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"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 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 portion 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 Suppose afterwards the law repealed in correspondence with a change of manners, and women made capable of inheritance; would not then the tenure of estates be changed?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 (1): 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 inquire, 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.
(1) Which term I applied to all the heirs male.
"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 con. sidered 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 anything, 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 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."
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 heirsmale; 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 a 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 the heirs-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 informed, and that self and she ought on this occasion to be of a side."
This letter, which had considerable influence upon my mind, I sent to Dr. Johnson, begging to hear from him again upon this interesting question.
LETTER 236. 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 judgment 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 clairns 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 attained. None of them are very favourable to your scheme of entail, nor perhaps to any scheme. My observation, that only he who acquires an estate may bequeath it capriciously (1), if it contains any conviction, 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 limitation, which he omitted to 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.
(1) I had reminded him of his observation, mentioned Vo..
1:1. p. 305.