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 manifold and ever-varying plans and wishes of individual men are to be preferred to the uniform and unchangeable will of the State. And we should remember, further, that whatever evils may flow from the practice of testamentary dispositions, it seems hard to deprive man of the innocent joy which attends the thought of continuing to do good with his means even after death; and although this feeling, it is true, begets an excessive solicitude for property, when too much encouraged, the utter absence of it might lead perhaps to the opposite evil. The liberty too, which men enjoy, of leaving their means behind them according to their own free disposal, creates a new bond of union among them, which, though often the source of abuse, may yet be attended with the happiest results. And indeed the whole tenour of the ideas and arguments unfolded in this essay might fairly be reduced to this, that while they would break all social fetters asunder, they discover a thousand new and closer ties to reunite the web of human union, with the force of far deeper and more lasting sympathies. He who is isolated is no more able to develope himself than he who is bound by enthralling fetters. Lastly, it differs little whether a man really gives away what belongs to him at the very hour of death, or bequeaths it by will; and to the former he has an undoubted and inalienable right.
The contradiction seemingly involved in the reasons here advanced on both sides of the question, is reconciled when we remember that the dispositions of a testament admit of two kinds of settlement:—1. Who shall be the next heir to the property bequeathed? 2. How is he to manage it; to whom it is to be willed in turn, and, in general, what is to be done with it for the future?—and when we perceive that all the disadvantages above enumerated apply exclusively to the latter determination, while all the contrasting advantages flow only from the former. For if the laws have only provided, by determining the portion due to his family (as indeed they must so determine), that no testator can be guilty of real wrong or injustice, it seems as if the mere kindly wish to gratify, even after death, would leave no especial danger to be apprehended. The principles, moreover, by which men are guided in such actions will evidently be much the same at any given time, and nearly universal in their application; and the frequency or rarity of testaments will, in any period, serve to show the legislator whether the order of succession ab intestato which he has introduced, be still appropriate or not. It might perhaps, then, be advisable to make a corresponding division of the State measures which relate to testaments, according to the twofold character of the objects we have noticed as embraced by them; that is, to allow every man, on the one hand, to determine who shall inherit his fortune after his death, subject only to the limitation as regards the portion due to his family, but to forbid him, on the other, to enjoin in any way whatever how it shall be managed or employed. Now it is certain that the first of these privileges, which we suppose to be allowed by the State, might be seriously abused, and made the very means of doing that which it would prohibit. But it should be the object of the legislator to endeavour to obviate this abuse by special and precise regulations. This is not the place to enter into a full exposition of this subject, but I may propose the following as convenient examples of such regulations: that the heir, in order that he be really the heir, be marked out by no express condition to be fulfilled after the death of the testator; that the testator nominate only the next heir to his possessions and never a subsequent one, since by this process the liberty of the first would be restricted; that the testator have the power of appointing several heirs, but must do this in a direct way; that he be allowed to divide a thing according to its extent, but never with respect to the rights connected with it—as, for instance, substance and usufruct, etc. From these flow manifold inconveniences and limitations of freedom, as also from the idea connected with them, that the heir is the representative of the testator,—an idea which (like so many others which have since become so extremely important) is founded, I believe, on a formality of the Romans, and therefore on the necessarily imperfect arrangement of the juridical constitution of a people who were only in process of formation. But we shall be able to rid ourselves of all these falser notions if we keep the position distinctly in view, that nothing further is to be granted to the testator than, at the most, to appoint his heir; and that the State, while it should assist the latter to secure possession when his appointment is valid, must not lend its aid to the enforcement of any disposition on the part of the testator extending beyond this.
In case no heir has been appointed by the dying person, the State must arrange an order of succession ab intestato. But it does not come within my present design to develope the principles on which such an arrangement should proceed, nor of those which relate to the portion always due to the testator’s family: I will content myself with observing, that the State should not have scope afforded it for the furtherance of its own positive aims in these, as in the other regulations we have considered—as in maintaining the splendour and prosperity of families, or the opposite extreme, of dissipating large fortunes by increasing the number of inheritors; but that it must always act in accordance with ideas of right, which are restricted in this case to the limits of the former co-proprietorship in the testator’s lifetime, and must thus give the first claim to the family, the next to the municipality, etc.
