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:  but where several rules, nearly equal and indifferent, present themselves, it is a very slight turn of thought which fixes the decision in favour of either party.

[Footnote:  That there be a separation or distinction of possessions, and that this separation be steady and constant; this is absolutely required by the interests of society, and hence the origin of justice and property.  What possessions are assigned to particular persons; this is, generally speaking, pretty indifferent; and is often determined by very frivolous views and considerations.  We shall mention a few particulars.

Were a society formed among several independent members, the most obvious rule, which could be agreed on, would be to annex property to present possession, and leave every one a right to what he at present enjoys.  The relation of possession, which takes place between the person and the object, naturally draws on the relation of property.

For a like reason, occupation or first possession becomes the foundation of property.

Where a man bestows labour and industry upon any object, which before belonged to no body; as in cutting down and shaping a tree, in cultivating a field, &c., the alterations, which he produces, causes a relation between him and the object, and naturally engages us to annex it to him by the new relation of property.  This cause here concurs with the public utility, which consists in the encouragement given to industry and labour.

Perhaps too, private humanity towards the possessor concurs, in this instance, with the other motives, and engages us to leave with him what he has acquired by his sweat and labour; and what he has flattered himself in the constant enjoyment of.  For though private humanity can, by no means, be the origin of justice; since the latter virtue so often contradicts the former; yet when the rule of separate and constant possession is once formed by the indispensable necessities of society, private humanity, and an aversion to the doing a hardship to another, may, in a particular instance, give rise to a particular rule of property.