Forbes C.J., Dowling and Burton JJ, 28 October 1834

A Trial at Bar, before their Honors, the thee Judges, and the following special Jury, James Barker, Esq., foreman, A B. Sparke, Robert Duke, Edward Biddulph, E. B. Mowle, John Lord, Prospre Demestre, John Gilchrist, W. Gosling, C. H. Ebden, John Learmonth, and William Dawes, Esquires.

The King v. Steel. - This was an action brought by the Crown, to recover possession of a piece of allotment of land, situated at the northern extremity of Macquarie-street in the town of Sydney.  Defendant pleaded the general issue, the Solicitor General, who opened the pleadings, called on the defendant to shew a possession of twenty years, under the statute allowing the general issue to be pleaded.

The Solicitor General submitted, that before the statute of James was passed, the King by his prerogative might force the defendant, in informations of intrusion to plead specially, and if only ``Not Guilty," be pleaded, defendant would lose his possession, because the King's title appears on record.  Howards Exchequer 254, Dyer 238.  How far the statute makes an alteration, appears in the preamble, reciting ``that his Majesty was willing to forego a part of his ancient prerogative, when the King or those under whom he claims, have been out of possession for the space of twenty years; in such cases, the general issue may be pleaded, and defendant retain possession until the King's title be tried and found."  The condition then is, that the King was out of possession twenty years, in such case, the general issue may be pleaded, and defendant retain possession until the King's title be tried and found."  The condition then is, that the King was out of possessioff [sic] twenty years, otherwise there is no change made in the common law.  It is a necessary preliminary to shew, that the defendant is entitled to the benefit of the statute.  He may not be a month in possession, the King may not be at any time out of possession, the fact should be proved although it involves a negative.  The title of the King appears on the record, and as Lord of the soil he is presumed to be the rightful owner, until some proof to the contrary be given, and when the law presumes the affirmative, the negative must be proved, Gilbert Evidence 148, The case of Lord Halifax, Peake 5, case cited by Lord Ellenborough, 3 East, 199.  He denied that this question was settled by the cases cited by Mr. Wentworth, the right was not justified in those cases on the part of the crown, and therefore was not decided by the Court.

The Chief Justice said that the Crown had the prerogative right, on an information of intrusion of putting the defendant upon shewing his title specially, and that he could not rely merely on his possession, in this consisted the difference between the Crown and the subject; the King as the universal occupant was presumed to be in possession until the contrary appeared; whereas in case of the subject, the fact of possession was a sufficient title for the defendant, until a better was shewn that this prerogative of the crown had been restricted, to a certain extent, by the statute of James the 1st, by which it was enacted, that when the King should have been out of possession, or should not have taken the profits of any lands or hereditaments, within the space of twenty years, before any information of intrusion brought, to recover the same, in every such case the defendant might plead the general issue, instead of pleading specially, if he should think fit; and that, in such cases the defendant should retain the possession he had, at the time of the information exhibited, until the title should be tried, found or adjudged for the King.  In the interpretation of this statute, the same rule must prevail as in other cases; and being in restriction of the King's prerogatives, it was not to be extended by construction beyond its express limits; the statute professed its intention ``to remit a part" of the royal prerogative in certain cases only, namely, where the crown had been out of possession for twenty years.  The defendant to entitle himself to the benefit of this remission, must prove that he came within the terms of the statute; that the proposition itself was affirmative, although the proof might be in the negative; the defendant pleaded not guilty to the information, and upon this plea he must be evicted at common law, unless he could prove that the King had been out of possession for twenty years; the onus probandi therefore lay on the defendant.

R. Campbell, Esq. was then called and examined by Mr. Norton.  I am acquainted with the lands in question.  That land was given to Mr. J. Palmer as compensation for the Lumber yard, Mr. Palmer hesitated a long time before he would give it up.  The mill was not standing then.  He took possession in 1802, previous to the building of the mill.  There was a mill belonging to a man of the name of Boston, and another person, standing then before he got it.  He built a large bake-house there.  The Bake-house and one mill he built, are now removed, I heard they were knocked down by Governor Macquarie.  The land contained three acres and a half, I held a mortgage of all that property, I allowed Palmer to remain in possession when I went to England in 1810.  I assigned it to Fairlie & Co. of Calcutta.  Their representatives took possession of it.  I believe in 1814.  This letter handed to me is the writing of Mr. Bannister, late Attorney General, dated 3rd of January, 1825.

