2

The Invention of the Torrens System

Man and Idea1

The Torrens family came from what is now Northern Ireland, although Robert Richard Torrens, the inventor of the Torrens system, was born further south in Cork, in 1814. Colonel Robert Torrens, Robert Richard’s father, was a political economist of some repute in his day and not entirely forgotten even today. Eight volumes of the Collected Works of Robert Torrens were published as recently as 2000.2 Torrens senior comes into the story of South Australia because of his unremitting labours as Chairman of the Colonisation Commissioners in promoting the settlement and growth of the colony in its early years. He never visited South Australia, but his name appears on its map in several places, most notably in the River Torrens that flows through the centre of Adelaide.

His son arrived in Adelaide in 1840, aged twenty-six. Very quickly Robert Torrens started on his career in the public service, as Collector of Customs. Almost as quickly he acquired a reputation as a somewhat headstrong and difficult man and was regularly complained about by his subordinates, reprimanded by his superiors, and ridiculed in the newspapers, some of which thought him lazy and grasping. He was even sued successfully for assault.

One thing stands out in the life of this most successful of South Australian legal reformers: Torrens had no legal training whatsoever.

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

The Invention of the Torrens System 19

Torrens became interested in the reform of land titles law when a friend of his suffered ‘a grievous injury and injustice’3 when a flaw was discovered in his title to land that he had not only purchased but also improved. As a result, Torrens resolved to do something about the state of land titles law.

The issue of land titles reform had been broached very early on by a number of South Australians. The commissioner of Public Lands, John Fisher, had drafted a bill for the registration of titles in 1836, even before the first settlers had sailed. Another legal luminary, Charles Mann, called as early as 1838 for the introduction of land titles registration. Several other similar suggestions were made in the very early days of the colony. In 1853 Richard Davies Hanson, who was certainly still on the scene when the Torrens system was being discussed and implemented four years later, also wrote very briefly of the need for reform based on a system of titles by registration.4

It is likely that Torrens knew of some of these suggestions, especially given that land titles reform was such a crying need in the mid-nine- teenth century and that general ideas for reform were commonly floated in a vague, undeveloped way. However, it would be absurd to look for the first inventor of the idea of a register of titles as an abstract idea, unconnected with any detail, and to award to that person the prize for inventing the South Australian system. The general idea of a register of titles goes back centuries, and indeed the pre-Torrens system involved a register of deeds. Torrens’s great contribution was that he converted the vague idea of title by registration into a practical proposition that was a real step forward in the law, made a version of it which appeared to justify the trouble and cost attendant upon its introduction, and persuaded the public of its usefulness.

Land titles reform became one of the major issues in the election campaign for the first Parliament of South Australia, which opened in April 1857. This fact is not surprising in a society in which all but the very poor were, or could hope to be, landowners, and given that all adult men in South Australia had the vote.5 Land ownership was one of the things that the ordinary person could aspire to in a colony like South Australia, as distinct from England; this opportunity was a source of pride and a reason to go there in the first place. Land titles reform was therefore not just a question of helping big landowners or land speculators; it was an issue that affected many people.

Furthermore, as Australia’s only non-convict colony, South Australia had been founded and built up by a group that included many people

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

20 The Law of the Land

dissatisfied with the English religious establishment and, more broadly, with inherited irrationalities and solutions dictated from above. It was therefore a place in which dissent and suggestions for reform had a ready hearing. It was a place in which the mid-nineteenth century’s spirit of law reform was able to flourish, and in the course of the 1850s South Australia produced no fewer than three further significant reform statutes making the law more rational in areas such as the citizen’s capacity to sue the government.6 Even in England, and elsewhere throughout the common-law world, new phenomena such as the Industrial Revolution and the broadening of the franchise were producing pressures for reform that had not been equalled in intensity for some centuries. Leading thinkers of the nineteenth century such as Jeremy Bentham – one of whose protégés, his ward John Bentham Neales, emigrated to South Australia and was a well-known figure there in the colony’s early years – had subjected the law to a test of rationality and demanded the vigorous sweeping away of useless traditions and entrenched privilege. Lord Brougham advocated law reform from the Lord Chancellor’s office, and by the middle of the century he and similar advocates for change had had considerable success in clearing away many ancient forms and fictions of real property law.7 Thanks to the great waves of legal reform throughout the nineteenth century, it is scarcely an exaggeration to say that England went into the nineteenth century with a legal system that still looked largely medieval, and to a considerable extent still was, whereas it emerged into the twentieth century with a recognizably modern legal system.

Many reforms had an even greater chance of success in colonies because their smaller size and greater freedom from entrenched privilege made it easier to take action than it often was in England, especially in areas affecting land, in which English privilege could be very entrenched indeed. South Australia was one of the best placed of all such colonies because of its tradition of dissent and reform and because it was a property-owning democracy. South Australians responded enthusiastically to Torrens’s calls for conveyancing reform. By advocating this cause and the registration of land titles, and by clever campaigning, Torrens was elected as the first candidate for the seat of Adelaide.8 (Also elected for the same multi-member seat was John Bentham Neales, the ward of Jeremy Bentham.) This indicates the importance of the issue of land titles reform in that election, and general public dissatisfaction with the defects of the old system.

An outline of Torrens’s bill for land titles reform had been published

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

The Invention of the Torrens System 21

in October 1856, well before the election, in the Register, the principal local newspaper. The editor, Anthony Forster, hailed it as the start of ‘a great and glorious reformation.’9 An extended summary of the provisions of a revised version of the bill was published in April 1857.10

Although we have these early sources for the bill that became the Real Property Act, we do not know very much about the behind-the- scenes process of drafting the bill. No written records of the early drafting process were kept, and most of the initial development of the idea probably took place in people’s heads and in face-to-face discussions. Virtually all we know about the development of the system until the introduction of the bill into Parliament is what can be gleaned from public sources such as parliamentary debates and newspaper reports. Even that is not very much. We are told, for example, in mid-October 1856 that Torrens ‘has, it seems, been devoting the Parliamentary recess to a consideration of the subject [of land titles reform], and the result is now brought to light in the shape of a draft Bill, embodying a large number of salutary reforms.’11 The legislative recess had extended for almost exactly four months at this point, since just after the middle of June. So there had been plenty of time to devote to the topic, but there is no record of precisely how the design of the system was conducted, or who exactly, other than Torrens, was involved in it.

Two things can, however, be said about the process of developing the system. The first is that Torrens certainly had help from many other people. This fact was clearly known to everyone at the time, but we know it even today, partly because Torrens himself pointed it out. John Baker, second premier of South Australia, even accused him of being the head of a ‘clique.’12

Shortly before mid-October 1856 there had occurred a meeting at Torrens’s house of ‘a party of influential gentlemen’ to consider Torrens’s proposals, which they approved.13 Perhaps this was the same gathering as the dinner of nineteen people at which those present are said to have pledged themselves to the Torrens system, or perhaps it was a different one.14 From the first, the Torrens system involved the efforts of a number of people under the leadership of Torrens. As early as January 1857 Torrens mentions as helpers three prominent colonists of the day – John Fisher (mentioned above), John Hector, and Marshall MacDermott.15 On one occasion, Torrens recorded in 1861, he was convinced by his advisers to alter an important point of detail in the bill.16 Some authors accordingly see the Real Property Act in its final form as the result of the work of a committee under Torrens’s leadership.17 We have no record of

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

22 The Law of the Land

the formation of a committee, let alone regular meetings.18 But clearly the Torrens system involved the cooperative efforts of, and discussion among, a number of leading lights in early Adelaide. The smallness of Adelaide at the time and the readiness of its leading citizens to consider useful law reform, coupled with the well-known need for reform in land titles law, facilitated this cross-fertilization process.

One of those whom Torrens consulted was the editor of the Register, Anthony Forster. Forster himself had strong views in favour of a reform along the lines of the Torrens system, and advocated reform in his newspaper. Forster appears to have studied the subject of land titles reform using reports of British Royal Commissions published in 1829 and 1830, and this study is reflected in his newspaper advocacy.19 It is no coincidence that Forster’s advocacy occurred just before the Torrens system was presented to the South Australian public. Forster’s newspaper articles were a means of preparing the public to consider favourably a reform which, because of his own involvement in or knowledge of behind-the-scenes preparatory work, he knew was about to be offered for their consideration. In 1859 Forster said that he had advocated reform before Torrens ‘was known to have entertained any idea of taking legislative action on the subject’ and that he had ‘helped prepare the popular mind for the reception of Mr Torrens’s measure.’20

The second thing that must be pointed out about the process of developing the Torrens system is that Torrens used other systems of registration to assist his planning. Part II of the British Merchant Shipping Act 1854 (Imp.) was his principal source. That Act was mentioned by the Register as early as July 1856 as a possible model for a reform of land titles law, and Torrens certainly knew of it from his time as Collector of Customs.21

However, there are considerable differences between ships and land, and between the Torrens system and the system of shipping registration. In particular, the Merchant Shipping Act 1854 did not establish a system of title solely by registration.22 But it did include a register book that was evidence (although not conclusive evidence) of the owner’s title. All but a very few of the clauses of the first draft of the Real Property Act owed their origin to the Merchant Shipping Act 1854, although as the draft developed the clauses taken from the Act of 1854 were gradually supplemented by others taken from a wide range of sources.23

We cannot know whether Torrens saw the Merchant Shipping Act and then conceived his system as a derivative from it, or whether he hit on the idea first and then turned to the statute as providing a precedent for

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

The Invention of the Torrens System 23

his desired outcome and a useful source of legal wording. The latter, however, seems more likely on the evidence available. One of the first ways in which the aims of the Torrens system were explained to the public was as a means of making a registered title just as valid as a title newly granted by the Crown. This idea was used to express the indefeasibility of the titles shown on the register – they were to be just as good as the first titles granted by the Crown – and this feature made the Torrens system worth the trouble and cost of introducing it. This could not have been borrowed from a system for the registration of ships, because the original title to ships does not stem from the Crown.

