A Source Book of Australian History Part 19

A letter lately received mentions that six gentlemen's horses in one locality had been robbed and that Melbourne was full of thieves. (A laugh.) No opportunity had previously offered of talking to the Melbourne people upon the subject, they were so occupied in endeavours to obtain separation from Sydney that every question was lost sight of; but now the matter was settled he did not apprehend any difficultly in establishing this point also.

We are a loyal people, and have given abundant proof of our loyalty; but it is not an unalterable principle. There is an old Spanish proverb--"The sweetest wine makes the sourest vinegar," and so it will be with us.

But the British Government must, and will yield, for they will find it will be to their interest, as well as their duty to grant the reasonable request of the Australian Colonies. (Cheers.)

Three cheers were then given for the Chairman, and three more for the Queen, and the meeting terminated.

THE LAND QUESTION

The adjustment of the English land laws to Australian requirements was a difficult task. The question was discussed in New South Wales in 1855, but South Australia, under the leadership of Torrens, was the first to effect reform (1859).

LAND QUESTION IN SOUTH AUSTRALIA

+Source.+--Speeches on the Reform of the Law of Real Property (Torrens, 1858), pp. 5-6, 8-11

Extract from an address to the Electors of the City of Adelaide delivered in the Theatre on 31st January, 1857. (From the South Australian Register of February 2nd, 1857).

The next topic which I have put down to address you upon, is one with respect to which I should have wished to have had time to arrange my thoughts--it is the cheapening of the law of Conveyancing of real property. (Applause.) Next to affording fair facilities for obtaining possession of the waste lands of the Crown, and converting them into cornfields and homesteads of independent yeomanry, it is the duty of the State to afford a cheap and at the same time a secure mode of conveying that property from man to man. (Hear, hear.) I have for years felt that the law of England in that respect, which we brought with us, required amendment. In looking also to the laws of other countries with respect to the transfer, mortgage, or enc.u.mbrance of real property, I have come to the conclusion that the law of England is inferior to most of them with regard to cost and security of t.i.tle. The old Conservative feeling of England adheres with a sort of veneration to laws and usages respecting t.i.tle which originated under the feudal system, and is loath to abandon them for a system adapted to the requirements of modern civilization. I would ill.u.s.trate my views by observing that, in ancient times, before the Wars of the Roses, a baron, or even a yeoman, would surround his residence with a moat to be crossed only by a drawbridge, and instead of the convenient door of modern times, he would have a portcullis, which he would raise or let fall to admit a friend, or exclude a foe. A visitor, too, would have instead of gaining immediate access, to sound a horn at an outer gate, and hold parley with a warder upon a lofty tower, before he could gain admission. There could be no doubt that all these ceremonies and parleyings were necessary in those days, but it does not follow that we should carry them out in our times.

Were any person now, to surround his residence with a deep and broad ditch, and observe those ceremonies when a visitor called upon him, we would call him insane; yet, that is precisely what we do with regard to the transfer of real estate, observing still the tortuous roundabout methods of conveying, resorted to in those days for the purpose of evading the oppressions of feudalism. Nay, the a.n.a.logy is so strong, that in our Law Courts, and Deeds we still use the same barbarous Norman French jargon in which the parley was in those ancient days held at the gate of the baronial residence. (Hear, and applause.) It is perhaps presumptuous of a person who has not received a legal education, to address his mind to this question; seeing, however, that the persons who, by ability, and education, are best fit to cope with the subject, are not willing, or, at least have not done so, I have taken the task upon myself. (Hear, hear). With your permission, I will give you an outline of the plan. The purchaser of land from the Crown shall receive a t.i.tle deed, a land grant, as at present to be executed in duplicate, and one copy filed in the Registrar-General's office. When an original purchaser sells the land to another, he shall transfer it by a simple memorandum, which being brought to the office of the Registrar-General the original land grant must be surrendered, and then the Registrar will issue a new t.i.tle to the second purchaser direct from the Crown. (Hear, hear.) This will get over the difficulty of tracing t.i.tle through all manner of intricate transactions between purchasers, and instead of a man having to carry about an immense bale of papers, he would have one simple doc.u.ment, which would, nevertheless, be a t.i.tle valid and indisputable, because it would be an original land grant. (Great applause.)

