The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER V.

OF WILLS, AS DISTINGUISHED FROM OTHER CONTRACTS.

§ 1.

Utility of wills, deathbed wills included.

The demand, in point of use and reason, for the power of giving validity to a last will, differs in several points from the power of giving validity to a contract of any other description, whether obligatory promise or conveyance: and, from the difference as to these points, follows a corresponding difference in respect of the formalities proper to be required, and the means proper to be employed in the view of enforcing observance.

1. A disposition of a man’s property, destined to take effect not till after death, and in the meantime, as it ought in general to be, revocable, and subject to indefinite alteration, is a species of conveyance, which, to answer its purpose, must be susceptible of, and, if there be power, will frequently in fact be subjected to, indefinitely frequent changes.

It is liable to change, as it were, at both ends. On the one hand, by death, by increase or decrease of need, by increase of age, by change in condition of life, the claims of those whom a testator would naturally choose for the objects of his bounty, are liable to continual change. On the other hand, the subject-matter, the property to be disposed of, is, in shape or quality as well as quantity, alike exposed to change.

2. A last will requires to be made, in circumstances in which neither the necessity nor the expediency of entering into a contract of any other kind, to any considerable amount in point of pecuniary importance, will in general be apt to have place: viz. on a deathbed, at a time when professional assistance may not be within reach; or in some place in which, or on some occasion on which, neither professional assistance nor promulgation paper (supposing any such implement to be required to be employed) would be obtainable.

By the laws of some countries,* a will made on a deathbed is disallowed.

By such a disallowance, spurious and unfair wills may perhaps be in a degree more or less prevented; but the value of the power in question is to every purpose in a very considerable degree diminished.

Without the power of making dispositions of property to take effect after death, the provision made by the legislator for the comfort of the heads of families, and for the welfare of the members, would be in an eminent degree deficient.

1. This power is of use to a man in the character of an article of property. In this way, value is created, as it were, out of nothing; the value of the property of the country increased in a vast proportion, not to say doubled.

2. In the hands of the aged, it serves as a compensation for the various disgusts which that time of life is so liable to inspire; and as a security against that neglect and contempt to which, on that account, as well as on account of the weaknesses incident to it, they would otherwise stand exposed.

3. In the hands of a person rendered helpless by disease, and dependent for his life on the services of others, this power is a security for life—an instrument of self-preservation.

4. It is useful in the character of an instrument of government, having for its object the welfare of individuals other than the proprietor himself. At an early age, it is necessary to the very being of man that he should be subject to the government—and for a long while after, conducive to his well-being that he be subject to the influence of his superiors in age. If the power of bequest were withholden, the force of this instrument would be in a great degree weakened.

5. As between equals in age, without need of government or docility on either side, the prospect of posthumous bounty forms a bond of reciprocal attachment, and a security for reciprocal good behaviour, kindness, and self-denial, in the minor but continually-repeated concerns of life. It enables one man to obtain the convenient or necessary services of another, for whom, out of his income, and in his life-time, he could not spare a sufficient reward.

6. In the case of those who have no near relations, endeared to them by the ties of nature or long habit,—and in the case of those whose natural relations have, in their eyes, rendered themselves unworthy of their favour,—it contributes to substitute frugality to that dissipation, which would be the natural course of him who should behold whatever were left unexpended by himself entailed on a successor or set of successors who were either odious or at best indifferent in his eyes; and thus (in so far as it checks dissipation from that source) it promotes that slow but constant and general accumulation of the matter of wealth, in the shape of capital, upon which the welfare and comfort of the individual, and the increase of the general mass of comfort by the multiplication of the species, depends.

If a deathbed will—a will made during a last illness—be utterly disallowed, a man is divested of the power of rewarding services on which his life depends, or of punishing neglects (whether wilful or for want of attention) by which death, preceded by suffering to an indefinite amount, may be produced. On a person rendered helpless, and perhaps speechless, by a dangerous disease—in a case in which an apparently trivial service, neglected or even ill performed, may be fatal,—homicide, murder (viz. so committed,) is scarcely an object of legal punishment. If, therefore, there be a single moment of sanity during which this power is withheld, and known to be so, a man’s life will he altogether at the mercy of the attendants of a sick-bed,—that is, of dispositions of all shades, from the best to the worst, too many of whom may not be proof against the temptation thus thrown into their hands. Exposed to injury from enemies, a man would feel himself divested of the power of purchasing assistance from neutrals, or animating in the same way the exertions of the well-disposed. In conversation with the devoted victim, so long as no third persons capable of serving as witnesses were at hand, the fatal purpose might even be avowed: and the cup of inhumanity might thus have insult to embitter it.

These things being considered, the propriety of allowing or disallowing deathbed wills, will, in each country, depend in no inconsiderable degree on the state of morality among the people. But, even in the most virtuous state of society, the legislator should never repose on popular virtue any confidence which can be withholden without preponderant inconvenience; he should never hold out, to all, a temptation, under the force of which it may happen to the virtue of any one to sink. Be the quantity of virtue among the people ever so great, necessity alone should engage him to do anything that can tend to lessen it.

§ 2.

By requisition of formalities, if peremptory, more mischief is produced than prevented.

In speaking of contracts in general; formalities, calculated to throw difficulty in the way of spurious and unfair ones, being proposed to be by authority instituted, and the observance of them recommended,—pointed suspicion, not nullification, was spoken of as being in general the proper and sufficient instrument for securing observance: nullification, disallowance, not being reconcilable to general utility on the part of the legislator, nor to good faith on that of the judge, on any other condition than that of a full assurance of its being in a man’s power to comply with the formalities, as well as of his being actually apprized of the existence of the obligation by which he is called upon for compliance.

Of contracts of all sorts, taken in the aggregate, so vast and diversified is the field, that, without some determinate species brought forward for illustration, and as an example by means of which a determinate shape might be given to the ideas belonging to such general propositions as should be advanced concerning it, and the truth of those the more readily brought to the test, our conceptions on the subject might be apt to be bewildered. On this consideration it was, that the species of contract called a last will was fixed upon, to officiate, as it were, on this occasion, in the character of a representative of the rest.

On the occasion of this, as of other contracts, the legislator, if he be at once honest and enlightened, neither corrupted nor misled, will naturally direct his endeavours to two main objects: to facilitate the formation, and secure the effect, of genuine and fair ones; to prevent the formation, and at any rate the success, of such as are unfair or spurious.

If pain of nullity be imposed, and that arbitrarily and inexorably, without regard to the necessary conditions, viz. power of observance, and knowledge of the necessity for observance, as above specified,—the first of the above objects, viz. the giving existence and effect to fair ones, is, so far as the application of the proposed remedy extends, sacrificed, certainly as well as completely. But, by the certain sacrifice thus made of the one object, no more than a chance of compassing the other is purchased; for, where the formalities, whatever they may be, are to all appearance, or even in reality, observed, still it may and does happen to the pretended instrument exhibited in the character of a last will, to be discovered to be either unfair or spurious.

Force and fraud, the causes of unfair wills (viz. of such as are so to the prejudice of the testator and his natural successors)—force and fraud are no less capable of being employed in the prevention of fair wills.

A set of persons—engaged in a mal-practice of this sort by sinister interest, whether as standing next in succession, or as being or supposing themselves to be favoured by a will already made—beset a man’s deathbed, refuse their assistance, to the making of a will, shutting the door at the same time against assistance from every other quarter. Here we see a fair and genuine will (i. e. one which, had it been suffered to have been made, would have been so) prevented by force.

Suppose three attesting witnesses necessary: two on the spot, ready and willing to officiate in that character, but all others kept off, as above, avowedly, and even by force. Under the inexorable system of nullity, the wickedness would be triumphant: no relief could be obtainable.

In league with the persons interested (as above) against the allowance of a fresh will, a notary falsely declares to the testator that such and such formalities are not necessary, or that, being necessary, they have been observed, when in fact his care has been that they shall not have been observed. Wickedness again triumphant: no relief.

Of the two objects,—the one pursued at the expense of the other—the one openly sacrificed to the other,—suppose the importance equal: how would the profit or loss resulting from the expedient be to be taken account of? It is only upon one supposition that there would be a net profit,—viz. if the number of unfair or spurious wills thus prevented from taking effect or coming into existence, was greater than the number of fair and genuine wills prevented from taking effect or coming into existence. Not (be it observed) the total number of unfair or spurious ones prevented from taking effect or coming into existence by any means, but only the number prevented from taking effect or coming into existence by this means.

Suppose, then, a country, in which two species of property are to this purpose distinguished: one, to the disposal of which by last will, certain formalities have been made necessary; the other, to the disposal of which in that same way, no such formalities are made necessary.

To any person unapprized of the state of the English law in this respect, the supposition will be apt to appear an extravagant one. A little further on, it will be seen to be realized.*

If, in this state of things, an account were taken of the wills of both sorts, call them formal and informal, contested within a given period, say ten years—distinguishing, in each case, such as were allowed from such as were disallowed,—by such an account, conclusions in no small degree instructive might be afforded.†

Suppose that the number of formal wills, to which spuriousness or unfairness is in this authentic and deliberate way imputed, and which, on one or other ground, are accordingly contested, is found to be just as great as the number of informal wills contested on the same grounds: this will surely amount to a satisfactory proof, that, by the formalities, no effect at all, in respect of the prevention of spurious and unfair wills, has been produced; and that, consequently, the sacrifice made of so many fair and genuine wills as, having been made, have been prevented from making their appearance, has been a sacrifice purely gratuitous: none of that good which the requisition of the formalities had for its object or professed object,—nothing, in a word, but so much pure evil (as above)—having been produced.‡

Whatever be the number of spurious or unfair wills defeated,—prevented, either from taking effect, or from coming into existence—in the case of the species of property subject to formalities,—the mass of good thus produced under the system of formalities sanctioned by nullification, is not all of it to be placed to the account of that system; since a part of that same good, if not the whole, might equally have been produced by the same formalities, if barely recommended: suspicion of unfairness or spuriousness, not nullification, being indicated as the consequence of non-observance.

Under English law, an account of the sort hereinabove indicated, might, without difficulty, if the force of authority were applied to the subject, be obtained—if not for a past period, at any rate for a period to come. But even for a past period, say ten or twenty years, there need be little doubt. The official books, notwithstanding the defectiveness and inappositeness of the plan on which official books are kept, would afford considerable information; inquiry among individual practisers would complete it: work for a committee of either house of parliament.

