Thomas Boswell was slain in battle, fighting along with his Sovereign, at the fatal field of Flodden, in 1513[1238].
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 sons, but four daughters, who were all respectably married, the eldest to Lord Cathcart.
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 re-purchased 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[1239], 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 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 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[1240]. 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.
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[1241]. 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 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 any thing 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. 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,
'SAM. JOHNSON.'
'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 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.
'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.