Wilhelm von Humboldt

“ 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. ”

“ 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 ”

“ 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 ”

“ The fundamental principles of right themselves establish it, and it has been already expressly laid clown, 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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:—
1. As regards those actions which are done without, or against, the will of another, it must prohibit any wrong to the latter in the enjoyment of his powers or the possession of his property ”

“ Should I have succeeded in fully conveying my views by the recapitulation of these principles, they will serve to point out the true course to be pursued in all those cases which relate to the provisions for security designed by civil legislation. It is for this reason, for instance, that I have omitted all mention, in this recapitulation, of those incorporate bodies to which I referred; since, according to the origin of such societies in testament or contract, they are to be judged of by the principles established with respect to these. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 ”

“ 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. ”