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

R v Cooper [1825] NSWKR 2; [1825] NSWSupC 9

reception of English law - title to land - land law - conveyancing - trial by jury - evidence by Governor - Crown prerogative

Supreme Court of New South Wales

Forbes C.J., 12 February 1825

Source: Australian, 17 February 1825


King v. Cooper.


This was an action brought by the Attorney-General at the suit of the King, and called an Information of Intrusion against Mr. Robert Cooper, for taking possession of a certain parcel of Crown land near Black Wattle Swamp, without legal authority.  The Attorney and Solicitor-General[1 ] appeared on behalf of the Crown.  The Attorney General stated the nature of the case and the pleadings to the Jury.[2 ]  Dr. Wardell then addressed the Jury on the part of Mr. Cooper.  After making some observations on the importance of the case,[3 ] and the injustice of the proceedings, as also the effect of these on most of the titles to land in the Colony, which did not happen to be under seal, the learned Counsel detailed at length the circumstances of the case.  Mr. Cooper, it appeared from his statement, on seceding from the partnership with Mr. James Underwood, in the other distillery, determined on erecting a distillery himself on the most eligible spot he could obtain.  With this view he offered to exchange some land he then held, for a portion of the glebe of St. Philip's ---- this he was unable to accomplish; as on applying to the Attorney-General he had been told that though no actual grant had ever been made of the glebe, yet it would require an act in Council to effect the proposed exchange.  Mr. Cooper then applied by memorial to the Governor, for the land in question.  To this memorial he received no answer; but after a short time the Surveyor-General had sent for him, and told him that he should have the land measured to him ---- accordingly one of the Assistants surveyed, and put Mr. Cooper in possession, conformably to the universal practice in the Colony.  Mr. C. immediately began to prepare for building ---- employed workmen to dig the foundation, and was proceeding rapidly with his works, when it appeared that the Governor's Private Secretary happening to ride that way observed the extensive operations which Mr. Cooper had commenced; and thinking that the stream of water which ran through this land would be required for the use of the town, and being also ignorant of the authority under which Mr. Cooper had thus possessed himself of it, he immediately gave Mr. Cooper notice to desist; and shortly afterwards Mr. Garling, the Government Solicitor, served him with a notice to the like effect.  Mr. Cooper, however, conscious that he was acting right, and that he had got possession, in a proper manner refused to comply, and still continued to erect his building, which was now in a very forward state.  The present information had been filed to recover this land, thus obtained by Mr. Cooper, who had not expended less than £2,000 upon the building.

Mr. Wentworth appeared also for Mr. Cooper.

The following gentlemen composed the Jury:

Mr. Robert Campbell, sen. the foreman.

Messieurs. Gregory Blaxland, Wm. Walker, G.T. Savage, Thos. Mat. Hindson, D. Maziere, R. Holl, A.B. Spark, J. Atkinson, A. Warren, Robt. Johnston.

The following witnesses were called:----- Major Ovens, the Surveyor General, Major Goulburn, Mr. Moore, J.P. Mr. S. Terry, Mr. Thorn, Mr. McBrian. Mr. Meehan, the Attorney General, &c.  The Governor had been subpoenaed, but did not appear.  The Chief Justice thought that His Excellency ought to have been respectfully requested to attend by memorial; the question of right to subpoena was not, however, discussed.[4 ]  The point on which the evidence principally turns, was whether the Surveyor General had given instructions to measure the whole of the ground, which was divided into two parts by a stream.  The Surveyor General stated that he had given instructions to the Assistant Mr. McBrian to measure only the Western side of the stream; that he shewed on the chart with a pencil where he was to commence on the S.W. Boundary, making use at the same time of the words "begin from the S.W. boundary of the Crown land, known by the name of the Military Garden."  Now, the Military Garden was fenced in, and the Assistant commenced from the fence.  It was further, however, stated by the Surveyor General, that the fence was not the extremity on that side of the Military Garden, and that the Assistant, instead of commencing at the fence, ought to have commenced at the stream, which he contended was the boundary of the Military Garden, and formerly known as such, and so marked on the map.  The Assistant, on the other hand, swore that he understood by the Surveyor General's instructions, that he was to commence as he did, from the fence.  Witnesses, who were present when these instructions were given, said they understood the same thing.  On this conflicting testimony the case was submitted to the Jury.

