to the Mitre, and we dined together. I was as civil as I had the means of being.

'I have had a letter from Rasay, acknowledging, with great appearance of satisfaction, the insertion in the Edinburgh paper. I am very glad that it was done.

'My compliments to Mrs. Boswell, who does not love me; and of all the rest, I need only send them to those that do; and I am afraid it will give you very little trouble to distribute them. I am, my dear, dear sir, your affectionate humble servant, 'SAM. JOHNSON.'

CHAPTER XXXIV.

1776.

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 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, 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.

'TO JAMES BOSWELL, ESQ.

'Jan. 10, 1776. '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 despatch so short a perusal sooner, 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 snow. Mrs. Williams is very ill; everybody 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 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

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 repurchased 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, to secure it to his family in perpetuity by an entail, which, on account of his marriage articles, could not be done without my consent. In the plan of ecailing 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. And in the particular case of our family, I apprehended that we were under

1 Acts of Parliament of Scotland, 1685, cap. 22.BOSWELL.

an implied obligation, in honour and good faith, to transmit the estate by the same tenure by 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.

TO JAMES COSWELL, 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 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 anything 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. Ireally 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, 'SAM. JOHNSON.'

TO THE SAME.

'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.

1

'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 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 neces

sary.

'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 portions to his daughter? 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: 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.

'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 considered 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.'

1 Which term I applied to all the heirs male.-Bos

WELL.

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 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 rot been limited to heirs male; 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.

· TO JAMES BOSWELL, ESQ.

'Feb. 9, 1776.

'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 claims 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 favour

'DR. JOHNSON TO MR. BOSWELL.

'Feb. 24, 1776. 'DEAR SIR,-I am glad that what I could think or say has at all contributed to quiet your thoughts. Your resolution not to act till your opinion is confirmed by more deliberation, is very just. If you have been scrupulous, do not

be rash. I hope that as you think more, and take opportunities of talking with men intelligent in questions of property, you will be able to free yourself from every difficulty. "When I wrote last, I sent, I think, ten packets. Did you receive them all?

soon.

tionately yours,

'You must tell Mrs. Boswell that I suspected her to have written without your knowledge, and therefore did not return any answer, lest a clandestine correspondence should have been perniciously discovered. I will write to her -I am, dear sir, most affec'SAM JOHNSON.' Having communicated to Lord Hailes what Dr. Johnson wrote concerning the question which perplexed me so much, his Lordship wrote to me: 'Your scruples have produced more fruit than I ever expected from them: an excellent dissertation on general principles of morals

and law.'

I wrote to Dr. Johnson on the 20th of February, complaining of melancholy, and expressing a strong desire to be with him; informing him that the ten packets came all safe; that Lord Hailes was much obliged to him, and said he had almost wholly removed his scruples against entails.

'TO JAMES BOSWELL, ESQ.

'March 5, 1776. 'DEAR SIR,-I have not had your letter halfan-hour; as you lay so much weight upon my notions, I should think it not just to delay my

answer.

'I am very sorry that your melancholy should return, and should be sorry likewise if it could have no relief but from my company. My counsel you may have when you are pleased to require it; but of my company you cannot in the next month have much, for Mr. Thrale will take me to Italy, he says, on the 1st of April.

'Let me warn you very earnestly against scruples. I am glad that you are reconciled to your settlement, and think it a great honour to have shaken Lord Hailes's opinion of entails. Do not, however, hope wholly to reason away your troubles; do not feed them with attention, and they will die imperceptibly away. your thoughts upon your business, fill your intervals with company, and sunshine will again break in upon your mind. If you will come to me, you must come very quickly; and even then I know not but we may scour the country

Fix

A letter to him on the interesting subject of the family settlement, which I had read.-BOSWELL.

Above thirty years ago, the heirs of Lord Chancellor Clarendon presented the University of Oxford with the continuation of his History, and such other of his Lordship's manuscripts as had not been published, on condition that the profits arising from their publication should be applied to the establishment of a Manège in the University. The gift was accepted in full convocation. A person being now recommended to Dr. Johnson as fit to superintend this proposed riding school, he exerted himself with that zeal for which he was remarkable upon every similar occasion. But, on inquiry into the matter, he found that the scheme was not likely to be soon carried into execution: the profits arising from the Clarendon press being, from some mismanagement, very scanty. This having been explained to him by a respectable dignitary of the Church, who had good means of knowing it, he wrote a letter upon the subject, which at once exhibits his extraordinary precision and acuteness, and his warm attachment to his ALMA MATER.