The History of Tasmania Volume I Part 16

Instructions under the sign manual, given to the Governor of New South Wales, dated April, 1787, were amplified by others in 1789. To detain the convict population, and to provide them a future home, were the chief ends proposed. The governor was empowered to shorten their sentences, and convey to each man, if single, 30 acres; if married, 50; and 10 for every child. The marines who accompanied the first expedition were encouraged to settle. The non-commissioned officers received 130; if married, 150; and 10 acres for each child. Private soldiers 100, or 130 acres. These grants were subject to 2s. per 100 acres, deferred for five years. The minister, anxious to raise the value of crown land, directed reserves to be made between the allotments, of equal extent; but the settlers persuaded the governor, or the secretary of state, that the intervals favored the a.s.saults of the natives, and the scheme was defeated.

The king's instructions made no reference to the superior officers; but it was deemed absurd to grant the "greatest gifts of the crown to persons who had forfeited their lives," and deny them to gentlemen bearing commissions in the army.[162] Ensign c.u.mmings accordingly received 25 acres! The subsequent donations of governors compensated for this modest beginning, and the officers obtained large and valuable portions. One governor conferred a considerable grant on his expected successor, and was rewarded, when he surrendered the government, with a similar boon.[163] Macquarie gave Lieutenant-colonel O'Connel and his lady 4,555 acres; to John Blaxland, 6,700 acres.[164] Sir Thomas Brisbane obtained 20,000 acres: 15,000 were given to Mr. Hart Davis.

These were exceptions to the general rule. Official holders of land were interested in preventing extravagant grants, which lessened the marketable value of their own.

The survey department, always in arrear, neglected to measure off the land, and an order, verbal or written, was deemed a sufficient t.i.tle.

Not unfrequently, the applicant changed his choice, and migrated from one spot to another. The governor often permitted the issue of rations and implements a second time, to enable indolent or insolvent settlers to till a second heritage.[165] Trade was, however, more agreeable to many emancipists than agriculture. The officers located near them were willing to purchase their petty farms: thus the small holdings were bought up,[166] and the estates of the greater landholders were cleared of "lurchers," who preyed on their flocks.[167]

The small grants of land were productive of much real mischief and little benefit. They fell chiefly into the hands of spirit dealers, and the government permitted the purchasers to consolidate all such acquisitions into one large grant.[168]

In 1814, Macquarie issued an order threatening the resumption of grants for non-residence or alienation. These notices were rather a protest than an interdict, and were so understood.

FOOTNOTES:

[Footnote 161: _Eden's Discourse on Banishment._]

[Footnote 162: _Collins_, vol. i. p. 257.]

[Footnote 163: _Commons Report_, 1812.]

[Footnote 164: _Bigge's Report._]

[Footnote 165: Ibid.]

[Footnote 166: "A small farm of 30 acres was now offered to me by Bryan: I recommended Mr. c.o.x (of New South Wales) to buy it, which he did for 40; half money and half property. I also purchased for him two others; one of 25 acres, and another of 50 acres, from Mr. Hume, for 45; another of 30 acres from Thomas Higgins, for 35; and another farm, of 100 acres, I also purchased for Mr. c.o.x for 50 and ten gallons of rum.

I likewise bought another farm of 100 acres from Captain Campbell for 100; and of Dr. Thompson, a farm of 100 acres, with twenty-five sheep, an old mare, two fillies and a colt, a cow, and a young ox, for 500: the stock, when valued, was worth more than the purchase money. Next year (1801) I bought John Ramsay's farm of 75 acres, for 40; and then Michael Fitzgerald's, with eight large pigs and eighty bushels of maize, for 100. I let this farm, ten days after, for 40 per year. I then purchased Barrington's (the celebrated pickpocket), 25 acres, an old brood mare with a colt at her foot, for 100, and sold the mare a few days after for 85. I then bought 50 acres from Edward Elliot, for 100, and by these means squared the estate."--_Holt's Memoirs_, vol. ii. p.

137.]

