‘Old Register’ One to Nine

Land grants were issued for dual purposes. They were used as a reward to convicts for good behaviour. Land was also granted to the military and free settlers. With a fast growing population they also meant a reduction in the dependency on scarce government stores.

After the first New South Wales land grant was issued to James Ruse in 1792, people began trading land. While land grants for the first alienation of land from the Crown were originally recorded in Grants Registers there was no authorised place of registration for subsequent land transactions. In some instances the transaction was recorded or endorsed on the actual land grant document, in others the grant was just exchanged for the mortgage or conveyance. Lack of transport, distance, illiteracy and having no place to formally register transactions soon led to a large number of disputes regarding land ownership. The formal recording of assignments and other legal instruments became a necessity.

Governor Philip Gidley King issued an Order dated 13 November 1800 stating that "no claim for property be admitted by the Civil Court of Judicature, unless the parties enter into written agreements between each other, or enter them into books which will be kept for that purpose".¹ The order was to be in force from 27 November 1800. Two books were to be kept at Sydney at the Judge Advocate’s and by Sergeant-Major Jamison for the military, and one each were to be kept at Parramatta and the Hawkesbury, however none of these books are known to be extant. This was the first point where errors of transcription were able to creep in.

Another instruction followed on 26 February 1802 when Governor King "ordered and declared that no assignment of property should henceforth be considered legal unless regularly drawn up at the Judge Advocate’s Office, and there duly registered".² Thus on these instructions from 6 March 1802, the first of the nine old Registers was created.

The order continued: "Every person now holding assignments are to appear with them at the Judge Advocate’s office on Friday next, the 6th instant, to have the examined and registered, otherwise no cognizance of them will be taken by the civil court."³ It is noted on the flyleaf at the beginning of Book 1: ‘"udge Advocate’ Office, Sydney 6 Mach 1802. From commencement to 10 November 1807 Register I of Assignments, and other Legal Instruments Pursuant to His Excellency the Governor’s Public Order of the 27 [i.e. 26] February 1802". Though assignments and other legal instruments dating back to 22 January 1794 are included in this first Register it appears from this order to have been created from 6 March 1802.⁴

On 18 January 1817 Governor Lachlan Macquarie, expanding on King’s order of 1802, declared that all deeds and conveyances from the 25 March 1817 "may at the election of the party or parties concerned be registered" by the Judge Advocate who "shall enter in Register Books, to be kept for such purpose, a memorial of every such deed or conveyance’". A fee of five shillings was to be paid for the endorsement of certificate on every such deed or conveyance. Such a certificate was to be allowed as evidence of registration in all courts.

The effect of this order from 25 March 1817 was to encourage the registration of land title transactions so that they should not be considered fraudulent or void. Parties lodged a memorial with the Judge Advocate which summarised the relevant deed and formed part of the register.5 Macquarie’s order "established the Judge Advocate’s Office, which had always been voluntarily and partially used as such, a public Register office for Deeds".⁶ Hence the entries from 25 March 1817 in the 'Old Register' may be considered as the "first recognisable register of deeds in New South Wales"⁷.

In 1819 Commissioner John Thomas Bigge conducted an enquiry into the
administration of Governor Macquarie. Edward Eager was an emancipist who was a legal practitioner in the Governor’s Court prior to 18 January 1817. Eager reported on the effect of King’s order in his written evidence to the enquiry. Eager noted that "This Order it was impossible to carry into effect, for it was more than the Judge Advocate possibly could do to draw up in his Office every Assignment of Property made in this Colony; yet the Judge of the Supreme Court [of Civil Judicature], in the year 1817, judicially decided, in a Cause 'Terry v. Cluer' in his Court, that this Order was in full force and effect … The Deed was in all other respects a good Deed; but the Judge … felt himself bound to decide accordingly".⁸

Macquarie further ordered on 19 July 1817 "that any deed, conveyance or other assignment of property whatsoever, so made and bearing date between the said twenty-sixth day of February in the said year 1802, and the said twenty fifth day of March now last past, which may or shall not appear, or be found to have been drawn up or duly registered at the said Judge Advocate’s Office, shall not, on account or by reason thereof, become, be considered, or taken to be illegal and ipso facto void."⁹ Thus earlier deeds and conveyances prior to the proclamation of 18 January 1817 which had not yet been registered were validated.

Seven of the nine old Registers record land transactions during Macquarie’s governorship from 1810 to 1821. In his oral evidence to Bigge, Eager stated that he knew that "since the year 1810, a book has been kept at the Judge Advocate’s Office for the registration of deeds".¹⁰ Joshua John Moore, referred to Cluer’s second mortgage of 4 December 1816 which was registered in a book "the earliest deed in this Registry book" being "7 June 1814, but there is a book as far back as 1809." He continued "There is none before the period of the deposition of Governor Bligh". James Foster, Clerk to the late Judge Advocate Ellis Bent, from the year 1813 to his death stated that "This Register-book was kept by me".¹¹ This evidence appears to indicate that few registrations were made during the period of the insurrection and registrations recommenced with the arrival of Governor Macquarie. They continued to be made into the governorship of Sir Thomas Brisbane.

The Office of the Judge Advocate was abolished and both its functions and the Registers were transferred to the NSW Supreme Court when it was established on 17 May 1824. Entries continued to be made to the register until 15 May 1824 when legal entries ceased and the Vendors Index commenced in the newly established Supreme Court. While the creation of new Register entries was discontinued they continued to be used for reference and over the next two hundred years became popularly known as the “Old Register”.