OBSERVATIONS ON THE Alienation of Lands from the Crown IN THE COLONY OF NEW SOUTH WALES.
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OBSERVATIONS
ON THE
Alienation of Lands from the Crown,
IN THE
COLONY
OF
NEW SOUTH WALES.
[Submitted to his Excellency Governor Darling, October, 1829.]
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OBSERVATIONS ON THE ALIENATION OF CROWN LANDS.
I GLADLY avail myself of the intimation, that it is in contemplation to revise the regulations for the granting and alienating of Crown Lands, to offer my sentiments upon the subject.
The present regulations, framed from time to time with a view to meet the claims and wants of individuals in every shape, have now become so complex, that this is a desirable measure as a mere simplification of details; but I confess I approach the subject with a strong persuasion that the system hitherto pursued is defective in principle, and that some fundamental change is necessary in the basis on which any code of regulations may be established, before they will be found to work well with the Government, or give satisfaction to the public. At the same time it is a question in which the individual interest of most free members of the community is so much concerned, that it becomes an object of vital importance not only that the claims of individuals should be equitably adjusted, but that each individual should be able to refer his own case to a fixed and invariable standard, so simple and obvious as to leave no room for doubt or hesitation as to the nature or extent of his claims.
It has for a long time been my settled opinion, that it is impossible to attain this object without cutting off with an unsparing hand all claims for grants of land which are not grounded upon certain fixed principles, capable of being so exactly defined and ascertained as to leave nothing discretionary in their application.
The discretionary power vested in the Governor of alienating lands, within certain limits, in whatever way might appear to him most likely to promote the settlement and general improvement of the colony, could, in its earlier stages, be productive of little embarrassment to him: he knew the circumstances of each individual, and could adjust all claims from his own knowledge of the peculiar merits of each particular case. The colo-
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nists also knew the circumstances of each other, and had sufficient grounds upon which to form a judgment of the impartiality of their treatment. It was, in fact, the father of a family dispensing to the wants of his children, rather than the ruler of a country administering the affairs of his people.
It appears to me to be the inherent vice of the system of administration in this colony, that the Governor is still called upon to perform duties of this nature, in circumstances under which no human capacity is competent to discharge them. Constituted the dispenser of benefits to individuals, in proportion to the judgment he may form of their tendency to promote the general welfare of the community, he is brought into a competition of interest with almost every individual under his government.
Could we suppose a Governor gifted with an intuitive knowledge of the circumstances and merits of each case which might come under his review, it appears to me that this would still be a most invidious duty to call upon him to perform; for, independently of the general injustice of mankind, and the proverbial inability even of a conscientious man to come to a just conclusion in his own case, the point at issue is, after all, a question of opinion. And what might be considered by one individual as tending to the prosperity of the colony, might to another, equally qualified to judge, appear to have an opposite tendency. There cannot be a better illustration of this position than the question, whether the dense settlement, or wide extension of the colony, is more advantageous.
But when, in addition to the discharge of this invidious, and, for the Governor of a free country, most anomalous duty, it is considered that the Governor of New South Wales is charged with the administration of the civil government and military command of a colony, whose most important institutions are still in their infancy, or are yet to be formed, and whose peculiar situation and circumstances are such as to render the experience acquired in the government of other colonies, in a great degree, inapplicable here; it seems to me equally unjust to the Governor and the public, that his mind should be distracted from more important duties by details of such a nature.
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I think it is, therefore, essential to exclude all claims, which cannot be reduced to one simple and invariable standard, established on such principles as every one can understand and appreciate. I cannot contemplate any cases as reducible to such a standard, excepting those of new emigrants arriving in the colony, or the young people of it entering into matrimony. The principle I would adopt, as I stated in a former paper, would be strictly one of a transfer of public property for a settled and ascertained equivalent.
It will not be questioned by any one that it is advantageous to the colony that emigrants should be induced to settle in it. I would, therefore, make each emigrant, on his arrival, entitled to a regulated portion of land, without reference to the capital he might possess. In like manner he should be entitled, if a married man, to a portion for his wife, as well as for each child and free servant he might bring with him. If possessed of capital, he should also be entitled to land according to a defined scale, in proportion to its extent.
