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

114 Legal History in the Making
the Sacheverell case, then for the dissolution and new election, after
which parliament reconvened in November 1710. The Edinburgh magistrates
procrastinated and did not answer the Greenshields petition for about ten
months. 20 Greenshields used the interval more productively and cultivated his
contact with Bishop Nicolson of Carlisle. During a September visit, Nicolson
wrote a testimonial for the curate to take to the archbishop of Canterbury: 21
The bearer is Mr. James Greenshields of whose late sufferings at Edinburgh yr
Lordship has already heard a great deal, and will shortly hear much more. His
case is widely different from that of a daring and seditious incendiary, as it has
been industriously represented by some of his countrymen . . .
I have convers'd with the gentleman for almost a week together, and I cannot find
but that he's a person of great modesty & humility notwithstanding the temptation
he is under of boasting: and that both the man himself and his cause have a just title
to our compassion. I doubt not but that you will be of the same sentiments.
Greenshields delivered this letter to Archbishop Tenison, and when
Nicolson came to London to attend the House of Lords in December, the
Scot was there to meet him. Nicolson's London diaries show that the two
worked closely on the case, meeting at least twenty-two times in the three
months before the hearing. Nicolson wrote in his diary on 27 February: 22
. . . there being then with me Lord Summers, Lord Cowper and the Bishops of
Bangor, Lincoln and Norwich, consulting on the case of Greenshields; which is to
be restrained to the civil part, without touching on the Authority of the Kirk.
This was a vital tactical decision. It probably secured the reversal by
diminishing the threat to the kirk. Ironically, the decision did not produce
meaningful discussion of the role of the Lords in reviewing judgements of the
Court of Session.
The first aspect became clear when the magistrates' counsel Peter King tried
to raise the issue of church court jurisdiction in the first stage of the hearing.
King said: 23
The Presbytery was only a subordinate ecclesiastic judicatory, from which appeals in
course lie to the superior judicatories of the provincial synod and general assembly;
and if the appellant thought himself grieved by the sentence of the Presbytery, and
omitted this known and proper remedy, he could not in law, or good order, appeal
from the Presbytery to the Lords.
Moreover, King pointed out that:
No proper defenders or contradictors were summoned or called, and the Presbytery's
sentence could not be reviewed, unless they themselves were called to
20
The Manuscripts of the House of Lords, viii, cit. sup. n.2, 358, under 10 Jan. 1711.
21
British Library, Add. MS 6116, fo.26.
22
The London Diaries of William Nicolson, Bishop of Carlisle, 1702-1718, Gyve Jones and
Geoffrey Holmes, ed. (1985), 551.
23 Colles, 430;E.R.,i, 357.