In a cause of great celebrity, the number of formal wills contested, and even disallowed, was, by one of the most enlightened of English judges, asserted to be greater than the number of informal ones in the same case. “The legislature,” says Lord Mansfield (speaking of the clauses relative to wills, in the statute called the Statute of Frauds and Perjuries,) “the legislature meant only to guard against fraud by a solemn attestation: which they thought would soon be universally known, and might very easily be complied with. In theory, this attestation might seem a strong guard: it may be some guard in practice; but I am persuaded many more fair wills have been overturned for want of the form, than fraudulent have been prevented by introducing it. I have had a good deal of experience at the Court of Delegates, and hardly recollect a case of a forged or fraudulent will, where it has not been solemnly attested. I have heard eminent civilians who are dead, and some now living, make the same observation.”*

Hitherto we have supposed that the two evils—frustration of a genuine will, and successful imposition of a spurious one—are of equal magnitude: and even upon this supposition it has appeared, that to incur the first of the two evils for a chance of preventing the second (by peremptory requisition of formalities,) is a bad calculation; the number of fair wills disallowed in consequence, having, in the opinion of a competent judge, practically exceeded the number of spurious or unfair ones prevented. But, even in this way of stating the case, we have not availed ourselves of all the arguments within our reach.

Might it not with considerable show of reason be contended, that (value at stake, and all other circumstances, as nearly as possible the same) securing of fair wills from frustration is a more important object than preventing unfair or spurious ones from taking effect?—that, of two mischievous results, frustration of an intended fair will is more mischievous than effectuation of an unfair or spurious one?

1. Take first the case of a father of a family.

The legislator being unacquainted with the exigencies of individual families, the disposition he makes of the property after death is but a random guess, a makeshift: against its being the best adapted that can be made, there are many chances to one. Unreasonable wills may, it is true, be made, and every now and then are made. But the case of an unreasonable will is an extraordinary case, similar to that of prodigality: and, as it supposes reflection, the absence of which rather than the presence is indicated by prodigality, probably still more rare.

On the part of parent, as well as child, inofficiosity, as the Romanists call it, is indeed always liable to have place. But on the part of the parent it seems least so. In descent, love has been observed to be stronger than in ascent. In the superior, sympathy has the pleasure of power to strengthen it: in the inferior, it has the painful sense of restraint to weaken it.

Prodigality is more naturally the weakness of youth than of mature age. Against prodigality on the part of a child, the disposition made of the property of the parent, after his death, by the law, provides no remedy: by the forecast and sympathy of the parent, a remedy will naturally be provided.

When a fair will is prevented, the worst that happens (it may be said) is that the estate falls into the natural course of succession, viz. that which in the eye of the law is the best: whereas, by an unfair will, it may be made to take a course as foreign to the natural course as it would by theft. But, under different systems of established law, courses of succession differing widely from each other are to be found: and among them all it would not be easy to find one to which the epithet of a natural one could with propriety be applied: and even the best natural one, supposing it adopted, would, as already observed, frequently be but ill adapted to the exigencies of the individual case.

A will, leaving everything away from children to strangers, or more distant relatives, is always possible. But, even taking fair and unfair, genuine and spurious, together, such a case is very rare: much more so it fair and genuine ones are left out of the account.

What applies, as above, to the cases of parent and child, applies, though of course with less and less force, to their respective more remote representatives—grand-parent and grand-child, uncle or aunt and nephew or niece, and so forth.

In every case of a first will, the operation, if it has any, is to the disadvantage, if not of all natural relatives taken in the aggregate, at any rate of some, as compared with others. But when once a will has been made, the operation of any subsequent will may as naturally be to the advantage of natural relatives, as to their disadvantage.

2. Take next the case of a man without a family—a man who has no blood relations near enough to produce from that source the sentiment of sympathy. Wills (whether fair or unfair, genuine or spurious) made to the prejudice of blood relations, are supposed to belong mostly to this class.

To this case applies the distinction between the mischief of the first order, and the mischief of the second order:* in comparison with which last, where it has place, the mischief of the first order is generally very inconsiderable.

As often as an intended fair will is, by non-observance of formalities, prevented from taking effect, the existence of the mischief is almost always known—the knowledge of it spread over a circle more or less extensive. The more extensive the circle, the wider the alarm, the apprehension, produced of similar mischances in the breasts of other persons, in the character of intended testators.

On the other hand, when an unfair or spurious will takes effect, the instances are rare indeed, in which, the existence of the mischief being known, or at least suspected, any alarm can have been spread by it. If suspected, contestation is the natural consequence. And if wills of this description—wills, the object of suspicion and contestation, are rare,—wills which, being so suspected and contested, have been confirmed by the judge, and, notwithstanding such confirmation, are generally believed to be either unfair or spurious, cannot but be much more rare.

The conclusion is, that, of the two mischiefs—effectuation of unfair or spurious wills on the one hand, and frustration of fair ones (which being fair cannot but be genuine) on the other—magnitude and certainty both taken into the account, the latter is considerably the greatest. But it is this latter, which, under the system of nullification, the legislator produces to a certainty, and as it were without a thought about the consequences, for the purpose (real or pretended) of promoting, not the certainty, but a chance only of the other. For, without evidence of some sort or other, an unfair or spurious one will no more obtain credence than a fair one; and, on the supposition that the evidence is false, there is surely some probability, if not a preponderant one, that it will not be believed.

§ 3.

Use of autography in wills. Recommendations in relation to it.

So efficient, in the case of last wills, is the security afforded by autography, against fraud in almost every shape—against spuriousness pro parte, as well as spuriousness in toto—against unfairness as well as spuriousness—that, in point of trustworthiness, even without any attestation, a will thus authenticated seems to stand at least upon a par with a supposed last will, written in a hand other than that of the testator, although authenticated by his onomastic signature.

1. The more words a mass of writing contains, the more precarious will be the success, and thence the greater the labour, of an attempt to fabricate it. Where the only mode employed for authentication ab intrà is that which consists of onomastic signature, the quantity of writing to be fabricated is confined to the two or three words (in England most commonly no more than two) of which a man’s name is composed: in the case of autography, the number has no limits.

2. An autograph instrument is less exposed to the danger and suspicion of having been the result of undue coercion, whether by physical force or fear, than a will, in the instance of which the operation of authentication has consisted of nothing more than the writing of two or three words. Signature, though it be of the onomastic kind, is the work of a minute: the terror or uneasiness of the minute suffices for the accomplishment of it. The greater the number of the words, the greater the difficulty of keeping the mind of the patient in the state of coercion requisite to the production of the effect.

3. It is even in some degree less exposed to the danger and suspicion of having been the result of fraud in either of its shapes, viz. positive falsehood, and undue reticence; or even erroneous supposition of inducement, unaccompanied by fraud. Why? Because, the greater the number of words written, the longer the operation lasts, and thence the longer the mind of the writer is necessarily applied to the subject.

4. So likewise to the danger and suspicion of unsoundness of mind. If the testator calls in the assistance of a scribe, more especially if of a professional scribe, whatever words he employs in conveying the expression of his meaning to the scribe, the words written will be those of the scribe: expressions which, in case of want of sanity, might have betrayed the defect, will of course be rejected. For the scribe to reject them, it is not necessary that any persuasion, or so much as a suspicion, of the insanity, should have entered into his mind: they will be rejected as being, in comparison with those which to his mind present themselves in the same view, inapposite. The inappositeness—the effect—will present itself much more promptly than the insanity, the cause: and the effect will have been perceived in many a case, where the cause has never presented itself at all.

5. When the requisite soundness of mind is wanting,—the longer the instrument, the longer the course during every part of which the mind will be exposed to the danger of taking its flight into the regions of absurdity or nonsense.

6. When the test and proof of genuineness and fairness is thus afforded, amendment in every shape may be allowed to take a freer course than without this security can with equal safety be permitted.

7. Of this contract it has already been mentioned as an effectual and peculiar feature, the being susceptible of requiring frequent and indefinitely numerous changes; and these, in point of importance, to any amount considerable or inconsiderable.

In this way, many a change will present itself, which a man will readily and gladly make, when he can do it by a few lines or a few strokes of his own hand, and without witnesses, but which he would not make, if upon each occasion it were necessary to have to perform the ceremony of calling in witnesses. To employ always the same witnesses, he would excite speculation, and expose himself to the imputation of fickleness or capriciousness: different sets of witnesses, to whom it would be agreeable thus to open himself, it might not always be easy for him to find; and the more there were of them, the greater the danger of their comparing notes, and thence of the imputation of fickleness or capriciousness, as before.

On an occasion of this sort, it is not enough that the testator and the intended objects of his bounty be guarded against receiving injustice: another object to be attended to, is the guarding the circle of which he is the centre from being exposed to suspicion of having been guilty of injustice.

For both these purposes taken together, the following present themselves as being of the number of the recommendations which it might be of use for the legislator to address to testators in general; and in particular to such as, for the expression of such their wills, make use of none but their own hands:—

Let numbers he written in words, rather than figures: or (to unite distinctness with security against falsification and misconception) in both ways; as is the practice in draughts made on bankers. To forge an entire name with any prospect of success, requires a degree of skill much beyond what is common: but there is scarce any tolerably good writer by whom one figure could not be converted into another, without leaving a possibility of guessing by what hand the alteration was made. In some instances (such as the conversion of an 0 into a 9) the alteration may even be made without inducing a suspicion that any alteration has been made by the original writer (the testator,) or any one else.

The following recommendations relate exclusively to amendments, considered as incident to last wills: viz. in the case of autography, as above:—

Amendments may be made either in the informal or in the formal mode: viz. on the face of that part of the paper on which the will was written in its original state (as in the writing of an ordinary letter or memorandum;) or on a separate part of the paper, or on a separate sheet: in either of which last two cases, it is said to be made by codicil.

Recommendations concerning the informal mode:—

1. Of amendment or alteration there are three modes: subtraction, addition, and substitution. Substitution is subtraction and addition both in one.

2. Whatever amendment you make in any line, write in continuation of that line (in a margin left for that purpose) your name,—viz. either at length, or by the initial letters of the several words of which your name is composed: if the alteration be an important one, better your name at length. For, supposing any other person disposed to falsify your will,—so far as subtraction is sufficient, it is what may be performed by any person (viz. by cancelling or obliteration, by drawing lines across, or scratching the word out,) without its being possible for any one to perceive that it was not by yourself that the alteration was made.

3. For subtraction (unless it be an object with you that the prior disposition should not appear,)—cancelling in such manner as to leave the original word still visible, seems preferable to obliteration: for obliteration will be apt to excite doubts and suspicions, which the leaving of the original word still visible will obviate.

4. So, for substitution,—cancelling (as above) the original word, and then, with a mark to indicate the proper place for insertion, writing the added word above, is preferable to alteration of this or that letter in the original word: because, if done by another hand than your own, the difference between one hand and another is more perceptible in an unaltered than in an altered word.

