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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Greenshields, Clerk v. The Lord Provost and Magistrates of the City of Edinburgh [1711] UKHL Robertson_12 (1 March 1711)
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Cite as: [1711] UKHL Robertson_12
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SCOTTISH_HoL_JURY_COURT
Page: 12↓
(1711) Robertson 12
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 6.
v.
Subject_Appeal. —
Fountainhall, 8th Nov. and 30th Dec. 1709.
An appeal competent, though objection made that it implicated the sentence of a presbytery.
Subject_Kirk Government. —
Proceedings against an episcopal minister, before the Toleration Act, 10 Ann. c. 7. who had been imprisoned for exercising his function, reversed on appeal.
The appellant, by birth a Scotsman, in 1709 opened a private chapel in Edinburgh, where he exercised a ministerial function to some members of the communion of the Church of England. The Presbytery of Edinburgh summoned him to appear before them, and to “give an account of himself, and of his presuming without authority to exercise the office of the holy ministry publickly on the Lord's day.” He appeared accordingly, and produced to the Presbytery a diploma of his ordination as a presbyter secundum ritus et formas Ecclesiæ Scoticanæ from the Bishop of Ross in Scotland, but dated in 1694 after abolition of episcopacy in that country: and he stated that his orders had been allowed in Ireland, where he had taken the oaths to government, and served two curacies with a fair reputation, of which he produced a certificate from the Archbishop of Armagh, and some of his clergy: but he declined the jurisdiction of the Presbytery. They thereupon prohibited him from exercising the office of a minister, for the reason of its “being within their bounds, and without
Page: 13↓
The respondents, in consequence of this recommendation, and of a petition (as they state in their case) signed by many hundred hands of the most considerable in the neighbourhood, cited the appellant to appear before them; and on his appearing they required him to obey the act of the Presbytery. The appellant, however, still continued in the exercise of the ministry as before, and the magistrates by their sentence on the 15th of September 1709 ordered him to be committed to gaol, “there to remain until he should give security to desist from the exercise of the ministry within their bounds, or to remove himself from thence.”
The appellant being accordingly committed to prison, he presented a bill of suspension to the Court of Session, to which the respondents put in answers, insisting “that the suspender having received ordination from the Bishop of Ross after the abolition of episcopacy in Scotland, and the said bishops being exauctorated, the suspender was not a minister duly qualified.” In respect of these answers, the Court on the 8th of November 1709 “refused the bill.” The appellant having presented a second bill of suspension, to which the respondents made answers, the Court on the 28th December 1709 also refused the same. And the appellant remained in prison seven months.
Entered 13 February 1709–10.
The appeal was brought from “the sentence of the magistrates of Edinburgh and a decree of the Lords of Session, the first the 15th of September, and the last the 28th of December 1709,”
A preliminary question arose, whether the appeal was regularly and properly before the House or not; and leave was given to argue this question in the first place.
Argument of the Respondents on this preliminary Point.
There is no place for this appeal from the Presbytery of Edinburgh: the Presbytery is only a subordinate ecclesiastical judicatory, from which appeals lie in course to a provincial Synod, or the general assembly. The appellant cannot in law or good order appeal to the House of Lords, who are only judges upon appeals in the last resort.
If this appeal should be held to lie from the sentence of the Presbytery, the appellant has not summoned or called the proper respondents: the sentence of the Presbytery cannot be reviewed unless they themselves be called to answer for it; and the respondents are not the proper parties to make answer in this case.
Although the appellant pretends only to appeal from the decree of the Court of Session, and the sentence of the respondents, it is evident that he directly libels the sentence of the Presbytery as groundless and illegal, and therefore to be reviewed; which is in
Page: 14↓
But if the magistrates had exceeded in the execution, the appellant had the obvious remedy, which in fact he laid hold of, viz. to complain to the Court of Session by bill of suspension. It is certain in law, that no appeal can be made from the execution of any sentence, unless the appeal be first brought from the sentence itself; and it is supposed that the same doctrine holds in the Church of England, when writs are issued of course for executing ecclesiastical sentences, as the writ de excommunicato capiendo, from which though it be a civil writ, yet being in execution of the sentence of an ecclesiastical court, there lies no appeal, unless the sentence itself be first reviewed by the proper judicatory.