Moreover, Torrens’s ruminations on the subject of conveyancing reform preceded the Act of 1854. He said in Parliament in November 1857 that ‘it was nearly ten years since the ideas thrown together in [his] Bill had been first entertained by him,’ and that he had tested the ideas on various of his contemporaries over the years.24 Certainly he was thinking of radical reforms from a very early stage of his tenure of the office of registrar general, to which he was appointed in 1852. In February 1853 Torrens’s deputy made suggestions for administrative improvements to the system of registration of deeds that was then in force. Commenting on them, Torrens made his own suggestions to the governor for reform of the system. There is no sign of anything like the Torrens system in his minute, but there is also no reason why Torrens would have exposed every more adventurous but less fully developed line of thought to his ultimate superior at this point. Nevertheless, right at the start of his minute he announces apodeictically that ‘the object of registration is to ensure disclosure of title thereby facilitating the transfer of property and rendering fraud by concealment difficult if not impossible’; he declares that ‘a radical change in the entire system is required’; and he proceeds to advocate indexing by property location.25 All these points foreshadow the Torrens system.

On 28 July 1856, Torrens wrote to the Governor of South Australia, promising a further suggestion for a major reform soon.26 This was during the period of sustained development of the Torrens system, which occurred during the legislative recess beginning in June 1856. The immediate occasion for his letter, however, was the passing of an Act that provided for compulsory registration of all land grants from the Crown by the deposit of a duplicate in the Registry Office. The duplicate was to have the same value, as legal proof in land transactions, as the original grant from the Crown itself.27 There are obvious foreshadowings of the Torrens system in these ideas, too. It is therefore proba-

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

24 The Law of the Land

ble, although not certain, that Torrens first conceived the outline of his system and then turned to the shipping legislation to find some of the words he needed to make it a reality on the statute books and as a source of ideas to fill in some essential details.

Once Torrens had been elected to the Parliament of South Australia on his platform of conveyancing reform in April 1857, matters stood still for a few months. Torrens became the third premier of South Australia in September 1857; his government lasted almost the entire month, and most of his attention was doubtless absorbed in trying to keep his Cabinet together. (Before the development of the modern party system, such short terms as premier were by no means uncommon. Even at this early stage this was not the record for brevity in office: Torrens’s predecessor as premier, John Baker, had remained in office for only eleven days.)

Torrens’s bill was, however, eventually introduced into Parliament in November 1857. It had already been severely criticized in some quarters as a half-baked madcap idea of Torrens, a non-lawyer dabbling in legal affairs with insufficient knowledge and experience, but with a vested interest in making his own property holdings more secure. Torrens certainly was a landowner, and in that capacity he had something to gain from the bill. We should not make too much of this, however. It is not at all uncommon for people to advocate reforms from which they would personally benefit – in fact, it is the usual case. In our own day, for example, many gays and lesbians have advocated samesex marriage, and consumers have advocated increasing the rights of consumers. People will usually advocate law reform that affects them personally, arguing that they have a grievance that should be remedied. Most people do not promote law reform in areas that are no concern of theirs. We should not hold it against Torrens that he too was an advocate in a cause that affected him personally, and should recall that it was a cause to which many, many others rallied because this reform was in the public interest.

The Adelaide Times – an early newspaper that ceased publication before the Torrens system even came into operation – dismissed Torrens’s bill as ‘the production of a non-legal mind’ and ‘“a thing of shreds and patches”, picked up wherever he [Torrens] could lay his hands upon them.’28 The newspaper expanded on its opposition in another editorial:

Our objections … to this measure, then, are:— 1st, the large addition it will

make for years to come to the legal expenses incurred in the transfer of real

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 8:54 PM

The Invention of the Torrens System 25

estate; 2nd, the deprivation of the holders of real estate of one of their inalienable rights, that of being the sole depositaries of their own secret as to the extent of their possessions, and the title on which they hold them, by a compulsory registration; and 3rdly, the setting up, at an enormous expense, of a great Government Establishment, as the workshop at which all conveyances of real estate are to be manufactured, and all transfers and encumbrances compulsorily registered.29

The editorial writer’s objections were essentially two-sided: first, the system would not achieve what it was supposed to achieve; and second, it would take away the advantages of the old system such as privacy. Resistance on the grounds of privacy was not necessarily based on the need to keep ownership as such secret, as most people are neither able to hide the extent of their real property, nor averse to publicity on this score. Rather, a complete register of all interests in land might well reveal too much about people’s debts in the form of mortgages held over their properties.

The Adelaide Times was also suspicious of the motives of the bill’s promoters and accused its rival in the newspaper business, Anthony Forster of the Register, of promoting the bill in Parliament – Forster was a member of the Upper House, the Legislative Council – in the hope that he would receive income from the newspaper advertisements that would be required as part of the procedure envisaged by the bill.30

Some lawyers, too, opposed the bill. The unkind view was that some of them feared a loss of fees if the new system took hold, since they were the only people who could operate the old chain-of-title system. But there were less unworthy motivations for their opposition as well, such as an emotional attachment to the intricacies of the old system, or genuine scepticism about whether a system designed by a non-lawyer could really work. Historians are divided on the extent to which lawyers opposed the Torrens system, and there are few records of what they said or did. No doubt lawyers had a variety of views. Even the small colonial South Australian profession was not a monolith speaking with one voice. The contemporary perception was that the Torrens system was ‘opposed by most of the lawyers in this Province’ – most, but not all.31

The Real Property Act received royal assent on 27 January 1858 and came into force at the start of July 1858. Torrens resigned his seat in Parliament to be the first registrar general under the Act. The Real Property Act could be a success only if accepted by the community as an improve-

ment on the old system and a secure means of holding land. This was

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 8:54 PM

26 The Law of the Land

achieved very quickly. The South Australian Company, a major if not the major landowner in early South Australia, astutely recognized that its holdings would be more easily marketable if it obtained Torrens titles than if they remained under the old chain-of-title system. By mid1859 the Company was already making plans to acquire Torrens titles, bringing vast tracts of land under the system.32 As registrar general, Torrens helped the new system to find its feet, and thus may also claim some credit for the successful operation of the system in its first years.

Opposition to the Torrens system continued, however. Courts and lawyers discovered technicalities and loopholes in the original Act, and the Supreme Court of South Australia began to pronounce crucial bits of it invalid or ineffective. These defects, some real and some more or less invented by contrary judges led by Mr Justice Benjamin Boothby, meant that several amending Acts had to be passed from 1858 to 1861.33 Torrens was the principal defender of the system against those who argued that the need for amendments indicated that the whole system was bad.

In the course of time, judges’ and lawyers’ questions about the Real Property Act became subsumed in the larger issue of the extent to which the South Australian Parliament was permitted by the law of the British Empire to introduce innovations that were at variance with the law of England.34 This controversy was eventually resolved by two events: the passing of the Colonial Laws Validity Act 1865 by the Imperial Parliament, and the dismissal of Mr Justice Benjamin Boothby in 1867. Mr Justice Boothby had been the major proponent of the view that the South Australian legislature’s powers to deviate from the law of England were very limited indeed. His dismissal and the Colonial Laws Validity Act 1865 confirmed the wide powers of the South Australian legislature to introduce virtually any legislation it liked, including the Torrens system, as embodied in the Real Property Act [1858] and later amending legislation. Meanwhile, amendments had improved the system and eliminated early difficulties and imperfections. The legislation reached a more or less mature form with the Real Property Act 1861.

Torrens went on ‘missionary’ expeditions in the late 1850s and early 1860s to most other Australian colonies and New Zealand, persuading them to introduce a system similar to the South Australian one. This mission was completely successful by 1875, when Western Australia adopted the Torrens system. This was almost ten years before Torrens’s death. Unlike many law reformers, Torrens had the satisfaction of living to see his own success.

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

The Invention of the Torrens System 27

Torrens resigned as registrar general in 1865 after moving back to England. He entered the Imperial Parliament in 1868 as member of Parliament for Cambridge, but found that land titles reform did not excite as many people in England as it had in South Australia.35 The class of property owners in England was proportionately smaller than it was in South Australia, and Torrens found it impossible to stir up much popular interest in the subject. Furthermore, a major problem with the acceptance of land titles registration in England was the age and complexity of many titles, making it far more difficult to find out the true state of affairs as a precursor to registration and far riskier for the state to give a guarantee of the accuracy of what was registered.36 Torrens was nevertheless knighted for his services to law reform in 1872, but not re-elected to Parliament at the election of 1874. By then sixty years old, he decided to retire from public affairs. He died in August 1884, aged seventy, in Falmouth, Cornwall. Just before he died he had been visited by one John Herbert Mason, a businessman from Toronto who was beginning a crusade to have the Torrens system introduced into Ontario.37

A Thousand Fathers

In recent years, debate among legal historians in this field has concentrated on the question of who really thought up the Torrens system. In Germany, Dr Tony Esposito has claimed that the Torrens system was in all its essentials just a copy of the Hamburg system of land titles registration.38 We have already seen how Torrens’s plans emerged from his experience in the Registrar General’s Office and obtained a more definite shape through the merchant shipping legislation, but Dr Esposito suggests that Torrens’s original plans were wholly abandoned when he met a lawyer from Hamburg then resident in Adelaide, Dr Ulrich Hübbe. Hübbe is supposed to have converted Torrens’s proposal into a close and faithful adaptation of the Hamburg system of land titles registration, with some minimal updating. Hübbe himself also claimed at one point to have re-drafted the bill essentially from scratch.39 There is no doubt that the contribution of people other than Torrens to the introduction of the Torrens system has been minimized in the past.40 But now it seems that the pendulum is swinging too far the other way, with some people keen to strip Torrens of any credit for originating the system at all.

The similarity between the Torrens and Hamburg systems has been

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

28 The Law of the Land

convincingly shown by Dr Esposito and Professor Murray Raff. They have demonstrated how the Hamburg system evolved over time, and well before the invention of the Torrens system, into a system in which title was required to be registered and the register was conclusive evidence of what the title contained.41

Some degree of similarity at the broad level of principle does not of itself establish copying. It could also just be coincidence. This is also not an unlikely explanation. For example, a system of title by registration, like the Torrens system, is obviously going to have some means of recording who is registered, and the limited technology available in the mid-nineteenth century makes it very likely indeed that this would be some sort of book. So the mere existence of a register book in each system does not prove very much at all beyond the fact that the systems happen to be similar, which we knew already. It does not prove that one is based on another, which is what those pointing out such similarities wish to prove. It is also quite possible for two people to invent similar systems independently of each other – as happened, for instance, with the invention of calculus, which has been the subject of much dispute for centuries between the supporters of Sir Isaac Newton and Gottfried Wilhelm Leibniz (another competition between English-and German-speaking inventors).

Although Dr Hübbe’s claims have only been seriously asserted recently, there have long been competing claims to the invention of the Torrens system. This fact is not at all surprising given that ‘success has a thousand fathers.’ It is quite understandable that some of those who had a role in the creation of the Torrens system came with time and with the growing and then the astounding world-wide success of the system to view their part in its creation as greater than an unbiased observer might have done. For example, Anthony Forster claimed in 1892, once the success of the system was an established fact and Torrens himself was dead, that the system ‘originated in a series of leading articles that I wrote.’42 No doubt his agitation had helped put the issue on the agenda in the 1850s, but would he have made such a claim had the predictions of the Torrens system’s detractors been fulfilled and it had turned out to be a disaster and a flop?43 I suggested above that his newspaper articles were really a means of softening up the public to receive a reform that was being worked upon behind the scenes.

At any rate, in 1859, when memories were much fresher and more contemporaries were alive, Forster claimed only to have rendered ‘subordinate service’ – subordinate to Torrens, that is – and pointedly

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

The Invention of the Torrens System 29

disclaimed ‘the shadow of a desire to appropriate his well-earned laurels.’44 In 1866 Forster referred to ‘the wonderful Act which he [Torrens] framed’ and mentioned that Torrens ‘drafted a Bill … which, after embodying suggested amendments, was introduced into the Legislature and passed.’45

In a letter to the Register in February 1857, Dr Hübbe also suggested that the credit lay elsewhere. He referred to Torrens and ‘the principle of his Bill, [which] he has plainly enough indicated … both from the platform and in the papers.’46 This hardly reads like the statement of someone who had done all the work himself and is finding that his idea has been taken over by an impostor. The same conclusion must be drawn from references by Hübbe in mid-1857 to ‘Mr Torrens’s plan,’ ‘Mr Torrens’s Bill,’ and ‘Mr Torrens’s proposals.’47 As late as 1874, we find Hübbe applying for a professorship at the newly-established University of Adelaide and stating that he had ‘assisted’ with the ‘preparation, promotion and defen[c]e’ of the Torrens system.48 If these statements by Hübbe are to be reconciled with the thesis that Hübbe was the real initiator of the system, one must accept that he possessed a degree of diffidence comparable to that shown by only one other person in human history.49

We also know that Torrens and Hübbe did not meet until – at the very earliest – February 1857, and very possibly not until late May 1857, but that Torrens’s plans were well advanced before they met: the bill Torrens had published before their acquaintance clearly reflected the final shape of the system.50 Whatever Hübbe’s input was, it was relatively modest. Contemporaries of the two men reflected this by not mentioning Hübbe at all, while ceaselessly lauding Torrens for his great invention and the persistence he showed in having it accepted.

Deciding who gets the credit for the Torrens system might finally depend on the point of view of the observer. A lawyer will be more likely to concentrate on the details of the system as enacted and attribute the greatest credit to the person responsible for these details, or to the person responsible for the crucial change in legal principle, whereas a political scientist might be more concerned with the question of who persuaded the public and the legislature to undertake any reform at all and be less interested in the precise details of the reform.

As Hernando de Soto writes, ‘Many [reforming lawyers] understand that the primary determinants of change rest outside the law.’51 But commentators on the history of the Torrens system sometimes forget that. Even if Hübbe or Forster or one of Torrens’s other helpers did con-

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

30 The Law of the Land

tribute this or that detail to the plan as it evolved during 1857, the system would never have become law at all without the agreement of the Parliament of South Australia. The main ingredient in the success and adoption throughout Australia of the Torrens system was Torrens’s untiring promotion of it. He was helped considerably by a number of South Australians, including Dr Hübbe, Anthony Forster, and the other people he named. But the Torrens system remained throughout a project under Torrens’s undisputed leadership, using Torrens’s concept as its bedrock, and with Torrens as almost its sole public face.

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 8:54 PM

3

Vancouver Island: The Second Torrens

Jurisdiction in the World

Background

Despite the very rapid spread of the Torrens system within Australia and New Zealand, the second jurisdiction in the world to adopt the Torrens system was not in Australasia. It was Vancouver Island,1 where a British colony had been founded in 1849. Its registrar general, Edward Graham Alston, was the second Torrens registrar general in the world, after Torrens himself in Adelaide.

The British colony on Vancouver Island was set up in 1849 because otherwise the Island might have been settled first by Americans or squatters.2 Seen from London in the days before the trans-Canada railway, the western coast of Canada was nevertheless very remote. In order to reach it from what is now Ontario, it was necessary to travel via San Francisco and then take a ship north. There was, furthermore, little enthusiasm in the Colonial Office in 1849 for spending public money on another expensive colony.3 However, the Hudson’s Bay Company already had a strong presence in the area. Vancouver Island was, therefore, set up as what would now be called a public–private partnership between the Colonial Office and the Company.

Private colonies were not without precedent in the British Empire, but in Vancouver Island the rights and duties of the colonizing company were regulated in detail by a contract that is reminiscent of today’s contracts between government and private enterprise for the

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

32 The Law of the Land

provision of a service on behalf of the government. The land on Vancouver Island was granted to the Hudson’s Bay Company in return for promises to set up, run, and cover the expenses of a colony, with the British Crown lending its sovereign authority and imprimatur to that endeavour. A governor was sent from London to represent the Crown

– a young English barrister called Richard Blanshard. He quickly resigned when he found himself in a ‘comic opera’ situation:4 the colony he was nominally governing was in reality merely a Company fiefdom in which he was little more than an intruder.

The Hudson’s Bay Company itself had little incentive to make the colony grow – settlement and fur trading are largely contradictory activities – and did as little as it could in the direction of setting up a colony without actually breaking its promises to the Colonial Office. It was compelled to make a service (the colony) available and duly did so, but had no reason to encourage the use of that service at the expense of its profits.5 It was, in other words, a typical example of the problems that plague public–private partnerships in our own time also.

In its calculated indolence, the Hudson’s Bay Company was aided by Vancouver Island’s nominal adherence to the same Wakefield system of ‘systematic colonization’ as was initially used in South Australia. The general idea behind the Wakefield scheme was that land would be sold at a price high enough to provide a fund to pay the emigration expenses of labourers. The high prices meant labourers would be unable to buy their own land, at least at first, which would ensure a sufficient supply of landless labourers as a workforce in colonies and restrict land ownership to their betters. The British certainly did not want to reproduce the lawlessness if not near-anarchy they associated with early California, and some believed that the Wakefield system was the way to ensure this.6

On Vancouver Island, land was to be sold by the Hudson’s Bay Company, whose title to the land on Vancouver Island was subject to its establishing a colony within five years.7 In addition, no sale of land was to be of less than twenty acres, and it was not to be sold at less than £1 per acre. Further conditions were attached to land sales, such as requirements that purchasers bring with them a group of labourers in order to ensure an appropriate and well-planned mix of upper, middle, and labouring classes on the Island.

