We shall now proceed to point out some of the peculiar advantages of primogeniture as compared with any other form of the law of succession, and to offer a slight defence of it as a useful institution, though, for the reasons already stated, we shall speak more briefly and cursorily than is ordinarily desirable, at the opening of an important debate.

Primogeniture has now had undivided sway over the disposition of the real estate of intestates for upwards of 500 years. It has thus become a time-honoured institution, interwoven with the habits and affections of society; and has, therefore, a prescriptive right to our reverence. It has had a great share in forming the political character of our nation; and we have little to complain of its effects. To change it now, will be to discard an old and tried system-to exchange (in the words of Lord Bacon) "a custom which, though it be not good, at least is fit," for novelties which "trouble by their inconformity." Blackstone tells us that "the law of inheritance," of which the institution in question forms an important part, "is a point of the highest importance, and indeed the principal object of all the laws of real property in England;" so that an abolition of the law of primogeniture would shake the whole system of English law to the very foundation. The whole system, therefore, of our laws and government would receive a severe shock. Now, to justify such dangerous innovations, the necessity should be extreme; does any such necessity exist? Has primogeniture worked any dire evils, or brought down any heavy calamities on our land? A few extreme politicians, jealous of our noble aristocracy, have raised their voice against it, and a few philosophical and economical writers have condemned it on theoretical grounds; but surely this is not sufficient to warrant so violent a change in our social polity. There are other writers, as eminent, who have defended it; there are other politicians, more worthy of our attention, who have declared in its favour. Let those who truly love England's institutions, and prize her liberties, pause ere they intermeddle with a principle so thoroughly inwrought into her social existence, and remember the words of one of her greatest sons, "It is good not to try experiments in states, except the necessity be urgent, or the utility evident; and well to beware that it be the

reformation which draweth on the change, and not the desire of change that pretendeth the reformation."

The right of property has been much disputed, and has been based on many different principles; perhaps no satisfactory proof of its origin and moral propriety has yet been given. At the same time it seems to form a necessary part of the moral discipline of man, and to rest on the innate principles of his nature. Without property, society could not exist; and the very inequalities in its distribution have a beneficial effect on society, by stimulating all the energies of mankind, and strengthening those powers of foresight and contrivance which especially distinguish man from the beasts. It has, however, been doubted, even by those who admit the right and necessity of property, whether all power ought not necessarily to cease with the death of its owner; and whether the state, or the children and other relatives of the late owner, ought not to have an indefeasible title to succeed him. It is not easy to decide these questions on moral or philosophical grounds. As a general rule, testamentary powers in early times seem to have been very slight, a entirely denied, but to have gradually increased with the progress of civilization.* In our own country, this onward progress has been continued, until we have at present an unlimited and free power of disposing and devising all kinds of property by will. This fact has a most important relation to primogeniture, in softening all its harsher effects, and even changing its very nature. Primogeniture as a right can no longer be said to exist; the owner of an estate may at any moment destroy the right by making his will. In the heyday of feudalism, before alienation by will was permitted, primogeniture was a right (possessed by the eldest son) to succeed to all the real estate, or, as it was then termed, to all the lands and tenements of his father, to the entire exclusion of his younger brothers. From this ancient right has arisen the modern custom of settling the landed estates of great families on the eldest son. Primogeniture, then, in this country is only a custom, not a low-is suffered, and not established. Convince all

The Roman citizens even before the laws of the twelve tables seem to have had the power of appointing a successor.

The Roman law is a remarkable exception.

the landholders of the nation of the impolicy or immorality of primogeniture, and they have it in their power to abolish it by the simple process of making their wills." No legislative interference is required to secure its downfall; its fate is in the hands of the people. Are my opponents prepared to forbid the practice and continuance of this custom ? Are they desirous of curtailing that free and full liberty of disposal which every Englishman now possesses? Unless they are willing thus to play tyrant, what more do they want than they now possess? They may (if they choose) divide their own property, after the fashion of gavel-kind, among all their sons equally, or, in imitation of Borough-English, they may devise it to their youngest son exclusively; and they are perfectly free and welcome to try the effect of their persuasive eloquence on their neighbours. What more can they desire?

We may now notice two peculiar advantages incident to primogeniture. The first of these is, that it is absolutely necessary as a means of maintaining the honours and dignity of a titled aristocracy like our own, where territorial power and aggrandisement form an indispensable part of their state. I imagine that there are but few, if any, readers of the Controversialist, who require that this branch of our "threefold bond of government" should here be vindicated as an essential and desirable element of the British constitution. Nothing would be a more serious injury to our "hereditary legislators" than the attempt to destroy the custom of primogeniture; and this one fact will, we believe, be a sufficient reason with the majority of our countrymen for supporting the negative side of the proposition now under debate.

