13 Jan y 1807

Appeal &c

3. The danger of diversity has again respect[?] to the article of unskilfulness on the part of the Judge. Unskilfulness, not however on the part of this or that individual Judge, as compared with this or that other, but on the part of all human beings, and thence of all human Judges. Suppose every Judge all perfect, and on each given occasion (the occasion perfectly the same in all its circumstances) the decision pronounced by each Judge, would not, perhaps at least might not, vary a hair's breadth from that of any other. But all human Judges labouring under intellectual weaknesses, hence where Judge A decides so and so, Judge B. will decide in a manner /way/ more or less different.

But from individual decisions general rules are by those who have the opportunity of being acquainted with them, naturally and generally formed: and these rules in so far as statute law has been silent, supply the place of it, and, from per tanto the matter of jurisprudential or as men say in England Common Law.

Thus it is that, partly from intellectual infirmity on the part of the Judge, partly from the like imperfection of those whose occupation it is to watch his operations and his discourse[?] in the view of framing by the power of their own imagination a correspondent portion of the rule of action for their own use and that of such others as /to whom it may happen to/ come to them for advice, decisions and supposed /imaginary/ rules of law deduced from them are liable to become different, to vary from each other, even where the case is in all it circumstances the same: and this probability will increase with the relative difficulty of the case, that is with the relative unskilfulness of the several Judges.