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

120 Legal History in the Making
Kirk was 'a parish church or part of the parish church of Elgin'. The arguments
on this point dealt with both the physical position of the chapel and with its
past usage. The Court of Session held that the Little Kirk was a part of the
parish church, and the Lords of Justiciary held for the Presbyterian ministers
that this was an intrusion and subject to an award of damages.
The magistrates appealed both the orders of Session and Justiciary to the
House of Lords. The appellants argued that the Session decree was incorrect,
namely that the chapel had been separate for thirty years and that the Lords
of Justiciary had given them no chance to answer the decree. The respondent
ministers relied on the original construction plan for the cathedral and on the
evidence of the use of the space as an annex to the parish church. The peers: 40
. . . ordered and adudged that the said appellants be quieted in the possession of
the Little Church in Elgin it being no part of the Parish Church; and that the said
respondents do repay to the said appellants the costs and fine adjudged by the said
Lords of Justiciary to the said respondents.
The Elgin decision turned out to be a unique example of a successful appeal
of a justiciary ruling. What it shows in our context is the continuing power of
the elements present in the Greenshields case. Given time, those elements
might have produced an appellate power over the High Court of Justiciary,
for it is likely that such appeals were considered 'legal' in the early eighteenth
century. But the circumstances changed dramatically in 1715. Criminal appeal
did not thrive thereafter, but civil appeals continued to grow.
The number of Scottish appeals, especially from the Court of Session, grew
steadily in the eighteenth century. Even so, the Greenshields case slipped into
obscurity during the same period of time. The loss and recovery of the case
offer an instructive conclusion to our study.
Judging from the manuscripts of the House of Lords, appeals increased at a
modest rate at first. Between 1708 and 1714 there were 144 appeals in all: 41
1708-1710 1710-1712 1712-1714
English 22 31 30
Scottish 6 14 18
Irish 7 6 10
The Scottish appeals clearly showed the most rapid growth, and Fountainhall's
explanation has been followed by most writers. In February 1711, on the eve
of the Greenshields decision, he wrote: 42
Towards the end of this session there were sundry more appeals given in to the
40 Rob. 74-75.
41 The Manuscripts of the House of Lords, N.S., viii-x. The English figures do not include writs of
error.
42 Fountainhall, ii, 643.