4

British Columbia

The Mainland Colony

British Columbia and Vancouver Island were not united until 1866. Before then, although legally separate, they often shared staff, from Governor James Douglas down; and as we have seen, George Cary was at a crucial time in the story both acting attorney general for Vancouver Island and attorney general for British Columbia. But the colonies were separate constitutionally and had separate legal systems. Mainland British Columbia was a Crown colony without a representative legislature and with a rather different economic and demographic structure from that of Vancouver Island, for British Columbia was overwhelmed with gold miners once the gold rushes started in 1858.1

Mainland British Columbia also lacked Vancouver Island’s variant of the Torrens system. The mainland system was contained in the British Columbia Land Registry Act 1861, a proclamation issued on 26 August 1861 pursuant to the powers vested in the governor of the mainland colony to legislate by decree.2 The Act was a variant on the deeds-registra- tion model of the old type; unlike the Torrens system, it was not a ‘hospital.’

Even allowing for the differences in the colonies’ economic structures and population bases, the difference between their land titles systems is quite a remarkable thing, given the close personal links between the two colonies. The problem of fraudulent sales existed in British Colum-

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58 The Law of the Land

bia just as much as on Vancouver Island, and indeed James Douglas found it necessary to warn against them on the mainland a few months before the mainland colony was even officially established in 1858.3 And the mainland colony was also the younger of the two, created just as Cary was arriving in Victoria. As a general rule, the younger a colony is the easier it is to introduce the Torrens system, because bringing the land under the system becomes more difficult as land titles become complicated and uncertain, as they do over a period of time. How then did it come about that mainland British Columbia failed to receive the Torrens system from the beginning?

This phenomenon cannot be explained by opposition by British Columbia’s other leading officials. The chief justice for British Columbia, (Sir) Matthew Baillie Begbie, wrote to Governor Douglas on 30 April 1860 supporting the introduction of a land registry. While he made explicit reference only to the English Registration of Assurances Bill 1853, he supplemented this by advocating a principle that could not have been extracted from that bill; namely, that there should be ‘not a registry I conceive of deeds, so much as of titles [, which] invests the Registrar with a quasi-judicial power.’4 This is referred to by Begbie’s biographer, quite rightly, as a plea for ‘the Torrens system of land titles’ even though Begbie did not use the word ‘Torrens.’5 Nor was the nonadoption of the Torrens system the result of any lack of a need to do so: the price of land was reduced in mainland British Columbia at about the same time as it was on Vancouver Island with exactly the same intention of attracting a permanent settler population.6 Finally, the inhabitants of mainland British Columbia produced a petition in favour of a land registry on 20 February 1861, a month and two days after the passing of the Land Registry Act 1860 (V.I.). The petition complained that there was no ‘Registry Office for the record of transfers and mortgages, thus opening a fruitful field for fraud and future litigation’ – and so it was not popular opposition, either, that was to blame.7

Rather, the reason that the mainland colony failed to adopt the same land registry system as Vancouver Island had was the dispersed nature of the settlement in British Columbia. This, it was thought, differentiated British Columbia from Vancouver Island, on which the population was much more concentrated, and made British Columbia unsuitable for the Torrens system. Douglas wrote to the Colonial Office:

I have not deemed it advisable to introduce into British Columbia the more perfect and elaborate system of registration which is at present in

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British Columbia 59

force in Vancouver Island, for the much greater extent of the former colony would render a constant reference to the chief office inconvenient; it will therefore be necessary to form other offices in the various districts, each possessing its own registrar, who would, if the Vancouver Island system were adopted, be required to possess a special legal qualification; and it appeared to be absolutely impossible to procure, from the very limited body of practitioners in these colonies, a sufficient number of properly qualified officers. Moreover the cost of such a system would itself be, I submit, an insuperable objection to its introduction into British Columbia.8

So the non-introduction of the Torrens system on the mainland was the result of careful planning for the needs of a demographically different colony. The concern that a centralized Torrens system, in which easy access to the register was absolutely crucial, would not work was shown by later experience in Manitoba to be quite well founded, and this decision was therefore another example of Douglas’s and his advisers’ high degree of intelligence and practical good sense. Overcentralization almost caused the abandonment of the whole Torrens enterprise in Manitoba in the late 1880s. There is no reason to suspect that things would have been any better a quarter of a century earlier in the much larger and more sparsely settled colony of mainland British Columbia.

Section 23 of the British Columbia Land Registry Act 1861 was the mainland statute’s key provision, and it highlights the differences between it and the Torrens principles applying on Vancouver Island:

23. From the time any instrument affecting real estate, acknowledged and certified as required by this Act, shall be delivered to a Registrar, or in the case of the Registrar-General to him or his Deputy Registrar, for registration, all persons shall be deemed to have notice of the contents and legal effect of such instrument.

Section 24 made unregistered instruments void as against later registrants, also a common provision to find in registration-of-deeds statutes. But the registry on the mainland – as the Daily Alta California’s correspondent most accurately perceived – was not a ‘hospital’ for turning bad transfers into valid ones; registration there did not transfer the ownership; and section 23 merely picked up whatever the ‘legal effect’ of a deed was without curing any defects in a deed that limited

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60 The Law of the Land

its ‘legal effect.’ In fact, repeated instructions were issued to the magistrates who acted as registrars on the mainland that they were not to judge the validity of documents presented to them, but merely to register them. As Henry Crease pointed out, this was ‘as low a standard for registration of land as was consistent with the name of a “system.”’9

The Ordinance of 1870

The mainland colony and the colony of Vancouver Island were united under the name of British Columbia in November 1866.10 This raised the question whether the two halves of the united colony would continue to have separate systems of land titles registration, or if not, which of the two systems then in force – the simplified and adapted Torrens system on Vancouver Island or the old-style registration-of- deeds system on the mainland – would be adopted for the united colony.

All other things being equal, the mainland’s registration-of-deeds system would have been much better placed to win this competition. It had a number of advantages, simply because it was the mainland’s system: ‘the mainland effectively annexed the Island in the spring of 1866,’ not the other way around; the capital remained at New Westminster (on the mainland) until 1868; the mainland colony provided even the name of the new whole; and it was, finally, Vancouver Island’s system of government that was abandoned in favour of that of mainland British Columbia.11 But the authorities of the united colony decided instead to extend Vancouver Island’s system of land titles over the whole of British Columbia (henceforth in this book, this name will designate the post-1866 united colony). Vancouver Island’s system was preferred partly because of its inherent superiority over the registration-of-deeds system, but also largely owing to its successful administration by E.G. Alston.12

Discussions about which system to adopt began very early in the history of the united colony. A report by Crease, as attorney general of the united colony, in early January 1867 dealt in general with the need for uniformity in the law of the united colony and stated that the Vancouver Island statute was to be preferred, although he added that ‘here haste is to be avoided’ – why, he does not say, although some obvious possible reasons might be suggested, such as the need to ensure that staff were available for a Torrens system on the mainland and to avoid sudden changes in land law.13 The aim of avoiding haste was certainly

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British Columbia 61

achieved, given that the statute unifying the law was not enacted until 1 June 1870.

Indeed, haste was so successfully avoided that public attention was aroused by the prolonged persistence of disuniformity in land titles law. An editorial writer for the Daily British Colonist commented drily upon the introduction of the bill to introduce the Torrens system across the whole colony that ‘the reader will scarcely need to be told that the Island has one system of registration and the mainland another.’14

People on the mainland wanted the superior Vancouver Island system, both in the interests of the existing inhabitants and in order to encourage settlement.15 Time had shown that the Torrens Act provided a system that was admirably suited to the residents of Vancouver Island. Registration and transfers under it were cheap; there was no need for expensive retrospective investigation of titles; and most people did their own conveyancing, or employed an inexpensive land agent to do it for them, on the forms provided by the registrar general’s office. Even if a solicitor was employed, the lack of retrospective investigations kept the cost down.16

It is also clear that the successful administration of the Torrens system by Alston as registrar general for Vancouver Island had a lot to do with its success.17 There is no need to emphasize the desirability of a competent and efficient registrar general in a Torrens system – one who is able to find the right balance between speed in transacting business in the interests of the smooth running of the system and the need for thorough investigations of land dealings in the interests of security of ownership. Alston’s obvious success in achieving this balance, which is established by the lack of challenge to any registration over his period as registrar general, combined with the popularity of registration, is all the more remarkable given that he was born on 6 September 1832 and was thus not yet twenty-nine years old when he became the second Torrens registrar general in the world.

