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The Pamphlet Collection of Sir Robert Stout: Volume 30

Chapter V. The Land Acts of 1865 and 1869

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Chapter V. The Land Acts of 1865 and 1869.

The Duffy Land Act was described by its author as a compromise, the result of a compact between the squatters on one side and intending agricultural settlers on the other. The squatters received nine years secure tenure with compensation for improvements; the farmers were to have facilities for selecting agricultural land. The powerful moneyed class, however, had the lion's share of the public spoil, the fruits of this bargain. When the attention of the country was fairly directed to the scandalous immorality by which the proprietors of large estates were adding square mile after square mile to their broad acres an universal demand, which no Government could resist, arose for an amendment of the Act. Accordingly in February, 1863, Mr. Duffy brought in an amending bill, but it did not reach its second reading, owing to the defeat of the O'Shanassy Ministry on the cognate question of the assessment of stock. Under the Land Act the rent of a run was at the rate of Is. 6d. per sheep and 2s. per head of cattle which it was capable of carrying; and the grazing capabilities of the run were determined by arbitration. The Ministry expected to obtain about £500,000 per year as rent of runs. But when the awards were made by the arbitrators it turned out that the revenue from this source would not nearly come up to the estimate. The Government then brought down a resolution for the purpose of reviving the system of assessment and license fees which previously prevailed, and under which the pastoral tenants paid rent, not on the grazing capabilities of their runs, but on stock actually depastured thereon. The resolution was negatived by a majority of 16, and Mr. O'Shanassy and his colleagues resigned. Mr. M'Culloch then formed his first Government, consisting of himself, Chief Secretary; Mr. Higinbotham, Attorney-General; Mr. Richard Heales, Commissioner of Lands; Mr. Verdon, Treasurer; Mr. Francis, Commissioner of Trade and Customs; Mr. Grant, Commissioner of Railways; Mr. Sullivan, Minister of Mines; Mr. Hervey (Legislative Council), Commissioner of Public Works. One of the first acts of the new Ministry was to introduce a Bill for the page 69 amendment of the Land Legislation of 1862. Its principal provisions were:—1. That selectors could apply for land in blocks of from 40 to 640 acres each at the price of 20s. per acre, and, in the case of plurality of application for one allotment in the same day, priority was determined by lot. 2. The selector paid down 5s. per acre of the purchase money, and the balance by annual instalments of 2s. 6d. per acre, the mortgaging or selling of selections being prohibited. 3. The conditions of selection were cultivation and residence. If these conditions were not complied with during the six years allowed for payment of the balance of purchase money the State could take back the land. 4. Lands thrown open for selection could not be sold by auction till after the lapse of three years from proclamation. 5. Selectors on fencing in their allotment were to have all the rights of owners against trespassers. 6. No infant or married woman could select. 7. Arbitrators appointed to determine the grazing capabilities of runs were empowered to go below the assessment of 1861, and power was given to the individual and to the Government to appeal to the Supreme Court to review any arbitration which was "fraudulent, erroneous, and unjust." The Bill was, however, rejected by the Legislative Council by a majority of six.

In February, 1867, Mr Heales brought in a second Land Bill, dealing with pastoral and agricultural lands. There were several new principles incorporated in this Bill which are entitled to notice. In the first place it proposed a system of selection by leasing instead of by conditional sale and it reduced the size of agricultural allotments. A person could apply for a lease of 320 acres in a proclaimed area on which he had to pay a rent of 1s. 6d. per acre for five years. At the end of that time if he had complied, with the conditions of occupancy he could get the crown grant at the upset price of £1 per acre. The conditions were:—1. That the land should be fenced in within one year after selection. 2. That the selector resided on the land for three years. 3. That the selector should not mortgage or assign his lease. 4. The Minister of Lands should be satisfied by proof that the settler had complied with, and had not violated any conditions before his right to the freehold was admitted. The Bill also proposed to enable the Government to grant 10 years leases of grazing farms, containing four blocks of a mile square each—2560 acres. This Bill was passed by the Assembly but was thrown out by the Council. Parliament was shortly afterwards dissolved. The cardinal questions submitted to the country were the revision of the tariff and the amendment of the Land Act of 1862.

