possession, with such power over it, that he can sell it, and do with the money what he will, without any legal impediment. But when he extends his power beyond his own life, by settling the order of succession, the law makes your consent necessary. "Let us suppose that he sells the land to risk the money in some specious adventure, and in that adventure loses the whole; his posterity would be disappointed; but they could not think themselves injured or robbed. If he spent it upon vice or pleasure, his successors could only call him vicious and voluptuous; they could not say that he was injurious or unjust. "He that may do more may do less. He that by selling or squandering, may disinherit a whole family, may certainly disinherit part, by a partial settlement. "Laws are formed by the manners and exigencies of particular times, and it is but accidental that they last longer than their causes; the limitation of feudal succession to the male arose from the obligation of the tenant to attend his chief in war. "As times and opinions are always changing, I know not whether it be not usurpation to prescribe rules to posterity, by presuming to judge of what we cannot know; and I know not whether I fully approve either your design or your father's, to limit that succession which descended to you unlimited. If we are to leave sartum tectum to posterity, what we have without any merit of our own received from our ancestors, should not choice and freewill be kept unviolated? Is land to be treated with more reverence than liberty?—If this consideration should restrain your father from disinheriting some of the males, does it leave you the power of disinheriting all the females? "Can the possessor of a feudal estate make any will? Can he appoint, out of the inheritance, any portions to his daughter? There seems to be a very shadowy difference between the power of leaving land, and of leaving money to be raised from land; between leaving an estate to females, and leaving the male heir, in effect, only their steward. "Suppose at one time a law that allowed only males to inherit, and during the continuance of this law many estates to have descended, passing by the females, to remoter heirs. Suppose afterwards the law repealed in correspondence with a change of manners, and women made capable of inheritance would not then the tenure of estates be changed? Could the women have no benefit from a law made in their favour? Must they be passed by upon moral principles for ever, because they were once excluded by a legal prohibition? Or may that which passed only to males by one law, pass likewise to females by another? "You mention your resolution to maintain the right of your brothers:1 I do not see how any of their rights are invaded. "As your whole difficulty arises from the act of your ancestor, who diverted the succession from the females, you inquire, very properly, what were his motives, and what was his intention; for you certainly are not bound by his act more than he intended to bind you, nor hold your land on harder or stricter terms than those on which it was granted. 1 Which term I applied to all the heirs male.-BOSWELL. "Intentions must be gathered from acts. When he left the estate to his nephew, by excluding his daughters, was it, or was it not, in his power to have perpetuated the succession to the males? If he could have done it, he seems to have shown, by omitting it, that he did not desire it to be done, and, upon your own principles, you will not easily prove your right to destroy that capacity of succession which your ancestors have left. "If your ancestor had not the power of making a perpetual settlement, and if, therefore, we cannot judge distinctly of his intentions, yet his act can only be considered as an example; it makes not an obligation. And, as you observe, he set no example of rigorous adherence to the line of succession. He that overlooked a brother, would not wonder that little regard is shown to remote relations. "As the rules of succession are, in a great part, purely legal, no man can be supposed to bequeath anything, but upon legal terms; he can grant no power which the law denies; and if he makes no special and definite limitation, he confers all the power which the law allows. "Your ancestor, for some reason, disinherited his daughters; but it no more follows that he intended this act as a rule for posterity, than the disinheriting of his brother. "If, therefore, you ask by what right your father admits daughters to inheritance, ask yourself, first, by what right you require them to be excluded? "It appears, upon reflection, that your father excludes nobody; he only admits nearer females to inherit before males more remote; and the exclusion is purely consequential. 66 These, dear Sir, are my thoughts, immethodical and deliberative; but, perhaps, you may find in them some glimmering of evidence. "I cannot, however, but again recommend to you a conference with Lord Hailes, whom you know to be both a lawyer and a Christian. "Make my compliments to Mrs. Boswell, though she does not love me. "I am, Sir, "Your affectionate servant, "SAM. JOHNSON." I had followed his recommendation and consulted Lord Hailes, who upon this subject had a firm opinion contrary to mine. His Lordship obligingly took the trouble to write me a letter, in which he discussed with legal and historical learning, the points in which I saw much difficulty, maintaining that "the succession of heirs general was the succession, by the law of Scotland, from the throne to the cottage, as far as we can learn it by record;" observing that the estate of our family had not been limited to heirs male; and that though an heir male had in one instance been chosen in preference to nearer females, that had been an arbitrary act, which had seemed to be best in the embarrassed state of affairs at that time; and the fact was, that upon a fair computation of the value of land and money at the time, applied to the estate and the burthens upon it, there was nothing given the heir male but the skeleton of an estate. "The plea of conscience," said his Lordship," which you put, is a most respectable one, especially when conscience and self are on different sides. But I think that conscience is not well-informed, and that self and she ought on this occasion to be of a side.” This letter, which had considerable influence upon my mind, I sent to Dr. Johnson, begging to hear from him again, upon this interesting question. "DEAR SIR, TO JAMES BOSWELL, ESQ. Feb. 9, 1776. "Having not any acquaintance with the laws or customs of Scotland, I endeavoured to consider your question upon general principles, and found nothing of much validity that I could oppose to this position: 'He who inherits a fief unlimited by his ancestors, inherits the power of limiting it according to his own judgment or opinion.' If this be true, you may join with your father. "Further consideration produces another conclusion: 'He who receives a fief unlimited by his ancestors, gives his heirs some reason to complain, if he does not transmit it unlimited to posterity. For why should he make the state of others worse than his own, without a reason?' If this be true, though neither you nor your father are