acts of a certain character. But even with regard to the expediency
of such punishments we may have doubts. For the very argument
from the undeveloped possibilities of each man’s character by which
the determinist proves the compatibility of his theory with the
phenomenon of sudden conversion and the like is sufficient also to
prove that the state can never be sure that the punishments which it
inflicts upon the individual will have the effect upon his character and
conduct which it desires. It may be replied that experience makes it
reasonably certain that the infliction of certain penalties will produce
acts of a certain character and that the influence of certain incentives
upon conduct may be established as reasonably probable by induction.
But when the data are admittedly so uncertain is a valid
inductive argument of such a character possible? And even if it
were what would be its bearing upon the justice or injustice of
inflicting punishments at all? The unsophisticated moral consciousness
will still consider it unjust to punish a man for deeds of which
he could not avoid the performance, and regard the alleged desire
to produce in his future life consequences favourable to himself
or society as beside the mark and irrelevant to the question
at issue.
At the moment of action the individual invariably regards
himself as free to choose between alternatives. This immediate
consciousness of freedom persists upon another
occasion even though subsequent reflection upon
The
free-will position.
conduct should lead the individual to regard himself
as determined at the very moment when he was aware
of himself as free. It is this immediate consciousness of the
power of choosing between alternatives which the determinist
finds so difficult to explain. He may regard it as an illusion,
and attempt to prove the incompatibility of our consciousness of
freedom with the facts of existence and the nature of the world.
But, in ordinary cases of illusion, once let the reason for the
illusion be discovered, and there is no longer the possibility of
our being longer deceived. The phenomena which deceived us
may continue to persist, but they no longer persist as illusory:
the appearance which deceived us is seen in its true nature, even
though it should still retain those characteristic marks or signs
of reality which hitherto we regarded as significant of a nature
which we now no longer believe it to possess. But can it be
maintained that the same truth holds good of our consciousness
of freedom? Is it possible to hold that determinist arguments
are of so convincing a character as to enable us to perceive at
the moment of action the untrustworthy nature of our consciousness
that we are free to choose between alternatives and
to grasp beneath the appearance the underlying necessity which
rules our wills? Our actual consciousness of freedom is not
seriously disputed. And though reflection upon conduct may
lead us to suppose that our past acts were determined, that desire
of pleasure or the wish to avoid pain controlled our wills, the
unphilosophical observer interprets, in offenders against morality,
such arguments as a mere excuse. Moreover, remorse and penitence
are witnesses in the wrongdoer to the truth of the interpretation.
On the other hand we have no such immediate consciousness
of the necessity which is said to control our wills. We
sharply distinguish that freedom which is the prerogative of
human action from the necessary causation discoverable in
nature. Within the domain of consciousness introspective
analysis is unable to discover those chains of necessary sequences
which it is the province of science to investigate in the physical
world. And until the determinist can successfully explain to us
how in a world obeying throughout its history necessary laws
and limited in its nature to the exhibition of causal sequences
the consciousness of freedom could ever have arisen, we may
be content to trust the immediate affirmation of our moral
selves.
For modern discussions of the problem consult Lotze, Microcosmus, i. 256 seq., English trans. Martineau; Study of Religion, vol. ii. bk. iii. chap. 2; Ward, Naturalism and Agnostism; Rashdall, The Theory of Good and Evil, vol. ii. bk. iii.; Taylor, Elements of Metaphysics, bk. iv. chap. 4; McTaggart, Some Dogmas of Religion, v.; Shadworth Hodgson, The Philosophy of Experience, iv. 118 seq.; Galloway, Studies in the Philosophy of Religion; Bergson, Essai sur les données immédiates de la conscience; James, The Will to Believe; Fonesgrive, Essai sur le litre arbitre; Renouvier, Les Dilemmes de la métaphysique pure; Boutroux, La Contingence des lois de la nature; Noël, La Conscience du libre arbitre; Boyce Gibson, Essay in Personal Idealism on “The Problem of Freedom.” (H. H. W.)
