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The Pamphlet Collection of Sir Robert Stout: Volume 30

Chapter III. The Nicholson Land Act

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Chapter III. The Nicholson Land Act.

When the Haines' Land Bill was in committee, Mr. Service moved the insertion of a clause which he described as intended "to afford facilities to persons of limited means desirous of settling down to agricultural or pastoral persuits." It was to the effect that there should be surveyed and marked off in various parts of the colony, and in such localities as should be deemed most suitable without interfering with town or suburban classes, certain lands to be called "farm lands." These lands were to be divided into blocks of a certain area (undefined by the clause), and any person was to be allowed to select a block not previously taken up, at the upset price of 20s. per acre, subject to regulations. This clause was not adopted, as it found only seven supporters besides the mover. However, when Mr. Service moved the second reading of the Nicholson Land Bill (10th January, 1860), he claimed the credit of having three years previously introduced to the notice of the House one of the principal features of the bill, viz., the principle of free selection at an uniform fixed price. Other resolutions which did not come on for debate, consequent on the defeat of the principal clause, contained, Mr. Service said, the conditions of deferred payments. "So that," said he, "in point of fact the two main features on which the Land Bill is based were advocated by me three years ago. Sir, I may come before the House without being charged by any hon. members with inconsistency or with a desire to advocate a doctrine for any other reason than that I think it is the one most conducive to the interests and prosperity of the country at large" a. It will be interesting to note how far the bill itself tallied with this announcement of its fundamental principles. Subjoined is a synopsis of its leading provisions:—

Free Selection after Survey.—The chief feature of the bill was that of free selection over all the waste lands of the Crown in the colony for agricultural purposes, subject to certain conditions with

a Victorian Hansard, vol 5, p 266.

page 37 respect to land not surveyed and special lands which might he of special value. "Total abolition of the sale of ordinary country lands by auction" was proclamed as one of its cardinal provisions. The Board of Land and Works was from time to time to cause country lands to be surveyed to the amount of 4,000,000 acres, in allotments of not less than 80, nor more than 320 acres each. Plans were to be prepared and each allotment divided into four equal portions. Advertisements were then to be inserted in the newspapers published nearest to the lands so surveyed, notifying that applications would be received for any such allotments up to a certain day not less than a month before the date of such proclamation. Any person desirous of purchasing any of such allotments were requested on or before the last day on which applications could be received to send in an application in the form of a schedule of the act. At noon on the day named in the proclamation for opening, the person appointed opened the applications in the presence of the applicants or their agents, and publicly stated the number of the allotments applied for. If their was only one applicant for an allotment he was declared the selector thereof, provided he had duly paid a deposit at the rate of £1 on every 4 acres applied for; if there were two or more applications for the same allotment then it was to be sold by tender, at which sale only the applicants were allowed to tender. Every person thus declared the selector of an allotment had forthwith to name the sub-division which he elected to purchase. Then he was deemed the purchaser of such sub-division, and stated whether he would purchase or rent all or any of the remaining sub-divisions. If he elected to purchase he paid the same price for every sub-division as he paid for the sub-division, which he first elected to purchase. If he elected to rent all or any of the remaining sub-divisions he paid one year's rent in advance, at the rate of 1s. 6d. per acre. If the selector did not elect to rent or purchase the remaining sub-divisions they were sold by auction, in which only unsuccessful applicants were allowed to bid. No person declared a selector was entitled to tender for any other allotment included in the same proclamation for which two or more applications for any sub-division thereof had been received. After the day fixed for determining applications, the person who made first application for an unsold allotment or sub-division thereof, and who duly paid not less than one sub-division's purchase money at the rate of 20s. per acre, was declared the selector. Every applicant was bound to make a deposit at the rate of £1 for every four acres contained in the allotment applied for. No person was entitled to be the selector of more than 340 acres within a year after the date of the proclamation of a district in which he had selected. Any person declared a selector was entitled at the time he named the sub-division or sub-divisions which he elected page 38 to purchase to demand a lease of the remaining sub-division or subdivisions of such allotment. Every lease so granted commenced from payment of the first year's rent, and was for such term not less than five nor more than ten years, as the Governor by proclamation shall have appointed. The rent was 1s. 6d. per acre per year, payable in advance. The purchased and leased land together was not to exceed 320 acres.

