the Royal Commission on the Civil Service, 1914-15. Sir Claud Schuster has favoured us with information regarding Your Majesty's Supreme Court of Judicature in London, Your Majesty's Remembrancer in Scotland with information regarding Court of Session staff and salaries, and the Board of Trade with statistics of unemployment in the United Kingdom. We have also found material for the first chapter of our Report in the "Statistical Abstract for the United Kingdom" published by Your Majesty's Stationery Office. By the courtesy of the Society of Solicitors practising before the Supreme Courts of Scotland we were afforded accommodation both for our meetings and for our secretarial and clerical work, in their Library premises adjoining the Parliament House, and we wish to express our thanks to the Society for their generous kindness in this matter. Facilities for reference in the Library were also most kindly accorded by their Librarian, Dr Malcolm, to whom we are greatly indebted for his helpfulness on many occasions. We have held twenty meetings of the whole Commission, thirteen of which were devoted to taking oral evidence; and we have also held a large number of Committee meetings, formal and informal, in connection with special points arising in the course of our enquiry. In order to reduce the number of meetings, we have considered in documentary form much evidence which we have not thought it necessary to publish. We regret that, owing to the impossibility of arranging mutually convenient dates, we were deprived of the help of our colleague, Mr Graham. INTRODUCTORY. THE subjects falling under the Reference divide themselves between two main heads which are not directly related to each other: (1) the constitution, jurisdiction, and practice of the Court of Session, (2) the jurisdiction, powers, and functions of the Sheriff Principal: and the object of the Reference is defined to be the ascertainment of such changes and improvements as may conduce to the more speedy, economical, and satisfactory despatch of the business transacted (1) in the Court of Session, and (2) before, or by, the Sheriffs Principal. It will be seen that the Reference is a comprehensive one so far as the Court of Session is concerned, but limited with regard to the Sheriff Courts to the single topic of the position of the Sheriff Principal. In this Report we deal with the Court of Session in the first place (Chapters I-X) and with the office of the Sheriff Principal later (Chapter XI). CHAPTER I. THE FLUCTUATIONS AND DISTRIBUTION OF Alleged Decrease of Business in Court of Session-Fluctuations of THE criticisms upon the Court of Session and its methods which our enquiry has ventilated bear a strong resemblance to those which were presented before the Law Commission of 1868. No legislation followed upon the Report of that Commission, probably because its investigations immediately succeeded the passage into law of the Court of Session Act, 1868, and it was thought expedient to gain experience of the operation of that Act before making further changes. Most of the criticisms mentioned are directed to the two points of delay and expense; and these defects are said to account in part for an alleged decrease in the volume of business coming to the Court of Session. There is also an impression that, in consequence of the wide extension of the jurisdiction of the Sheriff Courts which has been made since 1870-notably by the Sheriff Courts (Scotland) Act, 1907 (hereinafter referred to as "The Sheriff Courts Act, 1907 ")-there is a tendency for business of a kind previously disposed of in the Court of Session to find its way to the Sheriff Courts. This tendency is said to be assisted, if not wholly induced, by the local accessibility of those Courts and by the relatively lower charges which prevail in them. Little enquiry into the fluctuations of business in the Court of Session seems to have been made by the Law Commission of 1868, and none into the comparative movements of business in that Court and in the Sheriff Courts. With an eye on such statistical material as existed, the author of Shand's Practice of the Court of Session (which was published twenty years earlier than the commencement of the sittings of the Law Commission) had deplored the state of business in the Court (Part I, chap. I, sec. III), and thought the future as black as, or blacker than, Lord Cockburn did about the same time (Lord Cockburn's Journal, 8th November 1848). But neither in 1848 nor in 1868 were there any sufficient materials for a reliable judgment on the true state of matters, or for any general; review of the tendencies of litigation in Scotland. We fortunately found ourselves in a better position in this respect; and we thought it our duty, at the outset of our enquiry, not merely to endeavour to form an appreciation of the present situation, but to trace (so far as we could) the causes which have influenced the fluctuations of Scottish judicial business. The most useful and important among the materials which are now available are to be found in the modern series of official "Judicial Statistics for Scotland." They comprehend returns of the business done in all Scottish Courts and extend over a period of almost sixty years. They thus provide the means not only of tracing the ebb and flow of ordinary litigious business in Scotland during a sufficient period of time, but also of comparing the fluctuations in the amount of work done in the Court of Session and in the Sheriff Courts respectively. The jurisdiction of the Sheriff Courts is so largely co-extensive-over a wide field-with that of the Court of Session, as to make a comparative examination of the statistics relative to the lower and supreme Courts of great utility. There are also to be found among the Parliamentary Papers a series of Annual Returns, relative to the business of the Outer House of the Court of Session only, which extend from 1781 to 1867; and, by incorporating these with the later series of Judicial Statistics (which commenced in 1868), it is possible to form a rough idea of the course of business in the Outer House of the Court of Session for nearly one hundred and fifty years. Unhappily, as appears from the Judicial Statistics themselves, the figures for the Outer House of the Court of Session, for the years 1868 to 1876 inclusive, are certainly incomplete in most cases and probably inaccurate in all; and it is therefore necessary to leave a gap of nine years in a series of figures which is otherwise reliable. Again, the period of the war, and the years which have elapsed since the war, are so exceptional in their circumstances that little weight can be given them in ascertaining general tendencies the greatest caution should be exercised in drawing inferences from the violent fluctuations which have occurred during these years. At the date when this part of our enquiry was made the last year for which complete figures were published was 1924. The Judicial Statistics give, inter alia, the following information as regards the Inner and Outer Houses of the Court of Session and the Sheriff Courts, namely: (i) The total number of Actions before the Court in each year, that is, cases pending at the beginning of the year plus cases initiated in the course of the year.