post-war years-the feature which most prominently calls for attention is the decline in litigious business which has followed the peak year of 1901.

There is no doubt that the Court of Session is at present bearing its full share of a period of depression. period of depression. In the Outer House particularly the years of "all-round decline" are even less compensated by the recovery that has taken place since the war than would appear from the figures dealt with above. This is shown by an analysis of the classes of actions before the Court; and in this connection Appendix No. III will be found useful. Just as, in the case of the Sheriff Courts, the recovery from 1918 is accounted for by an abnormal increase in the number of actions for Personal Debt (supplemented by an increase in the Landlord and Tenant cases appropriated to the Sheriff Courts by the Rent Restriction Acts)-so, in the case of the Outer House of the Court of Session, the recovery is due to an abnormal increase of actions relating to Marriage and Divorce.

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The only figures available relating to these latter actions are those of Final Judgments, which rose from 323 in 1917 to 865 in 1919. Their number in 1924 was 470, or about 250 more than the pre-war average. This increase of 250 Final Judgments may taken to represent an increase of at least 400 actions-mostly undefended Divorce cases. But for this aftermath of the war, the average annual number of Outer House cases during the post-war period would have been about the same as in 1914, when the number was lower than at any time in the previous forty years. That is to say, the number of cases and the apparent quantity of Outer House business has in post-war years only been maintained at not much less than the pre-war average by an increase in a special type of case. Notoriously, Divorce cases (on the average) -most of them being undefended-occupy little judicial and staff time, and are comparatively unremunerative to Counsel and Agents engaged in them. Further, a high percentage of them are "poor cases, which are not only unremunerative, but sometimes involve Agents conducting them in actual loss of outlays. A number of these undefended cases may be disposed of in a forenoon. This type of case may swell the Rolls of the Court to their average pre-war level, but the increment of substantial business it represents is slight.

The difficulty of ascertaining the causes (apart from the war) of the present depression is in no way lessened by the fact that this depression has affected both the Supreme and the Lower Courts. General causes are pointed to. But we have not been able to verify any general cause as effective; and such general causes as suggest themselves depend largely on speculative assumptions. Only at one or two points have we found it possible to put a finger on a definite cause which has been clearly operative.

(1) The process of simplifying procedure has gone on for many years past in the Court of Session, mainly as the result of the Court's inherent power of making its own Rules by Act of Sederunt;

in the Sheriff Courts, largely as the result of successive statutory reforms. This simplification has in many cases enabled what were necessarily at one time separate proceedings or actions-statistically recorded as such-to be combined into one action. This process may to some extent account-at least in the case of the Court of Session-for the fact that, over a period of one hundred and fifty years, litigious business shews no apparent expansion corresponding to the development of trade and industry in the country. But it is no explanation at all of the decrease of business in the Court of Session since 1901.

(2) As has already been indicated, our statistics negative the view that business proper to the Court of Session has been absorbed by the Sheriff Courts.

(3) It will be seen from Appendix No. III that one of the classes of action which have tended to fall away is that concerned with Heritable Estate. The depressed state of agriculture, and the increasing burdens of land-ownership-coupled with the stagnation of building enterprise which progressively marked the pre-war years are clearly reflected in the declining number of actions relating to heritable property. The enforced paralysis of dealings in house property during and since the war, under the Rent Restriction Acts, has no doubt accentuated this feature in the Court of Session; although the many disputes about relatively small sums to which those Acts have given rise have brought a certain compensation to the Sheriff Courts (under the head of Landlord and Tenant). This is one of the cases where it is possible to touch a definite and clearly operative cause of depression, which, however, need not be permanent.

