Complete Works of Samuel Johnson, page 746
‘You and your lady will now have no more wrangling about feudal inheritance. How does the young Laird of Auchinleck? I suppose Miss Veronica is grown a reader and discourser.
‘I have just now got a cough, but it has never yet hindered me from sleeping: I have had quieter nights than are common with me.
‘I cannot but rejoice that Joseph has had the wit to find the way back. He is a fine fellow, and one of the best travellers in the world.
‘Young Col brought me your letter. He is a very pleasing youth. I took him two days ago to the Mitre, and we dined together. I was as civil as I had the means of being.
‘I have had a letter from Rasay, acknowledging, with great appearance of satisfaction, the insertion in the Edinburgh paper. I am very glad that it was done.
‘My compliments to Mrs. Boswell, who does not love me; and of all the rest, I need only send them to those that do: and I am afraid it will give you very little trouble to distribute them.
‘I am, my dear, dear Sir,
‘Your affectionate humble servant,
‘SAM. JOHNSON.’
‘December, 23, 1775.’
1776: ÆTAT. 67 — In 1776, Johnson wrote, so far as I can discover, nothing for the publick: but that his mind was still ardent, and fraught with generous wishes to attain to still higher degrees of literary excellence, is proved by his private notes of this year, which I shall insert in their proper place.
‘To JAMES BOSWELL, ESQ.
‘DEAR SIR,
‘I have at last sent you all Lord Hailes’s papers. While I was in France, I looked very often into Henault; but Lord Hailes, in my opinion, leaves him far and far behind. Why I did not dispatch so short a perusal sooner, when I look back, I am utterly unable to discover: but human moments are stolen away by a thousand petty impediments which leave no trace behind them. I have been afflicted, through the whole Christmas, with the general disorder, of which the worst effect was a cough, which is now much mitigated, though the country, on which I look from a window at Streatham, is now covered with a deep snow. Mrs. Williams is very ill: every body else is as usual.
‘Among the papers, I found a letter to you, which I think you had not opened; and a paper for The Chronicle, which I suppose it not necessary now to insert. I return them both.
‘I have, within these few days, had the honour of receiving Lord
Hailes’s first volume, for which I return my most respectful thanks.
‘I wish you, my dearest friend, and your haughty lady, (for I know she does not love me,) and the young ladies, and the young Laird, all happiness. Teach the young gentleman, in spite of his mamma, to think and speak well of,
‘Sir,
‘Your affectionate humble servant,
‘SAM. JOHNSON.’
‘Jan. 10, 1776.’
At this time was in agitation a matter of great consequence to me and my family, which I should not obtrude upon the world, were it not that the part which Dr. Johnson’s friendship for me made him take in it, was the occasion of an exertion of his abilities, which it would be injustice to conceal. That what he wrote upon the subject may be understood, it is necessary to give a state of the question, which I shall do as briefly as I can.
In the year 1504, the barony or manour of Auchinleck, (pronounced Affleck,) in Ayrshire, which belonged to a family of the same name with the lands, having fallen to the Crown by forfeiture, James the Fourth, King of Scotland, granted it to Thomas Boswell, a branch of an ancient family in the county of Fife, stiling him in the charter, dilecto familiari nostro; and assigning, as the cause of the grant, pro bono et fideli servitio nobis praestito. Thomas Boswell was slain in battle, fighting along with his Sovereign, at the fatal field of Flodden, in 1513.
From this very honourable founder of our family, the estate was transmitted, in a direct series of heirs male, to David Boswell, my father’s great grand uncle, who had no sons, but four daughters, who were all respectably married, the eldest to Lord Cathcart.
David Boswell, being resolute in the military feudal principle of continuing the male succession, passed by his daughters, and settled the estate on his nephew by his next brother, who approved of the deed, and renounced any pretensions which he might possibly have, in preference to his son. But the estate having been burthened with large portions to the daughters, and other debts, it was necessary for the nephew to sell a considerable part of it, and what remained was still much encumbered.
The frugality of the nephew preserved, and, in some degree, relieved the estate. His son, my grandfather, an eminent lawyer, not only re-purchased a great part of what had been sold, but acquired other lands; and my father, who was one of the Judges of Scotland, and had added considerably to the estate, now signified his inclination to take the privilege 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 my 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.
‘To James Boswell, Esq.
‘Dear Sir,
‘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 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 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 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,
‘SAM. JOHNSON.’
‘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 judgment 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 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 free-will 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 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 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:
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 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 terms 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 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 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 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.
‘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.
‘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 (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.
‘To JAMES BOSWELL, ESQ.
‘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 ancestors, 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 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 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, 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 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,
‘SAM. JOHNSON.’
‘Feb. 9. 1776.’
‘I hope I shall get some ground now with Mrs. Boswell; make my compliments to her, and to the little people.
