ART. VIII. Inquiry into the Rise and Growth of the Royal Prerogative in England. By JOHN ALLEN. 8vo. London: 1830.

THIS is beyond all comparison the most important book upon constitutional antiquities and law that has appeared for many years. Indeed, it claims a very distinguished place among the great works upon those subjects which are familiar to the lawyer and the historian. Replete with profound and accurate learning, displaying everywhere extraordinary powers of reasoning and judging, clothed in a style at once simple and powerful, it possesses an additional title to the regards of those who love liberty, and value the institutions which are at once its best gifts and its surest safeguards; it breathes throughout a warm love of freedom, and a firm spirit of resistance to the slavish maxims, which lawyers unhappily, as well as courtiers, have almost always been prone to inculcate. This spirit, however, has only guided Mr Allen to investigate and expose the errors of his predecessors; it has never warped his own judgment, or led him either to violent language or extravagant opinions. He exhibits the most calm determination always to search after the truth, and having found it, to make it known, but only as matter of legal and constitutional learning, never as food for gratifying the factious and the clamorous. Indeed, the importance which our author attaches to the authority of former ages, and which is avowed by the very undertaking of the enquiry, squares but little with the rash and sweeping nature of the modern zealots for liberty and popular rights. That school, generally speaking, not only disregards all appeals to the wisdom of past ages, and despises all enquiry into the ancient system of our civil polity, but actually holds an institution to be the more surely ill founded if its origin can be traced to less refined times than our own. Conceiving that society is improving, the disciples of the new academy look with more than suspicion upon every produce of the wisdom of earlier days. If any proposed practice can be truly said to be without the warrant of precedent, so much the more likely do they hold it to be an improvement; and consequently, if any principle can be found to have been adopted and acted upon by ruder ages, by so much are its claims to their assent held to be lessened. One of the chief apostles of the creed held by the wholesale reformers, the late Major Cartwright, deviated somewhat from their prejudices against antiquity; for the days of Runnimede and Magna Charta were the great burdens of his song; and his predilection for annual par

liaments was recommended to him not only by the practice of our ancestors, as far back as the sixth and seventh centuries, but also by the authority of publicists in the seventeenth; among whom he cited Mr Prynne's well-known work recommending 'the revival of short parliaments,' lucklessly mistaking the title of that book, so well known to him, that he could not possibly ever have seen it,—' Brevia Parliamentaria Rediviva. (Parliamentary Writs Revived.)' Since this very inauspicious attempt to graft radical reform upon ancient authority, we are not aware of any similar appeals to antiquity having been made, or any display of learning tried by the wholesale reformers. The school of Mr Bentham, not certainly chargeable themselves with any defect of learning, have uniformly held such things cheap in others; and with them Mr Allen is likely to pass either for a friend of popular rights, whose zeal leads him to take a trouble wholly superfluous, when he traces them to the remotest periods of history; or as an ally whose aid rather impedes than furthers the progress of a cause resting wholly on reason, and ostentatiously disclaiming every thing like deference to authority.

From such objectors we take leave to dissent entirely. They commit here, as elsewhere, their accustomed error, of forgetting that they have to work with men, through men, upon menthat they have not to do with an ideal being, made by themselves, and fashioned to suit their theories-a creature actuated by no passions and no feelings but such as their theories allow, and filled with only their own dogmas and their own views-that the men for whom they are giving laws, or forming systems of polity, are made to their hands, and will not, nay, cannot change at all, the first nature impressed on them at their birth-nor merely, except within certain narrow limits, and after a long time, the second nature with which habit has clothed them. They commit precisely the error which would condemn to lasting ridicule and ever-during lack of employment, a mechanist who should construct his engine without the least regard to either friction, or resistance, or the strength of materials; he would produce something fair to behold, and resembling machinery, until it came to work, when it would either do nothing at all, or crush the workmen with its fragments. All the fundamental principles of dynamicks, however, would be found to have been most learnedly complied with; the artist would have chapter and verse to show for his elaborate calculations; he would probably be as angry at the bystanders for doubting the accuracy of his work, as at himself when it failed, for having left out the consideration of the air, and the beams, and the ropes; but in this respect he would differ widely from the intolerant and

dogmatical Utilitarians-he would acknowledge the oversight; whereas they only wax the more angry at all who doubt their infallibility, and call for more practical doctrines, and schemes more suited to the actual condition of human affairs.

