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.