Appendix 9. (1416).
Christianity has always shown an unceasing tendency to redirect positive laws, civil or political, to the simple Right of reason. With this in mind, it proceeded by bettering human beings so that we no longer need the multiple formalities and cautions with which human laws endeavour to make their point and bring us to conform to duty.
If we apply these considerations to wills, we note:
1. If we suppose civil society to be still imperfectly organised, as it always is when nations begin to exist, we can see why testaments and contracts of sale came into force only after receiving great publicity. Such public forms were the means by which all the people promise, as it were, to accept as valid the will of the testator and the contracting parties, and maintain it. The testator or the buyer enters into a kind of pact with all and sundry, and they with him by obliging themselves to respect his will as law.
2. It is no longer necessary to require this public promise from everyone when social government has been sufficiently organised and strengthened to maintain through its sole power the will of testators and contracting parties. It is sufficient that testators' wills be witnessed by a certain number of persons representing the people (who are still not completely submissive) and making their promise on behalf of the people. At the beginning, however, there has to be quite a large body of these persons in order to eliminate all doubt before the eyes of the people about the truth of the testament, and to provide a certain solemnity to the act of making a will a solemnity which renders members of a society less likely to violate the will.
3. When government finally and completely prevails and the people are both more submissive and more enlightened, certain lesser formalities are required by the law for the sake of detecting more subtly the efficacy of proofs establishing the truth of testaments which are not so clear to the senses; eventually, only those formalities remain which `are sufficient to make known this truth with certainty'. At this point, positive laws are already identified with rational laws.
We have to note we have noted it at other times that formalities not required by rational Right always result in harmful consequences, and must not therefore be introduced by legislators unless they are absolutely necessary to avoid greater evils. In fact, as more formalities are imposed upon jural acts to ensure their validity, a greater number of naturally valid acts are rendered invalid by positive law. This is the cause of grave inconvenience. Again, a great number of formalities increase rather than lessen litigation because they provide loopholes for those interested in endeavouring to render the act invalid.
In our case, the formalities imposed upon testaments by Roman law provided an excuse for declaring many wills worthless. The Church experienced this when she was called to succeed as heir or legatee. She was often disturbed by litigation that put in doubt the validity of wills through lack of some legal formality. This frequent disorder moved the Church, as far back as the 6th century, to declare that pious legacies had to be accepted as obligatory upon the conscience of the faithful, even when certain formalities of civil law were lacking, provided that the will of the testator could be proved with certainty.
The second Council of Lyons, for example, passed the following important decree (367 AD, c. 2): `The Church has suffered greatly from the unfaithful who try to deprive her of gifts bestowed upon her. It is necessary, therefore, to observe inviolably the following: the testaments of bishops, priests or clerics in lower orders, or gifts or any acts of any kind by which anything is conferred upon the Church or anyone else, should consistently stand firm. In particular, we decree that the wills of any religious persons whatsoever, although either by necessity or through simplicity not altogether in keeping with the order of secular law, should as wills of the deceased remain firm and be preserved in all things with the help of God.' It was also declared that the will of the testator, although expressed only orally, had to prevail. Cf. the Decretals of Gregory IX (bk. 3, tit. 26, c. 4), which simply repeats a rescript of Gregory the Great (600 AD Ep., bk 12, ep. 30). Alexa nder III (1170 AD) ordered the judges at Velletri, who required seven or at least five suitable witnesses to validate pious legacies, to be satisfied with two or three witnesses: `We command that when anyone is brought before you for examination in some case you should not treat the case according to the laws, but according to the STATUTES OF THE DECREES on the basis of three or two lawful witnesses. It is written: Every word may be confirmed by two witnesses or three witnesses' (bk. 3, tit. 26, c. 11). Innocent III declared to the bishop of Auxerre that a person confiding his last will to a third party did not die intestate (bk. 3, tit. 26, c. 13). These modifications of Right held sway in Christian nations.
The only controversy on the matter amongst jurists related to the quality of the formality requiring two or three witnesses. Was this formality absolutely necessary for validity or was it simply a sure proof? The second opinion is completely in harmony with the spirit of canonical Right which seeks unceasingly to draw people to rational Right.
The same Decretals of Gregory IX (bk. 3, tit. 26, c. 5) register another modification to civil laws which obliged the heir to satisfy even those legacies in which the testator had disposed of things not belonging to him. The question concerned a legacy left to a church and supported by civil laws. The Pope refuses the legacy and writes to the bishop of the legatee church: `It is true that the laws of the world require an heir to carry out the obligation if a person has left as a legacy something not his own. But because WE LIVE BY THE LAW OF GOD, NOT BY THE LAW OF THIS WORLD, it appears very unjust to me that you, who are obliged to restore to others what belongs to them, should keep the things left to you which belong to any Church whatsoever.' This rescript of Gregory IX (1230) repeats that of Gregory the Great (AD 600). In a word, the spirit of the Church is the spirit of jural reason, never the spirit of arbitrariness.