shown that it is, to pronounce generally which of the two classes of motives is the more influential, it is impossible to find out, a priori, whether a monarchical or aristocratical form of government be good or bad.

Mr Mill has avoided the difficulty of making the comparison, by very coolly putting all the weights into one of the scales,by reasoning as if no human being had ever sympathized with the feelings, been gratified by the thanks, or been galled by the execrations, of another.

The case, as we have put it, is decisive against Mr Mill; and yet we have put it in a manner far too favourable to him. For in fact, it is impossible to lay it down as a general rule, that the love of wealth in a sovereign always produces misgovernment, or the love of approbation good government. A patient and far-sighted ruler, for example, who is less desirous of raising a great sum immediately, than of securing an unencumbered and progressive revenue, will, by taking off restraints from trade, and giving perfect security to property, encourage accumulation, and entice capital from foreign countries. The commercial policy of Prussia, which is perhaps superior to that of any government in the world, and which puts to shame the absurdities of our republican brethren on the other side of the Atlantic, has probably sprung from the desire of an absolute ruler to enrich himself. On the other hand, when the popular estimate of virtues and vices is erroneous, which is too often the case, the love of approbation leads sovereigns to spend the wealth of the nation on useless shows, or to engage in wanton and destructive wars. If then we can neither compare the strength of two motives, nor determine with certainty to what description of actions either motive will lead, how can we possibly deduce a theory of government from the nature of man?

How then are we to arrive at just conclusions on a subject so important to the happiness of mankind? Surely by that method, which, in every experimental science to which it has been applied, has signally increased the power and knowledge of our species, by that method for which our new philosophers would substitute quibbles scarcely worthy of the barbarous respondents and opponents of the middle ages,-by the method of Induction;-by observing the present state of the world,-by assiduously studying the history of past ages,-by sifting the evidence of facts,-by carefully combining and contrasting those which are authentic,-by generalizing with judgment and diffidence, by perpetually bringing the theory which we have constructed to the test of new facts,-by correcting, or altogether abandoning it, according as those new facts prove it to be

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partially or fundamentally unsound. Proceeding thus,-patiently, diligently,-candidly, we may hope to form a system as far inferior in pretension to that which we have been examining, and as far superior to it in real utility, as the prescriptions of a great physician, varying with every stage of every malady, and with the constitution of every patient, to the pill of the advertising quack, which is to cure all human beings, in all climates, of all diseases.

This is that noble Science of Politics, which is equally removed from the barren theories of the Utilitarian sophists, and from the petty craft, so often mistaken for statesmanship by minds grown narrow in habits of intrigue, jobbing, and official etiquette ;which, of all sciences, is the most important to the welfare of nations,-which, of all sciences, most tends to expand and invigorate the mind,-which draws nutriment and ornament from every part of philosophy and literature, and dispenses, in return, nutriment and ornament to all. We are sorry and surprised when we see men of good intentions and good natural abilities abandon this healthful and generous study, to pore over speculations like those which we have been examining. And we should heartily rejoice to find that our remarks had induced any person of this description to employ, in researches of real utility, the talents and industry which are now wasted on verbal sophisms, wretched of their wretched kind.

As to the greater part of the sect, it is, we apprehend, of little consequence, what they study, or under whom. It would be more amusing, to be sure, and more reputable, if they would take up the old republican cant, and declaim about Brutus and Timoleon, the duty of killing tyrants, and the blessedness of dying for liberty. But, on the whole, they might have chosen worse. They may as well be Utilitarians as jockeys or dandies. And though quibbling about self-interest and motives, and objects of desire, and the greatest happiness of the greatest number, is but a poor employment for a grown man, it certainly hurts the health less than hard drinking, and the fortune less than high play: it is not much more laughable than phrenology, and is immeasurably more humane than cock-fighting.

ART. VIII. Report of the Proceedings of the House of Lords on the Claims to the Barony of Gardner; with an Appendix, containing a collection of Cases illustrative of the Law of Legitimacy. By DENIS LE MARCHANT, ESQ. of Lincoln's Inn, Barrister at Law. 8vo, London, 1828. Henry Butterworth. Pp. 505.

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is a wise child that knows its own father' says the proverb; and it is a wise father who knows his own child,' say we,after due consideration of the learned volume before us, on the perplexing subject of Legitimacy. In the olden time there was no difficulty about the matter; the wisdom of our ancestors being satisfied with the simple rule,-that the Husband of the woman was the Father of her children. Her virtue was unimpeachable, at least in the eye of the law:-In point of fact, she might have twenty children, by as many paramours; but the law fathered them all on the unlucky husband,-unless he had the good fortune to be impotent, or beyond the four seas,' during a period exceeding that of gestation. However unpleasant this might sometimes be to him, it cannot be denied that this simple rule (except as to the folly of the four seas,') had some considerable advantages. For society at large, both as regards the peace of families, and the quieting of inheritances, it was plainly most desirable to have some fixed rule, whereby all questions of filiation might at once be determined. Absolute proof of the fact, in any case, is nearly impossible, for it depends upon the unknown moment of conception; and therefore we must of necessity have recourse to presumptions; and of these the most natural, reasonable, and satisfactory, is that founded on Marriage; and hence the rule of the civil law, 'Pater est quem nuptiæ de'monstrant,' was very early adopted; and could not be impeached, except in the two cases already mentioned,-the impotence of the husband, and his absence from the realm. No rule of law was ever more strictly adhered to than this for a period of nearly five centuries; for, though attempts were made, from time to time, to break in upon it, the judges stuck to it with singular pertinacity, and resisted every effort that was made to infringe it.

