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

R. v. Hall (No. 1) [1829] NSWSupC 13

trespass - church pew - ecclesiastical law - reception of English law - tenancy - trial by jury - established church of New South Wales

 

Supreme Court of New South Wales

Dowling J., 12 March 1829

Source: Historical Records of Australia, Series 1, Vol. 15, pp 132-140[1 ]

Substance of Mr. Justice Dowling's Charge to the Assessors in the case of The King Versus E.S. Hall, for a Trespass in a Pew in St. James' Church.

Gentlemen Assessors,

In this case, His Majesty is the Plaintiff and Edward Smith Hall is the Defendant.  It is an action of Trespass, and the declaration is framed in the Common form applicable to such a mode of proceeding.  The declaration alleges that, on the 1st day of July, 1828, the Defendant broke and entered a certain Pew of His Majesty, situate in the Parish Church of St. James', Sydney, and then and there staid for the space of three hours and then and there forced open and broke to Pieces, and damaged the Door of the said Pew, there situate, and wherewith the same was then fastened, of the Value of £10, and other wrongs to His said Majesty, did to the damage of his Majesty of £100.  To this declaration, the Defendant has pleaded two pleas; first, the general issue, Not Guilty, thereby denying that he has committed the alleged Trespass; And Secondly, he sets up the title to the Pew by averring that the same belongs to him, and so in substance justifying the alleged Trespass in virtue of his right of Property in the Pew.  On these pleas issue is taken.

The simple and compendious mode of technical pleading allowable by the Rules of practice in this Court has certainly divested this case of much of that formality with which such a question, as is here involved, would have been clothed in the Courts of the Mother Country.  The Law Advisers of the Crown have presented this case to you in the most plain and naked Form in which it could have been exhibited in a Court of Justice, and His Majesty condescends to come before you to Complain of a Trespass on his Property in the same way in which any the most humble of His subjects might seek reparation for a temporal injury of the like nature; and you are left to try this case as if it was a cause of Action arising between subject and subject.  The Defendant by his second plea does not distinctly set forth his title to the Pew in which the alleged trespass has been committed; but, as no objection has been taken to the plea on that ground by the Law Advisers of the Crown, we must consider it as a substantive claim of right to the Pew on which he rests his defence.

I apprehend, therefore, the substantial question at issue on this record to be, whether at the time of the alleged trespass the Defendant had such a legal Title to the Pew, as against His Majesty, as would excuse him in taking possession of it in the manner of which complaint has been made.

Gentlemen, I cannot refrain from expressing my deep regret that such a question should have been presented to the consideration of a Court of Justice, considering the occasion it has given for much animadversion elsewhere before it has been submitted to the temperate and legal adjudication of the highest Tribunal in the Colony.  It is,  however, Gentlemen, no part of our duty on the present occasion to pass any Opinion upon the motive influencing the conduct which has produced this proceeding, nor to question the spirit in which resistence has been opposed in one solitary instance to the Arrangement alluded to in the course of this Trial for the general accommodation of Persons frequenting St. James' Church for religious worship.  Our duty is to administer justice with temper and calmness, taking the Law of the Land for our guide, and our consciences as the guardians of our judgment.  I persuade myself that Gentlemen of your Station in Society will feel no difficulty in dismissing from your minds any impressions, which you may have received out of doors upon this subject, for, although pains may have been taken elsewhere to produce a bias inconsistent with judicial investigation, yet it is imperative on us in this place to take care that our determination shall be governed solely by the means I have suggested.  We are not to give way to any external influences on the one side or on the other, but discharge the duties of our present vocation with a sacred regard to what we owe to Justice.

Gentlemen, the case now submitted to our judgment is one of a very singular nature, and I venture to say that it is unprecedented in any Court of Justice in which British Law is administered.  Certainly I have been unable to find any parallel instance of the kind.  It is to me perfectly sui generis.  This singularity may be attributable to the peculiar foundation of the Church Establishment in this Colony, which appears to me to be in no degree analagous [sic] to the other religious institution of the Church Establishment in the Mother Country, so far as the disposition of Pews or Seats in a Church are concerned.  Finding no precedent upon the subject, we are necessarily compelled to resort to principle in determining a case which appears to me must be tried on its own merits.  I apprehend, as at present advised, that this case resolves itself into a question of Contract or convention between the Crown or its Representatives on the one hand, and the Defendant on the other.

