Lord v McLaren, 1840

[ejectment – intrusion – Statute of Limitations – land law, adverse possession, against crown – reception of English law, statute law – reception of English law, Habeas Corpus Act – reception of English law, usury laws – reception of English law, chancery – law reporting]

Mr. Stephen, for the plaintiff, moved for a rule to show cause why a new trial should not be granted in this case, on the ground of misdirection by the learned Judge who tried the case, in directing the Jury to find for the Defendant, if they found the Crown had not been out of virtual possession for 20 years, if not receiving rents or profits, or that the Crown had not been in actual possession during the period. After dilating upon the importance of the case, the learned gentleman argued that the Act of 21st James I, cap. 14, was an Act to enable the subject to plead the general issue to information of intrusion, and not a statute of limitation; and that the 21st James I, cap. 2, gave the power to the Crown, to try its rights within 60 years. To prove the former Act was not superceded by the latter, the Act 9, Geo. III, cap. 14, was pleaded as referring to the 21st James I, cap. 2, as then in existence. Within that period the Crown might have proceeded by information of intrusion.

Chief Justice. – But, until such information of intrusion is brought, the subject shall retain his possession by the Act of 21st, James I, cap. 14.

Mr. Stephen. - Argued that this Act did not apply to the Colony, and laid great stress upon the right of the Crown to recover by information of intrusion if the King wished to get possession in fact. To try the title of the Crown, no such course was requisite.

Mr. Justice Montagu. - The Crown requires no actual possession. The King is supposed to be in possession of whatever he is entitled to. Possession is taken to be the legal consequence of a Title in the Crown.

Mr. Stephen then referred to the case of Watt v Morris, which he contended was not applicable to this case. To prove that the Act of James I, cap. 14 was not applicable to this colony, it was urged that in all cases where the King was bound by any particular statute, it was expressly so mentioned, but that the Van Diemen’s Land Act not making the King a party to itself, did not extend the Act of James to this colony.

Mr. Justice Montagu. – “What do you think of the Habeas Corpus Act - that is a concession of the Crown, and is not that in operation here?”

Mr. Stephen. - “If there was any particular clause in that Act affecting the right of the Crown I should think that clause did not extend to the colony. It has been decided elsewhere that particular clauses may extend to these colonies. The Sydney Bench had decided that a particular clause in a special Parish Act with regard to tippling extended to that colony. The learned gentleman further contended that the Act of James was not intended to be applied here, because it was not applicable to the circumstances of the colony. The words of the Van Diemen’s Land Act were “so far as they can be applied,” not by there being sufficient machinery to apply them, but so far as they can be applied with advantage. The learned gentleman then referred to the case of uninhabited colonies.

His Honor the Chief Justice was at a loss to conceive such a thing as an uninhabited colony.

Mr. Stephen next turned upon the usury laws and argued that the Declaratory Act of Council respecting the usury laws, proved that all Acts of Parliament for which there was sufficient machinery, were not intended to be applied, being inapplicable to the circumstances of the colony.

Mr. Justice Montagu. - That Act was probably passed because it was anticipated that under the Court Act, the Usury law might be construed to be extended, when the Legislature saw its operation was not applicable to the circumstances of the Colony.

Mr. Stephen. - I contend that the Usury laws would not have been in force without the declaratory Act of Council, and yet they would have been if all British laws were extended by the Court Act.

Mr. Justice Montagu. - Then you mean to say the Legislature wasted their time on a matter in what there was no occasion for their interference.

Mr. Stephen then contended that the king in his subiquity, instantly became possessed of any land on the demise of the possessor, without heirs, (upon the authority of Plowden!) and that in this case there was no heirship.

Mr. Justice Montagu. - There was in the case some continued and uninterrupted possession - was there not?

Mr. Stephen. - There was your Honor; but on failure of heirs, the fee returned to the Crown.

Mr. Justice Montagu. - Admitting the fee returned to the King - does it follow that the right of possession returns with it?

A good deal more in the same strain was argued by Mr. Stephen, who confidently stated that he had made out a sufficient prima facie, case to warrant a rule to shew cause in order that the case might be fairly argued.

