where they imagine, that there was no other Reason for the Preference of their Adversary but personal Favour, are apt to entertain the strongest Jealousy and Ill-will against the Magistrates and Judges. When natural Reason, therefore, points out no fixt View of public Utility, by which a Controversy of Property can be decided, positive Laws are often fram'd to supply its Place, and direct the Procedure of all Courts of Judicature. Where these too fail, as often happens, Precedents are call'd for; and a former Decision, tho' 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 rang'd under them, by analogical Reasonings, and Comparisons, and Similitudes, and Correspondencies, that are often more fanciful than real. In general, it may safely be asserted, that Jurisprudence is, in this respect, different from all the Sciences; and in many of its nicer Questions, there cannot properly be said to be Truth or Falshood on either Side. If one Pleader brings the Case under any former Law or Precedent, by a refin'd 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 Imaginationthan