Forfeiture.—Every lease was forfeited if the lessee did not within a year of its commencement effect on the purchased land, on the same allotment, improvements of the value of £1 per acre of such purchased sub-division or sub-divisions. It was likewise forfeited if the lessee used the rented land for any purpose except agricultural and pastoral purposes, or as a garden, or if the lessee failed to pay rent in advance, or if he became insolvent or mortgaged, assigned or sub-let such rented land, or if the same was sold under execution, or if he or his agent had not resided either on the rented land or on one of the purchased sub-divisions of the same allotments at least 200 days every year. Forfeited lands were again thrown open for selection. Clause 49 was an important one. It provided that any person who, within a year after he purchased or applied for an allotment of country land, entered into an agreement to sell or mortgage such allotment, or buy or rent it on behalf of another party, or borrowed money on its security, should be liable to a penalty of, £200, to be recovered in the Supreme Court by any informers; "and every such agreement or any conveyance, lease, or mortgage or other charge made on, or security given over such lands or any part thereof within one year after any such purchase," was declared void. The object of this clause was to prevent dummyism.

Purchase of Leased Land.—The lessee at any time during term could purchase the land comprised in his lease at the same rate as that which he paid for the sub-division originally purchased, If the leased land was not purchased the lessee was not entitled to compensation for improvements, but he could remove the improvements within a certain time.

Free Selection before Survey.—If four or more persons paid £416, being .£320 for purchase money, and £96 for one year's rent, they could apply to purchase at the upset price of £1 per acre, not less than 320 acres of the country unsurveyed at the time of payment; and could rent at 2s. per acre an additional quantity of land such as should, with the allotment purchased, amount to 1280 acres, subject to certain conditions, including fencing. The Governor-in-Council was, however, empowered to refuse to survey, sell or lease such land without assigning reasons.

Penalty for not Improving.—If within two years after the purchase of any country land, improvements had not been affected on page 39 the land so purchased equal in pounds sterling to twice the number of acres comprised in the purchased portion of the allotment, the; purchaser or his successor was liable to a penalty of 5s. per acre, to be recovered in any court of competent jurisdiction, half the penalty to go to the informer. The Governor-in-Council could, however, order that such should not be recovered.

Commonage.—The Governor-in-Council was authorised to proclaim that any Crown lands in the vicinity of a town should be a common for the use of the inhabitants of such town, and from the proclamation of a common, all the inhabitants were entitled to depasture their cattle and horses upon it—to be called a "town common." Similar power was given to proclaim any Crown lands near a gold-field as a common for the use of holders of miners' rights, business licenses and carriers' licenses residing on the gold-fields—to be called "a gold-fields common." On the petition of 25 occupiers of purchased land in any agricultural district comprising not less than 500 acres, the Governor-in-Council was authorised to proclaim that any Crown lands in the vicinity should be "a farmers' common." Such persons received licenses, and had to pay certain fees for pasturage, at the rate of 4s. for every horse and 2s. for every head of cattle.

Licenses to Occupy.—The board was authorised to grant licenses to occupy, for terms not exceeding seven years, crown lands as sites of inns, stores, bridges or ferries, and toll or punt houses, or for the working of mineral springs, or for such other purposes as might appear to the board to be for the public advantage or convenience, at such yearly fees as the board fixed. This section is worth noticing, as it proved to be one of great power and importance in the administration of the land law as subsequently emasculated a.

Water Frontages.—No water frontages or auriferous land were to be alienated, but the Governor-in-Council could sell auriferous and mineral land in town allotments when it was for public convenience to do so.

Special Lands.—Special lands were lands within 20 miles of Melbourne or Geelong, or within a certain distance of places mentioned in the schedule, or within certain distances of the River Murray or a railway, or within a mile of purchased land. Once at least every quarter public sales by auction of special lands were to be held. The upset price of special lands was fixed at 20s., subject to increase by the Governor-in-Council. Purchasers had to make a deposit of 25 per cent, of the purchase money at the time of sale, the sale to be completed within four weeks subsequently.