Before, however, you take my directions upon the Law applicable to the Case, it is fit that I should point out to your attention some of the particulars, in which a Church in the Mother Country differs from that of the Church of St. James' in this Infant Settlement with respect to the occupation of Seats or Pews therein.

In Gibson's Codex tit. 6 C. 4 a under the Head of "Rules of common Law concerning the repairing and ordering of Seats," it is said "of common right the Soil and freehold of the Church is the Parson's; the use of the body of the Church and the repair of it Common to the Parishioners, and the disposing of the Seats therein is the right of the Ordinary; and generally, where the Parishioners repair, the ordinary shall dispose.  These heads are every where laid down in the cases on this subject and have never been disputed."  In Fuller v. Lane, 2 Adams eccle rep. 419, Sir John Nicholls lays down the general Law upon this subject very fully and correctly.  "By the general law and of common right," he says, "all the Pews in a Parish Church are the common property of the Parish; they are for the use in common of the Parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all.  The distribution of Seats rests with the Church-Wardens, as the Officers, and subject to the control of the Ordinary.  Neither the Minister or the Vestry have any right whatever to interfere with the Church Wardens in seating and arranging the Parishioners, as often erroneously supposed; at the same time the advice of the Minister, and even some times the opinions and wishes of the Vestry may be justly invited by the Church Wardens, and, to a certain extent, may be reasonably deferred to in this matter.  The general duty of the Church Wardens is to look to the general accommodation of the Parish, consulting, as far as may be, that of all its Inhabitants.  The Parishioners, indeed, have a claim to be seated according to their rank and Station; but the Church Wardens are not, in providing for this, to overlook the claims of all the Parishioners to be seated, if sittings can be afforded them.  Accordingly they are bound in particular not to accommodate the higher Classes beyond their real wants, to the exclusion of their poorer Neighbours, who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation supposing the Seats to be not all equally convenient."

Such then is the general mode in point of Law of Seating and Arranging the Parishioners in the Parish Churches of the Mother Country.

Then what is the foundation of the right to hold and enjoy Pews in the Churches of the Mother Country ?

By the general Law, the right to a Pew in a Church in the Mother Country is matter of temporal easement connected with and annexed to a House or Tenement, situated within the Parish in which the Church is.  The Inhabitants in general have no other right to a Pew, and, as soon as their occupation of the house ceases, their right to a Pew ceases, for the pew as matter of temporal easement goes with the House to the next Inhabitant.  This principle may be collected from a great Number of Cases and Authorities.

T. Barr. Eccl. Law 360.  Rogers v. Brooks, T.T.R. 431.  Stocks v. Booth T.T.R. 428.  Watson's Clergyman's Law, P. 39.  May v. Gilbert, 2 Bulst 150.  Brabyn v. Tradum, Popham 140.  Gibson's Codex 197-8.  Kenrick v. Taylor, 1 Wils. 326.  Griffiths v. Mathews, 5 T.R. 296.  Corven's Case, 12 Rep. 105.  Langley v. Chute, Sir T. Raym 246.  Mainwairing v. Giles, 5 Barn. and Ald. 356 and Byerly v. Windus 7.  Dowl and Ryl 564-5, Barn. and Cres. 1 S.C.  The only exception to this rule is, where a non-parishioner has a right to a pew by a faculty, by prescription or immemorial custom.  In the recent case of Byerly v. Windus, which was very elaborately argued and considered, Mr. Justice Bayley, in delivering the Judgment of the King's Bench, says "it is perfectly clear that a non parishioner can have no right to a pew in the body of the Church, except by prescription.  There is no doubt about that in point of Law, and it is strictly accordant to justice; for, as the non parishioner contributes nothing either towards the repair of the Church or the support of the Minister, it would be extremely unreasonable that he should have accommodation to the exclusion of those who do contribute to both.  The body of the Church belongs to the Parish and Parishioners at large, and the ordinary has no power to dispose of Seats there to persons who do not reside in the parish.  It is upon the same principle that it has been held that the faculty of a Pew to a Man and his Heirs is bad, because, by those means the Pew may, in time, come to belong to an individual who is not a parishioner.  There are many Authorities both ancient and modern upon this point."

Having thus generally pointed out to your attention the mode of distributing pews, and the principle on which the right to Pews in the Parish Churches of the Mother Country is founded, Let us now consider the circumstances of this case.