Cross-examined by the Attorney-General - I understand there was a lease in question; I do not know what was the term of the lease; the Governor in those days could only give a lease of fourteen years.  (The lease is produced dated in 1802, from Governor King to John Palmer, for five years, and in consideration of the erection of some buildings on the premises, he had a promise of renewal every five years until twenty-one be completed.  The letter of Mr. Bannister threatened law-proceedings for retaining possession in 1825.)

this was the evidence to shew possession.

Mr. Wentworth contended, that here was an adverse possession of twenty years, and that twenty years such possession would bar the subject of an entry; an ejectment could not be sustained after such possession.  It was laid down by divers authorities that when the subject was barred of entry, the King could only take by inquisition or office found, (Stamford's Prerogative, Bacon's Abridgment.)

The Court said they would reserve the points for further consideration on a future day.

The Solicitor-General said, although he was ready to meet the point raised, he would call witnesses to shew the Crown was actually in possession in 1829, and up to 1833, and also that Fairlie & Co. did not pretend to an adverse possession at any time, which would at once settle the points of law.

John Maclean, Assistant Superintendent of Botanical Gardens, proved that he planted trees on the land for Government in 1832; he was six years in the Colony, and considered the land in possession of Government; there were Government-men living in the windmill, and the tools for working were kept there.

Cross-examined - The trees were destroyed; do not know why the men left the place.

Samuel A. Perry, Assistant Surveyor-General - In 1820, when the Department of Public Works was joined to Surveyor-General's, the men used to keep their tools in the mill, I cannot say how long before that year; there was also a weigh-bridge erected there by Government, before that, for weighting lime.

Cross-examined - The overseer, in whose charge it was, absented himself, and Mr. Steele, in his absence, took possession.

Mr. Wentworth then addressed the Court and Jury at great length, he contended that the original lease was at an end after the expiration of the first five years, and as there was no renewal of that lease, there was an adverse possession; there was a deforcement, and this was not the proper way to try the question; he cited Bacon's Abridgement, and 3, Blackstone's Commentaries, in support of his argument; he, therefore relied on possession, and he was surprised at the Crown Lawyers bring forward such a case.  The doctrine of prerogative rights was not applicable to this Colony.  It might prevail in an old established country, but situated as this new Colony is, it ought not to be advanced, neither out it to prevail.

The Solicitor-General in reply, said, it was unnecessary for him to trouble the Court or Jury very long, he felt the current so strong in his favour.  He quoted Adams on Ejectment, to show that when the possessor once acknowledged the title of the claimant, there could be no adverse possession.  He also relied on the letters in evidence, and from them it would be seen that, until his learned friend (Mr. W.) wanted to raise a point of law this day, the parties never thought of an adverse possession.  He maintained that the possession of the assignees of the lessee, (as the letter of Mr. Bannister termed them) was the possession of the Crown, for the freehold was never for an instant out of the Crown, and there could be no tenant at sufferance against the Crown.  He would not discuss with Mr. Wentworth, the applicability of those laws he complained of; he did not forget he was in a Court of Justice, that was to administer the law and not to alter it.  He would have no objection to hear Mr. Wentworth discuss those matters in the House of Commons, on the contrary, he would rejoice at the circumstance, as he thought the Colony might be benefited by his services in the proper place where those discussions would be legitimate, but he hoped it was the most valued blessing of every British subject coming to these shores, that he carries the laws of England along with him.  The Jury would heard the law from the Bench, and he hoped that the law that would be laid down to them would correct the erroneous impression abroad, viz. that twenty years possession was sufficient against the Crown.  After some observations on the evidence, he concluded.

Before putting the case to the Jury, the Chief Justice shortly consulted with the two other Judges, and then summed up the case to the following effect.