5. If (whether by cancelling, or obliteration, or interlineation) you subtract, or substitute, or add, one more word than in the same line, especially if it be in distinct parts of the same line,—it may be of use to insert the initials of your name, not only in the margin of that line, but over every word so cancelled or obliterated: otherwise, under favour of the acknowledgment which you have given that one such alteration has been made by you, another person may, without possibility of discovery, make more alterations, at least in the way of cancelling or obliteration.

6. It will be an additional security, if, at the end of your altered will, after any alterations which it has undergone, you were (after writing the day of the month and year of the date) to sum up the number of the alterations made up to that date: for which purpose, the lines of which your will is composed would require to be numbered,—for example, by a numerical figure subjoined to every fifth line in the margin: as thus,—

7. If the alterations be to a certain degree numerous, you will find it advisable, for avoidance of perplexity or uncertainty, to write your will afresh. But, in many instances, as where a sum or a person is concerned, an alteration of any the greatest degree of importance may be effected, by subtraction, addition, or substitution of a single word.

Unless where the alteration consists of new matter, intelligible without reference to the old, the informal mode will frequently be clearer than the formal; i. e. the change in disposition will be more clearly made by alteration of a few words in the original text, than by an additional paragraph or number of paragraphs forming a codicil: for in this case, the effect of the codicil at length will only be to give directions for the doing that which, by alterations made in the informal way, is done at once.*

§ 4.

On the attestation of wills.

The advantages attached to autography have just been brought to view. But in some cases autography is not practicable; in others, a man will naturally be disinclined to practise it.

1. The cases in which it is not practicable, are those in which either the necessary skill or strength are wanting.

2. Where professional assistance is called in, autography will not in general be in use. The words employed by the man of science will naturally be his own. It is by his hand that they will be committed to writing. To the testator, the labour of writing being thus performed by another hand, labour of copying employed by his own hand will be apt to appear superfluous. If a transcript is wished for, the labour of making it will naturally devolve upon the professional man’s clerk; the profit constituting a natural perquisite to the master.

If, among the dispositions to be made, there be any of a complicated nature, as is apt to be the case where landed property is among the subjects to be disposed of,—then, especially if the scene lies in England, comes in a mass of technical jargon, to the non-lawyer an object of terror and disgust or both, from which his pen will be repelled by a sort of instinctive repugnance.

When thus the assistance of a foreign hand is called in, that of the testator himself not being applied to any purpose other than that of authentication, onomastic, or, according to the state of his powers, only symbolic,—then comes naturally the demand for authentication ab extrà: and, along with it, the questions, by what and how many hands shall it be performed.

One will naturally be that of the assistant, professional or non-professional, who has officiated in the character of scribe: and then comes in the other question,—Shall any, and, if any, how many, other persons, be called in to officiate as attesting witnesses?

1. In contradistinction to a single witness, the chief use of two attesting witnesses is constituted by the increased security it affords against spuriousness; viz. spuriousness in toto, the result of forgery in the way of fabrication.*

Whatsoever may be the obstacles to success in the case of a single attesting witness,—add another attesting witness (i. e. a requisition recommending the calling in of another attesting witness,) these obstacles will be not merely doubled, but more than doubled.

To form the more distinct conception of the use of two attesting witnesses, in the character of a security against forgery in the way of fabrication,—let it be considered what the expedients are, which under different circumstances would be apt to present themselves to the consideration of a man who had it in contemplation to commit a fraud of this nature.

For the reason already mentioned, a will purporting to be an autograph will scarcely be chosen by the fabricator for the subject of the fabrication: it will be the less likely, the greater the number of the words that appear necessary to answer the fraudulent purpose.

But, if a supposed autograph be rejected as impracticable, then comes the necessity of an apparent authentication ab extrà, to be performed by one or more attesting witnesses.

The author of the fraud must either write the supposed spurious will himself, or procure some other person to write it. Of another person the assistance could scarcely be made effectual to this purpose, without his being let into the secret; i. e. engaged to become an accomplice in the fraud. Such accomplice the author will not naturally engage, nor attempt to engage, if he can help it: the accomplice must have his reward, which carries off more or less of the profit: paid in presenti, it requires confidence on one side; made payable in futuro, eventually (for example) in case of success, it requires confidence on the other side: putting himself in the power of another, who by the supposition cannot but be dishonest, he thus incurs an additional risk of failure, besides exposing himself to the risk of punishment and infamy: and to the danger of infamy he cannot but expose himself by the very proposal, and before he is sure of consent.

The accomplice, unless his timely death be assured, must moreover be such a person, as, upon receipt of such instructions as the author of the fraud has it in his power to give, must be able to stand the scrutiny of counter-interrogation.

In this state of things, suppose the law to have rendered the attestation of one attesting witness necessary, but at the same time sufficient.

First, then, let the supposed testator be a person of whom it is known that he is unable to write his name. Here the task of the forgerer is comparatively an easy one. With his own hand he writes the spurious will—with his own hand he subjoins his own name in the character of that of an attesting witness; then adding, in the character of a symbolic signature performed by the testator, a mark; for which (a cross, the usual mark, having nothing in it that is characteristic of the hand) the forgerer’s hand may serve as well as any other.

Next, let the supposed testator be a person whose capacity of writing is out of doubt. Here, then, the signature must be of the onomastic kind. Accordingly, upon a paper on which he has previously succeeded in writing what to him appears a sufficiently good imitation, the author writes in his own hand the spurious will, together with a declaration of attestation signed by his own name in his own natural hand.

How much more difficult the task of the forgerer would be rendered, by requiring two witnesses instead of one, has been seen.

Even if the difficulty of finding persons at the same time able and willing to engage in a scheme of iniquity of this description were the only difficulty,—by doubling the number of the persons whose engaging in it were necessary to success, the difficulty would be increased cent. per cent.*

But to this difficulty, with its attendant dangers, are added the several other dangers that have just above been brought to view. By calling for two attesting witnesses in contradistinction to one, the difficulty, the improbability of success, is therefore much more than doubled. How much more, depends, in each individual instance, upon the individual circumstances of the case; and cannot, in any one individual case, be brought within the reach of calculation.

More than two attesting witnesses, it appears unnecessary either to require or to recommend; since it does not seem that the absence of a greater number of attestations constitutes in itself a valid ground for suspicion either of spuriousness or unfairness. There is no need, however, to limit the number of attesting witnesses: every additional attestation adds an additional security. Still less should attestation, as in English law, exclude recourse to non-attesting witnesses.

The exclusion put upon non-attesting witnesses on no better nor other ground than that of the existence of attesting ones, claims, by the word exclusion, to be posted off to that title. But, as the case in which the door of the judgment-seat is thus shut against the light of evidence bears no reference to anything in the character or situation of the witness, or to any peculiar effect resulting from the evidence, it seems difficult, under the general head of exclusion, to find any particular head under which to place it.

Never surely was iniquity more completely destitute of all support on the ground of reason. What passed, or is said to have passed, was seen by the two or the three persons whose names stand upon the face of the instrument in the character of attesting witnesses; therefore it was not seen by anybody else: such is the least absurd plea that could be urged in favour of the exclusion; supposing any man to have courage to hazard anything in that view. But what does it amount to?

To a last will, being a will disposing of an estate called real, three witness at the least being required,—three witnesses at the least, but three witnesses also at the most, are in common usage called in and made to sign their names. Besides these three, were thirty more present, no lawyer would (without some very particular reason, produced by some very particular state of things) think of desiring any more of the persons present to add their superfluous names to the three necessary ones.†

But, supposing it really to happen, that, in the number of persons present, in addition to these three attestors, thirty non-attesting but equally percipient witnesses were included; neither any one of the thirty, nor all of them put together, could, under the rule, be able to obtain credence for what they saw.

Of good, not a particle can on any supposition be the result of this lawyer-made rule. Of the mischievousness of its tendency, the enormity is such as to baffle calculation.

1. The attesting witnesses being all gained by corruption, and disappearing,—the thirty, if admitted, might, any one of them, defeat the wicked purpose. No: they shall not; nor all of them put together. Why not? Lest the wicked purpose should be defeated, and iniquity, the offspring of lawyer-craft, lose its triumph.

2. The attesting witnesses being all of them dead, remains as the sole obtainable proof (unless the other direct testimony which the case happens to have afforded be called in) the circumstantial evidence composed of the similitude of hands. The hand suggests doubt: shall the doubt be cleared up? Oh no: for to involve everything in doubt, is among the objects of the men of law.

3. Of the three attesting witnesses, one or more exist; and, at one time or other, their testimony may perhaps be obtained; but at any rate not without ruinous delay, as well as a most oppressive load of vexation and expense. Shall mischief in this shape be avoided? Oh no: to accumulate it in this shape, is another of the objects to which the desires and exertions of the law are invariably directed.

Whatever be the number of attesting witnesses required or recommended for a contract in general, for which authentication by witnesses is recommended,—the number of such witnesses required or recommended for last wills in particular should be the same. Why? For this reason: that it may be in a man’s power to make a will, without its being known to the attesting witnesses that he has done so.

The persecution and coercion to which, at the approach of death, a man is apt to be exposed at the hands of those in whose power accident or sinister design has placed him in so critical a conjuncture, has been already brought to view. In some instances, their interest will prompt them to engage him to make a will; in other cases, to prevent his making one. If the number of witnesses required in the case of a will were different from the number required in the case of every other sort of contract; and if, by simultaneous presence, or view of the attesting signature, it were manifest to each or to any one of the witnesses that the instrument he was executing was a will; the choice of the persons permitted to approach him for that or any other purpose, being in the power of those in whose power, in these moments of absolute subjection, his person happened to be; in such case, his purpose being thus rendered incapable of being concealed, the iniquity would thus be in possession of the information necessary to its purpose.

But, on the other hand, if, the same number serving for both purposes, a pretence could be found by the dying man himself, or by any faithful friend or friends to whom it might happen to be placed in company with his unfaithful ones,—an additional chance would thus be given him for escape from such iniquitous restraint.

That it would be no better than a chance, is but too apparent; because the spirit of rapacity, which by the supposition is on the alert, understanding him to be desirous of executing an instrument of contract, would naturally be suspicious of its being a will; and, on that supposition, would endeavour to prevent it.

But what might also happen is, that, at that same conjuncture, an instrument or instruments of contract of some other nature might require to be executed by the sick person: contracts which, being in the view of the supposed intended oppressor beneficial or necessary to the interest of the sick person, in respect of the property on which the eye of concupiscence had fastened itself, it might, in the view of the intending oppressor, be for his advantage upon the whole to suffer the execution of the instrument, notwithstanding the risk attending it. And, in a case like this, no chance, however small, that can contribute to preserve the helpless against the machinations of power at that time despotic, ought to be neglected.