[Footnote 167: "A lurcher is the lowest order of thieves."--_Holt._]

[Footnote 168: _Bigge's Report._]

SECTION X.

Van Diemen's Land was divided into counties by Governor King (1805). An imaginary line was drawn across the island from east to west midway; Buckingham being on the south, and Cornwall on the north. Macquarie made sections more minute, by a running survey.

In 1826, letters patent were issued, const.i.tuting Edward Dumaresq, chief, and Roderick O'Connor and Peter Murdoch, a.s.sistant commissioners, for the survey and valuation of crown lands. They were instructed in delineating counties, hundreds, and parishes, to observe the natural boundaries and recognised nominal limits. The parishes were to contain about twenty-five square miles. On this task they were ten years employed; but their valuation became available so soon as one parish was proclaimed. The names a.s.signed to the various localities are commonly welcome to the British ear;[169] though occasionally productive of confusion.[170]

The colonial-office published, in 1824, the conditions on which land would be granted: the notice contained eighteen clauses, and formed the basis of subsequent regulations. The secretary of state, however, reserved a discretion in special cases. The parishes were to be surveyed, valued, and sold: for cash, at a discount of 10 per cent., or credit, at four quarterly instalments. 9,600 acres was the maximum allowed one purchaser.

Free grants were offered to emigrant capitalists: not more than 2,650 acres, nor less than 320; a quit rent of 5 per cent. on the value of the land deferred seven years, and redeemable within twenty-five years, at twenty years' purchase. One half the value was to be spent in improvements, on pain of forfeiture. Additional grants were restricted to such as possessed the means of cultivation, and subject to a quit rent from the date of issue.

A more ample explanation of the views of the crown issued from Downing-street, April 26, 1826. The conditions of sale were the same as in the notice of 1824. Purchasers of land were now promised the return of their purchase money, conditionally, that during ten years they could relieve the crown from an expense ten times its amount, by the employment of convicts, rated each 16 annually. One-half this amount was offered, in the redemption of quit rents, on the same conditions; or, when convicts were not attainable, by expending five times the value of the grant, one-half the quit rent would be extinguished. Grants in extension were promised, 2-1/2 per cent. value on improved value of an original grant, on which five times its value should be expended; or having so improved his first purchase, the settler was permitted to buy a second at half price.

By an order published at the Horse-guards, 1826, officers willing to emigrate, not under the rank of captain, were permitted to sell their commissions; one-third of the price deposited with the crown, to be repaid on their arrival, and rated as their capital, gave them a t.i.tle to free grants. In 1827, the convict clause was withdrawn: the settler was required to produce 500 capital for each square mile he claimed.

Earl Bathurst suggested to the commander-in-chief, and to the lord high-admiral, that it was desirable to promote the settlement of naval and military officers in the colonies. Circulars were accordingly issued from the Horse-guards and Admiralty, in 1827, stating the terms on which free grants might be engaged. Officers of twenty years standing were exempted from quit rents; those of fifteen years standing, for twenty years; of ten, for fifteen years; and of seven, for ten years. The extent of their grant was made to depend on their capital; but they gave bonds for residence and non-alienation during seven years, or until, upon a grant of 500 acres, valued at 5s., 25 were expended. These offers drew a large number of settlers, both civil and military. More than five hundred grants, exceeding 500 acres, were issued in four years ending 1831.

Fict.i.tious schedules of property were sometimes presented, and persons without capital were enabled by monetary loans to deceive the governor.

Dollars, borrowed for the purpose, were lodged in the banks to the credit of an applicant. A considerable breadth, comprehending a succession of valuable farms, was parcelled out among several settlers, in virtue of a single bag of dollars, hired for the purpose.

The act of parliament[171] authorised the subjects of Great Britain to visit the settlement of New South Wales "without any license whatever."