All this sounded fine in theory, but the theory took no account of the remoteness of Vancouver Island, the lack of enthusiasm of those who

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 33

could afford the high prices of land for the move to Vancouver Island, and the lack of any incentive for the Company to overcome these obstacles. There was also a lot of ignorance, understandable in the days of a rapidly expanding empire and changing world map, of the existence and location of the colony: as late as 1862, when the attention of the English public was drawn to the vicinity by a renewed gold rush on the mainland, a correspondent of The Times of London reported that he had been inundated with letters asking where Vancouver Island was and how to get there.8 Above all, however, the Wakefield scheme on Vancouver Island was doomed from the start by a further factor: land of equal if not better quality for agricultural purposes could be had just across the Strait of Juan de Fuca for less than a quarter the price.9 There was, in short, little incentive for anyone to go to Vancouver Island, and when they did get there, an excellent incentive to leave for the United States if they wanted land of their own.

As experience in South Australia had also demonstrated, the Wakefield system was additionally flawed because it was unrealistic to divide power over land sales and emigration from governmental power more generally. This unrealistic feature of the scheme was the root cause of Governor Blanshard’s rapid departure. As John Weaver has pointed out, ‘the British Empire was the first global realm in which large-scale taking and reallocation of land became the leading activities, activities engaging administrative attention and invention.’10 Control over the allocation of land was so central to the business of setting up a thriving colony that it could not be divided from the general business of government without fatally weakening the government itself. Real power on Vancouver Island thus remained with the Hudson’s Bay Company and its chief factor on the Island, James Douglas, a strongwilled and autocratic man, but nevertheless decisive, intelligent, and fair.11 He was appointed second governor after Blanshard’s departure so that governmental authority and the distribution of land would be coordinated.12

Vancouver Island therefore grew very slowly throughout the 1850s until it abandoned the Wakefield system, thus dramatically lowering the price of land, in a series of stages in the late 1850s and early 1860s.13 This development was reported in The Times and was followed shortly afterwards by the avalanche of letters to that newspaper’s correspondent from potential emigrants asking where Vancouver Island was.14

The Wakefield system’s existence both in South Australia and on

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

34 The Law of the Land

Vancouver Island was merely a product of the fact that the two colonies were founded at about the same time, but that coincidence led to the two colonies’ sharing something else – the Torrens system. This was not because of any necessary connection between the Wakefield system of colonization and the Torrens system, however. The delay in the growth of Vancouver Island because of the defects of the Wakefield system meant that by the time the colony was ready to throw off the Wakefield system and expand, South Australia had invented the Torrens system, which was ripe for export.

The need for a good system of land titles registration and for secure titles to land, which the Torrens system provides, was appreciated at the very top of the administration of Vancouver Island even while it was still labouring under the Wakefield system of colonization. James Douglas had linked settlement and land titles as early as 1850, expressing the hope that the secure land title would attract settlers away from the United States and its territories. He wrote that some acquaintances of his

wish to become settlers; but are scared at the high price charged for land say £1 sterling per acre.

… For my own part I am resolved to hesitate no longer, but to make a purchase as soon as possible. I would rather pay a pound an acre for land with a secure title and numerous other advantages than a farm for nothing with ten years’ torturing expense.15

The need for secure land titles became even clearer when settlers began arriving in numbers and a land boom was sparked off by the gold rushes on the mainland beginning in 1858.16 As early as December 1858 and again in November 1859, the colony’s first newspaper, the Victoria Gazette, referred in an editorial to the urgent need for a system of land titles registration in order to combat fraudulent multiple sales and mortgages and (by the latter date) to the ‘culpably negligent’ failure of the local legislature to produce such a system.17 In 1860 the authorities on Vancouver Island, rightly anticipating a boom in land sales after the end of the Wakefield system there and the consequent sharp reduction in the price of land, not to mention the gold rush on the mainland, introduced a version of the Torrens system of title registration. This was embodied in a statute entitled the Land Registry Act 1860, which despite the year in its title did not receive royal assent until 18 January 1861 and was implemented later in that year.

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 35

Establishing the Australian Link

The origins and status of the Vancouver Island system as an outgrowth of the Torrens system of South Australia have recently been called into question by Jeremy Finn, who found nothing in the archival records to demonstrate any such link.18 It is certainly true that the influence of Torrens’ principles in the Land Registry Act 1860 of Vancouver Island is only dimly visible to the naked eye and in the archival records. The statute requires some analysis in order to make Torrens’ influence apparent. But the historical link between them has now been established by my research.

The South Australian statute had received assent in early 1858. There was thus ample time for the transmission of information about the Torrens system from South Australia to Vancouver Island by 1860, when Vancouver Island’s system was being formulated. The means of its transmission was, as one would expect, British – that was the common link between the two colonies – and went through the Colonial Office. In those days each colony had to transmit to its headquarters in London copies of all colonial statutes so that the imperial authorities could consider them and (in rare cases) recommend disallowance if that appeared necessary. Given the centrality of land to the British Empire’s undertaking, it is not particularly surprising that ideas for improving land management circulated rapidly throughout the colonies and were promoted by the Colonial Office.19

The conduit for the reform embodied in Vancouver Island’s version of the Torrens system was the Solicitor General for England, Sir Hugh Cairns – later as Lord Cairns, Lord High Chancellor of Great Britain. Cairns was solicitor general in Lord Derby’s second ministry, which held office from February 1858 to June 1859. In the nineteenth century, Cairns’s name was strongly associated with the advocacy of land registration systems. He was, furthermore, convinced of the futility of regis- tration-of-deeds systems such as that which Torrens had superseded in South Australia.20 And while solicitor general, Cairns procured in March 1859 the appointment by the Colonial Secretary of a protégé, George Hunter Cary, as attorney general for British Columbia.

At or before this time, information about the Torrens system in South Australia reached Cairns. In April 1859 Lord Carnarvon – then undersecretary of state at the Colonial Office and later to play a major role in the negotiations leading up to Canadian Confederation in 1867 – arranged for a copy of South Australia’s legislation to be sent to Cairns.

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

36 The Law of the Land

Further minutes suggest that Cairns did not send it back.21 This is the latest time at which Cairns could have come to know of the Torrens Act. It is quite possible that he knew of it even earlier given that his interest in land titles registration was clearly well known and that other persons in England doubtless knew what South Australia was doing. Torrens’s father, for example, was still alive. Another possible route for earlier discovery is through Cairns’ role as solicitor general, which included advising on the validity of colonial legislation: there was in fact a doubt about the validity of section 35 of the original South Australian Real Property Act, which clashed with a procedural provision in the South Australian Constitution.

Cairns approved of the principles of the Torrens system, referring on one occasion to ‘the great debt of gratitude which the Australian colonies owe to Mr Torrens’ for his ‘safe simple and expeditious mode of transferring real property.’22 Therefore Cairns informed his protégé, George Hunter Cary, of the existence of the Torrens scheme and pressed upon him the desirability of considering it for adoption in the Pacific coast colonies. Shortly after Cary’s arrival on the West Coast on 26 May 1859 he also became acting attorney general for Vancouver Island.23 That, in short, is how the Torrens system became known there.

When Cary arrived on Vancouver Island, the legislature had made considerable progress with a deeds registration bill of the old style. On the day of Cary’s arrival, the House of Assembly agreed to set aside time for extensive debate on the bill on 7 June.24 But no further work of any significance occurred on it on that day or thereafter, and it did not pass although the House of Assembly remained in session until 7 December 1859. Given that the need for some system of land registration was clear and urgent, it is likely that this sudden halt occurred because Cary had indicated to the powers that be that he had better ideas, which would shortly be available for the legislature’s consideration. Perhaps, too, Cary had been responsible for the sudden appearance in the British Colonist on 10 June of the Torrens-like ideas that a land titles bill should be so drawn ‘that any one may be his own conveyancer’ and that ‘the useless verbiage of the common law forms ought to be discarded by statute … Schedules should be added to the Bill, showing the form of acknowledgement.’

Although Cary himself left no record of his acquaintance with the Torrens system, two of his contemporaries did. First, there is Cary’s colleague (Sir) Henry Crease. He succeeded Cary as attorney general for British Columbia and went on to become a long-serving judge of the

united Colony of British Columbia and then of the Canadian province

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 9:22 PM

Vancouver Island 37

of British Columbia. Towards the end of his life, after his retirement from the bench in 1896, Sir Henry clearly felt the need to record what he knew of the history of the legal system of British Columbia. In a manuscript forming part of what looks like the draft of a book that never saw the light of day, he says that the Torrens system was brought out by Cary from the Colonial Office to his new posting.25 Second, the Speaker of the House of Assembly of Vancouver Island, Dr J.S. Helmcken, also makes a reference in his reminiscences to a borrowing from Australia in this period. He states that the House passed a ‘great measure, drawn up by Cary, I believe, and based on the Australian Act.’26

There are also some remarkable coincidences in wording between the South Australian statute and the Vancouver Island version which are explicable only by deliberate copying and which corroborate the statements of Cary’s contemporaries.27 One of these is shown in table 3.1.