General Provisions.—Several clauses gave the Government power to take, use and apply and protect lands for public purposes,

a See chapter on Occupation Licenses.

page 40 such as roads, races, drains, dams, reservoirs, &c.; to lease lands for mining for any mineral or metal except gold and silver, and to grant licenses to enter crown lands to search for metals or minerals except gold; to grant permit to enter Grown lands for purpose of surveying and cutting drains, races, dams, or reservoirs; to issue licenses to cut timber on Crown lands, or to dig for gravel, stone, salt, guano, &c. Penalties were provided for unauthorised occupation of Crown lands.

The operation of these main clauses of this Land Bill may be thus illustrated: Country lands vere surveyed in allotments of from so to 320 acres each, and each allotment was sub-divided into four parts. No one could apply for a block of less than 80 acres in extent nor more than 320. If he paid £1 cash for one fourth of an allotment, say 20 acres of an 80 acre block, or 80 acres for a 320 acre block, he was allowed to lease the remaining three sub-divisions of the allotment at 1s. 6d. per acre. This, then, was free selection after survey, and, according to Mr. Service's "deferred payment." No person could select more than one allotment within 12 months. A tax of 5s. per acre was imposed upon alienated land not cultivated in accordance with the condition of grant. The only approach to anything like free selection before survey was a series of clauses providing for an arrangement of this kind. Four or more persons could select 320 acres of unsurveyed land, pay £320 purchase money and £96 for rent. They were then entitled to apply to purchase the 320 acres and to rent an additional 960 acres at 2s. per acre. These were called the "special survey clauses."

The bill contained no reference whatever to the squatters' tenancy. The Minister of Lands announced that the Government considered that the question of the occupation of lands by the pastoral tenants should be dealt with by separate bill, and in the meantime it could be referred to a select committee.

Whatever were the imperfections of this bill there can be hardly any doubt that it went a long way towards giving practical expression to the land policy promulgated by the apostles of the Convention; and that it contained the feeble germ which subsequently developed into the liberal land laws of this country. Although its provisions did not come up to the demands of the Convention, the bill professed to be modelled in harmony with the cardinal doctrines of the Convention—free selection before and after survey, abolition of the auction system as applied to agricultural lands, free commonage, and deferred payments. Let us see how far these were justified.

The Convention party advocated the abolition of the sale of country lands by auction, and substitution of selection at an uniform upset price, with deferred payments. They objected to the auction system, on the ground that it favored capitalists, and tended to the centralisation and aggregation of large territories in a few hands, page 41 whilst free selection favored the industrial classes, and promoted the settlement and cultivation of the soil. The competition at auction was uncertain, and a poor man had no chance of bidding against a rich man. It was no reply to say that the State should sell its land at the highest price. The experience of all young countries (Canada and the United States in particular) had been that to promote the settlement upon the soil of an industrial, cultivating, consuming and tax-paying population was more conducive to national prosperity than the mere exaction of a big upset price for the national domain. The great advantage of free selection before survey was that a settler could select any unoccupied block of land which in his opinion suited his purposes and his means. He could do his own exploration and pioneering, and reap the benefit of any discovery of rich track of country which he might make. He was the best judge of his own interests. The system of "selection after survey" led to a general scramble for land; but, what was worse, it made the settlers dependent upon the caprice of surveyors and Ministers. They would be able only to cultivate in localities picked for them by a political department. This, it was contended was unfair and impolitic, and was a serious obstacle to settlement. It could only be remedied by having millions of acres surveyed in advance of settlement, and that was impossible in the existing state of the colony, with such enormous demands for land. Survey would always be lagging behind the applications for land.

The principle of "deferred payment," or "time payment," as applied to land, necessarily went hand in hand with free selection at an uniform price. A poor man or a beginner could neither afford to compete at auction against rich purchasers, nor could he afford to lay out all his capital in buying his homestead. He wanted a little working capital to tide over a few seasons—then he would be able to pay off the balance of his purchase money. To extract from the settler the whole of the purchase money of his land at the outset would be, perhaps, to take away from him the only means he had of supporting himself and family, and launching his venture at a period when a little money was most required. Such a course would deprive him of the means of maintaining that vigorous state of health and spirits which is so necessary when a man is engaged in the difficult task of clearing the land a. Deferred payments was the key-stone of the Canadian and the United States land system. The system of deferred payments, it was urged, would have to be established in Victoria if it was to be a democratic country. "The first step," said Mr. Wilson Gray, "is a great deal, and cultivation should be assisted as much as possible in their weakest day, or it would be useless to throw open the lands. The same will refer to everything in life, and there were many men in the House who

a Canadian Select Committee's Report 011 Land System, 1865.

