To have confirmed all former t.i.tles would have been obviously unjust. In 1823, a location was given, but abandoned. Sorell advised a settler that came after to take the land, which he did. For fourteen years he lived there, and spent 3,000: the original owner re-appeared with a Brisbane grant, as a claimant of this property.

Colonel Arthur adopted Stephen's recommendation in 1831, and announced in the _Gazette_, January following, its approval by the secretary of state.

All existing grants being invalid, the settlers depended on the justice of the crown to perfect their t.i.tles. The royal warrant of the king authorised the renunciation of claims founded on the informality, and deeds drawn in the king's name, containing the same conditions as the governors' grants, were offered at 5s. Now, however, the grants contained a true description of the land, and the name of the rightful possessor. The loose system of conveyancing, formerly expressed rather the intention than the act of transfer. Property had been subdivided, especially in the town: these parcels, however small, were now conveyed direct to the actual owner, subject to their proportion of quit rent.

Possession and reputed ownership, were taken as a t.i.tle. Those whose property was in excess, or less than their description, had their proportion of quit rents adjusted. The governor threatened with resumption lands obtained by exhibiting false pretensions to capital, or alienated before the period prescribed, or by collusive sheriff's sales.

Oblivion was granted to breaches of conditions, when not fraudulent, on payment of 6d. per acre fine. Commissioners, James Simpson and George Frankland, Esqrs., were appointed to carry out this admirable plan (1832).

An act, const.i.tuting the caveat board a court of equity and good conscience, was pa.s.sed in 1835. The gentlemen who framed it held the board, "in the sacred light of a court," although the concurrence of the governor was necessary to render its decisions valid. Commissioners were appointed to examine on oath. They were empowered to obtain a verdict from a jury in a special case: by appealing to the judge of the supreme court, they could submit a feigned issue for trial. In clear cases, however, after three months' notice, they were permitted to adjudicate.

The decisions of this board have usually satisfied the public: they have been nearly always confirmed, and have prevented boundless litigation.[174]

Many surveyors were employed, who acted in the several districts (1838).

The survey of 100 acres was effected for 5, of 2,000 for 20. The list of locations being published, the surveyor-general held a movable court, to identify and arrange the boundaries. It was part of his duty to mediate between the contending parties. These preliminaries being settled, the commissioners issued grants to such as made good their claim.

The proof of intention on the part of any officers, by custom ent.i.tled to grant occupation, has commonly barred the rights of the crown; but for this, a large amount of practical injustice must have been inflicted. Such was the only form in which grants could be distributed, when the country was just occupied, and the science of mensuration and accounts almost unknown.

To this, the case of the heir-at-law of Major Abbott is nearly a solitary exception. Being about to retire from office, Major Abbott applied for a reserve of 210 valuable acres at Launceston, and 3,000 acres elsewhere. On the recommendation of Sorell, then lieutenant-governor, who stated minutely the land desired, Sir Thomas Brisbane ordered the ground to be marked off as "crown reserves:" and Sorell, being just superseded, wrote on the order with a pencil the name of Abbott. Several persons at Launceston regretted the alienation of land useful to the township, and pet.i.tioned accordingly. Their views were favored by Arthur, and the claim of Abbott was supported by Sorell. Lord Bathurst ordered the grants in question to be given. Arthur, however, again appealed, and the decision in favour of Abbott was cancelled; but the 3,000 acres, reserved in the same terms and at the same time, were confirmed. Major Abbott through life maintained his right to the Launceston reserve, and devolved its prosecution on his son; for twenty years he contested his right with the agents of the crown. During the litigation its value has ranged from 2,000 to 8,000.

On an appeal to the secretary of state, Lord John Russell referred the claimant to trial by jury. He erected a house on the ground: this a chain gang was employed to destroy. He brought his action for trespa.s.s, which the law officers met by a demurrer. On his application for a deed of grant, a caveat was entered by Major Wentworth. Two of the commissioners decided in Abbott's favour, and the third, Dr. Turnbull, against him. The usual course was to issue grants on the decision of the major part: this the governor refused, and the case was once more referred to the secretary of state. In 1849, Earl Grey declared that the governor had exercised a sound discretion in refusing the advice of the caveat board,[175] and thus finally negatived the claim.

