Page:Sphere and Duties of Government.djvu/171

151. 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