CHAP. V SUMMARY OF THE LAND QUESTION 47 south of the main range, between the rivers Ovens and Goulburn, and adjacent to Port Phillip." This District was, by another Order published on the 1st July 1840,1 subdivided into the Westernport and Portland Bay Districts, the former comprising the lands lying east, and the latter those lying west of the Werribee River. It must also be noticed that the leasing system for lands within the boundaries, having been found inconvenient, had been abandoned in favour of the license system by Regulations of the 21st August 1841,2 so that the license system and the squatting interest may now be regarded as coterminous. This brings the Land Question down to the close of the period we are now discussing. The extent to which the license system has been adopted may be guessed from the report of Sir George Gipps previously alluded to. The whole question of Crown lands will come up again in the next period, and it will be necessary to bear in mind the conditions under which it appears. There are two great classes of landholders. One class consists of purchasers, who have either bought their lands by auction under the Regulations of 1831, or, in Port Phillip, at a fixed price of £1 an acre under the Regulations of 1840. The other consists of the squatters, some of whom hold land by lease within the boundaries of location, but the greater part of whom are mere licensees, living beyond the limits of settlement, having no definite holdings, but only vague "runs," with no security for improvements, practically outside the ordinary influence of government, but under the special control of a quasi-military force; the great political features in their horizons being the stock-tax and the Border Police. 1 Gov. Gaz. (N. S. W.), 1st July 1840. CHAPTER VI EARLY INSTITUTIONS OF PORT PHILLIP The THE number and character of the institutions of a country are a very fair test of its capacity for self-government. Institutions require a co-operation amongst the members of a community, and an adaptability to the methods of united action, which are the first requisites of a stable political system. strength of a Constitution which has grown, as distinguished from a Constitution which has been made, lies in the fact that the former has been produced by the gradual coalescence of independent and familiar institutions, which have contributed each its share towards the fabric of government. In studying, therefore, the Constitutional history of a community, especially in its earlier stages, it is important to glance at its early institutions. Almost the first indigenous institution of Port Phillip was the Melbourne market. The 3 Vic. No. 19 (N. S. W.) directed the police magistrate of any town in the colony, upon the application of 25 free-householders of the town, to call and preside over a public meeting of the inhabitants to consider the advisability of establishing a market. Upon receipt of a favourable resolution, the Governor, with the advice of his executive council, might approve the establishment. Thereupon Commissioners to manage the market were to be elected by occupying householders of the annual value of £20, and proprietors (whether resident or not) of land or buildings to the value of £200, from among the proprietors of land and householders within the limits of the town. These Commissioners were to hold office for three years, and were empowered to erect market-houses, to pass by-laws, and to levy tolls and CHAP. VI THE MELBOURNE MARKET 49 dues within certain limits. After the opening of such market all other open sale within the town was to cease. The Commissioners were empowered to enforce their by-laws by the imposition of fines, and to enforce such fines, as well as their tolls and dues, by distress and imprisonment. Their inspectors were empowered to seize food exposed for sale in an unfit condition. The Commissioners were further empowered to farm out the market dues for any period not exceeding one year, and to borrow limited sums of money upon the same security. In pursuance of the provisions of this statute, a meeting was held in Melbourne on 21st January 1841, at which a resolution in favour of the establishment of a Melbourne market was agreed to.1 In due course the resolution was reported to the Governor, and a market with Commissioners established. In some countries the gatherings of the inhabitants on market-days have been the origin of the popular element in the government. In Rome they developed into a sovereign assembly. In England they are closely bound up with the early history of popular politics and self-government. But, owing to the peculiar circumstances under which Port Phillip was founded, by settlers already familiar, by tradition at least, with more advanced forms of popular government, the market of Melbourne never acquired any political importance. It soon in fact ceased to have a separate existence, being absorbed into the greater institution of the Corporation of Melbourne.2 We may next notice the local branch of the Supreme Court of New South Wales established at Port Phillip. It will be remembered that the Supreme Court had been constituted under the 4 Geo. IV. c. 96, by royal charter dated 13th October 1823.3 It will also be remembered that courts for the trial of petty offences and for the hearing of small civil cases, Courts of Quarter-Sessions and of Requests respectively, had been established at Port Phillip in 1838 and 1839.