The intention of Sorell in favour of Major Abbott is clear: the provisional reserve of the land in his behalf is clear also. The views of Sir Thomas Brisbane are not so indisputable; but they probably changed on a remonstrance being offered by Arthur. The official answer to Sorell's application was a description of the reserve solicited, unaccompanied with demur or question: it was understood by Sorell to mean approval; and, but for subsequent interference, a grant would have issued of course. Where no corruption can be suspected, actual or ultimate value is certainly no equitable objection to perfect a claim founded on the custom, and created by the authorities of the time.

Except the grants claimed under the Downing-street regulations, lands were bestowed at the discretion of the governor, to the extent of 2,650 acres. Many received still larger quant.i.ties at different times. The arrest of robbers, the cultivation of flax or hops, the capture or conciliation of the aborigines, and losses by fire, were occasions for the governor's benevolence: other and less respectable causes were attributed, and scarcely require enumeration.

The large discretion of the governor was a.s.serted by Sir George Murray.

Mr. Hall, the editor of the _Monitor_, had been refused a grant by Darling, while others were freely indulged. He complained; but was told by the secretary of state (1829), that the governor could judge most correctly of an applicant, and that his decision would be usually held final.

The collection of quit-rents has baffled the agents of the crown: at first, the amount was too small to repay the trouble of collection, and for both colonies, in 1824, did not exceed 400 per annum.

A large number of grants in Van Diemen's Land became liable in 1831, and notice was given that payment would be enforced. The settlers of Cornwall, led by Messrs. Bryan, Joseph Archer, and Gleadow, signed a pet.i.tion to the crown, which complained that the exaction was partial and oppressive. The governor promised to forward the memorial, but stated that he had no ground to expect that the claim would be ever relaxed.

Notwithstanding, in 1834, Arthur proposed a composition. He offered a release at ten instead of twenty years' purchase, if accepted within one year; without, however, allowing any set-off "for convict maintenance"--equal, in some cases, to the whole sum. In 1836, he proposed to intercede with the crown to relinquish all claims up to that year, a bond being given by the debtor for the arrears, if required: these offers were but little successful.

To prevent a return to this topic, it may be added, that in 1841 Sir John Franklin offered to mediate for a remission of acc.u.mulations prior to 1835, provided all from that date were liquidated by yearly instalments. The total amount of quit-rent is estimated at 15,000 a-year, including the towns.

The collection of quit-rents is a curious instance of dodging--the government to obtain, and the settlers to evade. Those debtors drawn into payment, could demand in equity that the indulgence granted to defaulters should be communicated to them: they were allowed a set-off in future payments. Those who redeemed their quit-rent were less favored.

The extinction of uncertain obligations would be a public boon, if only for their tendency to produce discontent and habits of evasion. The reservations of timber and material, and right of road-making, are hardly less impolitic. If the law should oblige a proprietor to accommodate his country, equity prescribes his fair indemnity. A functionary might cut through a settler's estate in malevolence, and destroy the approaches to his dwellings, under terms without tangible limitation. In 1831, the government authorised a party to go through an orchard, planted on a Macquarie grant, to enlarge a road to the ferry at Risdon. The owner brought his action, and the a.s.sessors gave him a verdict. The lawyers pleaded the general invalidity of colonial t.i.tles, and thus the right of the crown to resume! In 1824, the roads were thirty feet: in 1827, they were increased to sixty; and the attempt was made to take from a location given under the old rule, the increased breadth stipulated by the new.[176]

"A strange rumour," said a colonial editor, "has reached us, that free grants of land will be conferred no more." Lord Ripon's regulations were published in London, January 20th, 1831. They were framed to obviate the theoretical and practical evils attributed to the easy acquisition of land; to terminate the prodigality of governors, and the frequent quarrels occasioned by their favoritism; and above all, to prevent laborers from becoming landholders, and the tendency of colonists to scatter over territories they can not cultivate. This important change, which excited alarm or exultation in the colonies, was only noticed in one London newspaper: with such indifference was a system regarded, destined to produce the most important national consequences.

Except reserves intended for public use, crown lands were offered for sale to the highest bidders, at the upset price of five shillings, and for the first time, to the usual reservation were added precious metals.

Arthur, who greatly disapproved the application of these rules to Van Diemen's Land, where no tendency to dispersion had been displayed, and where free grants of land formed the basis of the convict system, manfully employed the last hours of patronage. The lands in the towns were rapidly disposed of, and all who could prefer a reasonable claim, were readily indulged. A few grants were bestowed by the special favor of Arthur: 205,000 acres were alienated chiefly in grants of extension, due by the terms of the original grants. Those whose expectations were satisfied, were not displeased with a measure which gave a definite value to estates, and when once the principle was established, the higher the price of crown lands, the greater the nominal value of their own.