``Before I put the case to the Jury, I will state the opinion of the Court upon the point of law made by the learned counsel for the defendant, and addressed to us as a ground for directing the Jury to find a verdict for the defendant, inasmuch as the King cannot be nonsuited.  The text law which has been cited from the Crown, is laid down in Staunton's Prerogative, in the following manner- ``With respect to the necessity of having an office, the rule is, that in all cases where a common person cannot have possession, neither in deed nor in law, without an entry, the King cannot have it without an office, or other record."  Assuming this to be, as it is contended, a case in which the subject would be driven to his entry, to entitle himself to possession, still the rule, as it is laid down with respect to the King, is satisfied by the present proceeding.  This is an information to entitle the King to possession of land to which he lays claim - the information before the Court, is presented ex officio by the Attorney-General, and is of record. - It is expressly laid down in Lord Coke's fourth Institute, page 116, as the reason why, upon not guilty pleaded, the defendant would be immediately evicted, that the King's title appears upon the information, and no title appears upon record for the defendant.  But, bringing the case to the test of a right of entry in the subject, there is nothing in the facts in proof before the Court, which would take away the subject's right of entry at common law - suppose ejectment brought by Mr. Palmer, standing in the place of the King, what would prevent his recovering, except the Statute of Limitation (21. Jas. 1. Cap. 10.) which takes away the right of entry, after twenty years adverse possession?  That Statute does not apply to the Crown.  I mention the Statute to shew that, at common law, the right of entry would have subsisted in a private party; and it is by the criterion of this right, as it stood at common law, before the passing of the Statute, that the Rule, as laid down by Staunton, is to be interpreted.  It is, however, not necessary to pursue this argument - the present is a proceeding by information on the record, to obtain possession of the land claimed by the Crown; it is a proceeding by due course of law, in which the title of the King may be disputed and disproved by the defendant, or tried and adjudged for the King.  There is no peculiar virtue in an inquest of office, upon the proofs now before the Court, it must have been found for the Crown, and a scire facias would have put the defendant upon shewing his title - such a course of proceeding would at last have come to the same point, as it is at present before the Court.  Gentlemen of the Jury, this is an information, in the nature of a civil action, brought by the Crown to recover the possession of a piece of ground situate within the town of Sydney.  In placing the case before you, I must briefly advert to the argument of the learned counsel, who has powerfully appealed to you in behalf of the defendant.  It has been well observed by the Solicitor-General, that this argument would have been properly used if we were sitting in the legislature to make laws, and not in a Court of Justice to administer them.  Gentlemen, we are sworn as Judges, to lay down the law as we find it, and you are sworn as Jurors, to find a verdict according to the evidence - it is not for us to assume the office of legislators - the constitution has placed this power in other hands; and if there be any things in the present laws which require alteration, or admit of amendment, the remedy must be sought in the appointed legislature of the Colony, and not in us, who are only the ministers of the law, as it is laid down for our guidance.  By the Act of Parliament, under which we are now assembled, the laws of England are directed to be applied in the administration of justice, so far as they can be applied.  By the laws of England, the King, in virtue of his crown, is the possessor of all the unappropriated lands of the kingdom; and all his subjects are presumed to hold their lands, by original grant from the crown.  The same law applies to this colony.  It is a matter of history that New South Wales was taken possession of, in the name of the King of Great Britain, about fifty-five years ago.  This Court is bound to know judicially, that an Act of Parliament passed in the 27th year of King George the 3rd, (chap. 2.,) enabling His Majesty to institute a colony and civil government on the East side of New South Wales.  The right of the soil, and of all lands in the colony, became vested immediately upon its settlement, in his Majesty, in right of his crown, and as the representative of the British nation.  His Majesty by his prerogatives is enabled to dispose of the lands so vested in the Crown.  It is part of the law of England, that the prerogatives, can only be exercised in a certain definite and legal manner.  His Majesty can only alienate Crown lands by means of a record - that is by a grant, by letters patent, duly passed under the great seal of the Colony, according to law, and in conformity with his Majesty's instructions to the Governor.  It is also a clear case of the same law, that the right of the Crown cannot be taken away, by an adverse possession, under sixty years.  The nullum tempus act, as it is called, was expressly passed to limit the remedy for the recovery of lands belonging to the Crown, to sixty years - without the statute, there would have been no limit of time - for it is a maxim of law, that the King cannot be disseized of his possessions; no laches are imputable to him - nullum tempus occurrit negi.  Unless therefore the King have been out of possession of the land now claimed, for full sixty years, there is no defence in point of the mere time of adverse possession, to this action.  The defendant indeed claims under the Crown; his title is derived from a lease of Governor King's in the year 1802.  It is not necessary to go further than this evidence of the defendants', for independently of the notoriety of the fact, that the first settlement of the colony was within fifty years ago, the defendant having by his own shewing, derived his title, and received possession of the ground, by lease from the Governor, as the representative of the King, cannot now be herd to dispute the superior title of the crown.  He is estopped in law by his lease.  The lease was for five years, from 1802, with a promise of a renewal at equal intervals, so as to make twenty-one years altogether.  In point of fact the lease was not renewed, for some reasons set forth in the correspondence in evidence before the Court, but those reasons form no part of the present case.  With the equity of the defendants' claim to compensation, we cannot deal - that lies between the defendant and the executive - the issue now before us is one of simple fact, whether the defendant has made out his claim to possession, either by a subsisting grant from the crown, or by an uninterrupted adverse possession of sixty years.  There is no proof of either before the Court - there is no plea or pretence of a licence to occupy under the crown, so as to take away the trespass - and as the defendant has proved that he held under the crown in 1802, he had made out such a case for the crown, as by his own shewing, must put him out of Court.