The witnesses (supposing two at least,)—should it be required that, at the time of the attestation, they be present to each other, as well as to the party of whose act of authentication their signature is understood to declare their perception,—or should that circumstance be passed by without notice?

By their being present to each other, understand in the character of attesting and subscribing witnesses, the act of attestation and subscription being performed at the same time by both, and each of them being apprized of the part borne in the transaction by the other.

Of a requisition to this effect, the advantageous tendency is indubitable: but neither is it altogether free from tendencies of an opposite nature.

1. The advantage consists in the additional difficulty it opposes to forgery in the way of fabrication. If the person to whose profit the counterfeit disposition of property is designed to operate, be not capable himself of penning the instrument, and at the same time annexing his signature in the character of an attesting witness,—then (unless the penner of the instrument, making his own signature in the character of an attesting witness, is able to counterfeit with sufficient skill the handwriting of another person, representing that other person as acting in the character or another attesting witness,) the fabrication cannot be effected or attempted unless two persons, acting at the same time in that criminal and dangerous character, have been engaged.

The first falsely attesting and subscribing witness being procured at one time—the second (it may happen,) with his signature, was procured at another: the instrument (to comply with the supposed requisition of the law) bearing on the face of it a statement, declaring (though falsely) that, at the time or the attestation, both the individuals, whose names, written by themselves, appear together in the character of names of attesting and subscribing witnesses, wrote their respective names at the same time. But, by the supposition, this asserted simultaneity is false; the first was never seen, perhaps, by the second. Here, then, is a story, which, though false, they will each of them, in case of counter-interrogation, have to support as true. In these circumstances, though neither should quarrel with the penner or with each other, the difficulty they will labour under in their endeavours to give credibility to the false story under the scrutiny of cross-examination, will apply to their imposture such a check as would not have applied to it had the requisition of simultaneity been omitted.

2. The disadvantage consists in the difficulty thrown in the way of making a fair and genuine will, in the case in which the interest of the person or persons in whose power the dying testator is placed by the weakness incident to his condition, has engaged them to use their endeavours to prevent it. Suppose him to succeed in engaging the assistance of one faithful friend—that friend, taking advantage of a momentary opportunity, subscribes his name, before there can be a certainty of his engaging another. Some time after, accident, of the industry of the first faithful friend, sends in another to repeat the office and complete the attestation: no other opportunity, no other assistance, presents itself. Under these circumstances, had simultaneity been rendered necessary on pain of nullity, nullity must have been the result.

The two objects being thus in a state of conflict,—to which shall the legislator give the preference?

Answer: To guard against the prevention of fair wills, is the preponderant object.

How important, in the character of a security for life against wickedness or carelessness, the continuance of the right and faculty of making a last will to the latest moment is, has been already brought to view. By the requisition of the formality in question (if on pain of nullity,) the exercise of this important right is rendered more dependent than it would be in the contrary case, on the will of those in whose power the sick man happens to be placed. Being better pleased with the disposition which (whether by the general rule of law, or by a will already made and still in existence) they consider as having been made of his effects,—it is, in this state of things, more easy to them, than in the opposite state of things it would be, to prevent, for this time, his making any different disposition of his effects; and (to make sure of his not doing so at any other time) to prevent his continuing any longer in life.

Against that species of iniquity which consists in giving a man’s property a disposition which it was not his wish to make of it, the obstacles that not only may be, but in practice actually are, opposed, are forcible and abundant: punishment, in most countries capital, and everywhere very severe. To the opposite species of iniquity, though in respect of mischief differing by so slight a shade, no such punishment, scarcely anything in the name of punishment, has anywhere been opposed.

To be engaged in a scheme of forgery, is what few persons are competent to, even if disposed, to engage others in the like scheme, and with success, still fewer. On the other hand, to keep out of a sick room those who have no right to enter it, is no more than almost any man is competent to, who, being in the room, is in possession of it.

Such is the difficulty, such the dilemma, where, for securing observance of the formalities regarded as conducive to the prevention of mal-practice in this field, pain of nullity is employed. Obstruct in the way in question (viz. by requiring simultaneity of presence on the part of the attesting and subscribing witnesses) the procuring of unfair, or fabrication of spurious wills,—you obstruct in a still greater degree the making of fair and genuine ones.

To the inflexible pain of nullity, substitute the natural and ever proportionate pain of suspicion, and the difficulty vanishes—the dilemma has no place.

§ 5.

Distinction between regular wills and wills of necessity.

Taking into consideration, on the one hand, the danger of spuriousness or unfairness for want of formalities (whatsoever may be the operations thought fit to be prescribed or recommended in that view,)—on the other hand, the possible, and not altogether improbable case, of the existence of the need, coupled with the desire of making a will, at a time when the observance of these formalities in the whole or in part is impracticable,—a distinction seems to be called for, such as may be expressed by the terms regular will, and will of necessity.

By the term a regular will, may be designated a will, in the expression of which, whatever formalities have by the legislator been prescribed or recommended, have been (that is, upon the face of the will appear to have been) observed; and which, therefore, on the face of it, and setting aside all extraneous indications, is pure from all suspicion.

By a will of necessity, may be designated any will, in the expression of which these formalities have all or any of them failed of having been observed: from which deficiency a ground of suspicion will naturally be attached to it; and a warning will be given to the judge to inquire and consider, whether the observance of those formalities which (forasmuch as regularly they ought to have been) naturally in case of a fair and genuine will would have been observed, was prevented by any necessity.

The supposed will (for example) is not committed to writing, but orally delivered; or, being committed to writing, is written not on will paper but ordinary paper: and, in either case, in a handwriting not purporting or appearing to be that of the testator; or without signature of the testator; or without the signature of any attesting witness; or with the signature of no more than one attesting witness.

It being supposed that the law by which the observance of these several formalities has been recommended, has been sufficiently notified, in the manner already explained,* —then comes the question, how—supposing the will to be a fair and genuine one—how can it have happened that the formality or formalities not observed, failed of having been observed?

Examples of states of things in and by which the observance of formalities may, without prejudice to the genuineness or fairness of the will, have been prevented:—

I. Omission to be accounted for,—the will not committed to writing, but addressed to some person or persons, separately or in presence of each other, by word of mouth:

1. Scene, a private ship at sea. The testator a passenger, or one of the crew. The master,—able of course to write, but the testator and he not upon terms of amity,—is engaged by interest to oppose the making of the will now in question. This interest may arise out of the disposition made by the law in case of intestacy; or out of a will already made, and now proposed to be revoked or altered.

2. Scene, an uninhabited or thinly inhabited country, such as the wilds of America; or a country inhabited by a people alien in language and manners to the testator; for example, a place such as Asiatic Turkey, or Arabia: the testator an European traveller, without any European servant, master, or other companion, able, and at the same time willing, to render the service of penmanship.

3. Scene, a prison, or other place of confinement, domestic or foreign, lawful or unlawful; a mad-house, or other secluded spot, into which the testator has been conveyed by fraud or force, for the purpose of preventing his making a will, which he was supposed to have it in contemplation to make.

II. Omission to be accounted for,—non-use of will paper:—The will made in a place (such as a foreign country) where no will paper was to be had.

III. Omission to be accounted for,—non-employment of a notary:—No notary at hand, or none obtainable within the time:—the testator not able to purchase the assistance of such a person:—the only persons of that description within reach, in a state of enmity with the testator, or on some other account (such as connexion with a party meant to be disserved by the will) regarded as incompetent:—Or, the dispositions in the will too simple to present a demand for professional assistance.

IV. Omissions to be accounted for,—body of the will not in the handwriting of the testator; onomastic authentication not in the handwriting of the testator:—The testator a person rendered (by want of skill, or by infirmity) unable to write.*

Of the formalities brought to view, the observance will, in the case of a regular will, be at any rate, at the hands of the legislator, the subject of recommendation. In what instances (if in any) the several recommendations should, by pain of nullity, be converted into requisitions—indispensable requisitions—will depend, partly on the state of society in the country in question (for example, in respect of obtaining at a short warning the requisite assistances;) partly on the provision made for notification (viz. of the requisition thus proposed to be made obligatory.)

Supposing, in the case of a regular will, the recommendations thus converted into requisitions,—then will come for consideration the question, whether to extend the requisition to the cases above indicated as capable of presenting a demand for the allowance of a will of necessity. If here, too, it be thought fit that the recommendations be rendered peremptory, on that supposition the distinction is of no use. If—in the case of the regular will the recommendations being rendered peremptory—in the case of the will of necessity they be left on the footing of recommendations,—the use of the distinction is apparent. But even supposing them in both instances left upon the footing of recommendations, the distinction will not be without its use: for if, in circumstances which present no demand for the allowance of the will of necessity, the formalities remain any of them unobserved, such non-observance will, in the character of an article of circumstantial evidence tending to probabilize spuriousness or unfairness, operate with much stronger force than in the contrary case.

§ 6.

Aberrations of English law in regard to the authentication of wills—Examination of the Statute of Frauds, in so far as relates to wills.

If the above principles are right, the course pursued in relation to this subject by the English law must be allowed to be improper and inconsistent in a very extraordinary degree.

In the case of deeds inter vivos—a case in which the nature of the transaction admits not only of the employing writing, but of the calling in the assistance of attesting witnesses,—writing is indeed rendered obligatory, but the assistance of attesting witnesses is not rendered obligatory.

On the other hand, in the case of wills—a case in which it must not unfrequently happen, not only that the means of giving to the disposition in question the written form, but also the probability of obtaining the assistance of attesting witnesses, may be wanting,—in one case, and that a case which is looked upon as the case of principal importance, not only a written form for the testamentary discourse, but the assistance of attesting witnesses, and that to the number of three, is inexorably required—required on pain of nullity.

In the case of last wills, a set of formalities are prescribed, and of course on pain of nullity, by a statute commonly and not inappositely termed the Statute of Frauds (29 C. II. c. 3.)†

So far as this species of contract is concerned, three points in relation to this statute are beyond dispute: the mischievousness of it—the uselessness of it—and the corruption in which it was begotten, and has been preserved.

The mischievousness of it is legible in glaring colours, in the multitude of fair and genuine wills of which it has been destructive, and the enormous mass of litigation and lawyers’ profit of which it has been the fruitful parent.

The uselessness of it has been displayed by a course of experiment that has been going on for nearly a century and a half. All this time, one half the property of the kingdom, by much the larger half,* has been left without any such security; and no inconvenience for the want of it has ever been so much as suspected.

