highly probable that the adoption of any of the proposals above referred to would result in an increase of public expenditure.

While therefore WE THINK THAT THE POLICY OF DECENTRALISATION APPLIED TO THE COURT OF SESSION WOULD BE A DESTRUCTIVE ONE, we are no less of opinion that THE ALTERNATIVE OF REMOVING THE SUPREME COURT FROM EDINBURGH, EITHER IN WHOLE OR IN PART, TO THE BUSINESS CAPITAL OF SCOTLAND IS NOT ONE TO BE RECOMMENDED.

Number of Judges-Inner and Outer Houses.-The number of the judges in the Court of Session is adequate meantime for the service of the Bench, and does not exceed reasonable requirements. Apart from the effect of schemes for decentralisation such as have been discussed above, the only suggestion made to us for diminishing the judicial establishment was that of a witness (from whom, however, we had no opportunity of obtaining oral explanations) to the effect that a Court of nine judges in all-consisting of six Inner House judges, sitting in two Divisions, and an Outer House of three judges-would be sufficient. It is right to say that this suggestion was accompanied by a proposal to increase the remuneration of all Sheriff Substitutes by fifty per cent.; and it is therefore probable that it-like the decentralisation schemes--contemplated a large transfer of business from the Court of Session to the Sheriff Courts.

As the statistics dealt with in the earlier part of this Report show, the general course of business since the date of the Law Commission of 1868 provides no justification for such a reduction; and, if the desire so frequently expressed during our enquiry for greater despatch is to be met, that can only be done by a rearrangement of the duties performed by the existing staff without diminishing their number. A Court so small as nine would be altogether inelastic; and such arrangements as that by which a Third Division is formed from time to time to overtake Inner House arrears would be made impracticable, except at the cost of bringing the whole first instance work of the Outer House to a standstill. Moreover, no interchange of duty among the judges could be effected. We deal below with the question of how many judges should sit in each of the Divisions of the Inner House.

It is misleading to regard the Court of Session in isolation, as a suggestion of this kind appears to do. The relations of the Court of Session with other Courts of supreme jurisdiction in Scotland must not be forgotten. The judges of the Court of Session discharge the duties of the Bench in those other Courts as well as in their own; and at many points the business of the various Courts interlocks. Thus, the High Court of Justiciary, which was instituted by the Act 1672, c. 16, and took over the functions of the old "Justice-Court" (consisting of the JusticeGeneral, the Justice-Clerk, and the Justices-Depute), is the Supreme Court of Criminal Jurisdiction in Scotland. Until 1887, five of the Lords of Session, along with the Justice-General and Justice-Clerk, constituted the Bench of the Justiciary Court in

the capacity of "Lords Commissioners of Justiciary"; but, by the Criminal Procedure Act, 1887 (50 and 51 Vic. c. 35), all the judges of the Court of Session were made Lords Commissioners, and service on the Bench of the Justiciary Court was added to their ordinary civil duties. They go on Circuit for the trial of all serious crimes and offences, and hold special sittings for the same. purpose in Edinburgh, and elsewhere, as may be required. The Justiciary Appeal Court (usually composed of three judges) is also the Court of Appeal in all minor prosecutions brought in the lower Courts on complaint (as distinct from indictment). In what are known as "certified cases," from three to five judges sit to determine points of difficulty which arise as to relevancy, as to the effect of verdicts, or as to the proper sentence to be pronounced. The draft thus made on the available time of the Judges of the Court of Session is considerable. An idea of its extent (on any possible view of the rearrangement of the sittings of the Court) can be formed from the statistics regarding the amount of judicial time occupied in the work of the Court of Justiciary by the judges of the Court of Session, in 1921 (whole year) and in 1922 (seven months), contained in Appendix No. VII.* They show that, roughly, one hundred and fifty days of a single judge are occupied every year by Justiciary duties alone. If the Court of Session sat every day (except Saturdays and Sundays) for nine months out of the twelve, and if all the Justiciary work were done in Session, the result would be that the whole time of a single judge would be withdrawn from Court of Session work and devoted to the Court of Justiciary throughout the entire year. Moreover, under recent legislation a Court of Criminal Appeal-applicable to cases tried under indictment-has been set up; and this Court, which will consist of three judges, will also be manned by judges of the Court of Session.