Very closely connected with the subject of inheritance is the question as to how far contracts between living persons may be transmitted to their heirs. We shall find the answer to this question in the principle we have already established: this is, that a man during lifetime may restrict his actions and alienate his property just as he pleases, but is not allowed to limit the actions of his heir after his own death, or, under such circumstances to make any other disposition except such as would secure a valid succession to his property. Hence all those obligations must pass over to the heir and must be fulfilled towards him, which really include the transfer of a portion of the property, and which therefore have either lessened or augmented the means of the testator; but, on the other hand, none of those obligations remain which have either simply consisted in actions of the testator, or related solely to his person. But, even after having made these limitations, there still remains too great danger of entangling the descendants in relations which are binding, by means of contracts concluded in the lifetime of the testator. For rights can be alienated as well as separate lots of property, and such alienations must necessarily be binding on the heirs, who cannot come into any other position than that which has been held by the testator; and thus the several possession of divided rights in one and the same thing, invariably leads to oppressive personal relations. It might therefore be advisable, if not necessary, for the State to prohibit the extension of such contracts beyond the lifetime of the persons concluding them, or, at least, to facilitate the means for effecting a real division of property, where such a relation has once arisen. To enter into fuller details to be observed in such an arrangement, does not come within my present design; and this is the less necessary when I consider that it should not be based so much on general principles, as determined by single laws, having distinct reference to single contracts.
The less a man is induced to act otherwise than his wish suggests or his powers permit, the more favourable does his position as a member of a civil community become. If, in view of this truth (around which all the ideas advanced in this essay properly revolve), we cast a glance at the field of civil jurisprudence, there seems to me, among other important objects, one that especially claims attention; I mean those societies which we are accustomed to denote as aggregate corporations. As they are always characterized by a unity, independent of the number of members who compose them,—a unity which, with unimportant modifications, maintains itself through a long series of years,—they produce in the end all those hurtful consequences which have been observed to flow from the practice of testamentary dispositions. For although, with us, much of their hurtfulness proceeds from an arrangement not necessarily connected with their nature,—namely, the exclusive privileges now expressly accorded them by the State, and now tacitly sanctioned by custom, and from which they often become real political bodies,—still they are essentially calculated of themselves to introduce many inconveniences. But these only arise when the nature of their constitution either forces on all the members certain applications of the common means, or, at least, by the necessity for unanimity, allows the will of the majority to be fettered by that of the minority. Still, unions and associations, so far from producing injurious consequences of themselves, are one of the surest and most appropriate means for promoting and accelerating human development. All that we should expect therefore from the State would be an arrangement, that every corporation or association should be regarded simply as a union of the constituent members at any given time; and hence, that all obstacles be removed which would prevent them deciding in any given case, on the application of their common means according to the majority. It only remains to provide that those on whom the society really depends should be considered as members, and not those only who are connected with it as instruments and accessories,—a confusion which has often occurred, and especially in decisions on the rights of the clergy; where the rights of the clergy have sometimes been mistaken for those of the Church.
From the reasons I have brought forward I would therefore deduce the following principles:—
Where man does not confine himself to the immediate province of his own powers and property, but performs actions relating directly to others, the solicitude for security imposes on the State the following duties:—
 This restriction on the power of bequeathing property, although
it remains in other nations, is no longer a part of the law of England.
For the exact nature and history of this limitation, the reader is referred
to Blackstone’s Commentaries, book ii. ch. 32. Quoting Glanvil, he says
that “by the common law, as it stood in the reign of Henry the Second,
a man’s goods were to be divided into three equal parts, of which one went
to his heirs or lineal descendants, another to his wife, and the third
was at his own disposal: or, if he died without a wife, he might then dispose
of one moiety, and the other went to his children; and so, e converso,
if he had no children the wife was entitled to one moiety, and he might
bequeath the other; but if he died without either wife or issue, the whole
was at his own disposal. The shares of the wife and children were called
their reasonable parts; and the writ de rationabili parte bonorum
was given to recover them.” This right to the rationabilis pars
still continues to be the general law of Scotland. By this a man’s movables
are divided into three parts:—1. The Dead’s part; 2. The widow’s
part, or jus relictæ; 3. The Bairns’ part, or jus
legitimum, a phrase which approaches the German word ‘Pflichttheil,’
which I have been obliged to render by a paraphrase. (See Burton’s ‘Manual
of the Law of Scotland;’ Private Law, p. 105.) —Tr.