proceedings, in regard to which the Legislature, when considering, codifying, and reforming the law as recently as 1908 (under the guidance of Lord Shaw as Lord Advocate), abstainedpresumably deliberately - from granting an appeal on questions of fact, and the extension of appeal in which does not fall within the scope of the remit to Lord Mackenzie's committee.

But while it is true that clamant public demand for the institution of a Court of Criminal Appeal as a necessary reform has not been noticeable, it is none the less true that there has been a steady and far from uninfluential advocacy of it on the part of many lawyers, and of those connected with the administration of justice who have been in a position to know from experience the defects of the present state of affairs and to judge of the probable efficacy of an Appeal Court in rectifying these. And apart altogether from demand, there may very well be other considerations which may be invoked to support the view that the time has come when the provision of such a Court is required for the strengthening of our system of criminal justice. Such considerations are to be found in various conditions to which modern legislation has given rise. Prominent among these is the change in the constitution of the Court of Justiciary itself which resulted from the Criminal Procedure Act | of 1887. Prior to that Act, it will be remembered, the High Court of Justiciary consisted of the Lord Justice-General, the Lord Justice-Clerk, and five permanent Lords Commissioner of Justiciary specially appointed from among the Senators of the College of Justice. These judges were presumably chosen for their aptitude for criminal work. They took the trials at the High Court in Edinburgh, and they regularly went on Circuit for long in couples. By constant practice and intimate association in their work they gained an experience of its difficulties, and had opportunities for informal consultation on these which must have been invaluable in minimising the chances of error. But since the Act of 1887, every Senator on appointment automatically becomes a Commissioner of Justiciary. It may thus happen that a judge may have to go alone on Circuit who has hitherto hardly ever seen the inside of a Criminal Court, and who has no aptitude for criminal work. And he may have to decide while away from any colleague and without access to authoritiespoints of law of vital importance, or to deal with evidence of a kind quite unfamiliar to him.

miscarriage more or less serious, and to throw a greater strain on the judge, which the existence of a Court of Appeal would alleviate.

Another legislative development operating in the same direction is the immense increase in statutory crimes, often involving nice questions of construction, which has grown up in the last half century, and the consequent complication of the issues both of fact and law which are presented for decision. The difficulties incidental to this are aggravated by the fact that much of that statutory crime involves the construction of Acts which are of common application to England and Scotland, in regard to which uniformity of interpretation is desirable. Such uniformity is difficult to attain where each judge has to decide the point for himself finally as it arises under circuit conditions. So that it would undoubtedly be a gain in dealing with this class of case if there were provision for review by a Court of Appeal by which deliberate consideration could be given to any judicial interpretation of the provisions involved in proceedings before the English Courts the judgments of which, while not binding as authority, would properly deserve to be carefully weighed in such circumstances.

Another important consideration is the opportunity which the existence of a Court of Appeal would afford for arriving at some closer approach to standarisation of sentences than exists at present. Instances from time to time occur in which convictions of crimes of the same description and committed under closely similar circumstances have been followed by sentences, pronounced by different judges, which have varied remarkably in severity. The tendency to extreme divergence is no doubt controlled by the exhaustive classified record of sentences in past cases which exists and is available for reference. And practically it would probably be entirely eliminated were a practice introduced of consultations at frequent intervals amongst all the judges to discuss an appropriate scale of sentences suited to particular classes of crime, having regard to the degree of their prevalence and their offensiveness to public welfare for the time being. Such consultations were resorted to as a regular practice by the English judges and Commissioners of Assize prior to the constitution in 1848 of the Court for Crown Cases Reserved. And, indeed, the benefit experienced from the canvassing of difficulties at these

prevailed since the Act of 1887 do not lend themselves readily to that close association of a small number of judges regularly engaged in the trial of criminal causes which conduces to such "team work." And in the absence of any authoritative guidance or general scale of sentences, each judge is left to his own discretion as to what sentence he shall impose in any given case. To some extent this must necessarily always be so. But it is undesirable that variations should arise (as they have sometimes done in dealing with certain types of crime) because of the differing views of individual judges as to the obnoxiousness of the offence or its suitability for punishment by imprisonment or penal servitude. In such cases a deliberate pronouncement of a Court of Appeal would afford a useful guide to general policy, which would doubtless be valued by individual judges as an aid in the discharge of a difficult duty. Particularly valuable would such guidance be in regard to sentence for crimes as to the heinousness of which public opinion varies from time to time; especially where, for example, Parliament has had occasion in recent

be generally welcomed. No more trying responsibility can be thrown on any man than that of giving judgment, finally and without review, upon a serious criminal charge on the issue of which the life or liberty of a pannel depends. Of this responsibility in the case of a capital charge Lord Shaw has written: "Every human judgment is mingled with human error, and in the issues of life and death no judge should be charged with an irrevocable doom." But even where the judgment concerns liberty and not life, the responsibility is sometimes almost as anxious. A wrong judgment may effectually blast a career and at the best can never be wholly redressed. For a pardon to a man wrongly convicted of serious crime is but a poor substitute for the acquittal which is his right. One may fairly infer, therefore, that by many judges it would be regarded as a relief from a heavy burden were the circumstances such that in discharging the responsibility which rests on them-grave enough in any case-there was the possibility that any error into which they might lapse would be corrected by the more leisurely decision of a Court of Appeal.