In the first place, I do not find that this part of the Territory of New South Wales has been regularly divided into Parishes, or that this Church has ever been dedicated to the use of the Inhabitants of any particular District.  Indeed, in a Colony like New South Wales, considering the origin and purpose of its foundation, it would be unreasonable to expect that it should, at once and from its commencement, assume in its Institutions the Order, regularity and symmetry of a Country, whose system of municipal and Ecclesiastical Government has been the result of ages.  Much must, of course, be left in so young a Settlement to the wisdom of the Legislature in providing such measures, as experience of its wants and necessities may render expedient.

It follows, as a consequence, from there being no parochial Divisions in this part of the Settlement (which in the Mother Country are purely of Ecclesiastical origin) that none of the well known incidents of parochial Government in England apply to this Country.  We have here no Church Wardens, properly so called, no Church Rates, no tithes, in short none of the institutions, which have been adopted and exist in the Mother Country for the maintenance of the Church and its ministration.  The whole foundation of our Church Establishment has been adapted to the maiden condition (if I may so express myself) of this newly found Country.  What then is the actual state of the present case.  We find that the Church in question has been built at the expense of the Crown, and maintained by the Home Treasury and consequently the Soil Freehold of the Church is in The King.  It was doubtless erected for the accommodation of the Inhabitants in attending the Celebration of Divine Worship, subject to such regulations as should be thereafter prescribed in the distribution of Pews.  We find that it was consecrated for religious worship on the 11th of February, 1824, but there is nothing before us to shew that it was ever dedicated to the general uses of a Parish Church, properly so called, or was ever vested in any persons, whose Office and duty was analagous in all respects to the office and duty of Churchwardens.  All we find is that, on the 17th December, 1823, Sir Thomas Brisbane the late Governor issued a Proclamation, appointing the Revd. R. Hill, J. Oxley and James Bowman, Esquires, a Committee with power to contract with any of His Majesty's Subjects for the hire of Pews or Seats in the said Church at reasonable Rents by the Year.  This Proclamation appears to have been acted upon by Pews having been let from time to time at Yearly Rents to the Inhabitants of Sydney, who have been let into possession as Yearly occupants without any regard to the question, whether a House Holder or not.  I need hardly observe that there is no precedent for this course of proceedings recognised by Law in the disposition of Pews in any Parish Church in England.  On the contrary, the current of Authorities in the Ecclesiastical Courts at Home is against the principle of letting pews, A principle forcibly discommended by Sir W. Scott in a late case in the Consistorial Court.  This, however, was an expedient necessarily resorted to in consequence of the peculiar state of this Colony, and the circumstances under which the Church in question was erected.  The case therefore must, as I have already hinted, stand entirely on its own singular circumstances without drawing any analogies from the mode of disposing of Pews in the Mother Country.  Under these circumstances thus disclosed, I apprehend I am bound to consider this mode of letting in the nature of a mere temporal Contract, and in some (though in a very slight) degree, in principle, analogous to a letting between Landlord and Tenant.  The King has the Soil and freehold in the Church by his representative in the Government of this Colony; he delegates to certain persons a power of contracting to let pews in his Church, by the Year to Inhabitants, as yearly Tenants, paying an Annual Rent.  Contracts are accordingly made on this footing, and persons are let into possession at Annual holdings.

But, Gentlemen, there is this singular feature in this mode of Letting, which distinguishes it from the ordinary case of a demise by a Landlord to a tenant (assuming that I take a correct view of the case in directing that these contracts are to be so construed) namely, that in many instances there has been a Stipulation that the Rent shall be paid in advance either in quarterly, half yearly or Annual payments, and such stipulation has been complied with.  This certainly is a singular circumstance, and a term wholly unknown in the usual Contract between Landlord and Tenant.  For you well know that the Landlord's rent is not due or payable until the Tenant has actually had the beneficial enjoyment of the Tenement demised.  Now, Gentlemen, there may have been very good reason for this stipulation.  The Reverend Mr. Hill has given you one reason, namely, that, without those payments in advance, there would be no means of meeting the current expenses of the Year.  But, Gentlemen, other as cogent reasons may be suggested.  From the fluctuating character of the population, change of residence of the Inhabitants or other casualties, it may have been thought expedient to impose upon the occupiers of Pews the obligation of paying the rent in advance, in order to guard against the trouble and difficulty of recovering the Rents after occupiers should have given up possession.  Again, assuming the relation of Landlord and Tenant to subsist by reason of these Contracts, and that The King as Landlord had a summary remedy under the Statute of 11th Geo. 2. C. 19, by distress on the Premises, what would it avail him in a case where there are no Effects on which a distress could be levied.  This stipulation may therefore have been imposed in order to avoid this course of proceeding, or of seeking a remedy by the circuitous and expensive process of an action at Law for the Rent.  Taking this general view of the subject, I apprehend in point of Law that, if this condition was imposed in the present case and not complied with, the party had no right to retain possession of the Pew in question longer than he paid for it in advance, and that, failing to comply with the stipulation, as a condition precedent, he had no legal title to the pew, and was a Trespasser in taking possession of it on the day laid in the declaration.  You will observe that the power or letting given to the Committee is not "from Year to Year" but "by the Year," which, I apprehend, means a letting merely for a Year and no longer.  This seems to be a reasonable interpretation from the very nature of the subject of the letting, and considering that a paramount control must exist somewhere for regulating the Conditions on which Pews shall be held.