Before the late Union of the two nations, it was never known that any appeal from the ecclesiastical judicatories of the Church lay properly or regularly to the Parliament, of Scotland, nor can any precedent of such appeals be produced.
Journal, 1st March 1710–11.
The appellant's argument on this preliminary point does not appear; but counsel being heard upon this preliminary point, Resolved, that the petition and appeal of this appellant is regularly and properly before the House.
On the Merits. Heads of the Appellant's Argument.
1695. c. 22.
Though Presbytery be the legal established church government in Scotland, yet there is no law of conformity in that country which obliges the laity to be of their communion, nor any law which prohibits the ministers of the communion of the Church of England from exercising their function, or the laity from joining in worship with them in a private manner, or which gives the magistracy any jurisdiction to inflict penalties on such ministers or laity. The acts of Parliament on which the sentences against the appellant are pretended to be founded, and particularly the act 1695, c. 22. against intrusion into churches, were never intended against persons in similar circumstances with the appellant. The appellant never intruded into any church or benefice, or deprived any person of his right, but exercised his function only in
Page: 15↓
The Court of Session ought only to have affirmed or reversed the sentence of the magistrates for the reason upon which it was founded, namely, that contained in the act of the Presbytery; and they ought not to have proceeded to judgment upon any new reason.
And even if the Court might have founded their judgment upon a new reason, yet their decree, as to such new reason, is contrary to the principles and practice not only of the Christian Church in general, but also of the present Church of Scotland, which admits Presbyters ordained by exauctorated Presbyters, and also Presbyters ordained by Bishops in similar circumstances with the appellant, whose ordinations have been allowed, and themselves admitted to the cure of souls, as rightly ordained.
Heads of the Respondents' Argument.
W. and M.
1689. c. 3.
1690. c. 5.
1693. c. 6.
1693. c. 22.
The respondents rely for a full justification of the proceedings both of the Presbytery and themselves against the appellant, by the following acts of Parliament, which are all unalterably confirmed by the Union; viz.
1. The act W. & M. 1689, c. 3. intituled, “Act abolishing Prelacy.”
2. The act 1690, c. 5. intituled, “Act ratifying the Confession of Faith, and settling Presbyterian Church Government.”
3. An act 1693, c. 6. intituled “Act for taking the oath of allegiance and assurance.”
4. An act 1693, c. 22. intituled, “Act for settling the peace and quiet of the church.”
And also by a proclamation of the 21st of March 1706, intituled, “An act and proclamation anent intruders into churches,” by which ( inter alia) “the queen and the lords of her Majesty's privy council, prohibit and discharge all persons, who have no authority from within the church of Scotland, but pretend to a warrant or licence from the late exauctorat bishops, since they were exauctorat, to exercise any part of the ministerial function, within this church, or any kirk or paroch thereof, upon pain of being seized and secured by the magistrates of the bounds, in order to their trial, pursuant to the act of parliament of 1693, and the magistrates are required to seize and secure such persons, and punish them according to law.”
Judgment, 1st March 1710–11.
And after hearing counsel on the merits, It is ordered and adjudged, that the sentence of the magistrates of Edinburgh, and the decree of the Lords of Session in North Britain, made against the said James Greenshields, be reversed.
Counsel: For Appellant,
Tho. Lutwyche,
Hum. Henchman.
For Respondents,
Peter King.
Page: 16↓
Soon after the decision in this appeal, an act of parliament was passed, 10 Ann. c. 7. intituled, “An act to prevent the disturbing those of the episcopal communion in Scotland.”
Preface to the History of the Union, p. 19 et seq.
It is stated by Defoe, that the preaching of Mr. Greenshields excited much disturbance in Scotland, and alarm for the safety of the established church. Addresses were presented to the general assembly from Edinburgh and from Haddington; and similar addresses were preparing almost all over the kingdom, when the proceedings were commenced against Mr. Greenshields.