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

James Greenshields and the House of Lords: A Reappraisal 113
Wrongous Imprisonment. 14 The magistrates answered that his orders were
invalid and called him a'lay-man' and 'a Landloper from Ireland, pretending
to be a lawful minister'. 15 The full bench of the Court of Session ruled against
him on 8 November. Then Greenshields put in a reclaiming petition arguing
that his ordination was a new issue, not raised initially by the Presbytery.
This was also rejected and Greenshields presented his 'protest for remeid of
law' on 30 December. The 'protest' had a superficial resemblance to the old
form of appeal to the Scottish Parliament before 1707, although by 1709 the
newer Scottish appeals were beginning to adopt English features. 16 This was
the seventh case to go up since the Union; only nine months earlier, the first
instance of a reversal of the Court of Session had occurred. 17
The Greenshields petition came up in the House of Lords in February 1710.
There was a considerable amount of interest for such an early stage of an
appeal. The motion to send for the proceedings prompted an amendment to
call for transcripts of all orders and for the personal attendance of Greenshields
and some of the magistrates. This in turn produced a division, in which those
seeking the added testimony lost and then lodged a formal protest. 18 A second
motion was then debated, and the House voted to hear the case upon receipt
of the documents. On 17 March the House decided that the case would be
taken up 'as soon as the proceedings on the impeachment of Dr. Sacheverell
now depending are finished'. The formal receipt of the Greenshields petition
was recorded on 25 March, and the respondents were ordered to answer by
the opening of the next session. In addition, the order of the House said that
counsel for the respondents 'shall be at liberty, upon the hearing of this cause,
to argue, in the first place, whether the said appeal be regularly and properly
before this house, or not'. 19
The hearing was delayed for nearly a year, first for the conclusion of
14 The text of the Bill was printed in The Case of Mr. Greenshields, 9-12. In an earlier case, one
Adam Peacock was arrested in Stirling in 1704 for intruding into the parish church, being under a
sentence of deprivation by the General Assembly. Peacock raised a process under the Act of 1701 which
failed in part because of the exception in the Act allowing magistrates 'to imprisone parties disobedient
and contumacious to church censures' so long as they had the chance to make bail or demand a speedy
trial. According to Fountainhall, Peacock's was 'the first [case] raised upon that new act of parliament',
Fountainhall, ii, 209; Mor. 17065.
15 Ibid., 52.
16 As David Robertson pointed out a century later: 'They were still in Scotland stiled Protestations for
remeid of Law. In Appeals brought after the Union, the form previously used in Appeals from Courts of
Equity in England had apparently been adopted: But the old form of taking a Protest against the decision
of the court, and declaring the grounds of Appeal by an instrument under the hand of a Notary Publick
was continued for a considerable period after the Union. When the effect of an order of the House of
Lords upon a Petition of Appeal came to be generally understood, the Protestations for remeid of Law
were gradually discontinued, and for many years have been wholly left off, Reports of Cases on Appeal
from Scotland (1807), xiv-xv.
17 The reversal was in Gray v. Hamilton, in The Manuscripts of the House of Lords, vii, cit. sup. n.2,
12; and Robertson, Reports of Cases on Appeal, 1.
18 H[ouse of] L[ords] J[ournals], xix, 68.
19 H.L.J.,xix, 127.