Other such similarities between the two pieces of legislation may admittedly be the result of reference to an independent common source. Thus for example, it cannot be ruled out that the close resemblance in wording between section 6 of the Real Property Law Amendment Act [1858] (S.A.) and the last paragraph of section 7 of the Land Registry Act 1860 (V.I.) dealing with the registrar’s power to correct errors might be explained by the fact that each was independently copied from clause 64 of the English Registration of Assurances Bill 1853.28 There are other instances of similarities that cannot be definitely included in the list of sections copied from South Australia for the same or similar reasons. However, the fact that all English legislation and bills for the period from 1801 onwards can now be searched online enables it to be said that there is no English precedent that could possibly explain the close resemblances in wording between the two sections compared in table 3.1.

It is therefore clear beyond doubt that the Vancouver Island drafters had before them the South Australian statute. But which one? Several amending and consolidating statutes appeared shortly after the original model of 27 January 1858. It may well be that the South Australian source was in fact the Real Property Act 1860, a statute consolidating the statute of 1858 and its amendments. It is noticeable in particular that the 1860 statute, like its equivalent in Vancouver Island, omits the directive found in the South Australian version of 1858 that maps were to be of a particular minimum scale. Since the Real Property Act 1860 received royal assent on 17 October 1860, any such version available on Vancou-

ver Island in time for an Act that received its assent in January 1861

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 9:22 PM

Vancouver Island 39

of British Columbia, had practised at the Victorian bar in Australia in the 1850s. A cousin of William Stawell, chief justice of Victoria (Australia) at the time, McCreight arrived in Vancouver Island in 1860 directly from Australia. The Torrens system was already very well known in Victoria (Australia) at the time, and agitation for its introduction was well underway by the end of 1859; a Torrens bill was introduced into the colonial Parliament there in December of that year.30 McCreight’s presence on Vancouver Island was first recorded on 11 August 1860, so he had ample time to absorb this before he left, and he was soon practising alongside Crease himself.31 Possibly thirty years later Crease conflated the bringing of the original gospel by Cary, coming via the Colonial Office, with later evangelism via some such apostle as McCreight. But this is to leave the firm ground of what can be definitely proved.

Henry Crease tells us a little more about the process of drafting the statute in his recollections. He says that the Act

was framed from the draft of the original New South Wales Act sent to the home government for approval, bearing the same title and since well known as the ‘Torrens Act’ …

Mr Cary with the assistance of Mr E. Graham Alston (an experienced English conveyancing counsel, afterwards Registrar of Titles) and Mr Crease, an independent English barrister then practising in the colony, having carefully compared it, recommended the adoption of the principle and general tenor of the Act, with certain modifications calculated to simplify and facilitate its operation, under the circumstances of an infant colony.

They substituted the Registrar of Titles, with the aid (if required) of a speedy and inexpensive reference to a Judge of the Supreme Court in Chambers, for the highly paid Board of Professional Examiners of Titles of the original draft more suited to an old and richer colony like Australia than an entirely new dependency, as to the admissibility of the title of each and every settler applying to be placed on the Register ...

It is remarkable that this ‘first introduction’ of what is termed ‘the Torrens principle’ into British North America preceded its practical application by statute into its native habitat, Australia, by the short period of about three months.32

We should not be misled by Crease’s confusion between New South Wales and Australia as a whole. This was common in the nineteenth

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

40 The Law of the Land

century because the whole of eastern Australia had originally borne the former name and all Australian colonies except one had been carved out of the original territory of New South Wales.33

It is less easy to explain Crease’s statement that the Torrens system was adopted in Vancouver Island three months before its adoption in Australia, or the statement about the coincidence of the statutory titles: New South Wales and Victoria, for example, adopted the Torrens system by statutes passed in 1862, and neither bore exactly the same title as the Vancouver Island statute adopted in January 1861. Possibly a longlost early draft of the statute was consulted, or a copy with a transcription error was made; possibly Sir Henry’s memory was at fault on this matter of detail after over a third of a century had passed. Henry Crease had communicated with Edmund Barton (later Australia’s first prime minister) in 1893 about the system of land registration, and it is also possible that he had been misinformed by Barton.34

There are also a few contemporary references from the period when the Vancouver Island Act was adopted, indicating that its Australian parentage was known to the general public at the time. We should not expect many of these references, as there was no official report of debates in the legislature (the House of Assembly) at the time. The only reports we have are from the columns of the Daily British Colonist, and these can be very sketchy. The only reference by Acting Attorney General Cary to the parentage of the bill in newspaper reports on the House of Assembly debates indicates that when challenged about the workability of his proposed system, he stated that it ‘has worked for ages, although it has been modified and improved. We are indebted to the Dutch for this system.’35 (The fact that various Continental legal systems had various forms of land registration provoked various attributions of the idea – not just to the Germans, but also as here to the Dutch.)

Just as Torrens responded to criticism of his proposal by indicating that it was similar to existing systems elsewhere, so too did Cary. In the context in which he was talking, it was beneficial to claim the greatest possible antiquity for the system proposed (as Torrens himself had also done).36 We therefore should not wonder at his omitting to mention a very recent Australian precedent. Later, however, in the same debate a speaker refers to discussions on the version of the bill before the ‘Parliament of New South Wales,’ again confusing that colony with South Australia but indicating that the Australian origins of the reform were known.37

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 41

Even more importantly, the Vancouver Island correspondent of the Daily Alta California, a newspaper published in San Francisco, wrote the following from Victoria on 7 October 1861:

Registration of Deeds

An Act for the registration of deeds, etc., for British Columbia [i.e., the mainland colony only], has just been published, and will come into force very shortly. This Act resembles, in many respects, the California one – in fact, that has been made the basis of its construction. In Victoria the registration Act is based upon the principle of the Australian law – at least it is said to be – and instead of being a mere ‘registration,’ aims at keeping ‘titles’ perfect; without a good title none can register. There is no such thing as copying the deed. Thus far it has succeeded very well, and is becoming more and more popular every day. Of course when the original deeds have been registered, there is but little difficulty, excepting that many conveyances made about the time of the excitement of ’58 have been informally drawn up; but attention being drawn to that fact, the remedy in most cases is very easy.38

This report shows that the system’s Australian provenance was a matter of common knowledge at the time in Victoria. The words ‘at least it is said to be’ indicate that the author of this report – it is signed ‘Anglo-Saxon,’ but the identity of the correspondent using that pseudonym is not known39 – was not able to state from his own personal knowledge that it was indeed the Australian system. Such a frank confession of the limits of his own personal knowledge, almost certainly due to a lack of personal acquaintance with the Australian system, can only increase our faith in his reliability as a contemporary witness.

Our correspondent has moreover clearly grasped the difference between the ‘hospital’ principle of the Torrens system and the principle of deeds registration which it supersedes; the latter principle had indeed, as he says, been adopted on the mainland of British Columbia, for reasons that will be explored in the next chapter. This too is an impressive degree of understanding of legal matters for a newspaper correspondent, even for times in which the reform of land titles law was a major public issue.

Parenthetically, it is also worth recalling that there was no shortage of news in the United States of America in late 1861. The fact that space was found at all for the report just quoted is another indication of the

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

42 The Law of the Land

importance of land law reform to people in common-law jurisdictions in the nineteenth century.

Was It Really the Torrens System?

Although the Vancouver Island authorities knew of the Torrens system and copied some details like plans of subdivisions from the South Australian statute, this still does not establish that they adopted the whole South Australian system. In order to demonstrate that this was indeed the case, it is necessary to show that the Vancouver Island statute included at least the basic principles of the South Australian statute. A closer look at the statute of Vancouver Island shows that it did.

Commentators from various periods of Canadian history have doubted whether the Land Registry Act 1860 that was implemented on Vancouver Island in 1861 was really the Torrens system at all. In many cases such views were not part of a disinterested academic debate but rather a contribution to a discussion about whether the Torrens system should be introduced somewhere else. Thus, during an 1885 debate on whether the system should be introduced into the North-West Territories, Senator the Hon. Sir Alexander Campbell, QC listed the deviations from the ‘true’ Torrens system in what was by then the British Columbia legislation, and opined that owing to such deviations, Torrens himself along with various other authors were wrong to describe the Vancouver Island statute as a version of the Torrens system.40 Sir Alexander’s opinion was not entirely off the mark: for reasons that will be explained later, the original system adopted in the early 1860s had been altered by this time to obscure rather than highlight one of the Torrens system’s cardinal principles, the rule that title passes only with registration. However, the enunciation of this opinion had more to do with Sir Alexander’s initially lukewarm enthusiasm for the Torrens system than with the actual Vancouver Island statute as it operated in practice and was meant to operate. From the previous discussion of the essentials of the Torrens system, we might expect a Torrens statute to include the principles that the register of land titles is conclusive evidence of the state of the title; that it is not necessary to look behind the register in order to ascertain who the owner is; and that it is the registration of the transfer or creation of interests in land that produces an effect in law rather than a private agreement between the parties, ensuring that no defects in the latter process can affect the validity of the former.