Again, the Lands Valuation Appeal Court, which hears appeals from the local assessment authorities (for rating purposes) all over the country, consists of three judges of the Court of Session specially appointed for this work in addition to their ordinary duties. In the course of the last six years the Valuation Appeal Court has sat each year for periods of from two to five weeks continuously. These sittings are, and must be (in view of the dates of the assessment year), during session. The case is the same with regard to the Court for the trial of Election Petitions, and the Registration Appeal Court, but these Courts only sit occasionally. Lastly, individual judges of the Court perform extra duties on various tribunals (some permanent and others temporary), of which the Court of the Railway and Canal Commissioners and the War Compensation Court and the Church Commission may be cited as examples.

A considerable part of the work of the High Court of Justiciary

These figures were originally compiled in the Justiciary Office in the latter part of the year 1922, at the request of the Lord President, for the purpose of arranging the business of the Court; and we have had them re checked by the Clerk of Justiciary.

is at present done during the vacations of the Court of Session; but, even so, the various duties enumerated above involve a very substantial draft on the judicial time available for the regular civil business of the Court of Session; and this draft is likely to be increased as the result of the establishment of the new Court of Criminal Appeal. With both past experience and present prospects in view, WE MAKE NO RECOMMENDATION WITH REGARD TO ANY ALTERATION IN THE NUMBERS OF THE JUDGES OF THE COURT OF SESSION.

Appointment of Judges.-Further, WE MAKE NO RECOMMENDA

TION WITH REGARD TO THE MODE OF SELECTING AND APPOINTING

THE JUDGES. Except indirectly, this topic hardly appeared at all in the evidence presented to us. We have referred to it above in dealing with the constitution of the Court.

Judges' Trials. We think, however, that the time has come to dispense with the Trials of newly appointed judges. At present a judge must pass his Trials before taking a seat on the Bench. The Trials are made by the Court of Session itself and consist in the "Lord Probationer " hearing a couple of cases in both the Outer and Inner Houses, and reporting his opinion thereon to the members of the Court, who may pass or reject him. At one time the Trials included a Latin dissertation on some legal topic. This requirement has come down from times when public confidence in the nominations of the Crown, or in the disinterestedness of the Ministers on whose advice they were made, was less than it is now. The Trials were first instituted in the time of James VI by the Acts 1579, c. 93, and 1592, c. 134. The failure of a Crown nominee in 1721 to pass his Trials, and his consequent rejection by the Court, led to the passing of the Lords of Session Act, 1723 (10 Geo. I c. 19), which preserved the Trials, but enabled the Crown in future to insist on the ultimate reception of a nominee who might be rejected by the Court. The system of Trials is recognised in the Court of Session Act, 1808 (48 Geo. III c. 151, s. 21) as applying to the then constitution of the Court; and the Trials continue to be prescribed both by the statutes referred to and by the rules of Court (C.A.S., A. i. 1). Under modern circumstances the Trials are for all practical purposes an empty formality; and the Law Commission of 1868 recommended their abolition. On the day when a newly appointed judge presents his Commission, they cause an unavoidable but serious interruption of the regular work of the Court. We therefore RECOMMEND THE ABOLITION OF JUDGES' TRIALS. But the public presentation to the whole Court of his Commission by the newly appointed judge, the public administration of the oaths, and his formal reception as a member of the College of Justice, are parts of a brief but dignified ceremony which might fittingly be preserved.

Promotion from Outer to Inner House.-We heard some criticism of the practice of promoting judges from the Outer to the Inner House by seniority, and suggestions were made in favour of some

form of selective promotion.

