we see no other specimen in the treatise before us, it is satisfactory to be able to say that the task which Mr Nicolson proposed to himself of assisting the legal profession and the public to understand the "Debts Recovery Act" has been thoroughly well done. We can have no doubt that this manual will of necessity find its way into the hands of all Sheriff court practitioners. Its value will not be diminished in their eyes by the fact mentioned in the prefatory note, that in its preparation the author was assisted by an experienced Sheriff-clerk-depute in one of the largest counties. Would it not be well that gentlemen of such practical experience as Sheriff-clerks and their principal deputies should be called in to render assistance not only at the compilation of digests, but at the framing of enactments of the class to which the Debts Recovery Act belongs?

The Parliament-House Book for 1867-68. Compiled by WILLIAM BURNESS, Printer, Edinburgh. Forty-third Edition. Edinburgh: William Burness, 2 North St. Andrew Street.

This useful serial is distinguished this year by a complete revision of the Digest of Outer House practice, in which the statutory provisions are now arranged in alphabetical order under the appropriate heads. New cases of practice are carefully noted, and the practical statutes of the year are added-viz., the Debts Recovery and Trusts Acts. We observe also that the important new provisions as to stamps on insurances are carefully inserted. Altogether it is as complete a lawyer's diary and vade mecum as could be wished for.

The Month.

The Court of Session has resumed the labours of the Winter Session. The principal effort of the judges will be no doubt to reduce the heavy list of arrears on the Ordinary Rolls of the Divisions. The Summar Rolls were reduced to proper dimensions last summer. Much time is still wasted by the practice of stopping the Second Division and bringing Lord Barcaple from his own Court to make up a bench of nine judges for the ostentatious mummery of the Teind Court. In January last, we called attention to the fact that the cessation of the business of two of these Courts was quite needless, as the quorum of five in the Teind Court can be made up by calling one judge from the Second Division, leaving a quorum there to proceed with its proper business, and leaving Lord Barcaple a few hours more for the heavy work of his own Court. Another obstruction has been caused by the hearing, before the whole Court, of a company case of no very extraordinary importance for more

VOL. XI. NO. CXXXII.-DECEMBER 1867.

2 Q

than the half of four working days. When an English journal can draw the contrast between the work done by the Courts on the north and those on the south of the Tweed which we quote elsewhere, it is unfortunate, if not reprehensible, that the short time devoted to the judicial work of the Court of Session should be curtailed, without the strongest necessity. In the present head of the Court we have a man not merely of the strongest intellect and most extensive legal acquirements, but one who has proved himself a most enlightened law reformer and most capable administrator. Surely such improvements as are within the competency of the Court itself and there are many such-need only to be brought under his notice to receive the encouragement and furtherance of his influence.

Introductory Addresses.-Lord Ormidale and the Dean of Faculty. The address of Lord Ormidale, delivered to the Juridical Society of Edinburgh, has excited various emotions in the breasts of lawyers. Some, who are, from circumstances or from constitution, averse to change, shudder at the very idea of a judge standing up before the public and announcing as a fact that "the discontent and dissatisfaction arising from the great expense, delay, and uncertainty attending the administration of justice" in the Court of which he is a member, "amount to a public scandal." The learned and excellent judge who presides over one division of the Supreme Court, and who was present during the delivery of the address, expressed at the close his dissent from some of the views enunciated; but, if rumour is to be believed, some would have had him take the far stronger measure of rising and leaving the room when this revolutionary and almost blasphemous sentence was uttered. The Lord Justice Clerk, however, is a high-spirited and a liberal-minded gentleman; who, while ready himself to defend his honest opinions, would not restrain or resent the free utterance by others of theirs.

We have no sympathy with the outery which has been raised in legal coteries, because Lord Ormidale has spoken his mind as to the judicial machinery which he is employed in working. We differ, perhaps as widely as any of his detractors, from most of the views which he states and the remedies he proposes; but we think him well entitled to the honour and credit of courageously attacking a huge evil. People say it is not decent that a judge should point out the defects of any part of the system of law which he administers. But this we conceive is an old world notion, that a judge should be shut out from the privilege of a man to take a part in anything that is for the good of the public. Whenever, as in this case, efforts from without fail to effect a reform because of the number and power of opposing vested interests, it seems to us not merely the right but the absolute duty of those whose position gives them knowledge of the evil and power to awaken attention to it, that they should give the public the benefit of that knowledge and power. To prohibit a judge from pointing

out the short-comings either of the law or of the courts, would be as absurd as it would be to forbid the ministers of the Crown to suggest reforms in the state, or the engineer of a steamer to point out a defect in his engines till the boiler bursts and the ship and all its passengers are blown into the air.

