8 July 1805

Evidence

Introd. Jurisprudential

Ch. 2 Sources

6. Dictates of Utility

Thus it is that /We have seen how it is that/, the dictates of utility, clashing with rules derived /deduced/ from prudence (from prior decisions, in which no regard for utility is perceptible,) serve but to ensure uncertainty, under the reign of jurisprudential law.

Not that, even were precedents altogether out of the case, insomuch that utility were in every case /on every occasion/ considered as the sole standard, and appealed to, directly and immediately in that character, without reference to any intermediate rule, not that even in such case, under the reign of jurisprudential law, any tolerable degree of certainty would be the result of the [...?] of the rule. The dictates of utility are /shew/ by no means so uniform /so uniformity to different eyes/ in the judgement of different observers, that any given /the known/ arrangement will always present itself to every observer as the only arrangement prescribed by utility in each given case: and even altogether all more were on every occasion agreed about the substance of the arrangement, still it would require the aid of statute law to give that fixity to the expression, without which no certainty can subsist. /the notion of certainty is [...?]/

Statute law, be it ever so bad in other respects, may always be certain: therefore at any rate from that infathomable mass of mischief of which uncertainty is the cause. Jurisprudential law has the essential mischief of uncertainty, to counterbalance the good office of whatever values /good qualities/ it may have, and to aggregate whatever mischief is produced by its vices.