him to resist pressure to make appointments on political grounds. The Commissioners for reasons" forcibly stated by Lord Dunedin " disapproved of the suggestion that the right of appointment should be transferred to the Lord President (p 62).

We are not altogether in accord with these opinions. We think that for the comparatively few appointments attached to the Court of Session an Advisory Committee would be a cumbrous and inconvenient device, and we also think that it is unfortunate that the Lord President, who, as head of the Court, has a more direct interest than anyone else in securing an efficient staff, should have no voice in these appointments. A very large measure of patronage is enjoyed by the Lord Chancellor in the English Court ; and it is apparently only when exercising his patronage as respects certain clerks that he acts upon the advice of a Committee of Selection. A fair inference seems to be that the theoretical objections entertained by the Commission on the Civil Service to patronage by the head of the Court are not in practice experienced in England. On the other hand, we appreciate the force of some of those objections, and, while we think it of the first importance that the head of the Court should have a paramount voice in appointments affecting its efficiency, we agree that he must be given that voice in such a way as will protect him both from the importunities of candidates and from the risk of having imputed to him any kind of favouritism in making appointments. Under the head of "Qualifications" we have already indicated one precaution of this kind in the shape of examination of and competition among nominees. We would therefore be content that nominations should rest as at present with the Lord Advocate, and appointments be made by the Secretary for Scotland; but we recommend :

(1) THAT NO APPOINTMENTS BE MADE TO ANY OF THE POSTS ATTACHED TO THE OFFICES OF COURT WITHOUT THE EXPRESS WRITTEN CONSENT OF THE LORD PRESIDENT, WHO SHOULD HAVE THE RIGHT TO VETO ANY OF WHICH HE DISAPPROVES.

(2) THAT THE RIGHT OF APPOINTMENT TO ALL THE SAID POSTS SHOULD BE Vested in the CROWN.

In practice the Lord President will no doubt require the Principal Clerk of Court to satisfy himself of the suitability of nominees, and it will be to the interests of both to see that only suitable men are accepted. We can imagine nothing more likely to secure the maximum of efficiency in the staff; and, if that is secured, there may well be general agreement that whether or not political patronage enters into the nominations is a matter of little moment.

It may be considered whether this rule should not be applied to all the offices of Court in a broad sense, including the Office of the Accountant of Court and the Register of Deeds. There has been a tendency in recent years for matters affecting the staff and organisation of these departments to be discussed and settled by the Secretary for Scotland, the Treasury, and the heads of the departments, as if these offices were separate independent Government Departments. We think it necessary to point out that this

is not the case. They are explicitly offices of Court, and it is desirable that the Court, through the Lord President, should be consulted when changes affecting them or their staffs are under consideration.

CHAPTER XI.

THE OFFICE OF SHERIFF PRINCIPAL.

1. Historical Evolution of the Appeal to the Principal-Cost of Establishment-Public Criticism of the Office.

2. Threefold Functions of the Office, viz.: (a) Judicial Duties-Appellate -Objection to Appeal to a Single Judge-Three Groups of suggestions for alternative forms of Appeal from Sheriff Court: (i) to Court of Session direct; (ii) to Supreme Court Judges sitting locally; (iii) to Bench of two or more Sheriffs-Principal's duties as Criminal Judge; (b) Administrative Duties-Largely exercisable and performed by Substitutes-Those which require personal performance by the Principal— Possibility of their performance by Substitutes or other existing OfficialsQuestion of "local influence "- Duties in connection with Parliamentary Elections Ex officio services of Principals; (c) Duties in relation to the Executive Government and the Preservation of the Peace-Alternative plans for their discharge.

3. Conclusions regarding the Proposal to Abolish the Office.

4. Changes in the Constitution and Duties of the Office-Reduction of numbers by Amalgamations-Objections to any scheme for making Sheriffs whole-time Officials- Suggested Abolition of payment of Retiring Annuities to Principals who are not restricted from private practice.

1. HISTORICAL.

HISTORICALLY, the office of the Sheriff in Scotland is a memorial of the ancient feudal jurisdictions. But it has undergone in course of time such radical changes, both in character and function, as to make the story of the earlier stages of its development a matter of historical interest only; and it is sufficient-on this topic-to refer to the Report of the Law Commission of 1868 (see Fourth Report, page 19). Immediately after the '45, the office was reconstituted by the Heritable Jurisdictions Act, 1746, under which both the "Sheriffs" and "Sheriff Deputes " of that day were to be appointed by the Crown. In practice, however, no" Sheriffs" were actually appointed, aud their duties were performed by the "Sheriff Deputes" and the Lords-Lieutenant of the Counties. Under the Act, the "Sheriff Deputes" became paid Crown Officers, being responsible for the administration of Justice and the preservation of the peace in their districts, and available in an advisory and administrative capacity for the purposes of Government; and they were required to be-as they have ever since been-members of the Scottish Bar. By the same Act, the "Sheriff Deputes" were empowered to appoint "Substi

