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allowed by our law,' to secure it to his family in perpetuity by an entail, which, on account of his marriage articles, could not be done without my consent.
In the plan of entailing the estate, I heartily concurred with him, though I was the first to be restrained by it; but we unhappily differed as to the series of heirs which should be established, or in the language of our law, called to the succession. My father had declared a predilection for heirs general, that is, males and females indiscriminately. He was willing, however, that all males descending from his grandfather should be preferred to females ; but would not extend that privilege to males deriving their descent from a higher source. I, on the other hand, had a zealous partiality for heirs male, however remote, which I maintained by arguments which appeared to me to have considerable weight. And in the particular case of our family, I apprehended that we were under an implied obligation, in honour and good faith, to transmit the estate by the same tenure which we held it, which was as heirs, male, excluding nearer females. I therefore, as I thought conscientiously, objected to
1 Acts of Parliament of Scotland, 1685, Cap. 22.
2 As first, the opinion of some distinguished naturalists, that our species is transmitted through males only, the female being all along no more than a nidus, or nurse, as Mother Earth is to plants of every sort; which notion seems to be confirmed by that text of scripture, “ He was yet in the loins of his FATHER when Melchi. sedeck met him;" (Heb. vii. 10). and consequently that a man's grandson by a daughter, instead of being his surest descendant, as is vulgarly said, has, in reality, no connection whatever with his blood. And secondly, independent of this theory (which, if true, should completely exclude heirs general), that if the preference of a male to a female, without regard to primogeniture (as a son, though much younger, nay, even a grandson by a son, to a daughter),
be once admitted, as it universally is, it must be equally reasonable and proper in the most remote degree of descent from an original proprietor of an estate, as in the nearest ; because,--however distant from the representative at the time,—that remote heir male, upon the failure of those nearer to the original proprietor than he is, becomes in fact the nearest male to him, and is, therefore, preferable as his representative, to a female descendant.-A little extension of mind will enable us easily to perceive that a son's son, in continuation to whatever length of time, is preferable to a son's daughter, in the succession to an ancient inheritance; in which regard should be had to the representation of the original proprietor, and not to that of one of his descendants.
father's scheme. My opposition was very displeasing to my father, who was entitled to great respect and deference; and I had reason to apprehend disagreeable consequences from my non-compliance with his wishes. After much perplexity and uneasiness, 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.
56 TO JAMES BOSWELL, ESQ.
“I was much impressed by your letter, and if I can form upon your case any resolution satisfactory to myself, will very gladly impart it: but whether I am 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 not you
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 inquiries of you as my doubts arise. " If
I am aware of Blackstone's admirable demonstration of the reasonableness of the legal succession, upon the principle of there being the greatest probability that the nearest heir of the person who last dies proprietor of an estate, is of the blood of the first purchaser. But supposing a pedigree to be carefully authenticated through all its branches, instead of mere probability there will be a certainty that the nearest heir male, at whatever period, has the same right of blood with the first heir male, namely, the original purchaser's eldest son.
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.”
“ Sam. Johnson,”
TO THE SAME.
“I am going to write upon a question which requires more knowledge of local law, and more aca quaintance 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 the primary notion of law is restraint in the exercise of natural right. A man 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 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
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 free-will be kept unviolated ? I sland 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
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.
“ Intentions must be gathered from acts. When
1 Which term I applied to all the heirs male.