1776. Ætat. 67. refpondence with a change of manners, and women made capable of inheritance; would not then the tenure of eftates be changed? Could the women have no benefit from a law made in their favour? Muft they be paffed by upon moral principles for ever, because they were once excluded by a legal prohibition? Or may that which paffed only to males by one law, pafs likewife to females by another? "You mention your refolution to maintain the right of your brothers. I do not fee how any of their rights are invaded. "As your whole difficulty arifes from the act of your anceftor, who diverted the fucceffion 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 ftricter terms than thofe on which it was granted. When he left the eftate to his or was it not, in his power to If he could have done it, he "Intentions must be gathered from acts. nephew, by excluding his daughters, was it, have perpetuated the fucceffion to the males? feems to have fhewn, by omitting it, that he did not defire it to be done; and, upon your own principles, you will not eafily prove your right to destroy that capacity of fucceffion which your ancestors have left. "If your ancestor had not the power of making a perpetual fettlement; and if, therefore, we cannot judge diftinctly of his intentions, yet his act can only be confidered as an example; it makes not an obligation. And, as you obferve, he fet no example of rigorous adherence to the line of fucceffion. He that overlooked a brother, would not wonder that little regard is fhewn to remote relations. "As the rules of fucceffion are, in a great part, purely legal, no man can be fuppofed 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 powers which the law allows. "Your ancestor, for fome reason, difinherited his daughters; but it no more follows that he intended his act as a rule for pofterity, than the difinheriting of his brother. "If therefore, you afk 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 exclufion is purely confequential, 3 Which term I applied to all the heirs male. "Thefe, "Thefe, dear Sir, are my thoughts, immethodical and deliberative; but, perhaps, you may find in them fome 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. Bofwell, though fhe does not love me. I am, Sir, Feb. 3, 1773•* "Your affectionate fervant, SAM. JOHNSON." I had followed his recommendation and confulted Lord Hailes, who upon this fubject had a firm opinion contrary to mine. His Lordship obligingly took the trouble to write me a letter, in which he difcuffed with legal and historical learning, the points in which I faw much difficulty, maintaining that "the fucceffion of heirs general was the fucceffion, by the law of Scotland, from the throne to the cottage, as far as we can learn it by record;" obferving that the eftate of our family had not been limited to heirs male, and that though an heir male had in one instance been chofen in preference to nearer females, that had been an arbitrary act, which had feemed to be beft in the embarraffed ftate 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 eftate and the burthens upon it, there was nothing given to the heir male but the skeleton of an estate, "The plea of confcience (faid his Lordship) which you put, is a moft refpectable one, especially when confcience and felf are on different fides. But I think that confcience is not well informed, and that self and she ought on this occafion to be of a fide." This letter, which had confiderable influence upon my mind, I fent to Dr. Johnson, begging to hear from him again, upon this interesting question. "DEAR SIR, To JAMES BOSWELL, Efq. "HAVING not any acquaintance with the laws or cuftoms of Scotland, I endeavoured to confider 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 anceftor, inherits the power of limiting it according to his own judgement or opinion.' If this be true. you may join with your father. "Further 1776. Ætat. 67. 1776. Ætat. 67. "Further confideration produced another conclufion, He who receives a fief unlimited by his ancestors, gives his heirs fome reason to complain if he does not transmit it unlimited to pofterity. For why should he make the state of others worfe than his own, without a reafon? 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 fucceffion leaft, 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 thefe claims are not to be capriciously or lightly fuperfeded or infringed.' When fiefs implied military service, it is easily difcerned why females could not inherit them; but that reason is now at an end. As manners make laws, manners likewife repeal them. "Thefe are the general conclufions which I have attained. None of them are very favourable to your fcheme of entail, nor perhaps to any fcheme. My obfervation, that only he who acquires an estate may bequeath it capriciously, if it contains any conviction includes this pofition likewise, that only he who acquires an eftate may entail it capriciously. But I think it may