parliament allows language to remain when there are no arche. types, or existing facts, to which it corresponds, and of course when it has no foundation in truth; as where the bishops may be called peers, which, in the modern sense, they are not; and where the king is called our Lord,-the parliament, the king's parliament, -the laws, the king's law,-all obsolete, feudal, barbarous lan. guage, suffered to exist, as Milton has well noticed in his Defence of the People of England, by the mere courtesy, or in plain English, the absurd complaisance, of parliament: "for forms and names," as Warburton well expresses it, "in acts of parliament, may continue when a constitution has undergone a change, not by violence, but by slow and insensible degrees."

If the bishops ever composed a third estate, in the more modern sense of the word, it was then when the archbishops, bishops, abbots, and conventual priors, the universa persone regni, not merely a score of bishops, attended parliament by virtue of their baronies, together with the other barons, that is, all such as held their baronies in capite, whose names and fees, or feuds, may be seen in Doom's-day Book; and the form and reason of whose first summons under William the Conqueror, (for it was he who changed the character of the clergy's property from frank-almoigne to baronial tenures), may be read in Selden's Titles of Honour. But even at that period, as Archbishop Wake has shewn in his State of the Clergy and Church of England, "the exercise of their negative, otherwise than in ecclesiastical matters, is not so clearly' handed down to us." They were not, indeed, always summoned to attend, and where individuals of them happened not to hold in capite, instances may be found (they may be seen in the same learned John Selden's Titles of Honour,) of their petitioning against attending the great council, and of the king's assent to their petition. With respect to civil matters, their consent was often not asked, (their dissent was sometimes over-ruled), nor even in ecclesiastical, when the king and temporal barons found their opinions or their wishes clashing with the public interests or state policy. If, therefore, when the spiritual barons formed a greater body and were of superior account, it does not appear that they properly possessed a negative, it must have been by mere courtesy of parliament that they have been considered one of the estates.

If by the word estate was meant merely a distinct order in society, as dukes, earls, knights, or representatives of any description of people, like the House of Commons, the phrase might have been received as constitutional; but as it means more,-as it means a branch, a part, even one third of a legislature, with distinct powers and privileges, with a negative on parliamentary proceedings, it seems now incorrect. For the spiritual lords do

not

not sit in the upper house as bishops, nor, in any sense of the word, as representatives of the clergy. It does not appear indeed, after all Bishop Warburton has said, that they are even peers of the realm, for there still remains a Standing Order of the House against the peerage of the bishops: so that the opinion of some able lawyers seems to be the truth,—that the bishops sit now, according to the progress of our Constitution, by mere custom and courtesy. As to their being now a third estate of parliament, even Warburton, a writer by no means forward to make hasty concessions against his own order, is obliged to give up that.

Now, as the object of these essays is not courtesy, but, to take Judge Blackstone's word, reality, it seemed to correspond best with our leading view, to speak of the King, the Lords Spiritual and Temporal, and the House of Commons, as the three estates of parliament, (these possessing all the essentials,) than to include that order as a third estate, which has nothing that is essential to it: for, as Montesquieu somewhere observes, "when the customs of a nation change, the laws also should change;" so, when customs, and manners, and laws, and a constitution itself is changed, language also should follow, and change too.

The power of this High Court of Parliament is said to be omnipotent, a term meant to express its vast extent of authority: and Blackstone says, "it can change and create anew the Constitution ;" and that we may not suppose he speaks figuratively and means by that term a mere fiction in law, he adds, "it can do every thing that is not naturally impossible." But here, too, we should not believe too largely. We should at least distinguish between what is accidental and fundamental. The parliament can make and repeal laws; by new statutes it can annul the old ones; it may change, perhaps, the present forms or offices of executive power; if it ought to interfere with religion at all, it may, perhaps, alter the established religion of a country; it may even, on great emergencies, as a convention parliament, give a new course to the succession: so far, perhaps, it may be correct to say, the parliament may change the Constitution.

But if Blackstone allowed, as he did, that we have a Constitution, fundamental laws, founded on the natural rights of mankind, which, whether they were originally laid down by the people, or insensibly introduced by custom and interwoven in the laws, are received by us as the directory to the legislative body; (and it would be very hazardous to say we have no such principles;) if this be the fact, it would be incorrect and unsafe to say -The legislature can alter this part of the Constitution. For as in a free state all the powers of the legislative body are but a

trust,

trust, so are there some rights which can never be delegated away; and should even a parliament pillage the people of them, they should be demanded back, as their sacred, unalienable property.

And has not the British legislature itself thus understood the matter? Laws have been repealed as not being constitutional; and others allowed to stand as original and fundamental: as in Henry VII.'s reign, a law passed contrary to the free customs of the realm, in the promoting of which, Empson and Dudley were principally concerned; but, as William Penn expresses it, they were hanged for their pains, and the illegal statute was repealed. The corallory is plain, as Penn continues to observe, “fundamentals give rule to acts of parliament; else, why was the statute of the 8th of Edward IV. to stand as original, and this of the 11th of Henry VII. repealed as illegal? For therefore is any thing unlawful, because it transgresseth a law; but what law can an act of parliament transgress, but that which is fundamental? Therefore, trials by juries, or lawful judgment of equals, is by act of parliament confessed to be a fundamental part of our go. vernment."