It is in fact hard to find anyone saying a bad word about Alston from the day he arrived on the West Coast. Robert Burnaby refers to ‘a most excellent chap – Registrar-Genl. of the colony – Alston by name – father a Dorsetshire parson – we agree famously,’ and even the snobbish British naval officer referred to earlier concedes that he ‘is a gentleman: he is very quiet, and one never hears anything about him.’ A move by our old friend Amor de Cosmos to have Alston’s office abolished during legislative debate on the Ordinance of 1870 failed dismally. In Alston’s next appointment, as Queen’s Advocate in Sierra Leone, ‘the local

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62 The Law of the Land

newspaper bore witness that “his abilities and high character gave him a foremost place in the staff of officials.”’ Sadly, he died of fever in Sierra Leone at the age of only forty.18

The Daily British Colonist suggested that the British Columbia legislature had its limits as a forum for opposition to the proposal to introduce the Torrens system, because it was found that the bill was a government measure and thus opposition was pointless.19 The opposition members accordingly gave up, the newspaper asserted, and did not vote, although one of them succeeded in having an amendment accepted. There is an obvious contradiction here, and the newspaper’s tendentious account of a government determined to steamroll its legislation through was designed more to aid a broader contemporary campaign for greater self-government for the colony than to inform later historians.

Crease’s account to the Colonial Office was that sufficient time had been allowed for debate in the legislature and that suggestions were accepted from all sides.20 This accords with the facts. Debate on the bill in the legislature extended over almost exactly two months, and while a motion to refer the bill to a select committee on 30 March 1870 failed by five votes to fourteen, it was followed in the first half of April by an extensive consideration of the bill in Committee of the Whole, extending over several days and including a re-committal to permit the making of amendments.21 In a later letter to the governor, the opponents of the Torrens system admitted that parts of the bill had been altered to their satisfaction during the legislative process.22 Nor are any major incidents in the debate, such as might occur if dissent were being crushed, recorded in the newspaper reports of the legislative debates. There is no sign here of a government determined to ram through its own proposals. There was no need to, given the degree of support that existed for the Torrens system in the broader community.

However, some financial corporations that preferred the old system did not give up easily. As well as attempting to organize local opposition, the Bank of North America, the Bank of British Columbia, and Wells, Fargo & Co. even thought it worth their while to petition the governor to withhold assent to the bill once it had passed the legislature or, if assent were given, to forward their petition to the Colonial Office where it could be treated as a request for disallowance of the bill. Neither of these actions was a serious possibility.

The banks’ campaign began with a letter to the editor, in which a person signing himself ‘Observer’ objected to the bill because it made reg-

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British Columbia 63

istration ‘essential to the validity of an instrument affecting land.’23 As we shall shortly see, in strict law this in fact ceased to be the case under the 1870 Act, but the writer has grasped the intention and the actual effect of the various provisions put together. This state of affairs, he thought, opened the door to fraud via the registration of interests designed to destroy earlier unregistered interests such as trusts. Furthermore, ‘Observer’ continued, although the current registrar was ‘very efficient,’ future ones might not be, and in that case mistakes might be made jeopardizing people’s land.

The bill’s opponents also drew up a petition to the legislature against the Torrens bill, testifying to their

distrust and alarm [at] many of the provisions in the Bill for the Ordinance to be styled ‘The Land Registry Ordinance, 1870,’ and [they] consider it is not advisable that the Titles to Property should be liable to be defeated or injuriously affected by the caprice, neglect, errors or fraud of any Official.

Your Petitioners are of opinion that a Registration Law which would give to a registered document priority over all unregistered documents, and also over all documents registered subsequently thereto, would if proper indices were kept (so that reference might be had at a glance to all Registered Documents affecting any particular land) be simple in operation and would afford every protection that is required.24

This was a petition for a registration-of-deeds rather than a Torrens system – the petition leaves no doubt that these petitioners were well aware of the difference between the two systems. As a backup, however, they also asked that if the bill were adopted as it stood, there should be a provision for indemnification by the government of persons who lost their land.

At the petition’s foot stood a list of nineteen signatories, some of whom signed by agents or managers; at the head of the list was Sir James Douglas, the former governor. There is, oddly, little public comment at the time on this petition or his involvement in it. At any rate, Douglas seems to have changed his view very quickly, judging by the contents of a public display in the foyer of the Land Titles Registry at Victoria in 2006, which included a Torrens certificate issued to him in 1872, only two years after the petition was signed. Also included among the petition’s signatories were Robert Burnaby, J.F. McCreight, A.R. Robertson (a popular mayor and later a judge), and representatives of such notable institutions as the Hudson’s Bay Company and

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64 The Law of the Land

the Bank of British North America. As far as professional operators of land titles law were concerned, there were also two barristers, two solicitors, and two land agents.25

The leading spirit behind the petition was Robert Jackson, a solicitor and the final signatory on the list.26 Jackson had emigrated to British Columbia only in 1864, although he had been admitted to legal practice in England in 1849 and was by this stage in his mid-forties. Like the lawyers in early South Australia who had opposed the Torrens system, he was likely to have been far more familiar with the English system than with the modified Torrens system of Vancouver Island and to have preferred the familiar. The material interest that a practising solicitor might have in the maintenance of the old system of land titles registration needs no spelling out. Oddly, however, by the time Alston had departed in 1871, Jackson had so well reconciled himself to the Torrens system that the post of registrar general was offered to him, although he refused it. It is difficult to know what to make of this fact, which admits of a number of interpretations. Perhaps Jackson’s opposition to the Torrens system was either on instructions from one of his clients or was meant to ingratiate him with possible or existing clients, or perhaps he was flexible enough in his views and of sufficient standing in the profession to make him a serious contender for the job of registrar general despite his earlier opposition.

Regardless of Jackson’ own position, it appears that the banks signed the petition because they were informed by him that the bill would destroy the practice of granting mortgages by the deposit of title deeds. The banks were able to clothe their concern in the more neutral colours of wishing to afford to new settlers all possible facilities for raising money, and at this stage of British Columbia’s history the attractiveness of the province for new settlers was still one of the principal concerns of the government.27 That equitable mortgages were not allowed under the Ordinance of 1870 was not strictly true, but the centrality of registration in a Torrens system made all unregistered interests in land very vulnerable, and section 33 of the Ordinance disqualified informal mortgages created by deposit of title deeds from registration entirely. Section 33 was no doubt inserted because registered mortgages had to be accompanied by a fee of $1 for registration plus one-thousandth of the value of the mortgage paid.28 The reason for the banks’ concern is thus apparent. From the government’s point of view, however, an informal mortgage of that sort was a form of tax evasion: it constituted taking advantage of the reassurance offered to a lender by the register’s iden-

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British Columbia 65

tification of the owner of the land without paying anything towards the maintenance of the system. But the banks’ interests were not entirely neglected. Section 25 required the registrar to give notice to a mortgagee in possession of ‘any document required for the proof of title’ before registering any other instrument, so that mortgagees holding a registrable – even if unregistered – memorandum of mortgage would be able to protect themselves by quick action.

The local government, while willing to accept suggestions for improvement, had clearly made up its mind in favour of the Torrens principle, and so the banks’ petition was unsuccessful. Disallowance in London was also not a serious possibility. Some Acts from British Columbia were still disallowed by the imperial authorities in this period, but the Colonial Office did not oppose the introduction of the Torrens system, which it had sanctioned for all the Australian colonies.29

Nor was the Colonial Office sympathetic (as the petitioners might have hoped) to their unfavourable comparisons of the local statute with the English Land Registry Act 1862. An official’s minute on one of the papers referred bluntly to the lack of success of that Act in England.30 Furthermore, Crease was able to direct the Colonial Office’s attention to the fact that the Vancouver Island system had now been in operation for close to a decade without anyone losing their land by official default, as the anti-Torrens forces claimed to fear. Crease was on slightly thinner ground in explaining why there was no assurance fund under his Ordinance to render this danger even more remote, and the Colonial Office’s comments on his minute indicate that they recalled that there was such a thing in the Australian colonies.31 But in the end this matter was a local decision, not the sort of thing that the Colonial Office would decide for any colony.

The Torrens system therefore survived in British Columbia to carry it into its existence as a province of Canada, which it became on 20 July 1871 – Canada’s first Torrens-system province. The Land Registry Ordinance 1870 (B.C.) was technically a somewhat more polished enactment than the Land Registry Act 1860 (V.I.) – better organized and more logically set out, but also recognizably the descendant of the earlier Act and the amendments to it. The 1860 Act was, Crease said, ‘largely borrowed from’ in the construction of the Land Registry Ordinance 1870, although the sparse population of the mainland made it necessary to adapt it for British Columbia, which explains why it was not simply copied word for word.32 Another reason for this was that G.H. Cary, the attorney general who had seen through the 1860/61 version of the Torrens sys-

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66 The Law of the Land

tem adopted on Vancouver Island, was dead and unable to exercise the influence he had exercised over the drafting of the 1860/61 statute.

In the 1870 Ordinance there was still no assurance fund, Crease being of the view that one was not needed at that stage given the lack of challenge to registrations and the still relatively small size of the colony. E.G. Alston, the registrar general, was also concerned about the increase in the cost of registration if such a formal fund were instituted.33 But the provision for two classes of certificate was continued, and the five-year waiting period for indefeasibility adopted in 1860/61 was not merely retained, but lengthened to seven years (section 47).