A large number of persons, by neglect of the conditions, were liable to forfeiture; but among them were several favorite officers of the governor, or members of his own family. It was stated, without contradiction, that the surveyor-general sold his maximum grant for 1,700, when none of the conditions were fulfilled. An attorney-general not only parted with his property, but obtained afterwards a grant in extension for improvements he never made; and a gentleman, who had not visited the country, but was related to several persons of influence, obtained both a country and a town allotment.[177]

Lord Ripon's regulations disappointed many officers intending to settle in the Australian colonies; but against this a provision was made (August, 1831), which ent.i.tled them to a remission of from 150 to 300, according to rank. They were, however, to give bonds for residence on the land so obtained.

The ready sale of waste lands seemed to justify their valuation by the crown. In 1832, 44,000 were netted, at nearly twelve shillings per acre. This high average was occasioned by the sale of valuable reserves: those of Ross were sold, some portions at 29s. per acre. The governor complained that the sale of town allotments led to speculation and limited improvements; he therefore offered land on three years' leases, except at Hobart Town, at the usual quit-rent, and exacted the promise to erect buildings of brick or stone. The absence of compet.i.tion for the country allotments threatened to limit the proprietorship; but this precaution was forbidden by the secretary of state in 1835, when the system of granting lands at quit-rents finally terminated.

FOOTNOTES:

[Footnote 172: _Sydney Gazette_, 1822.]

[Footnote 173: Copy of a grant of 1,500 acres:--"Whereas full power and authority for granting lands in the territory of New South Wales are vested in his Majesty's captain-general and governor-in-chief (or in his absence the lieutenant-governor for the time being) in and over the said territory and its dependencies by his Majesty's instructions under the royal sign manual, bearing date respectively the 25th day of April 1787 and the 20th day of August 1789: In pursuance of the power and authority vested in me as aforesaid, I do by these presents give and grant unto A.

B. his heirs and a.s.signs, to have and to hold for ever, 1,500 acres of land lying and situate in the ---- district, Van Diemen's Land, bounded, &c. &c. &c. &c., to be had and held by him the said A. B. his heirs and a.s.signs, free from all taxes, quit-rents, and other acknowledgements, for the s.p.a.ce of five years from the date hereof; provided always, and it is hereby expressed to be understood that the said A. B. the grantee in these presents named, shall in no ways either directly or indirectly sell, alienate, or transfer any part or parcel of the land hereby granted within the said term of five years; and also provided always that the said A. B. should clear and cultivate, or cause to be cleared and cultivated, within the said term of five years, the quant.i.ty of 75 acres of the said land hereby granted, otherwise the whole of the said land hereby granted shall revert to the crown, and the grant hereby made thereof shall be held and deemed null and void, and saving and reserving to government the right of making a public road through such part of the said land as may at any time be required: such timber as may be growing or that may grow hereafter upon the said lands, which may be deemed fit for naval purposes, to be reserved for the use of the crown; and paying an annual quit-rent of 30s. after the term or time of five years before mentioned. In testimony whereof," &c.]

[Footnote 174: It appears to have been followed in the court, lately inst.i.tuted in Ireland, for the sale of enc.u.mbered estates.]

[Footnote 175: Despatch, 10th June, 1849.]

[Footnote 176: Bastian _v._ Bridger.]

SECTION XII.

A work of Edward Gibbon Wakefield, professed to detect the errors in British colonisation, and to prescribe a new and more effective plan.[178] It consisted in selling land at "a sufficient price" to combine labor and capital, to collect all the elements of civilisation, to prevent the dispersion of population, the premature possession of land by the workman, and speculation by jobbers. Thus a colony, on this model, was compared to a tree transplanted, the fibres of its roots undivided, and its branches unbroken.

For several years previous to this decisive change, the desire had been widely expressed to relieve the parent country by the emigration of paupers. Sir William Horton devoted great attention to the subject. He visited various districts most oppressed by population, and pointed out the methods available to an extensive removal. The Canada Company, which transacted much business with him while under secretary of state, had purchased and re-sold crown lands; and many laborers, who were transferred at their own expense to that country, rapidly improved their condition. A committee of the Commons sat upon the subject, and a bill was introduced by Mr. Horton himself, to authorise the parishes to mortgage their poor rates. It was once intended by the government to levy a tax on convict laborers, and to increase its amount on artizans, and thus raise a fund for emigration: this project, Arthur successfully resisted, and large permanent resources were discovered in the sale of lands. The parishes were not willing to incur the outlay, and it was opposed by many who were persuaded that the poverty of the laborer resulted from oppression.[179] The intolerable degradation of the poor led to outrages and crimes. Large numbers were transported for agrarian offences, and many others had no refuge, but to obtain deliverance from starvation by less concerted violations of the law.

