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Decisions of the Superior Courts of New South Wales, 1788-1899

Walker v Scott (No 1) [1825] NSWKR 6; [1825] NSWSupC 60

Prohibition - ecclesiastical visitor - law of education -   schools -  charitable trusts - reception of English law

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 21 December 1825

Source: Sydney Gazette, 26 December 1825


Rev. William Walker v. Archdeacon Scott


The Attorney General[1 ] rose and stated, that he appeared against a rule Nisi, obtained on the 30th of November, in which it was ordered, upon reading the affidavit of Mr. Walker, that the Reverend Thomas Hobbes Scott do shew cause why a writ of prohibition should not issue from this Court, to restrain him from proceeding in the Spiritual Court, on his citation against Mr. William Walker, Master of the Female Orphan School, Parramatta.  He did not appear to deny the authority of the Court to grant such a rule upon a proper cause being shewn, but he trusted that he should be able to oppose sufficient grounds against the motion, to afford reason for the Court to retrace its steps, and to discharge the rule.  The grounds upon which he would rely, were certain words, to be found in the affidavits of the applicant himself, and in the rules of the school; in various articles of which the terms King's Visitor were used.  In one of those articles it was set forth, that ``no child should be dismissed from the Institution without an order from the Governor, or the King's Visitor," and the same words were used in various other places, so that, upon the shewing of the applicant himself, there was an officer called the King's Visitor; Mr. Scott signed that paper, which Mr. Walker set forth, as King's Visitor, and no other conclusion could be drawn but that he was the Visitor supposed.  That officer, it appeared then, was in course of action, and the only question was, whether the Court of King's Bench, which that Court was, had any power to controul him in his course of action, unless in doing something contrary to the law of the land.  He would rest his argument upon the case of the King against the Bishop of Ely, in 5 Term Reports, 456, wherein Lord Kenyon said, that ``the Court had only authority to put the visitorial power into motion, but where that power was acted upon, it could not controul the judgment of the Visitor.  If the Bishop had not exercised his judgment, the Court would compel him, but he having done so, the Court had no power to control it."  If therefore it appeared, that the King's Visitor, and acknowledged by the applicant himself, upon his own shewing to be so, was in due course of action, it was not competent to that Court to do otherwise than to discharge the rule with costs.  The Attorney General here handed to the Bench the articles drawn up for the regulation of the school, signed by the late Governor, by the applicant himself, and by the Archdeacon, as King's Visitor; and concinded [sic] by observing, that the only intimation necessary for the Court, and upon which it should discharge the rule, was, that the King's Visitor was in motion, and not acting contrary to the law of the land.

Mr. W.C. Wentworth.  If a jurisdiction could be established in the way in which the visitorial jurisdiction is here sought to be established this day, this Court would soon be ousted of all its jurisdictions.  The Attorney General has contended, that, because this gentleman styles himself King's Visitor, and because we, in our affidavits, state him to be King's Visitor, as he alleges himself, for our admission, as it is called, goes no further, that therefore he is King's Visitor, and that this Court has no right to interfere with his authority.  The case which the learned Attorney General has cited, and on which he relies to support his argument, I contend is entirely wide of the question now before the Court; in fact, has no bearing on it whatever; for it is quite clear, in that case, that the Bishop of Ely was Visitor, and what therefore has that to do with this, when no jurisdiction whatever is shewn to exist; and where, even supposing the Archdeacon to be King's Visitor, he has not acted within the scope of his authority?  But I contend that this rule must be made absolute, whether he be King's Visitor or not; because there is at present nothing before the Court to shew that he is King's Visitor, or to shew the nature of the power or authority vested in him, if he be so.  All cases of this class admit one undeviating principle, that a superior Court cannot be ousted of its jurisdiction, but by a special plea or a special return; and it is expressly laid down by Lord Mansfield, that the King's Supreme Courts have universal jurisdiction, unless there is something before the Court to shew that the exempt jurisdiction which is claimed exists; and in this case, no other jurisdiction has been shewn even in argument.

The Court  We do not understand the Attorney General to dispute this Court having a jurisdiction, provided a case is made out on which to exercise it.

