date

3 March 1808 40 Letter V
3 March 1808

40

Letter V

§.4. Reasons

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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  • Title: [3 March 1808 36 Letter V]
    Description: 3 March 1808

    36

    Letter V

    §.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.}

    In the House of Lords, when, on the occasion of any individual cause, calling for the decision of that branch of the legislature, in its capacity of a judicatory, immediate or appellate, it is deemed necessary or convenient that a parcel of law should be made, that branch of the legislature not being recognized as competent to make laws of its sole authority, the custom is to call in the 12 Judges, and to give over to them the commission of supplying the demand. That which on these solemn and sublime occasions is never made but always declared is the law; that which on these same occasions is always made - always made whether declared or not declared - is the reasons.

    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.
  • Title: [20 August 1804 Procedure Introd]
    Description: 20 August 1804

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    ''. 2. II. Dicta

    7. Dicta saying[?] of Judges. There are so many portions of spirit, ready distilled, and by the learned operator, from the work rule, framed in the form of general propositions out of the particular decisions, that have been or are supposed to have been pronounced: portions of spirit, ready distilled, and by the licenced operator, from the wash.

    Here again the same species of inquiry present themselves as int he case of the particular decision: antiquity or modernity of the time, goodness of the times, character of the Judge, behaviour of the Reporter, of but one, characters of the respective reporters if more than one.

    The dictum, in any /each/ given instance, has it or has it not any specific ground - any particular assignable decision or decisions to rest upon? If it has, then comes the question as to the validity of the ground - as to the legitimacy of the informer as to the sufficiency of the particular decision to support the general conclusion thus drawn from it. In this single topic as may in /may be seen/ matter for debate, cause for uncertainty, without end. A dictum will stand clearer of dispute where the decisions it were drawn from use unassigned dicta and unfindable, than when the they are assigned and [...?]. Where its title to confidence is least clear, it will have /be apt enough to possess/ the best chance for confidence. A dictum is never so strong, as when it has not ground to stand upon. /nothing to stand upon itself./ Reasons may gain the appearance of strength, but they give real weakness. This is no secret to a prudent Judge.

    In genuine law, statutory law, that is a good law for which good reasons can be given, and those sufficient ones; that a bad law for which no reasons can be given that are good, or none that are sufficient.
  • Title: [3 March 1808 Letter V §.4 Reasons]
    Description: 3 March 1808

    Letter V

    §.4 Reasons

    In one of the two assemblies of which the legislative body is composed - in the House of Lords, when on the comparatively minute scale of an individual question arising out of an individual suit, concerning the property of some individual object such as a piece of land, a decision comes to be pronounced, here at any rate reasons, and under the very name of reasons, and those rendered by the operations of the press to a certain degree public, are not grudged.

    If these reasons were so many reasons framed and delivered by the Judges of which that highest of all judicatories is composed, they would by the degree of publicity given to them, the practice of thus delivering them, might in a certain degree be productive of the advantages abovementioned as resulting from the practice of annexing reasons to the text of a law such as explanation, controul, and so forth, and of the corresponding portions of jurisprudential law - viz. the general propositions capable of being distilled out of the respective decisions were imaginary, the words of them being left to be chosen by each reader of the reasons for himself - the reasons at any rate, being expressed by so many determinate assemblages of words, would make but some thing real, a sort of tangible and comprehensible mass from which the volatile and incoercible vapour would be to be distilled.