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 £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 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 £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 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 £3,000: the original owner re-appeared with a Brisbane
grant, as a claimant of this property.
Colonel Arthur adopted Stephen's recommendation in 1831, and announced
in the _Gazette_, January following, its approval by the secretary of
state.
All existing grants being invalid, the settlers depended on the justice
of the crown to perfect their 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 £5, of 2,000 for £20. The list
of locations being published, the surveyor-general held a movable court,
to identify and arrange the boundaries. It was part of his duty to
mediate between the contending parties. These preliminaries being
settled, the commissioners issued grants to such as made good their
claim.
The proof of intention on the part of any officers, by custom 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
£2,000 to £8,000.
On an appeal to the secretary of state, Lord John Russell referred the
claimant to trial by jury. He erected a house on the ground: this a
chain gang was employed to destroy. He brought his action for 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 £400 per annum.
A large number of grants in Van Diemen's Land became liable in 1831, and
notice was given that payment would be enforced. The settlers of
Cornwall, led by Messrs. Bryan, Joseph Archer, and Gleadow, signed a
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 £15,000
a-year, including the towns.
The collection of quit-rents is a curious instance of dodging--the
government to obtain, and the settlers to evade. Those debtors drawn
into payment, could demand in equity that the indulgence granted to
defaulters should be communicated to them: they were allowed a set-off
in future payments. Those who redeemed their quit-rent were less
favored.
The extinction of uncertain obligations would be a public boon, if only
for their tendency to produce discontent and habits of evasion. The
reservations of timber and material, and right of road-making, are
hardly less impolitic. If the law should oblige a proprietor to
accommodate his country, equity prescribes his fair indemnity. A
functionary might cut through a settler's estate in malevolence, and
destroy the approaches to his dwellings, under terms without tangible
limitation. In 1831, the government authorised a party to go through an
orchard, planted on a Macquarie grant, to enlarge a road to the ferry at
Risdon. The owner brought his action, and the 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
£1,700, when none of the conditions were fulfilled. An attorney-general
not only parted with his property, but obtained afterwards a grant in
extension for improvements he never made; and a gentleman, who had not
visited the country, but was related to several persons of influence,
obtained both a country and a town allotment.[177]
Lord Ripon's regulations disappointed many officers intending to settle
in the Australian colonies; but against this a provision was made
(August, 1831), which entitled them to a remission of from £150 to £300,
according to rank. They were, however, to give bonds for residence on
the land so obtained.
The ready sale of waste lands seemed to justify their valuation by the
crown. In 1832, £44,000 were netted, at nearly twelve shillings per
acre. This high average was occasioned by the sale of valuable reserves:
those of Ross were sold, some portions at 29s. per acre. The governor
complained that the sale of town allotments led to speculation and
limited improvements; he therefore offered land on three years' leases,
except at Hobart Town, at the usual quit-rent, and exacted the promise
to erect buildings of brick or stone. The absence of 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.]