Johnsonian Liberty

During his career as a lawyer, James Boswell asked Samuel Johnson for his legal opinion on several occasions. Johnson provided Boswell with detailed arguments, and he even wrote speeches for Boswell to deliver. In 1776, Boswell called on Johnson again, but this time for a personal matter. Lord Auchinleck, Boswell’s father, was set to entail his property so that it could only be passed down to members of his family. As part of the legal process of entailment, Boswell, the next heir of the estate, had to consent to his father’s plan. Boswell, however, thought that the land should be entailed to male heirs not only for propriety sake but also because his great-uncle had passed over his daughters and left the estate to his nephew. That decision, in Boswell’s mind, set a precedent, to which future generations should adhere. In his letters to Johnson on this matter, Boswell describes his dilemma as a moral one – it would be disrespectful to their ancestors to entail the family’s estate without attention to their example. By choosing to pass over nearer female relations in his will, Boswell’s ancestor had demonstrated his will that primogeniture be upheld.

In light of Boswell’s reasoning, Johnson’s response must have come as a surprise because, in spite of his staunch Toryism, he disagreed with Boswell. Johnson too viewed the former Lord Auchinleck’s will as a precedent, but for what he did not to do rather than what he did. Boswell’s ancestor may have passed over female heirs, but he did not entail the estate.

Johnson’s rebuttal to Boswell is not so much an opposing sociopolitical stance as it is a logical corrective. Both men are using precedent as their primary criterion for determining the proper course of action. This move requires them to draw an analogy between Lord Auchinleck’s circumstance and his ancestor’s. In Johnson’s opinion, if Lord Auchinleck had to pass over female heirs to leave his estate to a male (i.e. he did not have a son), he would be justified in doing so; by entailing the estate, however, he is no longer following a precedent but establishing one. Boswell’s ancestor had the option to entail the estate as well, and his decision not to entail is the precedent to which Boswell should draw his analogy. Boswell’s argument draws a false analogy between the act of bequeathing and entailing.

But why does the distinction between bequeathing and entailing matter? In all likelihood, Boswell’s ancestor did believe in primogeniture and his will supports that inference. For Johnson, the importance of this distinction – and the reason he chooses to correct Boswell’s false analogy – lies in his concept of liberty. He contends, “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,” (488). Those two consequences of “leav[ing] unlimited an estate legally limitable” coordinate liberty on two planes – synchronic and diachronic. In an isolated moment, one’s liberty only extends as far as it does not infringe or limit another person’s liberty. If one were to transport Lord Auchinleck’s descendants back in time and make them neighbors, Auchinleck’s liberty to entail their property would infringe their liberty to bequeath it as they chose just as it would if Auchinleck were to restrict the liberty of one of his actual neighbors. Beyond the direct limitation of another’s liberty, the choice to entail restricts the ability of future generations to address “future contingencies.” In other words, exercising a liberty also ripples outward into the future beyond those directly affected by it. The act of entailment, and any action whose consequences extend in time, is, as Johnson suggests, a “usurpation” that “prescribe[s] rules to posterity, by presuming to judge of what we cannot know,” (487).

The example of entailment functions as a paradigm for the proper use of liberty by synthesizing the direct and indirect consequences of liberty’s expenditure. This example functions as a paradigm because it cannot function as a rule – the paradigm is a moral framework of last resort. The morality of choosing not to entail is founded on the fact that it is a choice; to impose a rule on Lord Auchinleck would limit his liberty in the manner that an entailment would his heirs’ liberty. As Johnson observes, “he who inherits an estate, inherits all the power legally concomitant.” Johnson’s recommendation can only be a template of what one ought to do. Yet his model of liberty’s proper use – one that “leaves unlimited an estate legally limitable” and “commit[s] future contingencies to future prudence”- would resurface as the culmination of a dilemma of liberty that began across the Atlantic Ocean that same year.