* What was afterwards required, as the settlement grew in importance, was the presence of a judge qualified to try heavier cases, and thus to obviate the necessity of sending litigants, 1 Cf. account in Port Phillip Patriot, 25th January 1841. 2 By the 71st and 72d sections of the 6 Vic. No. 7. 3 Ante, p. 12. E Ante, pp. 29 and 30. prisoners, and witnesses a long sea journey to Sydney. This object was accomplished by the 4 Vic. No. 22 (N. S. W.), which empowered the Governor to appoint two additional judges of the Supreme Court, for New Zealand and Port Phillip respectively, with powers limited in exercise to those localities, but otherwise equivalent to the powers of the other members of the Supreme Court. Matters, however, which by the existing law were required to be heard by the Full Court, whether arising in the new districts or not, were still to be subject to review at Sydney, and the new District Judges were not to be entitled to take part in such sittings. The Governor was empowered to appoint deputy-sheriffs and ministerial officers for the Districts, upon the advice of the respective judges, and also, pending the institution of grand juries, to appoint Public Prosecutors, and Quarter-Sessions prosecutors, in whose names offences might be prosecuted in the districts. He was also empowered to direct Circuit Courts to be holden throughout the colony before single judges of the Supreme Court, in the English fashion. Writs of execution and subpoena of the Supreme Court, wherever issued, were to be available throughout the colony; but where a judge might previously have ordered an arrest on mesne process upon an affidavit of an intended departure beyond the jurisdiction, he was now, if resident at Sydney, empowered to make the order upon evidence of an intention to depart to Port Phillip or New Zealand, and vice versa. One week after the passing of this Act was passed another statute, which boldly applied the jury system to Port Phillip, by providing that all crimes and misdemeanours, and all civil issues of fact, whether heard in the Supreme Court or a court of Quarter-Sessions, should be tried by a jury of twelve inhabitants of the district, qualified in manner provided by the Act.2 Under these statutes, at the beginning of the year 1841,3 1 4 Vic. No. 28. 2 These qualifications were (a) For common jurors. Males between 21 and 60 years of age, having a clear income of £30 from real estate, or £300 clear personalty (adopted from 2 Will. IV. No. 3). (b) For special jurors. Persons qualified as common jurors, and registered as esquires or persons of higher degree, as justices of the peace, or as merchants. 3 Port Phillip Patriot, 28th January 1841. CHAP. VI THE REGISTRY OF DEEDS 51 Mr. Justice Willis was appointed first District Judge for Port Phillip of the Supreme Court of New South Wales. In the same year the statutes were amended by another Act,1 which authorised the Governor to appoint, instead of circuit towns, circuit districts, in the courts whereof civil issues were only to be triable by juries when the Supreme Court should so specially direct. The Act also empowered the Governor to appoint district sheriffs for the circuit districts. In the year 1843 occurred the removal of Mr. Justice Willis. Thirdly, we may notice the Registry of Deeds, established at Port Phillip under the 5 Vic. No. 21, in imitation of the earlier registry established at Sydney under the 6 Geo. IV. No. 22. The system of Crown grants of course secured to the original grantee of land the best possible evidence of his original title; but in order to complete the security of landowners, it was necessary to make some provision for the record of transfers. The name of Colonel Torrens is inseparably connected with the system of registration of land titles in British territory, although the principle had been tried before his day, in a tentative fashion, in the counties of Middlesex and Yorkshire. The Middlesex and Yorkshire registries, partly owing to the limited areas which they cover, partly owing to the deficiencies of the statutes creating them, and partly owing to the conservative jealousy of English landowners and lawyers, have had but very partial success; whilst all attempts to extend the system in England have been failures. Colonel Torrens was, however, happy in living at a time when his plans could be tried on a magnificent scale in the great new countries then being opened up. The Act which constituted the Port Phillip Registry of Deeds did not, unhappily, make registration essential to the validity of instruments, but it provided that all Crown grants and all instruments except leases for a period less than three years, already or thereafter to be executed, should be enrolled 1 5 Vic. No. 4 (N. S. W.) 2 E.g. by the Land Registry Act, 1862 (25 & 26 Vic. c. 53), and the Land Transfer Act, 1875 (38 & 39 Vic. c. 87). 3 In speaking of Colonel Torrens as the introducer of the Land Registry system, I am, of course, only following current report. There is nothing new under the sun; and it is quite possible that careful investigation might trace the system from Australia to the Cape, from the Cape to Holland, and from Holland to Roman provincial administration. |