SECTION IV.

The retirement of Lord Bathurst, and accession of Lord Goderich, gave some hope of a change in the form, if not the agents of government. The colonist expected much from the improved tone of the English executive; but, except the rescue of the press, the sole effect was a reduction of British expenditure for the civil government, and in 1827 its total cessation.

Mr. Hood, a surgeon on half-pay, had offended Arthur by a letter: a Gazette announcement informed him that he was placed under a ban;[149] and his name recorded, to prevent his participating in the "favors or indulgencies of the local government"—a help to official remembrance, which rulers seldom require. Thus official and opposition parties were organised: as the distinction became more marked, a social gloom overspread the capital. Whispers were heard with jealousy. The mercantile class, who alone could defy the government, and who were excluded from the "court circles," headed the opposition. "The official corps," said a satirical lady, who drew a picture of the times, "are punctilious; fearful of compromising their rank; all etiquette." The entertainments at government-house were ceremonies, rather than parties of pleasure. As the servant opened the door, he seemed to say, "you may come in, but don't speak." Some more daring spirit would venture a remark, as ballast is thrown out to send a balloon above the fogs; but caution, like Sancho's physician, interdicted the perilous indulgence, and restored the watchful silence. No Dutchman would willingly endure the Humdrumstadt on the Derwent, notwithstanding its natural advantages and commercial promise—a town without a library, and where the common spirit of detraction was exasperated by competition for those favors the governor could refuse or transfer. The presence of power was everywhere felt, and dreaded wherever it could not be defied.[150]

The close connection and constant intercourse between New South Wales and Van Diemen's Land affected the spirit of both governments. Sir Thomas Brisbane, whose easy temper and courteous manner rendered him highly popular, was superseded by Lieutenant-General Sir Ralph Darling, whose administration after the first few months was a perpetual storm. The chief justice, inclined to liberal politics, rejected several drafts of laws which trespassed on the limits of the constitutional act, which he himself had framed at the request of Lord Bathurst. At his dictation, the ordinance against the press was less stringent than intended. The titles of land, the property of masters in assigned labor, he determined against the government. He was considered the tribune of the people. Judge Forbes, a Bermudian by birth, was educated in an American college, and charged with republican tendencies by those who designed to degrade him.[151]

Brisbane was the patron of the turf club. This office was accepted by Darling as his successor. He was invited to dine with the members: this he declined. Mr. Wentworth, as chairman of the day, made certain observations thought personally disrespectful; and when the governor's health was proposed, the band struck up, without orders from the stewards, "There is na luck about the house." Darling, informed of these proceedings, withdrew his name as patron. The club passed resolutions declaring their approval of Mr. Wentworth's speech. The governor dismissed the acting attorney general (Moore), the sheriff (Mackarness), and other officials, for their concurrence with the majority.

Two soldiers, Thompson and Sudds, to escape from the service, committed a theft, and received a sentence in the supreme court. To aggravate its rigour, Darling brought them on parade: stripped them of their uniform, fixed round their necks collars set with spikes, and loaded their legs with chains. In a few days Sudds languished and died: this result, so unexpected, was attributed in part to a latent disease of the liver, rendered fatal by grief and the pressure of the iron. The affair became the subject of parliamentary inquiry. Darling was accused of murder by his enemies: he was vindicated by ministers; but although his motives were uncorrupt, an arbitrary aggravation of a judicial sentence who would seriously approve?

These transactions, together with the "Stamp Act" to check the circulation of newspapers, were noticed in the Australian (May, 1827) in terms of ironical praise; severe, but not beyond the ordinary license of public discussion. On the arrival of Mr. Baxter, the attorney general, the proprietor, Dr. Wardell, was prosecuted in the supreme court, at the instance of General Darling. Judge Forbes pointed out the violent straining of the inuendos, and through his charge led on to an acquittal. Although chosen by the prosecutor, the jury were unable to agree, and the defendant was discharged. The alleged libel stated that the stamp act "would immortalise" General Darling "in the annals of this rapidly improving colony, and act as a passport to the admiration and grateful respect of posterity." The meaning extracted by the inuendos was this: "It would render his memory for ever infamous, and cause his name to be hated and detested by future generations." The judge justly remarked, that between immortality and infamy there are many steps.

The struggles between the governor-in-chief and the opposition were watched in Van Diemen's Land with interest. The same parties existed in both colonies; but Judge Pedder did not participate the political sympathies of Judge Forbes, and made no pretence to popular applause. To those who check the abuses of irresponsible power something is due; but when the balance of human infirmity is struck, it will not be always found in their favor.[152]

The employment of spies has been charged on Arthur as a chief vice of his government—a practice hardly less perilous to the innocent than guilty. Shortly before his retirement from office, Mr. Humphrey, the police magistrate, was denounced for corruption. Major Honner, who had formed a disgraceful connexion with Anne Pope, a prisoner of the crown, applied for her assignment to his service: this Mr. Humphrey refused. The major then offered to produce evidence against this officer, on condition that free pardons were granted to his witnesses, one of whom was found to be his paramour. The governor declined to pledge a reward; but Honner was assured by a member of the executive that, provided the results were satisfactory, his recommendation would be favorably considered. He forwarded a letter to the governor, who satisfied that the imputation was malicious and incapable of proof, directed the prosecution of the accuser. The transaction was unfortunate: the negociation indicated that secret informers were tolerated, and that pardons might be procured by a successful witness.

Mr. Humphrey, originally a mineralogist, who filled various offices from the foundation of the colony, received a pension of L400; but soon after died (1829). The governor eulogised in strong language his official career.

The recall of Arthur was announced, and the policy of his successor gravely debated before his career was midway. "It is a fact," said the Sydney Gazette, "Colonel Davies is the distinguished individual." "The successor of Colonel Arthur," said the Australian (1829), "is placed beyond doubt. The appointment of Colonel Gibbs is now certain." Clergymen of such names emigrated about the time, and rumour could easily supply the rest.

When the constitutional act approached its term, the colonists determined to seek not only for trial by jury, but a voice in the legislature. A petition adopted by a meeting held in 1827, was confided to a deputation, who were instructed to forward it through Arthur, and to entreat his concurrence with its prayer. A time was fixed to receive them; but when at the government-house, they were met by a blundering message, postponing the interview for one hour. Deeming themselves and their constituents slighted, they declined a second attendance. Arthur published a vindication of himself: he stated that business of great importance with Mr. Curr, prevented his examination of the documents; he had requested the delay only to prepare himself for the audience, and regretted that the colony were deprived of his friendly offices by an unreasonable caprice. This paper fell into the hands of the deputation a few hours after the vessel had sailed with despatches for the secretary of state. They considered this a manoeuvre, contrived to stifle their defence; and instantly dispatched a fast sailing boat to pursue the ship with an exculpatory letter.

By a circular of Lord Bathurst,[153] still in force, it was announced to the colonists that their complaints must pass through the governor's hands to the home-office. Duplicates without new matter might be forwarded by other channels; but an answer could only be expected on the arrival of the governor's report.

The violation of this rule the deputation imputed to the necessity of the case; to counteract an attempt of the governor to evade its spirit. Their promptitude was unavailing: for his share in the transaction, the name of Mr. Gellibrand was expunged from the list of magistrates, by Lord Goderich's orders.

The hostility of Arthur to the petition was well understood, and there were many others who did not sympathise with its object. Sir John Owen presented it to the Commons without a word. The ministers expressed their desire to grant free institutions, so soon as the colony was ripe to enjoy them, when Mr. A. Baring (Lord Ashburton) remarked that colonies are never ripe for free institutions until they get them.

Mr. Marshall, the shipping agent, attempted to form an association in London (1828), for the protection of these colonies. All persons, commercially or otherwise interested, were eligible for membership. A correspondence was projected with the leading colonists, and it was assumed the British government would readily attend to representations emanating from such a source. The scheme did not obtain the support it merited, and the scattered colonial interests could never be combined for a joint action. The partizans of Arthur ridiculed the plan, and it came to nothing.

The constitutional act, which became law, July 25, 1828, to terminate 1836, but extended until now, differs in many of its provisions from the last. The governor is president, and has a deliberative and casting vote. The council is increased from five or seven to ten or fifteen; the oath of secresy is abolished; drafts of acts are gazetted; a law cannot be made by the crown or the governor alone; two-thirds of the council must be present; although previous duties are confirmed, no new tax can be imposed except for local purposes expressed in the bill; ordinances must be conformable to English laws; all statutes in operation at the date of the act were applied to the colony, all others may be adopted. A member may draft a bill, which the governor must lay, verbatim, on the council table, with his reasons for refusing to propose it. A member may record his protest, and a majority is necessary to pass a measure. The members are appointed by the crown, and vacancies are filled up by the governor: they must be resident; ex-officio they are magistrates. The preliminary certificate of the chief justice, required by the former act, is substituted by another clause, which compels the council to reconsider a bill declared by the judge repugnant to the laws of England, or the act constituting the council.

The British legislature, in criminal cases, establishes a military jury alone: challenge is allowed for direct interests, and magistrates may act in default of commissioned officers; but in civil actions assessors are continued. But the local council is authorised to institute trial by jury, under such limitations as may be deemed meet. It is under this act of parliament that the colony has seen the jury-box delivered up to civilians; but awaits the hour which the law itself foretells, when in recognising the ancient principle of representation it records the purpose of resuming it, "so soon as the cause shall cease to operate which had forbidden its immediate observance."[154]

In transmitting this bill, Sir George Murray explained that by the clause which superseded the veto of the chief justice, it was intended to avoid a collision of opinion between the high functionaries of government. Nothing, however, but the most urgent necessity would justify the governor in setting aside his opinion.[155]

FOOTNOTES:

[Footnote 149: April, 1826.]

[Footnote 150: Letter from a Lady (Mrs. Adey), inserted in the Morning Herald, 1827.]

[Footnote 151: Mudie's Felonry of New South Wales, p. 52.]

[Footnote 152: Dr. Wardell was murdered some years after by bushrangers.]