WILL, or Testament, the legal documentary instrument by which a person regulates the rights of others over his property or family after his death.[1] For the devolution of property not disposed of by will, see Inheritance, Intestacy. In strictness “will” is a general term whilst “testament” applies only to dispositions of personalty; but this distinction is seldom observed. The conception of freedom of disposition by will, familiar as it is in modern England, is by no means universal. In fact, complete freedom is the exception rather than the rule. Legal systems which are based upon Roman law, such as those of Scotland and France, allow the whole property to be alienated only where the deceased leaves no widow or near relatives. In France this restriction has met with condemnation from eminent legal and economical authorities. R. T. Troplong, for instance, held that “un peuple n’est pas libre, s’il n’a pas le droit de tester, et la liberté du testament est la plus grande preuve de la liberté civile.”[2]
History.—The will, if not purely Roman in origin, at least owes to
Roman law its complete development—a development which in
most European countries was greatly aided at a later period
Roman
law.
by ecclesiastics versed in Roman law. In India, according
to the better opinion, it was unknown before the English
conquest; in the Mosaic law and in ancient Athens the will, if it
existed at all, was of a very rudimentary character. The same is the
case with the Leges barbarorum, where they are unaffected by Roman
law. The will is, on the other hand, recognized by Rabbinical and
Mohammedan law. The early Roman will, as Sir H. Maine shows,[3]
differed from the modern will in most important respects. It was at
first effectual during the lifetime of the person who made it; it
was made in public; and it was irrevocable. Its original object, like
that of adoption, was to secure the perpetuation of the family.
This was done by securing the due vesting of the hereditas in a person
who could be relied upon to keep up the family rites. There is much
probability in the conjecture that a will was only allowed to be made
when the testator had no gentiles discoverable, or when the gentiles
had waived their rights. It is certain from the text of Gaius[4] that the
earliest forms of will were those made in the comitia calata and those
made in procinctu, or on the eve of battle. The former were published
before the comitia, as representative of the patrician gentes, and were
originally a legislative act. These wills were the peculiar privilege of
patricians. At a later time grew up a form of plebeian will (testamentum
per aes et libram), and the law of succession under testament
was further modified by the influence of the praetor, especially in
the direction of recognition of fideicommissa or testamentary trusts.
Codicilli or informal wills, also came into use, and were sufficient for
almost every purpose but the appointment of an heir. In the time
of Justinian a will founded partly on the jus civile, partly on the edict
of the praetor, partly on imperial constitutions and so called testamentum
tripertitum, was generally in use. The main points essential
to its validity were that the testator should possess testamentary
capacity, and that the will should be signed or acknowledged by the
testator in the presence of seven witnesses, or published orally in
open court. The witnesses must be idonei, or free from legal disability.
For instance, women and slaves were not good witnesses.
The whole property of the testator could not be alienated. The
rights of heirs and descendants were protected by enactments which
secured to them a legal minimum, the querela inofficiosi testamenti
being the remedy of those passed over. The age at which testamentary
capacity began was fourteen in the case of males, twelve in
the case of females. Up to A.D. 439 a will must have been in Latin;
after that date Greek was allowed. Certain persons, especially
soldiers, were privileged from observing the ordinary forms. The
liability of the heir to the debts of the testator varied at different
periods. At first it was practically unlimited. Then the law was
gradually modified in his favour, until in the time of Justinian the
heir who duly made an inventory of the property of the deceased was
liable only to the assets to which he had succeeded. This limitation
of liability is generally termed by the civilians beneficium inventarii.
Something like the English probate is to be found in the rules for
breaking the seals of a will in presence of the praetor. Closely
connected with the will was the donatio mortis causa, the rules of which
have been as a whole adopted in England (see below). An immense
space in the Corpus juris is occupied with testamentary law. The
whole of part v. of the Digest (books xxviii.-xxxvi.) deals with the
subject, and so do a large number of constitutions in the Code and
Novels.
The effect of Christianity upon the will was very marked. For instance, the duty of bequeathing to the Church was inculcated as
