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decisis have fixed itself upon ever so firm a footing, can the influence of the principle of utility be /have been/ superseded altogether.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.