[Footnote 153: May 20th, 1826.]



SECTION V.

Under the former act, the attorney general could refuse to file a bill, and exercised this discretion in a case of libel. The new law authorised the court to permit an information to be exhibited by any person, and the attorney general was bound to indict, except in felony or capital prosecutions. Mr. Jennings, a solicitor, claimed the interference of the court against the attorney general, Mr. Montagu. Savery, who was transported for forgery, was sued for a debt; but Mr. Montagu, who had been a passenger with the debtor's wife, and felt interested in his welfare, stayed proceedings by verbal guarantee. When Jennings attempted to enforce the agreement, Montagu replied that he was more to be affected by the sun than the wind; and added, "I know how to defend myself against a person ten times more able or wicked than yourself." The judge decided that the attorney general was not bound to sign a bill of indictment against, or to prosecute himself.

The indemnity due on a returned bill of exchange was decided by the court (1826), on a friendly suit, Cartwright v. Mulgrave, at the expense of the merchants. It was deemed proper to give a high compensation, both to solace for disappointment, and discourage a careless issue of bills. The plaintiff paid L112 currency for L100 sterling, calculating that L120 currency would be required in London for the L100 sterling. The assessors fixed 25 per cent. to cover all losses, and the sum has been allowed by the supreme court on all similar cases to this day.

Captain Dillon, of the Research, East India Company's ship, the discoverer of the relics of La Perouse, visited Hobart Town. He was prosecuted for assault and false imprisonment by Dr. Tytler, a gentleman commissioned by the Asiatic Society to conduct the scientific enquiries the voyage might favor. He was seized, confined to his cabin, threatened with the lash, and guarded by New Zealand savages, among whom were two, called by Dillon Prince Brian Boru, and his Excellency Morgan M'Murrah, who espoused the quarrel of the captain, and offered to grill and eat the unfortunate physician. The jealousy and violence of Dillon strongly indicated insanity, and Dr. Tytler represented his fears to the second in command. This opinion became known to the captain, and led to the assault and imprisonment, from which the doctor was released by a writ of habeas corpus. The chief justice, in pronouncing judgment, explained the absolute power and stringent responsibility of a captain in the management of his company, and sentenced Dillon to fine and imprisonment: the latter was remitted, in consideration of his enterprise.

The public treasury was robbed of L1,400 (1827). The thieves entered at night, while the sentinel was on guard, and the rifled chest was found hidden under a tomb in the adjacent burial ground. Three persons, and the sentinel, were tried for the offence; but on the second day, the crown prosecutor was not in his place. This truant lawyer was enjoying a breakfast, while the court and prisoners were watching the door of entrance. The patience of the judge gave way, and he directed a verdict of "not guilty" to be entered. The crown relieved the treasurer from his responsibility for the loss.

The case of Isaac (Ikey) Solomon, a noted receiver, occasioned a long discussion of great colonial interest. This man having been committed for trial, escaped from Newgate; but his wife, implicated in the same transaction, was transported. A short time after, he appeared in Van Diemen's Land, under the name of Sloman, and applied for his wife as an assigned servant: to this the governor consented, but transmitted to England an account of his presence. Towards the close of 1829, a letter, enclosing an affidavit of Mr. Wontner, the governor of Newgate, was addressed by the secretary of state to the governor, directing the arrest of the fugitive. A consultation was held at the secretary's office, to which Mr. Gellibrand was invited, who declared that the instruments forwarded were insufficient. A warrant, however, was issued for Solomon's capture, and he was lodged in gaol. On the application of Mr. Gellibrand, the supreme court granted a writ of habeas corpus, and the question arose whether a colonial secretary had power to act under instructions from the secretary of state, and without examination transmit a person, on a presumption of guilt, over half the globe. The judge admitted that the boasted liberty of the subject would be a delusion, were such powers vested in the local authorities. After a lengthened research and repeated hearing, he was unable to find a precedent, or to solve the difficulty of a case so new.

Mr. Montagu, the attorney-general, maintained that the writ had been improperly granted; that on the face of the warrant there was no illegality. The chief justice, however, was dissatisfied, and desired proof that the secretary of state could grant a warrant without sworn testimony in cases of felony, and that Mr. Burnett, the colonial secretary, possessed the same powers. Mr. Montagu, who had recently suffered ill health, refused to argue the question; and to the complaint of the bench replied with asperity. The chief justice still urged that he had received no assistance on the part of the crown. Montagu rejoined, that speaking not as attorney general, but as an advocate, he repelled such assertions. "I will not," said he, "allow your honor, or any man in Christendom, to dare to make such observations without repelling them." The caution of the chief justice was extremely gratifying to the colony. The arrest went to the foundation of personal freedom, and assumed a power capable of great error and perversion.

In this case there was no danger of mistake; and the governor, having no doubt of the prisoner's guilt, determined he should not escape: Mr. Capon, the chief constable, cut the knot by putting Solomon on board a vessel, and conveying him to England. The adventure was barely successful; Solomon was acquitted on the greater part of the indictments. The legal claim of parties to the plunder found on his premises could not be established, except by his conviction.