Persons intending to emigrate usually applied to the secretary of state for permission, and an order for a grant. Their references being satisfactory, they received a letter to the governor, directing that land should be given them, proportionate to their "means to bring the same into cultivation." For some time, the settlers for this colony were obliged to visit New South Wales, to obtain the requisite permission. To avoid the expense and delay, some entered on lands provisionally a.s.signed them by the lieutenant-governor; but were in danger of being dispossessed by an applicant at head-quarters. To obviate these evils, power was conferred on the lieutenant-governor to locate such as might arrive. Applications from residents were received only at stated periods; and when the herds were exhausted by loans, and the stores by the issue of rations, were indefinitely postponed; but such as brought orders from the secretary of state, were accommodated at once.

The newly-arrived emigrant, distrustful of reports, or ignorant of the nature of the country, usually went out in search of a home. He was received with hospitality as a guest, but found himself unwelcome as a neighbour. Often, after long travel, he would scarcely find a spot within an accessible distance unclaimed. "All that is mine!" was the common answer to his enquiries. A present of sufficient value removed many such obstacles, and gave the wanderer a clue to a desirable resting place. Such as were too dull to comprehend this process of discovery, often lost much time in unavailing toil.

FOOTNOTES:

[Footnote 169: _Counties in Van Diemen's Land._

Northern. Midland. Southern.

Devon, Westmoreland, Kent, Dorset, Somerset, Buckingham, Cornwall. Glamorgan, Pembroke, c.u.mberland. Monmouth.]

[Footnote 170: The writer was present when a newspaper was delivered, directed from Sydney to "Launceston, Cornwall." It was conveyed to England, where the Cornish postmaster wrote, "Try Van Diemen's Land."]

[Footnote 171: 53 Geo. iii. cap. 153.]

SECTION XI.

Sir Thomas Brisbane,[172] to facilitate the employment of prisoners, required that the grantee should, for every 100 acres of land granted, enter into bonds to employ one convict for the term of his transportation, or the average, ten years. By receiving a second convict for one year, he was promised a bonus of a second 100 acres.

This condition was a serious obstacle to the ready sale of location orders. It was not, however, unnecessary: many casual visitors and masters of merchantmen obtained grants, which they sold instantly and cleared a considerable sum. Land speculators were greatly disconcerted by the inc.u.mbrance: many were anxious to throw up land orders, and attempted to recover money for the goods given in exchange. A trial (1825), in which Mr. Underwood, of Sydney, was the plaintiff, is a curious example of this traffic. The defendant had given in payment for 21 cwt. of sugar, an order for 200 acres of land; but when the convict clause was promulgated, the land was deemed worthless, and the plaintiff sued for 59, the price of the sugar. The judge, however, resisted the claim, and declared that the order had paid for the sugar, although its sale was clandestine and illegal.

The occupation of land was considered a sufficient proof of ownership, if not disputed within a short period, or negatived by written evidence.

To resume a location, as the courts were then const.i.tuted, required the issue of a special commission, and could be only effected through a jury. On a trial, in which the Rev. Robert Knopwood was defendant, Judge Field stated that the conditions of early grants were practically void.

Knopwood had agreed to sell the estate of Cottage Green for 2,000, to Captain Jones, who paid 1,000 in hand, and entered into bonds for 1,000 for payment of the residue. Knopwood bound himself in a similar penalty to give up the premises when the whole sum should be paid. The widow of Jones sued for release from this bond (1821). The lawyers urged that Knopwood had violated the clause against alienation, and was liable to forfeit the whole. The judge refused to entertain this plea; but set aside the forfeiture as unequal: the estate, according to witnesses, was not worth more than 1,000. The judge strongly condemned the unclerical rigour of the defendant. The celebrity of Cottage Green, now occupied by extensive mercantile establishments, gives special interest to the judgment.

