date

3 March 1808 39 Letter V
3 March 1808

39

Letter V

§. Reasons

In bringing to view the above cases in the character of precedents in recommendation of the practice of giving reasons for accompaniments to law, I did not mean it was no part of my intention to give the practice of the reasons themselves as a sample, in respect of quality, of the sort of reason which I would wish to see furnished by our proposed sub-legislators, nor of the course pursued in the preparation of those such reasons.

1. Not of the quality - for of about twenty sorts of reasons which under the name of reasons or some term meant to be synonymous Lord Coke speaks of as the sources from whence that only estimable part of the law which is in the form of jurisprudential law is deduced, two only or at most three make any the most distant reference to the welfare of those, to whose welfare statute law always professes, and with here and there an exception, is to be directed: and such is the nature of this species of law, that after the prodigious quantity of it that has been thus made declared I should have said with views opposite to those of public utility - with intentions directed to the sanction of the interest if the rest of the community to the interest of the declarers, the grounding it on reasons drawn from the consideration of what otherwise would have been the interest of the community would by the shock given to certainty enhance the mischief instead of remove it.
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    2. As little can I take upon me to recommend the practice or a precedent of the course proper to be taken in the collection and preparation of the facts or other considerations brought to view in the character of reasons.

    In the case of a mass of statute law, ere yet the proposed law has been ventured to be introduced into either House, each House has frequently its Committee occupied for weeks or months in the collection of facts which when brought together and generalized, are to furnish, in debate at least, the matter of reasons.

    The declarers of Jurisprudential law, exercising those attributes of omniscience and infallibility with which the curtesy of lay-gents[?] has invested them, turn aside with generous disdain all such tedious courses, such superfluous and frivolous inquiries. On the question about the slave trade, years not weeks were employed, a library not a volume was collected, by unlearned legislators: a dictum out of Littleton or L d Coke, distilled or presumed to have been distilled from some assignable or unassignable decision or decisions, would have sufficed for giving a decision on this as on any other subject to the King's Bench or Common Pleas.
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    §.4. Reasons

    Thus, let us come at once to the most determinate and highly authoritative example: {and to render it the more determinate, let us take not merely a sort of case but an individual case.}

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    Where a portion though an undivided one of the deity is the subject, theologians, to whom this branch of natural history presents no difficulty, have a distinction between making and begetting: where a portion of human law is the subject, lawyers have a corresponding distinction between making and declaring. Where reasons those of which the 12 Judges are the makers are the subject, ask for the makers, there they are: ask for the declarers whether the reasons are ever declared or no, there again they are. Where the law to which those reasons are spoken of or attached is the subject, ask for the declarers, there again they are: ask for the makers, you might as well ask the Sheriff for John Doe, they are never to be found.
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    vii Competition desirable

    Further on, when in a list of some of the most prominent of the abuses of which the system is composed, I come to mark out those which might be given up, and the predominant /fundamental/ principles of the technical system with their baneful influence on the welfare of the people /suitor//community/ and their beneficial influence on the prosperity of the man of law still retained, I shall turn to shew /bring to view/ a variety of biddings made by different individuals in this competition, professional as well as official, unincorporate as well as corporated[?]. In a word without /but for/ this principles, nothing has been done, nothing would or could have been done: under the [...?] of it, and with the benefit of it, no assignable bounds can be set to the good which may /come to have been/ be done:

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