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N 1776, Johnson wrote, fo far as I can discover, nothing for the publick: 1776. but that his mind was ftill ardent, and fraught with generous wishes to Lad Etat. 67. attain to still higher degrees of literary excellence, is proved by his private notes of this year, which I fhall infert in their proper place.



"I HAVE at last sent you all Lord Hailes's papers. While I was in France, I looked very often into Henault; but Lord Hailes, in my opinion, leaves him far, and far, behind. Why I did not dispatch fo fhort a perufal fooner, when I look back, I am utterly unable to discover: but human moments are stolen away by a thousand petty impediments which leave no trace behind them. I have been afflicted, through the whole 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 fnow. Mrs. Williams is very ill: every body else is as ufual


Among the papers, I found a letter to you, which I think you had not opened; and a paper for The Chronicle,' which I fuppofe it not neceffary now to infert. I return them both.




"I have,


Etat. 67.

"I have, within these few days, had the honour of receiving Lord Hailes's first volume, for which I return my moft refpectful 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 fpeak well. of, Sir,


Jan. 10, 1776.

"Your affectionate humble fervant,


At this time was in agitation a matter of great confequence 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 occafion of an exertion of his abilities, which it would be injustice to conceal. That what he wrote upon the fubject may be understood, it is neceffary to give a ftate of the question, which I fhall 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 fame name with the lands, having fallen to the Crown by forfeiture, James the Fourth, King of Scotland, granted it to Thomas Bofwell, a branch of an ancient family in the county of Fife, ftiling him in the charter, " dilecto familiari noftro;", and affigning, as the cause of the grant, "pro bono et fideli fervitio ncbis præftito." Thomas Bofwell was flain in battle, fighting along with his Sovereign, at the fatal field of Floddon, in 1513.

From this very honourable founder of our family, the estate was tranfmitted, in, a direct series of heirs male, to David Bofwell, my father's great grand uncle, who had no fons, but four daughters, who were all respectably married, the eldeft to Lord Cathcart.

David Bofwell, being refolute in the military feudal principle of continuingthe male fucceffion, paffed by his daughters, and fettled the eftate on his nephew by his next brother, who approved of the deed, and renounced any pretenfions which he might poffibly have, in preference to his fon. But the eftate having been burthened with large portions to the daughters, and other debts, it was neceffaty for the nephew to fell a confiderable part of it, and what remained was ftill much encumbered.

The frugality of the nephew preferved, and, in fome degree, relieved theeftate. His fon, my grandfather, an eminent lawyer, not only re-purchased a great part of what had been fold, but acquired other lands; and my father,

who was one of the Judges of Scotland, and had added confiderably to the eftate, now fignified his inclination to take the privilege allowed by our law', to fecure it to his family in perpetuity by an entail, which, on account of marriage articles, could not be done without my confent.

In the plan of entailing the eftate, I heartily concurred with him, though I was the first to be restrained by it; but we unhappily differed as to the feries of heirs which should be established, or in the language of our law, called to the fucceffion. My father had declared a predilection for heirs general, that is, males and females indifcriminately. He was willing, however, that all males defcending from his grandfather fhould be preferred to females; but would not extend that privilege to males deriving their descent from a higher fource. 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 confiderable weight. And in the particular cafe of our family, I apprehended that we were under an implied obligation, in honour and good faith, to tranfmit the estate by the same tenure which we held it, which was as heirs male, excluding nearer females. I therefore, as I thought confcientiously, objected to my father's fcheme.

Acts of the Parliament of Scotland, 1685, Cap. 22.

As first, the opinion of fome diftinguished naturalifts, that our fpecies is tranfmitted through males only, the female being all along no more than a zidus, or nurse, as Mother Farth is to plants. of every fort; which notion feems to be confirmed by that text of fcripture, "He was yet in the loins of his FATHER when Melchifedeck met him.” (Heb. vi. 10.) and confequently, that a man's grandfon by a daughter, instead of being his fureft defcendant, as is vulgarly faid, has, in reality, no connection whatever with his blood.-And fecondly, independent of this theory, (which, if true, fhould completely exclude heirs general,) that if the preference of a male to a female, without regard to primogeniture, (as a fon, though much younger, nay, even a grandfon by a fon, to a daughter,) be once admitted, as it univerfally is, it must be equally reasonable and proper in the most remote degree of defcent from an original proprietor of an estate, as in the nearest; because, however diftant from the reprefentative 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 reprefentative, to a female defcendant.-A little extenfion of mind will enable us eafily to perceive that a fon's fon, in continuation to whatever length of time, is preferable to a fon's daughter, in the fucceffion 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 defcendants.

