also strictly applicable. Now the difference between these cases is this, that in the first and second the State must only refuse the right of coercion provided by its laws, without preventing the formation or execution of such engagements, in so far as this execution is mutual; while, in the last instance we have mentioned, it not only can, but must, forbid the very act of engagement itself.

Still, even where there is nothing to be objected to the validity of a contract, the State should have the power of lessening the restrictions which men impose on one another, even with their own consent, and (by facilitating the release from such engagements) of preventing a moment’s decision from hindering their freedom of action for too long a period of life. When, however, a mere transfer of things is implied in the contract, without any other personal relation, I do not consider such a course to be advisable. For, firstly, these are seldom of such a kind as to lead to a lasting relation between the contracting parties; secondly, limitations directed to such engagements tend to disturb, far more hurtfully, the security of negotiations; and lastly, for many reasons, but chiefly with respect to the exercise of judgement and strength of character, it is well that the word once given should be irrevocably binding; so that such an obligation should never be removed except where this is really necessary, and that such a necessity does not occur in the case of a transfer of things, is evident from the consideration that however they may hinder certain manifestations of human activity, they seldom tend to weaken the force of energy itself. But with contracts which render personal performance a duty, or still more with those which produce proper personal relations, the case is wholly different. With these, coercion operates hurtfully on man’s noblest powers; and since the success of the pursuit itself which is to be conducted in accordance with the contract, is more or less dependent on the continuing consent of the parties, a limitation of such a kind is in them productive of less serious injury. When therefore such a personal relation arises from the contract as not only to require certain single actions, but, in the strictest sense, to affect the person, and influence the whole manner of his existence; where that which is done or left undone is in the closest dependence on internal sensations; the option of separation should always remain open, and the step itself should not require any extenuating reasons. Thus it is with matrimony.

Where the relation is indeed less intimate, while the personal liberty is still narrowly restricted, I am of opinion that the State should fix a time (the length of which must be determined by the importance of the restriction on the one hand, and on the other by the nature of the pursuit) during which none of the parties should be allowed to detach themselves without mutual consent; but that after its expiration, the contract, unless renewed, should not remain binding, even though the parties, in concluding the engagement, had abandoned the advantage to which such a law would entitle them. For although such a provision might seem to be nothing more than a boon of the law, and not to be enforced more than any other similar privilege, the course we suggest does not debar any one from entering into a lifelong contract, but guards against the possibility of constrained performance of an engagement, when such constraint would be injurious to the individual’s highest aims. And indeed it is the less a mere boon in this, that the cases I have quoted, and especially matrimony (as soon as freewill no longer accompanies that relation), differ only in degree from that in which one party surrenders himself as a mere tool into the hands of others, or rather is made a tool by the other to further his designs; and the competence to determine generally in these the boundary between just and unjust constraint, cannot be refused to the State, that is, to the common will of society; since it would only be possible in special cases to decide accurately and truthfully where the limitation arising from a contract was such as actually to render him who has changed his wishes, a mere tool of the other. Lastly, it cannot be called imposing a boon, when we do away with the power of resigning it by anticipation.

The fundamental principles of right themselves establish it, and it has been already expressly laid down, that no one can make a valid contract, or, in general, enter into any engagement with regard to anything save that which is really his property, that is, his actions or his possessions. It is evident moreover that the chief solicitude of the State for the security of its citizens (in so far as this is affected by the operation of contracts or engagements), consists in watching and maintaining the observance of this principle. Still there are certain entire departments of transaction to which this fundamental rule has not been applied. Such, for example, are all dispositions of property to be observed after the death of the disposer, whether they be made directly or indirectly, incidentally in another contract or in a special contract or testament, or in any disposition of whatever nature. Right of any kind can only relate immediately to the person: its relation to things is only conceivable in so far as these are connected with the person by actions. With the decease of the person, therefore, this right is also at an end. Hence, as long as he lives, man is free to dispose of his things as he pleases, to alienate them in part or altogether—their substance, use, or possession; and further, to limit his actions and the employment of his means by anticipation, according as he thinks good. But he is in no respect entitled to define, in any way binding on others, what shall be done with his property after his decease, or to determine how its future possessor is to act or not. I will not here stay to examine the objections which may be urged against these positions. The reasons on both sides have been already sufficiently exhausted in the well-known question of the validity of testaments according to natural right; and the point of right is, on the whole, of less importance in this case, as the competence of the whole society to attach that validity to testamentary dispositions which they would otherwise want, is clearly unquestionable. But as regards the practical extension afforded to testaments according to the system of our common law, (which, in this particular at least, unites the subtlety of the Roman jurisconsults with the love of power so eminently characteristic of the feudal system)—as regards this extension, they operate at once to restrict that freedom which is essential to human development, and so run counter to every principle we have unfolded. For they furnish the principal means through which one generation succeeds in prescribing laws to another—through which abuses and prejudices, not likely otherwise to survive the causes which rendered their growth inevitable, or their existence indispensable, continue strong and living by inheritance, from century to century; lastly, through which it comes, that instead of man giving their proper form and character to things, these latter, on the contrary, bring man under their subjection. Further, they divert man’s views, beyond all else, from true power and its development, and direct them exclusively to external fortune and possessions; since these are clearly the only means of securing obedience to their wishes after death. Finally, the arbitrary power of disposing property by testament is often, nay generally, made subservient to man’s less worthy passions of pride, vanity, desire for dominion, etc., of which we are the more assured when we observe that it is not the best or wisest of men who avail themselves of this power: while the wise are not solicitous to arrange anything for a length of time, the individual circumstances of which they are too shortsighted to foresee, the good, so far from eagerly seeking for such opportunities, are too glad not to find an occasion which compels them to impose limits on the will of others. Too often, even, the considerations of secresy and of security against the censure of the world may induce men to make dispositions which otherwise very shame had suppressed. These reasons may serve to show the necessity of guarding against the dangers which may follow to the citizens from the practice of testamentary dispositions.

But what is to supply the place of such dispositions of property if (as principle strictly demands) the State were wholly to abolish the right of making them? As the necessary preservation of order and tranquillity precludes the possibility of any one taking possession, there clearly remains nothing but an hereditary succession ab intestato to be decided by the State. But to transfer to the political power such a mighty positive influence as it would acquire by the right of settling this hereditary succession, and by utterly abolishing the personal will of the ancestor, is forbidden by the principles we have already agreed upon. The close connection which subsists between laws on succession ab intestato with the political constitution of States has been frequently observed; and this source of influence might be employed to further other designs. On the whole, the ............