Mr. James Macpherson Grant, who became Minister of Lands on the retirement and death of Mr. Richard Heales, unfolded the Ministerial Land scheme on the occasion of addressing his constituents page 70 at Inglewood. "I have adopted in this scheme," he said, "that is propounded on behalf of the Government, this principle of selection—that bona fide settlement should precede alienation of any description; that not an acre fit for agricultural purposes shall be alienated until the person who selects it shall have given evidence to the State; and the best evidence to the State, that he is a bona fide selector, by the improvement that he puts upon his allotments." "I am not a theoriser or a philosopher," the hon. gentleman went on to say, "but I pretend to be what I am, a practical man, and I endeavour, when I find a system which has produced good results, to extend and improve it." Ministers were returned with a substantial working majority, and 011 7th December, 1864, Mr. Grant moved the second reading of their Land Bill. It will be here convenient to consider the various aspects of the land question which at this time commanded the attention of Parliament.

At the passing of the Nicholson Act about 3,944,139 acres of Victorian land had been alienated, and at the passing of the Duffy Act, that number had been increased to 4,896,044 acres—in round numbers. Under the Nicholson Act 4814 selections were granted, comprising an area of 410,600 acres of purchased land, and 1807 sub-divisions were rented at Is. per acre per annum, comprising an area of 147,172 acres. Under the Duffy Act, 8008 ordinary selections were made, comprising an area of 1,363,243 acres. In 1862, when the Duffy Act became law, 651 pastoral tenants were set down in returns compiled by the Lands department as owners of 1,934,300 acres of pastoral lands on which a rebate of assessment was claimed. In addition to this it was estimated that 300,000 acres had been purchased by pastoral tenants whose runs had been absorbed by the pressure of gold-fields population, and this land was not included in the returns referred to. Another return prepared by the Lands department showed that 110 pastoral tenants had selected 932,000 acres under the Duffy Act. In other words, of about one and a quarter million acres sold under that enactment, nearly a million went to 110 persons. This made up an approximate total of over 3,000,000 acres out of 6,000,000 acres alienated which were taken up by large landed proprietors up to December, 1864 a. Such were the results of sales by auction under Imperial legislation, of limited auction under the Act of 1860, and of selection at an uniform price combined with the lot system under the Act of 1862. The average price of country lands sold by auction up to that date was only £1 7s. 6d per acre, and yet the advocates of the auction system clung tenaciously to it as the only sound principle according to which land should be dealt with. Let there be free trade in land, they urged; let land be treated as every other article of commerce, let it go to

a Returns placed before the Assembly by Mr. Grant. Hansard vol 11, p. 53.

page 71 the highest bidder. On the other hand the Liberal party contended that the price of land afforded no adequate consideration equal to the settlement of people on the soil. Suppose, they asked, if instead of selling 3,000,000 acres to six or seven hundred persons at £1 7s. 6d. per acre that land had fallen into the hands of the 600,000 persons at £1 per acre, would not that have been a result infinitely more advantageous to the State for all time to come? How then had not satisfactory settlement been secured under the measures of 1860 and 1862, which pretended to promote and facilitate that progressive policy? Because, the reply was, the conditions under which land was selected for cultivation, and the tests of the bona fide character of a selector were not sufficiently stringent to battle against the superior power of money coupled with fraud, perjury, and every form of cunning. It was to remedy these defects that Mr. Grant now brought in his amending Bill.

The Bill proposed that there should be free selection after survey in proclaimed agricultural areas, and that selectors should be entitled to take up allotments of from 40 to 640 acres in extent. Each allotment was to be held on lease for five years at 2s. per acre per annum rent. Applications for leases had to be made in person to a land officer. On the day appointed for receiving applications for leases, if two or more applicants attended the land office, the order of application was determined by lot. Every lease when granted contained covenants:—1. For payment of rent, half yearly, in advance. 2. For non-assignment of lease within one year of its commencement, and not then, unless certain improvements had been carried out. 3. For personal residence during three years after which he could buy at £1 per acre, without competition. 4. For the carrying out, within two years, of improvements to the value of £1 per acre of the leased land. 5. If a lessee effected, within one year, these improvements—consisting of clearing, fencing, draining, building, making reservoirs, &c.,—he could have the improvements valued and the allotment put up to auction at an upset price of £1 per acre. No person was allowed, within any period of twelve months, to become lessee, sub-lessee, or assignee of more than 640 acres. No infant or married woman living with her husband could become the lessee, sub-lessee, or assignee of an allotment, nor could any person lease land as the agent, servant, or trustee, of another. One important clause, known afterwards as the 42nd, gave the Governor power to grant licenses for a period of one year, which entitled the holders thereof respectively to reside on or cultivate any land, on any gold-field, or land adjacent thereto, not exceeding 20 acres in extent, subject to payment of such fee and on such terms and conditions as should be approved of by the Governor. Another clause appropriated land revenue towards assisted immigration. Forfeited land and land opened for selection and not selected for page 72 12 months could be sold by auction to the extent of 400,000 acres per annum. Lessees were to have all the right of owners, except the right of impounding, and they obtained that as soon as they fenced their allotments.