On a trial of Salmon and Browne, for a murder at Macquarie Harbour (1829), a military jury exhibited that institution in no pleasing form. They disagreed on their verdict. Lieutenant Matheson conceiving that the facts did not sustain the indictment, declined to convict. His co-jurors were unanimous; and after three days and nights resistance he submitted. On the Saturday evening the men were sentenced, and executed on the Monday following. Their confession left no doubt of their guilt: they had committed murder that they might escape from misery; but they asserted that the principal was Browne, and the accessory Salmon—the reverse of the indictment. During their long consultation the jurors were allowed refreshment; but on the Friday evening several resolved to elope: at a late hour they broke past the astonished constables, and returned to their homes. They were, however, recalled by the sheriff, and kept under stricter watch until the trial ended.

Amusements of the turf, officially patronised in other countries, were discouraged in this. From an early date, occasional matches were made for large stakes; but in 1827, races were regularly established at Ross. The course was lined off, a stand erected, in which about fifty well dressed persons were spectators. The riders were equipped in different colored clothing, and as they darted along, obscured at intervals by foliage, the scene was picturesque and animated. A race was contested by Messrs. Gregson and Hardwicke, which the latter lost. A public dinner followed; but the waiter was blindfolded, and his pudding stolen as he entered the tent. The hats and coats disappeared; and one cavalier was robbed of his boots. "These things," said the reporter, "are fraught with discomfort, and disgraceful in themselves:" an opinion which time has not shaken.

Arthur probably had no great taste for such pleasures; but he ascribed his unwillingness to support them, to their tendency to excite the prisoner population, and seduce them into disobedience and crime. No regulations or punishments could hinder their haunting the tents, or deter them from intemperance and consequent miseries.

Happily dissention disappeared in the presence of distress. Arthur's name is on the list of subscription for the family of Captain Laughton, who having lost his property by shipwreck and fraud, was drowned on the coast. Governor Arthur gave twenty guineas, and thus fixed the high scale of colonial benevolence, which no vicissitude of public affairs has abated.

The largest private subscriber was Captain Carne, of the Cumberland; not less unfortunate than Laughton. When no tidings were heard of the vessel, it was supposed she had foundered; but in the year 1828, Captain Duthie, of the Bengal Merchant, threw light on her fate. He had found the Clarinda, Captain Crew, at Rio, who had been boarded in lat. 8 deg. S. The pirates chained him to the deck while they robbed the vessel: he saw a bucket, on which he could trace the word Cumberland. Some of the pirates proposed that Crew should walk the plank, but were resisted by the Captain. A little black boy, shipped by the Clarinda at the Cape de Verde Island, remembered the pirate vessel as often seen in that port.

In what form the Cumberland perished is not certainly known. Pirates executed in England for other crimes, were supposed to be guilty of this: more than a hundred and fifty persons perished by their violence. Some they cut down, and others they cast overboard. They were driven to the port of Cadiz by a storm, and attempting to negociate a bill they were detected. A ship of war conveyed them to Gibraltar, where several suffered; others were forwarded to England, and condemned there. The story of the capture was long a standing topic in the unarmed merchantmen that passed her track. As the emigrant, even now, approaches the supposed latitude, he hears with bated breath the fate of the Cumberland, whenever a strange sail darkens the horizon.

FOOTNOTES:

[Footnote 154: Report of the Lords of the Council, May, 1849.]

[Footnote 155: Despatch, 1828.]



SECTION VI.

Attempts were made in the county of Cornwall to form a collegiate institution, for the education of youth and the advancement of science (1826). It was proposed to erect buildings, to govern the college by a directory of patrons, and to establish a public library and lecture room. For these purposes a fund was contributed: twenty-four persons subscribed L50 each on the spot. A commencement was made at Norfolk Plains; but the project failed, and sunk into a private academy.

In 1828, the government determined to establish a school at New Norfolk, called the "King's Grammar School." The members of the government were the board of guardians: the master was in holy orders. This effort was also frustrated. Such attempts were not, however, lost: they were in reality, not only the pledges but the causes of final success.

But the establishment of the King's Orphan School (1828) was successful. It was chiefly designed for the numerous children whose parents were unable to support them, who had deserted, or who were dead. It was placed under the guidance of a committee, and afforded protection to many children who must have sunk under the influence of a vicious example. In this island the fatherless have found mercy. In the absence of natural ties, the settlers have often displayed a parental tenderness in educating the children of the outcast and the stranger.

The public institutions which multiplied at this period, tended to mitigate the spirit of party. In 1826, several master tradesmen met to project a mechanics' institute. In 1827, they called a meeting of the inhabitants, who having chosen Mr. Gellibrand their chairman, organised the institution: the governor was invited to be patron, the chief justice was chosen president, and Mr. James Wood appointed secretary. Dr. James Ross, called the "Birkbeck of Tasmania," delivered the first lecture (July 17), on the science of mechanics. The second, on astronomy, by Mr. Gellibrand, senior: Mr. Hackett, on steam engines; Mr. Giblin, senior, on astronomy; and Dr. Turnbull, on chemistry, completed the course. Mr. James Thomson gave lessons in geometry to a youthful class. These efforts languished during the absence of the secretary in Great Britain; but in September, 1829, the former lecturers reappeared: contributions were increased, and a library and apparatus were obtained from England. In 1830, two hundred members were enrolled, and the institution was promoted by all classes of society.