Speech delivered on 4th June, 1857, in the Legislative a.s.sembly by the Hon. the Treasurer, Mr. Torrens, on the introduction of his Bill for amending the law relating to the Transfer of Real Property.

Mr. Speaker, I do not attempt to remedy the evils complained of, by amendment of the existing law; that I believe to be impossible: I propose to abolish a system irremediably wrong in principle, and to subst.i.tute a method which I believe will, when explained, commend itself to the House as consistent with common sense, perfectly feasible, and effectual for all purposes required.

The first and leading principle of the measure which I introduce, is designed to cut off the very source of all costliness, insecurity, litigation, by abolishing altogether the system of retrospective t.i.tles and ordaining that as often as the fee simple is transferred, the existing t.i.tle must be surrendered to the Crown, and a fresh grant from the Crown issued to the new proprietor.

The principle next in importance prescribes that registration _per se_ and alone shall give validity to transactions affecting land. Deposit of duplicate of the instrument, together with the record of the transaction by memorandum entered in the book of registration and endorsed on the grant by the Registrar-General, to const.i.tute registration. This method is designed to give confidence and security to purchasers and mortgagees, through the certainty that nothing affecting the t.i.tle can have existence beyond the transactions of which they have notice in the memoranda endorsed on the grant.

My third principle aims at simplicity and economy by prescribing certain stereotyped forms of instruments available to each occasion to be supplied at the Registry Office, so that any man of ordinary sense and education may transact his own business, without the necessity of applying to a solicitor, except in complicated cases of settlements or entails, which are unusual in this colony.

Many will admit that the system which I recommend might have been introduced at the first founding of this colony, with facility and very great advantage, but doubt its practicability now that t.i.tles have become complicated. Admitting a difficulty, I deny that it is insurmountable, or such as should cause us to hesitate in securing the advantage of transfer by registration. I do not propose a scheme involving violent or arbitrary interference with existing t.i.tles, but would leave it optional with proprietors to avail themselves of it or not. It will thus be gradual in its operation, yet will put t.i.tles in such a train that the desired result will eventually be obtained.

Mr. Speaker, I cannot conclude without expressing my grateful sense of the compliment which the House has paid me, in listening with such marked attention to an address extended to an unusual length upon a subject admitted to be dry and unexciting.

I propose, it is true, a sweeping measure of reform, yet not more thorough than the nature of the case imperatively demands. In this view, I am again borne out by the high authority of Lord Brougham, who, in a speech which I have before quoted, thus expresses himself: "The present system has grown out of ingenious devices to evade the oppressions of feudal tyrants, but under it we are subject to the tyranny of the legal profession, and burdens little less grievous. The reform, to be effectual, must be thorough. _Delenda est Carthaga_ must be our motto."

THE LAND QUESTION IN NEW SOUTH WALES

+Source.+--Fifty Years in the Making of Australian History (Sir Henry Parkes, 1892), pp. 70-71, 81-90, 148, 153

On July 3, 1855, I, (Sir Henry Parkes) moved for the "appointment of a Select Committee to enquire into the state of agriculture, with special reference to the raising of wheaten grain, and to the causes of hindrance or failure in that pursuit, whether arising from the habits of the people, the policy of the Government, or the physical character of the country." To understand the interest that fairly attached to my motion, we must review, or rather glance at, the state of the colony.

The colony still included the whole of Queensland, and embraced an area of 978,315 square miles. Men of leading positions with seats in the Legislature, described it for the most part, as incapable of tillage, and only fit for grazing sheep and cattle, and for "nomadic tribes." A population not numbering more than 277,579 souls imported largely its breadstuffs from South America and other foreign countries. It is now well known that in all divisions of the colony--north, south, or west--there are as rich wheat lands as in any part of the world; but then the ma.s.s of the population were densely ignorant of the true character of the country, and those who knew better, were in too many instances personally interested in keeping them ignorant. The stories that were told of the fruitless endeavours of industrious men to obtain patches of land for a freehold home under the Order-in-Council seem, to the present generation, like cruel bits of romance.

