Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

James Greenshiells
v.
The Magistrates of Edinburgh

1709. November 8and December 30.

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November 8.—Mr James Greenshiells, having been an Episcopal minister in Ireland, and coming to Edinburgh, takes up a meeting-house, wherein he reads the English liturgy, with their service and ceremonies, for the use of the Englishmen and others that had not freedom to join in communion with the Scots Presbyterian church and their form of worship. The Presbytery of Edinburgh looking on this as a derogation and innovation to their establishment and the purity of their discipline, they summoned him to compear by their beadle; who declines their jurisdiction and authority, as noways judges to him, who was of another communion, viz. of the Church of England; and that the Union had incorporated the Episcopal church of Scotland, and made it a part of the national church of England. And being asked by what warrant he assumed the power to preach, he produced a patent or diploma from Mr James Ramsay, late Bishop of Ross, in 1694, making him a presbyter secundum ritus et formas ecclesiÆ ScoticanÆ. Which ordination, flowing from an abdicated and exauctorated bishop, five years after their abolition, could be no warrant nor legal institution; whereupon they discharged him to exercise any part of his ministerial function within their bounds; and he disobeying the next Sunday after his prohibition, the Magistrates of Edinburgh called him, and required him to desist; which he refusing, they put him in prison in September last, and offered, on his enacting himself to forbear, then to set him at liberty. But he, not complying, gave in a bill of suspension to the Lords, containing a charge to set at liberty, on thir reasons:—That, by the Kith Act of the meeting of the Estates in 1689, all ministers, either in churches or meeting-houses, are to be protected; and that there is no law empowering the magistrates to imprison any for using the service and liturgy of the Church of England. And the dissenting Presbyterian ministers in Ireland, (though they enjoy not that toleration given by Act of Parliament in England,) are not disturbed by the Episcopal clergy there; and, by the same rule of parity, the Presbyterian brethren in Scotland should give the same tender forbearance they meet with there. 2do, He is fully qualified to the civil government, by taking the oaths to the Queen, and the abjuration against the Pretender; seeing they can neither charge him with error in doctrine nor immorality in his life and conversation: And he ought to have the benefit of the 27th Act of Parliament 1G95, giving protection to all ministers who shall qualify themselves, by swearing to the civil government, which he has done; and the 6th Act, in 1701, has provided for our personal liberty, as one of the most dear and precious interests of mankind. And though his ordination be from an outed bishop, yet that no more invalidates it than the Presbyterian ordinations were in the time of Episcopacy; for though they were declared null by the 9th Act of Parliament 1672, yet the Presbyterian principles then taught, that no civil legislative power could deprive them of the right of continuing and ordaining the succession, that being radically inherent in their intrinsic power, and so purely ecclesiastic, that no sanction of the supreme magistrate could divest them thereof; and if this Presbyterian principle and practice be good, then, by the same rule, a deposed bishop retains still the character and power of ordination, though deprived of the benefice and emoluments; otherwise, many of the Presbyterian ministers now preaching in pulpits, who had no other ordination, but when it stood condemned by law, should be no lawful ministers.

Answered for the Magistrates,—That the Act of the Estates in 1689, and the Act 1695, can do him no good; for they concern ministers then in actual possession of churches, which he was not. And the 23d Act 1693 does plainly cut him off; for none are to enjoy the protection of law but they who subscribe the Westminster Confession of Faith, which he has not done. And it is a vain imagination to think a deposed bishop retains the power to ordain; for that were to perpetuate the schism. And the nonjurant bishops in England do not so much as pretend to it; so that this volunteer is truly no churchman at all, but a pure layman. And their consolidation with England is a sophistical notion, the Union establishing the Presbyterians; and no other set of a church has a legal being and existence here, but them only. And there needs no law condemning the English service, for the introducing the Presbyterian worship explodes it as inconsistent; and l. 2, D. de Jurisdict. says well, Concessa. jurisdictione ea omnia concedi videntur sine quibus exerceri non potest. And the bishops can pretend to no jurisdiction but what they derived from the crown and the Acts of Parliament restoring them in 1602; so that they stood more jure Jacobi et Caroli than jure divino. And even the motive introductory of Presbytery in 1689 was the inclinations of the people; so both owe their footing to the Acts of Parliament. And though this seem Erastian, yet Holland and all the wise governments abroad practise it.

It was urged, If an abdicated bishop could ordain, what hindered an abdicated king to give commissions, both civil, military, and ecclesiastic? And yet the accepting any of these would be treason.

The generality of the Lords regretted the man's case; but thought his ordination illegal, though churchmen be unwilling to subject that question to the cognizance of civil judges, as without their sphere; and therefore refused to set him at liberty, unless he enacted himself to forbear the English service, in the terms of the Presbytery's and Magistrates' sentence.

Vol. II. Page 523.

December 30.—Mr Greenshiel's bill of suspension against the Magistrates of Edinburgh, mentioned supra, 8th November 1709, being refused, he gives in a new bill, enlarging his former grounds of law; and craving liberation, seeing there was no law nor Act of Parliament in Scotland against reading the English service-book; and that the power of ordination is an indelible character, and could not, by abolition of bishops, be taken from them. And, at worst, the bishop was a presbyter, and so might, with the concourse of other presbyters joining with him, give orders; which was as good as the Presbyterian ordination.

Some alleged, the want of a prohibitory law was not warrant enough; for if a Mahometan Mufti should set up to teach the Alcoran in Edinburgh, it would be no excuse for him to say there is no law in Scotland against the Alcoran. Others thought this comparison too wide. However, Mr Greensheil's bill being refused the second time, he gave in a protest for remeid of law to the Queen and House of Peers in England.

Vol. II. Page 549.