Life of Johnson Volume II Part 39

'I am, Sir, 'Your affectionate servant, 'SAM. JOHNSON.

'Feb. 3, 1773'

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;'[1244] 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 embarra.s.sed 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 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 favourable to your scheme of entail, nor perhaps to any scheme.

My observation, that only he who acquires an estate may bequeath it capriciously[1245], if it contains any conviction, includes this position likewise, that only he who acquires an estate may entail it capriciously. But I think it may be safely presumed, that "he who inherits an estate, inherits all the power legally concomitant;" and that "He who gives or leaves unlimited an estate legally limitable, must be presumed to give that power of limitation which he omitted to take away, and to commit future contingencies to future prudence." In these two positions I believe Lord Hailes will advise you to rest; every other notion of possession seems to me full of difficulties and embarra.s.sed with scruples.

'If these axioms be allowed, you have arrived now at full liberty without the help of particular circ.u.mstances, which, however, have in your case great weight. You very rightly observe, that he who pa.s.sing by his brother gave the inheritance to his nephew, could limit no more than he gave; and by Lord Hailes's estimate of fourteen years' purchase, what he gave was no more than you may easily entail according to your own opinion, if that opinion should finally prevail.

'Lord Hailes's suspicion that entails are encroachments on the dominion of Providence, may be extended to all hereditary privileges and all permanent inst.i.tutions; I do not see why it may not be extended to any provision for the present hour, since all care about futurity proceeds upon a supposition, that we know at least in some degree what will be future. Of the future we certainly know nothing; but we may form conjectures from the past; and the power of forming conjectures, includes, in my opinion, the duty of acting in conformity to that probability which we discover. Providence gives the power, of which reason teaches the use.

'I am, dear Sir, 'Your most faithful servant, 'SAM. JOHNSON.'

'Feb. 9. 1776.'

'I hope I shall get some ground now with Mrs. Boswell; make my compliments to her, and to the little people.

'Don't burn papers; they may be safe enough in your own box,--you will wish to see them hereafter.'

To THE SAME.

'DEAR SIR,

'To the letters which I have written about your great question I have nothing to add. If your conscience is satisfied, you have now only your prudence to consult. I long for a letter, that I may know how this troublesome and vexatious question is at last decided[1246]. I hope that it will at last end well. Lord Hailes's letter was very friendly, and very seasonable, but I think his aversion from entails has something in it like superst.i.tion. Providence is not counteracted by any means which Providence puts into our power. The continuance and propagation of families makes a great part of the Jewish law, and is by no means prohibited in the Christian inst.i.tution, though the necessity of it continues no longer. Hereditary tenures are established in all civilised countries, and are accompanied in most with hereditary authority. Sir William Temple considers our const.i.tution as defective, that there is not an unalienable estate in land connected with a peerage[1247]; and Lord Bacon mentions as a proof that the Turks are Barbarians, their want of Stirpes, as he calls them, or hereditary rank[1248]. Do not let your mind, when it is freed from the supposed necessity of a rigorous entail, be entangled with contrary objections, and think all entails unlawful, till you have cogent arguments, which I believe you will never find. I am afraid of scruples[1249].

'I have now sent all Lord Hailes's papers; part I found hidden in a drawer in which I had laid them for security, and had forgotten them.

Part of these are written twice: I have returned both the copies. Part I had read before.

'Be so kind as to return Lord Hailes my most respectful thanks for his first volume; his accuracy strikes me with wonder; his narrative is far superiour to that of Henault, as I have formerly mentioned.

'I am afraid that the trouble, which my irregularity and delay has cost him, is greater, far greater, than any good that I can do him will ever recompense; but if I have any more copy, I will try to do better.

'Pray let me know if Mrs. Boswell is friends with me, and pay my respects to Veronica, and Euphemia, and Alexander.

'I am, Sir,

'Your most humble servant,

'SAM. JOHNSON.'

'February, 15, 1775 [1776].'

'MR. BOSWELL TO DR. JOHNSON.

'Edinburgh, Feb. 20, 1776.

'You have illuminated my mind and relieved me from imaginary shackles of conscientious obligation. Were it necessary, I could immediately join in an entail upon the series of heirs approved by my father; but it is better not to act too suddenly.'

'DR. JOHNSON TO MR. BOSWELL.

'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 now 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?

'You must tell Mrs. Boswell that I suspected her to have written without your knowledge[1250], and therefore did not return any answer, lest a clandestine correspondence should have been perniciously discovered. I will write to her soon.

'I am, dear Sir,

'Most affectionately yours,

'SAM. JOHNSON.'

'Feb. 24, 1776.'

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.

'DEAR SIR,

'I have not had your letter half an 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 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 first 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. Fix your thoughts upon your business, fill your intervals with company, and sunshine will again break in upon your mind[1251]. If you will come to me, you must come very quickly; and even then I know not but we may scour the country together, for I have a mind to see Oxford and Lichfield, before I set out on this long journey. To this I can only add, that

'I am, dear Sir,