I shall close this essay with the following summary of what is good in the English notions of liberty:" The following, then, are received as the fundamental maxims of English law, which it may not be amiss to repeat here :-The people have a right to a free enjoyment of life, liberty, and property; a right to make those laws by which they are governed; and a right to share in that power which puts the laws in execution. To these I may be allowed to add the excellent maxim of good King Edward, which hath ever been deemed a fundamental in our law: That if any law or custom be contrary to the law of God, of nature, or of reason, it ought to be looked upon as null and void.' in order to guard against the frowardness of private law is called legal reason, (quod est summa ratio), because by many ages it has been fined and refined by an infinite number of great and learned men, as Sir Edward Coke speaks: yet these fundamentals are always supposed to make part of this legal rea. son: so that we may apply to these fundamentals what the translator of the Mirrour of Justices says of the common law; That when the laws of God and Reason came into England, then

came we.

And though, reason, our

"These principles may be ascertained and established by an historical investigation, from whence it will appear, that the Constitution of England is very different from what some would have us believe; that a king of England is one that rules by law; and that the laws of England are directed to

the

the public interest, encouraged and secured by these fundamentals."*

Previously to offering any plan for diffusing the principles of the British Constitution, it will be most in order, though contrary to our original intention, to point out what may be supposed to be its defects. Our subject, therefore, seems to require two more essays; and should it hereafter justify some freedom of dis cussion, yet shall it be allowed all its just claims on our modesty and moderation.

AN OBSERVER.

ART. VI.-Inquiries concerning Instinct: exhibiting a Brief View of the Mental Faculties of the Lower Animals compared with those of Man; and also the State of Opinions on this Subject.

sources.

ESSAY I.

THE object of these essays is, to inquire concerning what has been denominated Instinct: after investigating its phenomena among the lower animals, to examine if there be any such principle of action in man; by comparison to endeavour to ascertain whe ther it be of the same nature in him as it is in the brutes; and to point out the difference, should any exist, between the actions that proceed from this principle and those that originate in other To carry this plan effectually into execution, it will be necessary for me to take some notice of the opinions of various eminent philosophers and writers on the subject. My aim is not to build a new system upon a fanciful foundation, but rather to gather some of the scattered fragments of the old philosophical fabric with a diligent fidelity. When I hear of new systems upon subjects of intellectual or moral philosophy, I am irresisti bly led to think of the numberless quacking advertisements which every day disgrace our public prints and the streets of our me. tropolis; nor do I think that Mr. Burke was far from the truth, when he said, that no great discoveries were to be expected in the science of morals. But, be this as it may, it is better, in my

VOL. I. NO. II.

X

*Extracted from an Inquiry into the Nature of Subscription to the 39 Articles; Part III, 2d Edition, printed for Johnson in 1792.

my opinion, to drudge on still with perseverance in working the old mine, than to deceive ourselves with sanguine expectations, and lose our time in searching for a new one: and as nothing can contribute more to the advancement of science than accurate and systematic reviews of its different departments, I have been induced to attempt an outline, at least, of such a review, upon the present subject; and particularly, as I do not know that any writer has done so before me, to the extent, at least, of any thing like a full and regular treatise. I have taken considerable pains to collect the opinions of the most eminent philosophers, which I have frequently found scattered up and down, with little or no connection often, in their voluminous writings. These, or at least the results to which I think they lead, will be found detailed in some order in these essays, in which I aim at nothing more than giving a sort of rude polish to materials that have been perhaps collected for some more extensive purpose. If my endeavours contribute ever so little to bring mental philosophy into fashion, I shall be satisfied. My wish is to be useful; and, if I succeed thus far, I attain my aim.

Few things can make men more ridiculous than to be caught sneaking out of systems into which they had proudly strutted; and yet this is not uncommon, for the love of system is often very closely twined round the human mind. Hence it is, that we frequently see the most philosophic and thinking men moving heaven and earth, as it were, to support a favourite theory; or, regardless of truth and nature, which generally lie in the middle, rushing eternally from one extreme to another. "Medio tutis. simus ibis," is, however, as good an advice in philosophizing, as it was for the charioteer of the sun. "C'est extravaguer," says the ingenious and philosophic Abbé de Condillac, "que de cher. cher l'évidence partout; c'est river que d'élever des systêmes sur de fondemens purement gratuits; saisir le millieu entre ces deux extrêmes, c'est philosopher." Of all the philosophical subjects with which I am acquainted, I do not know any which is more incorrectly understood, in general, or upon which such inconsistent, contradictory, and absurd opinions are maintained, as that of the mental faculties of the lower animals. Even the short review of the subject, to which the limited nature of a periodical journal requires that I should confine my inquiries, will be fully sufficient to justify the observation. I do not know that, in this inquiry, we can expect much useful information from the ancient philosophers. This, however, is not the case, if we take the word of the late learned and acute Lord Monboddo, who asserts,

over

* Traité des Animaux,