APPENDIX TO EVIDENCE OF MR. J. ROBERTSON (before Select Committee.)

On entering upon the subject under enquiry by the Committee, it is my purpose to a.s.sume that the state of agriculture in general, and of wheat culture in particular in the colony, is exceedingly unsatisfactory, and, if not absolutely declining instead of progressing, is at least so with reference to population. The causes of hindrance or failure of agriculture generally, and of the raising of wheat, in particular, I take to be the first and greatest, that for many years the policy of the Government of the colony, whatever may have been its object, has unquestionably tended not only to check the formation of new agriculture establishments, but to depress existing ones.

While the agriculturist has been absolutely excluded from leasing any portion of the public land, and thwarted, hara.s.sed and dispirited at every turn in his efforts to obtain the submittal of such lands to sale, and subjected to public compet.i.tion at auction before suffered even then to purchase, the grazier has been allowed to use them under a system of leases, affording him the greatest possible facility of possession, and at the lowest imaginable rental, namely, at the rate of 10_s._ per annum for 640 acres, with the right, in an overwhelming majority of cases, to purchase choice spots therefrom, without the slightest delay or trouble and at the lowest legal price, namely, 20_s._ per acre, and absolutely without compet.i.tion.

Some of the difficulties above alluded to, as attending the purchase of a farm from the Crown, by any other than the favoured pastoral cla.s.s, may be stated thus: The person seeking to do so must first make his selection--a matter not very easy of attainment, for persons holding land in a neighbourhood, instead of helping with information, almost invariably place every possible obstacle in the way of the newcomer. The selection made, the next step to be taken is to apply by letter to the Surveyor-General to have it measured. Shortly thereafter, that officer will reply and inform the writer that his application has been received and submitted to the District Surveyor for his report as to whether the land is fit for agriculture, etc., etc. and that when it is received the Surveyor-General will communicate the result, intimating at the same time that, should the District-Surveyor consider the land suitable for agriculture, and should there be no other difficulty, such as its being held under a squatting lease, or any of several others, it will be submitted to sale by auction.

The applicant may now expect to hear no more of the land for three or four months, when, if all goes on favourably, he will be informed that the District-Surveyor, having reported satisfactorily, has received from the Surveyor-General instructions to measure it. Now another wearying delay of several months' duration will in all probability occur, before the expiration of which, if the applicant is not a person possessed of considerable determination of character, he will abandon, in despair, all hope of ever becoming an Australian farmer, and help to swell one or other of our overgrown towns, by accepting employment there. If, however, he possess sufficient perseverance, he may visit the District-Surveyor, and probably learn from him that the land cannot then be measured, because the district under that officer is so very large, that it would be highly inconvenient for him to move from one portion of it to another to measure a single farm; that when several are applied for in the same vicinity, he will proceed there; in the meantime he has several months' work where he is, or the District-Surveyor may, after expressing sympathy with the applicant's loss from delay, candidly a.s.sure him that, in consequence of the great delay in receiving pay for his public work, he is absolutely necessitated to accept private employment in order to obtain sufficient cash to keep himself and party of four men on, until the Government make him his remittance, now three or four months due.

These and other preliminary difficulties the applicant must prepare to encounter; but even when all are surmounted and the land measured there will be two or three months' delay--in all probability eighteen months or two years from the date of his first application--before it is offered for sale. Then, at last, the applicant will obtain his land, if he be fortunate enough to escape the determined opposition of some wealthy person in the neighbourhood, or has money enough, and determination enough to purchase it, that opposition notwithstanding.

