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.