date

20 Aug. 1804 Procedure Non
20 Aug. 1804

Procedure

Non-homologation

''. Uncertainties

Of this state of things what is the ultimate result? that in many cases, I had almost said not to say in most, it is impossible not to do wrong, and at the same time impossible to do wrong: impossible not to do wrong in the one sense and impossible to do wrong in the other: impossible for Judge to avoid doing mischief: impossible to subject himself to be punished for such mischief.

This is the case as often as the dictates of appropriate utility point one way, the dictates of general utility in respect to the utility of adhering to the rule stare decisis, point the opposite way. Let the Judge decide which way he will, mischief will be the consequence: if in opposition to the dictates of appropriate utility, the correspondent of appropriate mischief: if in opposition to the rule stare decisis, the correspondent general mischief - the uncertainty propagated by the departure from that important and all-embracing rule.

In another sense, in the self same circumstances, it is impossible for him to do wrong. It is impossible for him to incurr blame: - to be generally regarded as having violated the rule of his duty. He stands at [h]is[?] ease, and is at perfect liberty: at liberty to decide on one side or on the other, as he pleases: to [...?] to the bias /give way to the impulse/ of any sinister interest or caprice.

Placed thus between the Scylla and Charybdis and at the same time personally severe on either side, which course will he steer? a point this which it concerns carries sinister to make for himself, and which every sinister[:] will at the same time find it impossible to him to frame for himself. /a prediction the framing/ /a point the measurement of which, is to the community in general alike necessary and impossible.
Similar Items
  • Title: [20 Aug 1804 Procedure Introd]
    Description: 20 Aug 1804

    Procedure

    Introd. Jurisprudents B [...?]

    Ch. 2.5. Arts Utility

    The dictates of utility immediate and approximate utility - can never be excluded altogether.

    At first the principle of utility, well or ill applied or at any rate some caprice /if the imagination, or some sport of passion/ that presented itself under the garb of utility, must have been the only guide. Decisions must have been pronounced /pronounced in considerable abundance -/ and not only pronounced but committed to writing and preserved before the rule stare decisis could have so much as had matter to operate upon: consequently long before it could have been generally recognized and acted upon - framed and acted upon as a rule.

    But at not time, let the rule stare decisis have fixed itself upon ever so firm a footing, can the influence of the principle of utility be /have been/ superseded altogether. It will be referred to /appealed to/ in two cases. 1. Where prior decision, with or without the dicta, direct or collateral, of Judges are regarded as altogether wanting: 2. where the authority of decisions, including or not including that of dicta, is looked upon as equally distributed on both sides. In both these cases, the alleged dictates of utility - the consequences /influence/ of the proposed decision with regard to human happiness will naturally be endeavoured to be called in /thrown into the scale/, were it only in the character of a make-weight.
  • Title: [8 August 1805 Evidence Introd]
    Description: 8 August 1805

    Evidence

    Introd. Jursiprud

    Ch. II. Vices

    ''.9. [...?]

    Corrections, where they are made on it, can not any where be made but at the expense of certainty: in counter-weight against the particular advantage produced by the correction there is always the general mischief produced by the portion of uncertainty thereby infused into the whole system. By the same disposition by which the Judge is led on the particular occasion in question to depart from precedents /to violate the fundamental and universally extensive rule stare decisis/, so may he in any and every other. To disallow the authority of precedent on any one point is to disallow it on every other: it is to strike at a blow the whole fabrick of jurisprudential law.

    No (it may be said) it will not, if the change be really for the better, he can not deviate from precedent without the principle of utility for his warrant and his guide: such decisions and rules as are conformable to the dictates of utility /that standard/ will remain undisturbed those only will be laid by and disallowed, of which the interests of utility and substantial justice require that the system should be exonorated.

    1. The observation would approach nearer to a justification, if it were possible to draw the line between the rules which are, and those which are not so bad as to be worth changing: but this is plainly impossible.

    2. In the meantime the bare recognition of the principle that a rule once established may be departed from and virtually repealed by a Judge on the ground of its repugnancy to the principle of utility, would operate in men's minds in the character of a virtual repeal of an altogether undefined but vast and universally extensive portion of the aggregate mass of jurisprudential law.
  • Title: [20 Aug 1804 Procedure Ch. Non]
    Description: 20 Aug 1804

    Procedure

    Ch. Non-homologation

    IX Master?

    In the nature of the case, a time there must have been when the rule [of adherence to prior decisions] /stare decisis/ could not have been the universal guide. Prior decisions, where as yet there were none to refer to, could not have been the standard of reference and conformity for /to/ posterior ones. In English jurisprudence the terms Court of Record, and Court not of Record, serve to this day as evidence of a time when justice was administered by Courts and in great abundance, of the preceedings of which no memorials were preserved. In these Courts at least, prior decisions could not, except by accident as memory happened to serve, be taken as the regular and habitual guide /have been taken for the guide/.

    A time therefore there must have been - a time there must have been every where in which unassisted /unprompted/ reason unassisted by the lights of former reason must in general have been the only guide. At these times /In those days/, sometimes the principle /dictates/ of utility, well or ill perused /exercised/, sometimes this or that caprice of the imagination, bolstered by the influence of this or that leading word or string of words, would be the prolific principle, from whence the decision would take its rise.

    The misfortune is that the times in which unprompted but unfettered reason had the largest share at first an exclusive one in composition of the law, reason was in her infancy /infant state/ - a /the/ state in which she was least in a condition to encounter the difficulties of her task. The age in which comparatively speaking at least, she is /has been/ grown vigorous by exercise after having been nourished by experience, this is the age in which by the over-ruling and continually encreasing influence of custom, her office has been rendered almost a sinecure. The further and further she is /better and better able/ to do her work the less and less work will there be less for her to do.