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1776. My opposition was very displeasing to my father, who was entitled to great, Ætat. 67. respect and deference; and I had reason to apprehend disagreeable consequences.
from my non-compliance with his wishes. After much perplexity and uneasi-. ness, I wrote to Dr.. Johnson, stating the case, with all its difficulties, at full: length, and earnestly requesting that he would consider it at leisure, and favour me with his friendly opinion and advice.
T. JAMES BOSWELL, F/2.. « DEAR SIR,
“ I was much imprefed by your letter, and, if I can form upon your case any resolution fatisfactory to myself, will very gladly impart it: but whether I am quite equal to it, I do not know. It is a case compounded of law and justice, and requires a mind versed in juridical disquisitions. Could you not tell your whole mind to Lord Hailes? He is, you know, both a Christian and a Lawyer. I suppose he is above partiality, and above loquacity; and, I believe, he will not think the time lost in which he may quiet a disturbed, or settle a wavering mind. Write to me, as any thing occurs to you; and if I find myself stopped by want of facts necessary to be known, I will make enquiries of you as my doubts arise.
“ If your former resolutions should be found only fanciful, you decide rightly in judging that your father's fancies may claim the preference ; but whether they are fanciful or rational, is the question... I really think Lord Hailes could help us.
“ Make my compliments to dear Mrs. Boswell; and tell her, that I hope to be wanting in nothing that I can contribute, to bring you all out of your troubles. I am, dear Sir, most affectionately,
«. Your humble servant, , London, Jan. 15, 1776.
To the same. « DEAR SIR,
“I'am going to write upon a question which requires more knowledge of local law, and more acquaintance with the general rules of inheritance, than I can claim; but I write, because you request it.
“ Land is, like any other possession, by natural right wholly in the power of its present owner; and may be sold, given, or bequeathed, absolutely or conditionally, as judgement shall direct, or passion incite.
« But natural right would avail little without the protection of law; and 1776. the primary notion of law is restraint in the exercise of natural right. A man Ærat. 6. is therefore, in society, not fully master of what he calls his own, but he still retains all the power which law does not take from him.
“ In the exercise of the right which law either leaves or gives, regard is to be paid to moral obligations.
“ Of the estate, which we are now considering, your father still retains such 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 dilinherit 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 fartum tectum to pofterity, what we have without any merit of our own received from our ancestors, should not choice and free-will be kept unviolated ? Is land' to be treated with more reverence than liberty ?-If this consideration fnould 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 daughters ? 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 cor
1776. respondence with a change of manners, and women made capable of inheriÆtat. 67.
tance; would not then the tenure of estates be changed? Could the women
“ You mention your resolution to maintain the right of your brothers ?.
“ As your whole difficulty arises from the act of your ancestor, who diverted the succession from the females, you enquire, 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 terras than those on which it was granted.
“ 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 shewn, 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 shewn to remote relations.
“ As the rules of succession are, in a great part, purely legal, no man can be supposed to bequeath any thing, 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 powers which the law allows.
“ Your ancestor, for fome reason, disinherited his daughters; but it no more follows that he intended his act as a rule for pofterity, than the disinheriting of his brother.
“ If therefore, you ask by what right your father admits daughters to
“ It appears, upon reflection, that your father excludes nobody; he only
“ 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,
6. Feb. 3, 1773.
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 to the heir male but the skeleton of an estate, “ The plea of conscience (faid 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 se 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.
TO JAMES BOSWELL, Efa. « DEAR SIR,
« 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 ancestor, inherits the power of limiting it according to his own judgement or opinion. If this be true you may join with your father.
“ Further consideration produced another conclusion, “He who receives a fief unlimited by his ancestors, gives his heirs some reason to complain if he does not transinit it unlimited to pofterity.' 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 succesion 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 that 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 4, 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 prefumed, that she 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 poflession 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 fufpicion that entails are encroachments on the dominion of Providence, may be extended to all hereditary privileges and all permanent institutions; I do not see why it may not be extended to any provision but for the present hour, fince all care about futurity proceeds upon a
4 I had reminded hiin of his observation mentioned in Vol. I. page 423.