be fafely prefumed, 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 prefumed to give that power of limitation which he omitted to take away, and to commit future contingencies to future prudence.' In thefe two pofitions I believe Lord Hailes will advise you to reft; every other notion of poffeffion feems to me full of difficulties, and embarraffed with fcruples. "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 obferve, that he who paffing 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 eafily entail according to your own opinion, if that opinion fhould finally prevail. "Lord Hailes's fufpicion that entails are encroachments on the dominion. of Providence, may be extended to all hereditary privileges and all permanent inftitutions; I do not fee why it may not be extended to any provifion but for the prefent hour, fince all care about futurity proceeds upon a I had reminded him of his obfervation mentioned in Vol. I. page 423. fuppofition, fuppofition, that we know at leaft in fome degree what will be future. Of 1776. the future we certainly know nothing; but we may form conjectures from Etat. 67. the paft; and the power of forming conjectures, includes, in my opinion, the duty of acting in conformity to that probability which we difcover. Providence gives the power of which reason teaches the ufe. I am, dear Sir, "Your most faithful fervant, "February 9, 1776. SAM. JOHNSON. "I hope I fhall get fome ground now with Mrs. Bofwell; 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 fame. "TO the letters which I have written about your great queftion I have nothing to add. If your confcience is fatisfied, you have now only your prudence to confult. I long for a letter, that I may know how this troublesome and vexatious queftion is at laft decided. I hope that it will at last end well. Lord Hailes's letter was very friendly, and very feasonable, but I think his averfion from entails has fomething in it like fuperftition. Providence is not counteracted by any means which Providence puts into our power. The continuance and propagation of families makes a great part of the Jewish law, and is by no means prohibited in the Christian institution, though the neceffity of it continues no longer. Hereditary tenures are established in all civilifed countries, and are accompanied in most with hereditary authority. Sir William Temple confiders our conftitution as defective, that there is not an unalienable eftate 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 5 The entail framed by my father with various judicious claufes, was executed 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 fo as to be defeated only by felling the lands. I was freed by Dr. Johnson from fcruples of confcientious obligation, and could, therefore, gratify my father. But my opinion and partiality for male fucceffion, in its full extent, remained unfhaken. Yet let me not be thought harsh or unkind to daughters; for my notion is, that they fhould be treated with great affection and tendernefs, and always participate of the profperity of the family. VOL. II. C is Etat. 67. 1776. is freed from the fuppofed neceffity of a rigorous entail, be entangled with objections, and think all entails unlawful, till you have cogent contrary arguments, which I believe you will never find; I am afraid of fcruples. "I have now fent all Lord Hailes's papers, part I found hidden in a drawer in which I had laid them for fecurity, and had forgotten them. Part of these are written twice, I have returned both the copies. Part I had read before. "Be fo kind as to return Lord Hailes my moft refpectful thanks for his first volume; his accuracy ftrikes me with wonder; his narrative is far fuperiour to that of Henault, as I have formerly mentioned. "I am afraid that the trouble, which my irregularity and delay has coft him, is greater, far greater, than any good that I can do him will ever recompenfe, but if I have any more copy, I will try to do better. Pray let me know if Mrs. Bofwell is friends with me, and pay my refpects to Veronica, and Euphemia, and Alexander. I am, Sir, "Your most humble fervant, Feb. 15, 1775. SAM. JOHNSON." Mr. BOSWELL to Dr. JOHNSON. Edinburgh, Feb. 20, 1776. "YOU have illuminated my mind and relieved me from imaginary fhackles of confcientious obligation. Were it neceffary, I could immediately join in an entail upon the series of heirs approved by my father; but it is better not to act too fuddenly." "DEAR SIR, Dr. JOHNSON to Mr. BOSWELL. "I AM glad that what I could think or fay has at all contributed to quiet your thoughts. Your refolution not to act, till your opinion is confirmed by more deliberation, is very juft. If you have been fcrupulous, do not now be rash. I hope that as you think more, and take opportunities of talking with men intelligent in queftions of property, you will be able to free yourself from every difficulty. "When I wrote last, I fent, I think, ten packets. Did all? you receive them "You |