CHAP. XI RECOMMENDATIONS PER "GENERAL HEWITT" 107

clear that the squatters were getting agricultural land at about fivepence an acre rent, without reference to the vast pastoral tracts occupied by them, which were, however, covered by the stock tax. It should be observed that the proceeds both of the licence fees and the stock tax went into the general

revenue.

It seems to have been the practice, under the existing squatting Regulations, to grant a £10 licence which enabled a licensee to occupy any number of runs without other permission. To remedy this abuse, new Regulations were issued on the 2d April 1844 which required that a separate licence should be taken out for each station, that no station should exceed in area twenty-five square miles, unless the Crown Land Commissioner should certify that the stock carried upon it required more, and that blocks of land seven miles apart should be considered separate stations.2

On

But the matter evidently required further treatment. the one hand it was necessary to protect the public, whose land would be diminished by any permanent interest given to the squatters; on the other, it was most desirable that the squatters should be encouraged to improve and civilise somewhat smaller tracts of country instead of roaming over vast

areas.

Accordingly, on the 13th May 1844,3 the Governor announced that he had sent home, in the "General Hewitt," certain recommendations to Her Majesty's Government on the subject. His principal suggestions were as follow

1. To allow a squatter, after five years' occupation, to purchase the fee-simple of not more than 320 acres of his run at a minimum price of £1 an acre, subject, however, to a deduction for improvements effected.4

2. To guarantee such a purchaser undisturbed possession of his run for a further term of eight years, upon renewal of the annual £10 licence.

3. To allow at the end of such eight years a further purchase of 320

1 Cf. correspondence in Votes and Proceedings, 1844, vol. i. pp. 645-674. 2 Gov. Gazette, 1844, 2d April.

3 Sydney Morning Herald, 13th May 1844, and Votes and Proceedings, 1844, vol. ii. p. 142. The ship sailed on the 3d April.

4 The land was to be put up to auction at £1 reserve, plus the value of the improvements, which was to be credited to the squatter.

acres on similar terms, with a further guarantee for eight years, and so on.

4. If, however, the squatter is outbid at auction, the purchaser of the homestead, whoever he may be, is to have the rest of the run.

The policy of the recommendations is not very clear. If it were to discourage monopolists and encourage settlers with moderate capital, it is obvious that the provision for sale by auction would singularly defeat the Governor's object. This provision would also deprive squatters of the security which the recommendations apparently intended to give them, by making it uncertain for any man whether he would not be turned out of his run at the end of eight years, with his remote 320 acres of purchased land, valuable only as an adjunct to his run, left worthless on his hands.

It is not a surprise, therefore, to find that both these recommendations, and the preceding Regulations of the 2d April 1844,1 were exceedingly unpopular. Nineteen petitions, comprising 6500 signatures, are said to have been presented against them.2 Meetings to denounce them were held throughout the colony, including one at Melbourne, where it was determined to form a society of stockholders for the protection of pastoral interests, to be called the "Pastoral Society of Australia Felix."4 Written opinions, many of them extremely long, were sent to the Land Committee of the Council then sitting, from all parts of the colony, by well-known settlers. Most of these opinions are decidedly unfavourable to the new policy but not all. A notably brief and emphatic communication from Mr. S. G. Henty of Portland approves of all the new Regulations except that which provides that stations seven miles apart shall be deemed separate.

5

6

The report of the committee of 1844 also emphatically condemned the new regulations as "not only oppressive in their details, but absolutely impracticable in their original conception."7 But the main objection of the committee seems to have been of a legal rather than an economic character. They strive earnestly to show that the Regulations are ultra vires.

1 Ante, p. 107.

2 Votes and Proceedings, 1844, vol. ii. p. 141. See the petitions in full, ibid.

PP. 1-40.

4 Ibid. p. 367.

6 Ibid. 1844, vol. ii. p. 126.

CHAP. XI

MR. HOPE'S LEASING BILL

109

"Either," they say in effect, "the Squatting Act1 was invalid as a fraud upon the Imperial Statute, 1 Vic. c. 2, by which the territorial revenue of the Crown was given up to the Consolidated Fund in return for a Civil List, or the Regulations are unconstitutional as attempting to raise taxation without parliamentary grant. The stock tax is provided for by the Squatting Act, but the alteration in the system of licences is a new taxation."

The answer to this contention, which is supported by a good deal of rather unsound constitutional learning, is simply this: that the licence fees were not imposed under the Squatting Act, which merely alludes to and recognises the right of the Crown to grant licences, and expressly saves the rights of the Crown in all respects.2 The licence fees were not taxation, but rent. Though they were paid into the colonial exchequer, they really belonged to the Land Fund, which was then part of the Consolidated Fund of the empire, though by the English parliament allotted to particular purposes. The only authority entitled to complain of the Governor's action in the matter was the English parliament.3

In the year 1846 came the despatch of Lord Stanley,* enclosing the draft of a bill proposed by Mr. Hope, and stating the views of the Home government upon the subject. The objects of this policy are stated by Lord Stanley to be the rendering available of the waste lands of the colony for pastoral purposes, with a due regard to the ulterior interests of the community. These objects it is proposed to effect by authorising the Governor to grant either annual occupation licences or leases for not more than seven years, which leases are to be granted without competition to persons who have been in occupation of their runs for five years, but in other cases after bidding at auction. Occupation under licence is not to give any right as against the Crown, but lessees will of course be unremovable during the existence of their terms.5 The bill

1 2 Vic. No. 27 (N. S. W.)