page 42 had risen to their present positions by their own exertions, who would not have done so, had they been opposed at the first three or four steps they took of the ladder" a. "Why should poor men be encouraged to take up land at all?" cried the opponents of deferred payments. The reply was, that it was desirable to establish, in this country, a class of cultivating proprietors. The history of the world proved that, "a bold peasantry, its country's pride," had been the bulwarks and backbone of every country in which such a class had an existence. It was that class which conquered at Cressy and Agincourt, for the yeomen of England at that time, were virtually peasant proprietors. They felt that their title was permanent as long as they performed their military duty. According to Fortescue, the golden age of English yeomanry was shortly after the reign of Henry VI., when there were more peasant proprietors or leaseholders cultivating the soil than in any other country in Europe. The peasant proprietors of Austria and Switzerland had proved themselves to be, both in times of war and peace, the most powerful and patriotic classes of those nations. In the United States of America, experience showed that the great success and power of the union lay in the tillers of the soil b.

"Free grass" or "free commonage" was an item of the Convention progamme that was much misunderstood. Of course, it was coupled with the abolition of the squatting tenures, and meant that every farmer and settler should be at liberty to run his flocks and herds in adjacent Crown Lands as was the custom in California.

The Convention party, whilst accepting the Nicholson Land Bill as an instalment of land reform, objected that it did not comply with the foregoing principles, which they considered as essential preliminaries to any successful Land Legislation. The Bill, it was said, did not remove some of the main impediments to free selection. If several persons sent in applications for the same allotment the applicants competed for it by tender. This was only another form of sale by auction, and was a fatal blemish. Where several applied for the same allotment, the difficulty, it was argued, should be settled by lot, as the fairest means. The conditions annexed to special survey, rendered selection before survey almost impracticable. It would be difficult, sometimes, for a man wanting to select a block to get three others to join him. Besides the compulsory fencing would practically render the provisions nugatory. The fencing clauses were intended simply to accommodate the Crown tenant not being necessary for cultivating. In some of the best parts of Europe, it was pointed out, the lands were unfenced for miles. Then how could it be said that there was a

a Hansard, vol. 5, p. 322. Mr. Wilson Gray's speech on the second reading in the Nicholson Land Bill.

b Hansard, vol. 1, p. 779. Mr. Lalor speech on the Haines' Land Bill.

page 43 recognition of anything like deferred payments, when a selector, after survey, had to pay one fourth of the purchase money, and a years' rent of the remaining sub-divisions in advance; and when a selector before survey had to pay the whole of the purchase money of 320 acres in advance?

The greatest objection, however, taken to the Bill by the Liberal party in the Assembly was the glaring omission of all reference to the squatting tenure. The Government in shirking this responsibility were charged with moral cowardice, and a gross breach of faith with the public, inasmuch as they had by their professions prior to the Ministerial elections led to the belief that they would in their Land Bill provide for the termination of the squatters' licenses in 1861.

On the second reading, the most prominent speakers representing the views of the Convention were Messrs. Duffy, Heales, Barton, Bon, O'Hea and Wilson Gray. Mr. Duffy made a very able speech, in which he; fully and lucidly critcised the Bill. Mr. Heales considered that the measure was not so comprehensive and liberal as the Haines Bill. Mr. Gray took his seat on the 12th January as successor of Mr. John Everard in the representation of Rodney. On the 13th, he delivered his maiden speech, which was a very masterley criticism of the Ministerial scheme. He charged the Government with intending to abandon the special survey clauses, and condemned them for not dealing with the squatting question. On the Ministerial side, the principal orators were Mr. Michie, Mr. Bailey, Mr. Nicholson, and Mr. Wood. Mr. O'Shanassy spoke in very hostile terms against deferred payments, uniform price, free selection, and advocated the sale of large blocks, say 1000 acres. Mr. John Woods said that if he ever had any doubt as to whether he acted rightly in voting against the late Government, this speech of the hon. member for Kilmore had quite absolved him from any regret on the subject.

