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

James Greenshields and the House of Lords 121
Lords for remead of law to the British Parliament ... I have marked no less than
ten protests this winter session; they are turned more frequent and numerous since
the Union then [sic] they were before, though access now is both more difficult and
expensive than the discussing them before our own parliaments were. The reason
may be, 1st to concuss the victor to a composition rather than undertake a tedious
uncertain journey to London; 2do they have this advantage now, that how soon it
is tabled in the House of Peers, all execution is stopt, whereas with us they were
not suspensive of the sentence, but only devolutive.
By the following year, Fountainhall was even more concerned. He noted
thirteen cases in his entry for 29 February 1712 and said 'by this number
of appeals, we see they increase every year to the great impoverishing and
detriment of this nation'. 43
Yet if Scottish appeals were becoming more popular and widely-used, why
would the record of an important one such as Greenshields seem to be lost?
In the first place, the decision was reduced in value after 1715 and more so in
the decline of the Jacobite cause after 1746. The result of the rebellions was a
sharp reduction in the number of Episcopal ministers and a dramatic increase
in the level of their political reliability. In the second place, disputes within
the kirk assumed a far greater importance than fears of prelacy and prayer
books. Where Greenshields was remembered, it was as a decision relating to
church censure. 44
However, Greenshields was not included in Lord Kames' Dictionary of
Decisions in 1741. When Lord Swinton made a collection of appeal cases based
on the House of Lords Journals (1708-73), he too omitted Greenshields.
Finally in the works of solicitors or writers such as George Urquhart and
Thomas Smith there was no mention of Greenshields, although both authors
presented elaborate discussions and ample citations on appellate procedure. 45
The recovery of the Greenshields case coincided with yet another link
between the English and Scottish systems. By the end of the eighteenth
century, the number of Scottish appeals had grown dramatically. Moreover,
the Union of 1801 brought Irish appeals back to the House of Lords. Over
the next few years growing numbers, and a lop-sided Scottish majority, caused
attention to be turned to reform of the process. The House had already added
many days of hearings, so the next logical site for reform was the Court of
Session. These efforts culminated in an Act in 1808.
One of the products of this renewed interest was the collection of appeal
cases by David Robertson, a barrister of the Middle Temple. Robertson's
work covered only 1707-27. Greenshields appeared in the collection as
43 Fountainhall, ii, 734.
44 See an incomplete 'Table to the Most Remarkable Points in printed cases upon appeals to the
House of Lords since 1701 [sic]' composed in the 1730s, under 'appeals', National Library of Scotland,
Adv. MS 28.3.3.
45 Kames, Dictionary of Decisions (1741); Swinton, Collection (printed in Morison, Dictionary
of Decisions: Supplemental Volume (Edinburgh, 1815), separately paginated); G. Urquhart, The
Experienced Solicitor (Edinburgh, 1773); T. Smith, Forms of Procedure (Edinburgh, 1821).