"logies." When a point of law has been onee adjudged, neither that queftion, nor any which completely and in all its circumstances correfponds with that, can be brought a second time into difpute: but questions arise, which resemble this only indirectly and in part, in certain views and circumstances, and which may seem to bear an equal or a greater affinity to other adjudged cases; questions, which can be brought within any affixed rule only by analogy, and which hold a relation by analogy to different rules. It is by the urging of these different analogies that the contention of the bar is carried on: and it is in the comparifon, adjustment, and reconciliation of them with one another; in the difcerning of fuch diftinctions, and in the framing of fuch a determination, as may either fave the various rules alleged in the caufe, or, if that be impoffible, may give up the weaker analogy to the ftronger, that the fagacity and wifdom of the court are seen and exercifed. Amongst a thoufand inftances of this, we may cite one of ral notoriety in the contest that has lately been agitated concerning literary property. The personal industry, which an author expends upon the compofition of his work, bears so near a refemblance to that, by which every other kind

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of property is earned, or deserved, or acquired; or rather there exifts fuch a correfpondency between what is created by the ftudy of a man's mind, and the production of his labour in any other way of applying it, that he seems entitled to the fame exclufive, affignable, and perpetual right in both; and that right to the fame protection of law. This was the analogy contended for on one fide. On the other hand, a book, as to the author's right in it, appears fimilar to an invention of art, as a machine, an engine, a medicine. And fince the law permits these to be copied, or imitated, except where an exclufive use or fale is reserved to the inventor by patent, the fame liberty fhould be allowed in the publication and fale of books. This was the analogy maintained by the advocates of an open trade. And the competition of these opposite analogies constituted the difficulty of the case, as far as the fame was argued, or adjudged upon principles of common law.-One example may serve to illustrate our meaning; but whoever takes up a volume of reports, will find most of the arguments it contains capable of the same analyfis; although the analogies, it must be confeffed, are fometimes fo entangled as not to be eafily unravelled, or even perceived.

Doubtful and obfcure points of law are not. however nearly fo numerous, as they are appre hended to be. Out of the multitude of causes, which in the course of each year are brought to trial in the metropolis, or upon the circuits, there are few in which any point is reserved for the judgment of fuperior courts. Yet these few contain all the doubts, with which the law is chargeable for as to the reft, the uncertainty, as hath been shown above, is not in the law, but in the means of human information.

There are two peculiarities in the judicial conftitution of this country, which do not carry with them that evidence of their propriety, which recommends almoft every other part of the fyl tem. The first of these is the rule, which requires that juries be unanimous in their verdicts. To expect that twelve men, taken by lot out of a promifcuous multitude, fhould agree in their opinion upon points confeffedly dubious, and upon which oftentimes the wifeft judgments might be held in fufpenfe; or to fuppofe that any real unanimity, or change of opinion in the diffenting jurors, could be procured by confining

them until they all confented to the same verdict; bespeaks more of the conceit of a barbarous age, than of the policy which could dictate such an institution as that of juries. Nevertheless, the effects of this rule are not fo detrimental, as the rule itself is unreasonable: in criminal profecutions it operates confiderably in favour of the prisoner; for if a juror find it necessary to furrender to the obftinacy of others, he will much more readily refign his opinion on the fide of mercy, than of condemnation: in civil fuits it adds weight to the direction of the judge; for when a conference with one another does not feem likely to produce, in the jury, the agreement that is neceffary, they will naturally close their disputes by a common fubmiffion to the opinion delivered from the bench. However, there seems to be lefs of the concurrence of feparate judgments in the fame conclufion; confequently, lefs affurance that the conclufion is founded in reasons of apparent truth and justice, than if the decifion were left to a plurality, or to fome certain majority of voices.

The fecond circumftance in our conftitution, which, however it may fucceed in practice, does not seem to have been fuggefted by any intelligible fitnefs in the nature of the thing, is the

choice that is made of the House of Lords, as a court of appeal from every civil court of judicature in the kingdom; and of the laft alfo and highest appeal, to which the fubject can refort. There appears to be nothing in the conftitution of that affembly; in the education, habits, character, or profeffions of the members who compofe it; in the mode of their appointment, or the right by which they fucceed to their places in it, that should qualify them for this arduous office: except, perhaps, that the elevation of their rank and fortune affords a fecurity against the offer and influence of fmall bribes. Officers of the army and navy, courtiers, ecclefiaftics; young men who have just attained the age of twentyone, and who have paffed their youth in the diffipation and purfuits which commonly accompany the poffeffion or inheritance of great fortunes; country gentlemen occupied in the management of their eftates, or in the care of their domestic concerns and family interefts; the greater part of the affembly born to their ftation, that is, placed in it by chance; moft of the reft advanced to the peerage, for fervices, and from motives utterly unconnected with legal erudition -these men compofe the tribunal, to which the conftitution entrufts the interpretation of her

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