In one of the earliest cases reported in the year-books, and which arose on a question of dower, an issue was asked, to try whether a woman was with child by her husband at the time of his death. But Chief-Justice Thorpe held, that such an issue might go to bastardize the child; and directed the issue to try generally, Whether she was with child on the day of her hus

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• band's decease, or not?' thus distinguishing between the question, Whether with child or not; and the question, By whom with child? In fact, in all the cases, amounting to about twenty, which occur in the year-books from the time of Edward the Third to Henry the Sixth, in which the question of legitimacy was agitated, it is laid down, over and over again, that a child born during marriage is, by the law of England, legitimate, unless his birth be impeached by the averment, either of the impotence of the husband, or his absence beyond the four seas. There is, indeed, in one or two of the cases, an occasional doubt thrown out by some of the judges; but we do not find, in any instance, that it influences the decision. Thus, on a question of right to land under a settlement, it was alleged that John, through whom the plaintiff claimed, was a bastard. This was denied, on the ground, that Adam, the grandfather, married Alice, the grandmother, and Joyce and John were the issue of the marriage, ' and that Adam and Alice continued to live as husband and wife ' all their lives, and died husband and wife; therefore, to allege the bastardy of John, while the legitimacy of Joyce was not 6 questioned, could not be allowed.' Whereupon Shard, one of the judges, says, ' If we could find that Alice left her husband, • and lay with the chaplain, or other person, and that John was 6 begotten by such person, and not by Adam, we should have judged him a bastard.' However, it was held that this opinion was against law, 'the husband having lived within the kingdom;' and the judgment was in favour of John's legitimacy. 33 lib. pl. 8.

ass.

In another case, upon an appeal of rape, it having been laid down by Rolfe, 'That when a woman cohabited with her adul terer, and had issue by him, the husband being within the four seas, the issue in that case would be legitimate by our law, and illegitimate by the ecclesiastical law;' this was denied by Hulp, who said, Such as are born and procreated in adultery are illegitimate, as well by our law, as by the law of the church, when the wife cohabits with the adulterer.' 11 Hen. IV. 13. Notwithstanding such occasional conflict of opinion, the current of Decisions remained unbroken; and, so late as the time of James, it was held, That if a woman elopes and lives in adultery, and, during this, issue is born in adultery, yet this is mulier (legitimate, as distinguished from bastardus) by our law, the baron being within the four seas.' 14 Jac. in camera stellata.

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The doctrine of legitimacy, as laid down by Bracton, Britton, and the author of Fleta, the earliest writers on English law, differs, indeed, considerably from the rule, as established by the decisions

in the year-books. According to those writers, the presumption was in favour of legitimacy; but the recognition of the offspring by both parents was necessary to support it; and the possibility of procreation was not alone held to be sufficient. To explain this, it must be remembered, that the treatises now referred to were founded, rather upon the civil and canon, than upon the written English law; and, moreover, that their authors lived at a period (Henry the Third, and beginning of Edward the First,) when the disabilities of bastards were not so rigidly insisted upon. At the time of the Conquest, according to Hale, bastards could inherit land in England; and, before the Statute of Wales, (18th Ed. I.) they could inherit land in Wales. But after their incapacities were established, the tendency of judges was stronger in favour of legitimacy; because the more a man suffered in his civil rights from being found a bastard,* the more strictly

* It is remarkable that, among the Germans, bastards have always been held odious; whilst among the Spaniards, Italians, and Francs, there was little or no distinction, in the early ages, between legitimacy and illegitimacy. See Ducange in voce, and D'Aguesseau sur les Batards, p. 143.

To show the popular feeling in Germany against bastards, they are, in many of the public instruments about the time of the Reformation, classed with Papists, and placed under similar disabilities, such as, that they should not give evidence on the rights of citizens; and, in a charter given by the Duke of Flanders to the people of Monikendam, there is the following clause, That he would appoint a bailiff " among them who might be placed with honour, and who was not a 'bastard. This regulation is, to this day, observed in Germany with respect to offices and dignities under the Saxon local laws, which enact, That no persons of illegitimate birth shall officiate in any judi'cial office, although legitimated afterwards by subsequent marriage, or by favour of the government of the country.' In consequence of this, strict enquiry is usually made, in the academies and schools in Germany, into the birth of a person before he is admitted to the degree of doctor, or any other high dignity; and the circumstance of a student's legitimacy is generally noticed in the testimonial letters given by the academies. Van Loeuen. Roman Dutch Law, p. 35.

By the Canon Law, bastards were not eligible to any ecclesiastical dignities. There are several decretals to this effect. In one of these, Pope Alexander III. writes, Consultationi tuæ taliter respondemus, quod neque spurios neque servos ordinare debes.' D'Aguesseau, p.

137.

Minsinger, in a work of great authority, Singularium Observatio'num Imper. Cameræ, Cent. 6,' says, in his 31st Observation, Eadem ordinatio inter ceteras qualitates requisitas in assessoribus exigit,