The second great advantage of primogeniture is, that it checks the minute subdivision of land. "Though there can be little doubt of the injurious consequences that must always flow from every attempt to regulate the succession to property by means of compulsory regulations, there are good grounds for thinking that the custom of primogeniture, or the custom of leaving the whole, or the greater part, of the paternal estate to the eldest son, to the exclusion of his brothers and sisters, has been advantageous. The prejudices of most political philosophers against primogeniture seem to rest on no solid foundation. Dr. Smith says,

The

that it is custom which, in order to enrich one, beggars all the rest of the children;' but, so far from agreeing in this opinion, we cannot help thinking, that to it may be fairly ascribed much of the industry, freedom, and civilization of modern Europe; and that were it abolished, and the custom of equally dividing landed property established in its stead, all the children of landlords, the youngest as well as the oldest, would be reduced to a state of comparative poverty, at the same time that the prosperity of the other classes would be greatly impaired.” (Smith's "Wealth of Nation, Notes by M'Culloch," p. 564.) The editor continues the note by showing that in the case of leaseholds the custom of gavelling or dividing the paternal inheritance had prevailed in Ireland, while the opposite system of primogeniture had been adopted in Scotland. In the one case, agriculture had sunk progressively, while the farms had dwindled into "mere patches;" in the other case, the farms had become gradually larger, while the capital employed in, and the profits derived from, agriculture had risen continuously. only mode of preventing a minute subdivision of land seems to be by adopting primogeniture as one of the "canons of descent." Of the desirability of preventing that subdivision, there can, on serious thought, be scarcely any doubt. The fatal effects of petty farming are the cause of the greater part of Ireland's woes; it has demoralised and pauperised the peasantry; it has ruined the landlords; it has reduced agriculture to the mere cultivation of the potato. In France, the subdivision of ownership has produced pauperism and wretchedness, and has been the fruitful source of continual convulsion, revolution, and anarchy. The French peasantry have become the helots and dependents of the towns' population. "Small properties much divided prove the greatest source of misery that can possibly be conceived; and this operated to an extent and degree in France, that a law undoubtedly ought to be passed, to render all division below a certain number of arpents illegal." ("Travels in France," vol. i. p. 414). Our safeguard against these evils is in the maintenance of our law of primogeniture. Reader! by the love you bear the land of liberty in which you dwell, we claim, on her behalf, and for her sake, your verdict.

B. S.

IN turning over the pages of a late popular edition of the far-famed essays of Lord Bacon, for the purpose of transcribing the above emphatic condemnation of transportation, my attention was drawn to the following editorial apology for this part of our penal jurisprudence:-"Of course this censure would not apply to what is primarily and essentially a convict colony, the object of which is to drain the mother country of its impure superfluities." This extract contains so pithy an abridgment of the arguments usually urged in defence of transportation, that I think I cannot, at this early stage of the present debate, perform a more essential service than to expose the absolute fallacy and untruth of the assumptions on which the reasoning in question is based. If I can succeed in inducing my opponents at once to yield (in the spirit of truth-seeking candour) these indefensible outposts, from which they must eventually be driven to retract, much valuable time and space will be saved, and the controversy will be more speedily and thoroughly brought to a decisive and practical issue. The reader will perceive that the quotation contains two assumptions:1. That we transport our convicts to countries "primarily and essentially" intended as convict colonies. 2. That transportation, as a punishment, is intended merely as a mode of draining this country of its criminal population. Let us examine these positions. With reference to the first assumption, a moment's consideration will suffice to satisfy every candid reader that it is a direct (though, probably, unintentional) untruth. With the petty exception of Norfolk Island, which is merely the condemned cell of un

manageable miscreants transported there from the other penal settlements, and not from this country directly, we have not one colony in our wide empire which is "primarily and essentially a convict colony." No one ever dared to presume that we either intended, or even dreamt of appropriating the "fifth continent" of Australasia as a mere abode for "the scum of" our own little island; and in the case of the Cape of Good Hope, the colony was planted by the Dutch some hundred years before it came into our possession in 1795; and yet, in 1851, we endeavoured, at the risk of rebellion, to force our "refuse humanity" on its inhabitants! The second assumption noticed above has, at the first view, a somewhat plausible appearance; but I imagine that no one who has one spark of humanity in his breast, or the least sense of natural justice, social expediency, or national honour, can, on calm deliberation, adopt the sentiments it contains. If the mother conntry alone were to be considered, and if the fate of the offender were to be disregarded, this idea of "drainage" would still be but a sorry expedient for lessening crime. The criminals of this country are but the poiluted streams which flow from hidden fountains of moral iniquity; so that the attempt to purify the nation by merely "draining" off the convicted offenders would be but a repetition, in effect, of the fabled labour of the Danaides— an attempt to fill "a tub full of holes." But this idea is not simply foolish; it embodies and disguises a most atrocions theory; it regards all criminals, without distinction, as mere refuse, or vermin, which are to be simply got rid of by any means. The hardened villain who has committed the most malignant crimes, and is sentenced to transportation for life, and the strongly-tempted and now repentant neophyte in crime, who is sentenced but to five years' banishment, are alike to be regarded (according to this theory) as "impure superfluities," to be drained off into some antipodean cesspool, in the hope that they will never return here.