Agricultural laborers were driven from town to town; offered by auction at two-pence a day; harnessed to gravel carts; mocked by being sent with a barley straw fifteen miles a day; imprisoned in pits, and kept standing morning after morning in a public pound. Such were the scenes which induced Horton to lecture through the country on redundant population and emigration; and to call the attention of the parliament to the march of poverty, pauperism, tyranny, and crime.[180]

The proposition of Sir William Horton led to various projects of private parties, in furtherance of colonisation. Grants of land were given to capitalists in proportion to the laborers they conveyed; whom they were permitted to engage as indented servants. The scheme chiefly important to Van Diemen's Land, was the settlement of Swan River. Four gentlemen proposed to government, to convey 10,000 persons, for a grant equivalent. The minister thought the project too vast. Three of the four declined: Mr. Thomas Peel, a relative of Sir Robert Peel, still persevered. Many persons entrusted their capital to agents, who presented it, and obtained a t.i.tle to possessions they never intended to cultivate.

By the regulations published at Downing-street (December 5th, 1828), the settlers were allowed 40 acres for every 3 of invested capital; 200 acres for every laborer conveyed. No convicts, or any other description of prisoners, were to be sent; but land granted, was to be forfeited, unless improved within twenty-one years. Thus, those who conveyed laborers, were met by compet.i.tors who had incurred no such expenses; and the conditions imposed neutralised each other. The settler who carried out labour, found his servant desert him to occupy land acquired by the capitalist who carried out money. Of three hundred persons embarked by Mr. Peel, in a few months not one remained to light his fire; but the recreant workmen were soon reduced to want. Many, under their broken indentures, claimed relief of Mr. Peel, whose flocks had been scattered, and his property destroyed by their desertion. He was glad to hide from their violence, while they were embarking for the neighbouring colonies.

Respectable families were compelled to perform the most menial offices, and young women of education were reduced to rags. Contributions of clothing were collected and forwarded by the ladies of Cornwall. Many were brought to Van Diemen's Land, as to a city of refuge: the population, from 4,000, decreased to 1,500, and the ruined landholders pet.i.tioned the government for a share of convict labour--a boon which the elder colonies deprecated, and the minister refused (1835).

Swan River seemed to promise a desirable market, and the merchants dispatched vessels with provisions and cattle: Mr. Gellibrand speculated largely. On the whole, the returns were not equal to the outlay; and although sometimes great profits were realised, Van Diemen's Land was injured by the trade.

Scarcely were the settlers of Western Australia landed, when another colony, Spencer's Gulf, was projected. The authors of this scheme imputed serious detects to the plan of its immediate predecessor. The low price and extensive holdings, the want of combinable laborers, and the imperfect organisation of its social fabric, seemed to account for its disasters. A body of persons, concurring in the Wakefield system of colonisation, and comprehending many members of the House of Commons, formed themselves into an a.s.sociation, and applied to the government for the necessary powers. After considerable discussion, the minister declined their proposal, and the realisation of their hopes was deferred several years. The more active partisans of the scheme kept it before the public. An act pa.s.sed the legislature on the 15th of August, 1834, empowering the crown to erect South Australia into a British province.

Commissioners were appointed for the sale of land, and for the conveyance of emigrants. It was determined that the price should be sufficient to prevent laborers from buying land, and furnish the cost of their emigration. The company were authorised to borrow 50,000. If, at the expiration of ten years, the population should not reach 20,000, the control of the land was to revert to the crown. With a population of 50,000, they were to obtain the rights of political freedom, and no convict ship was to anchor on their sh.o.r.es. The upset price was at first 1, and, for a time, 12s. per acre. The intended colony was viewed with distrust by the elder settlements for the theoretical character of the plan, and its entire opposition to the then prevailing notions of penal labour. The advocates of the enterprise lost no occasion to denounce the social condition of Van Diemen's Land and New South Wales; where, however, the scheme was p.r.o.nounced insane, and destined to certain disorder and ultimate overthrow. The appearance of new speculators in the Australian colonies compensated them for these reproaches. In publishing their plans, the company had always referred to supplies within their vicinity, as an immediate and certain reserve. The Tasmanian merchants met them on the sh.o.r.e of the royal province. Sheep were sent over as the basis of their flocks; timber for their huts; and the various produce of rural wealth, originally brought at great cost from Europe. A long succession of adventurers raised the value of produce throughout the colonies; and individuals realised large profits in the trade; but when the arrivals from England ceased, the new colony was involved in whatever misfortunes its peculiar plan was supposed to avert. Many hundreds, driven out by poverty, settled in the penal colonies, and the property of Adelaide became unsaleable: the frail dwellings were deserted, and the land lay utterly waste. Of the Adelaide traders, scarcely a house escaped insolvency, and the loss was total.