(4) It is probable that the drop (quite as marked in the Sheriff Courts as in the Court of Session) in the number of actions relative to Succession (see Appendix No. III) is attributable to cognate causes. The difficulties in which the administrators of landed estates and house-property have been placed by the course of economic events, and by the ever-growing burden of death-duties, may well have resulted in restraining resort to the Courts for the purpose of regulating the execution of settlements of heritable property. It is difficult, otherwise, to see any explanation of the diminution in the number of this class of action. In times of difficulty parties may accept risks of ultimate liability rather than incur the immediate cost of litigation-a consideration which may be operative to some extent in the case of settlements of moveable estate as well as of land.

(5) It is safe to say that the course of modern legislation and public policy has tended to remove certain classes of litigation from the Courts of Law. This tendency is a concomitant of the progressive extension of the number, authority, and powers of Government Departments and Boards of all kinds. For example, the administration of the laws relating to the Poor was until recently conducted under the guidance of the Courts, to whom the local Inspectors submitted their difficulties and disputes. This class of action has been almost entirely superseded by Depart

mental decision. Many, if not most, governmental departments and boards now have legal departments of their own which give advice and build up for themselves a body of precedents, in part administrative but also in large measure legal, which-naturally enough-are not readily submitted to a Court of Law for review. Further, as the field of public administration has broadened, a system of statutory arbitrations and special tribunals has been widely introduced which in some cases materially encroaches upon what was formerly (and legitimately is) legal territory. Thus, in the sphere of agriculture, the law of Landlord and Tenant is nowadays practically committed to the lay administration of panels of agricultural experts, under the Agricultural Holdings Acts-subject only to an appeal on points of law by Stated Case.

(6) It may also be that the increasing pace of modern life has given rise to greater impatience of the delays and cost of litigation. Respect for legal decision-the authentic law of the land-may have been pushed aside by a commercial demand for quick and cheap results, and an aversion from publicity, which have led to an increasing willingness to settle disputes by Arbitration proceedings rather than in Court. Much stress was put on this factor in the evidence presented to the Law Commission of 1868; and we have heard a good deal on the subject in the course of our enquiry. The majority of commercial arbitrations are concerned with disputes that are best settled by business men. But many are not of that character. Nevertheless, it seems to be the case that, within recent years, the method of settling disputes by the sentence of an Arbiter has grown increasingly popular; and that the main attractions to it are that it is speedier and apparently cheaper-even though less satisfactory-than a decision by a Law Court. Whether the apparent economy of this procedure is real may be open to doubt. The legal decisions of a Supreme Court build up a code by which many future disputes may be settled without expense. The decisions of arbiters subject to no unifying control (decisions which stand alone and establish no authentic code) may have to be repeated again and again at a cumulative cost to the business world much in excess of that of one or two legal decisions. Arbitration may sometimes be cheaper for the parties at the moment, but it is not always as satisfactory and, in the long run, is probably more costly to the business community as a whole.

(7) Another possible factor which was suggested to us by some of the witnesses is the circumstance that commercial and industrial activity increasingly tends to make London its centre. This movement is assisted by the tendency towards the combination of important concerns without reference to the line of the Border. It is, however, very doubtful if the influence of these tendencies has had any effect in transferring business from the Scottish to the English Courts, although it is highly probable that the aggregation of groups of separate business enterprises into larger combinations would be and has been reflected in a diminished amount of substantial litigation, An instance which suggests

itself is that since the recent amalgamations of the Railway Companies the flow of railway litigation through the Court of Session has (for the time being, at any rate) all but dried up.

After all, the present depression-serious as it is, and whatever may be its causes-is moderate when compared with that which overtook the Court of Session in the fifties and sixties (see Diagram F). So far as we can form any impression upon the matter, the sums at stake in the substantial Court of Session litigations of to-day are certainly not smaller, but, on the whole, probably greater than in the past; and cases with the heavier stakes or involving important principles naturally come to the Court of Session, now as formerly. Moreover, it is impossible to foretell how far any of the adverse influences suggested above will prove to be permanent; nor is it unreasonable to look for a revival in the future, drawing its source from new developments of the social and business life of the country. Full recovery from the losses of 1914-18 has yet to come.

