Protests Against the Regulations

Upon the issue of the public announcement, the squatters in possession of extensive runs of Crown lands naturally objected to the limitations imposed, and, as published in the newspapers :—

At a general meeting of stockholders . . . held at the Royal Hotel, , on April 9, 1844, the following resolutions were unanimously adopt^ :— Resolution No. 1 : Moved by W. C. Wentworth, Esq., M.C., and seconded by Robert Gore, Esq.— “That this meeting regard with feelings of the deepest alarm the regulations respecting the occupation of Crown lands under squatting licences, published in the Government Gazette of April 2, 1844; such regulations being, in the opinion of this meeting, unconstitutional in their application and character, oppressive in their influence, and calculated to add materially to the existing distresses of the colony, etc. etc.” Resolution No. 2 : Moved by Benjamin Boyd, Esq., and seconded by John Blaxland,. Esq., M.C.— “That the system of granting licences for so limited a period as twelve months is highly objectionable. That, in addition to the evil arising from the shortness of such a term, its injurious consequences are aggravated by the right of occupancy being uncertain, and rendered liable to change at the will and caprice of the Executive Government, either by alterations in the regula tions of the stations or by increase in the charge for occupation. That, consequently, this uncertainty of right of occupancy of Crown lands has a ruinous tendency upon the most valuable property in the colony, has a very demoralising effect on the entire community, and must continue so, until a fixity of tenure is granted to the occupier.” [Boyd’s resolution was what the pastoralists were really fighting for —“fixity of tenure” leases—and this they even tually succeeded in getting. Fourteen-year leases were not as long as they wanted, that being twenty-one years. Although the tenure would allow improvements to be made the worst feature in the proposal was that it meant practically handing over the greater part of the Crown lands of the colony to the pastoralists—many of them being already rich—for a very long term.]

The remaining resolutions deal chiefly with details of the proposed Pastoralists’ Association. The chairman was , Esq. [In the bitter duel that followed the introduction of Gipps’s regulations almost the whole of the Press, with perhaps two exceptions, the Australian Chronicle and Duncan’s Weekly Register, were all out in support of the squatters. The Chronicle and Weekly Register by contrast sheeted home guilt for the parlous conditions unequivocally to the ‘wool- crats’ with their greedy speculation, extravagance and refusal to contribute honestly to revenue—they attacked squattage as a weird form of political economy, destructive of social, moral. 28 religious and economic value and calamitous for the future of the colony’. Barrie Dyster in the Royal Australian Historical Society Journal, Vol. 51, Part 1, deals strongly with this ques tion and with former writers on the subject.] The Governor, in commenting on the attitude of squatters with respect to the amended regulations, informed the Secretary of State that— The outcry which has been raised shows how completely the occupiers of these lands have accustomed themselves to look upon them as their own ...... The right to the occupation of a station has b e c o m e an article of common sale, and sums varying from £100 to £500 are commonly given for them . . . . , . From returns of the Crown Commissioners, I fin d t h a t , reckoning one horse, ox, or cow to be equal to eight sheep, the quantity of stock depastured by the three largest of the squatters (holding collectively 305,920 acres) who called the meeting was equal to 78,360 sheep, and the quantity depastured by the three smallest holders (13,440) was equal to 14,168; the small holders of stock, therefore, pay very nearly one shilling per annum for 22 sheep depastured by them on Crown lands, whilst the large occupiers pay the same sum . . . per annum for depasturing 131 sheep. In a Gipps’s despatch of 16 April, 1844, we read :— ... I have long felt the necessity of entirely remodelling the squatting regulations in this colony. I may now add that I have felt this necessity more urgently since the months of August and September, 1842, when a discussion took place in the (old) Legislative Council on the case of a Mr. Lee* at Bathurst . . . The long continued distress of the colony, and the pressure of other important matters growing out of the recent change in its constitution, caused me to defer the promulgation of these measures longer than I at first intended, but the expiration of the sixth year of my government recently warned me that I ought no longer to postpone them. In a later despatch (17 May, 1844), we read :— ... It may throw light on the subject it I state that Mr. Benjamin Boyd, the gentleman who signed the protest as chairman of the Association, is one of the largest squatters in the country. He holds fourteen stations in the Maneroo (Monaro) district, paying licence for four only, and four stations in the district of Port Phillip, paying licence for two . . . Mr. Boyd is the gentleman who asserted at the Royal Hotel, on April 9, that so long as he paid his £10 licences, he considered he had a freehold interest in the land which he occupied . . . Mr. Boyd came to this colony about two years ago, and is the gentleman spoken of in Lord John Russell's despatches to myself . . .