tutes " for whom they were answerable. In 1787 the salaries of these "Substitutes " were made payable by the Crown. But it was not until 1825 (6 Geo IV c. 23) that the "Sheriff Substitute (by that Act for the first time expressly designated as such) was required to have a qualification in law; and it was not until 1838 (1 and 2 Vic. c. 119) that his tenure of office ceased to be during the pleasure of the "Sheriff Depute Sheriff Depute" and terminable on the latter's death. Forty years later, by the Sheriff Courts Act, 1877 (40 and 41 Vic. c. 50), the right of appointing "Substitutes" was transferred to, and vested in, the Crown. The term "Sheriff Principal" is modern and seems to have no statutory sanction. The "Sheriff Deputes" of 1746 are the lineal predecessors of the modern Sheriffs Principal"; and in 1828 it was provided by Act of Parliament (9 Geo. IV c. 29, s. 22) that the office might be described as that of "Sheriff " simply. But this provision was repealed in 1907, by the Sheriff Courts Act of that year (7 Edw. VII c. 51), which, although it enacts that, unless the text is repugnant to such construction, "Sheriff" shall include "Sheriff Substitute," consistently uses the former term only, when distinguishing between the two offices. In order to avoid any risk of confusion, we shall take the liberty of referring hereinafter to the "Sheriff Depute" "Sheriff Principal as "the Principal," and to the "Sheriff Substitute" as "the Substitute."

or

From 1746 onwards, it appears that few of the Principals resided in their Sheriffdoms. The ordinary judicial work of their districts was left to the Substitutes, while the Principals, besides exercising a general supervision of the work of the Substitutes, retained in their own hands only the more important administrative and advisory duties. For many years the appellate function of the Principal seems to have been brought into play only by the Substitute (on the crave of the parties)" making avizandum to the Principal. Appeal as matter of right from the Substitute to the Principal (recognised in some cases only by the Sheriff Courts Act, 1838, 1 and 2 Vic. c. 119, ss. 4 and 20) was regularised (in all cases) by an Act of Sederunt of the Court of Session (10th July 1839, pars. 98-100), and first received statutory sanction (in all cases) in 1853 (16 and 17 Vic. c. 80, ss. 16-22). Appeal from the Sheriff Courts to the Court of Session (known as " Advocation" prior to 1868) was always competent; but it is clear from Malcolm v. Ballandene (30th June 1835, 13 S. 1021); Morrison v. Walker (24th June 1871, 9 M. 902); and Robb v. Eglin (18th May 1877, 14 S.L.R. 473) that appeal direct from the Substitute to the Court of Session-without an intermediate appeal to the Principal -was at first unfavourably regarded by the Court of Session. In Mackay's Practice (ii. 455) it is stated that, in consequence, there was formerly almost invariably an appeal to the Principal in the first instance, and then from his judgment (if adverse) to the Court of Session. Appeals from the Substitute to the Court of Session direct are now common.

The cost of the establishment of the Principals is at present

The

about £16,800 per annum, exclusive of pension charges. Principals are part-time officers, each having a Sheriffdom under his charge. They are drawn from the ranks of successful men at the Bar, and their appointment does not disable them from continuing to practise in Edinburgh, where they reside. There are exceptions to this in the cases of the Sheriffdoms of the Lothians and Peebles and Lanarkshire, where the appointments are wholetime ones and private practice is forbidden.

For the last sixty years or more-indeed, ever since the Sheriff Courts have been manned by a body of legally qualified and locally resident Substitutes the utility of the Principal's Office has been the subject of recurrent public criticism upon a variety of grounds, which were last examined by the Law Commission of 1868. In the course of the enquiry which we have made, these grounds have been mooted afresh in the light of additional experience gained during a further half-century; and, in view of the persistence of a controversy which is now of old standing, we have felt it to be our duty to submit its merits to a searching critical scrutiny.

The substantial question is whether the office should be abolished or retained.

In approaching this, or any other question connected with the establishment of the Sheriff Courts, it is fundamentally important to keep in view that the functions performed by those Courts under the conditions now prevailing are only in part of a judicial character. The preceding Chapters of this Report have been concerned with the performance by the Court of Session of the proper functions incumbent on it as a Court of Law. Those are, indeed, the only functions appropriate to a Supreme Court. But the Sheriff Courts have been utilised by Parliament for the discharge of a wide variety of functions which now provide a very substantial part of the business passing through them, and constitute a most important part of the public service they render. Many of these administrative functions are not even quasi-judicial in character. The items of this administrative business included in the Judicial Statistics (other aspects of which we had occasion to examine in Chapter I) are, on a rough average, actually six times more numerous than the items of judicial business; and to this large volume of administrative work Workmen's Compensation Act arbitrations contribute but a small proportion quantitatively, although in some Sheriffdoms they absorb much time. Such figures as these give no measure of the actual time consumed in the two classes of business respectively; but they show how misleading it may be to regard the judicial functions of the Sheriff Courts, as Courts of Law, in isolation; and this applies with particular force to the office of the Principal. The problem, in short, in relation to the alternatives of abolishing or retaining that office, has but little to do with questions of expediting or cheapening civil litigation: its crux lies in the fact that in the single office of the Principal three functions are combined-judicial, administrative, and executive which are distinct and yet related to each other. This