The Chief Justice, after a few prelimary [sic] remarks on the facts which had been given in evidence, said the grants, to be valid as against the Crown, should be under the great seal and of record.[5 ]  Of this the framers of the instructions to the Governor, under the sign manual, appeared to have been perfectly cognizant, for in those instructions it is expressly directed, that all grants made in this Colony shall be entered of record before they are to be binding on His Majesty and his successors.  No grant could be valid that wanted any of the solemnities thus enjoined.  No loose usages could be set up in derogation of the King's prerogative,[6 ] and that portion of it which His Majesty had delegated to the Governor, must be exercised in the way His Majesty had prescribed.  With respect to the Governor's acts in this instance, there had been nothing in them but what might have been expected.  It appeared that Messrs. Cooper and Underwood had applied to His Excellency for this land, and that it had then been refused to them.  It was not likely that a subsequent application from one of these parties would be attended with more success than an application previously made by them jointly.  There had evidently been a mistake in putting Mr. Cooper into possession of this land.  This the evidence of Mr. Oxley, the Surveyor General, proved beyond question.  It appeared in fact that it was chiefly by the instrumentality of Mr. Oxley that Mr. Cooper had obtained the promise of any land in that quarter.  Mr. Oxley had interested himself in Mr. Cooper's favor, and had succeeded in getting the best side of the stream, after considerable demur on the part of the Governor.  The boundaries of the land intended to be granted to Mr. Cooper, had been distinctly stretched out to the Deputy Surveyor, McBrien, by the Surveyor General, before any measurement took place.  McBrien, however, appeared to have mistaken his instructions.  This Mr. Oxley had distinctly sworn.  His Honor did not think much reliance was to be placed on the evidence of the bye-standers.  They were but casually present, and not attending to other people's business, but to their own.  The conversation, therefore, between Mr. Oxley and McBrien would not be particularly noticed by them.  There was certainly a good deal of hardship in this case.  The defendant acting upon a mistake, and that too the mistake of a public officer, had incurred considerable expense.  It is true that he had received early notice to desist from his works; but still he had made his contracts, and could not have left off but with considerable loss.  The hardship of the case, however, could not do away with the principle of law.  Had the defendant a right?  That was the question.  Had he any legal title as against the Crown?  He had none.  "That," said His Honor, "I lay down to you broadly.  At the same time, Gentlemen, it will not be going out of my way, and certainly not out of yours to make this hardship part of your verdict."

The jury then retired, and after deliberating for a short time, returned the following verdict:  "The jury find specially the following fact, that Mr. Cooper obtained possession of the land in question, in the manner hitherto practised in the Colony."[7 ]



Source: Australian, 24 February 1825


In consequence of some observations having been addressed to the Bench on Thursday,[8 ]  in reference to the case of the King v. Cooper, the Chief Justice took occasion to explain a part of the charge which had been made to the Jury, and which had not been sufficiently understood at the time.  The Chief Justice observed, "that grants to be good against the King, ought to have the great seal (not of England, but) of the colony appended to them, and that they ought to be of record; i.e. they ought to be registered in the office of the Registrar, which in this colony happens to be the office of the Secretary."  The Chief Justice further added, "that the instructions and conditions contained in the Governor's commission, by which His Excellency was authorised to make grants of land, ought to be strictly complied with, in order to give effect to the grants  that these instructions were like a power of attorney, and only bound the principal when the terms of them were pursued.  The Chief Justice was glad to have the opportunity of making these explanations, as they would tend to allay all unfounded fears in the minds of the people with regard to the insufficiency of their titles."[9 ]



[1 ] Saxe Bannister, and John Stephen, respectively.

[2 ] This was the first civil jury empanelled in the new Supreme Court: see A. C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, 190, 393, 457-458.  On juries, see also R. v. the Magistrates of Sydney, October 1824 and footnotes thereto; R. v. Sheriff of New South Wales, January 1825; R. v. Wentworth, Campbell and Dunn, June 1825.

This decision was of interest in Van Diemen's Land too: the Australian's case report was reproduced in the Hobart Town Gazette of 18 March 1825.

[3 ] Wardell said that he was gratified to address the first jury ever assembled in a civil court in New South Wales: Sydney Gazette, 17 February 1825.

[4 ] The Sydney Gazette, 17 February 1825, contradicted this:  ``The Court observed, that there was no power that could subject the Governor, while in administration, to the process of the Court".

[5 ] The Sydney Gazette, 17 February 1825, said that the Chief Justice began by saying that the jury was to try matters of fact, the law being the province of the court, and went on:  the ``law of England must govern this, as well as every other Court."

[6 ] The version of the Sydney Gazette, 17 February 1825, on this point was that ``usages must not derogate from the laws of the land, neither must they derogate from the prerogative of the Crown.  No such local custom, as has been stated, can be legally existing. ... The Court must not adopt the loose practice that has been  [re]garded in this Colony."