crime and of its appropriate punishment. For such legislation, though not formally affecting Scotland, may fairly be regarded as reflecting the considered judgment of the Legislature on the matters dealt with. And any marked and continuing difference of treatment in the two countries would be inexpedient. As an instance in point, the Punishment of Incest Act, 1908, may be cited. Both as to the degrees within which intercourse should be regarded as criminal and the severity of punishment appropriate, this Act may be taken as much more fairly representing the present public sense than the venerable Scottish Act of James VI. of 1567, cap. 15, and the practice under it. And it would certainly be regarded as intolerable that a widely differing scale of punishment should be applied according as an act was committed-say, at Coldstream in one case, or on the opposite side of the Tweed in another. But the effect to be given to such considerations is more suited to the deliberate pronouncement of a Court of Appeal than to the unaided decision of a single judge on Circuit. It is to be observed, too, that in some cases of apparently disproportionate sentences, the disproportion is based on good grounds known to the judge, but of which complaining critics may be quite ignorant. It would go far to exclude any sense of injustice were it realised that any real inequality could be rectified by an appeal.

From the personal point of view of a judge called on to try a case of serious crime, the provision of a Court of Appeal would probably

At present there is an increasing tendency to invoke the exercise of the prerogative of mercy in any case in which an accused person or his friends think that he has been wrongfully convicted or too harshly punished. This, in effect, amounts to requiring the Secretary for Scotland to discharge the functions of a Court of Appeal, and throws upon him a burden which it is unfair to impose on him, and for the discharge of which he is not particularly fitted. If regular provision were made for reconsideration by a Court of Appeal, the number of instances would be comparatively rare in which the interposition of the Royal prerogative would be called for. While if the precedent of the English Act were followed, and power were given to the Secretary to refer any application for the exercise of the prerogative to the Court of Appeal, or to require the opinion of that Court on any point arising under any such application, the very anxious duty which at present rests on the Secretary for Scotland of advising His Majesty on these applications would be greatly lightened, and public confidence in the result would probably be much increased.

These considerations cumulatively strongly point to the desirability of creating a Court of Appeal in Criminal Causes if that can be done without imposing a tax on judicial time and an expense, which are incommensurate with any benefit that may reasonably be expected to be derived from the change; and provided that the introduction of provision for appeal would not tend unduly to weaken the sense of responsibility of juries and of the trial judge, by whom, under any conceivable conditions, the great bulk of cases would in the end be finally disposed of. How far these conditions can be satisfied must obviously depend upon the scope of the appeal to be allowed, the conditions under which it may be taken, the parties to whom it is to be open, and the class of case in which it is to be available. Of these matters -into which the Committee will doubtless have to enquire-space forbids consideration at present, but some suggestions regarding them may possibly be offered in another article.

COURT OF SESSION REFORM.

(From a Correspondent.)

From a purely selfish, professional point of view the decrease in the volume of business in the Court of Session is greatly to be deplored. But it is also quite evident that the public's interests are suffering. The public has a right to expect that its disputes shall be heard expeditiously and dealt with efficiently. If for any reason this becomes impossible, the public suffers. That it is impossible at present is evident from the slender support which the public now gives to the Supreme Courts. What are the reasons?

When this matter is discussed, and it is discussed a good deal, two defects in our present system are invariably mentioned, expense and delay. Of these, expense, although an undoubted evil, is probably the lesser. (a) The increase made in Fee-Fund Dues in 1922 should be abolished, or at least reduced. It was based on a wrong conception of Courts of law as an economic proposition which should pay a dividend in favourable years, instead of a place to which access should be made reasonably easy. (b) Costs of printing, duplicating, etc., could still be considerably reduced. (c) The whole question of professional charges should be considered. The situation might be improved by a double scale of permissible charges, the higher to apply only to cases over a certain value.

But any damage done by expense pales into insignificance before what is due to delay. Not to put too fine a point on it, it is the commercial litigant whom the Courts want to catch. This is the man who at present settles his case, or resiles from his just rights, or takes as final the judgment of a SheriffSubstitute, rather than face the Court of Session; and his reluctance is due, not to any calculation of expenses in the cause, but to delay, which is the worst of all forms of expense. Why should he lie out of interest on

his money for two years when he can cut his losses now and get on with the work?

Why should there be delay? The thing is a curious paradox. It is true that there is too little work; it is equally true that cases take far too long before a final decision is reached. Why should this be so? The mills of our procedure grind small, but exceeding slowly. Let us consider what could be done to speed things up a little, beginning with the Inner House.

It is a damnosa hereditas from our legal origins that the Court of Appeal, instead of being regarded as a luxurious appendage to the working Courts, is regarded as the Court. In the old days the Court of Session was the Fifteen, and any judge sitting by himself was simply acting as the hand of the Fifteen for a strictly limited time and purpose. So to-day we have eight judges of appeal and only five of first instance. There should only be three judges in each Division. This would release two judges to form the nucleus of a muchneeded Extra Division to clear off arrears on the Rolls. It would also obviate the farce and expense of rehearing before seven judges when the four are evenly divided.