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I am aware of Blackstone's admirable demonstration of the reasonableness of the legal fucceffion, upon the principle of there being the greatest probability that the nearest heir of the perfon who laft dies proprietor of an eftate, is of the blood of the first purchaser. But fuppofing 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 fame right of blood with the first heir male, namely, the original purchafer's eldeft fon.


tat. 67.


My oppofition, was very difpleafing to my father, who was entitled to great Etat, 67. refpect and deference; and I had reason to apprehend disagreeable confequences

from my non-compliance with his wifhes. After much perplexity and uneafinefs, I wrote to Dr. Johnson, stating the cafe, with all its difficulties, at full length, and earneftly requesting that he would confider it at leifure, and favour me with his friendly opinion and advice.


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"I WAS much impreffed by your letter, and, if I can form upon your cafe any resolution fatisfactory to myself, will very gladly impart it: but whether I am quite equal to it, I do not know. It is a cafe compounded of law and justice, and requires a mind verfed in juridical difquifitions. Could you not tell your whole mind to Lord Hailes? He is, you know, both a Christian and a Lawyer. I fuppofe he is above partiality, and above loquacity; and, I believe, he will not think the time loft in which he may quiet a disturbed, or fettle a wavering mind. Write to me, as any thing occurs to you; and if I find myself stopped by want of facts neceffary to be known, I will make enquiries of you as my doubts arise..

"If your former refolutions fhould 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. Bofwell; 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 Sir, most affectionately,

"Your humble fervant,

London, Jan. 15, 1776..


To the fame.


"IAM going to write upon a queftion 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 poffeffion, by natural right wholly in the power. of its present owner; and may be fold, given, or bequeathed, abfolutely or conditionally, as judgement fhall direct, or paffion incite.


"But natural right would avail little without the protection of law; and 1776. the primary notion of law is restraint in the exercise of natural right. A man Etat. 67. is therefore, in fociety, not fully mafter 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 eftate which we are now confidering, your father still retains fuch poffeffion, with fuch power over it, that he can fell it, and do with the money what he will, without any legal impediment. But when he extends his power beyond his own life, by fettling the order of fucceffion, the law makes your confent neceffary.

"Let us fuppofe that he fells the land to rifk the money in fome fpecious adventure, and in that adventure lofes the whole: his pofterity would be disappointed; but they could not think themselves injured or robbed. If he fpent it upon vice or pleasure, his fucceffors could only call him vicious and voluptuous; they could not fay that he was injurious or unjust.

"He that may do more, may do less. He that, by felling or squandering, may difinherit a whole family, may certainly difinherit part, by a partial settlement.

"Laws are formed by the manners and exigencies of particular times, and it is but accidental that they laft longer than their causes: the limitation of feudal fucceffion to the male arofe 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 ufurpation to prescribe rules to pofterity, by prefuming 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 fucceffion which defcended to you unlimited. If we are to leave fartum tectum to pofterity, what we have without any merit of our own received from our ancestors, fhould not choice and free-will be kept unviolated? Is land to be treated with more reverence than liberty ?—If this confideration fhould reftrain your father from difinheriting fome of the males, does it leave you the power of difinheriting all the females?

"Can the poffeffor of a feudal estate make any will? Can he appoint, out of the inheritance, any portions to his daughters? There feems to be a. very fhadowy difference between the power of leaving land, and of leaving money to be raifed from land; between leaving an eftate to females, and leaving the male heir, in effect, only their steward.


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Suppofe at one time a law that allowed only males to inherit, and during the continuance of this law many eftates to have defcended, paffing by the females, to remoter heirs. Suppofe afterwards the law repealed in correfpondence

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