Efforts to resume land, not properly conveyed, were successfully resisted; and jurors appear to have determined, at all times, to deny a verdict to the crown. In 1824, in an action for intrusion (Rex _v._ Cooper), the jury delivered a verdict, that "the defendant had obtained possession in the usual manner." The judges a.s.serted that no t.i.tle was good, except such as pa.s.sed under the great seal. A locatee, in an action of ejectment (Birch.e.l.l _v._ Glover), who possessed from 1811 until 1823, was supplanted by a person in 1824, who obtained a grant: the judge directed for the defendant, but the jury found for the plaintiff. A similar case (Martin _v._ Munn, 1833), was tried three times with the same issue. The judge directed, that although long occupation by the plaintiff were proved, the grant to the defendant was a virtual resumption by the crown: this the jury considered inequitable, and found for the original occupier.

The trial of a cause in Van Diemen's Land (Terry _v._ Spode, 1835), led to the exposure of a fatal error in land t.i.tles throughout the colonies.

Spode had claimed and taken possession of a portion of land occupied by Terry, who brought an action of ejectment: the jury gave a verdict in his favour; but it was stated by counsel that both grants were "defective and void in law."

This error had been discovered by Mr. Alfred Stephen (1829). The secretary of state was consulted, and authority received by Arthur to amend the form. The royal instructions had authorised the governors to grant lands, which they had always issued in their own names, instead of in the name of the king. The judges stated that in every case, whether of a subject or the king, a conveyance must be made in the name of the owner, and not of the attorney. These grants were, therefore, utterly void. In New South Wales the defect was cured by special legislation; but in Van Diemen's Land every grant was subject to an ordeal. Those already issued by Arthur had been legally worded after the defect was discovered; but the government of New South Wales continued the invalid form, until the judgment of the court led to its revision.[173]

The importance of settling the t.i.tles to land was universally felt, but the difficulties were not easily overcome. Prior to 1826, the Van Diemen's Land grants were drawn up in New South Wales. They were full of errors of all kinds: the boundaries, quant.i.ty, and names were mis-described; the land intended for one man was conveyed to another; inaccurate charts, on which grants were marked, multiplied mistakes; the surveyors ran their chains over the land, and marked off five or six farms in as many hours. They erased and altered their descriptions: accurate measurement discovered that many were without a t.i.tle to the land in their possession, or that their grants were partly occupied by a next neighbour. The dates of these instruments were often arbitrary, yet they bound to cultivation and non-alienation, and often within years already past. Some printed forms contained stipulations not applicable, and became inoperative on the face of them: they described hundreds of acres in excess, but stated that those beyond the king's instructions, should be taken as not granted at all.

When Mr. Alfred Stephen pointed out the defect in form, the government concealed the mistake until the king granted authority for correcting the error by royal warrant, received in 1830. It now became necessary to ascertain disputed t.i.tles. It was proposed by some to establish them by a general act: against this course Mr. A. Stephen protested, and pointed out consequences, that proved his objections were just. Many of these ill.u.s.trate the idle and fraudulent manner in which the public business is often transacted. A grant issued in 1823, gave one side-line 32 acres, written over an erasure. An investigation took place: a record book kept in Hobart Town shewed a similar erasure. The same entry had been preserved at New South Wales, and there it was 22 acres: the holding party was innocent; but his t.i.tle was invalid. Still more extensive erasures were discovered in a valuable property; the entire description had been changed and another subst.i.tuted. At Richmond, two persons selected land adjoining each other: their grants had been exchanged, and he who was thus deprived of the most valuable, resorted to a chancery suit for its recovery. At Norfolk Plains a great many farms were located and occupied for a number of years. They commenced their measurements from opposite points, and each farm gradually approximated. When their lands were surveyed by the grant deeds, every owner found that his side-line advanced upon his neighbour, until at last the central proprietor saw his estate absorbed. In Oatlands, two properties were measured according to the common practice: the side-lines were guessed at; one cultivated, and the other sold his property; but when measured, the improver of his estate discovered that his homestead, and nearly one hundred acres of his land fell by description to his neighbour.

At Bagdad Rivulet, a surveyor measured eight grants adjoining. All the bearings given in the grants were mistaken: to adjust them, one would lose the back of his farm and take his neighbour's, who would go on the next location and obtain a well cultivated farm.