The Jury retired for upwards of half an hour, and returned with a verdict for the crown, adding to it, they found on the points of law.

Judge Dowling concurred.

Forbes C.J., July 1834

In considering the rights of the Crown, with reference to the Colonies, it is important to bear in mind the distinction between conquered or ceded foreign possessions, and such as have been peaceably acquired and settled by His Majesty's subjects.  This distinction is drawn by the Crown lawyers, and was considered by Lord Mansfield ``as a maxim of constitutional law, too well established to admit of dispute".  Where British subjects settle an uninhabited country, they carry the laws of the parent country with them - and among other parts of the law, the prerogatives of the Crown, become in force.  By the laws of England the King is the ultimus heres, and becomes entitled to all the waste lands of the Colony.  These lands form the demesne lands of the Crown, and are part of the Royal revenue.  His Majesty may grant them upon such reserved rents as may be deemed proper.  And the rents of the lands form a part of the ordinary revenue of the Crown.  How far the Crown is accountable to Parliament for the appropriation of its ordinary revenue, it is not necessary to enquire.  In practice it has been usual for His Majesty's government to shew the appropriation of the ordinary revenue, if required, before it called upon Parliament to grant any extraordinary aid.

The Colony of New South Wales is a settled Colony - on a possession acquired by the act of His Majesty's subjects settling an uninhabited country.  The Act of Parliament 24 Geo. 3 cap. 56 authorized his Majesty to appoint the place beyond the seas, to which offenders convicted in England might be transported.  His Majesty by Orders in Council was pleased to appoint the Eastern Coast of New South Wales for such purpose.  And Parliament, by Act 27 Geo. 3 cap. 2, reciting the necessity of establishing ``a Colony and Civil Government" at such place, authorized His Majesty to establish a Criminal Court, with power to proceed in a more summary manner than was used in England.  This Act may be said to have laid the foundation of the Colony - subsequent statutes have recognized this character, 44th Geo. 3 cap. 15, 59th Geo 3 cap. 115, etc., etc.  The waste lands of this Colony are therefore vested in the King  jure coronae, and the rents arising from them form part of the revenue of the Crown.

The legislatures of the older Colonies, formed upon the model of Parliament, claim the same privilege of looking into the appropriations of the ordinary droits and revenues of the differs, however, from the Assemblies of the American Colonies.  It has no power beyond the letter of the Act of Parliament which creates it - 9 Geo. 4 cap. 83 sect ---.  The powers formerly placed in the Governor alone, of appropriating the duties under the 59th Geo. 3 cap. 114 and 3 Geo 4 cap. 96, is transferred to the Governor acting with the advice of the Legislative Council.  But as the Governor and Council have passed divers laws for giving effect to the above laws, by regulating the mode of collection, and imposing penalties for evading the duties, and also for increasing the revenue in other branches, as well as for appropriating divers parts of the revenue in rendering the waste lands of more value and avail, perhaps it would be but reasonable that the appropriation of the sales and rent of the Crown lands should be laid before them.  There is, however, no right to demand this of the Government.

See also Australian, 21 October 1834, which commented as follows: ``In this cause, which is to decide the title of the Crown to the land situated at the end of Macquarie street, where the old windmill stands, the trial will be at the bar, that is, before the full Court, being we believe the second case which has been so tried, since the nomination of the three Judges in this Colony."