Among its supporters, Dr. James Ross occupied the first place: a man whose name will be ever mentioned with respect. His political career does not receive or deserve unqualified praise: as a partizan of Arthur, he sometimes sanctioned by his pen what it is difficult to vindicate; but he contributed to the intellectual advancement and external reputation of the colony, beyond any person of his day. Dr. Ross was the son of a Scotch advocate: educated at Aberdeen University, and some time employed as a planter in Grenada, where he became an advocate of negro freedom. He afterwards established a school at Sevenoaks, Kent; but his family kept pace with his fortunes. He determined to emigrate, and arrived in Van Diemen's Land in 1822. Some error in the shipment of his goods, upon the schedule of which he claimed 2,560 acres, deprived him of one-half. He chose his location on the Shannon, and called his cottage the "Hermitage." Here he was vexed with the incursions of cattle, the perfidy of his servants, the dread of bushrangers, and the visits of the blacks; and he willingly accepted the office of government printer, which Mr. Bent had lost. The Courier, his newspaper, patronised by the governor, obtained a large circulation, and in 1830 published 750 copies. He wrote with great facility and copiousness. In a letter to a friend, he said—"I write my articles, engrave my vignettes, set the types, adjust the press. Sometimes I set up a few lines myself, and dictate at the same time to one or two of my compositors. Sometimes I write three lines of a sentence for one, three lines of a sentence for another. I teach my own children, nine in all, at the same time that I write paragraphs."[156]

A genial spirit, except when troubled by political anger, usually sparkles in the writings of Dr. Ross, and in such case they are rather unfair than bitter. Wherever Arthur disliked, Ross opposed. He denounced the emigration of the poor, and Archbishop Whately charged him with baseness, in supporting the penal system of transportation; but no colonist would question his sincerity. Dr. Ross retired from his literary labors in 1837, and not long after closed his earthly toils. In his last address to the public, he said, "independence of spirit has been my motto; freedom my watchword; the happiness of my fellow-men my object; and the truth of our religion my buckler and consolation." Such was his account of himself; and may be left as his merited eulogium to posterity.

A hand-bill, published during the heat of a political quarrel, from the head-quarters of his foes, is a curious specimen of party spleen, and may be taken as the set-off to his own:—"Here lieth the body of James Ross, printer: formerly a negro driver: who spent the remainder of his days in advocating the cause of torture, triangles, and the gallows." Then follow couplets, among which are these:—

"Beneath this sod, mark reader, as you pass The carcase buried of a great jack-ass: Perfidious, smiling, fawning, cringing slave, Hell holds his spirit, and his flesh this grave. Corruption revels in a kindred soil: A carcase fatted on an island's spoil!"

An association, with objects more extensive and more ambitious in organisation, was projected by John Henderson, Esq., a surgeon, from Calcutta (1829). It was denominated the "Van Diemen's Land Society." The members proposed to collect and diffuse information respecting the natural history, produce, mineral worth, statistics, condition, and capabilities of Van Diemen's Land. The governor accepted the office of patron of the society, and its establishment was celebrated by a public banquet. In his account of the institution, the founder and president relates that, although it enrolled the heads of departments and the most respectable settlers,[157] he found himself surrounded by spectators rather than coadjutors; who, in the absence of "selfish interests" and personal advantage, could not be stimulated to toil. Dr. Henderson, whatever his science, was disqualified by his censorious dogmatism, to rule. His work was an outline of projects, which entered into every imaginable department of political economy, and contemplated a social revolution. On religion, his ideas were scarcely Christian: he combined the Brahmin and the Socialist.

FOOTNOTES:

[Footnote 156: Penny Magazine, April, 1832.]



SECTION VII.

The charter of the Van Diemen's Land Bank having expired, it became a joint stock company, and enlarged its capital to L50,000; ten per cent. being charged upon discounts. The Tasmanian was a private bank, of which the Messrs. Gellibrand were proprietors. The limited business carried large profits, and the purchase of bills, not passed in the regular course of discount, then, as afterwards, yielded large returns. The Derwent, established chiefly by persons connected with the government, was opened for business on 1st January, 1828, with a capital of L20,000. At the same time, the Cornwall Bank, with L10,000, was established by the merchants of Launceston; and the facility of monetary transactions increased on every side. The arrival of considerable investments from India, brought rupees into extensive circulation, and they formed a great proportion of the current coin.

The large imports of English goods, and the increase of promissory notes, alarmed several persons connected with trade. An advertisement, signed John Dunn, offered a quantity of shares in the Derwent on liberal terms. At a meeting of the shareholders, Mr. Dunn maintained that the liabilities of the community were dangerous, and twenty times greater than the circulating medium. It was replied, that bills were chiefly multiplied by re-sales, and that the cash of the consumer would be transmitted through the whole mercantile chain.

The Van Diemen's Land Bank discovered a singular fraud by the cashier in 1828. Amongst the large accounts, which were unlikely to be drawn, he debited the cash which he employed as a private discounter of bills. The sudden presentation of an unexpected draft led to an examination, and L2,000 were found deficient. The money was refunded, except a trifling amount, and prosecution waved.

The interest of the officers of the government in the Derwent Bank occasioned complaint. The risks, liabilities, and antipathies of trade, were deemed unsuited to their duties. At the governor's request, the relation was disguised, but it was not dissolved.

The state of trade at this time wore a deceptive aspect. Dr. Henderson reckoned the actual profit of the colony at 1-1/2 per cent., while Mr. Prinsep, a barrister, of Calcutta, described every branch of business as a path to opulence. In 1829, a merchant sold L1,500 worth of goods at an advance of 50 per cent., and a credit over three years bearing 15 per cent., amounting to L2,250 in all. A glut sometimes reduced the value of merchandise below the London price.

"See, how I am changed!" said Mr. Prinsep. "Amongst all the beauties, I am beginning to think none so beautiful as the interests of capital. Interests alone on mortgage, with the very best securities, is 15 or 20 per cent. Invest your money in wool, and it brings you a return of 50 per cent. per annum: in the whale-fishery, 100 per cent. Bank dividends now paid are 16 per cent. I only brought down a broken-winded Arab or two, and their hire pays my current expenses. Money invested in land will be ten-fold its original value in fifteen years. L200 will purchase a noble property here; L1,000 will buy a fine, healthy, and beautiful estate—two hundred of them already in cultivation. The whole colony is on the advance, and its resources remain to be developed." Such was the bright picture published in Calcutta. The influx of speculators postponed the crisis, and prolonged the delusion.[158]

The increase of capital, and the opening of cash credits, facilitated the operations of the settlers, but tempted many to ruin. The government rewarded the rapid improvement of estates, the erection of substantial dwellings, farm buildings, and fences, by grants of land in extension. To secure the proffered boon the settlers accepted the assistance of money-lenders, whose claims at length absorbed the proceeds of their toil. During a progress through the colony, the governor visited many establishments, and distinguished the enterprising agriculturist with special favor. On his return to head-quarters he expressed the pleasure his inspection had afforded; and noticed in a public order Mr. Gatenby, of the Isis, as a "good old English yeoman," and an example of enterprise and skill. Well assured that his Majesty was desirous that the character of a plain, upright farmer, should meet with encouragement and reward, he added to this settler's grant 1,000 acres.[159] The "Gatenby farmers" were henceforth noted as a favored class; and many, anxious for the same recompense, borrowed, enclosed and improved, until they had not a rood of land to call their own.

The most distinguished money-lender was Sheriff Ferreday, whose ordinary charge was 35 per cent., or less with ample security. After a few years (1834) he returned to Europe, having realised L20,000 by usury. At his death, he devised a portion of his wealth to Oxford, to found a scholarship. He suffered much vituperation, probably with little comparative justice. "His bible," said Mr. Gellibrand, "is his bill book, and his gold his god"—a quotation from Burke, highly relished at the time.

The treasury was again robbed in 1832. It was observed the office papers were deranged: constables were stationed to watch, and a sentinel was placed at the door. The sudden examination of the chest by the governor discovered a more serious transaction. It appeared, capital had been borrowed from the chest without authority, to the amount of some thousands; the money was, however, restored. No public care could reclaim these funds from their tendency to escape, and they were not deemed sure until out of the custody of the government.

The secretary of state directed the public cash to be deposited with the banks. The treasurer was not authorised to retain more than L10,000 of paper, and the Van Diemen's Land and Derwent establishments each received charge of L10,000 cash. During six years, the revenue had risen from L30,000 to L60,000: notwithstanding a very liberal official expenditure, the surplus funds (1831) amounted to nearly L40,000.

The interior communication was facilitated both by the business of the police and the cheap labor in the hands of the crown. The post of Sorell's time was a private speculation, conveyed on foot, afterwards on horseback. On the 19th June, 1832, a "cheap and expeditious conveyance, to and from Launceston," was announced. The owner, Mr. J. E. Cox, drove tandem, at the rate of forty miles a-day: only one passenger was accommodated, at a fare of L5. The practicability of the journey was then the subject of considerable betting.[160]

In 1827, and during two following seasons, New South Wales suffered a serious drought, which increased in severity. Rivers were exhausted, and their beds left dry. Not only the want of rain was felt, but a withering blight, travelling in a defined current over the cultivated districts, cut off their harvests. In two years the cultivation of wheat in Van Diemen's Land increased from twenty to thirty thousand acres, and the average price of wheat at Hobart Town was 8s. per bushel. This stimulated further production, and tended to avert from Van Diemen's Land the distress, which over speculation and scarcity produced in New South Wales.