If it is a fact that the agricultural interests of the country are subjected to more climatic difficulties than are the pastoral interests, I take it that that circ.u.mstance cannot, properly, be brought forward as a reason why the agricultural interest should not, under our laws, have a fair field and no favour, as compared with the pastoral interest, in entering the market to borrow money in time of doubt and general want of confidence in monetary matters. If the agriculturist, in borrowing money to secure his crop, has to encounter a higher rate of interest than the grazier has to encounter, in consequence of the risk of damage to his crops from an unfavourable season being greater than the same in the case of the produce of the grazier, surely there is no reason why he should be compelled to submit to a still greater increase of interest, to compensate the capitalist for the additional risk of the borrower's insolvency before the crops are realised, especially when the grazier is, through the aid of "The lien on Wool Act" exempted from paying for such risk.

The effects of the policy of the Government, which I have described, may be found, on the one hand, in the fact that the number of persons who have been bred to agricultural pursuits, at present residing in the towns of the colony, is, beyond example, excessive, showing our social conditions in that regard to be in a most unsatisfactory state; and, on the other hand, in the other fact, that the wholesale price of flour in the colony is three times higher, per pound, than the wholesale price of animal food, of the very best description--a state of things not to be found in any other civilized country.

I am aware that the deficiency of agriculture, which is so remarkable in this country, is attributed to the aridity of the climate by many gentlemen whose experience ent.i.tles their opinions to respect; but, as I have during the eighteen years last past annually cultivated and sown with wheat a large quant.i.ty of land, in various parts of the Upper Hunter District--a district generally considered to be unfavourable for the purpose--and have, in that long period, only failed twice in obtaining crops, and have reaped two self-sown, which in a great measure compensated for even their loss. I can come to no other conclusion than that, whatever may be the disadvantages of the climate they are not sufficient to cause such neglect of agriculture as has occurred.

On the whole, I am confident that the difficulties placed in the way of agriculture by the climate are as nothing compared with the overwhelming obstacles furnished by the policy of the Legislature and Government of the Colony.

Before concluding this communication, I cannot resist the opportunity it affords to place on record my opinion, that even should all other means fail of providing the country with an ample supply of agricultural produce, a remedy may be found by allowing any person to enter upon and occupy 80 acres of waste land, without compet.i.tion or delay, and pay for it at the upset price, four years thereafter; provided that he clears and cultivates 10 acres the first year, and 10 additional acres in each of the three succeeding years, and is at the end of the time residing on the spot.

JOHN ROBERTSON.

Yarrundi, Aug. 6th, 1855.

I also gave my general support to the Robertson Land Bill, which pa.s.sed through a determined opposition, and became law eventually, after the violent expedient of "swamping the Upper House," which swamping, however, had no practical or immediate effect, as the old members, including the President, retired in a body when the new members attempted to take their seats. By the Const.i.tution, the first Council was appointed for five years only, and the term was near its expiration when this historical incident occurred. So nothing could be done with the Bill, or anything else, until the next Council was appointed, whose term was for life.

Sir John Robertson's Act did immense good. Its broad scope was to enable men to select land for themselves in blocks from 40 to 320 acres, at 1 per acre, without waiting for any surveyor or other Government official, but subject to the conditions of a deposit of 5_s._ an acre, actual residence and improvements to the value of 1 per acre in value.

The balance of the purchase-money was to remain for a time, not limited by date, at 5% interest. It is no figure of speech to say that this law unlocked the lands to the industrious settler, and notwithstanding the abuses which too widely grew up, it was the means of bringing into existence hundreds of comfortable homes in all parts of the colony where the name of its author is held in grateful remembrance. It will have been seen in a previous chapter what a network of difficulties surrounded the man of small means who tried to obtain a rural home in former years; and perhaps the highest tribute to the memory of Sir John Robertson is that, after all the amendments which have been carried, the chief principles of his Act are still imbedded in the law of the country.

QUEENSLAND

+Source.+--Sessional Papers of the House of Lords, 1861, Vol. XI

The Moreton Bay district was first colonised from Sydney as a penal settlement for doubly convicted criminals. But so soon as transportation to New South Wales ceased, remarkable progress was made in exploiting the vast natural resources of the colony of Queensland.