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. 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 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 {“independently” – Editor} 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.
'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'
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part 124
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