"George R.-Right trusty and well-beloved, we greet you well: Whereas, we have appointed Mr Charles Areskine, Advocate, to be sole Solicitor for that part of Great Britain called Scotland, and we being pleased to show him a further mark of our royal favour, it is our will and pleasure that a seat be placed for him within the Bar of your Court, where and from whence he may be at liberty to plead cases in your presence; and we do hereby direct you to cause such to be placed accordingly. Given at our Court at St. James, this 3d day of June 1725, in the 8th year of our reign. By his Majesty's appointment, sic subscribitur, ROXBURGH."'*

66

The entry in the Book of Sederunt bears that the letter was read and ordered to be recorded, that the Solicitor took the oaths, and that the Lords appointed a seat for him within the Bar.'t

"When Robert Dundas was appointed Solicitor in 1742, he produced a similar letter, and the entry in the Books of Sederunt is in the same terms.

"But when Henry Dundas was appointed Solicitor in 1766, no letter appears granting him this privilege, and the Minute in the Sederunt Book does not confer it. "From Tait's Reports, it would appear that the privilege thus granted by the Crown to the Solicitor had come to be recognised in 1775, as one he was entitled to claim irrespective of express grant. Tait states that "when Mr Montgomery presented his commission as sole Solicitor, with the whole privileges of his office as enjoyed by his predecessors, the Lords understood one of them to be his being allowed to sit and plead within the Bar; therefore he was admitted to do so. Formerly, the Solicitors used to get a special letter to that effect; but now when there is only one Solicitor, it is held to be a privilege of his office, not when there is two.'-(5 Brown's Sup. p. 603).

Apparently it was upon some idea of this kind that the two Solicitors in Bankton's time acted-The Solicitor takes care of the King's interest as assistant to the Advocate. Both have the privilege of pleading within the bar; at least the Solicitor formerly enjoyed it, though now the two gentlemen joined in the commission as Solicitors do not use such privilege.'-(Bankt., vol. ii. p. 492).

"In modern times the practice is for the President of the Court to direct the Solicitor to take his seat within the Bar, after he has taken the oaths.

"Thus it will be seen that the Lord Advocate has right to sit within the Bar in virtue of a statute; and the Solicitor's admission to the same privilege may be said to have originated with the Crown, since the Act of Sederunt of 1662 was repealed in 1686.

"At the same time, the Court seemed to have asserted the right to admit such parties as they pleased within the Bar. By the Act of Sederunt of 16th December 1686 above quoted, they permitted the Lord Treasurer, or the Commissioners of the Treasury, to be within the Bar when Crown causes were heard. And by Act of sederunt of 7th July 1763, this day the Lords resolved to admit all the members of His Majesty's Most Honourable Privy Council, whether Peers or Commoners, within the Bar, and to have a seat in this house' (p. 541). This was a decided alteration of the old rule and practice. Fountainhall reports a case where the practice was thus stated-The Marquis of Montrose compearing to choose his curators in presentia, the Lords, by the fault of their macers, suffering the Lady Marchioness, his mother, and many with her, to enter within the Inner Bar, were necessitated to desire her to remove; and then cause signify it was the privilege of none to stand within but Dukes and Duchesses-which my lady obeyed.'-(Marquis of Montrose, 8th Nov. 1695, 4 Brown's Sup. 277).

"From the preceding narrative, it would follow that both the Crown and the Court have the right to authorize any parties whom they please to come within the Bar-a right that has never been claimed by the Faculty itself.

"II. On the matter of professional costume, the following is all the information that can be obtained from any of the records.

"The wig and gown, at present used, are not prescribed by any regulation of the Court or of the Crown, or even of the Faculty. The costume seems to have come gradually into use, and differs from that prescribed by law.

"So early as 1455 (long before the institution of the Court of Session), the Scottish Parliament enacted, that all men of law that are forespeakers for the cost [hired advocates], have habits of green, of the fashion of a tunykill, and the sleeves to be open as a tabart.'—(1455, c. 12, 2 Thomson's Acts, p. 43).

MSS. Records of Privy-Council.

† MSS. Books of Sederunt.

