The Law of the Land: The Advent of the Torrens System in Canada
November 4, 2013
Review By John McLaren
In recent years both imperial historians and colonial legal historians have begun turning their attention to the networks at play within the British Empire and the transmission of information and ideas within the imperial system. The emphasis in this work has been as much, if not more, on the channels of communication between and among colonies as between the latter and the metropolis. Professor Taylor’s account falls into this genre, more particularly into those studies that track how legal ideas and institutions with their origins in one geographic area of the Empire were translated
The prospect of reviewing a work on registration of land titles, even its history, might not engender enthusiasm in every reader’s mind. Any anxieties I may have had on that score were quickly dispelled. By combining sound and insightful biographical work on the major proponents of the Torrens system of title registration, careful tracking of how the idea of guaranteeing indefeasibility of title in a systematic and relatively simple way by treating the latest registration of an owner’s title as dispositive of ownership spread from its Australian origins to other colonial and national jurisdictions, with the detail of the legal regimes themselves, Professor Taylor has produced a work that is both well crafted and engaging. The author makes no bones about the fact that this system of guaranteeing title is the best devised within the Anglo-American legal world. However, good ideas, even legal ones, do not spread without human agency. The extension of the system devised in the late 1850s by South Australian official, politician, and landowner Robert Richard Torrens within the Australian colonies was not difficult given their geographic proximity, the common problems they faced in dealing with title in hyperactive markets for land, and the relatively short period of European settlement in that land mass. Moreover, the Australian political psyche was less impressed with arguments based on the need to follow Mother England’s lead on legal procedures, in particular when they appeared arcane and unnecessarily complex, than was true of that in some other settler jurisdictions.
The system’s translation to North America, and especially Canada, proved more challenging. Not surprisingly, the first Canadian jurisdictions to adopt a form of Torrens were Vancouver’s Island and British Columbia, newly founded as colonies and sparsely settled, in which there were few, if any, vested interests in the Byzantine structure of title searching that bedeviled English conveyancing law. In these histories the initial impetus for adoption seems to have come from personal connections, the relationship between George Carey, the first attorney general of the island colony, and Sir Hugh Cairns, the eminent English barrister, law officer, and judge who was an advocate of the system. The presence in the colony of J.F. McCreight, who had practised at the Victorian bar in Australia in the 1850s, and who was well aware of the campaign in the colony of Victoria in favour of Torrens registration, may well have assisted in the process of persuading local politicians and their constituents of the superiority of that system.
Interestingly, Taylor notes that events in British Columbia seem to have had little or no direct influence on campaigns for the establishment of the system in Ontario and the North-West Territories,
Taylor is careful to examine the claims made of other influences behind the Torrens system in both Australia and Canada, and to separate out and evaluate the various motives prompting its advocates. Based on this close analysis there seems little doubt that, within the world of European settlement, where the Torrens system took root it served the purposes not only of its commercial champions (the mortgage companies who stood to benefit financially from a simplified system of title registration) but also private property owners (an expanding group in settler populations) who were spared the expenses of lengthy title searches and the worry of less secure registration systems. Moreover, apart from the infrequent blip associated with the occasional difficult personality in the land titles bureaucracy and miscues in organizing access to the system, it has worked consistently well in the jurisdictions that have adopted it.
Taylor demonstrates the value of comparative colonial legal histories as a means of understanding the borrowing of legal concepts and institutions between colonial and postcolonial possessions and, in his lively engagement with his particular topic, points to other possibilities in cross-imperial legal studies. The Law of the Land is a valuable contribution to the literature.
 See, for example, Zoe Laidlaw, Colonial Connections, 1815-45: Patronage, the Information Revolution, and Colonial Government (Manchester: Manchester University Press, 2005); David Lambert and Alan Lester, Colonial Lives across the British Empire: Imperial Careering in the Long Nineteenth Century (Cambridge: Cambridge University Press, 2006). The value of this literature to colonial legal historians is stressed in Russell Smandych, “Mapping Imperial Legal Connections: Toward a Comparative Historical Sociology of Colonial Law,” forthcoming in the University of Adelaide Law Review (2009).