franchises, depend upon the terms of the original grant. In like manner, every dispute concerning tithes, in which an exemption or composition is pleaded, depends upon the agreement which took place between the predecessor of the claimant and the ancient owner of the land. The appeal to these grants and agreements is dictated by natural equity, as well as by the municipal law: but concerning the existence, or the conditions, of such old covenants, doubts will perpetually occur, to which the law of nature affords no solution. The loss or decay of records, the perishableness of living memory, the corruption and carelessness of tradition, all conspire to multiply uncertainties upon this head what cannot be produced or proved must be left to loose and fallible presumption. Under the same head may be included another topic of altercation—the tracing out of boundaries, which time, or neglect, or unity of possession, or mixture of occupation, has confounded or obliterated. To which should be added, a difficulty which often presents itself in disputes concerning rights of way, both public and private, and of those easements which one man ́claims in another man's property; namely, that of distinguishing, after a lapse of years, the use of an indulgence from the exercise of a right.

Fifthly, The quantity or extent of an injury, even when the cause and author of it are known, is often dubious and undefined. If the injury consist in the loss of some specific right, the value of the right measures the amount of the injury: but what a man may have suffered in his person, from an assault; in his reputation, by slander; or in the comfort of his life, by the seduction of a wife or a daughter; or what sum of money shall be deemed a reparation for damages such as these; cannot be ascertained by any rules which the law of nature supplies. The law of nature commands that reparation be made; and adds to her command, that, when the aggressor and the sufferer disagree, the damage be assessed by authorized

and indifferent arbitrators. Here then recourse must be had to courts of law, not only with the permission, but in some measure by the direction, of natural justice..

Sixthly, When controversies arise in the interpretation of written laws, they for the most part arise upon some contingency which the composer of the law did not foresee or think of. In the adjudication of such cases, this dilemma presents itself: If the laws be permitted to operate only upon the cases which were actually contemplated by the law-makers, they will always be found defective: if they be extended to every case to which the reasoning, and spirit, and expediency of the provision seems to belong, without any further evidence of the intention of the legislature, we shall allow to the judges a liberty of applying the law, which will fall very little short of the power of making it. If a literal construction be adhered to, the law will often fail of its end: If a loose and vague exposition be admitted, the law might as well have never been enacted; for this licence will bring back into the subject all the discretion and uncertainty which it was the design of the legislature to take away. Courts of justice are, and always must be, embarrassed by these opposite difficulties; and as it never can be known beforehand in what degree either consideration may prevail in the mind of the judge, there remains an unavoidable cause of doubt, and a place for contention.

Seventhly, The deliberations of courts of justice upon every new question are encumbered with additional difficulties, in consequence of the authority which the judgment of the court possesses as a precedent to future judicatures; which authority appertains not only to the conclusions the court delivers, but to the principles and arguments upon which they are built. The view of this effect makes it necessary for a judge to look beyond the case before him; and, beside the attention he owes to the truth and justice of the cause

between the parties, to reflect whether the principles and maxims, and reasoning, which he adopts and authorizes, can be applied with safety to all cases which admit of a comparison with the present. The decision of the cause, were the effects of the decision to stop there, might be easy; but the consequence of establishing the principle which such a decision assumes, may be difficult, though of the utmost importance, to be foreseen and regulated.

Finally, After all the certainty and rest that can be given to points of law, either by the interposition of the legislature or the authority of precedents, one principal source of disputation, and into which indeed the greater part of legal controversies may be resolved, will remam still, namely, "the competition of opposite analogies." When a point of law has been once adjudged, neither that question, nor any which completely, and in all its circumstances, corresponds with that, can be brought a second time into dispute: 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 fixed rule only by analogy, and which hold a relation by analogy to different rules. It is by the urging of the different analogies that the contention of the bar is carried on: and it is in the comparison, adjustment, and reconciliation of them with one another; in the discerning of such distinctions; and in the framing of such a determination, as may either save the various rules alleged in the cause, or, if that be impossible, may give up the weaker analogy to the stronger; that the sagacity and wisdom of the court are seen and exercised. Amongst a thousand instances of this, we may cite one of general notoriety, in the contest that has lately been agitated concerning literary property. The personal industry which an author expends upon the composition of his work bears so near a resemblance to that by which

every other kind of property is earned, or deserved, or acquired; or rather there exists such a correspondency 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 same exclusive, assignable, and perpetual right in both; and that right to the same protection of law. This was the analogy contended for on one side. On the other hand, a book, as to the author's right in it, appears similar to an invention of art, as a machine, an engine, a medicine and since the law permits these to be copied, or imitated, except where an exclusive use or sale is reserved to the inventor by patent, the same liberty should be allowed in the publication and sale 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 same 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 analysis; although the analogies, it must be confessed, are sometimes so entangled as not to be easily unravelled, or even perceived.

Doubtful and obscure points of law are not however nearly so numerous as they are apprehended 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 superior courts. Yet these few contain all the doubts with which the law is chargeable; for as to the rest, 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 constitution of this country, which do not carry with them that

evidence of their propriety which recommends almost every other part of the system. 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 promiscuous multitude, should agree in their opinion upon points confessedly dubious, and upon which oftentimes the wisest judgments might be holden in suspense; or to suppose that any real unanimity or change of opinion, in the dissenting jurors, could be procured by confining them until they all consented 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 so detrimental as the rule itself is unreasonable :-in criminal prosecutions, it operates considerably in favour of the prisoner; for if a juror finds it necessary to surrender to the obstinacy of others, he will much more readily resign his opinion on the side of mercy than of condemnation: in civil suits, it adds weight to the direction of the judge; for when a conference with one another does not seem likely to produce, in the jury, the agreement that is necessary, they will naturally close their disputes by a common submission to the opinion delivered from the bench. However, there seems to be less of the concurrence of separate judgments in the same conclusion, consequently less assurance that the conclusion is founded in reasons of apparent truth and justice, than if the decision were left to a plurality, or to some certain majority of

voices.

The second circumstance in our constitution, which, however it may succeed in practice, does not seem to have been suggested 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 the last also and highest appeal to which the subject can resort. There appears to be nothing in the constitution of that as