As a result of re-drafting, the Ordinance of 1870 also somewhat obscured the principle that a transfer was not effective until registered: section 45, read strictly, gave an entitlement to be registered as a result of an effective transfer. Technically this was a step backwards from 1861 because it meant that it was not the registration itself that effected the transfer. However, the Ordinance strongly encouraged registration and made it a condition of obtaining a full title, because without registration for seven years an indefeasible title could not be obtained.34 Furthermore, sections 35–37 made even certificates of title of the second, defeasible class prima facie evidence of what they asserted, offering a further substantial incentive to register.35 An unregistered interest could also effectively be destroyed by sale, even if it occurred with knowledge of the unregistered interest’s existence, as the banks had clearly worked out.36 The legislation was deliberately designed to achieve compulsory registration without actually providing for it in so many words, as both Alston and Crease stated.37 Thus full and secure title was in practice dependent upon registration and a crucial Torrens principle was preserved. I suspect that this outcome was left to inference rather than stated outright in order to obviate objections such as those of the banks and Amor de Cosmos, who was still in the local legislature.

In the 1870 Ordinance, provision was also made for the conduct of business away from the head office at Victoria.38 In the interval of just under nine years since the introduction of a registration-of-deeds system on the mainland, it had been realized that if a branch-office system could be made to work in a registration-of-deeds system, it might be made to work in the Torrens system as well – something that Manitoba too was to discover in the last decade of the nineteenth century. In British Columbia, however, the attorney general’s second reading speech reveals that the branch-office system he contemplated was essentially one that used magistrates as mailboxes for the main registry; it was, in

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British Columbia 67

other words, the same as the mailbox system found in the old mainland registration system.39

The hurdle of distance having at any rate been surmounted, there was no obstacle to the introduction of the Torrens system throughout British Columbia. A decade later it was flourishing in most parts of the province: in Vancouver Island ‘nearly every transaction’ was registered, and in New Westminster ‘nearly all dealings with real estate since 1870’ used it.40

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5

The Canada Land Law Amendment

Association

Pre-History of the Association:

Torrens Becomes Known in Central Canada

The survival of the modified Torrens system in British Columbia did not by any means entail its expansion into the rest of Canada. British Columbia was still, for most Canadians east of the Rockies, an unknown land with few real connections with the rest of Canada. John McLaren and Hamar Foster remark that ‘only gradually, most notably after the completion of the transcontinental railway in 1885, does one get the sense that British Columbia began to move seriously into the orbit of Canadian cultural and economic life; and even then the rapprochement was often grudging and, among the elite, partial.’1

Nowhere is the lack of connection between British Columbia and the rest of Canada more obvious than in the Torrens system’s move into Ontario, Manitoba, Saskatchewan, and Alberta. The system came not from British Columbia, where a version of it already existed, but from Toronto, where it did not, courtesy of an organization set up specifically to lobby for its introduction, the Canada Land Law Amendment Association. And in the fullness of time – around the beginning of the twentieth century – the version of the Torrens system adopted in Manitoba was exported to British Columbia, so that British Columbia’s historically anomalous status in this field was terminated and it ended up with a Torrens system not unlike that of its eastern cousins – also

thanks to the work of the Association.2

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The Canada Land Law Amendment Association 69

The Canada Land Law Amendment Association (henceforth the Association) agitated for the Torrens system of land titles registration, which as a direct result of its activities was introduced in four of Canada’s provinces. The Association’s success also produced the critical mass for the Torrens system across Canada, which led in due course to Torrens reaching Nova Scotia and New Brunswick as well (even though this was well after the Association had ceased to exist, and after a number of false starts), and to the updating of the law of British Columbia just mentioned. By any standards, therefore, the Association was phenomenally successful in its agitation. But there are questions about its motives, given that so many of its members were moneylenders who stood to profit from a system under which mortgages could more securely and speedily be granted.

The pre-history of the Association begins with a series of articles by George Holmested published in a general journal of public affairs, the

Canadian Monthly and National Review, in 1876–7.3 As late as 1890 John Herbert Mason, the key figure throughout the Association’s history and its first and only president, referred to these articles as having ‘first brought to the knowledge of the Canadian public’ the blessings of the Torrens system (even at this late stage, the public of British Columbia is silently excluded from Canada).4 These articles are therefore of great significance in the story of the Torrens system in Canada.

Holmested’s articles indicate that he had come across a copy of Robert Torrens’s work on The South Australian System of Conveyancing by Registration of Title and had been converted to the cause. Holmested grasped the basic message instantly. The Torrens system promised, he said, the prospect of reducing the costs of conveyancing to ‘a mere trifle’ because it made retrospective investigations of title superfluous and replaced a registry of deeds with a registry of title itself.5 This would also make borrowing against land easier, because it would be possible to prove ownership much more simply.

It may seem remarkable that a journal of public affairs would publish articles on a system of land titles registration. However, we should recall the degree of public knowledge of and concern about the defects of the old system of land transfer in the nineteenth century. Most people who bought land came into contact with those defects and bore the resulting expense. Therefore, public discussion of this topic occurs again and again in journals and newspapers that had not the slightest pretension to legal expertise, because it was a matter in which landowners and would-be landowners among the public were vitally inter-

ested. Just as in South Australia in the 1850s, this was in central Canada

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70 The Law of the Land

a very broad cross section of society, enabling the Torrens system to appeal to all but the very poor.

Holmested therefore writes:

This question, though a legal one, is not by any means one in which lawyers are exclusively interested, and it is for that reason that we have thought this a fitting a place for its discussion, rather than the pages of a legal periodical. It is a question on which intelligent laymen are capable of forming a judgment; and it must ever be remembered that it was due, not to a lawyer, but to the strong practical common sense of a layman, that in South Australia the bull was first taken by the horns.6

Holmested added, however, that his knowledge of the Torrens system came via another Canadian, ‘a member of the legal profession, and one whose business lies chiefly in conveyancing, and who, so far as pecuniary considerations are concerned, is largely interested in maintaining things as they are.’7 At the founding meeting of the Association on 31 May 1883, Holmested identified this person as Beverley Jones.8

Jones stated that he had known about the Torrens system since about 1873.9 Although he does not say what brought it to his attention, it is reasonable to assume that his first steps along the road to Damascus were taken as a result of the more than two hundred pages of reports from four of the Australian colonies (including, of course, South Australia) that were sent to the U.K. House of Commons in 1872 and published in the parliamentary papers of that year, making them readily available in Canada.10 It is easy to imagine that these might have caught the attention of Beverley Jones as a lawyer interested in the topic. At no point in this early phase is any reference made to the law of British Columbia, which did not appear in the U.K. House of Commons’ collection of 1872. Perhaps this was because British Columbia was considered too small to warrant attention. British Honduras, which took the trouble to send in a report, was also omitted from the final collection.11

Personalities

Beverley Jones and George Holmested were, in that order, Torrens’s first two apostles in Canada east of the Rockies. Who were they?

Beverley Jones lived to the age of ninety-four and died in early 1934, so that by the time his obituaries were written his activities for the Torrens system were almost half a century in the past. He had, in the mean-

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The Canada Land Law Amendment Association 71

time, found other causes to occupy his considerable instincts for public service and law reform, the chief of which was the care of boys in trouble with the criminal law and the law relating to juvenile offenders more generally. He and a group of like-minded persons began a public campaign in favour of a death duty on valuable estates in order to finance modern boys’ reform schools. The campaign was successful to the extent that the new tax was introduced, although the government found other uses for the money!12

Nevertheless, Jones built up a minor reputation as a public benefactor, largely based on his work for reform schools.13 By profession he was, however, a lawyer. He served for seventy years as counsel for the Canada Permanent Building and Savings Society, which was run by John Herbert Mason.14 Holmested referred to Jones as a conveyancer, and that is what his work at the Canada Permanent mostly consisted in.

George Holmested, on the other hand, was not connected in any obvious way with moneylending interests. Born in 1841 in London, he came to Canada in his mid-teens. He started in private practice in 1866, but as early as 1872, when he was barely thirty, he had decided upon a career as a court official, becoming a referee in chambers at the Ontario Court of Chancery. In April 1876, just before his series of articles on the Torrens system began to appear, he was promoted to registrar of the Court, referee of titles, and inspector of titles. He was, apparently, ‘a stickler for forms and accuracy, but his great experience was ever at the service of students and junior members of his profession.’ He also was long-lived: he used to walk to work until just before his death at the age of eighty-seven, having served at Osgoode Hall for fifty-five years. Holmested was the author of numerous works, one at least of which even today is current and preserves his memory: Holmested and Watson on Ontario Civil Procedure.15

As matters stood in the mid-1870s in Canada – leaving aside the terra incognita of British Columbia – knowledge of the Torrens system was confined to these two lawyers and the readers of their articles. One of them, Jones, was nevertheless ideally placed to gain the attention of economically powerful interests. The other, Holmested, had the time, the prestige, and the independent position to be able to publicize effectively for the Torrens system. They were an ideal team. On their own, however, the two lawyers could achieve little. They needed the assistance of more powerful interests, and some money. And Jones, no doubt with the help of Holmested’s articles, was able to gain the attention of his employer J.H. Mason.