The second reading of the Bill was carried without a division.' Two important amendments were made in committee. In clause 21, the words "but if there be two or more applications for the same allotment, then, such allotment, shall be forthwith sold by tender, at which sale only the persons who shall have made applications for such allotment, or their agents, appointed in writing, shall be allowed to tender," were struck out, and on the motion of Mr. Duffy, carried by a majority of 24 to 20, the following provision was substituted:—"Such persons as shall be appointed for the purpose, shall cause lots to be drawn by the persons making such applications in such manner as may be directed from the Board of Land and Works in general instructions to be drawn up by them for that purpose, and the person who is successful in the drawing of such lots shall be declared the selector." The clauses relating to page 44 selection before survey were struck out by a majority of five. Mr. Gray asserted that they were lost through the weakness, vacillation, and insincerity of the Ministry, and the Attorney-General in particular.

On the Bill being reported, several clauses were re-committed, including clause 14:—"The Board of Land and works shall from time to time, cause country lands to be surveyed in allotments of not less than 80 nor more than 320 acres;" and Mr. Heales moved that the words 320 be omitted and 640 inserted in lieu therof. On a division this amendment was carried, by 25 to 20 votes Other amendments consequential to this were then made. Mr. James Stewart Johnson (St. Kilda) moved an amendment in clause 42, to the effect that a selector should, to escape, the penalty of 5s. per acre, be only required to spend in improvements, pounds sterling "equal to one half the number of acres" comprised in his purchased land, instead of pounds sterling equal to "twice the number of acres" comprising the purchased portion. This amendment was supported by Mr. Service, much to the surprise and alarm of the Convention party. Mr. Gray charged the Government with another breach of faith, contending that the improvements to the amount of £2 per acre should be compulsory as a guarantee of bona fide selection. Mr. Don predicted that if the Bill were kept before the Committee much longer, it would be shaped to meet the wishes of the ultra-squatters of Victoria. He warned the Goverment that, though it might obtain a majority, then its success would be short lived. So much stress did he lay on this clause that he thought if it were emasculated as proposed, the Bill might as well be given up. Mr. Gray further pointed out that the clause was intended to guard against the encroachment and rapacity of capitalists. As it stood, a man taking up 2000 acres would have to expend £4000 in improvements, and his operations were checked accordingly, but the amendment proposed to reduce the amount to be expended in improvements to £1000. The amendment was, however, agreed to without a division.

On the third reading a warm debate took place, the most remarkable feature of which was that the Attorney-General (Mr. J. Denistoun Wood) spoke against the bill, intimating that he did not concur in its main principles, and that he would only vote for it "because it would have the effect of putting an end to the occupation of a frothy and empty-headed race of demagogues, and the people would find that they had been deceived." Mr. Gray warmly took the Attorney-General to task for his duplicity, reminding him that his cynical remarks against liberal land legislation that evening were fully answered by his own manifesto to the electors of the Ovens, through whose favor he held his scat. The third reading was carried by a majority of 44.

page 45

The Land Bill was presented to the Council on 2nd May, 1860, by a deputation from the Assembly, consisting of Messrs. Service, McCulloch, Heales, Bailey, Caldwell, Sergeant. Mr. Fellows took charge of the Bill in the Council, and moved its second reading on 18th May. Messrs. Bennett, Hervey, Mitchell, A. Fraser, Power and Black were the principal opponents. The grounds of objections were, that the Bill tendered to create feelings of animosity between different classes; that it gave undue importance to a particular interest; that it fixed a uniform price of £1 per acre, and abolished the system of sale of land by open competition, which was the best and fairest; that it provided for deferred payments which could never be enforced, because persons when they once occupied lands on lease could never be dispossessed for non-payment of rent; that in the matter of commonages, too much power of an absolutely despotic character was given to the executive; that the power to proclaim fanners' commons might be exercised to ruin the squatting interests; that the Bill was not calculated to facilitate agricultural settlement, because a man could not borrow money on tin; security of his land for the purpose of cultivation. The second reading was carried without a division, on the understanding that numerous amendments would be discussed in committee.

Clause 13 was what was known as the selection clause, and was considered the essence of the Bill. It enacted that all country lands should be sold by selection at the uniform price of £1 per acre. In committee, on 29th May, the first amendment moved was by Mr. Bennett to the effect that all the words in the clause after "sold" be struck out, with a view to the insertion of the words "as hereinafter provided for." This amendment was carried by 16 to 11 votes. Mr. Strachan then moved the elision of the provisions in clause 14, that each allotment should be divided into four sub-divisions, which was also carried by a majority of 7. The first of these amendments was directed against selection at £1 per acre, and the second against the leasing of unpurchased subdivisions.

