remove everything arbitrary and partial from the decision of
property, and to fix the sentence of judges by such general views
and considerations as may be equal to every member of society.
For besides, that nothing could be more dangerous than to
accustom the bench, even in the smallest instance, to regard
private friendship or enmity; it is certain, that men, where they
imagine that there was no other reason for the preference of
their adversary but personal favour, are apt to entertain the
strongest ill-will against the magistrates and judges. When
natural reason, therefore, points out no fixed view of public
utility by which a controversy of property can be decided,
positive laws are often framed to supply its place, and direct
the procedure of all courts of judicature. Where these too fail,
as often happens, precedents are called for; and a former
decision, though given itself without any sufficient reason,
justly becomes a sufficient reason for a new decision. If direct
laws and precedents be wanting, imperfect and indirect ones are
brought in aid; and the controverted case is ranged under them by
analogical reasonings and comparisons, and similitudes, and
correspondencies, which are often more fanciful than real. In
general, it may safely be affirmed that jurisprudence is, in this
respect, different from all the sciences; and that in many of its
nicer questions, there cannot properly be said to be truth or
falsehood on either side. If one pleader bring the case under any
former law or precedent, by a refined analogy or comparison; the
opposite pleader is not at a loss to find an opposite analogy or
comparison: and the preference given by the judge is often
founded more on taste and imagination than on any solid argument.
Public utility is the general object of all courts of judicature;
and this utility too requires a stable rule in all controversies: