CHAPTER V

THE LAND SYSTEM OF PORT PHILLIP

SINCE the days of Harrington, it has been a truism that the distribution of the land of a country determines the balance of political and social power within it. It becomes therefore of the first importance, in studying the political development of a community, to ascertain the lines upon which this distribution proceeds.

The land systems of British colonies have been based upon a most remarkable application of old ideas to new facts. Without going into details, it may be said that England has passed through the feudal stage of existence, in which all political and social relations are symbolised and guaranteed by the relationship of each individual to the land. In this stage,

the king, the supreme political and social power, is also supreme, or, more properly speaking, sole landowner. The great nobles, next to him in power and wealth, are next to him in relation to the land; they hold of him, as it is said, their great territorial estates, they are his immediate tenants. Next to them come the knights and squires, the landed gentry, who stand in like relation to the great nobles for their estates. Below them again are the farmers in the country and the burghers in the towns, very probably representing the old free settlers of pre-feudal times, but forced by feudal theories into this dependent relationship. And last of all come the semiservile classes, the thralls, serfs, and knaves, whose condition, at first very degraded, rises precisely in the degree to which they can secure a permanent tenancy of their holdings.

The completeness of this system in England had given way, long prior to the acquisition of her great colonial possessions,

CHAP. V

THEORY OF CROWN OVERLORDSHIP

33

before the rival influences of education and commerce, with their readjustment of political and social conditions. But enough survived to produce one great practical result. In England nearly all the land had long been in private hands, and the theory of the Crown ownership of the soil only came to light on rare occasions, when, for example, no other claimant could be found for an estate, or when a landowner was convicted of felony, and his acres escheated to the Crown in default of other lords. But when the vast vacant lands of the colonies came to be disposed of, the theory woke to new life. It was this doctrine that gave to William Penn and Lord Baltimore their titles in New England. It was this theory which was called into play when free settlers first began to emigrate, about the beginning of the present century, to Australia.

At first there seems to have been no regular system of disposing of the Crown lands in Australia.1 All grants were finally made by the colonial Governors, in pursuance of the powers contained in their commissions; but immigrants frequently arrived from England with "land orders" entitling them to government grants, and the Governors used their own discretion with regard to local claimants. In this way about 600,000 acres of land were disposed of in New South Wales alone before the year 1823.2 Conditions as to payment of perpetual quit-rents to the Crown and other returns were frequently imposed in the grants, and improvements upon the land so granted were generally considered grounds for increased grants to the improvers.3 Notwithstanding these lavish aliena

1 Governor Macquarie's Instructions (Nos. 9 and 12) attempted to frame a scale of grants to ex-convicts and freemen respectively. In the case of the former a quit-rent of sixpence for every 30 acres, and of the latter of one shilling for every 50 acres, was to be payable at the expiration of ten years from the grant. But from the return alluded to in the next note, it is obvious that this scale was disregarded (cf. Instructions in vol. of Australian Papers, Pub. Lib. 443, 9, 14, p. 374).

2 Evidence of Mr. Kelsey (House of Commons Reports of Committees, 1836, vol. v. p. 699). Of course, as in all such cases, a customary rule tended to establish itself. In Van Diemen's Land the understanding was that a man could get an acre of Government land for every pound which he could persuade the Government that he possessed (evidence of Mr. William Bryan, ibid. p. 715). Particulars of grants made between 1812 and 1821 can be seen in a volume of Australian Papers (Pub. Lib. ref., 443, 9, 14, p. 94).

3 Evidence of Mr. William Bryan (House of Commons Reports, 1836, vol. v. p. 716).

D

tions, great discontent was excited by the system. As might have been expected, accusations of favouritism and corruption were freely made, and apparently with good reason.1 And it seems to have been the custom for the lawyers of the period. to agitate the landowners of the community by throwing out dark hints as to the validity of titles resting on colonial grants.2

4

5

The first attempt to introduce a settled scheme appears to have been made in the year 1824, when the Colonial office published a summary of Regulations respecting grants of land in New South Wales and Van Diemen's Land. The summary stated that it was proposed to divide the whole territory into counties, hundreds, and parishes (after the English model), the parish to be of an average area of 25 square miles. A complete valuation of lands throughout the colony was to be made, and an average price struck for each parish, at which price all lands were to be open for sale in blocks usually of 3 square miles, with a maximum limit to any individual of five blocks, though the Secretary of State was prepared to consider special applications for larger grants. The purchase money was to be paid in four quarterly payments, but any purchaser who, within ten years of his purchase, should have relieved the public from a charge equal to ten times the amount of his purchase money, by the employment and maintenance of convict labour, would be then entitled to a return of his purchase money without interest. The cost of each convict to the government was fixed for this purpose at the rate of £16 a year.