Cases of all kinds, great and little, are, if sent to the Short Roll, usually kept waiting for over a year before they are heard. Cases should be put out for hearing, without fail, within three months of being sent to the Roll. Any cases delayed after this period should go to an Extra Division sitting for the purpose. If three Divisions, all working full time, happened at any given moment to run through all the work before them, surely a little judicial idleness is far better than the present delays.

Statutory provision is already made for the obviation of delay, but this is, for no very apparent reason, a dead letter. Section 5 of the Court of Session Act of 1868 enacts that "where in any year the whole of the causes coming into the Inner House in the Winter Session shall not have been heard before the end of the Summer Session, the Court may, whenever it is expedient for the despatch of business, extend the sittings of the Inner House at such time and for such period as may be necessary." An Extra Division, as suggested, could clear off the arrears without trenching on the sanctity of the present vacations.

Hearings should not be interrupted by the interposition of hearings on rules and the like, or by the reading of judgments. This last should in any case be abolished as an unedifying waste of judicial and other time. Judgments can be issued to the parties by the clerks, and if any question of expenses arises from the judgments, the matter can be enrolled and debated at the end of the day following.

Edinburgh; Henry Campbell Cunningham, M.A., Glasgow; Matthew Dunlop, Glasgow; Percy Webster Fairweather, Edinburgh; Adam Gray Gibson, Edinburgh; Ronald Douglas Gibson, B.L., Edinburgh; James Cedric Herd, Glasgow; Joseph Michael Hughes, B.L., Glasgow; Alexander Hillier Lindsay, Edinburgh; John Macfarlane, M.A., LL.B., Bothwell; Robert Young Mackay, jun., Edinburgh ;

MESSRS PATRICK & MITCHELL, writers, County Buildings, Cupar, Fife, intimate that they have assumed as a partner Mr R. N. Robertson, LL.B., who has been their Procurator for the past four years. The business will continue to be carried on under the present firm name.

EDINBURGH S.S.C. SOCIETY. - At a special general meeting of the S.S.C. Society, held in the Society's Hall, Edinburgh, on 5th inst. Mr W. H. Mill, president, in the chair-Mr Mackenzie Fortune, 35 Mansionhouse Road, and Mr William B. Paterson, 1 Hartington Place, were admitted members.

Ar the annual general meeting of the Faculty of Procurators of Paisley Mr T. D. Laird was appointed Vice-Dean for two years, and Messrs T. P. Towers and N. S. Cochran were appointed to the Council. The Dean of Faculty (Mr D. A. Morrison) made sympathetic reference to the death during the year of Mr T. Gow Smith,

and it was agreed to place on record an appreciation of the ability of the late member.

THE POORS AGENCY.--At the annual meeting of the Incorporated Society of Law Agents in Scotland, held at Greenock in October 1922, a paper was read by Mr R. Freer Myles, solicitor, Forfar, at the request of the Society of Procurators of Forfarshire (Forfar District), on the subject of the Poors Agency. This paper,

which was printed in our issue of 25th November 1922 (page 169), advocated an amendment of the law "so as to get rid of what has been long felt by legal practitioners to be a grievance and an injustice to the members of the legal profession."

It is understood that, on the suggestion of the Incorporated Society, the Forfar Society has now framed a Bill making provision for payment of Agents for the Poor, and that the

Glasgow, intimate that Mr Douglas H. Sayers, B.L., has been assumed a partner of the firm. The business will be continued under the same firm name.

THE death has occurred of Mr John Leask, solicitor and agent of the North of Scotland Bank, a prominent figure in the business life of Forres. Only a fortnight ago Mr Leask resigned office as Vice-Chairman of Moray Education Authority, when tributes were paid to the services he had rendered to the cause of secondary education in the county during the past thirty-five years. He held numerous public appointments, and was regarded as a man of unusual business capacity. In philatelic circles he was well known, and he was also interested in antiquarian research. Mr Leask is survived by his wife, two sons, and two daughters.

was educated at

forty-nine years of age, James Gillespie's School and Daniel Stewart's

College. After serving his apprenticeship with the firm of James F. Mackay, W.S., he qualified as a solicitor in 1898, and in 1901 commenced business in partnership with Mr George Salmon. Mr Paterson was a capable lawyer, and was for a time a well-known figure in Parliament House. During the war he went on service in 1917 and was wounded in Flanders while serv

ing with the Royal Garrison Artillery. After being discharged from hospital at the beginning of 1918 he acted as military representative on the Recruiting Tribunal for the county of Fife.

SPECIAL NOTICE.

The Editor will welcome legal problems or questions of interest from subscribers, and will, wherever possible, arrange for articles thereon by experts. Interesting points are continually cropping up in practice, and there is at present no means other than that now suggested whereby a lawyer in one part of Scotland may benefit at a saving of time and money from the experience of a lawyer in another part who has dealt with a similar problem.