* In a note by the editor of the Historical Records of Aastralia (Vol. XX), having reference to the non-renewal of William Lee’s licence to depasture stock on his run in the western district, on the grounds that he had ceased to occupy his station, it is stated that “during the absence of Lee. his men were forced to leave his station on account of the drought and attacks by aborigines. Lee asked for an inquiry, in order to prove that the removal of his stock was only temporary and unavoidable. Although supported by eight magistrates, Lee’s request was refused and his licence cancelled. In August, 1842, a meeting of graziers was held at Bathurst to prepare a petition, which was presented to the Legislative Council on the 18th of the same month”. This meeting appears to have been the first of the scries which ultimately led to the adoption of “fixity of tenure" in the leasing of runs. 29 Later on in the same year (despatch of 11 August), Gipps again referred to the unequal incidence of the £10 licence by stating:— Returns show, amongst other things, that some individuals hold eleven hundred times as much land as others do for the same money . . . and that some occupiers feed 180 sheep on Crown lands for one shilling a year, whilst others pay nearly one shilling for every sheep depastured by them; some pay one halfpenny a year for a cow, others seven shillings. With reference to the petition of stockholders, the Governor briefly summarised the appeal as follows :— . . . The prayer of the petitions simply is that her Majesty will divest herself of all control over the Crown lands of the colony in order that they may be held by the present occupants for a period of not less than twenty-one years, and subsequently purchased by the same parties at a price to be fixed in the colony without reference to Parliament. In Lord Stanley’s despatch, 30 January, 1845, approving the new regulations of 2 April, 1844, with regard to the imposition of £10 per annum on every run, we read as follows : “Mr. Wentworth who moved the first resolution at the meeting of 9 April, 1844. complained that the elfect of the regulations would be that, as he had fifteen stations, he would be required to pay £150 a year instead of only £20, which payment now covers the whole fifteen runs . . .” [The unpopularity of Gipps, which came upon him in consequence of his firm administration of the law in what he believed to be the enduring interest of the country, has been reflected in some books of Australian history, especially in such as were written at the time or not long after the contro versies in which he figured. “But he was in truth (says Ernest Scott), a singularly able and a most conscientious and high- minded Governor. His modest claim on the eve of his depar ture, ‘I have laboured to the best of my ability to advance the true interests of this land’, will be confirmed by any fair- minded student of this rule”. The Herald in 1846, which was antagonistic to Gipps, had this last shot at him :— . We have given it as our deliberately formed opinio n .... that Sir George Gipps has been the worst Governor that has ever had. He has done for it the least amount of good—has inflicted upon it the largest amount of injury. We write these words ‘more in sorrow than in anger’, we sorrow that we sh ould take leave of His Excellency in terms so unkindly and so harsh; but we sorrow most of all that he should have bequeathed to our adopted country .... a legacy of thraldom which .... will cause generations of yet unborn to rue the day he ever set foot upon our shore.” The later researches of historians have largely confirmed the verdict that there can be little doubt that, if Gipps had had his way and the Home Government’s Crown Lands policy had continued, much of the trouble that afterwards arose would have been avoided.] 30 From time to time during the remainder of his term of office. Governor Gipps continued to advise the Secretary of State on matters concerning squatting affairs, with a view to the enactment of a measure commensurate with the requirements of this now far-flung system of pastoral occupancy, and in the interests of settlement generally. After the passing of the new Land Act of 1846, and its regulations. Governor Fitzroy, who had succeeded Sir George Gipps in the administration of affairs, received the following com munication from the Secretary of State, with feeling reference to the part taken by the late Governor in the revision of the new regulations prior to his sudden death in . He wrote :—

... I informed you that 1 considered it of so much importance to obtain the advice . . . of the late Governor of New South Wales that 1 should wait for his arrival in this country (then expected almost immediately) before I proceeded further with the contemplated measure. Sir George Gipps reached England later than had been antici pated, and in a state of health which rendered it impossible for him at first to attend to business. Subsequently, however, his health having apparently improved, he was enabled, before his friends and his country suffered the great loss of his lamented death, to give me advice and assistance of the highest value in the revision of the proposed regulations, of which some important modifications were consequently made. As regards the Order-in-Council of 9 March, 1847, announcing the rules and regulations of the new Land Act, reference need only be made to the more important sections of Chapter II, which regulated the occupation of Crown lands in what is styled “The Unsettled Districts” [or beyond the Nineteen Counties].