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John Herbert Mason, born in 1827, was also an Englishman who had migrated to Canada in his mid-teens. By the early 1880s, he was about to enter the period of his greatest economic success. In 1885, having been cashier and accountant of the Farmers’ and Mechanics’ Building Society of Toronto, he became manager of the Canada Permanent Loan and Savings Company, which he reorganized and expanded. The Canada Permanent went through a number of changes of name before amalgamating with two similar companies in 1899 to form the Canada Permanent Mortgage Corporation, which Mason managed until his retirement in 1905.16

It cannot have been easy to convince a practical, busy, successful businessman to start a speculative, non-profitable crusade for law reform on an Australian model. It says something about the defects of the old system, the virtues of the Torrens system, Beverley Jones, and not least Mason himself that such an enterprise succeeded. As with the two lawyers, Mason’s instincts for public service and support for worthy causes were considerable, and not confined to the advocacy of the Torrens system. For example, Mason readily lent his public support to a fair held in order to raise money for an infirmary for children suffering from contagious diseases.17 No doubt Mason himself contributed money to the children’s infirmary, and it is clear that he also contributed to many other causes, such as scholastic endowments.18 His obituary in the Canadian Law Journal, after pointing out how unusual it was for the honour of an obituary in that journal to be accorded to a nonlawyer, praised his liberal contributions to the expenses of advocating the Torrens system.19

Most importantly for the story told here, Mason’s support of the children’s infirmary also shows that his name was worth something to charity. He was the only signatory of a published letter urging people to support it. While the infirmary would probably have accepted mere money from virtually anyone, it would certainly not have wanted its publicity to come from a person who was generally despised as a loan shark and/or a ruthless oppressor of the poor. Nor, for that matter, would someone like Holmested have associated himself with such a person if Holmested had cared about the adoption of the Torrens system, let alone his own reputation. Although I do not pretend to have conducted a thorough biographical study of J.H. Mason, I did not, in all my research, come across a bad word written about him by anyone. It seems, therefore, that Mason was far from despised in his community at the time in question, and given that a moneylender has plenty of

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opportunities to alienate people and acquire a bad reputation, that is no small achievement.

Beginnings

Between the publication of Holmested’s articles and 1882, little seems to have happened in the direction of adopting the Torrens system. A Torrens bill for the North-West Territories (which included at that time what are now Saskatchewan and Alberta) was introduced in 1878 by David Mills as minister of the interior in the Mackenzie government, but it sank without a trace, and although Mills re-introduced the bill in 1879 after he lost office upon the return to power of Sir John A. Macdonald, this invitation to adopt the measure on a cross-party basis was not taken up.20 There is a single reference in 1884 to a speech by the prominent politician-lawyer Edward Blake on the Torrens system which is supposed to have been delivered at some time between 1876 and 1878.21 If this did happen, possibly it was a result of Holmested’s articles; possibly it occurred after Blake had met Lord Cairns (as Hugh Cairns had by then become) on a trip to England as federal minister of justice in 1876.22 But even if the speech was delivered and is still extant I have not been able to find it, and it is not mentioned later in any other sources; it can be concluded that the speech was not remembered as the inspiration for any lastingly successful action.

We do not know what steps were taken following the publication of Holmested’s articles in order to convince Mason or anyone else of the merits of the system and to spread the word further. But a long letter published in the Toronto Daily Mail on 8 December 1882 over the name of H.C. Jones – Beverley Jones’s brother, writing from Osgoode Hall – marked the official beginnings of the move to organize the Association and agitate for the Torrens system in Canada east of the Rockies.23 The letter of December 1882 was very possibly sent at about the same time as J.H. Mason had been convinced to promote the system and with the aim of drawing the attention of other influential people to the cause. Probably it was sent with his knowledge, or even his approval, but there is no extant evidence of this.

Lest there should be any doubt about the inspiration for this agitation, H.C. Jones’s letter, the opening shot in the war for the Torrens system east of the Rockies, begins by quoting (with appropriate attribution to the original source) the famous preamble to the Real Property Act [1858] of South Australia : ‘Whereas the inhabitants of the Province of South

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Australia are subjected to losses, heavy costs and much perplexity, by reason that the laws relating to the transfer and encumbrance of freehold and other interests in land are complex, cumbrous and unsuited to the requirements of the said inhabitants …’ The letter also includes a long quotation from the works of Torrens himself. By calling these sources to witness, Jones correctly took it as established that the problems in Canada were essentially the same as in South Australia under the inherited English law of conveyancing, and that the same level of dissatisfaction existed in Canada as had existed in pre-Torrens South Australia.

H.C. Jones’s letter summarizes the two lines of argument that were to be used during the rest of the battle for the Torrens system. First, the letter points out that since the Torrens system had succeeded in South Australia, it could succeed both in Ontario and the North-West Territories. The success of the system in Australia was to become a common refrain in pro-Torrens propaganda in Canada in general and Ontario in particular. But to convince readers of the desirability of undertaking such an experiment it was necessary to point to more than just the success of the system on the other side of the Pacific Ocean, where conditions might conceivably be different in some crucial respect. Jones’s letter of December 1882 contained the first of many, many explanations of the Torrens system and its superiority over the existing system which were to appear in numerous publications over the following four years or so. Readers of the first chapter of this book are already familiar with what Jones explained to readers in his letter.

After Jones’s opening salvo had been fired on 8 December 1882, one imagines that a good deal of behind-the-scenes organizing and proselytizing occurred, no doubt with the letter as a prime instrument of evangelization. The inaugural meeting of the Canada Land Law Amendment Association then took place in the boardroom of the Canada Permanent chambers (i.e., J.H. Mason’s offices) on 31 March 1883. This event was again considered to be of such importance and interest to the general public that – fortunately for the legal historian – a very long and detailed report of the proceedings appeared in the Toronto Daily Mail.

J.H. Mason presided at the meeting, just as he was to be president of the Association throughout its entire existence; Beverley Jones was the meeting’s secretary. The audience, consisting as far as we are told of moneylenders and a few others, listened to long and involved explanations of the system by Jones and Holmested, along with Jones’s com-

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plaint that he ‘had had considerable odium cast upon him’ by his fellow lawyers for promoting the Torrens system, which, they feared, would lose them fees. After the presentations by the legal experts and a discussion, the details of which were not recorded in the newspaper, the following motion was passed: ‘That in the opinion of this meeting it is most desirable that no time should be lost in the introduction of the Torrens system of land transfer or some modification thereof into the North-West Territories, and that the government be requested to promote legislation with that end in view.’ An action sub-committee was formed in order ‘to draft a scheme for introducing the system.’24

Fifteen names of those present at the meeting are recorded in the newspaper report. Of those named, eleven – including Beverley Jones’s and H.C. Jones’s – are given with an affiliation to a moneylender or land speculation company. The other names were Holmested, William Houston, H. Paterson, and John Lees. The best guess is that the second of these was the librarian at the Ontario Legislative Assembly, and that the other two were lawyers.25 In addition, letters of apology for nonattendance were received from a Mr Finlay from the Monetary Times and from S.C. Wood, who in 1883 was both a member of the Ontario legislature and a director of various loan societies and banks.26 The report of the meeting might without exaggeration have been subtitled ‘A Demonstration by Some Moneylenders, Land Speculators, and Friends in Support of the Proposed Torrens System.’

At the meeting, Holmested also rode for some time his two personal hobbyhorses.27 The first was the adoption of a statute similar to the Chattels Real Act 1834 of Newfoundland (then, of course, not a part of Canada).28 That statute provided that land would descend in the same manner as personal property rather than by the inflexible rules of inheritance then applicable to land. To achieve this the Act set up the startling fiction that all land in Newfoundland should be taken to be moveable property, just as leases had technically always been, for historical reasons going back into medieval times. The second Holmested hobbyhorse was the abolition of dower and curtesy, the interests in land granted in certain circumstances by operation of law to widows and widowers, respectively, from the property held by their dead spouses. The first of these aims – the adoption of legislation similar to the Chattels Real Act – was quickly achieved without the aid of the Newfoundland fiction, but in Ontario, at least, the second was not.29

Dower and curtesy appeared to Torrens advocates as irritating relics from medieval times that arose by operation of law rather than by

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agreement between parties. Being thus more difficult to register, they were liable to hinder the aim of a register reflecting all interests in land. Common-law dower – the more frequent case – could certainly operate in a manner that was less than entirely rational and cause inconvenience for no good reason. It might, for example, be necessary to prove that some long-dead owner of land was or was not married and, if married, had taken steps to ensure that dower had been ruled out; if this could not be done the title even of a later owner could not be confirmed as flawless, because a claimant to a dower interest might emerge.

There were certainly also a series of historical anomalies attached to dower (and curtesy) that made them less than perfect means of regulating property relationships after the death of a spouse.30 For example, in the prairie provinces women were not protected by dower if their husbands had made wills. This difference existed because of an English statute of 1833, which did not apply in Ontario but was inherited by the prairie provinces when they were created.31 Even when dower did exist, it gave a right to only one-third of the property. But dower was still an important way in which women’s interests in what was in strict law their husbands’ property were protected. In part this was because if dower did exist, it continued to be enforceable against the land concerned even after a sale by the husband – unless the wife consented to the sale. Thus dower also often ensured that wives at least knew what their husbands were doing with the matrimonial property, which also often included the matrimonial home. In addition dower, where it existed, did provide an interest in land for women even if they otherwise were not legally the owners of land, provided that they survived their husbands. The case for abolishing dower was therefore not as clear-cut as some Torrens advocates such as Holmested pretended, particularly if no more modern statutory scheme was introduced to take its place.

