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

James Greenshields and the House of Lords 123
G.M. Trevelyan confused the decisions in the Lords, and wrote that the
question of competency was voted on 68-32, which 'ruling has ever since
been accepted in Great Britain'. He added that henceforth 'the House of
Lords was the judge of the limits of ecclesiastical jurisdiction in Scotland'. 50
Arthur S. Turberville studied the House of Lords in the eighteenth century
and in that institutional framework a similar conclusion emerged: 51
[the case] meant that in future the extent of the jurisdiction of the church of Scotland
would be determined by the House of Lords.
Therefore it was:
. . . easy to understand . . . Scots who . . . resented the determination of a case
concerning the Presbyterian church by an assembly which contained an episcopal
bench.
Turberville overlooked the juridical significance of the case and paid very little
attention to the whole matter of Scots appeals.
Only after 1950 did the legal dimension begin to receive greater attention.
The first full-length twentieth-century analysis of appellate jurisdiction was
Andrew Dewar Gibb's Law from over the Border in 1950. While Gibb gave
some contradictory views on the role of the bishops in the House of Lords, he
was sure they were up to no good. He recognized that Greenshields was not
the first case but called it 'one of the earliest and best-known [sic] of all Scots
appeals'. He found the peers' judgement in error, because the appellant's
case was 'loose and unconvincing' while the statutes cited by the magistrates
'exactly met the case'. In Gibb's view, Greenshields was a good early example
of overbearing intervention in Scots law. 52
Within a few years Professor T.B. Smith produced another analysis of
Greenshields. He too saw the case as evidence of parliament's cavalier
treatment of the constitutional guarantees of the Treaty of Union: 53
. . . Parliament from shortly after the Union till the present day has undertaken -
without serious scrutiny of its powers - the purported variation by ordinary Act of
Parliament of many of the conditions of Union . . .
. . . Thus, for example, soon after the Union, the Toleration Act and the Patronage
Act struck at Scottish religious feelings in a most vindictive way - as did the House
of Lords in its judicial capacity when it assumed appellate jurisdiction in the
Greenshield's [sic] case and supported the somewhat provocative actings of the
appellant, an episcopal clergyman in Scotland.
50 England under Queen Anne, 3 vols. (1930-34), iii, 238.
51 The House of Lords in the XVIIIth Century (Oxford, 1927), 95, 147.
52 Law from over the Border (Edinburgh, 1950), 8-12.
53 The British Commonwealth: The Development of its Laws and Constitutions, G. W. Keeton, ed., 1,
pt. 2, T.B. Smith, Scotland (1955), 646 and 11 (1962), 55; T.B. Smith, A Short Commentary on the
Law of Scotland (Edinburgh, 1962), 55 (emphasis added).