The corruption is manifested (if it be possible for corruption when enveloped in long robes to be made manifest) by the enormity of the profit to lawyers, coupled with the enormity of the misery to non-lawyers, of which it has been the efficient cause.

Is it in the nature of it to defeat more fair and genuine wills, than it prevents or exposes unfair or spurious ones? Then why apply it to property in any shape?

Is it in the nature of it to prevent or expose more unfair or spurious wills, than it defeats fair and genuine ones? Then why refuse the benefit of it to property in the shape to which it is not applied?†

From the non-observance of the formalities in question, prescribed as by it they stand prescribed, can any rational conclusion be formed in relation to the fairness or unfairness, the genuineness or spuriousness, of a last will? then is the same last will fair and unfair, genuine and spurious.

Let the testator leave property to the value of £20,000—whereof £10,000 in one of the two shapes, £10,000 in the other. The same last will, authenticated by one and the same act or acts of authentication, is fair and genuine with respect to the one sum, unfair or spurious with regard to the other.

Oh! but immoveables, being a species of property of more importance, require better protection than moveables: a sophism from the crude conceptions of feudal times, carefully preserved, like so many others from the same stock, by the cunning hand of lawyer-craft. Ten thousand pounds’ worth of land, how much more is it worth than ten thousand pounds’ worth of money?

But even that sophism, shallow as it is, has no place here. For the self-same piece of land, the £10,000 worth of land, according as the lawyer has scribbled one sort of jargon or another on the occasion of it, shall be subject to the formalities, or stand exempt from them: and vice versâ, money, the £10,000 worth of money, by the effect of another jargon, may have been subjected to the same rules as land.

The difference between what is called real and what is called personal property, turns frequently upon a word, or a phrase. Let the words be, I give to A. my house in D. for ninety-nine years, if he shall so long live:—these words, in the testator’s own writing, are sufficient—no witness is necessary. Let the words be, I give to A, my house in B, for his life:—witnesses no fewer than three are necessary. In the same page, with his own hand, let a man give to A, one of his houses in the one way, and to B, the next house in the other way,—then is this will of his half genuine, half spurious: it is his will for the one purpose, it is not his will for the other.

Where is the absurdity which the lawyer will not utter?—where is the mischief to which, so long as it can be done with profit and with safety, he will not continue to lend his hand?—where is the absurdity, which, so it come from the mouth of the lawyer, the non-lawyer will not worship?—where is the oppression under which, so long as he sees the hand of the lawyer having a part in the production of it, he will not submit with patience?

Whichever of the two systems of policy above spoken of—the strict or the lax system—be the most reasonable one, it makes no difference with regard to the wisdom of this law. Mischievous by the whole extent of it, or else too scanty by a space greater than the whole extent of it: such is the alternative.

Who the authors were—what their views and intentions, are points that make no sort of difference. A consideration somewhat more material, is the poisonous influence of it upon the public morals. By what it neglects to do, it leaves the door open to wills in multitudes, which, though unprovided with the prescribed formalities, everybody sees to be fair and genuine; and which, as such (the formalities not extending to them) are permitted to take effect. By what it does, it shuts the door against other wills, the fairness of which is equally indisputable; but which, notwithstanding that acknowledged fairness (the formalities not being observed) it crushes without mercy. But, so many wills, not fraudulent or spurious upon the face of them, as it invalidates, so many acts of palpable and notorious injustice does it invite and encourage men to commit. In the author of this law, supposing him a lawyer (and who but a lawyer could be the author of such a law?) an eye unstained by professional prejudices may behold as clearly as in the author of any sort of other corrupt or corruptive law, the legislator of whom the poet speaks, when he says, leges fixit pretio atque refixit. In his capacity of legislator, he invites men to possess themselves of property which they are conscious was not intended for them by the lawful owner: he invites them to enrich themselves by notorious injustice, that he or his brethren may come in for their portion of the spoil.

Had the inconsistency been avoided—had the requisition of the formalities been extended to property in every shape,—the real temptation to injustice would have been as great, but the contempt shown for the known laws of justice would not have been so open and scandalous. The legislator might then have been understood to say,—Wherever these necessary formalities are not observed, my opinion is that the will is either fraudulent or spurious. The party interested (whatever might have been his real opinion) might with some degree of plausibility at least, have been allowed to say,—Such being the opinion of the legislator, a person of consummate wisdom and untempted probity, can anybody, consistently with reason and candour, profess to disbelieve me when I declare that his opinion is also mine? With this plea in his mouth, sincere or insincere, a man at any rate could not be publicly convicted of insincerity and injustice. But when, to justify the law in point of prudence and common sense, the same will, made by the self-same person under the self-same circumstances, must be pronounced fair and fraudulent, genuine and spurious—genuine as to property in one shape, spurious as to property in another shape—when the same thing must be pronounced, at the same time and place, to be and not to be,—all pretence of honesty must be at end. What everybody must see, is, that by no man, either in or out of his senses, was any such opinion ever really entertained.

No man ever was or ever will be besotted enough to say, either that a will of land to a given amount is in itself more apt to be unfair than a will of goods to the same amount,—or that, in the case of the will of land, the preventive efficacy of a given set of formalities as against unfairness, will be greater than in the case of a will of goods to the same amount.

Whence, then, came the distinction? Evidently from the narrow views and selfish prejudices of two different sets of lawyers. The common lawyers had possession of the cognizance of wills, so far as concerned lands; meaning always (for such is the absurd and for ever inexplicable and inconceivable distinction) where the quantity and quality of interest denominated the estate a real estate. The civilians—a tolerated remnant of a foreign breed of lawyers, the ecclesiastical Romanists,—had possession of the cognizance of the same instrument, so far as concerned every other species of property. In the adjustment of the business under the new invented rule of evidence, each, preserving his own share in the division of power, was to retain the privilege of gratifying his own prejudices. The same fact which was to become false in Westminster Hall, was to continue true in Doctors’ Commons. The same will, the same sentence, written by the self-same hand, attested by the self-same pair of witnesses, was to be spurious or genuine, according as a man with fur upon his gown, or a man in a gown without fur, were to sit in judgment on it. So monstrous were the absurdities which the penners of the Statute of Frauds, having been fed with in their respective schools, scrupled not to cram down the throats of their fellow-subjects by the power of the sceptre.

Where, amidst all these lawyers, guides blind and mercenary, was the legislator?—where was the man who, regardless of professional prejudices, possessed probity and intelligence to look to the security of property and the tranquillity of the people? Alas! nowhere. Neither in those days, nor down to the present, has any such character ever appeared. The true shepherd of the people is a comforter not yet born. Look to his place,—you find in it none but hirelings.

Under the English, as under other systems, on the subject of wills and other contracts, as on so large a portion besides of the field of law, the rule of action, such as it is, has had for its authors, not legislators, but judges. In the making of it, the interest the promotion of which has been all along aimed at—to which it has all along been made subservient, has been, not the interest of the community at large, but the private interest of those by whom it has been made: and in the pursuit of this private interest there is no degree of vexation and misery, which, on this part of the field as on every other, they have not been ready and satisfied to produce.

If it were possible that a state of things so manifest and undeniable could be matter of doubt to any one who has courage to look it in the face, this one example should suffice for the removal of the doubt.

Right and wrong, wisdom and folly, felicity and misery, must all be the same thing, ere the conduct of the English legislator, under the guidance of English judges, on this part of the field of law, can find so much as an excuse.

Hold up to the view of the man of law any one of these abuses,—if not so much as the shadow of a pretence can be found for the justification of it, he solemnizes his tone, he knits his brow, and beholds in the air a host of difficulties. But these difficulties,—what are they? None but of his own making: the only difficulties he can find to plead, are the difficulties which he makes.

The course that presented itself as best adapted to the purpose has been brought to view above: were it ever so well adapted, the putting it in practice would not be altogether exempt from difficulties. But a course by which a great part of the abuse would be removed, would not be attended with any the smallest difficulty. Do away at one stroke the distinction between a will of realty and a will of personalty: whatsoever formalities suffice for a will of personalty, let them suffice for a will of realty: repeal pro tanto the Statute of Frauds.

The real difficulties lie in removing the film of prejudice from the eyes of non-lawyers—in giving them the courage to look their own interest in the face.

As to the man of law, to cause him to lend a willing hand to the removal of imperfection or abuse in this shape or any other, is matter, not of difficulty, but of moral impossibility. Call upon a body of men, and such a body, to sacrifice each of them his own most important interest to the public interest!—as well might you call upon each and every one of them to jump down his own throat.

Word-of-mouth wills are, in certain cases, allowed by the Statute of Frauds. In the description of these cases, the penman had evidently the case of necessity in view. But in the description, or rather the exemplification, which he gives of that case, he is far indeed from covering it with exactness. The case of last sickness, and that too disfigured by obscure and indistinct modifications, is the case he employs for that purpose. But the case of last sickness is far indeed from being well adapted to the purpose. It goes beyond the mark: it falls short of it. There may be sickness—sickness terminating in death, and yet no necessity: no impediment to the fulfilment of the formalities in their utmost latitude. There may be necessity without sickness. A man in health is about to embark in a perilous adventure—no will made, and the means of making a regular will not at hand: to embark in an open boat on a high sea: to attack a robber: to plunge into a torrent to save a person from drowning: to plunge into a deep well to save a person from suffocation.

Among the provisions made by the Statute of Frauds, under the notion of preventing spurious or incorrect last wills, when delivered, or supposed to have been delivered, by word of mouth, one (sect. 20) is in these words:—“After six months passed after the speaking of the pretended” (instead of saying supposed) “testamentary words, no testimony shall be received to prove any will nuncupative” (meaning by word of mouth,) “except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will.”

No person being here specially designated as the person, or as a person, by whom it is required that the recordation or supposed recordation shall have been made, the consequence is, that it may have been made in any manner, and by any person, so that it have been made within the time. But of this latitude another consequence is, that, supposing such recordation to have been made by any one person, and (as is natural enough) by him alone, the validity of the will remains thereby in his power; and he may either, under the influence of ill-will, suppress the testament altogether, or, under the influence of rapacity, sell his testimony or the suppression of his testimony (and all this without exposing himself to punishment as for perjury) to whichsoever of the parties interested will give him the best price.

As to the impropriety of frustrating the known will of the testator, and the honest expectations of any number of persons, for want of compliance with a requisition which nothing is done to make them acquainted with, and which there is an abundantly preponderant probability that they have not been acquainted with in time,—it belongs not to the present purpose.