Lawyers are familiar with the tension between elegant simplicity in the design of rules and complete fairness to all. In this case the push to make the law simpler and allegedly more rational by abolishing dower came into conflict with broader considerations of fairness and justice to women.32 Furthermore, Holmested’s two hobbyhorses raised important side issues and became something of a distraction from the real aim of the Association, which was the introduction of the Torrens system. They were an unnecessary distraction too, for as Torrens had explained, his system could work just as well in jurisdictions in which dower continued to exist as in those in which it had been abolished.33

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The discussion at the Association’s inaugural meeting on 31 March 1883 fortunately concentrated not on dower, but on the introduction of the Torrens system into the North-West Territories – so much so that one of those present queried why a group of Torontonians were proposing to alter the law of such a distant place. Perhaps this questioner, unlike others of those present, was not aware of the fact that D’Alton McCarthy, QC, MP was to introduce into the federal Parliament a bill to bring the Torrens system into the North-West Territories within a fortnight. No doubt this matter was in the forefront of the minds of many present and had prompted the holding of the meeting at this time. And of course, the North-West Territories also had vast tracts of unpatented Crown land that could much more easily be brought under the Torrens system from day one than could many properties in Toronto, where proving the state of titles to the extent necessary to enable the government to provide a guarantee of their validity would in many cases be difficult or expensive or both. Nevertheless, the Association very soon took on the more difficult task of advocating the Torrens system in Ontario as well.

The action sub-committee of the Association appointed on 31 March met promptly, on 12 April. This was also the day on which the McCarthy Bill was introduced into the federal House of Commons. Again the Toronto Daily Mail reproduced the eight resolutions of the sub-commit- tee in extenso.34 In fact, both principal Toronto newspapers were supportive even at this early stage: the Globe had only a few days earlier published a lucid comparison of the existing and Torrens systems, calling the former an ‘antiquated and expensive system’ unsuited for a ‘progressive community.’35 The sub-committee’s second and third resolutions stated that the Association wished to secure indefeasibility of title, introduce the Torrens system, and – a nod to Holmested’s hobbyhorse – amend the law of real property ‘so as to facilitate and promote the efficient working of the Torrens system of land transfer.’ The first resolution extended the Association’s ambitions to ‘the various provinces and territories of the Dominion.’ The fourth indicated that the Association planned to achieve its aim ‘through the press, by pamphlets, public meetings,’ and by organizing ‘branch societies having kindred objects in other places in the Dominion’ – a reference to a planned extension of its influence via a subsidiary association in Manitoba.

The sub-committee’s report was submitted to a general meeting of the Association on 21 April 1883 and approved, so that this meeting

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marked the formal organization of the Association. No membership fee was fixed, as funds were expected to come from the financial companies participating in the Association.36

At the general meeting of 21 April, the officers of the Association were elected. The president, naturally, was J.H. Mason. There were two vice-presidents: D. Blain, LL.D., president of a loan company; and W.B. Scarth, manager of financial and land development companies (and from 1884 resident in Winnipeg). Beverley Jones was the Association’s secretary, and George Holmested its corresponding secretary (i.e., in charge of correspondence). The Hon. S.C. Wood was elected treasurer, and the directors were S.G. Wood, John Leys, J.J. Foy, J.A. Paterson (all lawyers), R.H. Tomlinson, William Kersteman (both managers of loan companies), John Fisken (commission and financial agent), J.P. Clark (estate agent), James Metcalf, and W.A. Douglas.37

At least a few more lawyers had been found to lend some respectability to the operation! While the presence of lawyers might not confer respectability in the view of all persons, having lawyers involved in the campaign for the Torrens system was of benefit. It showed that those with a professional knowledge of the matter, whose immediate interests might indeed be thought to be opposed to the simplification of conveyancing, supported the cause of land transfer reform.

The Association Puts Torrens on the Public Agenda

The Association made great strides in its first year of operations, from April 1883 to April 1884. It published a detailed prospectus in midJuly,38 which contained its constitution; long explanations both of the defects of the existing chain-of-title system and of the merits of the Torrens system; and the above list of its office holders. The prospectus summarized the advantages of the Torrens system by pointing out, in capital letters, that it involved ‘A REGISTER OF TITLE, AND NOT SIMPLY A REGISTER OF DEEDS.’39 The prospectus correctly added that this system existed in British Columbia (which had obviously been discovered in the interim) as well as in the five Australian colonies, Tasmania, New Zealand, and Fiji. This is the same list of jurisdictions that responded to a circular in 1880 from the Colonial Office seeking details of land registration systems, and since the responses were again published the Colonial Office in London is, remarkably, the probable source for the discovery of British Columbia by our group of Torontonians.40 There were also three pages of information and advocacy relat-

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ing to the proposed additional changes in the laws of descent and dower, which in context seems something of an indulgence and a distraction from the main point but was no doubt required to keep George Holmested on board.

There were a number of other means by which the Association could demonstrate that the Torrens system was a success in its place of origin. Fortunately, the Association had begun its agitation just after the visit to Australia of (Sir) W.E. Maxwell, commissioner of Land Titles for the Straits Settlements (now parts of Malaysia and Singapore). Maxwell was an English barrister who had impressed the local governor with his ability and judgment and was sent to report on the Torrens system.41 He reported in April 1883 that the Torrens system worked very well and thus provided independent evidence of this fact, which the Association willingly used in its lobbying.42 His report also provided much useful information about the mechanics of operating a Torrens system, the set-up and staffing of the offices, and so on. The Association also received assistance from Henry Gawler of the Lands Titles Office in Adelaide; he provided, for example, a copy of the bill for the act that became the consolidated Real Property Act 1886 (S.A.).43 Some, but only a little, aid was also received from the successful operation of the modified Torrens system of British Columbia.

Throughout 1883 there was a steady stream of propaganda from the Association pointing out the successes of the system in Australia and explaining its merits in comparison with the existing system, independently of overseas experience. Australian testimonials were of such value to the pro-Torrens forces that on 21 August 1883 the Toronto Globe deigned to notice an interview in a newly founded newspaper from a frontier town, the Winnipeg Sun, in which an Englishman who had lived in South Australia for thirty-five years, one J.O. Jones, opined that the Torrens system had worked extremely well there.44 In behind-the- scenes lobbying, too, ministers were provided with copies of reports and other testimonials to the success of the system in Australia.45 When the odd voice was raised against the introduction of the Torrens system, for example in a letter to the editor of the Globe signed by ‘A Deputy Registrar,’ the argument was more often than not that there was some difference between Australian and Canadian conditions that precluded the simple adoption of the Australian reform. An attempt by ‘A Deputy Registrar’ to argue that experience in South Australia was not unequivocally good was firmly squashed by J.H. Mason, who wrote in to point out that ‘A Deputy Registrar’ had got his facts wrong.46

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As far as the intrinsic merits of the system were concerned, the following article from the Globe is representative, comprehensive, concise, and also one of the few examples of the promotion of the system in Canada by reference to sources from the United States, a country where the Torrens system was never to become as successful as it has been in Canada.47

LAND TRANSFER REFORM

The Benefits to be Derived from the Torrens System

The following synopsis of benefits to be derived from the simplification of land transfer is taken from a circular published by the Land Transfer Reform Association of New York:—

First.— It secures all the benefits sought to be attained by a system of registration of deeds, with the additional advantage that the title itself is registered.

Second.— It renders retrospective examinations of titles unnecessary. Third.— It simplifies the titles to real property in the future. Fourth.— It makes purchasers perfectly secure.

Fifth.— It simplifies to the utmost possible extent the forms of transfer and modes of conveyance.

Sixth.— It increases the saleable value of land.

Seventh.— It tends to lower the rate of interest on loans secured on land.

Eighth.— It gives facilities for the sale of large estates on allotments. Ninth.— Transactions can be effected without delay and at a minimum cost.

Tenth.— Frauds in the purchase and sale of land are effectually prevented, because the certificate of title, in the possession of the vendor, shows the exact condition of the estate, whether the estate be mortgaged or leased.

In fact, these points were adapted from a report of the English Royal Commission on conveyancing reform of 1857.48 This item of propaganda also illustrates the degree of cross-jurisdictional exchange of ideas that was involved in the promotion of land transfer reform.

The appearance of these ten points in Canada (on 29 June 1883) also coincided with a crescendo in the Association’s propaganda, and the article just quoted, which reads more like a paid advertisement, was

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probably planted by someone from the Association. Shortly afterwards

– on 5 July – Beverley Jones, as Hon. Secretary of the Association, wrote to Sir John A. Macdonald, at this time minister of the interior as well as prime minister, informing him (or more accurately, attempting to persuade the Department of the Interior) of the Association’s view that as the Torrens system should be introduced in the North-West Territories and its introduction should not be prejudiced by vested interests, any registry offices or officers should henceforth be selected with a view to their suitability to operate the Torrens system.49 The letter mentions two further means of putting forward the Torrens case, which were enclosed for the prime minister’s information: an essay by Robert Torrens and another by D.H. Olmsted, a prominent advocate of land transfer reform in New York, explaining the system and its advantages.

