Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

116 Legal History in the Making
all orders, but at this point the distinction may have prompted caution or
confusion. 27 There may be no way to rank these explanations, but it should be
noted that even the title of the case obscures the role of the Court of Session:
Greenshields v. Provost and Magistrates of Edinburgh.
The main point in our context is that the issue seen by modern citators
is very hard to locate in the sources and may be non-existent. Yet the
case had great significance for Anglo-Scottish legal relations, if not in
the way we have been told. We can better appreciate that significance
when we look at the aftermath of the case, when some surprising things
happened.
There was a uniformly negative reaction to the judgement in Scotland. The
Presbytery of Edinburgh appointed a committee to respond. It drafted a
letter to the Secretary of State to protest at what were called 'judicatories
cloathed with any supream power' and it voiced the fear of 'a design to
restore patronages which would be attended with the greatest disorders in
this church'. 28 On the civil magistrates' side, there were continued arrests
of Episcopal clergy. One pamphlet of 1711 reported at least half a dozen
cases, in Aberdeen, Perth, Crail, St. Andrews and Orkney. 29 The author
accused the Lord Advocate (James Stewart) of persecuting them 'with
all the violence in his power' in spite of the Lords' verdict. He further
charged that in November the Lord Advocate ordered the Provost to
close all meeting-houses, which the latter refused to do without a royal
command.
The reaction of the Court of Session was much less obvious. There is no
record or report or other acknowledgement of the case after the two entries
in Fountainhall under 1709. The other contemporary reporters, Forbes and
Dalrymple, make no mention of Greenshields. Indeed, appeals to the House
of Lords were not well reported at this stage. David Robertson, the leading
student of this early period, wrote that: 30
Questions decided on appeal, after the time of the Union, though they excited
attention, do not seem at first to have been more regarded as precedents, than
the Questions appealed in the Parliament of Scotland had before been.
However important those older appeals had been, under the new regime a
new range of problems appeared. Robertson described the records of early
appeals in the following terms: 31
27 See Maurice Bond, Guide to the Records of Parliament, 114: 'At first Scottish appeals were
received from final decrees only, and it was not until 1726 that H.L. began to hear also appeals
against interlocutory orders'.
28 Minutes of 25 March 1711 (S.R.O., CH 2/121/8, 32).
29 A Letter from a Gentleman in Edinburgh to his Friend in London, giving an Account of the Present
Proceedings against the Episcopal Clergy in Scotland for using the English Lyturgy There (1711).
30 Reports of Cases on Appeal from Scotland, xv.
31 Ibid., xvi-xvii.