The matter remained without any farther regulation for nearly 200 years. In 1609, it appears that even Judges wore no professional costume; and the same may be inferred as to Advocates. By the Act 1609, c. 8, the whole matter was referred to King James VI. by the Scottish Parliament, thus-" And because a comelie, decent, and orderlie habite and apparrell in the Judges of the land, is not onely ane ornament to themselves (being a badge and marke for distinguishing them from the vulgar sort), but the same also breeds in common people that reverence and regard that is due and proper for men in these places. And this being a custome univer sallie observed almaist through all Europe, the want whereof is greatlie censured by strangers resorting in these parts. The saids Estaites, therefore, upon infinite proves they have of His Majesties maist singulare wisdome in all his directions, and of his gratious love and affection to this his native kingdome, have, in all humilities, referred to his Highness awne appoyntment the assigning of any sik severall sort of habite and vestement as shall be in his Majesties judgment maist meet and proper, as well for Lords of Session, being the supreme judges in civill actions, as for all other inferior judges of the lyke causes. As also for the criminall and ecclesiasticall judges, and for advocats, lawyers, and all others living by law and practice thereof; that sa every ane of these people may be knawn and dignosced in their place, calling, and function, and may be accordinglie regarded and respected. Attour, his Majestie and Estaites foresaids, considering what slander and contempt hes arisen to the ecclesiasticall estate of this kingdome by the occasion of the light and undecent apparell used by some of that profession, and cheeflie those having vote in Parliament. It is therefore statute, that everie preacher of God's word shall hereafter wear black, grave, and comelie apparell, beseeming men of their estate and profes sion; as lykewyse that all pryors, abbots, and prelats, having vot in Parliament, and especiallie bishops, shall weare grave and decent apparrell agreeable to their funcion, and as appertaines to men of their rank, dignitie, and place. And because the haill Estaites humblie and thankfullie acknowledges that God of his great mercy has made the people and subjects of this countrie sa happie as to have a King raigne over us, wha is maist godlie, wyse, and religious, hating all erronious and vaine superstition, just in government, and of lang experiences therein, knawing better than any king living what apperteins and is convenient for every estate in their be haviour and duetie. Therefore it is agreed and consented to by the said Estaites, that what order soever his Majestie in his great wisdome shall think meet to pre scrive for the apparrell of Kirk-men, agreeable to their estate and moyen, the same being sent in writ by his Majestie to his clerk of register, shall be a sufficient warrant to him for inserting thereof in the buikes of Parliament, to have the strength and effect of ane act thereof.'

"Following up this statute, the King sent a letter to the Privy Council, dated 16th January 1610, which will be found printed in the first volume of the Miscellany of the Maitland Club,' p. 149. A proclamation was thereafter issued, dated 30th January 1610, which acknowledges the King's singular wisdome in all his princelie directionis, and his gratious love to this his antient and native kingdome,' in reference to the apparel, alswele for the Lordis of Sessioun, being the supreme judgis in civile actionis, as for all utheris inferiour judgeis in the lyke causes, as also for the criminal ecclesiastical judgeis, and for advocats, lawyris, and all utheris leving by law and practize thairof, as also for churche men.' His Majesty, it was stated, had sent certain directions, but reserved to himself to add thereto on more due consideration, and when he had more leisure. The directions as to the lawyers were

"That the President and remanent ordinarie Lordis of Sessioun sall weare a purpour (purple) cloath gowne, faced all about with red crimson satyne, with a hood of purple, lyned with crimson satyne also, according the model and forme of a gowne send downe be his Majestie to be a pattern for all gownes of ordinarie sessiouaris, onlie the Presidentis gowne sall be faced with red crimson velvet, and the hood lynit with red crimson velvet.'

"This seems to be the gown at present worn by the judges.

"With regard to the bar, Clerks of Session, and Writers to the Signet, the regulation was, that the advocatis, clerkis of the sessioun and signet, sall haif their gownis of black, lyned with some grave kind of lyning or furring.'

"Regulations are also made as to the gowns of the Justiciary Judges; but these were ultimately settled by the subsequent Act 1672 c. 16.

"No notice is taken of Procurators before Inferior Courts.

