The Health Act, 1958, Victoria: property may exist in a lock of hair or in nightsoil.
Your gilded pills. Don’t get me started on Victoria. Solo cedit. It’s Yarmouth versus France, de meuble en immeuble etc. I do not intend perishing in the abyss of nonsense. Our bell, book and candle is the fundamentum divisionis. I’ve watched too many movies. But quibbles and the larger part of the almost innumerable channels into which the effectively mythical and undeniably nicht festen Grund of the really universal position of private ownership flows aside, afloat as we are in the modesty of your explicit predicament, I would eventually like to draw your attention as we are swept heretofrom towards the more dispersive spheres of jurisprudence to the desirability of apprehending something of the distinction between real property and personal property, as it is therein one encounters the peculiarity, je baise mes mots, of the situation pertaining to the Colony of New South Wales. Difficile est. Do not think that through the mere process of elucidation I exaggerate those incoherencies adhering in many a mechanical affinity that, automatonlike, continues to function in the absence of more than a soul. They present nonetheless no deficiency of occasions to take fright. When Forbes ruled in 1825 that no grant from the Crown is good, unless the Great Seal be affixed to it, and it also be of record, the portent of Dr. Wardell’s response for the Australian deserves neither to be dismissively calqued from the distended lines of the extra-quotidian persona of journalistic declarators, assuming one knows the Chief Justice’s reply, nor merely felt in the lightning-like apperception of something profoundly amiss, viz. if something is not done somewhere to ratify all the grants and leases which the Crown has hitherto made, it strikes us, (assuming the dictum of the Chief Justice to be law) that there is no legal title to a foot of land in the colony, but arrested rather in what he does not say. In 1829, another dry year, the same Forbes was successfully petitioned by pastoralists for a suspension of quit rents, when an overwhelming number of actions to recover debt began to pour into this Court, resulting in the Bankruptcy Legislation, which removed associated prison sentences, and generally loosened restrictions on debtors, such as to allow them, item verbatim, a fresh start (an imperial statute of 1813 had put land in New South Wales in terms of debt recovery on the same footing as personal chattels, allowing a creditor to take possession of all of a debtor’s lands, whereas in England, where the prejudice was for the conservation of title, it was only half), Governor Darling reacted to the situation in Sydney, where the greater part of land was held by leases from the Crown or by urban squatters, by proclaiming, with the unanimous approval of the Executive Council, that on application, a grant in fee simple would be issued, on conditions prescribed, to every person, or his lawful representative, who, on or before 30th June 1823 (a period when every rural grantee was required to keep and, nota bene, clothe a convict for every one hundred acres, which may stand as an illustration of the asymmetry arising between the country leasehold in New South Wales and the large English estate, a formal conflict that culminated in the British Government Crown Land Sales Act, passed the same year as the Waste Lands Occupation Act, which was itself helped in by an alliance of squatters and a London-based cohort of wool-importing firms, land appearing to the concerned parties in the form of a commodity that, unlike salt, tended to perish under monopoly), was bona fide in possession of a tenement by lease from the Government, whether it had expired or not, or who occupied any allotment of land in town not hitherto alienated by the Crown, and not specified, in an Order of even date, as ‘parcels of land in the town of Sydney reserved for public purposes.’ You will allow me the mise en abîme. In the absence of lacunae I find there is only one way to extricate: reach further back and see where it leads. Dig in, please, there are almost no surprises. One parcel of land reserved for public purposes took in three and a quarter acres of the Government Domain, he indicated generously, leased in 1802 by King (the Governor, not the alleged Joseph or the supposed deceased Nicolo) to John Palmer, the Colony’s first commissary, in exchange for a Lumber yard in the heart of the town held by Palmer of a very limited duration. Now, this change of hands may not represent such a Sea Mystery At Our Back Door as the ten thousand acres granted to Forbes himself, of which Darling, facing the for him rather regular accusation of abuse of prerogative, said, with malicious veracity perhaps, I have merited reproof by allowing myself to be betrayed into a belief that this 10,000 Acres given to him by my Predecessor, was intended as an equivalent for some Land, which his Mother was to transfer to Government at Bermuda, but since the Domain lease was for five years with a prospective lease of another sixteen, it was certainly against the instructions of the Home Government, which in 1801 ordered no land reserved for government purposes to be leased for more than five. The imminent expiry of the lease notwithstanding, Palmer erected two kinds of windmill and a large bake-house on the land close to the frontage, but by the time the Governor whose name would be given to the street that forms that frontage decided to use the parcel for an extension of his official residence, the lease had already been transferred with