USUAL,
MIRACULOUS or ARTIFICIAL. In the two former senses, justice and property
are undoubtedly natural. But as they suppose reason, forethought,
design, and a social union and confederacy among men, perhaps that
epithet cannot strictly, in the last sense, be applied to them. Had
men lived without society, property had never been known, and neither
justice nor injustice had ever existed. But society among human
creatures had been impossible without reason and forethought. Inferior
animals, that unite, are guided by instinct, which supplies the place
for reason. But all these disputes are merely verbal.]

Among all civilized nations it has been the constant endeavour to 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 gener