WILL. 



wll not equally follow upon tlie preference of his mind ; 

 •there he is not free, though perhaps the aftion may be Yolun- 

 •tary. Accordingly, where thought is wholly wanting, or 

 the power to aft or forbear according to the direftion of 

 thought, there neceflity takes place ; this, in an agent capa- 

 ble of volition, when the beginning or continuation of any 

 aftion is contrary to the preference of his mind, is called 

 compulfwn : when the hindering or (lopping of any aftion is 

 contrary to his volition, it is called rejlralnt. Agents that 

 have uo thought, no volition at all, are in every refpeft ne- 

 ceffary agents. 



Father Malebranche lays it down, that the will is that to 

 the foul, which motion is to the body ; and argues, that as 

 the Author of nature is the univerfal caufe of all the mo- 

 tions in matter, fo he is of all the inclinations in the mind ; 

 and that as all motions are direft, unlefs their courfe be di- 

 verted and changed by fome foreign caufe ; fo all inclinations 

 are right, and could have no other end but the enjoyment of 

 truth and goodnefs, were there not fome foreign caufe to de- 

 termine the natural inipreflion to evil ends. 



Accordingly, he defines will to be the impreffion, or na- 

 tural motion, which carries us towards good indeterminately, 

 and in the general; and the power the mind has, to direft 

 this general impreflion towards any particular objeA that 

 pleates it, is what he calls liberty. 



Ariftotle diftinguiihes two kinds of afts of the will, vi%. 

 BuXrxn;, 'willing, volition ; and TrpoaipEtric, eleSion, The firft, 

 that employed about the ultimate end ; the latter, about 

 the means. 



The fchoolmen alfo diftinguilh the aftions of the will into 

 elicit and commanded. Elicit afts, aBiones elicit*, are thofe 

 immediately produced by the will, and really inherent in it ; 

 fuch are 'willing and nilling. Commanded afts, aSiones im- 

 perate, are effefts produced by other powers ; v. gr. the 

 fenfitive, intellcftive, or locomotive powers, at the command 

 or inftigation of the will. As to follovi, Jlay, Jight, Jly, 

 &c. 



But others will have the former kind properly to belong 

 to the underftanding ; and only the latter to the will. 



The word will is taken in three fenfes : 



1. For the power or faculty of willing, in which fenfe it 

 is, we have confidered it above. 



2. For the aft or exercife of this power ; as, when we 

 fay. No man wills his own deftruftion. 



3. For a habit, or a conftant difpofition and inclination to 

 do any thing. In which fenfe juftice is defined a conftant 

 will to give every one what belongs to him : ** Juftitia eft 

 conftans et perpetua voluntas jus fuum nnicuique tribuendi." 

 Inftit. Juftin. 



Will, Antecedent. See Antecedekt. 



Will, Free. See Liberty, and Freedom. 



Will, Lajl Will, or Tejlament, in Laiw, a folemn aft, or 

 inftruraent, by which a perfon declares his mind and inten- 

 tion as to the difpofal of his goods, effefts, &c. after his 

 death. See Testament. 



This aft or inftrument is emphatically ftyled the will of 

 the deceafed, becaufe it direfts the difpofal of the whole or 

 part of his property, by written or oral inftruftions pro- 

 perly witnefled and authenticated, according to his pleafure. 

 Some have diftinguifhed between a teftament and a will ; 

 a will being properly limited to land, and a teftament 

 only to chattels, requiring executors, which a will only for 

 land doth not require : fo that every teftament is a will, but 

 every will is not a teftament. However, the words have 

 been commonly ufed indifcriminately. 



Wills, Hifiory of. Wills or teftaments, fays judge 

 Blackftoiie, are of very high antiquity. We find them 



among the anient Hebrews : not to mention what Eufebius 

 and others have related of Noah's teftament, made in writ- 

 ing, and witnefled under his feal, by which he difpofed of 

 the whole world, a more authentic inftance of the early ufe of 

 teftaments occurs in the facred writings ( Gen. chap, xlviii. ), 

 in which Jacob bequeaths to his fon Jofeph a portion of his 

 inheritance double to that of his brethren ; which will we 

 find executed many hundred years afterwards, when the pof- 

 terity of Jofeph were divided into two diftinft tribes, thofe 

 of Ephraim and Manafleh, and had two feveral inheritances 

 afligned them ; whereas the defcendants of each of the other 

 patriarchs formed only a fingle tribe, and had only one lot of 

 inheritance. Solon was the firft legiflator that introduced 

 wills into Athens ; but in many other parts of Greece they 

 were totally difcountenanced. In Rome they were un- 

 known, till the laws of the Twelve Tables were compiled, 

 which firft gave the right of bequeathing ; and among the 

 northern nations, particularly among the Germans, tefta- 

 ments were not received into ufe. Hence it appears, that 

 the right of making wills and difpofing of property after 

 death, is merely a creature of the civil ftate, which has per- 

 mitted it in fome countries, and denied it in others, and fub- 

 jefted it to various reftriftions and regulations, where the 

 law allows it. 



With us in England, this power of bequeathing is coeval 

 with the firft rudiments of the law ; not indeed, that it ex- 

 tended originally to all a man's perfonal ettate. See Ra- 

 TIONABILI parte bonorum. 



It is alfo fufiiciently clear, that, before the Conqueft, 

 lands were devifable by will. But, upon the introduftion 

 of the military tenures, the reftraint of devifing lands na- 

 turally took place, as a branch of the feodal doftrine of non- 

 alienation vrithout the confent of the lord. By the common 

 law of England fince the Conqueft, no eftate, greater than 

 for term of years, could be difpofed of by teftament ; ex- 

 cept only in Kent, and in fome ancient burghs, and a few 

 particular manors, where their Saxon immunities by fpecial 

 indulgence fubfifted. But when ecclefiaftical ingenuity had 

 invented the doftrine of ufet, as a thing diftinft from the 

 land, ufes began to be devifed very frequently, and the dc- 

 vifee of the ufe could in chancery compel its execution. 

 However, when the ftatute of ufes, viz. 27 Hen. VIII. 

 cap. 10. had annexed the poffeflion to the ufe, thefe ufes, 

 being now the very land itfelf, became no longer devifable : 

 whereupon the ftatute of wills was made, r/'z. 32 Hen. VIII. 

 cap. I. explained by 34 & 35 Hen. VIII. cap. 5, which 

 enafted, that all perfons being feifed in fee-fimple (except 

 feme-coverts, infants, ideots, and perfons of nonfane me- 

 mory ) might by will and teftament in writing devife to any 

 other perfon, except to bodies corporate, two-thirds of their 

 lands, tenements, and hereditaments, held in chivalry, and 

 the whole of thofe held in focage ; which now, through the 

 alteration of tenures by the ftatute of Charles II. 1 2 Car. 1 1 . 

 cap. 2 J. amounts to the whole of their landed property, 

 except their copyhold tenements. As for copyhold and 

 other cuftomary lands, thefe are devifable or not, according 

 to the cuftom of the refpeftive manors. And generally, a 

 devife of copyhold will not pafs, without a furrender to the 

 ufe of the will. In the cafe of a child or widow, a court of 

 equity, in favour of thefe, will fupply a defeft of fur- 

 render (2 Vez. 582. 5 Vez. 557.); fo 3lf°> w*"^" '''^r^ '* 

 a general devife of real eftate to pay debts, and there is no 

 real eftate but copyhold : alfo where a copyhold is in the 

 hands of truftees, the perfon for whom the lands are holden 

 in truft may devife the fame without furrender. ( 2 Atk- 38. 

 I Vez. 489. ) And though the court will fupply the de- 

 feft of a furrender for the benefit of children, yet the rule 

 3 K J doth 



