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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 uneafi-. nefs, I wrote to Dr. Johnfon, ftating the cafe, with all its difficulties, at full. length, and earnestly requesting that he would confider it at leifure, and favour me with his friendly opinion and advice.
To JAMES BOSWELL, Efq..
"I WAS much impreffed by your letter, and, if I can form upon your cafe any refolution 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 queftion.. 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 servant,
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 prefent owner; and may be fold, given, or bequeathed, abfolutely or conditionally, as judgement shall direct, or paffion 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 tat. 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 exercife 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 ftill 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 specious adventure, and in that adventure lofes the whole: his pofterity would be disappointed; but they could not think themselves injured or robbed. If he spent it upon vice or pleasure, his fucceffors could only call him vicious and voluptuous; they could not say that he was injurious or unjust.
"He that may do more, may do lefs. He that, by felling or fquandering, may difinherit a whole family, may certainly disinherit part, by a partial fettlement.
"Laws are formed by the manners and exigencies of particular times, and it is but accidental that they laft longer than their caufes: 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 prefcribe 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 raised from land; between leaving an eftate to females, and leaving the male heir, in effect, only their steward.
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 cor
1776. Etat. 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 3. I do not fee how any of their rights are invaded.
"As your whole difficulty arifes from the act of your ancestor, 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 terrns than thofe 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 fucceffion to the males? If he could have done it, he seems to have shewn, by omitting it, that he did not defire it to be done; and, upon your own principles, you will not easily 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 observe, 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 supposed 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, upɔn reflection, that your father excludes nobody; he only admits nearer females to inherit before males more remote; and the exclufion is purely confequential.
Which term I applied to all the heirs male.
"Thefe, dear Sir, are my thoughts, immethodical and deliberative; but,
"I cannot, however, but again recommend to you a conference with Lord
"Your affectionate fervant,
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 inftance been chofen in preference to nearer females, that had been an arbitrary act, which had feemed to be best 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 estate 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 most respectable one, especially when confcience and felf are on different fides. But I think that conscience is not well informed, and that felf and he 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 interefting question.
Feb. 3, 1773.
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 oppofe to this pofition.. He who inherits a fief unlimited by his ancestor, inherits the power of limiting it according to his own judgement or opinion.' If this be true you may join with your father.
"Further confideration produced another conclufion, He who receives a fief unlimited by his ancestors, gives his heirs fome reafon to complain if he does not tranfmit it unlimited to pofterity.' For why fhould he make the ftate 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 feems 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 capricioufly or lightly fuperfeded or infringed.' When fiefs implied military fervice, 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 eftate may bequeath it capricioufly 4, 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 eftate 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 these 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 cafe 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 eftimate 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
4 I had reminded him of his obfervation mentioned in Vol. I. page 423.