The History of Tasmania (Vol. 1&2). John West

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      SECTION XI

       Table of Contents

      Sir Thomas Brisbane,[172] to facilitate the employment of prisoners, required that the grantee should, for every 100 acres of land granted, enter into bonds to employ one convict for the term of his transportation, or the average, ten years. By receiving a second convict for one year, he was promised a bonus of a second 100 acres.

      This condition was a serious obstacle to the ready sale of location orders. It was not, however, unnecessary: many casual visitors and masters of merchantmen obtained grants, which they sold instantly and cleared a considerable sum. Land speculators were greatly disconcerted by the incumbrance: many were anxious to throw up land orders, and attempted to recover money for the goods given in exchange. A trial (1825), in which Mr. Underwood, of Sydney, was the plaintiff, is a curious example of this traffic. The defendant had given in payment for 21 cwt. of sugar, an order for 200 acres of land; but when the convict clause was promulgated, the land was deemed worthless, and the plaintiff sued for £59, the price of the sugar. The judge, however, resisted the claim, and declared that the order had paid for the sugar, although its sale was clandestine and illegal.

      The occupation of land was considered a sufficient proof of ownership, if not disputed within a short period, or negatived by written evidence. To resume a location, as the courts were then constituted, required the issue of a special commission, and could be only effected through a jury. On a trial, in which the Rev. Robert Knopwood was defendant, Judge Field stated that the conditions of early grants were practically void. Knopwood had agreed to sell the estate of Cottage Green for £2,000, to Captain Jones, who paid £1,000 in hand, and entered into bonds for £1,000 for payment of the residue. Knopwood bound himself in a similar penalty to give up the premises when the whole sum should be paid. The widow of Jones sued for release from this bond (1821). The lawyers urged that Knopwood had violated the clause against alienation, and was liable to forfeit the whole. The judge refused to entertain this plea; but set aside the forfeiture as unequal: the estate, according to witnesses, was not worth more than £1,000. The judge strongly condemned the unclerical rigour of the defendant. The celebrity of Cottage Green, now occupied by extensive mercantile establishments, gives special interest to the judgment.

      Efforts to resume land, not properly conveyed, were successfully resisted; and jurors appear to have determined, at all times, to deny a verdict to the crown. In 1824, in an action for intrusion (Rex v. Cooper), the jury delivered a verdict, that "the defendant had obtained possession in the usual manner." The judges asserted that no title was good, except such as passed under the great seal. A locatee, in an action of ejectment (Birchell v. Glover), who possessed from 1811 until 1823, was supplanted by a person in 1824, who obtained a grant: the judge directed for the defendant, but the jury found for the plaintiff. A similar case (Martin v. Munn, 1833), was tried three times with the same issue. The judge directed, that although long occupation by the plaintiff were proved, the grant to the defendant was a virtual resumption by the crown: this the jury considered inequitable, and found for the original occupier.

      The trial of a cause in Van Diemen's Land (Terry v. Spode, 1835), led to the exposure of a fatal error in land titles throughout the colonies. Spode had claimed and taken possession of a portion of land occupied by Terry, who brought an action of ejectment: the jury gave a verdict in his favour; but it was stated by counsel that both grants were "defective and void in law."

This error had been discovered by Mr. Alfred Stephen (1829). The secretary of state was consulted, and authority received by Arthur to amend the form. The royal instructions had authorised the governors to grant lands, which they had always issued in their own names, instead of in the name of the king. The judges stated that in every case, whether of a subject or the king, a conveyance must be made in the name of the owner, and not of the attorney. These grants were, therefore, utterly void. In New South Wales the defect was cured by special legislation; but in Van Diemen's Land every grant was subject to an ordeal. Those already issued by Arthur had been legally worded after the defect was discovered; but the government of New South Wales continued the invalid form, until the judgment of the court led to its revision.[173]

      The importance of settling the titles to land was universally felt, but the difficulties were not easily overcome. Prior to 1826, the Van Diemen's Land grants were drawn up in New South Wales. They were full of errors of all kinds: the boundaries, quantity, and names were mis-described; the land intended for one man was conveyed to another; inaccurate charts, on which grants were marked, multiplied mistakes; the surveyors ran their chains over the land, and marked off five or six farms in as many hours. They erased and altered their descriptions: accurate measurement discovered that many were without a title to the land in their possession, or that their grants were partly occupied by a next neighbour. The dates of these instruments were often arbitrary, yet they bound to cultivation and non-alienation, and often within years already past. Some printed forms contained stipulations not applicable, and became inoperative on the face of them: they described hundreds of acres in excess, but stated that those beyond the king's instructions, should be taken as not granted at all.

      When Mr. Alfred Stephen pointed out the defect in form, the government concealed the mistake until the king granted authority for correcting the error by royal warrant, received in 1830. It now became necessary to ascertain disputed titles. It was proposed by some to establish them by a general act: against this course Mr. A. Stephen protested, and pointed out consequences, that proved his objections were just. Many of these illustrate the idle and fraudulent manner in which the public business is often transacted. A grant issued in СКАЧАТЬ