WILL. 



53 



seeking the agreeable and shunning the disagreeable ; 

 but of will in a higher sense, as influenced by the 

 moral principle to seek what is good in itself, with- 

 out reference to present pleasure or pain, brutes are 

 not capable. Rational will presupposes liberty of 

 choice. Moral liberty consists in the power of de- 

 termining according to reason ; but the will of man 

 is never governed by a simple reference to the 

 highest good: such purity of purpose can be 

 ascribed only to the Deity. The freedom of the 

 will is essential to moral action, and is the great 

 distinction of man from the brute ; yet it is not 

 easy to reconcile it metaphysically with the influ- 

 ence of external things upon the mind, and with 

 the foreknowledge of God. To determine how far 

 the human will is free, and how far it is subjected 

 to uncontrollable influences, has always been the 

 great aim of the metaphysician and the moralist. 

 But to give a proper view of a subject so profound, 

 so unlimited, and so variously treated, would far 

 exceed the limits which the character of this work 

 prescribes. 



WILL, OR TESTAMENT (ultima voluntas, last 

 will). In the abstract, there is a contradiction in 

 the idea of a will, because, whilst all the authority 

 and obligation of a will is founded on the idea of a 

 society, to which he who makes the will belongs, 

 the person who claims the assistance of the society, 

 has, in fact, ceased to belong to it, and all mutual 

 obligations between him and the society have been 

 dissolved by his death. It cannot be denied that 

 there is something un philosophical in the idea that 

 a being, no longer a member of a society, shall 

 nevertheless influence it by his previous will. But, 

 on the other hand, the reasons in support of the 

 right of making wills are so numerous, that it is 

 sanctioned by the laws of all civilized nations, and 

 even receives additional security with the progress 

 of civilization. Our limits do not permit us to go 

 into the discussion of these reasons. We will only 

 remark that it is generally admitted that the dis- 

 position to acquire property, and the secure posses- 

 sion of it when acquired, are the foundation and 

 safeguards of civilization ; and this disposition to 

 acquire, and the feeling of complete ownership, are 

 greatly promoted by the liberty to dispose freely of 

 acquired property, even after death. 



The idea of a will does not exist among nations 

 in their earliest stages. They admit the right of 

 making testaments with reluctance, and under great 

 restrictions, and render the execution of the right 

 difficult, by surrounding it with formalities, which 

 indicate that such a disposition takes place only 

 with the consent of the society, and is valid only 

 under its authority. In Rome, this right was ex- 

 tended, by the twelve tables, to every father of a 

 family (pater familias titi leyassit super pecunia 

 t it I i-lu r a rei SUCK, ita jus esto) ; but the earliest form 

 of making wills was to declare one's own will in the 

 assemblies of the people (calatis comitiis), or in the 

 presence of the soldiers, who were collected for a 

 military expedition (fn procinctu). Among the 

 ancient Germans, the right of disposing by will was 

 granted only to free persons sufficiently vigorous 

 to appear " without support, without a staff," (un- 

 gehabt und ungestabf), and the right could be ex- 

 ercised only in the assembly of the people. Re- 

 strictions additional to those which proceed from a 

 general incapacity to perform a valid act, have al- 

 ways attended the right of making a will : thus, in 

 Rome, foreigners were not allowed to bequeath 

 their property (this restriction was preserved in the 



droit d'aubaine in France until the revolution) : in 

 Germany, none but free persons had this right, and 

 even they could not dispose of inherited estates. 

 Such limitations have been gradually abolished in 

 modern times : still, however, in favour of children, 

 parents, grand-parents, &c., many are yet con- 

 tinued in various parts of Europe ; for instance, 

 testators are not allowed to bequeath the whole of 

 their property away from their natural heirs. Per- 

 sons of full age, sound mind, reputable deportment, 

 and capable of making known their intentions, are 

 generally allowed to make a will. Of course, the 

 testator cannot dispose of any thing of whicn he 

 has not the full property, such as fiefs, entailed 

 estates, &c. 



In the Roman law, the doctrine of wills and 

 testaments was intimately connected with the 

 earliest foundations of their national law, with their 

 religion by the sacra privata, with the ancient 

 rights of their gentes, with their views of the com- 

 plete property of a citizen (dominium ex jure Quiri- 

 tiuni) and of mere possession (quod in bonis esf), 

 with their system of slavery, and their public law. 

 Hence this doctrine is so interwoven with their 

 whole law, and is marked by so many peculiarities ; 

 for instance, that a testament must always embrace 

 the whole property left (nemo pro parte testatus, 

 pro parte intestatus decedere potesf), which has been 

 abolished in the modern codes (Prussian Code i, 

 xii, 256; Austrian Civil Code i, 556). The Ro- 

 man law has, notwithstanding all these peculiari- 

 ties, become general in modern Europe, and has 

 found its way even to England (as testaments there 

 come within the jurisdiction of the ecclesiastical 

 courts), where it still exists with some modifica- 

 tions. In Germany, too, the Roman law is yet 

 the law of the land, wherever it has not been ex- 

 pressly changed, and there it has retained the most 

 of its peculiarities. In Germany, however, all 

 foreigners are capable of bequeathing and inheriting, 

 by a law made as early as the time of the emperor 

 Frederic II. (See Aubaine, Droit d'.~) This is 

 not the place to treat a subject so extensive in all 

 its details. We can only give the most important 

 features. The form of testaments required by the 

 Roman law still bears the stamp of its origin. The 

 fundamental idea is that of a solemn and public 

 transfer of the whole property, by which another 

 person enters into all the transferable rights and 

 obligations of the testator. This was to be done 

 before seven witnesses, expressly summoned (Ro- 

 man male citizens, against whom there was no legal 

 objection), and the whole ceremony was to be per- 

 formed without interruption. Five of these were 

 proper witnesses : the sixth (libripens) originally 

 carried a balance, to denote the weighing out of the 

 estate to the heir, who was considered as a pur- 

 chaser; the seventh (antestatus) is considered by 

 Hugo as the foreman of the witnesses. In their 

 presence the testator made known his will, either 

 merely orally (testamentum nuncupativum'), or by 

 showing them a writing in his own hand, or at 

 least signed by himself, declaring it to be his testa- 

 ment, which was then also to be signed and sealed 

 by all the witnesses (testamentum scriptum). It the 

 testator was a blind person, an eighth witness was 

 necessary, and also if he could not write, but only 

 in case he made a written instrument. The want 

 of these external formalities made a will void (in- 

 justunC), so that it lost its whole effect. The in- 

 ternal formalities included, in general, the institu- 

 tion of heirs, particularly if the testator had children 