This dearth was followed by two plentiful harvests (1831), and a depression of price. The farmers of New South Wales entreated General Darling to establish a corn law, to check importation. In declining the project, he attributed the successful competition of this country to the superiority of its wheat and facility of transit; and hinted that the elder colony was indebted to foreign supplies for its subsistence.

FOOTNOTES:

[Footnote 157: Observations on the Colonies of New South Wales and Van Diemen's Land. By John Henderson. Calcutta, 1832. p. 5.]

[Footnote 158: Journal of a Voyage to Van Diemen's Land, p. 108.]

[Footnote 159: Gazette, March, 1828.]

[Footnote 160: Until 1832, the post was managed by Mr. Collicott, as a private speculation. There were nine post stations. The number of newspapers conveyed by post in 1832, was 13,000; in 1833, 102, 400.—Montagu's Statistics.]



SECTION VIII.

The powers of legislation confided to Arthur did not slumber. The council which enacted the laws, were chiefly officers of the government, and the discussion of measures was conducted in private. Whatever course they pursued, was justly ascribed to the governor himself. The early ordinances of Arthur added some new burden, or limited some indulgence. Their immediate aspect was, therefore, commonly austere and encroaching, even when their ultimate consequences were beneficial.

To prevent the clandestine sale of liquors (1827), the council authorised a constable, upon a magistrate's warrant, granted on the belief of any person that ale, beer, or spirits were sold, to break open the house and seize the liquor; and unless the owner could satisfy the magistrate, the constable was permitted to stave and destroy the vessels. For the sale, not only were heavy penalties imposed, but unless paid the offender was liable to perpetual imprisonment; and even appeal was prohibited, except the penalty was first paid: one-half to the informer. This ordinance was afterwards mitigated.

The penal character of the colony was constantly indicated in the entire spirit of legislation. Thus a house could be broken into at night, when a person suspected as an absconder was expected to be found there: whoever engaged a convict, though in ignorance of his civil condition, incurred the penalties of "harboring." Publicans were liable to fines for supplying such persons, even with common refreshment. Any man might arrest another, whom he chose to fancy a convict at large. These deviations from the practices of society in its regular state, were occasionally vexatious, but not commonly. The settlers being acquainted with each other, and the servants usually known to the constables, prevented those practical evils, otherwise inevitable.

Few colonial enactments have occasioned more vexation than the impounding laws. The interests of the grazier and agriculturalist were at variance. When the country was parcelled out for cultivation, the losses and annoyances of the settlers were severe. Their land unfenced, was often suddenly visited by a herd of several hundreds: their crops were trodden down, and devoured in a few hours. The invaders when alarmed were soon beyond reach. Nor was this the sole mischief: tame bullocks, seduced by the interlopers, often joined their flight; many days were spent before they were recovered; often they were finally lost. The unfortunate farmer, in the most important season, was compelled to leave his lonely home, and attended by reluctant laborers travel over many a hill and dale in search of the fugitives, with sadness of heart.

At the accession of Arthur, the country about the Clyde and Shannon was stocked with numerous herds, and from their bulk, the lands on which they fed were then called the Plains of Bashan. The herdsmen acquired great skill in tracking and driving the cattle. Their stations were in advance of the located districts, and opened many fine patches of country. Their horsemanship was celebrated: they gallopped amidst the trees—now stooping, now leaning to the right or to the left; avoiding obstruction and escaping collision with wonderful agility. They lived a half savage life; were the reckless oppressors of the natives; often the accomplices of the bushrangers, and accused of many crimes. To brand the cattle, they were driven within an enclosure seven feet high, and when exhausted by hunger, one man armed with a pole threw a loop round the horns, another entangled the legs, and the beast was branded with a heated iron; then turned into the woods, or driven to market. Little caution respecting the rights of ownership was observed: several were capitally convicted, when probably they were careless rather than deliberately criminal.

An impounding law was proclaimed by Macquarie in 1820; but cattle being often driven to the pound for the sake of the fees, the ordinance was relaxed by Sorell. This continued the colonial rule until 1830, when Colonel Arthur enacted a more stringent law. The large stockholders were great sufferers, and were compelled to reduce their herds and increase their expense. The constables often corruptly exercised the great power this law gave them: cattle driven to the most distant pounds were not discovered until their expenses were greater than their value.

The larger herds belonged chiefly to gentlemen, of different families, but of the name of Lord. In describing their depredations, it was said that a party of the E.L.'s, D.L.'s, or the R.L.'s, had made an excursion. The complaining farmer was told that he might impound, but not maim them; but a troop of horsemen were required for this purpose.

The operation of the law was unequal: the small settler fed his stock on the rocks behind his location, where his rich neighbour, who could influence the police, was a competitor. Often his stock were never heard of until sold, perhaps to the son of the poundkeeper. Many hundred were bought for a few shillings each. False claims of damage were set up, and a kind of black mail was levied on the settlers to preserve their stock from molestation. To protect themselves, many of the more opulent settlers obtained the appointment of poundkeepers; and this office was held by persons who claimed the highest station in the country. The incessant complaints in newspapers of the day, partly prove the severity of the regulation. It was, of course, a subject of reproach to the government; yet it is certain that, while the injury was partial, the principle of the law was sound, and its operation on the whole beneficial.