The Association’s prospectus was the chief instrument of evangelization. It was distributed as widely as possible. There was a noticeable pause in the Association’s public activities from mid-July while this occurred and people were (it was hoped) reading and digesting the information newly made available to them. We next hear of the Association at the start of October, when another flurry of activity began with a deputation consisting of most of the Association’s office-holders and one or two others to the premier of Ontario, (Sir) Oliver Mowat.50 This signalled the Association’s intention to fight on a number of fronts all at once – not just in the North-West Territories, but in Ontario as well. Mowat, also attorney general for Ontario, said perspicaciously that a Torrens statute would be a boon for new titles, but what would be done with the old titles? According to Beverley Jones, ‘the general testimony in South Australia had been that where a title was really sound there was no difficulty in bringing it under the Act.’ Mowat’s reply was cautiously encouraging for the Association: he had a ‘very strong opinion in favour of the system,’ but thought that the public would have to be convinced of its merits before he could introduce it and expect it to be accepted by the population.

J.H. Mason, president of the Association, wrote that the cause of Torrens is ‘a people’s question, and it is to be hoped, now that the country is aroused to the importance of the proposed changes, the people will not slacken in their efforts to obtain the necessary legislation.’51 Convincing the populace, or at least making it look as though there was a popular clamour for Torrens, was a task that the Association had already embarked upon. It was still most important that the press were on their side and willing to publicize the cause without charge. In Octo-

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ber 1883 the Globe addressed what it said was the heavy demand for information about the Torrens system by publishing a long interview with Beverley Jones explaining the Association’s cause and singing the praises of the Torrens system in comparison with the existing one.52 Under the existing system, it ‘very often’ occurred ‘that a man who had bought a farm and lived on it for years was suddenly awakened by a writ of ejectment and loses the results of many years’ hard labour’ – an appeal to the broad mass of landowners. Jones stated that he had already convinced the grange body (an early form of small farmers’ association) to petition the legislature in favour of Torrens and that further campaigns were planned ‘following the example of Robert Torrens himself in appealing directly to the common sense of the people.’

This was a reference not merely to the proceedings in South Australia in 1856–8, but also to the campaign for a land registration system in Ireland which had started under Torrens’s aegis when Torrens, a native of Cork, had returned to that part of the United Kingdom in 1863. Many of the tactics adopted by the Association, such as soliciting the signature of petitions by local councils, were quite similar to those used in Ireland.53

On 1 December 1883, J.H. Mason addressed the Canadian Institute on what was by now clearly his mission in life, a mission that had no doubt already cost him a good deal of time that might have been more lucratively spent. His address, almost forty pages long, became the key instrument of pro-Torrens propaganda in the succeeding years. It was published as a booklet for the purposes of further propaganda; several thousand copies of it were distributed.54 No doubt this was costing Mason money as well as time. In the address, Mason pointed out that ‘in Canada, the ownership of the soil is so widely distributed, that every man is more or less directly interested in real estate, and nearly every man is, has been, or may expect to be a land owner,’ and went on to give what is already a familiar litany of defects of the old system, advantages of Torrens, and its successes in places where it already existed (including British Columbia).

As December 1883 progressed, the Association attacked on a number of fronts. Deputations visited at least the larger city, town, and county councils – J.H. Mason, Blain, and Beverley Jones went to London, Ontario, in order to lobby Middlesex County Council, and Mason and Blain to the Toronto City Council.55 Each council directed a petition to the provincial government in favour of the introduction of Torrens, although as Middlesex did not sign until early 1885 it must have had second thoughts. The idea was to make it appear that there was strong

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popular demand for the Torrens system, expressed through the level of government closest to the people. But the top end of town was catered to as well: on 9 November 1883, a deputation from the Association visited the Toronto Board of Trade, which also signed the pro-Torrens petition.56 Nor was the federal government forgotten. (Sir) David Macpherson had become minister of the interior in October 1883, and various managers of loan and investment companies, headed of course by J.H. Mason, banded together in order to send him a pro-Torrens petition for the North-West Territories in their capacity as future mortgagees of the lands there.57 They followed this up with a deputation to him on 27 December, pointing out that now was the acceptable hour in the North-West Territories and that there were ‘numerous expressions from public bodies favorable to the system,’ although they did not add that most had been drummed up by themselves. The Minister’s response was that he was glad to hear of the public’s demand for the system but could not express any opinion without consulting with his colleagues in Cabinet. This was not enough for J.H. Mason, who instead of graciously thanking the minister for his time and withdrawing courteously, pushily quoted more statistics on the guarantee funds’ wealth in Australia and criticized the current system a bit more. Only then did the deputation withdraw.58

The legal profession was targeted by Beverley Jones, who wrote to the editor of the Canadian Law Times, pointing out how easy it would be to borrow money against land under the Torrens system, that land would also rise in value under it, and that there would be one or two other advantages under the system.59 This letter, however, backfired somewhat on its writer’s cause. The journal’s editor confessed his lack of intimate acquaintance with the Torrens system in terms that approached a put-down of it; and he commented upon the letter, the Association’s propaganda pamphlet, and the Torrens system generally in less than flattering terms. The editor thought also that the British Columbia Act cited in the pamphlet did not back up the claims made for the Torrens system because it still provided for all sorts of title deeds and exotic interests such as remainders, and that the Association, if it desired success, would need to distribute ‘a better class of literature than the pamphlet in question.’ The pamphlet merely showed ignorance of the law of land titles. Furthermore, there was at present ‘no outcry about the land laws of Ontario’ as the present system of registration was ‘a very good one, and very easily understood.’ Most of the trouble was caused by untrained conveyancers.60 It would, moreover,

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be hard to introduce the system in the older provinces with complicated titles: some apparently good titles might be cast into doubt in doing so, stirring up trouble for people who might otherwise have been in blissful ignorance of problems with their titles. Finally, it might not be a good idea to introduce a system that enabled people to dispose of their land quickly because it might offer too great a temptation to the improvident. It was, in short, not a very flattering review.

This salvo provoked a reply in the next issue by George Holmested, explaining that in British Columbia the Torrens system of registration had been introduced but no changes made to the law of tenure, which explained the persistence of exotica there; on the part of the editor, there was a retraction, qualified by further observations about the defects of the pamphlet.61 The latter prompted yet another reply by Holmested and a further exchange in which the editor of the journal urged ‘great caution’ in making any changes to the law of land transfer, especially given what he thought was the ‘simple and easily worked system’ already in place.62

If any publicity was good publicity, the Association had reason to be pleased; and if the odd mild attack on the Torrens system from the legal profession did come to public notice this was probably no bad thing either, since such attacks could be presented as springing from a feared loss of fees. J.H. Mason himself was not above appealing to this sentiment on occasion.63 As 1883 closed, the Association had every reason to feel pleased with the fruits of its labours.

How successful it had been became clear in the first months of 1884, when the Legislature of Ontario was fairly deluged with petitions from city, town, and county councils, granges and several other bodies (such as the Board of Trade) in favour of a Torrens style of registration. Over the course of twenty-seven sitting days in 1884, more than 150 pro-Tor- rens petitions were presented, and the fact that they were from local bodies such as councils and granges was (it was no doubt hoped) to be taken as a sign that virtually the whole province was clamouring for Torrens.64

There were a further sixteen similar petitions over nine days in 1885 after a follow-up letter was sent by J.H. Mason and Beverley Jones on 5 January 1885.65 Some of these petitioners were repeats, such as the United Counties of Leeds and Grenville, which had also petitioned in 1884; others were stragglers that had not petitioned in 1884, such as the Middlesex County Council.

This response was a credit to the work of the Association and

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reflected the extraordinary success of its agitprop campaign. The Toronto Week, a rather conservative journal which nevertheless ran a number of pro-Torrens articles from 1884 to 1886 in the best Whig reforming spirit, opined that the Association’s efforts meant that ‘there are now hundreds who have an intelligent knowledge of the [Torrens system], and who are convinced of both its superior merits and the desirability and practicability of speedily introducing it into this province.’66 There was certainly a lot of truth in this observation. Such a campaign could not have been successful – such a strong impression of public demand could not have been created so quickly – had there not been a generally perceived need for improvements in this branch of the law. Half the Association’s battle was won before it started, as everyone knew that there was a need for reform. While the editor of the Canadian Law Times thought that the existing system of land titles registration was a good one, many users of that system clearly did not agree, and J.H. Mason accurately judged popular sentiment when he called land titles reform ‘the people’s question.’