Mr. Wentworth. --- Yes; so far as to keep the party within the bounds and limits of his authority; but I contend, that if he is King's Visitor, the Archdeacon should have set forth his patent, or his commission, or whatever the authority is upon which he claims to act; I contend that this power, if it exists at all, should be specially shewn to the Court, before it will allow him to proceed in an act derogating from its authority, in issuing a summons to one of His Majesty's subjects, which I contend was illegal, without setting forth his letters patent, or whatsoever they are, specially.  In the case of Green and Rutherford, reported in 1 Vesey, p. 202, in which a bill was filed in Chancery, to compel Saint John's College, Cambridge, to carry into effect a trust; it was specially pleaded in answer, and setting forth all the statutes by which it was created, that a Visitor existed, and that the Court could not interfere.  In this case, the Court cannot presume, that a Visitor, exists, in derogation of its own authority; and I contend, upon the whole current of authorities, all of which establish the principle, that the exempt jurisdiction claimed must be specially set forth; that the failure of doing so in this case is, in point of form, quite sufficient to make the rule absolute.  With respect to admissions, even if they had been made, they would have been no bar to this application, for Lord Hardwicke lays it down, that a prohibition will go even after conviction.  If there is a want of jurisdiction, a prohibition may be applied for at any time, so that even if there was an admission in this case, it would not avail as a bar to the application, as the jurisdiction claimed should have been specially set forth, that the Court might see its extent, and see also whether it had been exceeded or not.  But I contend, that we have made no admission on our part; it is a mere statement of rules, which the Archdeacon may have drawn up, and may have signed as King's Visitor, but which are of themselves no proof whatever that he is so.  But, even if it is an admission, it must be taken altogether, the Attorney General cannot take up the two words King's Visitor, and bind us by them; for, even admitting, for the sake of argument, that they are an admission, the rules themselves prove that the King's Visitor if such a person is in existence, has not an exclusive legislative power; they of themselves prove that he cannot make rules without the consent of two others; and one of these the applicant himself, thus shewing that his visitorial authority even allowing him to possess it, is very limited indeed; and that the jurisdiction he sets up, compared with the authority he has recognized under hand and seal, are at variance, and clearly prove that he has not that unlimited power which he claims.  I therefore rely, that the very circumstance of his not setting forth his patent or authority is conclusive against him in the act which he has been attempting to exercise; and that no exempt jurisdiction can be set up in derogation of the authority of this Court, unless it is specially pleaded.  It is impossible to find any case in which this principle is not expressly recognized.  If the Archdeacon possesses this exclusive jurisdiction, he should have come before the Court with something in the nature of a claim of cognizance, or have come forward with counter affidavits, setting forth the plenary powers upon which he claims to act.  Upon this ground alone, I contend with confidence, that the application in this case must be granted; but there are other, and in my opinion, stronger reasons for making this rule absolute.  If the Archdeacon be King's Visitor, this is not an Institution to which such an office can attach from its nature, or ever will attach unless it be turned into a corporation.  Upon this branch of the subject I have been at considerable pains, and in all my researches I have found but one instance, and that not in point, with the present question, in which a Visitor is applied, where there was no corporation.  In the great case of Philips and Berry, it is distinctly laid down by Lord Holt, in 2d Term Report p. 352, that there must be an incorporation before there can be a Visitor.  Here then is an authority precisely in point that the office of Visitor, even supposing it to exist, cannot be claimed here.  Bishop Stillingfleet, in his argument on this case in the House of Lords, for the case was removed into that House, holds exactly the same opinion, so that it is quite clear from these authorities, and they are great authorities, that the office of King's Visitor, even supposing it to exist, cannot attach to this Institution.  There is only one case, as I before observed, seemingly against this general principle, in 1 Douglas, p. 354, but which cannot be called even an exception to the general rule, and does not at all militate against the case of Philips and Berry.  It may be argued, that supposing a King's Visitor to exist in the Archdeacon, that he has powers, and it may be asked, to what Institutions does his authority extend; for if he has none over this, he has none over any school in the Colony?  But I am not bound to answer that question; his appointment may have been made prospectively, with reference to the large quantities of land, and public property, which have been appropriated for Ecclesiastical purposes, supposing that schools would be endowed, and that then his office would commence, or it might have been made through the ignorance of the Home Government, as to the nature of the schools in this Colony, thinking them endowed.  It is stated by the applicant himself in his affidavit, that the nature of the foundation of the school was certain freehold lands, which were delegated to trustees in perpetuity.  Now, it is obvious that the Governor who granted these lands in perpetuity, Governor King I believe, exceeded his powers, as it was an act contrary to the statutes of Mortmain, and a Governor's powers in granting lands are very limited.

The Court.  You are aware, Mr. Wentworth, it has been decided that the Acts of Mortmain do not apply to the Colonies.

