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

122 Legal History in the Making
case number six. This was the first published version of the case since 1711,
but it was not followed by rapid entry of the case into wider legal reference.
When the case appeared in Kinnear's Digest of House of Lords Cases in 1865
it was under 'appeal (jurisdiction)' where it said that: 46
. . . appeal lay from an order of Court of Session refusing a suspension of a judgment
of the magistrates, and also from such judgment. . .
The next direct reference in a formal legal work was the entry in the Scots
Digest of Appeals in the House of Lords from 1707 and of Cases in the Supreme
Courts of Scotland which began appearing in four volumes from 1908. One of
the entries under 'Process - appeal' cited Greenshields this way:
In an appeal to the House of Lords from a sentence of imprisonment for breach
of an order of a presbytery, pronounced by the Magistrates of Edinburgh, and an
interlocutor of the Court of Session refusing a suspension of the same, an objection
to the competency of the appeal, in respect that it was in reality a direct appeal from
the presbytery's order, repelled.
In other words, the digest noted the argument of the respondents which was set
aside by the peers, but made no comment as to the impact on civil appeals.
As for the official record of the case, the documentary work of the Historical
Manuscripts Commission was launched in the last quarter of the nineteenth
century. Soon calendars of manuscripts such as those of the House of Lords
were being produced, but the volume with the Greenshields documents only
appeared in 1923. 47
Turning to the work of historians at the beginning of this century, William
Law Mathieson described the Greenshields case entirely as a part of the prayer
book controversy. Greenshields had 'set up a meeting house, in order, as he
himself explained, to see whether his political qualifications would protect him
in using the Book of Common Prayer'. 48 It is not clear where Greenshields
gave this explanation, but he probably knew that the protection would not
work, and that he could provoke a test case. Mathieson made no suggestion
that the case involved significant civil and constitutional questions. Peter
Hume Brown wrote soon afterward: 49
Here then was the jurisdiction of the church, supposed to be for ever safeguarded
by the union, set at naught in its prime concern. Henceforth the limits of that
jurisdiction would be determined not by the constitution of the National Church,
but by a House of Lords, of which Anglican bishops formed a component part.
46 J.B. Kinnear, Digest of House of Lords Cases on Appeal from Scotland, 1709-1864, (Edinburgh,
1865), 26; Shaw's Digest did not include the case because its coverage only began in 1726; the first
instalment of the Faculty Digest began with cases from 1868. The case was also passed over by Charles
Denison and Charles Scott in Procedures and Practice Relative to English, Scottish and Irish Appeals
(1879).
47 The Manuscripts of the House of Lords, N.S., viii.
48 Scotland and the Union (Glasgow, 1905), 195-99.
49 History of Scotland, 3 vols. (Cambridge, 1909), iii, 146; (Cambridge, 1911), hi, 116.