The Sittings in Term, which were adjourned from last Tuesday, were resumed this day. The only business that came before the Court, was the never ending case of Lord v. McLaren, in which Mr. Sydney Stephen, on behalf of Lord, moved for a Rule to shew cause why a new trial should not be granted, on the grounds: First - that the Statute of James I, cap. 14, is not in force in this Colony; Second - that if it is, it requires a continuous possession, in one person, or derived by legal succession, for twenty years against the Crown to give an intruder the benefit of twenty years possession against the Crown.

It is reported that Mr. David Lord’s old lawyers have got completely tired of their client and his case, and that Mr. Sydney Stephen, being new in the Colony, has been incautiously caught, and hooked to the case, before he was half acquainted with its history. Some of his arguments would appear very ingenious to persons unacquainted with the case, but “the case”, as that prototype of the plaintiff, in pertinacious litigation. Poor Peter Pebbles says, has been “ a good case” (to the lawyers), and has already had as many trials and arguments as any case can well bear, - and we doubt if either “Brougham,” or “Scarlett,” could appear to advantage before the public of this Colony, in attempting to raise fresh argument upon it. However, Mr. Stephen succeeded in raising some doubt in the mind of the Chief Justice, as to the application of the Statute of James here, because the Huskisson Act having declared all the laws of England in force at the time of its passing, and which could be applied here, to be in force here, did not name Sovereign, therefore he contended that no law limiting the Royal prerogative could be brought here by the Huskisson Act. This argument Mr. Justice Montagu settled at once, by observing, “then, you would contend that the Habeas Corpus Act is not in force here.”

Mr. Stephen also contended, that if the statute of James were held to be in force here, any squatter might contend against the power of the Crown to grant land, by setting himself down upon any portion of unoccupied Crown land, and asserting that the Crown had been out of possession, and had not enjoyed rent or profits for 20 years. And the Chief Justice helped the learned Counsel, by supposing the case of some bushranger or other ranging, squatter building a hut on the Frenchman’s Cap, and then questioning the right of the Crown to grant the land, and of the grantee to turn him off.

Even if such a case were to happen we can see nothing in it so very alarming to the prerogative of the Crown; for still the proper officers could very soon get rid of such an intruder by information of intrusion, which is the course prescribed by law - and a proceeding which no man without good equitable claim would ever compel the Crown to have recourse to as a remedy. But what have the Judges to do with that in their decision? It is their duty to declare what is the law - not to make laws. But surely it is contrary to every principle of law, that the Crown, or any of its subjects, should make a gift, grant, or sale, of any property of which it had not the possession or unquestioned right of possession. And surely without the positive declaration of the statute, common sense and equity would presume, that a man who could shew a successive chain of undisturbed possession of a piece of ground for more than twenty years, and who had made improvements on it to more than one hundred times its original value, had some better original claim to it than that of a mere lawless intruder.

The case is to be argued on Tuesday, we hope for the last time. We think that Mr. Lord must be almost tired of it, for we learn that his bill to the Crown Lawyers is already £800, and we suspect he will find that the other side will be troubling him for at least £200. It is true that he can very well afford so to spend, but we could point out to him many more pleasant and more creditable ways of laying out money. However, if he is determined to lay out the whole value of the disputed property in law, we shall be very glad to see him pay other £800 to Mr. Sydney Stephen, and £200 a year to Mr. Young and Mr. Horne for the next three years, by that time he will have spent a sum equal to the value of the property, and he will be then just as far from getting it as he is now.

We were rather surprised that Mr. Justice Montagu did not mention the case of Cartwright v. Allport, as he promised. We are anxious to hear how His Honor will dispose of Mr. Allport’s objection.

By the way, in our notice of Justice Montagu’s remarks on the inapplicability of the Chancery-practice, an error appears as gross as any that the Court of Chancery ever made in perpetrating gross injustice under the name of Equity. In place of the six Clerks of Chancery of which His Honor spoke, it if[sic] printed the six Clerks.

The Honors gave their judgment in this case, but were unfortunately of a contrary opinion, so that this long pending suit is no nearer a conclusion that ever.