The statutory foundation for the present rule is to be found in section 1 of the Court of Session Act, 1819 (59 Geo. III c. 45). At that time something like the modern distinction between the Inner and Outer Houses had recently been established, but the whole Court was still organised in two Divisions. By the enactment referred to, a judge of one Division might, with his own consent, be transferred to the other on a vacancy there occurring-failing which, the senior Lord Ordinary was to be promoted. This provision is still applicable to the two Divisions of the Inner House as now constituted. It must be remembered that promotion from the Outer to the Inner House involves no increase in salary, all the judges except the Lord President and the Lord Justice-Clerk being remunerated alike. In England, where the Lord Justices of Appeal are more highly remunerated than the Justices of the High Court, promotion is selective; and it might sometimes be an advantage if the combination of the individual judges forming the two Divisions of the Inner House of the Court of Session were less determined by the mere chances of life and death than must be the case under the system of promotion by seniority. But the relatively small number of Court of Session judges, and the consequent restriction of the area of choice (as compared with the position in England) creates one great difficulty; and another (which is hardly less) lies in the circumstance that there is no superior Officer of the Law in Scotland-like the Lord Chancellor in England-sufficiently in touch with the work of the individual judges in the Court of Session to make the right selection. It would be unfair to put a duty of this kind on the Lord President, or on him and the Lord Justice-Clerk together, inasmuch as they are themselves members of the Court; and the public duties of the Lord Advocate are apt to be too absorbing to allow of sustained knowledge regarding the precise circumstances of the Court from time to time, and the special qualifications of individual judges for membership of a particular Division. Our opinion is that this matter is best left as it is; and we therefore MAKE NO RECOMMENDATION WITH REGARD TO THE MODE OF PROMOTION OF JUDGES FROM THE OUTER TO THE INNER HOUSE.

Superannuation.--We heard little or nothing of any demand for the superannuation of judges beyond a fixed age-limit; and accordingly, while some of us are favourable to compulsory retiral on pension after seventy years of age, WE MAKE NO RECOMMENDATION AS TO SUPERANNUATION.

Interchangeability of duty among Judges.-A material gain, particularly in the despatch with which the business of the Court could be overtaken, would, in our opinion, result from the introduction of greater elasticity in the arrangements of the Court, and in the interchangeability of duty among the judges. The tendency both of legislation and of the Court's own internal administration has long been in this direction; but we think that

much more than has yet been accomplished could be done with advantage, and this applies to both the Inner and the Outer Houses.

It was only in 1832 (2 and 3 Wm. IV c. 5, s. 2) that power was given to make up a quorum of three in the Inner House by calling in a Lord Ordinary from the Outer House; and it was only by the Court of Session Act of 1868 (31 and 32 Vic. c. 100, s. 12) that the Lord President was expressly authorised to nominate any judge to take the duty of another necessarily absent. By the earlier Act of 1857 (20 and 21 Vic. c. 56), the Lord President was given power to promote the despatch of business by transferring causes from one Division of the Inner House to the other, and in like manner by transferring causes from one Lord Ordinary to another. Finally, by the Act of 1868 (s. 8), the Court was authorised to constitute from time to time, as might be expedient, four of the judges of the Outer House into what was really a Third Division for the disposal of certain classes of Inner House causes. The excessive depletion of the Outer House which was the consequence of adopting this course, made the enactment inoperative; until in 1907 (under the powers given to the Court by s. 106 of the Act of 1868) its form was altered (C.A.S., A. i. 2) so as to enable the Court by Act of Sederunt to constitute a Third Division, consisting of any three selected judges, to try any of the causes standing in the Rolls of the First and Second Divisions. By transferring temporarily one judge from each of the latter Divisions to the Third Division, it became necessary to take away only one judge from the Outer House, the three Divisions consisting of three judges each.

The gradual and tentative character of these developments is explained by the fact that they were devised to be as consistent as possible with the ancient right of the pursuer of every Court of Session action (and of the appellant in every appeal from a lower Court to the Court of Session) to select whichever Lord Ordinary and whichever Division he might name to try his case. This is the right of "marking" cases- -a right which has survived whatever conditions may have justified it in former days, but which necessarily resulted in breaking up the work of the Court among a number of distinct and separate Rolls, each of which constituted a water-tight compartment exclusively assigned to a particular Division, or to a particular Lord Ordinary. To mitigate the inconvenience and delay caused by the excess or deficiency of business inevitably occurring in these various compartments was the object of the machinery described in the preceding paragraph.

It seems to us that the quickest and most convenient way of disposing of the actions before the Court-at whatever stage they may have arrived-is to distribute the work of trying them according as the judges of the Court are available for the purpose; and in Chapter III of this Report (to which we refer) we recommend the abolition of the system of "marking" and of separate Rolls for the two Divisions and for the five Lords Ordinary, the work being distributed from a unified central office. This would have the effect of superseding the cumbrous machinery of transfer.