"These, dear Sir, are my thoughts, immethodical 1776. 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, Etat, 67. "Feb. 3, 1773. "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 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 in 1776. formed, and that self and she ought on this occasion to be of a side." Ætat. 67. 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 1776. attained. None of them are very favourable to your tat. 67. 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 convic→ tion, 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 'imitation 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. 3 I had reminded him of his observation mentioned, p. 266. Ætat. 67. may 1776. 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 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, "Feb. 9, 1776. "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. "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. I hope that it will at last end 4 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 Ætat. 67. well. Lord Hailes's letter was very friendly, and 1776. 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 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 civilized 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 will never 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 supe daughters for my notion is, that they should be treated with great affection and tenderness, and always participate of the pros perity of the family. FF 2 |