Section 1.—(The Governor) is hereby empowered to grant leases of runs of land . . . to such person or persons as he shall th in k fit for any term or terms of years not exceeding fourteen years . . . for pastoral purposes, with permission . . . for the lessees to cultivate so much of the lands comprised in the said runs as may be necessary to provide such grain, hay, vegetables and fruit for the use and supply of the family and establishment of such lessees, but not for the purpose of sale or barter. Section 2.—The rent to be paid . . . shall be proportioned to the number of sheep or cattle . . . estimated as capable of being carried. Each run to carry at least 4,000 sheep, or equivalent in cattle . . . and not in any case to be let at a lower rent than £10 per annum, to which £2/10/- for each additional 1,000 sheep to be added. Section 3 (deals with the mode of estimating the number of sheep which a run will carry). Section 6. (Land not saleable, only to occupant, during the continuance of the lease.) Section 7 (regulates forms of leaseholds and extent of w ater frontages, as stated in the following sub-sections) :— 1st.—Each lot must be rectangular, unless the features of the country, or the course of any river or stream, render a deviation from the rectangular form necessary . . . 2nd.—Two opposite sides of any stream or watercourse which, according to the practice of the Department of the Surveyor-General, ought to form a boundary between different sections or lots, shall in no case be included in the same lot. 31 3rd.— No single lot shall have more than 440 yards (direct) of water frontage for 160 acres, or more than a like proportion of water frontage for any quantity greater than 160 acres . . . in every case where it may appear . . . that the sale of such lots respectively might give an undue command over water required for the beneficial occupa tion and cultivation of the land adjoining either side of any stream or watercourse. With regard to the limiting of frontage areas by the sides of a river or stream, as enjoined in sub-section 2, “the practice of the Department of the Surveyor-General” of excluding the bed of the stream or watercourse in the survey frontage portions of land would appear to have been irregular, if not illegal, in view of the recent adjudication of our Law Courts in the case of White Brothers v. the Crown. The bed of the river or stream, according to the Riparian Laws of England, is adjudged to be the private property of the person or persons adjoining on either side of the stream or river, and accordingly the water passes over its bed on sufferance only. Jt is doubtful if the ad medium filum aquae rights of England were ever intended to apply to Australian conditions of settlement—at least no mention appears to be made of them in the instructions to governors or otherwise, as far as is known to the writer. On the other hand, the vast importance of fresh-water streams to the welfare of was well enough known to the Home Government, and as stated or implied, the practice of surveyors from the beginning of settlement was to exclude the bed of the stream in their measurements and descriptions. [As already mentioned] this important squatters’ Act, the chief feature of which was the fixity of tenure, came into force by proclamation on 1 May, 1847, and its contingent rules and regulations were publicly announced on 7 October of the same year, together with an intimation that applications received for leases of runs would, from time to time, be published in the gazettes for the information of the public.

By the end of the following year (1848), 1,745 runs were applied for in New South Wales, of which number 424 were from the Port Phillip division of the colony.

With reference to the various lists of pioneer squatters that were gazetted from time to time during the years prior to the “fixity of tenure”, the first of those lists, which was recorded in conformity with the Act of 1836, was arranged under the headings of Number, Place of Residence, Direction (from Sydney), and District, but the subsequent lists were simply grouped alphabeti- clly up to the year 1845, when the names of runs were added. Difficulty, however, would seem to have been frequently experi enced in defining names of both squatters and their runs, hence the orthographical irregularities that occur in the records. It may also be stated that upon glancing down the last column of the first li.st, under the heading District, the irregularities there displayed would also indicate the difficulty experienced by many of the 32 squatters in describing the location of their runs, much of the country outside the limits of location, especially on the north and west, having been as yet topographically unexplored by the Survey Department.

In comparing the [1840] schedule with the more definite list of squatters and their runs, as gazetted in 1848 in terms of the Order-in-Council of 9 March, 1847, it may readily be seen that many of the squatters listed in 1840 had failed to have their names recorded under the provisions of the 1846 Act, doubtless owing largely to the financial stringency of the time, which state of affairs evidently had induced them to dispose of their occupan cies if at liberty to do so. Of the more opulent squatters who had acquired many runs by purchase and otherwise, mention is made by Governor Gipps of Benjamin Boyd and his partner, Robinson, who had become occupiers in the year 1844 of the following runs in the districts of Port Phillip and Maneroo :—

Port Phillip District: “Strathmerton”, “Sid Court”, W immera, “Ondeit”, Colac, and “Enneralla”. Maneroo District; “Mafra”, “Cudgee”, “Inchbyra”, “Mayallon Downs”, “Genong”, “Cambalong”, “Queenburgh”, “Snowy River”, “Wog Wog”, “Bocco Rock”, “Bibben- luke”, “Boggy Creek”, “Bendock”, and “Kerwinong”.