But the Regulations contemplated other arrangements than the out-and-out purchase of land. To persons who established to the satisfaction of the Governor their power and intention to

1 Evidence of Mr. William Bryan (House of Commons Reports, 1836, vol. v. p. 717). 2 Ibid. p. 720. 3 Copy in ibid. p. 752. Apparently this object was entrusted to a specially created department known as the Commission for Apportioning the Territory of New South Wales, abolished in 1830 (Papers handed in by Sir George Grey, ibid. p. 521).

It will be remembered that at this time Van Diemen's Land was part of the colony of New South Wales.

6 The words are "put up to sale," but auction is obviously not intended. There is to be no competition.

7 This provision doubtless referred to the contemplated establishment of the Australian Agricultural Company and other great commercial speculations.

CHAP. V

ATTEMPTS AT REFORM

35

expend in the cultivation of the land a capital equal to at least half the value of it, grants1 of from 320 to 2560 acres might be made without immediate payment. But at the expiration of seven years from the date of the grant, a quit-rent at the rate of five per cent upon the estimated 2 value would commence to be payable in perpetuity, unless redeemed within twenty-five years by a payment of twenty times its annual amount. On such redemption the grantee would be entitled to credit at one-fifth of the rate before mentioned for maintenance of convict labour. If at the end of the first seven years the grantee failed to prove to the satisfaction of the surveyor-general that he had expended the contemplated amount of capital (which proof was also to be a condition precedent to a second grant), his lands were to be forfeited to the Crown.

3

But the old influences at work were too strong. The Home government at once proceeded to violate its own policy by creating two great commercial companies, and endowing them with vast tracts of land on special conditions. The Australian Agricultural Company was established by statute 5 Geo. IV. c. 86, and soon after received a large grant of lands in the neighbourhood of Sydney, it is said 3 without payment of any kind. The Van Diemen's Land Company was created by 6 Geo. IV. c. 39, and on the 10th November 1825* received its charter, in pursuance whereof various Orders in Council were directed to the Lieutenant-Governors of Van Diemen's Land between the years 1825 and 1837, instructing them to "admit the company to possession" of large tracts of waste land on certain terms, and this possession was transformed into unfettered ownership in fee-simple under the powers of a later Act."

These steps were not only economically doubtful, but they menaced a grave political danger. The history of the East India Company might very well have been repeated in the annals of the Australian companies. Had the stream of immigration

1 The term "grant" in this connection is generally used in the documents exclusively to represent these special transactions, but of course it must be remembered that the cash purchase would also be effected by a "grant."

2 This means value estimated at the time of the grant.

3 By Mr. Rusden (vol ii. p. 262). An abstract of this charter may be seen in House of Commons Papers (reports), 1836, vol. v. p. 764.

See preamble to 10 & 11 Vic. c. 57.

5 10 & 11 Vic. c. 57.

to Australia been anything like so rapid as it has long been to America, the directors of these great landowning corporations would soon have become local magnates with wealth and influence enough to defy the governments at Sydney and Hobart Town. Happily for all parties, the scantiness of the population of Australia prevented such a catastrophe, and the companies have all along had only an economic importance.

But the regulations of 1824 seem to have met with little better fate in the colony itself. They were, of course, published in due form on their receipt by Governor Darling, who, however, ventured on his own authority to alter the area of the average block from 3 square miles to one-third of that extent. But the Governor appears to have taken a still stronger step, for, appended to the order publishing the Regulations, is the ominous notice: "With reference to the above, his Excellency the Governor must decline receiving, until further notice, any more applications for the purchase of Crown lands."1

The main object of the Regulations, the establishment of a system of cash sales, probably, therefore, failed entirely. The Home government repeated its announcement in the year 1826,2 but in the year following it modified its terms, and introduced a system of competition by tender for purchased lands (selected by claimants and then announced as open for sale), while allowing the payment to be made in half-yearly amounts at the discretion of the Governor. A still greater change was made in the conditions of grant without purchase. The Governor, after a thorough investigation of the claimant's assertions by a Land Board, was to be entitled to make a grant at the rate of one square mile for every £500 of capital proved by the applicant, but not exceeding in any case 4 square miles. The rights of the Crown in the land for public purposes were to be reserved, and the land was to be forfeited upon failure of proof, at the end of seven years, of the expenditure upon it of capital to the extent of one-fourth of its survey value. After seven years the old quit-rent of five per cent would begin to run, but it would be redeemable at any time at twenty years' purchase. A final Regulation, of great importance, provided that the personal residence of the grantee, whether with or without purchase, or at least the maintenance of a free man of 2 Ibid. p. 754.

1 House of Commons Reports, 1836, vol. v. p. 753.