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.
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