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N 1776, Johnson wrote, so far as I can discover, nothing for the publick: 1776. but that his mind was still ardent, and fraught with generous wishes to Ærat. 67.
attain to still higher degrees of literary excellence, is proved by his private notes of this year, which I shall insert in their proper place,
TO JAMES BOSWELL, Esq. " DEAR SIR,
“ 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 so short a perusal 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 amicted, 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 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 for “The Chronicle, which I suppose it not necessary
' how to insert. I return them both.
« I have,
“ 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, Jan, 10, 1776.
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 neceffary 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, stiling him in the charter, “ dilecto familiari noftro;” and assigning, as the cause of the grant, “pro vono et fideli servitio ncbis præftito.” Thomas Bofwell was Nain 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 transmitted, in, a direct series of heirs male, to David Boswell, my father's great grand uncle, who had no fons, but four daughters, who were all respectably married, the eldest to Lord Cathcart.
David Boswell, being refolute in the military feudal principle of continuing: the male fucceffion, 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 posibly have, in preference to his fon. 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. 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 considerably to the 7776. estate, now fignified his inclination to take the privilege allowed by our law', Ætat. 07. to secure 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 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 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 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.
1 Acts of the Parliament of Scotland, 1685, Cap. 22. ? 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 fcripture, “ He was yet in the loins of bis FATHER when Melchisedeck met him :" (Heb. vi. 10.) and consequently, that a man's grandson by a daughter, instead of being his fureft descendant, as is vulgarly said, has, in reality, no connection whatever with his blood.- And secondly, independent 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 diftant 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 bim, 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 preferable to a fon'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 bis 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 laft 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 neareft heir male, at whatever period, has the same right of blood with the first heir male, namely, the original purchaser's eldest son.
1776. My opposition was very displeasing to my father, who was entitled to great Ærat, 67. 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 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 quite equal to it, I do not know. It is a case compounded of law and justice, and requires a mind versed in juridical difquisitions. Could you not tell 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 fettle 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 enquiries 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 Sir, most affectionately,
« Your humble servant, 6. London, Jan. 15, 1776..
To the same. « 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 poffeffion, by natural right wholly in the power of its present owner; and may be sold, giyen, or bequeathed, absolutely or conditionally, as judgement shall direct, or passion incite.
" But natural right would avail little without the protection of law; and 1776. the piimary notion of law is restraint in the exercise of natural right. A man
Ætat. 67, 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.
u 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 poffeßion, with such 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 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 pofterity, 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 fartum teftuin 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 difinheriting some of the males, does it leave you the power of disinheriting 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 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 cor