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Chapter 8
James Greenshields and the House of Lords:
A Reappraisal
Richard S. Tompson
The Greenshields case is a paradox in Anglo-Scottish legal history. Most
modern citations tell us that the case established Scottish appeals to the
House of Lords. That can be disproven by a review of the chronology
of appeals. Yet when we look closely at the case, its aftermath and its
subsequent interpretation there is actually more to be learned about the
connections between the English and Scottish legal systems than the older
view appeared to tell us.
This essay has four parts: the first is a correction of the conventional view;
the second is a description of the case (1709-11); the third is a study of
the surprising aftermath (1711-14); and the fourth is a sketch of how
Greenshields disappeared from legal memory in the eighteenth century, and
how it reappeared and was reinterpreted in the nineteenth and twentieth
centuries.
First, the modern citations. A number of authoritative works tell the same
story. Maurice Bond, in introducing volume nine of The Manuscripts of the
House of Lords, said the case 'set the precedent of appeals from Scotland
to the House'. In The Oxford Companion to Law, Professor Walker said it
'established the right of the House of Lords to hear appeals from the Court
of Session'. Similar assessments appear in the leading modern texts. 1
The correction is not too difficult. Scottish appeals were attempted as early
as 1707. The first one heard by the House of Lords was in February 1708, and
the peers made their first order on Scottish appeal procedure in April 1709.
In the case of Brand v. Mackenzie the House ordered that upon receipt of
an appeal 'from any decree given or pronounced in any court in Scotland',
after a respondent had been served notice 'the sentence or decree so appealed
1 The Oxford Companion to Law (1980), 540; The Manuscripts of the House of Lords, N.S., ix
(rptd. 1965), xxii; see also J.H. Baker, An Introduction to English Legal History, 2nd ed. (1979),
32; D.M. Walker, The Scottish Legal System, 5th ed. (Edinburgh, 1981), 127-28; Enid Marshall,
General Principles of Scots Law, 4th ed. (Edinburgh, 1982), 32. For other recent references, see below,
nn.50-54. Baker omits the reference in his third edition (1990).