"The gown of the Advocate, it will be observed, was to be lined. An idea of what it was may be obtained from drawings in the Lyon Office, representing the

order of the funeral of the Chancellor Rothes in 1681. Representations are given in the drawings of all who attended in their robes. The gowns of the Judges appear to have been the same then as now. The Lord Advocate also appears in the same full dress gown as worn by him, on important occasions, at present. The Dean of Faculty and Solicitor-General are not distinguished as wearing any different gowns from the ordinary bar; and at what time this latter officer assumed a silk gown, I(sic) cannot ascertain. The gowns of the outer bar are represented in the drawings as having ornaments down the front, very much like the braiding on the gown of the Lord Advocate. The whole bar wore bands and full bottomed wigs. The bands went out of general use in the course of the succeeding half century; and in the Faculty minutes on 19th June 1766, there appears a notice of motion to this effect, That for the more decent habite and apparel of the advocates, and to distinguish them from others who wear either the same apparel or very little different from it, that it should be resolved that the advocates shall wear bands as a part of their formalities; that the Dean and his council shall wait on the Lord President and lay before his Lordship this motion, and pray his Lordship's and the Court's approbation. The Faculty delayed the consideration of this affair till some after meeting. Nothing farther was done in the matter by the Faculty, and the delayed motion has yet to be taken up. At what time bands were entirely given up cannot be traced. In Crosbie's picture, which hangs in the Library entrance, he is represented as wearing bands. And at present, when a member of the Outer Bar pleads before the House of Lords, the bands are resumed.

"The only body that seem to have worn, at the funeral of the Chancellor, the plain stuff gown now worn by Advocates, were the professors in the University; and it is probable that convenience and considerations of economy may have recommended it to the bar in later times.

"It will thus be observed that the professional costume of the Bar was prescribed by the Crown in virtue of statutory authority; and any difficulty as to the source from which orders should be taken on the matter at present, would have been at once obviated, had the statute of James still continued operative, as a perpetual reference of this matter to the sovereign for the time. It is however not so. All doubt as to the temporary character of the Act 1609 is taken away by the Act 1633, c. 3, which shows that the parliament of 1609 did not hand over the regulation of the subject to every reigning sovereign. It required the special Act 1633, c. 3, before Charles I. could exercise the authority which had been conferred on his father, so far at least as kirkmen were concerned; and such also seems the construction applicable to the clause in the Act 1609, c. 8, referring to judges and advocates, which is as personal to King James as the subsequent clause referring to kirkmen.

"The Act 1633, c. 3, enacts, 'Remembering that in the Act of Parliament made in the year 1609, anent the apparrell of judges, magistrates, and kirkmen, it was agreed that what order soever his Majesties Father of blessed memorie should prescrive for the apparel of kirkmen, and send in writ to his Clerk of Register, should bee a sufficient warrant for inserting the same in the bookes of Parliament, to have the strength of an Act thereof, HAVE all consented that the same power shall remaine with the person of our Sovereigne Lord, and his successours that now is, and with the same clause for execution thereof, as in the said Act is contained.'

"The statutory authority-personal to James VI.-having expired, so far as regards Advocates, the question arises whether the Crown has any inherent right, independently of statute, to prescribe the professional robes of any of the members of the corporation. No such authority has ever hitherto been claimed; and the Acts 1455 and 1609 would have been unnecessary had it existed.

"The COURT have never interfered in any authoritative way with the costume of the Bar. The only notices that can be found of their attention being directed to the matter of robing, are the following. In the minutes of Faculty of 19th November 1675 there is this entry :-The Deane of Facultie having represented the inorderlie way which was used in ye Criminall Court and yat ye Lords recommended to the Advocats to appeir in yair gownes; which being considered, all Advocats wer desyred to appear in yr gowns.'

Again, in the Acts of Sederunt of 23d June 1750, there is a statement to the effect, that the Writers to the Signet desired to wear their gowns in the Session House, according to the ancient custom, if the Lords would approve of their so doing, to which the Lords made no objection.'

"The FACULTY again seem to have considered the matter either below or above their notice; for except the above order to appear in their gowns in the Justiciary

Court, and the motion about bands (which came to nothing), there does not occur in the minutes (which however only extend as far back as 1661) any entry relative to robing. The successive changes in the style of both wig and gown were probably only acquiesced in by the general mass of members, after an interval of years from their introduction. These changes were numerous. Bands have disappeared; and so have the full bottomed wigs, and the powder; and the professor's gown has come in place of the ornamented garment lined with fur, prescribed by King James, and represented in the above mentioned drawing; and lastly, the Solicitor-Generalapparently by no warrant but from himself-assumed a silk gown.