In so far, however, as resort to the Supreme Court of the country may have been discouraged by the expense attending proceedings before it and by the "law's delay," the problem of finding a remedy is the definite and practical one of expediting procedure and reducing cost..

CHAPTER II.

CONSTITUTION AND JURISDICTION OF THE
COURT OF SESSION.

1. Constitution-Various Proposals for Decentralisation of the Court -Number of Judges (Inner and Outer Houses)-Mode of Appointment of Judges Abolition of Judges' Trials-Promotion and Superannuation of Judges Interchangeability of Duty among Judges-Transfer of Causes Unification of Offices of Court (see also Chapters III and X)-Formation of Third Division.

2. Proposals to Restrict or to Extend Jurisdiction of the Court; viz. : Consistorial Cases, Companies Acts, Maritime Liens (the action in rem), Arbitration Proceedings (inter alia Arbitral Court) and Applications for Directions by Trustees, etc.

1. CONSTITUTION.

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THE Court of Session was instituted by the Scots Act, 1532, c. 36, and held its first sitting, in presence of the youthful James V, on 27th May 1532. It superseded the old peripatetic Session" of James I (1425, c. 65), and the "Daily Council" of James IV (1503, c. 58) which sat continuously in Edinburgh,

The principle of its institution was the creation of a "College of Justice" in which a selected Bench, a trained Bar, and a qualified body of Writers should be associated in administering authoritatively the written law of the land and in guiding the development of the Custom of Scotland, as our Common Law is still called. This function-which is the proper function of a Supreme Court-it has ever since discharged.

There was no right of appeal from the Court of Session to the Scots Parliament before the Union of 1707, unless it were the constitutional "protest for remeid of law," which was re-asserted by the Convention Parliament at the Revolution of 1688. This form of appeal was founded on the broad principle of the Feudal Law which made the chief assembly of the vassals of the Crown the over-ruling court of reference from other tribunals. The Scots Parliament exercised such functions as it possessed in this way through committees, and these came to resemble permanent Courts of Justice, and discharged their duties independently of Parliament. The old "Session," and the "Daily Council," and the Court of Session itself, were the successors of these committees, absorbed their functions, and were really supreme.

The Act of Union said nothing about the competency of appeals from the Court of Session to the British House of Lords. But in England the English House of Lords had by that time long exercised (by custom) the functions of the judicial branch of the English Parliament; and, in the first session of the united Parliament, an appeal was presented by the Earl of Rosebery for "remeid of law" against a judgment of the Court of Session, dated 1st February 1695, in an action by him against Sir John Inglis of Cramond regarding certain fishings. (Earl of Rosebery, 16th February 1707, Fountainhall ii. 438.) The House of Lords made the preliminary orders usual in an English Appeal; but the case was not proceeded with, and was ultimately compromised. Another appeal shortly followed in the case of Gray v. The Duke of Hamilton, and the House of Lords took the same course. The practice thus initiated, apparently without serious objection, was confirmed— but whether by express decision on the point or no does not clearly appear-by the House of Lords in the better-known case of Greenshields (Fountainhall, 8th November 1709, p. 523, and 30th December 1709, p. 549); and the constitutional question as to the competency of appeals from the Scottish Court of Session to the British House of Lords was thus settled in the affirmative (Hill Burton, History of Scotland, II, pp. 35–38; Form of Procedure in the House of Lords upon Appeals from Scotland, 1821, pp. 10–14; Deas and Anderson, Law Chronicle and Reports, 1st September 1829, p. 195; Omond, Lord Advocates of Scotland, I, 286; Mackay's Practice of the Court of Session, I, 37 et seq.; Rait, The Parliaments of Scotland, p. 478).

The Court of Session was originally composed of a Lord President and fourteen other Lords (of whom seven were spiritual and seven temporal). Rather more than a century after the institution of the Court, the Court became wholly temporal