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 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 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that "Women have natural and equitable claims as well as men, and these claims are not to be capriciously or lightly superseded or infringed."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 embarrassed with scruples.
'If these axioms be allowed, you have arrived now at full liberty without the help of particular circumstances, which, however, have in your case great weight. You very rightly observe, that he who passing 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 institutions; 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].