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 43

Effect was indeed given to these principles in the Vancouver Island statute, subject to the sorts of exceptions we might expect in a Torrens system modelled on that of South Australia. Thus for example, section 24 of the Vancouver Island statute stated the following:

24. No purchaser for valuable consideration of any registered real estate, or registered interest in real estate, shall be affected by any notice express, implied or constructive of any unregistered title, interest or disposition affecting such real estate, other than a leasehold interest in possession for a term not exceeding one year, any rule of law or equity notwithstanding.

In this way the notice rules were abolished and interests not on the register were invalidated (except that of the short-term lease, which is a typical exception in a Torrens system).41

With respect to land being brought under the system for the first time, Crease’s reminiscences quoted earlier show that he deliberately decided to dispense with Torrens’s land titles commissioners, but otherwise his solution was quite similar to Torrens’s. The initial decision was to be made by an administrative officer (even if his registrar general was legally qualified) and disputes referred to the court.

Section 20 of the Land Registry Act 1860 stated that if a person remained registered as owner for five years without challenge and applied for an indefeasible title, that title would confer ‘an absolute and indefeasible estate of fee simple against all the world, other than a tenant in possession under a term not exceeding one year’ and subject, of course, to any registered mortgages or other charges.42 Section 21 provided for cases in which two persons were registered as the sole owners of one piece of land by stating that the winner in such contests was to be ‘the person who, either as the person originally registering, or by a regular train of duly registered transfers, first completes the aforesaid term of five years without any issue remaining unsatisfied against the land.’ These are register-centred provisions, reflecting the basic principle of the Torrens system.

Vancouver Island’s statute provided no other exceptions to this principle of the register’s authority, such as might be found in a modernday Torrens statute in cases of fraud or forgery. The idea was clearly to have completely clear titles after the waiting period had expired, titles that could not be challenged in any form. On the other hand, before the five years expired and the indefeasible title was granted, most com- mon-law grounds of challenge, including fraud and forgery but not

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

44 The Law of the Land

notice, continued to be available, and the statute provided a mechanism for challenging a registered but not indefeasible title in sections 26 and 42. This trade-off made it possible to have a rather less elaborate mechanism for bringing land under the new system, and while the cost was some diminution in the ease of transferring land (because the fiveyear period would have to begin again with a new owner), this price appears to have been considered worth paying in a colony like Vancouver Island, which had a smaller population and much less land trading than South Australia.

As far as transfers were concerned, section 47 conceded that they might still take place by deed, no doubt because that was what people were used to.43 This provision lasted only until 1865, when transfer by ordinary Torrens-style instrument (‘Form T’) was substituted by an amending Act. E.G. Alston, the registrar general, commented that the amending Act would end ‘the present cumbrous and expensive system of conveying land’ by using a simple transfer form instead of ‘the multiplicity of deeds which answer no useful purpose’; he went on to compare again the principle of the existing Act with that current in ‘South Australia.’44 By 1880, however, the registrar general reported that the statutory forms, ‘being permissive, and not compulsory, have been wholly ignored by the legal profession, and remain to this day a perfectly dead letter.’45

Yet in the end this detail, while it certainly makes the Vancouver Island system look different to its users from the South Australian one, is only superficial. Far more important than the design of the form used to record a transfer is the legal effect of registering it. The federal minister of justice, (Sir) John Thompson, perceived this point clearly when he pointed out to the Senate in 1886 that what had by then become the system applicable throughout British Columbia was a Torrens system as regards ‘the registration of titles,’ while differences extended only to ‘the old system of conveyancing.’46 Thus it was not merely an amending statute but section 47 of the original statute of 1860/61 that laid down the more basic principle, essential to the existence of a Torrens system – namely, that the ownership passed only upon registration of the deed or whatever other form was used. Sections 49 and 57 gave effect to the same principle in the case of charges over land such as mortgages, which could be transferred only by registration. This is the crucial point at which the registration-of-deeds system fails and the Torrens system succeeds. The drafters in Vancouver Island chose the successful system, no doubt partly because Hugh Cairns impressed

upon G.H. Cary the need to do so.

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 9:22 PM

Vancouver Island 45

In combination with similarities of wording that rule out mere coincidence, these features establish that the Vancouver Island system was indeed a simplified and adapted version of the Torrens system. At the same time, Vancouver Island’s debt to the English attempts at reform cannot be overlooked. It could hardly be otherwise, given that the South Australian reform was received via a critical audience (in the best sense of that phrase) in England, whose leading member was Hugh Cairns. Reference to contemporary English sources indicates that a number of ideas in the Vancouver Island statute were borrowed from there, too.

It would be tedious to enumerate all possible derivations from English sources given the large number of possibilities, the fact that we do not know how many of the numerous draft English bills were available in Vancouver Island at the time, and the possibility that many ideas might, if not independently conceived, have been additionally inspired in whole or in part by the Torrens statute as well. However, one feature that does stand out is the idea of having two classes of certificate. In Vancouver Island there were two classes of registration, one indefeasible and one essentially recording the putative ownership until the period of five years should have passed and indefeasibility arose. The idea of a two-class system cannot be found in South Australia’s Act, but is rather seen in contemporary English sources such as the Land Registry Act 1862 (U.K.), section 25, and even more clearly in the Report of the Royal Commission of 1857, in which the commissioners proposed such a system.47

The Royal Commissioners pointed out that their second-class titles would also ultimately ripen into first-class ones once the limitations period (then twenty years in England) had expired.48 However, they made no provision for a particularly short limitations period in order to speed this process up. The idea of reducing the period to five years to aid in the creation of a secure title appears to be an original Vancouver Island invention. This solution makes a good deal of sense in a small, remote community as Vancouver Island was, in which everyone knew everyone else and which departing residents might well leave for ever. The period of five years was also a well-chosen compromise reflecting two competing requirements. On the one hand, it was necessary to make the period fairly short, or else the system would not attract would-be registrants and they would not take advantage of it; on the other hand, the period had to be long enough to give all would-be claimants sufficient time to urge their claims.

But the British Royal Commissioners’ report of 1857 states only that

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 9:22 PM

46 The Law of the Land

registration was to make a transfer by deed ‘complete.’49 The adoption of the Copernican revolution in conveyancing law on Vancouver Island, which made the register, not the dealings between the parties, the centre of proceedings, is therefore to be attributed only to the Torrens system and not to any English source.

The drafters of the Vancouver Island statute almost certainly referred, however, to the Registry of Landed Estates Bill 1859. This bill was introduced into the U.K. House of Commons by none other than Hugh Cairns and amended in the House on 28 February 1859 – just as G.H. Cary was proceeding to Vancouver Island – to add two words stating clearly that transfer shall ‘when registered’ confer ownership upon the transferee.50 So it may be that this principle was hit upon by Cairns as the South Australian Act was on its way to him, via the Colonial Office, from Adelaide; if, on the other hand, he had already received a copy by some other means, he might have recognized the key principle and merely copied it from South Australia. Certainly the Daily Alta California’s report, with its crystal-clear reference to the ‘hospital’ principle derived from the Australian Act, indicates that this crucial element was considered to be of Australian origin in Vancouver Island in October 1861. Possibly the Vancouver Island authorities did not hear of the English amendment of 28 February 1859, or it was not the English amendment but South Australia’s statute that was the original source for the Vancouver Island statute.

As we saw above, Crease’s recollection of the events surrounding the drafting of the statute of 1860/61 was that the drafters, of whom he was of course one, adopted the ‘principle and general tenor’ of the South Australian legislation (nowhere does he say the exact wording of the South Australian statute) ‘with certain modifications calculated to simplify and facilitate its operation, under the circumstances of an infant colony.’ Nevertheless, he continued to consider it a form of the Torrens system, as was shown by his judgment in a case in 1888, when

he referred to the Torrens system’s introduction on Vancouver Island in 1861.51

It was quite natural for the legislature and drafters on Vancouver Island to make a free adaptation of the Torrens system in their jurisdiction. For one thing, their knowledge of Torrens was mediated through Cairns, who had his own bills and experience to draw upon and no doubt had formed his own opinions of the strengths and weaknesses of the Torrens model. Moreover, Crease had himself been a conveyancing barrister and doubtless considered himself expert enough to make con-

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 47

tributions of his own based on his own experience and knowledge.52 On Vancouver Island, unlike in the Australian colonies, Torrens himself was not present to lead a popular clamour for the adoption of his panacea, so that deviations from it were more easily made.