That loud complaints of delay and expense, if not of uncertainty, have been made against the Court of Session from every corner of the land, only a very bold or a very ignorant man can deny. That repeated exposures have been made and discussion after discussion raised, always in vain, is in the knowledge of every one of our readers. And but three years have passed since Lord Advocate Moncrieff, with much courage and no success, introduced a bill into parliament for the radical reform of the system of pleading in the Court of Session. It is also undeniable that the most conflicting opinions are entertained as to the cause of the deficiencies complained of in our judicial system and the appropriate remedy. All these things seem to justify us in asking for light even from oracles so seldom audible as lords of session.

The intervention of a judge is therefore peculiarly appropriate in this case, not only because of his special knowledge of the subject matter, but also and chiefly because, whether he advise rightly or wrongly, his summons to set the house in order may perhaps be attended to when the warnings of smaller persons would be disregarded, and when even the well-intended efforts of a liberal Lord Advocate have failed.

*

No one

We cannot at present enter fully on the merits of the subject which Lord Ormidale has presented for discussion. A more suitable opportunity for doing so will occur at the beginning of a new volume, when we hope to address a much larger audience on a subject of such importance as already to have called forth the comments of the London press. In the meantime, we recommend the address of the learned judge to the careful consideration of our readers, only pointing out that it fails to supply the great want in any movement for reform of the Court of Session-motive power. who has lived a few years in Edinburgh can fail to discover the extraordinary sanctity with which many inhabitants of that city strive to invest the judicial institutions by which they live. It is something gained that this imaginary sanctity should be dispelled, and the naked deformity of the idol unveiled by one of the highpriests of the shrine. But we wish that Lord Ormidale had pointed out how to interest the public at large, and especially the legal profession in the country, in the well-being of the Court of Session. At present, with the exception of a small and select body of litigants whose suits by various reasons are excluded from the Sheriff Courts, and a few close corporations in Edinburgh, no one is interested in the Court. In England it is quite different. An attorney in the * In another article we offer some notes on points in the address of Lord Ormidale, and the article of an English critic in the Pall Mall Gazette.

remotest village of Cornwall or Northumberland may conduct an action. for his client in the Courts of Westminster. In Scotland every man who has not an Edinburgh agent is guided by the advice of a lawyer, whose interest it is to dissuade him from litigating in the Court of Session, because he is not allowed any payment for the trouble he may be put to in such a law-suit. The decisions of the Court and the rules of auditing, framed as they very properly are with the view of preventing suitors from being saddled with the costs of two agents, often operate very harshly against country agents who may have taken pains in the preparation of a case. We are strongly impressed with the opinion that a thorough reform of the Court of Session, in whatever way it is to be effected, must either follow or accompany a measure revising the Procurators' Act, and conferring on all the procurators of Scotland the right to conduct their clients' cases in the Supreme Court. This most needful reform could be effected, we believe, by an Act of Sederunt, for the monopoly of the bodies now practising as agents in the Supreme Courts, flows, so far as we are aware, from no higher source. It is to be feared, however, that such an exercise of the inherent power of the Court can hardly be hoped for. It would offend too many deeply-rooted prejudices and clash with too many fancied interests. We are convinced, however, that it would in no way affect the real interests of the highly respectable and most useful corporations now practising as agents in the Supreme Courts, which will always, by their high education and character, and the prestige which their membership necessarily confers, maintain a high and advantageous position in the legal profession As in England at present, few country lawyers would think, even if they had the right to conduct a cause without an Edinburgh agent, of coming to Edinburgh to attend to a case, except sometimes at an important hearing. They would employ their Edinburgh correspondents, who would have to surrender so much of the fees as are really earned by the country agents, but would be much more than reimbursed by the enormous influx of business produced by the revival of free trade and general confidence. This question, however, is too large and too much involved in details to be discussed in this incidental manner; but it appears to be so vitally connected with the question of reform of the Court of Session, that we cannot refrain from calling attention to it.