Next day the Ministry tendered their resignations to the Governor. After the rejection of two important provisions of their Land Bill, they thought it would be a waste of time to proceed further with it, and they consequently resolved to retire and throw the responsibility of the situation on Mr. Bennett and his friends in the; Council who had brought about the crisis. In the Council the resignation of the Ministry was severely condemned by Mr. Bennett and others who voted for the amendments. They were charged with unjustifiably deserting their post, and thereby attempting to coerce the House and prevent it exercising its undoubted functions.

page 46

The Convention party in the Assembly were extremely jubilant and enthusiastically supported the Ministry in the bold and determined stand assumed, and they were urged not to surrender one jot or tittle of the Bill. Lukewarm friends and determined foes of the Bill, however, censured the Government for having prematurely brought both Houses into collision, and ridiculed the possibility of passing "the whole Bill and nothing but the Bill." The Chief Secretary, however, sprang into an unwonted popularity in the country, and his position was rendered all the more secure, and his sincerity more readily believed in, from the fact that it was known that a disagreement had taken place between himself and his Attorney-General respecting the proper course to be adopted. It was well-known that Mr. Wood was not a friend of land reform, and his advice and conduct were regarded with suspicion. Both Houses adjourned for a week.

In the interval, Sir Henry Barkley, who had not accepted Mr. Nicholson's resignation, had interviews with several leading public men, and discussed the probabilities of forming a new Ministry and of the Council passing the Land Bill. He looked upon the suggestion that Mr. Bennett should be asked to form an administration' as tantamount to an abandonment of the old Bill which the Assembly had spent so much time in discussing, and passed by a large majority. Furthermore, he arrived at the conclusion, that in the face of that majority, it would be impossible that any administration which Mr. Bennett might form could carry on the business of the country. The result of his enquiries led him to believe that there was a disposition on the part of several of those who voted against the Bill in the Council, to submit to such modifications of their amendments as would make it acceptable to the Assembly. "Under these circumstances," said his Excellency, in a memorandum addressed to Mr. Nicholson, "I trust that on viewing the whole position of affairs, and seeing the loss of time, exasperation of feeling, and the serious injury in many ways to the community which must ensue from any attempt at a change of Ministry at the present juncture, you will consent once more to resume charge of the Land Bill, so as to afford an opportunity of learning what the views of the Legislative Council really are, by how many members they are shared, and in what shape the measure will be finally suffered to leave that House."

Mr. Nicholson complied with the request of the Governor, and withdrew his resignation, and thus a crisis was averted by the friendly intervention of the representative of the Crown. The popular party was exasperated beyond measure. When the announcement of the withdrawal of the resignation was made in the Assembly, Mr. Duffy, Mr. Gray, Mr. Barton, Mr. J. Woods, and Mr. Don charged the Chief Secretary with having compromised the House and page 47 betrayed the country by his want of firmness and his change of front, Mr. Nicholson and Mr. Service denied that the Government had made any compromise, and declared that they would not give up one of the main principles of their measure—uniform price, leasing, and commonage. They believed that the Council would yield those parts of the Bill, and hinted at a conference as the constitutional method of arriving at a decision on disputed points. A motion for the adjournment of the House was negatived, but the Chief Secretary sustained a loss of prestige by this sudden change of tactics, which he never recovered, and from that time his administration, which lived on the toleration of the reform party, was doomed.