Henry Crease was also aware of the manifold differences between South Australia, by then a bustling colony with a population of over 100 000, and the tiny community of Vancouver Island, which had a population of only a few thousands, mostly living in Victoria.53 Such differences affected every facet of the life of the community, including land titles. It explains why, for example, there was no need on Vancouver Island for an elaborate three-man board to vet applications to bring land under the Act, as there was under the South Australian model; the registrar general could do it alone. As late as 1870, the small size of the colony was still a factor commanding the attention of Crease in this field. He indicated that he had ‘largely borrowed’ from the Torrens Act, but also justified remaining differences of detail by stating that not all of the Torrens system’s machinery was ‘adaptable to a sparsely populated land like British Columbia.’54 At this point British Columbia (which had come to include Vancouver Island) was still less populous than Prince Edward Island and was to remain so until 1892.55 Crease says that it was again the factor of population that persuaded the drafters not to make registration legally compulsory, as it was in South Australia; but at the same time they hoped, and it turned out to be so, that registration would become practically compulsory because of the advantages of the system.56 Another factor at the forefront of Crease’s mind was the ‘chaotic state’ of land titles in Vancouver Island, which was also a reason for not making registration compulsory and for

introducing the staged indefeasibility approach in the Act of 1860/ 61.57

Moreover, Crease was opposed in principle to the thoughtless copying of one statute from one jurisdiction to another. He stated in 1869 that ‘the experience of recent legislation is against suddenly taking a local statute of another colony, framed under a set of circumstances special to that colony, and inserting it into the statute book of another colony where different circumstances and different laws exist, with which it cannot possibly harmonise.’58 It is not likely that we should find a mere copy of a statute from a very different colony drafted by a person holding such views, and the fact that we do not does not imply that no attention was paid to the South Australian statute. Crease’s view also explains the different treatment in the Vancouver Island Act

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

48 The Law of the Land

of certain property-law institutions, from trusts to more exotic interests such as remainders.

Whether the result of this process of simplification and adaptation is a ‘true’ Torrens system or not depends on what definition one adopts. As well as the other differences already outlined, the Land Registry Act 1860 (V.I.) made no provision for an assurance fund, for example. It is worth recalling, however, that even today Malaysia considers that it has the Torrens system, although it also deliberately chose not to have an assurance fund. Nova Scotia has taken the same view even more recently on the grounds that such a fund is not really required because the few claims to be expected can be met from ordinary governmental resources.59 In fact there is no one true version of the Torrens system, handed down from on high; even in South Australia during Torrens’s lifetime improvements were continually being made, and of course they continue to be made today. Furthermore, circumstances in one place might decree the adoption of different solutions to questions of detail from those adopted in other places. On the other hand, there must be some way of recognizing a Torrens system as distinct from any other type of system, and thus some irreducible minimum content. In particular, the provision that transactions obtain their legal effectiveness by being publicly registered is a cardinal point and was a feature of Vancouver Island’s system.

But does the removal of an assurance fund make the Vancouver Island system something other than a ‘real’ Torrens system? Examples of jurisdictions in which the Torrens system exists without an assurance fund even today suggest that this is not the case, and that the system remains a Torrens system as long as the other main principles of the system are recognizable, such as the centrality of the register. The contemporary evidence we have, such as the report of the Daily Alta California, suggest that the same view was taken in the 1860s as well. In Vancouver Island, the assurance fund was removed for a number of very cogent reasons: it was (rightly, as experience has since shown) thought to be unnecessary; it would cause expense and deter would-be registrants; taxation was difficult given the smallness of the Vancouver Island community and because of its legislative organization.60 E.G. Alston, the registrar general, stated that an assurance fund on the Australian model was considered again in 1870 but rejected as unnecessary in British Columbia.61

In Vancouver Island, the functions of an assurance fund were taken on instead by the system under which five years had to pass before cer-

tificates of title would produce an indefeasible title. People are not com-

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 9:22 PM

Vancouver Island 49

pensated by the state in any field of law if they allow their rights to lapse through non-compliance with statutes of limitation, and this was simply a version of that principle with a rather shorter period of limitation than is usual. It is therefore easy to see why an assurance fund was seen to be an optional extra in the circumstances of Vancouver Island, and why its omission, coupled with the insistence upon a delay before the register became an unchallengeable record of ownership, was an example of an intelligent adaptation of the Torrens system to local circumstances – an improvement on it rather than a rejection of it.

In a general history of British Columbia law written in 1890, a young lawyer and future judge named John Forin called the Vancouver Island statute of 1860/61 ‘a quasi-Torrens system.’ But lest we should think this description dismissive, he added that as now in force in British Columbia, it was ‘an admirable system of land registration. The knowledge and integrity of the registrar are the guarantee of safety to the public … Great care is exercised in the registry offices, and so far no dereliction of duty has occurred.’62 The people of the time, therefore, after thirty years’ experience of the system, did not consider it inferior because of its lack of an assurance fund. This was because it was so well administered.

It is also worth mentioning that – while there was no right to sue a statutory fund in cases of loss of land – from the beginning, the Second Schedule of the Torrens Act in Vancouver Island, like section 34 of the South Australian Act, provided for a payment of a percentage of the value of a property that was brought under the Act. In South Australia’s case the owner had to pay a farthing in the pound, or just over 0.1 per cent; in Vancouver Island it was 0.2 per cent, reduced to 0.1 per cent in 1865 for land valued at over $5000. Perhaps one of the ideas behind this in Vancouver Island was to provide a fund in case the government was successfully sued for badly administering the system under the general law, or felt called upon to make an ex gratia payment.63 As we saw, however, no registration was ever called into question, so the question of whether the government could be made liable for its officers’ errors under the ordinary law, without a special enactment to that effect, was never tested. Nor was an assurance fund ever actually needed.

Public Response to the Torrens System

As acting attorney general, George Hunter Cary was the public face of the Torrens system on Vancouver Island. Like Torrens himself, he was

a man who was capable of arousing strong opposition and a measure of

Brought to you by | Cambridge University Library Authenticated Download Date | 4/9/17 9:22 PM

50 The Law of the Land

personal dislike. His contemporary Robert Burnaby called Cary ‘a conceited prig of a chap.’64 Cary also occasionally behaved in a fashion that was surprising in a person in his position, even on the frontier. One does not expect, for example, an attorney general to be sent to jail, even for a day, as Cary was, for refusing to be bound over to keep the peace (that is, to undertake, under threat of penalty, not to break the law again) after challenging an opponent to a duel.65 Nevertheless, there is a remarkable similarity between this incident and Torrens’s own conviction for assaulting a newspaper editor. Unlike Torrens, however, Cary died young (at thirty-four), and his death was preceded by a period of insanity. In 1865 he was found sowing peas among potatoes in his garden with a candle, and was persuaded to return to his family in England by a fictitious telegram offering him the post of Lord Chancellor!66

Quite possibly some of Cary’s irascibility in the early 1860s, when he was introducing the Torrens system into Vancouver Island, was a precursor of this affliction. Furthermore, in a small frontier community there are bound to be sharp personal animosities, and some of Cary’s less pleasing personal characteristics might have been accentuated by such conflicts. Nevertheless, Cary could not have achieved as much as he did had he really been, as one modern source says, ‘widely detested.’67 That is an exaggeration. Cary also seems to have had some reason to be conceited: Dr J.S. Helmcken, who served with him in the legislature of Vancouver Island, praises him as ‘a very clever lawyer, as sharp as a needle’ and ‘a very brilliant lawyer,’ while pointing out that he ‘had plenty of tongue quite as sharp too and no end of go and work in him.’68 Another contemporary assessment, in a remarkably frank obituary in the Daily British Colonist and Victoria Chronicle, states that he was ‘of an eccentric, and sometimes irritating disposition towards his opponents, [but] his arguments were nevertheless invariably treated with respect, and although somewhat rash and impetuous in dealing with questions that came before him his views and opinions were always regarded as sound.’69

Cary (although not of specially notable birth) even merited an obituary in the English Law Times, which, although less forthcoming about his personal character, also praised his ‘great talent and ability.’70 Even a rather snobbish but still astute British naval officer who was stationed off Vancouver Island in the 1860s and who thought Cary ‘vulgar, unpopular and insincere’ praised his intellectual capacity.71 A picture emerges of a conspicuously intelligent man whose main character flaw sprang from his awareness of his intellectual superiority over most

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 51

people around him, something that the smallness of the early community on Vancouver Island no doubt also accentuated. This flaw led to some remarkable exchanges: for example, Cary was unable to restrain himself even before chief justices, talking back when one of them reprimanded him in court, even going so far as to deny the suggestion that he had apologized for conduct found offensive.72

Cary was persuaded to stand for the House of Assembly at the elections of January 1860. Since Vancouver Island did not possess responsible government, his position of acting attorney general of the colony in no way entailed his membership in the legislature. He sought election in order to ensure that the government’s business could be managed and its point of view advocated in the legislature.73 In his election manifesto he wrote, ‘If returned, I will introduce measures of law reform, whereby land may be as easily transferred and rendered as safe a security as in any other community.’74 Like Torrens less than three years beforehand, he made land law reform one of the central planks of his platform. Like Torrens, too, he saw that land law reform was a popular cause; like Torrens, he emphasized facility of transfer and the safety of mortgagees.

