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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 (1) 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."
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 manor of Auchinleck (pronounced Affléck) 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
(1) No doubt an advertisement of apology to Rasay.-C.
Boswell, a branch of an ancient family in the county of Fife, styling him in the charter, “ dilecto familiari nostro ;" and assigning as the cause of the grant, "pro bono et fideli servitio nobis præstito." 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 heirsmale, to David Boswell, my father's great-granduncle, 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 (1), to secure it to his family in
(1) Acts of Parliament of Scotland, 1685, cap. 22.
perpetuity by an entail, which, on account of his marriage articles, could not be done without my
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. (1) And in the particular
(1) As first, the opinion of some distinguished naturalists, that our species is transmitted through males only, the female being all along no more than a nidus, or nurse, as Mother Earth is to plants of every sort; which notion seems to be confirmed by that text of Scripture, "He was yet in the loins of his FATHER when Melchisedeck met him," (Heb. vii. 10.); and consequently, that a man's grandson by a daughter, instead of being his surest descendant, as is vulgarly said, has, in reality, no connection whatever with his blood. And, secondly, inde pendent of this theory (which, if true, should completely exclude heirs-general), that if the preference of a male to a female, without regard to primogeniture (as a son, though much younger, nay even a grandson by a son, to a daughter), be once admitted, as it universally is, it must be equally reasonable and proper in the most remote degree of descent from an original proprietor of an estate, as in the nearest; because, however distant from the representative at the time, that remote heir male, upon the failure of those nearer to the original proprietor than he is, becomes in fact the nearest male to him, and is, therefore, preferable as his representative, to a female descendant. A little extension of mind will enable us easily to perceive that a son's son, in continuation to whatever length of time, is pre
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 he 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.
LETTER 234. TO JAMES BOSWELL, ESQ. "London, Jan. 15. 1776. "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 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
ferable to a son's daughter, in the succession to an ancient inheritance; in which regard should be had to the representation of the original proprietor, and not to that of one of his descendants. I am aware of Blackstone's admirable demonstration of the reasonableness of the legal succession, upon the principle of there being the greatest probability that the nearest heir of the person who last dies proprietor of an estate is of the blood of the first purchaser. But supposing a pedigree to be carefully authenticated through all its branches, instead of mere probability there will be a certainty that the nearest heir-male, at whatever period, has the same right of blood with the first heir. male, namely, the original purchaser's eldest son.
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 most affectionately, SAM. JOHNSON."
LETTER 235. TO JAMES BOSWELL, ESQ.
"Feb. 3. 1776.
"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.