The singularity of the circumstances and the magnitude of the subject have compelled our attention to the address of Lord Ormidale, with only one sentence of which we can thoroughly agree. We turn with pleasure to the address of Dean of Faculty Moncrieff to the Scots Law Society, a speech pervaded by even more than the great orator's accustomed grace and power, and full of wise counsel and condensed wisdom. Of many passages which we would gladly transfer to our pages, we have room for only two.

THE HOUSE.OF LORDS AS A SCOTCH COURT OF APPEAL. "It is not wonderful that, take it all in all, Scotland has derived many advan

tages from its labours. But while all this is no more than the truth, our gain would be all the greater if the conviction were more constantly present to the appellate mind, that in these cases it is the law of Scotland only which the House is called on to administer, and that the law of England is at almost every turn not only not identical with but repugnant to it. I remember a distinguished friend of mine at our bar examining a witness in a right of way case who had spoken to a ticket put on the disputed road with the words 'No road this way.' 'But,' asked my friend of the wisness, 'Did you ever know that done when there was not a road that way?' So I never hear the too familiar formula in those august precincts, the law of England is so and so, and we are not satisfied that the law of Scotland is otherwise," without being sure that there was no road that way; and that if the law of England pointed in one direction, the chances were very great that the law of Scotland lay in another. So different is the law of England in its spirit and essence-as in the whole law of contract, for instance that it is quite as likely to mislead as to lead; and an English lawyer should never approach the solution of a question in Scottish jurisprudence without bearing this clearly in mind. Sometimes, also, the English analogy itself plays false to the judicial mind, even in those exalted regions, spreading confusion and dismay in the Parliament House. A striking and instructive instance of this occurred in the well-known case of Duncan and Findlater, as to the liability of trust funds for the consequence of accidents caused by the negligence of trustees. Following the principles and authorities of the law of Scotland, the Court of Session held that the trust funds were liable; but their views were overturned in the House of Lords on the analogous rules of the law of England, and much grave ridicule and sharp remark was directed against the erroneous opinions of the Court below. But the Court of Session has been amply avenged, for little more than a year ago up rose Lord Westbury in the House of Lords, and ruled conclusively that the learned Lords in the case of Duncan and Findlater had altogether misapprehended the law of England-that the Court of Session was right, and that they had decided in conformity with what the law of England was and always had been. Meanwhile, for twenty years our Courts have been administering, under the highest authority, the suppositious law of England, which thus supplanted our own; and even now, as the case I last referred to was an English one, we have not been informed by any judicial tribunal that this law is wrong, and are still bound, I presume, to continue in our course of error. All this confusion would never have arisen had the House of Lords, in the first instance, judged of the case, not on English analogies, but on the authority of the law of Scotland. Probably this and other anomalies would have been prevented had we sooner had the advantage, which, I am happy to say, we now possess, of having a distinguished, and well-trained, and thorough Scotch lawyer sitting in the Upper House. Scotland expected much when Lord Colonsay was promoted to the Upper House; and great as the expectations were, I am confident they will not be disappointed."

The observations which follow on the art of forensic oratory might be useful to others than the juniors to whom they were addressed.

MODERN FORENSIC ORATORY.

"Mere fluency, although an important, is very far from being the most important, quality of a pleader. The easy command of appropriate language is no doubt a material attainment, and is necessary to excellence. But the easy command of language, whether appropriate or not, is perhaps one of the greatest snares which can beset a pleader at the outset of his career. The man whose thoughts outrun his power of expression often chains and rivets the attention. The bright, clear intellect, even when struggling through a misty veil of confused utterance, communicates, by a secret influence, with his audience. But a man whose power of expression outruns his thoughts, never can convince. The words are only convincing as they are the envoys of the mind within: and when they throw off restraint and discipline, they become a rabble without a leader. Any one who ever heard the late Mr Jameson plead at the bar will recall a very striking illustration of what I say. He was not a fluent speaker; on the contrary, his words seemed to flow at first with difficulty and labour. They came more readily as he proceeded, but to the end they came with hesitation. But he was a most convincing, sometimes an entrancing pleader. So close was the chain of logic, so transparent his statement, so thorough