Before, however, you come to the consideration of the question for what time this Pew was let, there is a preliminary question raised by the Defendant's special plea, which may or may not conclude the case altogether.  You will observe that, in substance, the Defendant claims title to this pew by virtue of a letting to himself alone.  Now the first question for your determination is whether there was a Letting originally to the Defendant alone or jointly with some other person.  If you are of opinion upon the Evidence that it was a joint letting to the Defendant and some other person, then his plea fails in proof, for he sets up an exclusive Title.  Assuming that it was a Letting to the Defendant, solely and exclusively, then comes the question as to the terms on which the letting took place.  This is a mixed question of Law and fact.  As a question of fact, it is for you to say was this Pew, in June, 1827, let to the Defendant for a Year certain and no longer upon the precedent condition that he should pay the rent in advance, or was it understood between the contracting parties that the tenantcy was to continue at all events notwithstanding the failure in paying Rent until the end of the Year.  The condition of paying Rent in advance, if imposed, was in my Judgment not an unreasonable condition for the reasons I have already suggested.  It is for you to say upon the Evidence, whether such a condition was in fact imposed.  If you think it was, and that it was broken by non payment of the rent until the Year expired, then in point of Law, as the condition failed, I hold that, in June, 1828, the Defendant's Title was at an end, and he was a trespasser in taking possession of the Pew in the manner alleged.  If, on the other hand, you are satisfied upon the Evidence that it was understood and agreed between the parties that the tenantcy was to continue beyond the Month of  June, 1828, notwithstanding the non-payment of the rent in advance, then the Defendant would not be a Trespasser and the tenantcy could not have been determined without a reasonable notice.  What that notice ought to have been, we are not now called upon to consider.  It has been decided by Lord Mansfield (Right v. Dachy T.T.R. 162), in the case of an ejectment, that, if there be a Lease for a Year and by consent of both parties the Tenant continues in possession afterwards, the Law implies a tacit renovation of the Contract; they are supposed to have renewed the old Agreement which was to hold for a Year.  But then it is necessary of the sake of convenience that, if either party should be inclined to change his mind, he should give the other half a Year's notice before the expiration of the next or any following Years.  The question here is whether there was a recognition of the Defendant as Tenant of the Pew after the expiration of the Year ending in June, 1828, if it was then determined.  According to the Evidence, there was no such recognition; on the contrary, there was an express refusal to allow the Defendant to retain the Pew any longer.  It may be true that he offered to pay half a Year's Rent for the Year 1828-9 in advance; but I hold that those, who let the pew, had an option in such a case as this to determine whether they would or would not continue the Tenantcy, in this or in any other instance, after the preceding letting had terminated, if  you are of opinion that it did terminate.  It must not be forgotten that this is a place dedicated to the sacred purposes of Divine Worship, and there may be very judicious and proper reasons for exercising a discretion in the letting of particular pews to particular Individuals, without the imputation of undue or improper motives.  I agree that, where such a discretion is to be exercised, it should be exercised honestly and in good faith; but no good citizen of whatever religious denomination he may be, can entertain a doubt for a moment that Authority must be vested somewhere, in order to preserve due decorum and decency in every place devoted to religious worship.  Suppose the case of a person habitually misconducting himself during Divine Service to the annoyance of the Congregation and the violation of the sanctity of the house of God, is there any doubt that such a person might be wholly excluded from the Church?  Such a case is not very likely to occur, but, as it possibly might, it shews the necessity of vesting a discretion somewhere, as to the duration of Contracts of this nature.  We are not called upon to determine whether, in this particular case, the discretion was properly or judiciously exercised in refusing to allow the Defendant to rent this particular pew any longer; but sitting here, in a temporal Court, I am bound to give you my honest judgment, in point of law, which is, that those, who have the letting of pews in this Church, had a right to exercise a discretion, whether they would or would not continue the letting to a particular individual after a previous tenancy had expired.  The question for your consideration is, whether that previous tenancy had expired.  This is a mixed question of fact and Law, as I have already pointed out, and, in determining it, I have now to invite your patient attention to the Evidence bearing on that particular question.

