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

110 Legal History in the Making
against, from such time, [may] not be carried on into execution by any process
whatsoever'. 2
Just about the time of this ruling, James Greenshields was opening his first
meeting house in Edinburgh. Whatever he may have done there, he certainly
was too late to inaugurate Scottish appeals. 3
Greenshields was imprisoned in September 1709 for conducting divine worship
without the authority of the Presbytery of Edinburgh and in violation of an
order from the Provost and Magistrates. He presented a bill of suspension
to the Court of Session which was refused in November. Greenshields then
presented a reclaiming petition which was also refused, and at the end of
December he sent 'a protest for remeid of law' to the queen and the
House of Lords. 4 His appeal reached the House in February 1710 and it
was formally received on 25 March. The hearing however was not until 1
March 1711.
Greenshields' offence was only unique in his willingness, even eagerness,
to be convicted. There was no law of uniformity in Scotland. A majority of
Episcopalians in 1689 was probably reduced to a large minority by 1707. In that
year Daniel Defoe published a list of 160 Episcopal ministers 'who have not
complyed with the present church government of Scotland'. He also counted
at least fifteen meeting-houses in Edinburgh alone. 5 In 1711 an anonymous
observer listed 113 Episcopal ministers 'who enjoy churches or benefices in
Scotland'. 6 According to contemporaries, the English liturgy was used in many
of the churches and meeting houses.
The lack of legislated uniformity and the divisions in Scottish society in the
early eighteenth century help to explain the nervousness of the officers of
the established Presbyterian church and the civil magistrates. Any of their
2 The early attempts are noted in Fountainhall, ii, 367-68; the first hearing (Rosebery v. Inglis)
is printed in The Manuscripts of the House of Lords, N.S., vii (1921), 554 and the ruling in Brand v.
Mackenzie is in The Manuscripts of the House of Lords, N.S., viii (rptd. 1966), 273.
3 The most thorough recent study of the origin of Scottish appeals to the House of Lords does not
even mention Greenshields, which omission is entirely correct, A.J. MacLean, 'The 1707 Union: Scots
Law and the House of Lords', Journal of Legal History, iv, no.3 (1983), 50 reprinted in New Perspectives
in Scottish Legal History, A.J. Kiralfy and H. MacQueen, ed. (1984), 50. The same author does deal
summarily with Greenshields, and deny its priority, in 'The House of Lords and Appeals from the High
Court of Justiciary, 1707-1887', Jurid. Rev., N.S., xxx (1985), 195.
4 Fountainhall, ii, 523. The records of the Court of Session are curiously silent on the case. The entry
books have a gap from July 1708 to June 1710 (Scottish] R[ecord] O[ffice], CS 16/1/46 and CS/1/47).
The Clerks' Minute Books fail to supply the deficiency (CS 47, 50, 53, 59, 62, 71, 74, 77 and 80).
5 An Historical Account of the Bitter Sufferings and Melancholy Circumstances of the Episcopal
Church in Scotland, under the Barbarous Usage and Bloody Persecution of the Presbyterian Church
Government. . . (1707), 26 ff.
6 The Case of Mr. Greenshields, as it was printed in London, with remarks upon the same; and copies
of the original papers relating to that affair . . . (1710), 59-60. An excellent portrait of Greenshields'
colleagues is in Bruce Lenman, 'The Scottish Episcopal Clergy and the Ideology of Jacobitism', Ideology
and Conspiracy: Aspects of Jacobitism, 1689-1759, Eveline Cruickshanks, ed. (1982), 36-48.