That it may not be imagined we are indulging in general description, or invective, which they like not, or what they hate worst of all, sneers-they who are the greatest dealers in invective, the most unremitting callers of ill-names, the largest users of what they plainly intend for sarcasm-we shall illustrate what we say by one or two examples, familiar, we should think, to the initiated, and sufficiently suited to our purpose. The cha racteristic mode of punishment is much recommended for its wholesome effects upon the minds of the beholders, the only legitimate object of all punishment. Let, say they, a woman convicted of stealing children, be placed in a conspicuous place, with the figure of a hollow child suspended round her neck, into which weights may be put, to annoy her in proportion to the atrocity of her offence. Now, here they forget one principle of human nature, which would, as men are at present constituted, operate to counteract the whole effect of this penal exhibition. Menall men, as at present made, would laugh vehemently, instead of feeling great terror, at such a grotesque exhibition of the true principles of penal justice reduced to practice. And if men are to be made anew, so as not to laugh at such follies, it would be as easy at once to make them without the propensity to steal children. Again-Jury trial is undervalued on account of its imperfections; and the administration of justice is to be intrusted to judges, irremovable, except on proof of misconduct. But it is all the while forgotten that we must, as long as the nature of man remains feeble and corrupt, expect judges to share these defects; that the control of a jury can alone afford a constant security against them; and that were men no longer such frail and faulty creatures, the institution of both judges and juries would be superfluous. Furthermore, say the Utilitarians, why perplex yourselves about patronage and government influence in filling up offices? Establish, by your code, the qualifications required for candidates, and then let all places be offered for sale to the highest bidders. Now here, we say, they wholly overlook the tendency of men to follow corrupt courses for their personal interest; the extreme difficulty of preventing individuals from imitating the state, and selling their voices upon the question of qualification, as the state avowedly does its preference among the qualified; the impossibility of laying down certain rules as to the qualifications required for office, as, for example, how much acuteness, sagacity, disinterestedness, industry, shall en

title a man to be promoted; the certain effect of the venal plan to exclude all competitors except the wealthy: so that the philosopher, while he fondly dreams that he has invented an easy rule of selection, and compounded a specific against abuse of patronage, has in reality, by totally overlooking the nature of men, contrived the most efficacious means for excluding all merit and honesty from the public service, and making the dominion of the most gross, and sordid, and impudent corruption, universal and perpetual, insomuch that it may fairly be doubted whether, under such a system, any human society could be held together twelve months.

Something of the same oversight is committed by these ingenious and daring speculators, upon what are termed constitutional questions. First, they deny the existence of such a quality in any measure or plan, as is by other men called constitutional or unconstitutional. This means, say they, only something which somebody, for some reason, likes or dislikes. It is not lawful or unlawful; for it is, avowedly, not to be tried by its legality. Therefore it means nothing. Cannot they comprehend how a thing may be wrong, as inconsistent with the spirit of our political system, which yet the law has not prohibited? Thus judges may lawfully be promoted from inferior to higher stations on the bench. But is it not wrong to make this the rule in practice, which should be the exception? The Chancellor may be a private or a common person, not bred to the law; but were he often so chosen, the administration of justice would suffer severely. The King may levy troops if he can pay them; and his foreign dominions and his savings may enable him to keep more on foot than Parliament has voted, though he cannot punish them for mutiny and desertion. Would not a minister be answerable as for giving unconstitutional advice, who should recommend such a step to his sovereign? Nay, if Parliament were to vote as large an army as the public service demanded, and twice as large a civil list as the dignity of the crown required, have the words no sense by which all thinking men would condemn such resolutions as contrary to the spirit, and dangerous to the existence, of the constitution-in one word, as unconstitutional? Yet by the supposition they would be legal; for the legislature itself would have sanctioned them.

Next, the philosophers of whom we are speaking, (and, considering their great talents and important services, more in sorrow than in anger,) hold exceedingly cheap all appeals to the sanction of past ages, that is of experience, and to the authority of other times, and of men wise in their generation. Are they well advised in this course? Is it nothing in favour of any in

stitution that it has existed so long? Does not its endurance at least show the strength of its parts, the solidity of its foundations, and the harmony of its arrangements? What signifies it, say our speculators, that men more ignorant than ourselves, and less experienced, adopted such a scheme? But does it become us to brag of our great experience, if we shut our eyes to the experiments of those who preceded us? What the better, then, are we for having lived after them? We may admit that the mere fact of any establishment existing, or having long existed, is not a sufficient reason for holding it sacred, if its consequences are plainly hurtful. But where its effects are very doubtful, and the good hangs nearly in even balance with the mischief, the ancient origin and long continuance of the institution ought clearly to decide in its favour. Its mere existence is something; but the adaptation of so many other things to it, the fact of so many other parts of our system being founded upon it, or connected with it, renders the change prejudicial and dangerous, unless it be called for by some manifest expediency.

There is, however, another light in which the subject never is viewed by those theorists, and one of great practical importance. Whatever be its foundation, how great or how little soever its claims to the approval of rational and wise men, the tendency of the human mind to attach itself to any institution of long continuance, is an undeniable fact; it is as much a part of the nature of man to become fond of what has long existed within his knowledge, to feel a prepossession in favour of any establishment he has long been accustomed to, as it is a part of his nature to bear more easily, or do more readily, that which he has been accustomed to suffer or to perform. Indeed, the force of habit is one of the most marked features in our nature, and from it the kind of attachment we are speaking of mainly springs. Can any thing be more wild-nay, more truly unphilosophical, than to disregard this striking, this almost irresistible propensity of human nature, while framing laws and devising systems for the government of human beings? Is the omission a less oversight than that of the engineer, who should forget that the atmosphere is endowed with resistance? Nay, is it not more akin to his blunder, who should forget that matter gravitates? Yet this is not only the oversight of our philosophers; it is with them a form of faith: as if the mechanist should begin his discussion with the postulate, that bodies do not attract or repel one another.

The learned and sagacious author of the work before us belongs not to this school; or if he does acknowledge its doctrines, it is only to endue him with the strength of mind, the firmness of purpose, which disregards all authority when balan