Nevertheless, many petition signers, however clearly they perceived a need for reform, probably did not understand the Torrens system completely or did not accurately estimate the difficulties attendant upon conversion of much of the land under the old system to it. A more realistic estimate of public knowledge was that ‘doubtless these petitions were often forwarded to the Legislature without full consideration of the difficulties which must ever attend changes of a radical nature, but the fact that so many petitions were sent in showed conclusively that wide dissatisfaction with the present system was existing.’67 The Association’s propaganda did not help in this regard, because pains were taken not to overestimate the difficulties attendant upon the introduction of the Torrens system. Thus for example, J.H. Mason airily dismissed concern about the expense of introducing the Torrens system by stating that it merely indicated how insecure titles were under the old system.68 This was true as far as it went, but hardly a complete answer to the concern.

The demonstration of popular support by the petitioning campaign, however much real knowledge as distinct from general dissatisfaction lay behind it, virtually compelled the taking of some sort of action on the part of the provincial legislature, for otherwise they could easily have been accused of ignoring the popular will. Indeed, J.H. Mason was so confident of success that by the time of the Association’s first anniversary he began to worry about what would follow it. He feared

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the ruin of the system by dilatory, incompetent, over-cautious, or even hostile administration.69 The culture of patronage in nineteenth-cen- tury Canada rendered it not improbable that some old party hack might be appointed registrar somewhere or other simply because it was another position that could be used as a reward for past services.70 This was exactly what happened in Calgary, and great embarrassment was caused to J.H. Mason himself by the malfunctioning of the system he had worked so hard for. As we shall see, a rescue mission had to be mounted there.

But having traced the origins and beginnings of the Association, I propose now to postpone further consideration of each province’s introduction of and early experiences with the Torrens system to later chapters and ask: Was all this lobbying by moneylenders just naked self-interest?

The Association: A Front for Loan Sharks?

Was the Association, to the considerable (but by no means entire) extent that it consisted of moneylenders, land speculators, and so on, merely a front for crude economic interests? Or can it also fairly be said to have been motivated by broader considerations of the public good? A historian with a Marxist bent would answer that question differently from the answer proposed here, the beginnings of which have already been indicated. We have seen that there was a real public demand for reform: the Association could create a demand of the size that it did as quickly as it did only because there was a substantial reservoir of dissatisfaction already. They were certainly not solving an imaginary problem that they had conjured into existence for their own nefarious purposes. There is also every reason to think that J.H. Mason was a respected member of the community in which he lived, although his occupation as manager of a financial institution provided unending possibilities for making enemies on the basis of real or imagined misdemeanours, and his obsession with the Torrens system – for such it became – cost him both valuable work time and money. Needless to say, it was also a cause that to the extent that it benefited his company also benefited his competitors, as there could not be a Torrens system for Canada Permanent clients only. One of Mason’s obituaries contrasted his two spheres of activity almost as if they were opposites, describing Mason as ‘not a mere business man or financial magnate’ because of his promotion of the Torrens system.71

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Some people in the nineteenth century were also clever enough to hit upon the thought that moneylenders might put forward the Torrens system in order to promote the business of moneylending, and J.H. Mason was not a fool either: if self-interest had been the only motivation for his endeavours he would doubtless have found a better cover. But there was no need for this: first, because everyone knew that the pre-Torrens system of land transfer was in urgent need of reform; and second, because the Association’s membership was considered respectable by the community.

Both lines of argument were used at the time in response to the obvious cheap shots about moneylenders reforming the system of land transfer. When it was implied in a letter to the editor of the Ottawa Citizen in 1885 that the Association was a group of self-interested persons promoting a reform to benefit themselves, Beverley Jones was able to rebut this merely by mentioning the names of the Association’s chief supporters, starting at the top with that of J.H. Mason.72 Another contemporary argument was that the Torrens system’s promoters were not actuated merely by the interests of a few, but rather were ‘nobler men who are striving to lead the masses up to the light of a better intelligence.’73 Such statements would not have been presented to the public unless they had a solid basis in fact behind them. That is also why J.H. Mason’s support was valuable to children’s charities, as noted earlier.

J.H. Mason himself also responded to claims of narrow self-interest. He could not, of course, do so by praising his own character and reputation, but he could do so by pointing to the support of others such as Holmested, who were unconnected with moneylending. In an election address that he published along with Holmested in December 1886, Mason replied to the accusations of ‘interested persons’ that there was an obvious reason why moneylenders would promote the Torrens system by stating that ‘it is the borrowers’, and not the Companies’, interests which will be benefited.’74 We are not told who these ‘interested persons’ were, and I have not been able to find any immediate cause for the rebuttal just quoted, but the phrase and what we do know about the opposition to Torrens suggests that it was the legal profession Mason had in mind here. At any rate, Mason did not consider it out of place to suggest to the public that they would be the principal gainers from a reform. That was because it was a correct suggestion, as many people who had had contact with the old system of conveyancing knew from personal experience. Some people who wished to borrow against their land in order to fund some improvement found ‘nearly half the sum

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swallowed up by the cost of investigating a title.’75 Such cases were no doubt extreme, but the old system’s defects clearly caused considerable unnecessary expenses for those who took out loans against land even in less extreme cases. The alternatives under the old system of conveyancing were higher interest rates on an unsecured loan or not going ahead with plans at all – in effect, a waste of the economic potential of land.76

The facilitation of borrowing was a particularly important aspect of the Torrens system in newly settled areas in which access to the cheapest possible capital was vital for financing set-up costs. For example, in the view of Winnipeg Commercial the principal advantage of the Torrens system was the ability of the duplicate certificate of title to be used conveniently and quickly as security for a small loan, which would ‘help many a struggling pioneer’ and incidentally contribute to the more extensive settlement of Manitoba. Similar statements were made by the government of Manitoba when it introduced its Torrens system: cheapening the cost of borrowing and enabling loan companies to lend with more confidence were repeatedly mentioned as major selling points for the system. Throughout Canada, as the Torrens system was extended, it was pointed out that it would induce settlers to choose Canada if they knew that facilities existed for them to borrow conveniently and cheaply.77

It is not very surprising that people with some connection to land transactions should have started the pro-Torrens campaign. Why would persons without any interest in or connection with land dealings at all bother to campaign for the amendment of the law relating to such transactions? Everyone needs some way in. Torrens was himself accused of promoting his system simply in order to serve his own interests as a land speculator, a theme that his present-day detractors also take up. But it is quite unrealistic to expect people to spend a good deal of time and effort promoting law reform in an area of which they know nothing and in which they have no business (in the broad sense). It is the rule, not the exception, for people to campaign for law reforms that will benefit a subsection of society to which they belong, or even themselves personally. Mason, thanks to his business, saw an area in which the law was regularly failing, and resolved to fix it. Seen in this light, the Association’s moneylender element was the vehicle for telling the public how to fix the problem in a manner that would be technically sound and would be satisfactory to moneylenders so that they would be able to lend money on the security of land without crippling transactional costs. As Mason put it, he and his colleagues started the move-

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ment for reform because they ‘had had so good an opportunity of seeing the difficulties, the expenses and the annoyances to which owners of real estate are subjected under the present system when a transfer is to be effected or a title proved.’78

In our own day, however, we have seen examples of the removal of apparently pointless and antiquated restrictions upon various forms of trade and commerce, such as lending by means of credit cards and other unsecured loans, which have been promptly followed by a rapid increase in the volume of the business concerned, aggressive competition for market share, and the consequent ruin of some people who might otherwise not have been exposed to temptation. The claim that a company, by making credit more cheaply available, is merely providing better facilities for something that everyone wants to do and is doing anyway – borrowing – is not a necessarily sufficient reason to acquit the company of acting in a manner that is detrimental to society’s best interests. That is because the restrictions on trading, irksome though they might be for the trader and would-be customers who would not be exposed to ruin as a result of the increased trade, also save some people from the abyss.

This point occurred to people in the 1880s as well. Thus, when the Middlesex County Council was debating whether to sign the pro-Tor- rens petition in early 1885, which it eventually did after some hesitation, one council member, the barrister W.W. Fitzgerald, opposed the signing of the petition on the grounds that under the Torrens system, ‘a man could sign away his property from his wife and children and leave them penniless’ because it eliminated delay, which might save the improvident. The Canadian Law Times raised the same point, as we have seen, as did others.79

While the old system of conveyancing might sometimes have the salutary effect of preventing improvidence, the question is whether that beneficial side effect is purchased at too high a price. If we wished to design a system to protect people from possibly unwise borrowings, or to protect women from the possibility that their husbands might sell their homes without even consulting them, the old system of conveyancing would be a bad choice because it is not designed to achieve those aims. It would do so only haphazardly and by creating much pointless expense for people who need no protection, and constitute a disproportionate means of purchasing mere delay. It would also, conversely, leave some people unprotected even if they actually needed protection. For example, people with unarguably valid titles could eas-

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ily obtain mortgages no matter how badly they might spend the money, and women in the prairie provinces were not protected by the pre-Torrens law of dower if their husbands happened to have made wills. The rational solution is to introduce alternative protections targeted at the problem, not restrictions which fasten on some circumstance that has no rational connection to whether protection is required or not.