improvements, for a substantial consideration, first to Robert Campbell, then, by him, to Fairlie & Co. of Calcutta. In 1814 Macquarie communicated to the outfit’s Sydney agent his intention to pay for the reprisal, and in 1815 demolished the wooden windmill and the bakery, with, however, the question of compensation remaining almost in abeyance until the arrival of Governor Bourke, who had his own plans to build a new Government House on the top portion of Palmer’s original lease, where the dismantled stone windmill had since been converted into living quarters for Government-men and a tool house, as was attested by the Assistant Superintendent of Botanical Gardens, who was also asked, though he could not say why they had been destroyed, nor why the men had left the place, to prove that he had planted trees on the land for Government in 1832, the matter of reprisal having reached litigation after the current claimant to the parcel, one Mr. Steele, answered the Governor’s offer of compensation by placing a lock on the Domain gate. What are robber gangs, except little kingdoms? That is mind you a real question I intend to answer. Evidently it is the tension between the different forms of property represented by leasehold and freehold, not their underlying dynamic, that is novel here. If the feudal jurist already sticks on to pure monetary relations the labels supplied by feudal law, the Statute of Tenures, which, after the English Civil War, did away with the old taxes and obligations once due to the Crown by tenants in capite, that is, those who were supposed to hold land directly from the Crown, and initiated a system whereby all freehold or fee simple estates were created by the Crown in the form of free and common socage, causing a distinction to emerge between real and personal property as relating to the nature of a tenant’s rights to that property, the former generally taking the form of land not because it describes it but rather the nature of the right to it, with freehold a form of real property, or chattel real, and leasehold a form of personal property, or chattel, freehold, being inheritable, coming to be called a freehold of inheritance, thus marking the domestic as well as territorial basis upon which that circle of interest revolved, land being difficult to alienate, title depending on an unbroken chain leading back to good root of title, insofar as it was a step towards the full right of alienation however, did little to mask the advance of the notorious patriciate of money, and with the princes in France, who were similarly allied, the bourgeois reveals himself as the very paleographic origin of the aristocrat: as any amateur belles-lettriste will tell you, the particule is not proof of noblesse but rather the sign of the franc alleu. One was named after one’s holding, and the branches of a single family were distinguished by varied desinence. On the other hand, if the calibrations of the freehold are at last vainly intended to still so many teeth in the corporate clock of the English landed gentry, in the colony of New South Wales, where land is principally divided between small urban freeholders and large leaseholds, it is the former that appear to be vulnerable, the latter purchases for entrenchment. The courts here increasingly appear to be out of joint. I wouldn’t take one of those, in some ways we are further from the ocean than you might think. Above all perhaps, the somewhat redundant interests of government and large landholder appear to be eliciting a conflicting tendency towards both an exacerbation of the old arbitrary powers vested in the Crown as the ultimus heres and a new practice of immediately handling land as goods of exchange. More than one contradiction undoubtedly exists where the law pertaining to leasehold, falling as personal property on the side of what was generally considered to be moveable in the distinction that prevailed in England by the end of the seventeenth century, but which was increasingly felt to be irrelevant here, leasehold having become the chief form of holding land by the 1840s, can supply a certain Windeyer, defending his client against an accusation of intrusion on his own land issued by the Attorney General in New South Wales in 1847, the coherent and even compelling argument that to maintain the grant of Crown land with all its statutory reservations and restrictions would be to maintain all the old principles of feudal slavery which the Statute of Charles II abolished. The question of reservations in fact, throwing up as Windeyer argued the distinction between dominion and ownership, and hence the question of the Crown’s radical title, opened on to what undoubtedly is that highest of contradictions that is constitutional monarchy, where, under fealty, to cite veritas non auctoritas as, between ourselves, goes without saying, it almost appears that the power of the crown is the power of private property. I hardly need to insist that those who took up the omnipresent atom of the latter to examine it, found the slightest agitation sufficed for this incensed and practically neutral power from whom the tenant in capite pretends to hold his lease to appear enthron’d in the marketplace, reemerging upon the field of law as no more ut ita dicam than the negative earth of the capite censi, which may yet be the expression of au bout du fossé with a vengeance, for that other, rational pole of the system, drawn upon as this was to define moveable property rights not only on the continent, where the Roman code was the basis for all law, but also, crucially, by our own forebears, could name such a