“1 now find,” continued the Governor in his despatch, “that Mr. Boyd and his partner, Mr. Robinson, held, at the same time, land in six other districts, namely, Wellington, Murrumbidgee, Lachlan, Bligh, Darling Downs and New England, and that he, or they, paid in all for licences” (on account of thirty or more runs) “in the year ending 30 June, 1844, the sum of £140.”

According to the 1848 list of squatters, the runs in the Wellington district occupied by B. Boyd and Company were “Brymaduda”, “Melildra”, “Condabulan”, “Gulgo”, “Gonoo”, “Wambanglang”, “Minore”, “Coolee”, and “Timnee”; and in the Murrumbidgee district. “Deniliquin”, “Poon Boon”, “Neimar”. and “Nyang”. As regards the early occupiers of Crown lands in the Port Phillip district, licensed under the provisions of the 1836 Act, the first lists of applicants who had received permits from the Police Magistrates of Melbourne and Geelong numbered sixty-one indivi duals, but only some ten or twelve of that number would seem to have been again enrolled in the 1848 lists, as much of the country surrounding the more populous centres had become, in the mean time, classed as settlement and intermediate areas. [It might be mentioned here that the following notice was published in the New South Wales Government Gazette of 13 June. 1838. concerning pasturage licences at Port 33 Phillip : “Notice is hereby given that Pasturage Licences for the District of Port Phillip will be granted from the 1st day of July next (1838)”.] Monthly lists from the various centres were soon afterwards gazetted, and such notices were continued up to the latter date, when, in conjunction with the central and northern divisions of the colony, squattages in general were duly recorded in the impor tant lists of that year.

34 The ‘Squatters’ Act of 1846-47

In the course of the [previous] years, complaints had become numerous with regard to the unstable character of the annual leasehold system then in vogue, as apart from the uncertainty of continued possession, the erection of permanent structures required in the profitable management of the runs for the brief period of a year could not be entertained. These and other disadvantages having been duly represented in a petition for fixity of tenure, the famous “Squatters” Act of 1846-47 was the result. The fixity of tenure was, however, limited to fourteen years. The remodelled regulations which were ba.sed on the moderate requirements of squatters, received the approbation of the Secre tary of State, and with certain modificiations were embodied in the regulations of the Act. [C. J. King, in his book, p. 54, says, “The struggle was won when in December, 1845, the Ministry which had sup ported Gipps was replaced by a new Ministry wedded to the idea of granting fixity of tenures”. This was embodied in the Imperial Act of 1846, entitled An Act for Regulatii^ the Waste Lands .... in the Australian Colonies, assented to 28 August, 1846, and taking effect from 1 May, 1847, authorised the making of Orders-in-Council and announced on 7 October, 1847. The Act “embodied Gipps’s concessions whilst thrusting aside all the safe-guards that he had intended”.] Owing to the rapid spread of pastoral occupancy, northerly and north-westerly, and in the Port Phillip division of the colony, a rearrangement of the districts became necessary, as in part represented in the sub-joined list. On the south the Port Phillip division was separated into four districts, namely, Wimmera, Murray, Gippsland, and Western Port; but although this division was still part of the mother colony, its adolescence was considered sufficiently advanced to admit of its plea for separate action in the administration of local affairs. It is therefore deemed advis able to list the runs of this now rapidly advancing portion of the colony under a separate heading. The following abbreviated announcement prefaced each of the principal lists of applicants for runs which appeared at intervals in the Government Gazette :— His excellency the Governor directs it to be notified, for the information of all persons interested, that in pursuance of Her Majesty’s Order-in-Council, of March 9, 1847, the undermentioned persons have demanded leases of the several runs of Crown land particularised in connection with their respective names.

It is to be distinctly understood that the Government does not pledge itself to the issue of a lease in any case until due enquiry has been made into the validity of the claim, and whether or not it may be necessary to reserve any portion of the land claimed, for any of the public purposes contemplated in the Order-in-Council, 35