It is equally obvious that it is desirable to increase the population, and to promote its morality, by the encouragement of matrimony among the young people of the colony. I would, accordingly, on the marriage of the native youth, or young men who might have arrived free in the colony at too early an age to have themselves received a grant, and whose fathers should not have received land on their account, under the regulations now proposed, make to each a grant of a defined extent, which should be the same to each individual, without reference to station or circumstances, on the simple conditions of the parties being children of lawful wedlock, never having been convicted of any crime, and possessing the recommendations of a magistrate and clergyman for this privilege. The principle I have stated is sufficiently simple, and yet I think it will be found comprehensive enough to embrace every case deserving the attention of the Government, and to leave nothing discretionary in the application of a code of regulations founded on its basis. It will, in short, establish the law of each case, and leave nothing but the facts to be ascertained. Instead of having to pronounce on the merits of each individual application, as at
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present, when the Governor has sanctioned the code of regulations, he has decided all cases in one: and he has relieved himself from a most onerous and harassing, and yet unsatisfactory, duty.
All discretionary power being thus removed, the administration of this part of the public business would become altogether a duty of trust, which I think might be safely deputed to sworn commissioners, who, as is the present practice of the Land Board, might ascertain, by documentary and oral testimony, the claims of individuals, and certify to the Governor the extent of grant to which each person should have established his claim; the whole of the original proceedings being filed and registered in their office, in order to be produced periodically to the Governor in Council, as vouchers of the faithful discharge of their trust. It would, however, be a necessary addition to the present method of proceeding, that in cases of a doubtful character, where the testimony produced might not verify, to the satisfaction of the commissioners, the schedule of capital given by the party, that they should, after intimating to him the extent of claim which they consider, to be established, be authorised to leave him the option of making affidavit to the truth of such part of his schedule of capital as might be unsupported by satisfactory evidence.
In this way, and in this way only, with an exception in favour of claims for public services, and compensations for losses sustained from public causes, would I alienate by grant the crown lands of the colony.
Should it be said that cutting off the facilities of individuals to obtain pasturage for their flocks, by additional grants, reserves for purchase, and other methods, which have been adopted with a view to promote their success, must necessarily repress the enterprise, and cramp the pursuits of the colonists, I answer, that the extension of the colony has made it necessary to administer this branch of the public business as a law, not as a prerogative; and that it is impossible to legislate for individuals, "de minimis non curat lex."
I will not, therefore, enter into the question, whether a more liberal dispensation of grants would not tend more to promote
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the wealth and advancement of the colony; but I will here remark, that I think it important to the happiness of individuals, that they should not be led to undervalue their own exertions, by being encouraged to indulge illusory hopes of obtaining advantages from the Government, which, after all, are more apparent than real; deriving, in many cases, their only value from its being an object of competition to obtain them; or exposed to have their feelings soured by the disappointment of unreasonable expectations, founded on vague and unfounded opinions of what is due to them as individuals by the Government.
Were I, however, prepared to admit, to the greatest extent which could be argued, the desirableness of recognising the claims of individuals within more extended limits, the difficulty, --I would even say the impossibility, --of fixing a standard, by which the extent of these claims could be ascertained, which would include every case in which good or plausible grounds could be urged, makes it still, in my opinion, an act of justice to itself, that the Government should exclude all claims which are not founded upon a principle universally understood and exactly defined.
But, with the exception of not allowing every one to prefer a claim to land, in proportion to his own ideas of what would at once be beneficial to him and to the community, I am disposed to think that such a system is perfectly consistent with allowing every latitude to the enterprise of the colonists; for I think a modification of the present excellent system of renting lands at 2s. 6d. per 100 acres, subject to be resumed at a month's notice, would provide for the wants of all individuals, as far as it is possible for the Government, without partiality, to do so.
I would accordingly allow, without limit, every settler to rent the unoccupied lands in the neighbourhood of his estate; but I would not allow his claim of prior possession to deprive his neighbour of a due share of this land whenever his wants should require it. I would, therefore, on the application of an individual for a share of the lands rented by his neighbour, refer the party to the commissioners, who, being furnished with charts of the districts, should make a periodical investigation of
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such applications, and apportion the land among the applicants, in the strict ratio of their respective grants, subdividing again on the location of every new settler who might make application.
With regard to the question of purchase, as experience has fully demonstrated, that the avidity of individuals to obtain possession of land, will induce them to come under engagements which they have not the power to fulfil, or which it would be against their interest to fulfil, if they had the power; I would admit of no sale of land, unless the purchase-money should be paid in full before the purchaser entered on the occupation of the land. I think, also, that it would be necessary to fix a stated price for all lands, calculated upon a valuation of the most valuable land in the colony. And so far from making it an object for the settler to become a purchaser, I would rather be inclined to fix a price which would discourage him from such an unprofitable investment of his capital.
