on the solicitude of the state for security as manifested in the juridical decision of disputes among the citizens.

That on which the mutual security of the citizens chiefly depends is the entire transfer to the State of all that concerns the redress of wrongs. Along with this transfer the duty is imposed upon the State of securing to the citizens that which they could not obtain of themselves; hence, of deciding on right where it comes under dispute, and further of protecting him on whose side the right is found to be.

In so doing the State simply takes the place of the citizens, without the admixture of any interest of its own. For security is never really violated when he who is wronged is willing, or has reasons, to waive his right of redress; but only when he who suffers, or believes himself to suffer, wrong, will not patiently put up with it. Nay, even if ignorance or indolence should bring men to neglect their personal rights, the State should not interfere to counteract this of its own pleasure. It may be considered to have discharged its sufficient duty when it has not furnished occasion for such errors by obscure and complicated laws, or by such as have not been properly made known. These considerations also apply to all means adopted by the State to solve the exact question of right in cases where redress is sought. That is, it must not advance a single step further in its investigation into the true nature of the case, than accords with the wish of the parties concerned. Hence, the first principle of every judicial proceeding should be, never to institute a search to discover the truth absolutely and in itself, but only to conduct the inquiry in so far as it is required by the party who is entitled to demand the full investigation. But here too it is necessary to observe this further limitation: namely, that the State is not to yield to all wishes of the prosecutor, but only in so far as such relate to the settlement of the right contested, and suppose only the application of such means as, even without the political union, man might justly employ against his fellowman; especially in cases which only involve a dispute of right between them, and in which there is no violation, or where this is not immediately evident. The State, or the third power called in to the dispute, must only seek to secure the application of these means, and provide for their efficiency. Hence arises the difference between civil and criminal proceedings, that in the former the last resource for eliciting the truth is the administration of the oath, while in the latter the State enjoys far greater liberty in investigation.

Since the judge, as examiner into questions of contested right, occupies a middle place, as it were, between the two parties, it is his duty to see that neither of these is disturbed in his plans for obtaining redress or even delayed by the other; and hence we come to the second principle, equally important with the first: to keep the conduct of the parties under special supervision during the progress of the suit, and to take care that, instead of answering its ultimate design, it does not actually lead away from or wholly counteract it. The most exact and consistent observance of these two principles would give us, I believe, the best system of legal proceeding. For if the importance of the latter principle is overlooked, there is too much scope afforded for the chicanery of the parties interested, and the negligence and egotism of the advocates: thus the lawsuits become complicated, protracted, and costly; while the decisions are often warped and falsified, irrelevant to the object, and unsatisfactory to the persons interested. Nay, these disadvantages often increase the very frequency of juridical disputes, and tend to promote the spread of a litigious spirit. If, on the other hand, the first principle we have noticed is not observed, the proceedings become inquisitorial, the judge gets undue power into his hands, and is disposed to meddle in the minutest private affairs of the citizen. There are illustrations of both extremes in actual practice; while experience corroborates our conclusions, and shows us that whereas the latter of these errors operates to restrict freedom too narrowly, and in opposition to principles of right, the former extreme we have described tends to endanger the security of property.

In order to discover the true state of right in the disputed question, the judge requires indications of it, or means of proof. Hence we gain a new point of view in regard to legislation when we consider that right does not become an actual validity until, when contested, it admits of proof before the judge. It is from this that the necessity arises for new laws of limitation—that is, for those which require certain characteristic marks to accompany transactions............