In the election Cary faced a formidable foe, Amor de Cosmos, who was the editor of the local newspaper, the Daily British Colonist. De Cosmos lived a good deal longer than Cary and rose further, becoming British Columbia’s second premier (1872–74). He is a figure of some note and one of the great characters in the early history of British Columbia. Born William Alexander Smith in Nova Scotia, he changed his name on the Californian gold fields to Amor de Cosmos in order to avoid confusion with other similarly named persons.75 He believed that ‘Amor de Cosmos’ was an adequate rendering of Latin, Spanish, and Greek words meaning ‘lover of the universe.’ The name suggests that its bearer possessed a remarkable degree of self-confidence, an impression confirmed by the historical record.76

De Cosmos lost the House of Assembly election to Cary. The sources differ about whether this was because he appeared drunk at an election meeting, but they seem to agree that the decisive votes were cast by escaped black slaves from the United States and on whom the local government conferred the franchise – on the understanding that they would vote for its candidate, Cary. (Since Cary, together with Crease, was shortly to appear with enthusiasm in a case which established that a slave reaching Victoria could not be returned to the United States by any legal means and awarded to one such slave the great and ancient

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

52 The Law of the Land

writ of habeas corpus, we should not assume that reliance on such assistance was pure hypocrisy, even though it was no doubt very convenient.)77

If it is true that de Cosmos had (as some suspect) been a real estate speculator in Victoria, he had some reason to be acquainted with the defects of the land titles system, and indeed he had around the time of Cary’s arrival been urging improvements in the proposed registration- of-deeds bill, such as omitting the literal copying out of deeds onto the register in favour of a mere summary (‘memorial’) of their contents.78 But a man with de Cosmos’s strength of character and degree of selfbelief was not likely to forgive readily a person who had inflicted a loss on him. After his defeat by Cary, the newspaper de Cosmos edited became a declared foe of the Torrens system for no better reason than the identity of its chief advocate.79

The enmity between Cary and de Cosmos makes it more difficult than it might usually be in this era of early colonial history to reconstruct the public debate surrounding the introduction of the Torrens system: the principal source, the local newspaper, was run by a partisan. No doubt the debate in a small community extended well beyond what is recorded in writing, but only that which was written has survived. Victoria had just one newspaper, run by de Cosmos, and only rarely is there an alternative voice such as the extract from the Daily Alta California quoted earlier. If Cary was difficult to get along with, Amor de Cosmos was even less agreeable, and not constrained by a public office to moderate his opinions and manner in order to win support for proposals. Their inevitable chance meetings on the street and at various functions in Victoria must have been either very hot or very cold affairs.

De Cosmos’s Daily British Colonist kept up a constant stream of invective against Cary’s proposed real property measure. The first notice of the legislation, on 7 September 1860, was confined to a summary without commentary, but on the following day the editor opined that ‘like its predecessor introduced into the last Assembly, it is very imperfect, and even compares very unfavourably to it.’ The bill was more likely to impede than to facilitate transfers, and merely creates ‘a snug office for some legal hanger-on of the government’; as the office of registrar-gen- eral was restricted to barristers under the bill, they would probably end up with ‘some briefless barrister, too lazy to work; with too little sense to succeed in his profession; and with scarcely more brains than is [sic] sufficient to guide him from England, Canada or Australia here.’

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 53

The real requirements, de Cosmos thought, were ‘integrity, intelligence and being a good scribe,’ for in a stunning reversal of his stand in the previous year on the same topic, and betraying furthermore a lack of appreciation of the Torrens principle, de Cosmos now thought that the object of registration was ‘to preserve a verbatim et literatim copy of all deeds, etc.,’ so that ‘making abstracts will never answer our purpose.’ On 19 October, he identified the ‘briefless barrister’ as ‘E.G.A.’ – Edward Graham Alston – and added that this was a ‘prostitution of legislation for the basest purposes. Such things are enough to make any honest man’s blood boil at the thought of them.’

Reports of the debates in the colonial legislature were only those de Cosmos thought fit to print, and in addition questions of space and available resources for reporting restricted what could appear. The longest and most useful excerpt from debate was printed in the edition of 2 November. It indicates that there was substantial opposition to the proposed new system for reasons similar to those which had just been urged in South Australia.

Mr Foster did not understand the Bill, nor did he think anyone else would that understood English. He thought it must be some old Bill resurrected especially to suit us. This Bill would open up a chance for forgers. These caveats or issues will injure the credit of the business men against whom thay [sic] may be filed. He did not believe it would ever work, and he would be very sorry to hold property in this country or any other, where such a system prevailed.

Mr Cary said he did not wonder at this Bill being unintelligible to the honourable gentleman. He is not a lawyer, and I am not surprised at his not understanding the terms used here. This system has been found to work admirably. It is a system that has worked for ages, although it has been modified and improved. We are indebted to the Dutch for this system. It has stood the test of ages, and has been found the best plan ever invented.

The Chairman [said] … It was an experiment and nothing more, and one he did not like to see tried.

With the exception of this example, recorded debates in the legislature tended to focus on matters such as the salary of the registrar general and whether the registrar general needed to be a barrister, but never on the broad principle of the proposed registry system.80

Apart from the exchange in the extract just cited, the nearest ap-

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

54 The Law of the Land

proach to controversial debate in the legislature that has been recorded occurred on 23 November, when the third reading of the bill was put off for five days because one member protested that it had been debated in his absence.81 The bill accordingly passed the House of Assembly on 28 November 1860.

Under the constitution then enjoyed by Vancouver Island, legislation required the additional approval of the Governor’s Council.82 The amendments made by the Council were reasonably numerous but affected mostly matters of detail, such as the salary of the registrar and the eligibility of solicitors as well as barristers for that office. (At this point the legal profession on Vancouver Island was split on the English model.) A provision for the registrar to summon witnesses was deleted; caveats were renamed charges and provisions added requiring indices to be kept – these can be clearly identified as sections 69–71 of the Land Registry Act 1860; and a provision for ‘the annual publication of the lists’ was also deleted. The proviso in section 72 requiring regulations made by the registrar to be submitted to the chief justice and to receive his approval was also added at this stage. These amendments were agreed to by the House of Assembly, and the bill passed; it received the assent of Governor Douglas on 18 January 1861, and became on that day, as we have already seen, the second Torrens system in the world.83

Preparations began for the implementation of the new system. They included the appointment of E.G. Alston as registrar general. Alston was an English barrister who had arrived on Vancouver Island in 1859. His appointment drew another diatribe from the Daily British Colonist against a ‘many-countried,’ ‘valueless’ Act which did not provide for making a literal transcript of deeds.84 ‘A Lawyer’ wrote on 21 March in advance of the Act’s commencement on 5 April explaining the new system, and the newspaper was fair enough to print his explanation without comment, derogatory or otherwise: no lawyer, he wrote, was needed by parties wishing to use the system; and it was necessary to look only at the register, not to conduct searches behind it as in England, or to check deeds and memorials as in Canada and the United States.

But the newspaper marked the opening of the registry on 5 April 1861 by printing an editorial on the following day which began, ‘The Land Registry Office was opened yesterday. For all the good it will do the country, it may just as well be shut up.’ It was operating under ‘botched legislation,’ which the newspaper referred to sarcastically as ‘Cary’s wonderful production’ and for good measure added: ‘We sim-

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

Vancouver Island 55

ply do our duty by warning the public not to register.’ A proper registry system, it continued, would involve a registrar who would be a mere copying machine and not entitled to judge the validity of titles. A further editorial on 14 September attacked the level of the fees – always an easy and popular target. On 20 April, the newspaper printed a letter from a correspondent who had not taken the newspaper’s earlier advice and had attempted to register. He complained that registration was refused to property owners who could not produce their original titles or certified copies of them, and asked by what right a mere government office that was not a court could demand such information. Presumably ‘Title Deed’ (as the editor’s correspondent called himself) expected to be registered without providing evidence that he was the owner of the land in question.

Towards the end of October 1861, an alternative voice is at last heard

– that of ‘Anglo-Saxon,’ the correspondent of the Daily Alta California, whose remarks, it will be recalled, included laudatory statements such as ‘Thus far [the Act] has succeeded very well, and is becoming more and more popular every day.’ From this we can conclude how much attention the public was really paying to de Cosmos’s diatribes. He was so annoyed, or felt so challenged in his monopoly of published opinion in his community, by this alternative view that he reprinted it in his own journal with a sneering commentary, stating that the view expressed by ‘Anglo-Saxon’ ‘is too rich to be lost. The Registration Act is growing popular? Of course it is over the left.’85 (‘Over the left’ was a common phrase in the middle of the nineteenth century, expressing incredulity and accompanied by a gesture with the right thumb over the left shoulder.)86

After this shot, however, de Cosmos published no further commentaries on the Land Registry Act 1860. It took quite a lot to shut de Cosmos up. That this occurred is an eloquent commentary on the success of the Act and the correctness of ‘Anglo-Saxon’s’ assessment. And the historical record confirms that the Act was indeed ‘growing popular.’ In the first full year of its operation, 1862, there were no fewer than 555 applications for registration, or about two per business day, followed by 729 in 1863 and 647 in 1864.87 By 1868, $537 880 worth of land was registered under the Act, and it had been so well administered that no registration had ever been questioned (a situation which continued at least until late October 1870).88 Equally important for the government and community of Vancouver Island was the fact that in the years 1862 to 1867, the Land Registry Office made a modest profit in all years except

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM

56 The Law of the Land

1865, when there was a trifling loss of under $200.89 By December 1880, the registrar general reported that registration had ‘grown so popular,’ to adapt a phrase, that on Vancouver Island ‘nearly every transaction or dealing with real estate, however trivial, is almost immediately placed upon the register.’90

Brought to you by | Cambridge University Library

Authenticated

Download Date | 4/9/17 9:22 PM