The Sphere and Duties of Government/Chapter 12
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 show r s 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 of business, in order that thereby their reality or validity may be determined. The necessity for laws of this nature invariably decreases as the juridical constitution becomes more perfect; and this necessity is the greatest when, owing to a defective constitution, the greatest number of external signs are required to establish proof. Hence it is that we find in the most uncultivated nations, the greatest number of formalities. In order to establish a claim to a field among the Romans, it was at first necessary that both the parties to the transaction should be present on the very ground; then it was enough to carry a clod from it into court; afterwards a few formal words were deemed sufficient; and, at last, even these were dispensed with. In general, and especially in the less enlightened nations, the juridical constitution has exercised an important influence on legislation—an influence often far from being limited to mere formalities. The Roman doctrine of pacts and contracts occurs to me to supply the place of other examples; and although it is a subject which has been but little examined or explained as yet, it can hardly be regarded from any other point of view than that suggested by the above considerations. To inquire into this influence on different terns of legislation in different times and nations, would not only be useful in many important respects, but would be especially valuable in this—that it would determine what kind of enactments might be generally necessary, and what were founded only on local and peculiar circumstances. Even though it were possible, however, it might be scarcely advisable to abolish all limitations of this nature. Tor, firstly, there would be too great facility afforded for forgeries, such as the substitution of false documents, etc.; and secondly, lawsuits would be multiplied, or, it this does not perhaps appear to be itself an evil, there would be too frequent opportunities of disturbing the peace of others, by kindling useless disputes. Now it is that very spirit of contention which manifests itself in lawsuits, which (apart from the loss of time, fortune, and equanimity it occasions the citizen) operates most banefully on the character; while to compensate for these evils, it is attended with no useful consequences whatever. The disadvantage, on the other hand, of too many formalities are the increased difficulty of transacting business and the restrictions imposed on freedom, which are, in any relation, of critical importance. Therefore, as regards these also, must the law endeavour to adopt a middle course—that is, it must never require formalities for any other object than to secure the validity of negotiations; they are not to be enjoined, even with this design, except where the particular circumstances are such as to render them necessary, where forgeries might be seriously apprehended without them, and the proof be difficult to establish; and, lastly, such regulations only should be prescribed respecting them, as do not imply too many difficulties for their observance, while all should be removed from cases in which the transactions would become not only more difficult, but even almost impossible. The due consideration, therefore, of security on the one hand, and of freedom on the other, appears to conduct us to the following principles:—
1. One of the principal duties of the State is to investigate and settle the juridical disputes of its citizens. In these it takes the place of the parties interested, and the only object of it is to protect from unjust demands, on the one hand, and, on the other, to give to just ones that due weight and consideration which could not be gained for them by the citizens themselves, but in some way prejudicial to the public tranquillity. During the process of inquiry, therefore, it must consult the wishes of the parties, in so far as these are founded on the strictest principles of right, but must prevent either from exercising unjust means against the other.
2. The judge's decision in cases of contested right can only be arrived at with the aid of determinate marks or characteristics, legally appointed. From this arises the necessity for a new class of laws, namely, those which are designed to appoint certain characteristics for assuring the validity of transactions touching right. In framing such laws the legislator must be guided by these two objects alone:—to provide sufficient means for the authentication of transactions respecting rights, and to facilitate the proof which is necessary in lawsuits; secondly, to be careful of running into the opposite extreme, of rendering negotiations too difficult, while he must never impose regulations in cases where they would almost amount to render operations impossible.