While equal justice would thus be done to all parties, I do not see that it follows that pastoral pursuits would in any degree be checked. It is, indeed, true, that it would force upon individuals the alternative of limiting the number of their flocks and herds, or of sending them to the unoccupied regions of the interior, where I would permit them the most ample range. The only restrictions within which it seems to me desirable that this liberty of occupation should be authorised, are, first, that the stations of settlers should not be pushed too close upon the position of penal settlements; and, secondly, that no assignee of convicts should have authority to send them beyond the line recognised as the boundary of the settled districts, unless with their own free will and consent.
It appears to me, that it would be a very advantageous consequence of this system, that it would afford a true criterion for individuals to judge of the value of their estates. Entertaining no illusory ideas of adding to them, either by future grant from the Government, or by purchase, except on fixed and known terms, it is probable that many would decide between restricting their live stock to such a number as their grants could support, in order to apply themselves in good earnest to
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the production of those agricultural commodities which, however congenial to the climate, are still lamentably neglected, or occupying them as mere stations or half-way houses, to which to bring their live stock on the way to market from the interior pastures. A more decided separation of pursuits would thus be produced; --the relative value of each more clearly ascertained; --and that would eventually come to be most followed which it is most for the general interest to pursue. In support of the same principle, I think it would be desirable to remove all restrictions upon the free transfer of lands among private individuals.
It is another strong feature of such a system, that individuals proposing to settle in the colony would not be discouraged by the consideration, that all the choice portions of the land had already been selected as additional grants or purchases by individuals, whose local knowledge of the country gives them an advantage over a stranger; and would be satisfied that wherever they might fix themselves, they would be entitled to their fair share of the waste lands around them, and not confined within the limits of their own grants by the monopoly of an earlier settler.
With the foregoing observations on the principles of the measure of alienating crown lands, I beg leave to offer a few remarks upon the details of their application.
The present scale of grants in proportion to capital, was fixed at a time when live stock of every description bore a much higher value than at present; and a settler who, a few years ago, would have found it difficult to stock a grant of four square miles, could probably stock a grant of double that extent at present with ease. The limit of 2,000 acres, which has since been extended to 2,560, was also fixed on the supposition that no larger capital than corresponded to that quantity in the scale would be invested in the colony; a supposition which experience has of late demonstrated to be no longer correct.
On these grounds, therefore, I think that the ratio of the scale should be increased in the proportion of land to capital,
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and that its limits should also be extended to encourage and provide for the investment of a larger capital.
An additional reason for the alteration of the scale is the fact, which the late seasons of drought have established, that the land is not in all seasons capable of supporting the number of live stock which it was considered to be when the scale was fixed. And for the extension of its limits, that (on the supposition of no additional grants being made, or facilities afforded for purchase from the Government in future) the settler will not have it in his power to extend his landed property by these means. I think it is therefore desirable, that a scale should be adopted, in the proportion of double the extent of land to capital that is fixed in the present scale; viz. of one square mile for each 250l., and to grant land in proportion to capital to any extent not exceeding 20,000 acres.
Without reference to capital, I think each emigrant should be entitled to a grant of 100 acres in the neighbourhood of townships, and other portions of the colony set apart for small agricultural settlers; or the option of a grant of 320 for himself, to be increased by half that quantity, or 160 acres, if married, for his wife, the same for each child above ten years of age, and for each servant, and the fourth of that quantity, or 80 acres, for each child under that age.
To native youths, or young men on their marriage, I think it would be desirable in like manner to allow the option of a grant of 100 acres, in the portions of the colony set apart for small settlers, or of 320 acres elsewhere. But I think no grant, not partly or wholly obtained upon capital, should be allowed to be selected in the interior or pastoral districts.
I think a division of the colony might be made into pastoral and agricultural districts, by a line extending ten miles from the sea coast, or from water carriage; and I think the lands in the agricultural districts might be made fairly chargeable with double the quit-rent of those situated in the interior. Instead of the present rates of quit-rent, founded upon a valuation of the land, which experience has proved to be erroneous, I think that 10s. per hundred acres in the agricultural districts,
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and half that rate in the pastoral districts, would be as much as it would either be expedient with regard to revenue, or equitable with respect to the grantees, to levy upon them.
In the case of half-pay or retired officers, who are entitled to a temporary or entire exemption from quit-rent, under the regulations of the Horse Guards, I think it would be desirable to give them land to the extent that 1,000l. would entitle them to, without subjecting them to the proof of capital, unless it should exceed that amount. It would, however, be requisite to provide, that such individuals should be possessed of such means as would enable them to settle upon their lands, without proving a burthen to the local Government; and, perhaps, the simplest and best way would be, to require from them, before they should obtain authority to proceed to the colony, an affidavit that, independently of the expense of their passage, they were possessed of capital to the amount of 500l.
JAMES BUSBY.
25th October, 1829.
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