contention of the bar is carried on: and it is in the comparison, 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 feen and exercised. Amongst a thousand inftances of this, we may cite one of general notoriety in the contest that has lately been agitated concerning literary property. The perfonal industry, which an author expends upon the compofition of his work, bears fo near a refemblance to that, by which every other kind of property is earned, or deferved, or acquired; or rather there exifts fuch a correfpondency between what is created by the study 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 thefe to be copied, or imitated, except where an exclufive ufe or fale is referved 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 oppofite analogies conftituted the difficulty of the cafe, as far as the fame was argued, or adjudged upon principles of common law-One example may ferve to illuftrate our meaning; but whoever takes up a volume of reports, will find most of the arguments it contains capable of the fame analysis; although the analogies, it must be confeffed, are fometimes fo entangled as not to be easily unravelled, or even perceived. Doubtful Doubtful and obfcure points of law are not however nearly fo numerous, as they are apprehended to be. Out of the multitude of caufes, which in the courfe 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 superior courts. Yet these few contain all the doubts, with which the law is chargeable for as to the reit, 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 almost every other part of the fyftem. The firft 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, should 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 fame verdict; bespeaks more of the conceit of a barbarous age, than of the policy which could dictate fuch an inftitution 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 prifoner; for if a juror find it neceffary to furrender 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 con a conference with one another does not feem likely to produce, in the jury, the agreement that is neceffary, they will naturally close their difputes by a common fubmiffion to the opinion delivered from the bench. However, there feems to be lefs of the concurrence of feparate judgments in the fame conclufion; confequently, lefs affurance that the conclufion is founded in reafons of apparent truth and juftice, 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 feem to have been fuggefted by any intelligible fitness 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 higheft appeal, to which the fubject can refort. There appears to be nothing in the conftitution of that affembly; in the education, habits, character, or profellions 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 fhould 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 twenty-one, and who have paffed their youth in the diffipation and purfuits which commonly accompany the poffeflion or inheritance of great fortunes; country gentlemen occupied in the management of their eftates, or in the care of their domeftic concerns and family interefts; the greater part of the affembly born to their station, that is, placed in it by chance; most of the reft advanced to the peerage, for fervices, and from motives utterly unconnected with legal erudition -thefe men compofe the tribunal, to which the conftitution entrusts the interpretation of her laws, and the ultimate decifion of every difpute between her her fubjects. These are the men affigned to review judgments of law, pronounced by fages of the profeffion, who have spent their lives in the ftudy and practice of the jurifprudence of their country. Such is the order which our ancestors have established. The effect only proves the truth of this maxim, "that when a fingle inftitution is extremely diffon ant from other parts of the fyftem to which it "belongs, it will always find fome way of recon ciling itself to the analogy which governs and per"vades the reft." By conftantly placing in the House of Lords fome of the moft eminent and experienced lawyers in the kingdom; by calling to their aid the advice of the judges, when any abftract queftion of law awaits their determination; by the almost implicit and undifputed deference, which the uninformed part of the house find it neceffary to pay to the learning of their colleagues, the appeal to the House of Lords becomes in fact an appeal to the collected wisdom of our fupreme courts of juftice: receiving indeed folemnity, but little perhaps of direction, from the prefence of the affembly in which it is heard and determined. Thefe, however, even if real, are minute imperfections. A politician, who fhould fit down to delineate a plan for the difpenfation of public juftice, guarded against all accefs to influence and corruption, and bringing together the feparate advantages of knowledge and impartiality, would find, when he had done, that he had been tranfcribing the judicial conftitution of England. And it may teach the most difcontented amongst us to acquiefce in the government of his country, to reflect, that the pure, and wife, and equal adminiftration of the laws, forms the first end and bleffing of focial union; and that this bleffing is enjoyed by him in a perfection, which he will feek in vain, in any other nation of the world. С НА Р. IX. OF CRIMES AND PUNISHMENTS. TH HE proper end of human punishment is, not the fatisfaction of juftice, but the prevention of crimes. By the fatisfaction of juftice, I mean the retribution of fo much pain for fo much guilt; which is the difpenfation we expect at the hand of God, and which we are accustomed to confider as the order of things that perfect justice dictates and requires. In what fenfe, or whether with truth in any fenfe, justice may be faid to demand the punishment of offenders I do not now inquire; but I affert that this demand is not the motive or occafion of human punishment. What would it be to the magiftrate that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear left the escape of the criminal fhould encourage him, or others by his example, to repeat the fame crime, or to commit different crimes, is the fole confideration which authorizes the infliction of punishment by human laws. Now that, whatever it be, which is the cause and end of the punishment, ought undoubtedly to regulate the measure of its severity. But this cause appears to be founded, not in the guilt of the offender, but in the neceffity of preventing the repetition of the offence. And from hence refults the reason, that crimes are not by any government punished in proportion to their guilt, nor in all cafes ought to be fo, but in proportion to the difficulty and the neceflity of preventing them. Thus the stealing of goods privately out of a fhop, may not, in its moral quality, be more criminal than the |