The Life of Samuel Johnson - James Boswell [346]
‘As the rules of succession 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 some reason, disinherited his daughters; but it no more follows that he intended his 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,
‘Feb, 3, 1773.’533 ’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 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 to the heir 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.
‘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 judgement or opinion.” If this be true, you may join with your father.
‘Further consideration produced 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 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