But when he extends his power beyond his own life, by settling the order of succession, the law makes your consent necessary.
'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[1242] 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 daughters? 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 Suppose afterwards the law repealed in correspondence with a change of manners, and women made capable of inheritance; would not then the tenure of estates be changed?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[1243]: 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 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 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 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 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.
'Feb. 3, 1773'
I had followed his recommendation and consulted Lord Hailes, who upon this subject had a firm opinion contrary to mine.