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The History and Function of Session Papers

As they are understood by legal scholars, Court of Session Papers, henceforth Session Papers, comprise written pleadings composed between c.1710 and 1850, mostly (if not exclusively) by Advocates, for cases before the judges of the Inner House of the Court of Session in Edinburgh. The Inner House dealt with the most important cases, a panel of judges considering the arguments and then voting a decision. Because the decision in each case was decided by a vote, there was no clear set of reasons behind each decision that could be recorded. The legal arguments put in front of the judges by the Advocates in the Session Papers are therefore vital to understanding what may have driven a decision as they form practically the only evidence of the issues as considered by the judges. 

Session Papers consisted of statements of the claims or defences in a case, accompanied by supporting facts. Alongside the statements and facts would be arguments about the facts, and about the law pertaining to them, using citations of precedent and legal authorities. Session Papers came in many forms - petitions, answers, memorials, informations and more, and could be accompanied by maps - often of great craft and beauty - transcribed letters, drawings, plans, charts and witness statements. 

With more than two millennia of thought behind it, nevertheless each individual Session Paper was produced in an brief period of intense energy. An advocate would compose the initial paper against the deadline of his case coming to court, and then, leaving his house -which was most likely still at this stage to be a flat in a tenement block in Edinburgh’s Old Town - he would resort to a specialist printer known to its own workers as a Session House:

For nearly six months in the year, it is well known that the compositors employed in session-houses, are subject to irregular hours, and very extraordinary exertions, from the nature of that work: they are often for weeks together so emerged in business, as to render it impossible for them to procure, at an average, above four or six hours rest night or day, from their necessary avocations; liable to be raised all hours of the night, or, upon the other hand, after waiting on a whole day, work may come in the evening, which keeps them at labour perhaps the whole night, or at least, to a very early hour in the morning. [George and ors v Master Printers of Edinburgh [1804] Signet Library SP 225:19. Memorial, p.11]

The printing of Session Papers often kept the heavy manual presses at work all night. The judges, as William Forbes reported in 1705, would be the next to lose sleep: 

That they may have time to consider weighty cases maturely, they get them reduc’d into writ by the lawyers [advocates] ; and every Lord hath a box standing upon a table in the waiting room of the inner house from two til four in the afternoon, wherein all who have papers to offer may put them by a slit in the cover. This, tho’ a mighty advantage to the lieges, is of late, since informations and bills were allowed to be printed, become an incredible fatigue to the Lords: who, after toiling all day in hearing causes, are obliged to shut themselves up to peruse and consider a multiplicity of papers at night; and thereby often to want the necessary relaxation due to nature, which visibly shortens their days. [William Forbes, Journal of the Session. Containing the decisions of the Lords of Council..from February 1705, till November 1713. Preface, p.X]

The case would then be heard in the Inner House. Forbes again: 

The Place where our Session is held, thence called the Session House, and commonly the Parliament House, because the Parliament of Scotland did sit there, is a noble fabrick, consisting of an Inner and Outer House. The Inner House is a large square room to which the Lords enter through a waiting Room on the north side, where they put on their robes… The Lords sit in the inner-house in a body, at a semi-circular bench, in the fashion of an amphitheatre… [William Forbes, Journal of the Session. Containing the decisions of the Lords of Council..from February 1705, till November 1713. Preface, p.ii]

The successive Session Court reforms of 1808 and 1850 brought to an end the tradition of written pleadings as it had been known. This did not end the reference use of collections of Session Papers, and indeed there are lawyers working today who are conscious of the existence within Session Papers of lines of argument and bodies of evidence that retain relevance and purpose in the modern world. Nevertheless, the arrival of modern, widely available law reports capable of accurate citation, and the efforts of the likes of William Morison and others to compile pre-reform court decisions in workable reference dictionaries and indexes effectively ended the role of Session Papers as the chief repository of court memory and precedent.