The Chief Justice held, that at Common Law, the Act of James was not in operation in this Colony, because it was not applicable to the circumstances and condition of the Colony, when first established; in as far as there was no Attorney-General, for more than 20 years after the settlement to file an information of intrusion; and in support of this view on the subject, His Honor alluded to the original object of planting these Colonies, being the coercion and discipline of Convicts. With respect to the Court Act, his Honor did not concede, that the 24th session extended any Law absolutely to the Colony merely because it could be applied; but the very reverse. It was therein provided that where any doubts existed as to the applicability of any statute to the circumstances and conditions of the Colony, the Local Legislature had the power of declaring whether that particular statute were, or were not in force. The Usury Laws, were a parallel case. They like the Act of James, could have been put in force, although they were not - and no sooner did the question arise as to the extension of those Laws, than the Local Legislature removed all doubts on the subject by a declaratory act. Had the Courts in place of entertaining doubts on the point previously given a solemn decision, that the Usury Laws were in force, it was doubtful if that Act could have passed. It was the doubts of the Court which gave the declaratory power to the Legislature, which could only be exerted. His Honor would not swell upon any other points of the question, as denying as he did the application of the statute, all the arguments raised upon it failed. His Honors opinion was given at great length, and supported by a great variety of facts and arguments which our space compels us to omit.

Mr. Justice Montagu delivered a most brilliant and elaborate opinion on the contrary side, which he prefaced by observing upon the difficulty which would attach to the case even in England where every advantage could be taken of books, records, and the opinions of eminent men, which could not be got at here. The judgment he had arrived at was as conscientious as he was assumed was that of the Chief Justice, but he would admit it was given in the dark, because he could not get at the light. After citing an immense quantity of authorities, his Honor contended that the act was not inapplicable to the circumstances of the colony, although it might be rendered so by the negligence of the government, that it would be essential for the benefit of the community, and therefore the Crown, (they being synonymous terms) that the Act of James should apply - that there was no hardship whatever in its application, but a great deal of injustice in its non-application. To deny the application of this Act on the grounds of inexpediency would be visiting the negligence of the Crown upon the community. For the Government to hold such a detestable power as it would, without such an Act, the power to ruin any man at any time, could only be looked upon with the greatest repugnance. It did not follow that the Act was not suitable because it had not been required before - the moment it was required it became suitable. His Honor then referred at great length to the application of British laws in other colonies, and particularly instanced the special act of the assembly at the Bahamas, which “pitchforked” at least one hundred Acts of Parliament into the colony at once. Nothing could be more disadvantageous to a community, than that legislative duties should be left to the judges. They were there to administer, not to decide upon the quality of laws. It was desirable that the legislative and judicial functions should always be kept separate, any collision between them avoided if possible. Objections might be made to pitchforking English laws into the colony - but were not the English rules of Court pitchforked? Were not all the absurdities of special pleading pitchforked? Were not the delays and abominations of English chancery practice pitchforked into the colony, which made widows weep, and orphans wail? But pitchforking English laws, the birthright of an Englishman, was to be differently looked upon. Allusion had been made to the disallowance of the usury laws act - some applauded, some censured it; if any censure attached to that act, it was his - he drew it. While Attorney General Mr. Gellibrand asked him if the English usury laws extended to this colony, to which he replied he was not aware whether they did, but would take care they should not, and forthwith drew, and obtained the passing of the local act. The inexpediency of those laws were at once apparent - no contract would have been safe had they. After a most lucid exposition of all his views, his Honor concluded by observing that he was happy to find the spirit of the times was rapidly exploding the dangerous principle of constructive law which prevailed so much in the middle ages. Judges of the present day were in general agreed that the words of an Act of Parliament ought to be taken in their plain popular sense. The contrary principle, he had always condemned and always should condemn as dangerous to the life, liberty and property of the subject. It was a vital principle that laws should be construed according to common sense, and it was the different practice which obtained in the middle ages, which more than anything else had drawn down upon the laws general odium and contempt. He was therefore of opinion the rule for reversing the verdict should not be made absolute.