Those who remained turned their land to account: their flocks increased, and the discovery of the mines happily realised more than their early hopes. The lands sold by the company were freed from the mineral reservation.

An old gentleman, named Menge, formerly an attendant on a distinguished German geologist, was the discoverer of its mineral riches. He was employed by Mr. George F. Angus to select his special surveys. His occasional choice of rocks and barren soil excited ridicule and astonishment; but he was accustomed to say, "the wealth is below, not upon the ground." He lived in the cleft of a rock at the junction of the Gawler and Para, near a plot of forty acres, almost surrounded with water, where he cultivated melons of every variety. He spoke many languages, and had travelled through Germany, Switzerland, and Iceland.

A mineral collection he made, is in the University Museum, Edinburgh.

His excursions in South Australia were intrepid, and extended far: he carried a wallet and a hammer, and subsisted during his wandering on gum. His conversation was visionary; and his predictions, at the time, but little regarded.

The coast of New Holland, opposite to Van Diemen's Land, was almost neglected since the removal of the colony in 1803. Various reports were brought by whalers of its suitableness for sheep farming. Howell, Hume, and Batman had explored the country in 1824, and had acquired some knowledge of its quality. In 1827, an application was made by Messrs. J.

T. Gellibrand and Batman to General Darling, for permission to land stock, to the amount of 5,000, in the neighbourhood of Western Port.

This project failed; but in 1835, Mr. Batman, called the Australian Penn, acting for certain colonists, of whom a nephew of Arthur was one, proceeded to Port Phillip. Several Sydney blacks, under his care, had acquired the English language, and accompanied him thither. This important expedition embarked in a colonial vessel, and landed on the 26th May, on the sh.o.r.e of Port Phillip. The civilised blacks were now decked with native ornaments, and advanced towards the fires of the aborigines; but they had fled. They were, however, tracked by Batman's company, who opened a friendly conference, and were perfectly understood. The natives displayed some apprehension, and intimated they had already experienced injury from the English. Batman gave them presents of tomahawks and trinkets, and conciliated their fullest confidence. Some time after, the party met the chief of another tribe, who had heard reports of the white man's liberality: he conducted them towards the huts; but in their progress they were surprised by an hostile array of the natives. The blacks of Batman's party called out to them, and amity was established. Batman took the spear of the chief, who carried his gun. He then proposed to live among them: the conditions were explained to their satisfaction. The treaty of Penn with the Indians was the model of the covenant with the tribe of Dutegaller. They conveyed a track of 600,000 acres, for blankets and other objects of native desire, and an annual payment of similar articles to the value of 200. This deed was signed, sealed, and delivered by the natives in due form.

The report of this expedition was presented to Arthur, who warmly concurred in the occupation, and approved the consideration of native rights; but observed that those rights had been disregarded in the recent colonisation of South Australia, and that Port Phillip was within the government of New South Wales. Arthur was desirous of making that territory dependent on Van Diemen's Land. The minister favorably noticed the proposal; but in the meantime Governor Bourke a.s.serted his claim, and declared the company intruders, and their bargains with the natives void.

Notwithstanding, the colony now opened was occupied by many adventurers.

Their sheep were rapidly transferred, and the greater portion of the early inhabitants were settlers from Van Diemen's Land. The settlement was suffered with reluctance. The theory of concentration had been adopted only a few months before; but, except by setting up a government on the spot, it was found that an illegal occupation of land could not be prevented. Governor Bourke wrote to the secretary of state, that whatever the general wisdom of concentration, an opposite course was necessary for pastoral wealth; and that to neglect nutritious food, would be to reject "the bounty of providence." He proposed to sell the land in townships, and employ the proceeds in the public service.