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Etat. 67.

1776. that we were under an implied obligation, in honoun

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.




“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 both a Christain and a Lawyer. I


he is above partiality, and above loquacity: and, I belieye, 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. S&173bier) win

Af your former sesolutions should be found only

fanciful, you decide rightly in judging that your 1776 father's fancies may claim the preference; but whe

Ætat. 67. ther 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,

16. Your humble servant, “ London, Jan. 15, 1776.



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“ 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.

LrLand 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


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 suchi

1776. power over it, that he can sell it, and do with the Ætat. 67. 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 1776. all the females ?

Ætat.67. “ 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

66 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.

Which term I applied to all the heirs male.

1776. “ Intentions must be gathered from acts. When

he left the estate to his nephew, by excluding his. Ætat. 67.

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


of making a perpetual settlement; and if, therefore, we cannot judge distinctly of his intentions, yet his act cạn 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 ex-'. cludes nobody; he only admits nearer females. to inherit before males more remote; and the exclusion is purely consequential.

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