What does belong to the present purpose is, that,—if, instead of a requisition on pain of nullity, a recommendation were given on pain of suspicion, to call in the assistance of a notary honorary, or even professional,* in the manner above proposed,—the two antagonizing objects—prevention of spurious and unfair wills, prevention of the frustration of such as are genuine and fair—would be much better secured and provided for than under that absurd or treacherous statute.

The matter being thus not only committed to writing, but lodged in safe custody, the door would therefore be effectually shut against the corrupt practice above indicated. Thus far against suppression of genuine wills, and moreover, against unfair wills—against will-rendered unfair, for example, by undue coercion, or by mental infirmity,—there would always he a chance, more or less considerable, of the clearing up doubts, one way or other, or at least of the preservation of otherwise perishable evidence, by such interrogatories as it might happen to the notary to collect answers to, in pursuance of the instructions provided by the law.

In the same statute, on the same subject of oral wills, are regulations in abundance, professing to have for their object the frustration of spurious wills of that description, but having for their effect, probably to a greater extent, the frustration of fair and genuine ones, and for their object (as usual) increase of uncertainty, and of litigation, with the sweet attendants for the sake of which it is promoted.

Three witnesses, at the least, required not only to have been present at the writing of the will, but the same three witnesses required to concur in proving it by their oaths: whatever be the distance of time to which it may have been in the power of the dishonest person whose endeavour it is to frustrate a fair and genuine will, to delay the possibility of proving it. Keep on feeing us till one of the witnesses is dead, and the property is yours.*

In cases of all sorts without distinction, the mischiefs resulting from exclusion of testimony, and in particular from exclusion on the score of interest, will be fully stated hereafter.* In the case of testaments, the mischiefs had been so severely felt, and so fully recognised, that about eighty years ago they attracted the notice of the legislature. To do away this ground of exclusion altogether, either in regard to transactions of the sort in question, or in short in regard to any case whatsoever, would have been too great a sacrifice of professional prejudice to public utility—an exertion far beyond the wisdom of the time. Recourse was had to a sort of half measure—an expedient which, though not equal to the cure of the mischief, yet, in the character of a palliative, was not altogether without its use. To do away the nullity altogether, would have been too wide a stretch—too bold a measure: instead of that, they transferred it from the whole will taken together, to each particular bequest. A legacy being given to a subscribing witness, the bequest of this particular legacy was declared void, and, at that price, the attestation and deposition of the legatee, in the character of a witness, were to be held good.

The persons by whom it is most natural that a man’s deathbed should be surrounded, are the persons who, in case of his making a will, are, in consequence of his kindness towards them, most likely to find themselves in that sort of situation which will give them an interest in the support of it: near relations—old friends—old servants. But interest (it was said) is a sort of taint, the effect of which is to give a legal foulness to a man’s evidence. To clear away this foulness, requires a legal purge. There are three purges applicable to this case: receipt of the legacy, refusal to receive it, refusal to pay it: three diaphoretics these, any one of which has virtue enough to carry off the peccant matter.*

Such is the prescription. In point of form, nothing can be fairer. But how stands it in point of effect and substance?

The will is either fair or unfair. Is it a fair one? there is no mischief to prevent: injustice is the fruit of the law, and the only fruit of it. To invalidate the entire will would have been one injustice: to invalidate the legacy, is another injustice. Thus much may indeed be said,—but it is the best that can be said,—the injustice introduced is less than the injustice done away.

If imposition be at work, what is there in the security afforded against it by this arrangement, that can be relied upon for preventing it? The reward for dishonesty, instead of being held up to view upon the face of the will, must be covered up: as, in this like all other cases, it is most natural it should be. Confidence—a certain measure of it—is necessary to all conspiracies. In the case of murder, where the contriving head engages an executing hand, the stroke, if struck, must be struck either before payment, or not till afterwards: in the first case, the assassin trusts the suborner; in the other, the suborner trusts the assassin. Suppose no confidence, an unfair will can no more be set up for hire, than a murder can be committed from the same motive: suppose confidence, an unfair will may be set up as well when the legacy is made void, as when it is made payable.

By the act which this act takes upon itself to amend, three subscribing witnesses are made necessary. Under these circumstances (forgery out of the case,) no unfair will can have been brought into existence, without a conspiracy between that number of subscribing witnesses. But, in case of a set of persons thus linked together by interest and guilt, what difference can it make to them whether a legacy left to a subscribing witness is exigible or not exigible? Such as are the shares agreed upon, such, in so far as the conspirators are true to one another, will be the shares respectively received. If, when the time comes, the executor or other paymaster feels himself disposed to be false to his confederates, the circumstance of their wages being specified in the form of a legacy, will not prevent his being false to them: if he is disposed to be true to them, the circumstance of their wages not being specified in that form, will not prevent his being true to them. The agreement made, and the executor pitched upon, of what use can it be to him, or to his accomplices, that the wages of their iniquity should be posted up on the face of the will? What security, what advantage can it be in any shape to any of the conspirators? The effect would be—what? Not to give security to the scheme, but to draw suspicion upon it, and endanger the success of it.

Put any case of unfairness—forgery, obtainment by compulsion, obtainment by misrepresentation and fraud; in either case, sanity or insanity:—the argument applies still with equal force.

The utility of the provision is, upon this view of it, greater in appearance than in reality: the mischievousness of it will be found greater in reality than in appearance.

The law of evidence, founded as it has been upon the principles that have been displayed, may be considered as a great school of injustice, in which nothing but injustice is to be learned, and in which every rule and maxim it gives birth to, imbibes the original taint, and comes out a lesson of injustice.

Distribution of the bulk of the property—donation of minor legacies. Such is the distinction, which though nowhere announced in words, nor even capable of being marked out by any precise boundary lines, is not the less perceptible upon the face of the generality of wills. By the former, the bulk of the property is distributed among the nearest relatives: by the latter, tokens of remembrance are given to persons situated without the pale of near relationship—to particular friends, to old and faithful servants. In the eyes of unsuspecting probity and uncorrupted common sense, how natural the association, how amiable the reciprocity, that the persons pitched upon to receive the token of affection should be the persons called upon to accept on their parts the honourable charge—to render on their parts the honourable service.

After making provision for the domestic circle—after taking care of his natural and necessary dependents, and mentioning in his will, not so much for provision as for honour, the most intimate of his friends without the circle, and the most confidential of his servants,—this, says he to them, addressing himself to them in language suited to their respective stations—this, says he, is my will, and be you my witnesses to it. The testator departed, and the will opened, up stands the legislator, and says to the family—You see the legacies that were intended: do not pay them: you need not, unless you choose. Do Englishmen in general accept of the offer thus made them by their rulers? I think better of them than to suppose it. The wages of iniquity are held out without ceasing, to corrupt the people; but I believe it is but here and there that in this instance they are accepted.

On this occasion, as on so many others, the iniquity of the law depends in no small degree upon the care taken to conceal the knowledge of it from the body of the people. Suppose the law in this behalf universally known, the effect of it would be simply to oblige testators to provide themselves with persons that are indifferent to their affections, to serve them for attesting witnesses: but in fact it is generally unknown; and thence comes the immoral tendency of the provision, as above held up to view.

Persons who set about the fabrication of false wills—these are the persons who will be sure to make themselves masters, as far as is in their power, of whatever has been done upon the subject by the law. Illiterate they cannot be: persons professionally acquainted with the law they will (some of them, the head manager at least, will) probably be: the suspicion and anxiety inseparably attached to guilt, especially to guilt in this insidious shape, will be almost sure to put them upon this inquiry in the first instance. These, then—the only description of persons against whose dishonesty the expedient is intended as a guard—are the very persons on whom it will not operate. They know, they knew well enough before the act, that a legacy given to any one of them would be enough, if not to destroy, at any rate to endanger, the whole will. By them, care will be taken not to insert any such legacy. The persons, the only persons, by whom any such legacy was ever likely to have been inserted, were real fair testators—testators meaning in the simplicity of their hearts to bestow these manifestations of kindness upon their friends, little suspecting that the same law which openly professes to give effect to a man’s will, defeats it by counter-determinations, which it suffers to remain secret ones.

So much for the practical enactments of English law. The nomenclature used by lawyers on the subject of deeds and wills, is, in many instances, remarkably unhappy: the effect of it will naturally be to present erroneous conceptions—at least to all men but themselves.

1. Deliver used instead of declare or recognise. I deliver this as my act and deed. To this belongs the conjugate delivery: the delivery of a deed. But, in common speech, a thing that is said to be delivered is understood to pass out of the possession of the person by whom it is delivered, into the possession of some other person—the person (if there be any determinate person, which is what the word seems to imply) to whom it is delivered. And such is the import given to it by lawyers themselves, in other cases: for instance, in the case of an action for goods sold and delivered. But, in the case of a deed, the instrument does not necessarily pass out of the possession of him whose deed it is, and by whom it is said to be delivered: it is only by accident, if it happens on that occasion to be delivered to anybody else; in particular, if at that same time it happens to be delivered to any of the other contracting parties. Of the word declare, the import is alike known to every man who is acquainted with the language. It conveys the idea meant to be conveyed: it conveys not to any mind any idea that is not on this occasion intended to be conveyed.

In the case of a will, the term is particularly improper. It is among the characteristic properties of this species of instrument, that no man has a right to have it delivered to him. The most natural and customary, and in most instances the most proper person to have the custody of it, is the testator himself.

True it is that the word declaration will not by itself serve to convey the whole of the signification which lawyers have contrived to include in the word delivery. This conjugate of the word declare, cannot of itself be made use of in this sense. In the phrase I declare this to be my act and deed, the sense is indeed as complete as in the phrase I deliver this as my act and deed. But, though the phrase delivery of a deed or will has a known meaning, the phrase declaration of a deed or will has no such meaning.

2. Publication, used as synonymous to recognition: publication, instead of authentication. In a case where concealment as against the public in general, and, in many instances, secrecy as towards every individual without exception, is a lawful and rational as well as a very common object,—publication, a word in general use to denote the opposite of concealment, to put a direct negative on every such idea as that of secrecy and concealment, is particularly incongruous. An object which (as above mentioned) calls for the legislator’s care, is the making provision for rendering it practicable to a testator to give a sufficient authentication to his will, at the same time that even the fact of his having made a will remains a secret to all the world. Secret authentication is a term I can, on this occasion, make use of without impropriety and without scruple. But secret publication? Who could be allowed to speak of secret publication? By whom would any such expression be endured?

