JOURNAL OF JURISPRUDENCE, 1860. VOL. IV. EDINBURGH: T. & T. CLARK, LAW BOOKSELLERS, GEORGE STREET. GLASGOW: SMITH AND SON. ABERDEEN: WYLLIE AND SON. MDCCCLX. THE JOURNAL OF JURISPRUDENCE. THE BUSINESS OF THE COURT OF SESSION. AFTER the Commons House of Parliament, the Court of Session is certainly the best abused institution in the kingdom. Everybody that professes to know anything about it, insists that there is something wrong; and the severest critics of the existing system are those of the class most interested in its preservation. For our lawyers are, as Lord Brougham has testified, men of large and liberal ideas, friends to Law Reform, with a decided propensity for self-immolation on the altar of public duty. It would be idle to protest against the prevalence of such an amiable weakness amongst some of our professional brethren; and we only advert to it as illustrative of that diversity in matters of taste, which has become proverbial. We are content to fall in with the humour of the time. A legal functionary, of dramatic celebrity, begged that somebody would have the goodness to write him down an ass. To oblige the members of the College of Justice, we are resolved, at whatever sacrifice of personal feeling, to "write down" that venerated incorporation. The business of the Court, it is said, has diminished, is diminishing, and ought to be increased. This inversion of the famed historical protest does not, however, exactly represent the grievance of which we have to complain. In one view, the business might even be supposed to be increasing. For example, the Rolls of the last Summer Session show that a larger number of Reclaiming Notes were presented during that term than in any corresponding period since the establishment of the Inner House on its present footing. During the current Winter Session, at least 70 Reclaiming Notes VOL. IV.-NO. XXXVII. JANUARY 1860. A and litigated causes have already been enrolled in the First Division alone; and although their Lordships have been working at the "irons" like British tars in a leaky vessel, the influx of business in any given interval of time, is equal to all that the united energies of the Court can succeed in clearing away in the same period. But this overflow of Inner House cases is, we are told, the certain harbinger of ruin to the business of the profession. The augmented number of Reclaiming Notes is simply an indication that more than the usual number of cases have been decided in the Outer House. This again arises from the circumstance, that the Lords Ordinary have had few new Records to prepare, and have thus been enabled to devote a large share of their time to the Debate Rolls. Finally, the scanty supply of new cases is said to be attributable to the length of the Inner House Rolls. So the argument proceeds, in a vicious circle, each grievance being at once the cause and the consequence of all the rest. With regard to the alleged diminution in the business of the Court of Session, we shall say nothing, as we do not know where to find materials for arriving at a correct opinion. A comparison of the "Printed Rolls" for the last two years would, for obvious reasons, afford only the rudest approximation to the truth. Meanwhile, the profession has been startled by the announcement, that a leading junior has been compelled, by pressure of civil practice, to resign the lucrative office of advocate-depute. It was rumoured some few months since, that one of the best Sheriffships in Scotland would probably be vacated, in consequence of the learned judge being unable to overtake the combined duties of Sheriff and leading counsel; nor is there any visible relaxation of the labours of others who are fortunate enough to have secured a prominent position in the forensic arena. If diminution there has been, we should be inclined to attribute it to an unfounded prejudice against the Court of Session, rather than to any real superiority in the Sheriff Courts, either as regards efficiency or celerity. In a comparative question, it would not be fair to call the Court of Session a dilatory Court; and with the prospect of an advocation before him, the Sheriff Court is about the last tribunal a suitor would choose for the adjudication of any matter requiring despatch. The state of the Inner House Rolls is, however, a different and a more serious question; for, whether logically demonstrable or not, certain it is that the Rolls of the First Division have arrived at the Of course position of being permanently twelve months in arrear. there are fluctuations. At present the tendency is, as we have hinted, towards reduction; the Court having in fact already heard and determined the causes enrolled the first week after the last January sittings. This yearly arrear is a debt inherited from a very remote period; and experience has proved the utter futility and hopelessness of all attempts at reducing it, based on adherence to the existing system. The operations of the Chancellor of the Exchequer, when, at the close of a successful financial year, he transfers half a million to the account of the Commissioners for the National Debt, is a fair parallel to the arithmetical transformations that take place in the Rolls of the First Division. The plan of a Third Division, formerly suggested in this Journal, has been much canvassed of late; and so far as we can learn, public opinion, both in and out of the profession, is favourable to the scheme. The only substantial objection is, that it would do away with the permanent Lords Ordinary; but this difficulty would be obviated by enabling one Judge from each Division to sit at Chambers (as in the English Courts), or in the Outer House, for the preparation of records and hearing of motions. This merely formal business could easily be got over before eleven o'clock; and the question would then remain, whether it were more advisable to have all debates heard in the first instance before the four Judges, or to continue the present system of a rehearsal (for it is nothing more) before a Judge in the Outer House; in which case the number of Judges for each of the three Divisions would be reduced to three. For our part, we have never happened to meet with any one who has been able to discover the slightest utility in the Outer House system. The Lord Ordinary's decision is invariably taken to review at all competent stages; finality is an idea as completely out of date in the Parliament House as it is in political circles. How completely an Outer House judgment is considered to be a matter of form, is obvious from a practice notoriously on the increase amongst leading seniors, of systematically absenting themselves from the Outer House bars. If there is room for a great display, or if the bar is vacant after eleven, and no chance of an Inner House debate coming on, these magnates may perhaps be induced to tender their assistance to the Lord Ordinary. But as for coming up at nine-really, there is no use for it. It's only retarding the business of the Court; and after all, the battle must be lost or won in the Division. |