This is one of the great cases on the clash between informal customs of land holding and the formal law represented by the Supreme Court of New South Wales.  For commentary on the case, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 464-467: the action concerned three and a quarter acres of the Government Domain, the present botanical gardens fronting Macquarie Street.  Land in Sydney was originally held only under lease from the government or it was occupied by urban squatters.  In 1829, Governor Darling proclaimed that land held or occupied before 30 June 1823 could be converted to freehold unless alienated or declared reserved for public purposes.  This land was held under lease and was passed from person to person.  The original lease expired in 1807, however.  The original holder, Palmer, took a risk and built two windmills and a bakehouse on the land.  Governor Macquarie announced that he wished to use the land and took possession of some of it.  The government took possession of the rest in about 1828.  The question of compensation for the money spent on the buildings was left in abeyance.  When Governor Bourke arrived, he proposed to pay compensation to Steele, the agent of the then assignees of the original estate.  Steele declined the offer and placed a lock on the gate of the Government Domain, claiming possession of it.

This is one of the few cases in the Forbes years to be reported formally: see R. v. Steel (1834) 1 Legge 65-69.  Gordon Legge used the report extracted here, the Sydney Herald, 30 October 1834, and he also relied on vol. 104 of Dowling's notebooks..

According to Currey, pp 466-467, the jury's sympathies were with Steele.  The jurors subsequently signed a certificate as follows:

``We, the undersigned special jurors who tried the above case do hereby certify, at the request of the defendant, that our verdict in favour of the Crown was given entirely on the ruling of His Honor the Chief Justice `that nothing short of a Grant under the Seal of the Colony or an adverse possession against the Crown of at least sixty years could bar the right of the Crown.'  We further certify that, if the usage of the Colony and the equity and good conscience of the defendant's claim had not been wholly taken from our consideration by the ruling … we should have unanimously decided, on the merits, in favour of the defendant, and that we still consider the honour and good faith of the Crown pledged, by the uniform usage and custom of the Colony, to make full compensation for land thus taken for public purposes."  (Historical Records of Australia, Series 1, Vol. 18, p. 179, as quoted in Currey, pp 466-467.)  Currey then states that the defendants claimed compensation from the British government; the Secretary of State referred this to Governor Gipps (who succeeded Bourke).  Gipps reported that Steele had stood on strict legal rights and lost, and thus deserved no compensation.  The British government followed this recommendation.  (Some of the correspondence is in Historical Records of Australia, Series 1, Vol. 18, pp 175-179, 234-235.)

For commentary, see Australian, 28 October 1834: the newspaper said that the decision was lawful, but most unsatisfactory in that it left two thirds of the land in the colony in the honour of the government and no more.  This was a case of grievous injustice.  The Sydney Gazette, 28 October 1834, published a similar editorial, though in milder terms.  The Australian returned to the decision on 7 November 1834, when it also published a letter on the topic.  The letter (by a ``Correspondent") argued that the decision was not such a cause of worry to other landholders as the newspaper argued: Steele's title was merely leasehold.

A similar action was taken by the Crown against John Terry Hughes: he had built on land reserved for a road: Sydney Gazette, 23 October 1834.

Glenelg replied to Bourke on 30 September 1835 (Historical Records of Australia, Series 1, Vol. 18, p. 107).  He advised that it was better that the Legislative Council pass an Act than parliament doing so.  The King had approved of such legislation, thus getting around the concern that the Council would be removing a Crown right.  See also Glenelg to Bourke, 8 November 1836, Historical Records of Australia, Series 1, Vol. 18, pp 583-584.  The legislation was enacted as 6 Wm 4 No. 16: it declared the grants made in the names of the governors to be valid and binding on the Crown.

Governor Bourke took Forbes' advice and issued a proclamation on 26 August 1835, declaring all such supposed purchases void: see Historical Records of Australia, Series 1, Vol. 18, pp 811-812. Bourke informed Glenelg about Batman's purported purchase in a despatch dated 10 October 1835: Historical Records of Australia, Series 1, Vol. 18, pp 153-158.  Lord Glenelg replied to Bourke in a despatch dated 13 April 1836, that he approved of the proclamation.  Glenelg said that he was concerned about the position of Aborigines, but felt that it would not help them to allow them to sell land to private adventurers.  That would ``subvert the foundation on which all Proprietary rights in New South Wales at present rest": Glenelg to Bourke, 13 April 1836, Historical Records of Australia, Series 1, Vol. 18, p. 379.  However, he went on to say that it was impossible to stop squatters like Batman.  Squatter settlements at Twofold Bay and Port Phillip were to be encouraged rather than discouraged (p. 380).  The ambiguity of government policy towards squatting was already being displayed.