The word authentication, correct and expressive as it is, I would nevertheless have avoided, could I have found a more familiar one that were equally expressive, to take its place. Why? For this reason, that it is not so familiar as could be wished. By the bulk of the people it would scarce be understood without inquiry and explanation. But a word which, until explained, may chance to convey no idea, is better beyond comparison than a word which, to every one who hears it, presents a false one—produces a degree of misconception such as nothing but long practice in the use of an incongruous language will enable a man effectually to get the better of. For my own part, familiarized as I am with a system of nomenclature which seems to have had confusion and uncertainty for its object, in the present instance I can never get rid of the impression without pain and difficulty. How much more difficult the task to the unlettered peasant, the handicraft, the petty shopkeeper!

This caution will be apt to appear inconceivable to a lawyer. But, to a man to whom it would be matter of regret and even of shame not to be understood, and above all in matters of law, nomenclature is no light matter. On a man who cares not whether the law be understood or no, or who, if he saw to the bottom of his own mind, would acknowledge (as some have done) that it should be either not understood or misunderstood by the generality of his fellow-subjects, matters of this sort sit light and easy.

3. Execution, instead of recognition. Ambiguity and uncertainty, one would think, were the very ends in view of jurisprudence. She has certainly no dislike to them, nor any the smallest desire to get rid of them. Speaking of a testator, they say he executes his will. What then? Is he the executor of his own will? Not he, any more than the executioner of it.* The executor is another person. But the executor of the will,—of him is it not also said sometimes that he executes it?

Connected with the verb to execute, is its conjugate the substantive execution. Whose act, then, is it, that is expressed by the term execution? May it not be the act of the testator? May it not alike be the act of the executor, whose act it can never be in the other sense?

So, again, in the case of a contract. One mode of executing it is to authenticate the instrument by which the obligations are expressed; another way is to fulfil those obligations. What a nomenclature, in which the same word is employed to express the creation of an obligation and the annihilation of it!

[* ]At any rate, by the law of Scotland. [By the law of Scotland, a will, technically speaking, may be made on deathbed. An alienation of the heritable or real property, however (which cannot be disposed of by will,) is reducible at the instance of the heir-at-law, if made on deathbed. See above, p. 66.—Ed.]

[* ]Reference is made in this and in subsequent pages, to the state of the law of England with regard to wills at the time when the work was published. The distinction between real and personal property, with regard to testamentary attestation, has been, since that time, abolished by 7 Wil. IV. & 1 Vict. c. 26 (3d July 1837.) By that act, all wills must be in writing, and “signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” The act does not extend to the wills of soldiers, nor to those of sailors and marines in the navy, which are regulated by 11 Geo. IV. & 1 Wil. IV. c. 20.—Ed.

[† ]Two items, it is true, would still remain out of the reach of observation; viz. 1. The number of unfair or spurious wills prevented by the formalities from coming into execution; 2. The number of fair and genuine wills prevented by the same means from taking effect: for, by means of the formalities, fair and genuine wills actually made, may, in any number, have been prevented from making their appearance: since, when a will is seen and understood to be unprovided with the formalities, the observance of which has been rendered necessary to its validity, it is given up of course, and never can make its appearance in the character of a subject of contestation.

[‡ ]Nor is this the whole of the evil: for, in the account of fair and genuine wills prevented from taking effect, must be included the number prevented from coming into existence. In other words, to the number of wills of this description prevented from taking effect by want of knowledge of the necessity of the formalities, must be added the number prevented from coming into existence by want of power to comply with those formalities. The number of those which, not having been prevented from coming into existence, have been prevented from taking effect, are those that have been thus frustrated for want of knowledge: the number of those that have been prevented by the same formalities from coming into existence, has been the number of those that have been thus frustrated for want of power to comply with the formalities. A man who, knowing that writing is necessary to a will, is neither in a condition to write one himself, nor can, at the exigence, obtain the assistance of any other person who is able to write, will not attempt to make a will. A man who, knowing that three witnessess are necessary to attestation, cannot obtain the assistance of three persons in that character, and three competent ones, will not attempt to make a will. In the house in which I am writing this, some years ago, an only daughter, an heiress, being minded to add by her will to a scanty provision that had been made for her mother by the marriage settlement, a lawyer was sent, and a will drawn accordingly. Just as the pen was put for signature into the hand of the testatrix, she expired; and, with her, the intended provision.

[* ]Lord Camden, whose ruling passion was enmity to Lord Mansfield, and who with unprecedented acrimony disputed everything that in the above-quoted argument presented itself as disputable,—even Lord Camden does not dispute the matter of fact exhibited by that instructive experience. “The design of the statute,” he says, “was to prevent wills that ought not to be made, and it always operates silently by intestacy. I have no doubt,” continues he, (“for this assertion,” says he, “cannot be proved,) but that a thousand estates have been saved by this excellent provision. It is called a guard in theory only, whereas almost every delirious paralytic that is suffered to die intestate is preserved by this law, and gives testimony of its utility.” So far the noble and learned lawyer. Delirious paralytics, a thousand in number, preserved from imposition by this law! So far as it goes, a happy result indeed, if it be true. Happy, I mean, for the delirous paralytics whose property has happened to be in the shape of what is called real property—in that particular sort of shape for the designation of which the lawyers who have invented it have never yet employed or invented any distinctive name. But what becomes of so many other delirious paralytics in much greater abundance, whose property is in any other shape than this indescribable one; whose property is in the shape of moveables, or of that sort of property which, being as immoveable as it is possible for property to be, is spoken of and treated by lawyers as if it were moveable? In a word—of three delirious paralytics, worth £10,000 a-piece, the first in freehold houses, the second in leasehold houses, and the third in stock in trade,—what is there about the two last that should exclude them from the protection, whatever it may be, that is afforded by what his Lordship calls “this famous law, every line whereof, according to Lord Nottingham’s opinion, was worth a subsidy?”—Camden, p. 25.

[* ]For the explanation of these terms, see Dumont—“Traités de Legislation,” and Bentham—“Introduction to Morals and Legislation,” Vol I. of this collection.

[* ]Apply this to statutes as well as to wills. By a simple erratum, a clear expression might have been given to many an amendment, to which an always obscure and sometimes ambiguous expression has been given by a statute at large. The obscure and ambiguous has however been preferred to the clear. Why? Because, from the obscure and ambiguous form, more emolument in the shape of fees is extracted, than could with equal case be extracted from the clear and familiar form, by those on whom the choice of forms has depended.a

[* ]In the case of spuriousness pro parte, the danger is narrowed by the impracticability of the fraud to all persons other than the one or few who, in the interval between connexion and exhibition, in the individual case in question, can have had access to the will, with length of time and other facilities adequate to the purpose.

For this same reason, a codicil may be admitted without fresh attestation. By the attestation provided for the will itself, a security is provided against forgery in toto,—such security as the nature of the case seems to admit of,—a security that presents itself as superior, upon the whole, to any that has been as yet exemplified. But forgery in toto is the species of forgery most to be apprehended. Forgery in the way of alteration presupposes a genuine will, and access to that will on the part of the actor or actors in the fraud. But in this case the possibility of the attempt is limited to a very few persons, and a very few occasions.

Were it not for these considerations, an obvious objection to the indulgence would be,—On what principle, with what consistency, refuse to a testamentary disposition under one name, that of a codicil, a safeguard you look upon as necessary to it under the name of a will? But, by the above considerations, when duly attended to, the objection seems to be obviated. Under the circumstances in question, the safeguard given to the preceding will extends itself in a great measure to the subsequent codicil: the genuineness of the paper, as being a paper actually made use of by the testator for the purpose of his will, is established in this case, with as little room for doubt as in any other that can be mentioned.

[* ]In fact, it would even then be increased more than cent. per cent. The greater the number of persons in whose power the supposed accomplice must put himself, by joining with them in the commission of the offence, the greater will evidently be his danger, and therefore the greater the difficulty of engaging him in the conspiracy.

[† ]Vide supra, p. 533, note *.

[* ]Chap. III. § 2.

[* ]If no symbolic attestation be visible on the face of the will, and this (in case of inability to write) be among the formalities required; in this case the omission cannot be accounted for without calling in the supposition of ignorance with regard to the recommendation of the formalities.

[† ]By the act 7 W. IV. & 1 Vict. c. 26, noticed above, p. 533, the 29 C. II. c. 3, so far as it has reference to wills, is repealed.—Ed.

[* ]See the estimates which by different writers have of late years, on the occasion of the property taxes, been made, of the value of the masses of property in different shapes: taking into account this circumstance, viz. the large proportion of immoveable property, which, in the sum of what is called real property, stands exempted (viz. by marriage and other settlements) from the operation of last wills.

[† ]To a man whose reason is in his own keeping, it is scarce necessary to observe, that the demand for formalities cannot be varied by the consideration of the shape in which the property happens to be invested: whether, for example, it consists principally of immoveable property, lands, leases, and so forth; or principally of moveable property, such as stock in trade; or of property called incorporeal, such as an annuity, which is neither immoveable nor moveable, but something between both. Still less, whether, having an immoveable mass for its subject-matter, the interest he has in it, being the same in substance, be expressed in the language of the law by one form of words or another. And, moreover, that, if power be given to a man to dispose in this way of a portion of his property without the regular formalities, that portion should be, not a fixed and absolute one, but a relative one, proportioned as near as may be to the circumstances of the parties.

Under the provision made on this subject by the law of England, everything, however, turns upon these irrelevant points. For the share belonging to one of ten children in a quarter of an acre of unproductive ground, nothing less will serve than writing, with three witnesses: for the rents receivable for the space of ninety-nine years for a street of a hundred houses, a will without any witness, so it be in the hand of the testator, or even a will said to be delivered vivâ voce, so there be a certain number of witnesses to it, and so forth, will in this case serve. So likewise if the property be in a moveable shape—floating for example, or capable of being floated; rolling, or capable of being rolled—no matter to the amount of how many millions. Address yourself to a lawyer, and ask him for the reason of these distinctions,—he begins telling you a tale of other times, the only sort of reason he ever heard of, or ever wished to hear of. If there ever was or might have been a time to which the provision might have been well suited, no matter how ill suited to the time in which we live: if there ever was a sort of people to whom it might have been beneficial, no matter how inconvenient to ourselves.

Ask him what proportion of a dying man’s property should be exempted from formalities? Proportion is theory, a sort of a thing he never desires to hear of: but what is better, he can tell you the proper sum to a farthing:—exactly thirty pounds.

[* ]See Chap. IV. § 3 & 4.