Mr. Wentworth.  We will take this charity then as one endowed by His Majesty, and there is no doubt but he has the same right as any private individual.  The King would then be Visitor, if he had not parted with the power of visiting to trustees, for there are cases to shew that the King has parted with that power, and the very act of nominating trustees makes them visitors.  The King has this power in common with any other person, and he can delegate it; but if he has not done so, he can, that is, he will only visit the Institution as he visits any other of his foundations, by his Chancellor, and his Chancellor in this Colony by the Act of Parliament, is his Honor; so that, admitting he has not parted with the whole of his visitorial power to the trustees, he can only visit by his Chancellor, for there is nothing before the Court to shew that he has delegated his authority, by patent or any other power, to any person whatsoever.  There can be no inconvenience, neither that such an office as that of Visitor should not attach to this Institution, as it is a charity at large, falling within the meaning of the Act of Elizabeth; and if an abuse should exist, a bill can be filed in this Court by any person, to remedy such abuse, for it has been held over and over again, that the Court does not lose its original jurisdiction over such charities as this falling within the statute, and that a bill to remedy an existing abuse may be filed by any person; so that there is nothing whatever in this institution which would draw to it an office of this description, even admitting that such an office exists.  The third ground upon which I shall contend for this application is, that even allowing there is such an officer as King's Visitor existing, it is clear that he has been guilty of an excess of jurisdiction.  One thing is clear, that a man may be a general Visitor, or he may be a special Visitor.  Now, if he were only appointed for a special purpose, he would still be King's Visitor; but, supposing him a general Visitor, and he had all the powers of making laws which belong to His Majesty himself, it is still quite clear that he has been guilty of an excess of authority, for which this Court will restrain him.  The case of Philips and Berry goes unquestionably to shew, that though a man may be a Visitor yet, if he act out of his jurisdiction of Visitor, he will be restrainable.  The Attorney General has argued that if there is a Visitor, the Court cannot interfere, right or wrong[.]  If he acts as Visitor, granted; but an excess of jurisdiction is want of jurisdiction, and if he acts beyond his jurisdiction, he acts pro tanto without jurisdiction.  The Attorney General's argument only goes to shew, that if he acts as Visitor, the Court will not interfere with him; but this is only in cases cognizable by him as Visitor.  This case says, that as Visitor he shall not go beyond the law of the College; and Lord Holt assumes throughout the argument, that the Visitor had not exceeded his powers, that he was acting as Visitor.  The only point in that case is, that the justice of his sentence will not be examinable by this Court, supposing him to be acting within the scope of his authority as Visitor.  If appears also, from this case, that where the power of a Visitor only extends to a visitation once in five years, as is frequently the case, that any act or exertion of authority, at any other time than during the period of his visitation, would be illegal as coram non judice.[2 ]  Can there be a doubt then that the Court of King's Bench would not have restrained him, if he went oftener, and thereby exceeded his powers?  It is quite clear that the argument of Lord Holt was, that the Visitor had not exceeded his authority; that it turned entirely upon the assumption of his jurisdiction, and that he had not gone beyond his powers in that judgement, which was attempted to be set aside.  Not only this case, therefore, but the subsequent case in Vesey, of Green and Rutherford, goes completely to shew, that where a Visitor exceeds his authority, his act is a nullity, and that he will be restrained, even on the principle of common season, [sic] and common equity.  Admitting, then, that the Archdeacon, as King's Visitor, might impose any laws upon the master, and upon the school, still it is quite clear that he has in this instance exceeded his authority, because there is no article in the rules assigned by him, together with the Governor and the applicant himself, to prohibit the master, with his wife and family, from being absent altogether from the school.  Where, I would ask, is the rule which has been broken, the order which has been violated, or does it only exist in the tablet of this gentleman's brain?  Surely it is against every principle of justice, that a person should be punished for the breach of some law only existing in the mind of the person punishing.  So that, even admitting that the Archdeacon has all the powers which he claims, it is, notwithstanding, clear that he has, in this instance, acted without the scope of his jurisdiction, and that this Court will restrain him.  Upon these grounds I move that this rule be made absolute.  I refrain from going into other matters, such as the citation, letters, &c. which certainly would afford matter for some degree of severity against the King's Visitor, if he is so, considering them at present extraneous, as the only question now is, has this Court jurisdiction to grant the rule of prohibition, which I contend it has?