2 §§ 2 and 26.

3 Temporary arrangements were made by Regulations of the 10th July 1845 (Gov. Gazette, 11th July 1845).

4 Copy in V. and P., 1846, vol. i. pp. 59-65.

5 §§ 1 and 7 of bill in Votes and Proceedings, 1846, vol. i. pp. 62 and 63. The first section also provides that the reversion may not be sold by the Crown without the consent of the existing lessee.

contemplates the granting of licences without fee, but licensees on such terms are to pay an annual agistment charge not exceeding one penny for each sheep, or threepence for each horse or head of cattle, to be fixed by Order in Council, or by the Governor and his Executive Council.1 Moreover, the Governor is to have power to reserve all the minerals in any grant or lease, or a royalty for the working thereof.2 It is expressly provided that all proceeds from licence fees, agistments, rents, and royalties shall form part of the Land Fund, in the same manner as sale proceeds under the 5 & 6 Vic. c. 36.3

4

Meanwhile the Regulations of 1844 had created a feeling of discontent which was about to break out into open flame. The existing Squatting Act (2 Vic. No. 27) had been only temporary, and had been renewed with amendments in 1841 by the 5 Vic. No. 1. This renewal was about to expire on the 30th June 1846. A strong party in the Council had made up its mind to prevent its re-enactment, and the Governor, warned of the approaching storm, had been obliged to instruct the Crown Land Commissioners to inform the men of the Border Police that it was quite uncertain whether the Government would have the funds to continue their services after the 30th June. The anticipated result happened. When the Colonial Secretary moved the first reading of the renewing bill, his motion was defeated, after a narrow division, by an amendment which substituted for it an Address to the Governor. The Address declined, on the legal grounds stated in the report,7 to renew the Squatting Acts, but offered on the part of the Council to co-operate in organising a police for the squatting districts, on the understanding that the police was not used for collecting Crown revenue. The Address, when presented, came very near producing a passage of arms between the Governor and the Council, but the danger was happily averted.

8

6

Still the great difficulty remained. Was the Border Police to be disbanded?

Before the close of the first session of 1846 the Governor made a suggestion. Owing to the increased productiveness of

1 § 6.

2 § 2.

3 § 8.

4 See circular letter of 3d April 1844 in Votes and Proceedings, 1846, vol. i. p. 247. 5 On the 3d June 1846, ibid. p. 37. 6 Votes and Proceedings, 1846, vol. i. p. 39. 7 Ante, p. 109. 8 Votes and Proceedings, 1846, vol. i. p. 43.

CHAP. XI CRISIS IN THE SQUATTING QUESTION

III

the stock tax during the preceding two or three years there was a considerable surplus, about £17,000, from the funds devoted to the maintenance of the Border Police. This sum the Governor proposed, with the concurrence of the Council, to expend in continuing the force, at least for a short time. But there was another difficulty. Of this £17,000 about £14,000 came from the squatting districts of Port Phillip alone, and the Governor did not think it right in these circumstances to use the whole as a general fund for the colony. He proposed, therefore, to expend the £14,000 on the four squatting districts of Port Phillip.1

Time and reflection, however, brought wisdom. On the 12th June the Council adjourned for six weeks, in no very placid state of mind.2 The Governor had not ventured to include the Border Police in his regular estimates for the year 1847.3 When the Council met for the second session, on the 8th September, Governor Gipps had been succeeded by Sir Charles Fitz Roy, and all was politeness and amiability. The new Governor promptly presented additional estimates, which included the large sum of £22,300 for the expenses of the Border Police, but proposed to charge the strict expenses of the Commissioners (amounting to £5000 odd) upon the Crown revenues. How much can be won by a little suavity! The estimate went through without a shade of alteration."

5

But the long-expected statute did not arrive, and the new Governor had to make such temporary provision as he could for the squatting question. By Regulations of 30th June 18467 the temporary rules of Sir George Gipps were adopted for another year, before the expiring of which it was anticipated that Mr. Hope's measure would have become law. On the 26th June 18478 the Legislative Council received the longlooked-for statute, together with the draft of a proposed Order in Council to be made under it. The Act in question is the 9 & 10 Vic. c. 104, which is very much simpler than Mr. 1 Votes and Proceedings, 1846, vol. i. p. 165.

2 Ibid. p. 57. There were omens of discontent other than the Squatting question. Mr. Lowe had carried a resolution to address Her Majesty in favour of a reform in the colonial department, ibid. p. 55.

3 Of 28th May 1846, ibid. p. 135.

5 Ibid. pp. 199, 203, 204.

6 Ibid. p. 99, Resolution 29.

8 Votes and Proceedings, 1847, vol. i. p. 40.

4 Ibid. vol. ii. p. 1.

7 Copy in G. G., 3d July 1846.