[* ]If the object of the author of this statute had been to create confusion, he could scarcely have pitched upon any more effectual means than he has done. He foresees nothing: he sees nothing but through a cloud. In § 19, in speaking of a word-or-mouth will, he began with the case where there has been no written will already in existence: and on that occasion he described the conditions on which he will allow it to stand good: the subject-matter being property in any shape but real. In § 22 he takes up the opposite case, that of the existence of a written will. In this case, shall a word-of-mouth will be good, or no? That, says he, depends upon the circumstances. Ask him what those circumstances are,—the first and principal one is, that it shall not be a word-of-mouth will, but a will in writing: it must be “in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least.” Allowed by him! But how? in what manner? In the same manner as in the case of land, or tenements, &c.? in the shape of real property, as under § 5 & 6? or in any and what different manner? Between the wording of the two clauses of the act—words employed to make provision for the same case—there is not the smallest connexion or analogy. That they should have been the work of the same hand, however unskilful, is morally impossible: they must have been the work of two different, though alike careless and thoughtless, hands. If in the one case it he required (as in § 5) that the will expressed in writing be subscribed by the three witnesses, why not require, in § 22, the same proof of privity in the other case? If the provision requiring the will to be read over to the testator in the case of the non-real estate be a necessary precaution, why not extend the benefit of it to real estates? Why, in the case of the real estate (§ 5,) insist upon three witnesses to attest the will, without saying how many of them there shall be to prove it; and at the same time, in the case of the non-real estate, insist upon three witnesses to prove the will (i. e. in case of contestation, to depose to the fairness of it) without saying whether there shall be any, and how many, to attest it?

A fact which seems to have been a secret to the penner of this clause, but which one may venture to assert without hesitation, is, that all men are mortal. Quære, what is the number of attesting witnesses that a man must procure (and that at a pinch, in circumstances in which a regularly written will cannot be made,) in order to make sure that, at any given distance of time, three of them shall be alive to prove the will in the character of deposing witnesses? To enumerate the things necessary to be known, which our legislator did not know, would be an endless task. One of them is, the difference between an attesting witness and a deposing witness—between writing, at the time when an instrument is authenticated, and speaking, at another time, when that same instrument has become the subject-matter of dispute in a suit at law.

Through such a thicket of confusion, what shall be the course? Shall fair wills be overturned by wholesale?—or, to prevent such subversion, shall the acts of the legislative power be overturned by the judicial, on the pretence of interpretation? I know not: but, what everybody knows is, that, in the century and a half that has elapsed, the legislator is not to be found to whom it has appeared worth while to pass an act for reconciling on this ground the interests of constitutional obedience with the dictates of common sense and justice.

More caprice, more incongruity, more perplexity, the consequence. Relative to wills of personal estate, this statute found the rules of evidence determined by the ecclesiastical courts, governed by the Roman law. Under that law, a will in the handwriting of the testator is a good will, even without any attesting witnesses. Under the same law, the will, though not written by the testator, yet, if (to use the words of the statute) “read unto the testator and allowed by him,” or indeed if allowed by him, whether read to him or no, would then have been, as it still is, good; such allowance being proved by two witnesses. The testimony of two witnesses, therefore, being sufficient to prove the making of a will, having property in this shape for its subject-matter, why should not the same quantity of testimony be sufficient to prove the annulling or altering of it? Or if, in the case of property in this shape, three are so necessary to render the annulment or alteration of a will a probable event, why should that same number be less necessary, even in the case of property in this same neglected shape, to prove the making of a will in the first instance? But this would have put property personal upon the same footing in this respect with property real: it would have rendered the law, it not reasonable, nor favourable to tranquillity nor to probity, yet, in its unreasonableness, consistent and simple, at least: which was not to be endured. It was necessary that, like the law of succession to intestates, the law of testaments should be in a shape which no mortal conception could lay hold of, and which, if laid hold of, no mortal memory would be able to retain.

Nor is this all. Though witnesses are so little liable to die, testators, it seems, are not only liable to die, but apt to allow wills after they are dead. To make provision (as it should seem) for this accident, it is, that before he comes to require that the sort of will in question (the word-of-mouth will) shall be in writing, and allowed by the testator, he takes care to stipulate that the operation of putting it into writing shall be performed “in the life of the testator,” for fear of his being put to the trouble of allowing it after he is dead. The confusion would not have been thick enough without the insertion of this surplusage.

By the last of the two provisions contained in § 21, “no nuncupative will shall be at any time received to be proved, unless process have first issued to call on the widow, or next of kindred to the deceased, to the end they may contest the same if they please.”

1. The object, probably, which the penner of this clause had in view, was, the making business for Judge and Co. in the ecclesiastical court: and, for this object, the provision made is effectual and secure. What is required is, that the process shall have issued: what is not required is, that it shall have been received. If it has not been received, the ostensible purpose has not been answered; but the real purpose, viz. the receipt of the fees, being answered, in this case as in the others, such accordingly is the requisition made. An incident altogether natural and frequent was and is, that the widow or the next of kindred (if there be but one) is, for an indefinite time, and without any imputation upon his or her probity, out of the reach of this process, whatsoever it be. To a man who had justice in view, this accident would afford no reason why the required proof, and the will along with it, should perish: but, as on all other occasions so on this, what the learned draughtsman had in view was fees.

“The next of kindred:” it may happen to him to be one, or it may happen to them to be in any greater number. All are known, or some are not known: whatsoever be to be understood by process, and whatsoever be to be understood by issuing, process is issued as to some, not issued as to others. In this case, is the will, or is it not, “at any time to be received, to be proved?” Address yourself in a proper manner to Judge and Co., and it is possible that, some day or other, you may know: but it will not the less remain a secret to all who have not paid for it.

The supposed will being in favour of the widow, to the exclusion of the next of kindred; the process, at any rate, being issued, and addressed or not addressed to the widow, is received or not received by her.

The supposed will being in favour of the one next of kindred, to the exclusion of the widow,—the process being at any rate issued, and addressed or not addressed to that one next of kindred, is received or not received by that one next of kindred.

In each of these cases, the winds of the act are satisfied. Will the judge be satisfied? Ask him in the proper manner, and it is possible that one day you may know.

A former will has been made, and the persons in whose favour it was made are all of them strangers, none of them other widow or next of kindred: this will subsisting, a subsequent will finds neither widow nor next of kin possessed of any interest to contest it. Process having been duly and regularly issued, if either widow or next of kin have received it, so much the worse for them: but those things of which it was intended that they should be received have been received, viz. the fees.—But (says the learned scribe, or some one for him.) It is no intention of yours, that, after one will has been made, another in the word-of-mouth form, by us called nuncupative, should be made: and to that effect is our very next section.—Answer: if not, so much the worse. What your next section extends to, however, is only the disallowance of a succeeding nuncupative will after a preceding written one: but to a preceding it may happen to have been also nuncupative: and thus it is that the effect takes place, which to you was either an object of desire, or at best a matter of indifference.—that the only persons by whom the pretended notice is received (if by any it he received) are of the number of those to whom it is not of any use.

[* ]Book IX. Exclusion.

[* ]This act is the 25th Geo. II. c. 6.a In the preamble to it may be seen an example of the sort of varnish with which, in English law more especially, the works of legislators, and in particular the works of lawyers in the way of legislation, are so constantly and diligently covered. From lawgivers so wise, what laws ever proceed but wise ones? But, of all marks of wisdom, what (according to the Spanish proverb) more abundant or genuine than doubts? As wisdom increases, doubts accordingly multiply. But, as there is a time for all things, so is there even for the removal of doubts: even of lawyers’ doubts. Beards are also marks of wisdom: yet neither is shaving without its use. Too good ever to be altered, neither this law nor any other can ever be too good to be explained. A wise and good provision is the provision now in hand; the provision which, for the validity of this and that sort of will, requires “three or four credible witnesses:” but doubts have arisen under it what witnesses are to be deemed legal witnesses: the object of the new act is therefore to “avoid” those doubts; or, in other words, to remove them. Such, then, was the pretended function of the act: not alteration, but pure interpretation. What is its real function? Not interpretation, but alteration. Mischief, flagrant mischief, had been experienced: the cause of it was, partly the work of the legislator, the act itself, by which (without any notice to testators) witnesses in such a number were rendered necessary to the validity of a will; partly the work of the judge, by which the testimony of the description of persons most likely to be called in to subscribe, had so rashly been excluded. What, then, does the act? It puts an end to what the judges used to do, and does what it was not in their power to do: it receives the testimony of the so appointed witness, but deprives him of his legacy.

[* ]The executioner of it, without much impropriety, might be termed the lawyer, and his dupe the legislator; who, satisfied in his own conscience of the fairness of it, puts it to death, because the testator neglected to comply with this or that requisition, the existence of which it had been rendered impossible for him to be apprized of—the knowledge of which had never travelled beyond the breast that hatched it: made, as the requisitions of jurisprudence are so often made, after the man who is punished for the non-observance of them was no longer in existence.

[* ]Apply this to statutes as well as to wills. By a simple erratum, a clear expression might have been given to many an amendment, to which an always obscure and sometimes ambiguous expression has been given by a statute at large. The obscure and ambiguous has however been preferred to the clear. Why? Because, from the obscure and ambiguous form, more emolument in the shape of fees is extracted, than could with equal case be extracted from the clear and familiar form, by those on whom the choice of forms has depended.a

[* ]This act is the 25th Geo. II. c. 6.a In the preamble to it may be seen an example of the sort of varnish with which, in English law more especially, the works of legislators, and in particular the works of lawyers in the way of legislation, are so constantly and diligently covered. From lawgivers so wise, what laws ever proceed but wise ones? But, of all marks of wisdom, what (according to the Spanish proverb) more abundant or genuine than doubts? As wisdom increases, doubts accordingly multiply. But, as there is a time for all things, so is there even for the removal of doubts: even of lawyers’ doubts. Beards are also marks of wisdom: yet neither is shaving without its use. Too good ever to be altered, neither this law nor any other can ever be too good to be explained. A wise and good provision is the provision now in hand; the provision which, for the validity of this and that sort of will, requires “three or four credible witnesses:” but doubts have arisen under it what witnesses are to be deemed legal witnesses: the object of the new act is therefore to “avoid” those doubts; or, in other words, to remove them. Such, then, was the pretended function of the act: not alteration, but pure interpretation. What is its real function? Not interpretation, but alteration. Mischief, flagrant mischief, had been experienced: the cause of it was, partly the work of the legislator, the act itself, by which (without any notice to testators) witnesses in such a number were rendered necessary to the validity of a will; partly the work of the judge, by which the testimony of the description of persons most likely to be called in to subscribe, had so rashly been excluded. What, then, does the act? It puts an end to what the judges used to do, and does what it was not in their power to do: it receives the testimony of the so appointed witness, but deprives him of his legacy.

[a]See “Nomography, or the art of inditing Laws,” Vol. III. p. 231.

[a]This act is repealed, except as to the colonies, by 7 W. IV. and 1 Vict. c. 26.—Ed.