about to do what is quite right, but as your father violates (I think) the legal succession least, he seems to be nearer the right than yourself. "It cannot but occur that 'Women have natural and equitable claims as well as men, and these claims are not to be capriciously or lightly superseded or infringed.' When fiefs implied military service, it is easily discerned why females could not inherit them; but the reason is now at an end. As manners make laws, manners likewise repeal them. "These are the general conclusions which I have attained. None of them are very favourable to your scheme of entail, nor perhaps to any scheme. My observation, that only he who acquires an estate may bequeath it capriciously.,1 if it contains any conviction, includes this position likewise, that only he who acquires an estate may entail it capriciously. But I think it may be safely presumed, that he who inherits an estate, inherits all the power legally concomitant;' and that 'He who gives or leaves unlimited an estate legally limitable, must be presumed to give that power of limitation which he omitted to take away, and to commit future contingencies to future prudence.' In these two positions I believe Lord Hailes will advise you to rest; every other notion of possession seems to me full of difficulties, and embarrassed with scruples. "If these axioms be allowed, you have arrived now at full liberty without the help of particular circumstances, which, however, have in your case great weight. You very rightly observe, that he who passing by his brother gave the inheritance to his nephew, could limit no more than he gave; and by Lord Hailes's estimate of fourteen years' purchase, what he gave was no more than you may easily entail according to your own opinion, if that opinion should finally prevail. 'Lord Hailes's suspicion that entails are encroachments on the dominion of Providence, may be extended to all hereditary privileges and all permanent 1 I had reminded him of his observation, mentioned ante.-BoswELL. institutions; I do not see why it may not be extended to any provision for the present hour, since all care about futurity proceeds upon a supposition, that we know at least in some degree what will be future. Of the future we certainly know nothing but we may form conjectures from the past; and the power of forming conjectures, includes, in my opinion, the duty of acting in conformity to that probability which we discover. Providence gives the power, of which reason teaches the use. "I am, dear Sir, "Your most faithful servant, "I hope I shall get some ground now with Mrs. Boswell; make my compliments to her, and to the little people. "Don't burn papers: they may be safe enough in your own box,--you will wish to see them hereafter." "DEAR SIR, TO THE SAME. Feb. 15, 1776. "To the letters which I have written about your great question, I have nothing to add. If your conscience is satisfied, you have now only your prudence to consult. I long for a letter, that I may know how this troublesome and vexatious question is at last decided.1 I hope that it will at last end well. Lord Hailes's letter was very friendly, and very seasonable, but I think his aversion from entails has something in it like superstition. Providence is not counteracted by any means which Providence puts into our power. The continuance and propagation of families makes a great part of the Jewish law, and is by no means prohibited in the Christian institution, though the necessity of it continues no longer. Hereditary tenures are established in all civilised countries, and are accompanied in most with hereditary authority. Sir William Temple considers our constitution as defective, that there is not an unalienable estate in land connected with a peerage: and Lord Bacon mentions as a proof that the Turks are Barbarians, their want of Stirpes, as he calls them, or hereditary rank. Do not let your mind, when it is freed from the supposed necessity of a rigorous entail, be entangled with contrary objections, and think all entails unlawful, till you have cogent arguments, which I believe you never will find. I am afraid of scruples. "I have now sent all Lord Hailes's papers; part I found hidden in a drawer in which I had laid them for security, and had forgotten them. Part of these are written twice; I have returned both the copies. Part I had read before. "Be so kind as to return Lord Hailes my most respectful thanks for his first volume: his accuracy strikes me with wonder; his narrative is far superior to that of Henault, as I have formerly mentioned. 1 The entail framed by my father with various judicious clauses, was settled by him and me, settling the estate upon the heirs male of his grandfather, which I found had been already done by my grandfather, imperfectly, but so as to be defeated only by selling the lands. I was freed by Dr. Johnson from scruples of conscientious obligation, and could, therefore, gratify my father. But my opinion and partiality for male succession in its full extent remained unshaken. Yet let me not be thought harsh or unkind to daughters; for my notion is, that they should be treated with great affection and tenderness, and always participate of the prosperity of the family.-BOSWELL. "I am afraid that the trouble which my irregularity and delay has cost him, is greater, far greater, than any good that I can do him will ever recompense but if I have any more copy, I will try to do better. "Pray let me know if Mrs. Boswell is friends with me, and pay my respects to Veronica, and Euphemia, and Alexander. "I am, Sir, "You have illuminated my mind, and relieved me from imaginary shackles of conscientious obligation. Were it necessary, I could immediately join in an entail upon the series of heirs approved by my father; but it is better not to act too suddenly," "DR. JOHNSON TO MR. BOSWELL. "DEAR SIR, Feb. 24, 1776. "I am glad that what I could think or say has at all contributed to quiet your thoughts. Your resolution not to act, till your opinion is confirmed by more deliberation, is very just, If you have been scrupulous, do not be rash I hope that as you think more, and take opportunities of talking with men intelligent in questions of property, you will be able to free yourself from every difficulty. "When I wrote last, I sent, I think, ten packets. Did you receive them all? "You must tell Mrs. Boswell that I suspected her to have written without your knowledge,1 and therefore did not return any answer, lest a clandestine correspondence should have been perniciously discovered. I will write to her soon. * * * Having communicated to Lord Hailes what Dr. Johnson wrote concerning the question which perplexed me so much, his lordship wrote to me: "Your scruples have produced more fruit than I ever expected from them; an excellent dissertation on general principles of morals and law." I wrote to Dr. Johnson on the 20th of February, complaining of melancholy, and expressing a strong desire to be with him; informing him that the ten packets came all safe; that Lord Hailes was much obliged to him, and said he had almost wholly removed his scruples against entails. 1 A letter to him on the interesting subject of the family settlement, which I had read.BOSWELL. |