The Chief Justice. --- This is an application to the Court, for a rule to shew cause why a writ of prohibition should not issue against the Venerable Archdeacon Scott, to restrain him from proceeding in the Spiritual Court, against one William Walker, Master of the Female Orphan School at Parramatta.  I should observe, that the rule was not granted unadvisedly, as the application was new.  We had no proof that such judicial authority did exist, and we wished to know that there was de facto, a King's Visitor, what his authority, and also what was the situation of Mr. William Walker with respect to him?  With the merits of the case we had nothing to do, but we certainly had power to examine into the authority of the person claiming this exempt jurisdiction to act, and upon this application there should have been a sufficient body of facts set forth to shew the power to do so.  The offence charged against Mr. Walker, is being absent from the school on or about the 4th of November, and that, when remonstrated with, he wrote a letter, as it is alleged, of a contumacious nature.  Now, whether leaving the school was lawful or not, is not the question; we have no power to dismiss Mr. Walker for any thing which has appeared before us, but we want to know whether there actually is a King's Visitor, and if there is, what is the scope of his authority?  The Attorney General relies, that the Archdeacon is King's Visitor, and that there is a relation between him and Mr. Walker, as Master of the School at Parramatta, which brings him within his jurisdiction, and grounds this upon the admission of the applicant himself.  But it does not appear to us that there was a sufficient admission of facts which would give the Archdeacon the authority he claims over Mr. Walker; I do not find any body of facts before the Court to shew a jurisdiction legally exercised.  It is necessary to shew to us that there is a King's Visitor, what is the scope of his authority; that the party complained of is within his jurisdiction, and also that the acts complained of bring the party within the power of the complainant.  We therefore leave the case still open, to afford the Attorney General an opportunity to lay before us a sufficient body of facts, to warrant the interference of the Archdeacon.

Judge Stephen fully agreed in the opinion delivered by His Honor the Chief Justice.  It might be that the Archdeacon had power to visit that Institution, but it did not appear from any affidavit before the Court.  But wishing to give the Archdeacon the same power granted to Mr. Walker, of enlarging his affidavits, the Court left the case open, in order to afford him an opportunity of furnishing facts upon which it might act.  With respect to the question of jurisdiction, he never had any doubt, for surely the Court had a power, if it saw occasion, to prevent an individual from becoming judge in his own cause.  I am myself (said His Honor), at the head of one of the inferior Courts of the Colony, the Court of Requests; there is no appeal from my decision; but, should a case arise wherein I was about to sit in a cause in which I was myself interested, there can be no question but that I could be restrained.

The case was therefore left open to Saturday,[3 ] in order to afford an opportunity for the Attorney General to lay before the Court the necessary proofs of the office and authority claimed by the Venerable Archdeacon.



[1 ] Saxe Bannister.  Scott eventually lodged a complaint over the conduct of Stephen J. in this case, which led to correspondence between Forbes C.J. and Governor Darling: see Mitchell Library document A 1199 (CY 524), pp.1289- 1304.

Forbes C.J. described this to Wilmot Horton as a ``very foolish case": Forbes to Wilmot Horton, 6 February 1826, Catton Papers, Australian Joint Copying Project, Reel M791.  He noted that the Archdeacon arrived in New South Wales ``pretty much in the same condition as the Honorable Chief Justice, namely, without his credentials".  Forbes was most unimpressed by the conduct of the Archdeacon and his legal adviser, Attorney General Bannister, in attempting to mislead the Supreme Court into thinking that the visitor's power and the Archdeacon's court were already in existence and recognised by the King and the Secretary of State.  ``This is not plain dealing  and in a case of a public nature, was certainly very improper."  He said that he accused no one, however, and merely wished to state the facts to his confidant.

Scott was finally appointed visitor by the Instructions to Governor Darling: Historical Records of Australia, Series 1, vol. 12, p. 125.  Darling arrived in Sydney on 19 December 1825: p. 126.

On the establishment of schools, see Bathurst to Brisbane, 1 January 1825, Historical Records of Australia, Series 1, vol. 11, p. 438.  At p. 444, there is a copy of the Draft Charter of Incorporation for the management of church and school estates.  The Archdeacon was to be the vice-president.  There were to be quarterly General Courts, or meetings of the members.  The bishop or, in his absence, the Archdeacon, was to have power to appoint or remove schoolmasters.

[2 ] Before one who is not a judge, the proceedings being void.

[3 ] 31 December 1825.  In fact judgment was not delivered until 31 January 1826.  See Walker v. Scott (No. 2), January 1826.

Published by the Division of Law, Macquarie University