"It is probable that the reason why the Crown has not exercised the same direct interference with the Scots, as it has done with the English Bar, is, that the Court of Session is a Court created by statute, which defines its constitution and powers. In this respect it differs from the English Courts. The Queen's Bench is a Court in which the Sovereign was formerly accustomed to sit in person, on which account it was moved with the royal household; and the Committee understand that the Exchequer and Common Pleas also derive their origin from royal, and not parliamentary authority. It is obvious that the power of the Crown would be more direct and influential in the arrangement of such Courts, than it could be, with reference to a statutory Court like the Court of Session."

The Month.

Report of the Digest of Law Commission.-The Royal Commission on the Digest of Law for England has presented its first report. It is not a valuable or instructive document. It informs us that the statutes are contained in 45 volumes, and that the judicial decisions occupy upwards of 1,300 volumes, comprising as they estimate nearly 100,000 cases, exclusive of about 150 volumes of Irish Reports. The only passage of interest in the first part of the report is that which states the sense in which the Commissioners understand the word Digest to be used in their Commission, viz.: "a condensed suminary of the law as it exists, arranged in systematic order, under appropriate titles and subdivisions, and divided into distinct articles or proportions, which would be supported by references to the sources of law whence they were severally derived, and might be illustrated by citations of the principal instances in which the rules stated had been illustrated or applied." They enlarge on the advantages of a Digest, and add; "the persons charged with the framing of the Digest, might also be entrusted with the duty of pointing out, from time to time, the conflicts, anomalies, and doubts, which in the course of their labours would appear. Thus the process of constructing the Digest would be conducive to valuable amendments of the law. Those amendments would be embodied in the Digest in their proper places. Moreover such a digest would be the best preparation for a code, if at any future time codification of the law should be resolved on." Having arrived at this general, and, we imagine, foregone conclusion, the Commissioners proceed to give their views as to the construction of a Digest. They say, "it is obvious that, whatever arrangement is adopted, a certain number of

functionaries must be employed, at a high remuneration, in the capacity of Commissioners, assistant Commissioners, or secretaries, and that there must be a considerable expenditure on the services of members of the legal profession, employed from time to time in the preparation of the materials to be ultimately moulded into form. by or under the immediate supervision of the Commission or responsible body." They recommend, however, that "a portion of the Digest, sufficient in extent to be a fair specimen of the whole, should be in the first instance prepared," as an experiment, and that powers should be conferred on themselves to carry this recommendation into effect. If the country approves they could then proceed further. The Spectator remarks, "That scheme would give us a Digest in the year 2067. If the Government really want a Digest, let them give Lord Westbury, Mr Low, and Mr Maine an engagement to pay them L.60,000 when it is completed. The Digest would be ready in three years, and would be nearly as good as a Code."

The Liability of a Master for the Fault of a Foreman.-The first Division of the Court of Session has decided in the case of Wilson v. Merry and Cunningham, May 31, the broad principle that a foreman is a fellow servant; thus bringing the law of Scotland into unison with that of England, as stated in the late case of Feltham v. England. It does not appear how far this decision will be held as conflicting with or overruling various judgments tempore Colonsay, which distinguish a servant with very large powers, amounting to general superintendence, from an ordinary foreman. See Journal of Jur. for April last.

The Summary Procedure Act.-The present Lord Justice-General has never been timid in expressing his opinions on points of law, and we are indebted to him for many important views and lucid expositions which some judges would have kept to themselves as "being unnecessary for the decision of the question before them." We confess that it seems to us more in harmony with the duty of the judge to explain the law when called upon to do so by a combination of facts which really raise a point, than to try every possible way of escaping from the decision of a principle, and to make a judgment depend on a specialty or a technicality. We do not know of any case in which the moral courage of the Court under the inspiriting guidance of the Lord Justice-General has conferred a greater benefit on the public than in its recent decision in Halliday v. Bathgate (High Court, May 31). It had been supposed for some time that the Summary Procedure Act 27 and 28 Vict. c. 53, which provides in sec. 16 that "it shall not be necessary in any procedure under the anthority of this Act to record or to preserve a note of the evidence adduced," rendered it impossible to exercise the right which every man possesses at common law of having a sentence pronounced against him by an inferior Magistrate reviewed by the Supreme Courts of the land. This opinion had even received support from observations uttered on the bench. In the case referred to the suspen