The long expected judgment of the court on this important case was this day delivered. It occupied near five hours. We have a full report on the speeches of both Judges, which although from their length we are unable to insert this week, shall certainly appear. The Chief Justice occupied nearly an hour. Mr. Justice Montagu, almost three hours and a half. We shall now merely give the decision of each Judge, hastening to furnish our readers with a detailed report at the earliest opportunity. The Chief Justice, who is well known to be a “divine right” high prerogative lawyer, was, as was generally anticipated, against extending to this colony any English laws which extend the liberties and rights of the subject. The point in this case is well known to be, whether the celebrated statute of James I, which secures to the possessor of land the right thereto, if the possession was continued uninterruptedly, without claim, or payment, or acknowledgment of rent for twenty years, extends to this colony. The Chief Justice was of opinion that it did not. Sir John Pedder came to this opinion chiefly upon two grounds:- 1st, the prerogative of the crown, which, according to his Honor, never dies, 2nd expediency; he dwelt much on the possibility of persons going into the interior, beyond the reach of government, and there seating themselves for twenty years, thereby acquiring a right to the possession. This Sir John considered a breach of the prerogative of the crown. Upon the ground of expediency his Honor was also of opinion that the act should not be ruled to extend to this island, many interests he considered would be seriously injured by twenty years uninterrupted possession giving a rightful title. He complained of the attempt to “pitch-fork” Acts of Parliament, here by wholesale, and expressed his opinion, that the Judges had the power to decide as to of what English law Englishmen here had or had not the advantage. Anticipating a difference of opinion with the Puisne Judge, he said that it would be with the Local Legislature, by a declaratory act, to decide upon which was to be the governing opinion.

Mr. Justice Montagu then delivered his judgment, and a more splendid exhibition of talent, research, correct feeling, sound law, and liberal sentiment, was never elicited by any Judge in any country. His Honor was of opinion that the statement DID extend to this colony, and he gave his reasons for such opinion in a manner so clear, so able, so convincing, that there was not one (disinterested) person who heard him, that was not carried with him irresistably. His Honor commenced with complaining of the reversal by the Chief Justice of the practice of the courts at home, in which it is the invariable practice for the junior Judges to be first called upon to deliver their opinions. On the contrary, here the Chief Justice having reversed that course, he (Mr. Justice Montagu) should be compelled to reply to his Honor’s passage by passage, as in justice to his own opinion he was imperatively called upon to do. He then proceeded to state the grounds upon which he came to the judgment that the statute did extend here. Commencing with the absolute prerogative sentiments of Sir John Pedder, he actually crucified them! What! exclaimed Mr. Montagu, is it at times such as the present that doctrines such as these are promulgated? When in the very dawn of the day of the liberty of the subject, so far back as the comparatively besighted time of James 1st, the liberal sentiments which this statute propounds began to be elicited, shall we now (in the middle of the 19th century, when every faculty of men had made such expanded advance) shall we now be told to retrace our steps, and go back to the dark days of obscure right and absolute authority? What, if some enterprising man should advance into the wilderness, so far beyond the reach of civilisation, as to be for twenty years in actual possession of any given quantity of the desert land to clear, cultivate and bring into a state appropriate to human use; it such as one to be told that divine right prerogative will, after all his exertions, render them unavailable for his own purposes, and dispossess him of them? Are there not here a full establishment of government officers, surveyors, and the rest; and if such an individual should have advanced and continued for the long space of twenty years beyond their reach, or beyond their discovery, is he not entitled to the benefit of his labours, and to all which he has so long possessed. It is absurd to talk of the unlimited right as to quantity which such an individual would possess? He could only have what he had actually possessed, what he had actually occupied and improved, the extent thereof would speak for itself; and I am to be told at the present day that he is not of right entitled to what he has so clearly obtained! It is impossible to do justice to the brilliant manner in which his Honor delivered himself on this head. In reference to the “pitchforking” Acts of Parliament here of which the Chief Justice had spoken, Mr. Montagu made the happiest use of that expression. He shewed that if it had applied at all, it applied to all connected with the court in which they sat, its very practice, even the absurdity, the glaring evils of chancery included, being cast upon the colonists by the “pitchfork,” The Chief Justice’s doctrine of expediency underwent similar demolition. Mr. Montagu tore it absolutely to atoms. But when he came to the declaratory Act of the Legislature of which the Chief Justice had spoken, then indeed were all his energies excited. We shall only do injustice, unless by a full report to the splendid burst of eloquence which his reference to this point elicited. The Council he said might pen laws, and their duration depending upon their accordance with the law of England might be calculated by any one who knew the duration of a voyage to England and back, but to meddle with the laws of England was beyond their authority. They dared not! If such a doctrine was to obtain, what a state of insecurity to the public liberties of the colonists would not follow! There is no one statute, be it ever so cherished by Englishmen, the Habeas Corpus, or any other of the benefits of which they might not be deprived here, by the Local Legislature “declaring” that it did not extend to the colony. The score with which his Honor treated the possibility of such a proceeding must have been witnessed to be appreciated. Finally, his Honor expressed his firm convictions that the statute in question was as much the law of this land as it was of the parent country, and so he was satisfied would be the decision of the English authorities upon reference home.