-These figures are the basis of our Appendices numbers I and II and Diagrams A, B, C, D, E, and G; (ii) An analysis of the disposal of these Actions within each year. Appendix number IV is, in part, based on these figures; (iii) A classified analysis of the number of Actions ended by Final Judgment within the year. These figures are only available from 1898 onwards: they are the basis of Appendix number III; and (iv) The number of Actions initiated within the year. This, in part, is the basis of Appendix number V and of Diagram F. The principal statistics on which we rely are those of the total number of actions before the various Courts-together and separately-in each year. This number seems to us to give a more accurate presentment of the volume of proper litigious business engaging the attention of the Courts than would the number of Actions initiated within the year, and to present with scarcely less accuracy a picture of the variations from year to year in the volume of new business. It should be noted as regards the Court of Session, that the Statistics include certain work performed by the Clerk of the Bills which is mainly administrative in character. We have omitted this work altogether from the figures on which our conclusions are based. As regards the Sheriff Courts, in like manner, it is necessary to throw out of view the mass of administrative work which successive Acts of Parliament have imposed on them. Our enquiry is limited to ordinary litigious business of a more or less substantial character. Thus, for instance, we exclude consideration of the many arbitrations under the Workmen's Compensation Acts in which the Sheriff Substitutes act as Arbitrators, Fatal Accidents Enquiries, and also, of course, the Small Debt work which is shared between the Sheriff and the Justice of Peace Courts. It should also be kept in view that there is a certain difficulty in making exact comparison between the total number of actions before the Court of Session, as a whole, and the total number of actions before the Sheriff Courts owing to the fact that the Inner House work of the Court of Session is partly first instance, partly appellate from the various lower Courts in the country, and also in large measure appellate from the Outer House of the Court of Session itself. There is also, both in the Inner House and the Outer House, a considerable amount of miscellaneous work-e.g. petitions affecting trusts, factories, companies, and the like some of which (when uncontested) may not strictly be of the nature of litigation, although it all appears in our figures because there is no statistical separation of its litigious from its non-litigious kinds. Further, in the figures upon which the line of "Composite Law Courts Business " (that is, of the business in the Court of Session and Sheriff Courts combined) is based, we have included all proceedings before the Inner House of the Court of Session, and excluded the hitherto diminishing number of appeals from Sheriff Substitutes to Sheriffs Principal. With the statistics available this seemed to us, on the whole, to give the sounder basis; especially as the inclusion, in the figures for the Sheriff Courts, of the appeals from the Sheriff Substitutes to the Sheriffs Principal would have had no material effect on the line of business in the Sheriff Courts except to depress it, relatively to the Court of Session line, in the post-war years. The conclusions at which we have arrived, with the aid of the statistical materials to which we have referred, can be most conveniently developed under four heads, namely : (i) The general causes of the fluctuations in the volume of litigation from year to year. (ii) The distribution of business between the Court of Session and the Sheriff Courts. (iii) The general tendency over a long period towards increase or decrease of the volume of litigation in the various Courts. (iv) The present position. (i) General causes of fluctuation.-A glance at any of the diagrams which have been drawn for the purpose of this enquiry shows that marked fluctuations take place in the number of cases that are brought into and under consideration in the Law Courts from year to year. Litigation being prima facie a consequence of particular and accidental circumstances, these fluctuations may be susceptible of no general explanation. On the other hand, they may, in part at least, be a consequence of the cycles of activity in trade and industry, or more generally, of the ebb and flow of national prosperity. We have tried to test this. The only statistics of trade and industry that are obtainable apply to the whole of the United Kingdom, but it may be assumed that they represent also the position in Scotland regarded as a separate unit. Further, the short-period fluctuations in general prosperity (as distinct from its long-period tendency) can only be estimated by reference to many facts and figures which, when considered together, become too complicated for the purposes of a simple comparison. It can be shown, however, by a comparison (which we have made) of the statistics of Imports and Exports and of various industries with the statistics of Unemployment, that the latter, although covering only a limited field (being " statistics furnished by certain Trade Unions making returns "), constitute an approximately accurate index-up to the time of the war, at least, of the general prosperity or otherwise of the trade and industry of the country. In a word, the balancing of the tendencies of the various figures is virtually effected by the unemployment figures, which may be treated as expressing the net result of the whole. This may not be quite true of the war and post-war periods, but it appears to be definitely so of the tendencies prior to the war and these will suffice for the purposes of this enquiry. We therefore use the unemployment figures (Appendix No. VI) as an index to the |