[7 ] Forbes C.J. wrote to Governor Brisbane on 16 February 1825 as follows (source: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 24):

"I have the Honor to state for your Excellency's Information , that the case of the King against Robert Cooper for Intrusion upon a piece of Ground , called Black Wattle Swamp, was tried before me , with the assistance of a Special Jury on Saturday the 12th Instant, and a Special Verdict was found by the Jury, in Substance, that the Title to the Place in Question , had never been completed, to the Defendant, by a formal Grant; but that he held upon the same faith as other Persons in the Colony; and they strongly recommended the Hardship of his Case, to the Consideration of Government; in the Justice and Propriety of which Recommendation I entirely concur.

"It appeared in Evidence, that the Defendant had petitioned Your Excellency for the Place in Question to erect a distillery; that he received no written answer, but that the Surveyor General communicated verbally to him your Excellency's assent to is having the West Side of the Stream at Black Wattle Swamp; and further directed his assistant Mr Bryan to survey the Ground and (as Mr Bryan stated in his Evidence) to put him in Possession in the usual way; that the assistant Surveyor, in Consequence of some mis-apprehesion of his Directions, measured the East Side of the Stream, and put the Defendant in Possession, who thereupon commenced his Building.

"It further appeared in Evidence that the Steps taken in the Defendants Case are those universally adopted by the Government officers, preparatory to the Execution of a Grant in due form of Law; and that in no Instance having occurred in the Colony of Persons so holding their Lands being dispossessed by the Crown, or having their Titles questioned, the [pg 25] Holders of Lands, under Circumstances similar to Mr Cooper, have reposed in full Confidence upon the Fact of Possession given them, by the Surveyor General, pr his authorised assistant, and considered the Completion of their Title by a Grant, as a matter of course.

"I believe, with the Jury, that a very large Portion of the Town allotment, and of other valuable Lands in the Colony, are at this moment held by no other title.

"Under these circumstances, from a Consideration of what appears, to me, to be an Hardship in Mr Cooper's Case, as well as of the apprehension which I think would be excited in the Public Mind about Titles, which have not received a Formal Completion,    I have the Honor to recommend to your Excellency that the Defendant Robert Cooper should have a Grant of the Place on which he has erected his Distillery, under such terms and with such Reservations of the Right of Water to the Public, as to your Excellency may seem equitable."

Governor Brisbane replied to Forbes C.J. on 16 February 1825 (source: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 26): "In acknowledging the receipt of your Letter of this Date, in the Case of the King v Rt Cooper, I have the Honor to acquaint you in Reply that, in Consequence of your Recommendation, and the particular Circumstances of the Case, I have determined that no further legal Proceedings should be initiated against the said Robert Cooper but to instruct Mr Oxley to bring him to an equitable arrangement respecting the Ground, to be conveyed as a regular Grant, on which he had built his Distillery, reserving however, as a Sine qua Non, the Stream for the use of the Government, or for the public Benefit."

An editorial in the Australian, 17 February 1825, described the Crown's attempt to regain this land as ``most unjust and impolitic".  It was impolitic because ``the larger portion of the community hold their landed possessions precisely on the same tenure as Mr. Cooper, and a question therefore striking so directly at the root of the real property of the Colonists, should not, as it appears to us, ---- have been mooted to accomplish so paltry an object, as the recovery of two or three acres of land, however beneficial it might hereafter prove to the town or the Government."  The editorial applauded, however, the Attorney General's decision (at the express sanction of the governor) to consent to trial by jury.  The jury, the Australian argued, meant their verdict to be taken as not guilty. See also Sydney Gazette, 17 February 1825.

This is a clear example of a clash between formal and informal notions of legal right.  The Australian's editorial claimed that more than half the landed property of the colony was held in a similarly informal way.  On informality of land titles in the first 25 years, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 122-131.

[8 ] Apparently the date referred to is 17 February 1825.

[9 ] The Australian, 24 February 1825 went on to say that ``the requisites to the validity of a conveyance are such, that few persons in the colony could shew them, in the event of their titles being brought into dispute.  For Governors have in a very few instances scrupulously adhered to their instructions".  It was comforted that practical decisions would be made by juries, however: ``The verdict of the Jury in Cooper's case has fully confirmed that opinion, which for ages juries have merited; and though they in some measure mistook the purport of their special verdict, intending as they did to shew the Court that the defendant held his land by a good title, inasmuch as he held it by the same title by which all persons in the colony held theirs; yet did they sufficiently evince, that no man with their concurrence should be stripped of his rights, be despoiled of his possessions, or be ruined by the caprice and folly of public officers."  Both the Australian and the Sydney Gazette, 24 February 1825 said that they believed that the government was content to allow Mr Cooper to retain the land.

Published by the Division of Law, Macquarie University