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

James Greenshields and the House of Lords 117
Many cases have been appealed which are not to be found among the decisions of
the Court of Session hitherto published. In sundry instances, also, where Judgments
of the Court of Session have been reversed in parliament, the original decisions
still remain as precedents (and these in some questions of much moment) in the
Collections of Decided Cases, in the Dictionary of Decisions, and in the works of
Law Writers of authority. The instances where such reversals are properly stated in
this period [1707-27] are so few as only to form exceptions to the general practice.
The same strictures were repeated and broadened by William Tait in the
notes to his index of the cases collected by Morison: 32
The protestations of the Scottish parliament for remeid of law, often mentioned in
FountainhalFs journal, are not referred to in the index, no procedure upon these
protestations having been preserved.
Tait added that when the Faculty Collection commenced in 1752 the almost
total neglect which the proceedings in appeals experienced from the reporters
of decisions has been succeeded by a regular, although inadequate, degree of
attention to the issue of the appeals of such cases as had been reported in the
collection.
Not only was there a blank in reporting and/or publishing. In the view
of at least one contemporary observer, Greenshields might be ignored by
practitioners. The anonymous author of A Seasonable Caution to the General
Assembly in 1711 pointed out the 'sovereign judicature' of the General
Assembly 'in which the queen being always present by her commissioner,
matters are determined without any appeal, except to the Bar of Heaven'. It
was therefore safe for Scottish advocates and magistrates to believe that: 33
The peers of Great Britain having considered the commitment of Greenshields and
reverst it does not at all disable and consequently ought not to discourage any
magistrate from acting in their station according to law; it only extends to this
particular case in which, whether some omission, some slip or some illegal step
has been made is not for me to examine here, their lordships not suffering their
proceedings to be printed or examined in print by anybody: but if in another case
which may come before them, such slip or omission or illegal step cannot be found,
such other case will receive no prejudice from this.
In short, this author was sure that Greenshields was no precedent. Those who
disagreed would find their job more difficult without printed reports of the
peers' proceedings. Such publication was discouraged by a Standing Order of
1698: 34
That it is a breach of the priviledge of this House for any person whatsoever to print
or publish in print any thing relating to the proceedings of this House without the
leave of this House.
32
Index to the Decisions of the Court of Session (Edinburgh, 1823), 528.
33
A Seasonable Caution, 5-6, 8.
34
The Manuscripts of the House of Lords, N.S., x (1953), 21.