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 In the meantime the bare recognition of the principle that a rule once established may be departed from and virtually repealed by a Judge on the ground of its repugnancy to the principle of utility, would operate in men's minds in the character of a virtual repeal of an altogether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.