[The learned Judge then minutely recapitulated the whole of the Evidence, bearing first upon the Defendant's plea of exclusive title and then upon the nature of the letting to the Defendant, on the assumption that the letting had been to him exclusively; and then proceeded.]

Although I have said in the outset that I apprehend this case to be resolved into a mere question of Contract or Convention between the persons appointed to Contract for the letting of pews and the Defendant, yet I am by no means to be understood as suggesting any thing in derogation of the power and authority of the Venerable the Archdeacon in virtue of His Majesty's Commission appointing him to be Commissary to The Right Revd. The Bishop of Calcutta.  The decision of this case, which ever way it may be, will in no degree trench on the effect of that Commission, for it appears to me that this case turns upon a point quite beside the Archdeacon's Ecclesiastical Authority, inasmuch as this Church has never yet been placed on a footing, which would superinduce his Jurisdiction as Commissary in matters of this nature, which in the present case, for the reasons I have so fully stated, involves a mere temporal right, to be determined by a Court of Common Law.  As Commissary of the Bishop of Calcutta, the Venerable The Archdeacon supplies the place of the Bishop in the exercise of jurisdiction over all causes of Ecclesiastical cognizance in this Territory.  As Archdeacon, he is to be considered as Ordinary, having judicial and ministerial Authority to take cognizance of causes spiritual in his own right and not by deputation.  By the Law of England, in the case of a parish Church, no doubt the distribution of Seats among the parishioners rests with the ordinary.  The Church wardens are the Officers of the ordinary; they are to place the parishioners according to their rank and Station; but they are subject, upon complaint, to the control of the ordinary (Pettman v. Bridger. Phill. 323).  The control here spoken of I take to be in the ordinary's judicial capacity in determining disputes and composing differences between the Church wardens and the Parishioners in the disposition of Seats.  In this case, however, as I have already pointed out, the Church of St. James has never yet been placed upon the like footing with a Parish Church in England, so as to give scope for the Jurisdiction of the Archdeacon as Ordinary.  The time I hope is not far distant, when it will occur to the wisdom of the Local Legislature to place this and all other Churches in the Colony on a more certain foundation, with respect to the disposal of Pews, in order to prevent the recurrence of disputes of this nature.

Gentlemen, in conclusion, I repeat, that I apprehend the first question for your determination in this case is, whether, upon the Evidence submitted to you, the letting of this Pew in June, 1827, was to the Defendant solely and not jointly.  If it was a joint letting, then the Defendant's plea fails altogether, for he relies upon a letting solely to himself, and consequently, at all events, the Crown would be entitled to a Verdict.  But if you think it was a sole letting, then comes the question as to the terms upon which the letting took place.  Was this an absolute letting for a single Year upon the condition of paying the Rent in advance, or was it a general and unqualified letting without regard to any given time for the duration of the tenantcy.  If you are of opinion that it was an absolute letting for One Year only, on the condition alluded to, and that condition was broken, then I hold, in point of law, that the tenantcy terminated at the end of the Year 1827-8, and that the Defendant was a trespasser by taking possession of the pew again contrary to the wishes of the Plaintiff or his Representatives; in which case you will find a Verdict for the Plaintiff with such reasonable and moderate damages as shall satisfy the justice of the case; but, if on the other hand, you are of opinion that it was a general unconditional letting, then in point of Law the tenantcy could not have been determined without reasonable notice, in which case you will find your Verdict for the Defendant.  Gentlemen, I now leave the case in your hands, satisfied that you will exercise a sound and discriminating judgment, before you deliver your Verdict upon a matter of no less importance to the Public than it is of interest to the Defendant.