In late nineteenth-century Canada, much of which was still being developed, facility of borrowing was not a question of mere convenience or of permitting further improvements in developed areas. The capacity to borrow against land quickly and cheaply was vitally necessary in order to finance the costs associated with settlement. If that were not possible, the land would remain undeveloped, or the borrower might be exposed to even greater evils. A member of the NorthWest Territories Council wrote to Ottawa in February 1884 suggesting that land grants should be made registrable more quickly under the old system (his letter had nothing to do with the Torrens agitation). If this were not done, he said, farmers would continue to be ‘unable to offer security on their land, during the hard times & with the low prices at present prevailing for produce, very many of the farmers have been obliged to borrow money for their immediate necessities at ruinously high rates – the usual rates being from 24 percent upwards.’80 Once it is understood that the alternative to a reliable system for proving ownership of land in order to enable borrowing against it was – for some people – the trip to the loan shark, then we can see that J.H. Mason was not in any way insulting the intelligence of his audience by claiming that the Torrens system would be of public benefit even though it might also increase the business of his (and his competitors’) companies. Rather, he was telling them something they already knew and saving some people from financial ruin at the hands of the loan shark.

A related but different point was made, although not in very elegant English, by the Royal Commission of 1857 in England, which looked at the matter from the point of view of the legitimate alternative lenders to the banks.

It has been well said that the greatest condemnation of the existing system of lending money on land is the reluctance which bankers, the natural traders in loans, have to lend on mortgage or judgment. The security which they refuse, careless trustees, ignorant people who have savings, and widows and others who have some small provision are advised to

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accept, and in this way the whole risk of bad security is thrown on the classes least able to bear it.81

This reminds us that the increase in the business of moneylenders under the Torrens system, while no doubt very welcome to them, would not necessarily have come at the expense of broader society. There is some reason to think that within limits, what was good for the reputable businesses engaged in moneylending, such as that led by J.H. Mason, could also be good for society as a whole.

We can therefore acquit the moneylenders led by J.H. Mason of acting from pure, naked self-interest, unmotivated by or even opposed to the interests of society at large. They were in the happy position of many law reformers of advocating a change that would be good for themselves but also beneficial to the wider community of which they were a part.

This is not to deny that some of those in favour of the Torrens system had a politically charged understanding of what the good of society involved. Sometimes views such as the following were expressed:

In these days when communistic ideas are afloat, and principles are openly advocated which, in plain English, amount to nothing less than robbery under the form of law, the most useful counter-movement that can be inaugurated is that which will increase the facility with which land may be bought and sold. If land be placed on the footing of goods and chattels in point of facility of transfer, people will readily see that visionary schemes for robbing people of their land are about as honest as breaking into men’s homes and stealing their furniture would be.82

However, such trenchant views are infrequently encountered, and it would not be right to see them as the principal motivation of the Association. As far as I know J.H. Mason did not say anything even remotely similar until 1894, when, in a speech in Chicago, he mentioned the idea that anarchism and property ownership generally did not go together. Either serendipity or a very advanced sense of humour – I suspect the latter – led him, in the same speech, to speak of the introduction of the Torrens system almost in the same terms as a Marxist might use of the introduction of communism: ‘Sooner or later the suffering owners of the soil, hitherto dumb, will become aware of the fact now indisputable, that there is a remedy for the exactions and uncertainties they have so long and so patiently submitted to, and will arise in their might

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and sweep away the class interests and other impediments which block the way, not only to the adoption of a better system, but also to its most effective administration.’83 But the Torrens system was not really designed or adapted for such a world-historical task as putting a stop to socialism, and a man of J.H. Mason’s practical sense certainly knew that.

The Torrens system admittedly did have some potential for extending property ownership in Canada. As the Association’s fourth annual report ungrammatically put it, ‘The facilities it [the Torrens system] affords to working men in acquiring a home for themselves is one of the most important results of the new system.’84 Thus a Torrens reform might conceivably have made some contribution towards social stability and increased society’s antipathy to revolutionary change by contributing to the creation of what later became known as a ‘propertyowning democracy,’ in which all or almost all members of society had a stake in the soil. However, this potential was very limited in Canada, not only because the likelihood of a communist revolution even without the Torrens system was not very high, but also because the circle of property owners was already quite wide. In Ontario, land ownership had been widely distributed from the very beginnings of the province. Although land ownership was never equal, a very wide degree of individual ownership of the soil had always been a key feature of the nascent corporate identity of the inhabitants of the province.85 In the newer provinces to Ontario’s west, the same pattern was unfolding as the Association began its activities. Thus a major argument for the Torrens system was, as we saw, that small holders such as farmers and working-class people who already owned land would be able to borrow against it – not that they would be enabled by the system’s introduction to own land for the first time. No doubt a sharp reduction in the transaction costs of buying land would have enlarged the circle of landowners, but as it was already quite large there was little traction in this argument, and advocacy concentrated instead on enabling existing landowners to borrow or sell and move if they wished. Generally speaking, Canada in the 1880s (and probably much earlier) was in the same position in this respect as was South Australia in the 1850s: the Torrens system could be made a popular cause in Canada, as we have seen the Association doing, precisely because the category of landowners or potential landowners embraced a wide cross-section of men in society (and growing numbers of women, too) except the very poor.86 The Torrens system’s introduction was thus readily supported by the

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Dominion Trades Congress (which was also lobbied by J.H. Mason) and the small farmers’ body, the grange association.87

Some people might see this broad support as springing from what Marxist doctrine would call false consciousness. It is preferable to see the support rather as a result of the attractiveness of prosperity. There is, I conclude, no good reason to think that the moneylenders who formed and joined the Association were seeking narrow sectional interests or trying to promote a change in the law which was not in the wellunderstood interest of society as a whole.

Later History of the Association

It is impossible to tell the story of the introduction of the Torrens system to Canada, other than British Columbia, without involving the Association at every step of the way, and I shall therefore postpone further recounting of its activities to the following chapters. Given the importance of the Association to this story, however, it is worth saying a few final things about its later history.

Although stalwart members such as J.H. Mason, Beverley Jones, and George Holmested were in the Association from the start to the finish, its membership fluctuated. Further influential people joined its committee. Perhaps the most notable was William Gooderham, a representative of one of the richest and most influential families in nineteenthcentury Toronto.88 He was elected at the annual meetings for 1885, 1886, and 1887. The annual meeting of 1886 was still newsworthy enough, even after the adoption of the first Torrens act in Ontario, to merit a long report in the Mail.89 Gooderham’s name was alongside the names of more ordinary, run-of-the-mill new members such as R.H. Tomlinson and James Watson, both managers of moneylending companies.

This infusion of new blood, even if it was not of a different type from the old, indicates that the Association continued to be a very active force in the community and membership attractive to businessmen – perhaps even something in which businessmen of more modest attainments took pride, as it was a form of community service and furthermore indicated their acceptance by the leaders of the business community. As late as 1898, R.H. Tomlinson referred to his membership in the committee of the Association as one of his achievements in his entry in the standard biographical reference work of the day.90

The Association had ceased operations by then, although it continued to be vigorous until well after its cause was apparently won by the

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enactment of the Torrens statutes for Ontario and the North-West Territories in 1885 and 1886, respectively. A need existed to keep an eye on the implementation of the system; in Ontario, where it took off very slowly and was available only in a restricted geographical area, agitation continued for its extension and improvement.91 An example of this agitation is an address to the electors of Ontario published by the Association in advance of the provincial election held on 28 December 1886. The Association’s address urged voters ‘to press upon the attention of all candidates the importance of giving their support to the extension of the Torrens system of land transfer to the whole of the province,’ for although Ontario had passed a Torrens Act in 1885, until its amendment early in 1887 the Act restricted the system’s area of operation geographically to the city of Toronto and County York. For the purpose of approving this address ‘a large and influential meeting’ of the Association’s committee took place, including such names as J.H. Mason (of course), William Gooderham, Goldwin Smith, and Holmested (who clearly considered this cause a non-partisan one and thus appropriate for his involvement, despite his position in the court service).92

Although long newspaper reports of the Association’s doings are rare after the one recording this event, there are reports of a large public meeting conducted in the Toronto City Hall in 1890. The meeting was chaired by the mayor, addressed by Mason and Holmested, and commemorated in a forty-page booklet published, no doubt for propaganda purposes, in 1890. Shortly thereafter the annual meeting for 1890 was held, and its proceedings also received some considerable newspaper publicity.93

The public meeting in 1890 in Toronto City Hall seems to have been the last great public function put on by the Association, but there are records of activities in 1891 and 1892, when J.H. Mason, as president of the Association, read a paper on the Torrens system at the Central Farmers’ Institute in aid of the cause of extending the operation of the Torrens system within Ontario.94 But by 1894, while Mason was still promoting the Torrens cause by personal appearances and speeches, his comments on the Association take on the flavour of a reference to a historical rather than a present fact.95 However, the Association seems never to have been formally dissolved, and in 1907 and 1911 Beverley Jones still affected the title of secretary when writing about the Torrens system. But this was surely nothing more than reminiscence. Yet Jones probably thought that the Association’s services to the cause of law reform in half of Canada amply justified such a memorial. He was right.96

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