The Judges being thus divided in opinion, the cases dependant upon this statute remain in statu quo. Those who have had possession undisturbed, uninterrupted, from whom rent had not been demanded, nor any acknowledgment either of tenantcy or other superior holdings, been made for the period of twenty consecutive years, will continue to hold that possession as undisturbedly and uninterruptedly as heretofore.

Soon after the business of the Court commenced this morning, Mr. Justice Montagu said he begged to offer a few observations upon a report which appeared in the Review newspaper of the 19th May, purporting to be a report of some observations which fell from him in the course of the argument of Lord v Maclaren. In that report there were observations of the “grossest and most indecorous nature with reference to the Chief Justice; in that report, he Mr. Justice Montagu declared upon his honor there was not one word of truth - there was not one single expression that he had made use of reported, but the direct contrary. The observations purporting to have fallen from him were placed within inverted commas to render them, he supposed, the more conspicuous; but they were utterly untrue. Not one single sentence of what appeared in the Review to have emanated from him had fallen from his lips. “What I did say is not reported - what I did not say is made very conspicuous.” The report was interlarded with a string of foolish epithets laudatory of language he had never uttered. The report commenced by stating that he, Mr. Justice Montagu, complained of the Chief Justice having reversed the practice of the Courts at home. He made no such complaint, and he called upon any of the gentlemen at the bar who heard him to declare if he was not correct. His Honor remarked he should feel pain - should feel annoyed - if it was really believed he had done so, or that he had made any such observations as those reported to have fallen from him.

Mr. Justice Montagu continued. The observations attributed to him in the report with reference to the right which twenty years possession gave to the holder of land was, together with the rest of the report, false in toto. He was reported to have said that the local Council could not “meddle with the laws of England.” He said no such thing, nor did the report contain one syllable that he had uttered. If he had made use of such observations as were attributed to him, he would be worthy of extreme disgrace and so far from such observations being on exhibition or correct feeling (as the language attributed to him in the newspaper was called) they would have rendered him unworthy to sit on the bench. The whole report must have been written to answer some purchase to him unknown. The newspaper reports in general were very incorrect; during eleven or twelve years experience, his Honor said he had never seen one report that was anything like correct.

Mr. Stephen remarked that the report appeared [?] to have been written by some person that was not in court at all during the argument.

The Chief Justice said that the observations of Mr. Justice Montagu upon the newspaper article in question were, as far as the Chief Justice was concerned, quite unnecessary, for he was fully aware his Honor had never made such observations as were contained to the report. He never understood that Mr. Montagu complained of his deviation from the practice of the course at home, nor did he conceive for a moment that his Honor’s intention was to enter into a controversy with him (the Chief Justice) upon the merits of the case in question.

[1] See also Tasmanian, 21 February 1840; Hobart Town Advertiser, 21 February 1840; Hobart Town Courier, 21 February 1840; True Colonist, 8 May 1840 (adjournment of judgment). For Lord see S.Allen, ‘David Lord (1785-1847)’, ADB, v.2., pp. 126-7. For problems associated the Statute of James see S. Petrow, ‘”Discontent and Habits of Evasion”: The Collection of Quit Rents in Van Dieman’s Land, 1825-1863’, Australian Historical Studies, vol. 32, no. 117, 2001, p.250.

[2] See also True Colonist, 15 May 1840. This is one of the most important decisions made under Pedder as Chief Justice. The reference to usury comes from the important reception of English law decision made by the Supreme Court of New South Wales, Macdonald v. Levy, 1833. In the latter, the court decided by two to one majority, that English usury laws were not in force in New South Wales. In dissent, Burton J. emphasised a mechanical test of whether the English law “can” or could be applied in the colony.