The Judges and Assessors retired for a considerable time, and on their return, Mr. Justice Dowling announced, that the Assessors had found their Verdict for the Crown, Damages, One Shilling, and were of Opinion, upon the evidence before them.

1st. That the Defendant had failed to prove his special plea, inasmuch as they

 thought it a joint Letting of the pew in question to him and another person.

2nd. That the Letting of the Pew was only for one Year certain.

A motion was afterwards made, at the instance of the Defendant, for a new trial,

but refused by all the Judges.

I hereby certify that the above is a correct report, in substance, of my charge to

the Assessors on the trial of the Action of Trespass at the suit of the King against

Edward Smith Hall.

Given under my hand at Sydney, this 18th day of July, 1829.

James Dowling,

One of the Assistant Judges of the Supreme Court.

 

Forbes C.J., Stephen and Dowling JJ, 30 March 1829

Source: Australian, 31 March 1829

Mr. Keith rose to move for a new trial in the case of the King v. Hall, for an alleged trespass on a pew.

To a question from the Court, as to the particular ground of his application, Mr. Keith said he wished to have the evidence of the Rev. Richard Hill read over.  Mr. Justice Dowling immediately commenced reading the evidence throughout, including his Honor's charge to the Assessors, and their verdict.  His Honor having concluded, Mr. Keith addressed the Court, stating the grounds upon which he conceived his client entitled to ask a new trial; premising that he had been led to expect in the venire de novo before granted, it was intended to find a verdict upon facts.  He (Mr. Keith) submitted the verdict was contrary to evidence, and produced arguments in favor of his position.

The Solicitor-General in reply argued, that the words in the Proclamation, "let by the year," meant of course for one year.  As to its not being a joint letting, certainly Mr. Hall occupying the whole pew was bound to pay the whole rent.

Mr. Keith rejoined; and after some preliminary observations, the learned Chief Justice thought the verdict had better rest where it was.  Mr. Justice Stephen concurred with the Chief Justice, in thinking there was no just ground for a new trial.  The authority of Mr. Hill to dispossess, was assumed by the Assessors to be right -- it might be right  but his Honor saw no good which could result from a new trial, the defendant having sustained no injury in consequence of the decision.

 

Notes

[1 ]Apart from the opening paragraph and the certification by Dowling J. at the end, this report is a copy of that published in the Sydney Gazette, on 14 March 1829.  At the request of Archdeacon Scott, Governor Darling sent this report of the case to the British government for advice.  Scott thought that the charge by Dowling J. was inconsistent with the Archdeacon's Patent, and that under this decision he did not feel authorised to interfere with any irregularities which may happen in any of the churches.  This copy of the charge to the jury was approved by Dowling J. in order to be transmitted to England.  Scott first wrote to the governor on this matter on 25 March 1829, and Dowling did not sign the report until 18 July.  The governor sent it to Murray, in London, on 25 August 1829: Historical Records of Australia, Series 1, Vol. 15, pp 131-140.

This trial was also reported by the Australian, 13 March 1829.  See also R. v. Hall (No. 1), 1828; Hall v. Scott, 1830.

On 2 March 1829, Mr Keith, acting for Hall, moved for trial by jury in this case.  The legislation authorising trial by jury in civil cases, (1828) 9 Geo. 4 c. 83, had only come into force the day before, on 1 March.  The court informed him, however, that the Act required the passage of a local Act prescribing the qualification of jurors before it could be put into effect.  See Sydney Gazette, 5 March 1829.

The conflict in this case was connected to the libel action between Hall and Archdeacon Scott (R. v. Hall (No. 2), 1828): see Australian, 16 December 1829.

On the question of whether the Church of England was the established church in New South Wales, see Monitor, 27 January 1827.

Scott wrote to the British government complaining about this opinion of Dowling J.  Murray replied to Governor Darling on 20 May 1830, upholding the views of Dowling.  He said that Dowling did not deny the Archdeacon's character of Commissary or Ordinary, but merely found that pews in a church, which is not parochial but a mere Royal Foundation, are not subject to the disposition of the Ordinary.  Instead, they remain vested in the Crown and can only be let under that power.  The Ordinary in England only has the right of disposing of pews in parish churches.  Source: Historical Records of Australia, Series 1, Vol. 15, pp 475-476.  See also pp 635-636 for Hall's view of this case.

Published by the Division of Law, Macquarie University