To prevent the increase of dogs, a tax was imposed (1830). The aborigines possessed large packs, from fifty to three hundred. On the destruction of the aboriginal tribes, these animals escaped, hunted in large numbers, and committed great havoc, among the flocks: farmers lost five hundred sheep in a season. By a single gripe these wild marauders destroyed a sheep, and a few minutes were sufficient to strew the downs with dead. A tax was imposed, from 5s. to L1 each. Large establishments required many sheep and watch dogs, and the cost amounted to L8 or L10 per annum. The constables had summary power to destroy canine vagrants without collars, in town or country.

The Huskisson Act applied the laws of England to the colony, and thus it became a question whether the English interest of 5 per cent. were not the limit of lawful usury. The government paid larger amounts on the deposits of prisoners, and capital on such terms must have forsaken the country; the council, therefore, declared the restriction inoperative.

These ordinances were the subject of endless and angry discussion. The feelings of the community were not carefully consulted, and laws in the main useful, were too often pertinaciously encumbered with provisions both irritating and needless. The motives of the lawgivers were canvassed without reserve. They were supposed to employ their powers to facilitate extortion, in the profits of which they were said to share.



SECTION IX.

The dignity and independence based on landed wealth, is ever the chief allurement of the emigrant. Whatever his rank, he dreams of the day when he shall dwell in a mansion planned by himself; survey a wide and verdant landscape called after his name; and sit beneath the vineyard his own hands planted. To this common ambition the crown directed its appeals: acres, by hundreds and thousands, were offered for acceptance. The imagination of English readers overleaped a tedious interval of labor and disappointment. The generous impulse silenced the voice of fear and distrust: they took a last look at the sepulchres of their fathers, and came forth to establish their children among the founders of nations.

The distribution of waste lands, a most important function of colonial governors, has been a source of incessant perplexity and discontent. Sometimes they have been granted with ridiculous parsimony, and at others with scandalous profusion. Every minister has proposed some novelty: the regulations of one year have been abandoned the next, and the emigrant who loitered on his way found the system changed, which had induced him to set forth.

The stewardship of the royal domain has been liable to difficulties peculiar to itself, beside the full average of official injustice and corruption.

The endowment of emancipists with land, an American practice,[161] was unsuccessfully revived in New Holland, and continued until the close of Macquarie's administration, when Commissioner Bigge recommended that no grant should be less than 320 acres.

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 assaults 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 Cummings 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 title. 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. Cox (of New South Wales) to buy it, which he did for L40; 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 L45; another of 30 acres from Thomas Higgins, for L35; and another farm, of 100 acres, I also purchased for Mr. Cox for L50 and ten gallons of rum. I likewise bought another farm of 100 acres from Captain Campbell for L100; 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 L500: the stock, when valued, was worth more than the purchase money. Next year (1801) I bought John Ramsay's farm of 75 acres, for L40; and then Michael Fitzgerald's, with eight large pigs and eighty bushels of maize, for L100. I let this farm, ten days after, for L40 per year. I then purchased Barrington's (the celebrated pickpocket), 25 acres, an old brood mare with a colt at her foot, for L100, and sold the mare a few days after for L85. I then bought 50 acres from Edward Elliot, for L100, 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, constituting Edward Dumaresq, chief, and Roderick O'Connor and Peter Murdoch, assistant 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 assigned 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 L16 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 title to free grants. In 1827, the convict clause was withdrawn: the settler was required to produce L500 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., L25 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.

Fictitious 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 assigned 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, Cumberland. 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 incumbrance: 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 L59, 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 constituted, 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 L2,000, to Captain Jones, who paid L1,000 in hand, and entered into bonds for L1,000 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 L1,000. 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 asserted that no title was good, except such as passed under the great seal. A locatee, in an action of ejectment (Birchell 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 titles 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 titles 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, quantity, 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 title 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 titles. 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 illustrate 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 title was invalid. Still more extensive erasures were discovered in a valuable property; the entire description had been changed and another substituted. 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.

To have confirmed all former titles 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 L3,000: 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 titles. 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 title. 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, constituting the caveat board a court of equity and good conscience, was passed 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 L5, of 2,000 for L20. 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 entitled 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 petitioned 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 L2,000 to L8,000.

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 trespass, 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 quantities 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 asserted 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 L400 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 petition 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 accumulations prior to 1835, provided all from that date were liquidated by yearly instalments. The total amount of quit-rent is estimated at L15,000 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 assessors gave him a verdict. The lawyers pleaded the general invalidity of colonial titles, 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 L1,700, 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 entitled them to a remission of from L150 to L300, 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, L44,000 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 competition 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 assigns, 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 assigns, free from all taxes, quit-rents, and other acknowledgements, for the space 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 quantity 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 instituted in Ireland, for the sale of encumbered 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 title 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 L3 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 competitors 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 petitioned the government for a share of convict labour—a boon which the elder colonies deprecated, and the minister refused (1835).