PRIVATE

Dec r 1807 + A 1

Scotch Reform Lett. V.

1 Ch.5. Scotch Appeals Excess

§. 1. Causes

Ch.5. Excess of Scotch Appeals - its Causes and Remedies

§.1. Causes of the Excess.

Reference being, whether expressly or no, unavoidably made to the proportion furnished respectively by the English and Irish judicatories, respectively more especially by the English, the following present themselves as the principal causes by which the multitude of the Appeals presented from the supreme Scottish judicatory is produced -

Cause 1.

1. Uncertainty viz. still uncertainty of the rule of action.

In all three kingdoms, the rule of action is as to the greater part of its extent, the rule of action remains to this day in the barbarian shape of what is commonly called common or unwritten law - law made, in so far as a body of law that has no determinate set of words for the expression of it can be made, made by Judges under the pretence of declaring it. But in England there exist, and in no small quantity a stock of materials, adapted so far as any materials can be adapted, to the peculiar nature of this species of manufacture: viz. on the part of the Judges by whom the respective decisions are pronounced dicta portions of discourse, in the form of general propositions, among which are to be found some which, if any real law had been made on the subject by competent authority, might have constituted the words of such real law, propositions expressive of so many rules or portions of law, accompanied commonly with other portions of discourse serving as grounds or reasons, reasons indicative of the propriety of such rules.