The Council then resumed consideration of the Land Bill in committee. Amendments were carried to the following effect:—1. That the allotments to be selected should be divided into two equal portions instead of four. 2. That the Government should cause to be surveyed within 12 months 1,000,000 acres only, instead of 4,000,000 acres. 3. That unsold lands within one mile of land already alienated should be declared special lands instead of half a mile. 4. That in case more than one application for an allotment or sub-division were sent in, the same should be sold by auction, at which auction the applicants for such allotment or sub-division, and no other, should be allowed to bid—the land to go to the highest bidder. 5. That the purchaser of part of an allotment should be entitled to a grazing license for the remaining sub-division for a period of three years, at the rate of one farthing per acre—substituted for the Agricultural leasing clauses. 6. That improvements at a rate of £1 per acre of purchased land should not be compulsory. 7. That the land held on license should be used only for pastoral purposes. 8. Penalties for selling or mortgaging purchased country lands within one year after purchase were struck out. The tax of 5s. per acre on unimproved lands was also struck out. 9. The farmers' common clauses were struck out. 10. On the motion of Mr. Fellows, new clauses were inserted, stating that nothing was to prevent the issue of "licenses to depasture on Crown Lands in the manner heretofore used, but such licenses shall, until it is otherwise provided by Parliament, continue to be issued in the same manner and form as if this Act had not been passed;" that when any substantial building or other improvement had been constructed, or any land occupied under license, and such Crown Lands were sold, a valuation should be placed on the building or improvement in favor of the licensed occupiers. Other material amendments, about 200 in all, were made remodelling the measure, so that its original form could hardly be identified. The Bill was read a third time and returned to the Assembly on 28th June.

page 48

Whilst the Council was amending the bill, the question was raised as to whether they were constitutionally entitled to do so, inasmuch as it was contended the Land Bill imposed "a rent, rate, tax, or duty," and thus came within the limitation of section 56 of the Constitution Act. Mr. Nicholson asked the Attorney-General to advise the Cabinet on the point, and Mr. Wood gave an opinion, one of the most extraordinary, perhaps, ever given by a law-officer, in Victoria, to the effect that the Council could not only amend the Land Bill but could amend the Appropriation Bill a. In other words, Mr. Wood considered that the Council were only prevented from amending a bill, which both imposed a tax, and appropriated that tax to a specific purpose. For the redeeming honor and credit of the Nicholson Ministry, it is but fair to state that this monstrous doctrine was not sanctioned by the Solicitor-General, Mr. James F. Martley, one of the ablest lawyers who ever graced the bar of this country. Mr. Martley whilst entertaining the belief that the Council could amend the Land Bill, because it was not a bill whose primary and specific object was "for imposing a rent, rate, tax or impost," merely incidentally doing so, did not think that a bill in order to come within section 56, should both appropriate, reserve and impose taxes; he based his opinions on the distinction between bills "for appropriating" and "for imposing," and "bills appropriating" and "bills imposing." A money bill, he argued, was for appropriating revenue, or for imposing a tax; whilst the Land Bill did neither of these things; the rent and price reserved by that bill was an equivalent for land demised from the Crown, and was not a rent within the meaning of the section.

On the motion that the amendments of the Council be taken into consideration, a stormy debate; took place. Special objection was taken by Mr. Gray to the new clauses introduced, which, he said, were intended to perpetuate the squatters' titles. The hon. member bitterly accused the Attorney-General of treachery; he asserted that those clauses had been introduced in the Council at the instigation of the chief law officer of the Ministry. An amendment moved by Mr. Duffy, that the House disagree with the amendments of the Council, was negatived by a majority of 14.

The House rejected the Council's amendments substituting limited auction for the lot system; rejected the sub-division of allotments into two parts; rejected the Council's amendment omitting Is. 6d. for every acre leased in a sub-division, and substituting one farthing per acre for three years, and in lieu thereof inserted one shilling per acre, and restored the pre-emptive right of purchasing at the end of seven years, consenting to the leased land being used for pastoral purposes only; disagreed with

a Hansard, vol. 6, p. 1441.

page 49 the Council in striking out the compulsory improvement clauses; adopted the compensation for improvement clause; rejected the clause relating to the issue of licenses as heretofore. Several of the Council's amendments altering the machinery of the bill were accepted, and the bill was returned to that chamber.

The Council decided to insist upon its principal amendments and the bill was again returned to the Assembly. These negotiations terminated in a conference between the two Houses, at which a compromise was arrived at. The result was that on 18th September, 1860 the amended and severely mutilated bill became law.

Some of the details of this prolonged struggle have been given in order to show the difficulties which the Land Reformers of 1860 had to contend with, and to explain how far the Land Legislation of that period failed to come up to the programme of the party. The Act was an affair of shreds and patches, almost completely destitute of sound principle, and it proved a most deplorable failure accordingly. There were few traces of identity between the bill as originally introduced, and the Act which became law.