There are several features in the outlines of the Bill above sketched which deserve attention, as they contained the germs of very important principles of land legislation, which afterwards developed into full bloom. In the first place, it will be seen, that the Bill provided for residental and non-residental selectors. If a man resided on his selection for three years and improved it to the value of £1 per acre, he could purchase it at the upset price of £1 per acre at any time after that during the currency of the lease. To enable professional men, tradesmen and miners who could not reside on country lands to take up allotments it was provided that if a lessee made improvements to the value of £1 per acre within two years of the commencement of the lease he could then have his improvements valued and the land put up to auction at the upset price of £1 per acre. If he did not become the purchaser he received the value of the improvements. A new mode of determining the order and priority of selection within an agricultural area was introduced by this Bill. Under the Dully Land Act if there were a number of applicants for one allotment, priority was determined by lot. The consequence was that the moment a land office was open for the reception of applications it was rushed by an excited crowd; the strongest got in first and the weakest went to the wall. Dummies also applied for one allotment, so as to out-number the bona fide applicant and reduce his chances in the ballot box. When Mr. Heales second Land Bill was before the House (25th February 1865) Mr Berry suggested that these evils might be remedied by a simple expedient. Let all the selectors who made applications at one office on the same day be placed on an equal footing—each having a chance of obtaining the right of first selecting any allotment in the whole of an agricultural area thrown open for selection. By this means the order of selection generally, and not the right to any particular allotment, would be fixed by lot. By this means also, it would be according to the doctrine of probabilities almost impossible for any organization to succeed in taking up a large number of contiguous allotments for the benefit of a particular squatter or land speculator a. Thus the man who obtained the first chance would be entitled to examine the plans first and select which allotment he wanted, whilst the other applicants would select in the order determined by the drawing of lots. This was the plan adopted and incorporated in the Land Bill now under consideration. The 42nd clause was evidently founded on the principle of the occupation licenses. It was a short

a Hansard, vol. 10 p. 140.

page 73 clause of a few lines surrounded by no conditions, giving few legal rights, enabling no resort to the Supreme Court, to justices, or arbitrators, yet it contained, within itself, the seed plot of a power not then fully understood. That clause, simple though despotic as it undoubtedly was, conferred on the Minister of Lands a power as great as that attempted to be exercised under the occupation licenses, and it proved the salvation of the Act of 1865 a. It was suggested to Mr. Higinbotham by a public servant at Day lesford, who informed the Attorney-General, that a number of persons were occupying Crown Lands on and near goldfields which they would be glad to pay for provided they could obtain security of tenure. Mr. Higinbotham placed the proposal before Mr. Heales, and it was adopted by his successor, Mr. Grant.

The gist of the Bill was the provision relating to probationary leases. The rent paid during the currency of a lease was not to go towards the purchase money. A selector was to remain a Crown tenant for a certain time, during which he had to show, by residence and improvement, that he was not a dummy, but occupied the land for his own use and benefit. Objection was raised to this proposal by Mr. O'Shanassy and others, who used arguments which are generally raked up in opposition to every scheme for the preservation and protection of the lands of the State. It was contended that the State would not be able to collect the rents; that causes would arise, such as bad harvests, sickness and disaster, which would prevent the punctual payment of rent, and then political influence would be brought to bear, and the rents would be waived or made part of the purchase money; or that if the rents were regularly paid during the five years, many farmers would make use of their leases to exhaust the soil, and then lease the land. To this it was answered that the rents or instalments of purchase money were regularly paid under the Nicholson and Duffy Acts, and that there would be no more difficulty experienced in securing the payment of rent than payment of successive instalments of purchase money. The rents payable under the occupation licenses were also collected without any practical difficulty. To say that tenants would exhaust the soil which they expected to buy was contradictory of the results of human experience. As regards the possibility of agitations for the conversion of rent into purchase money, the success of such a movement would depend upon the will of the majority of the people and the honesty of the legislature, and there was no reason to believe that the majority of the population would allow the Legislature to violate the terms of a solemn contract dealing with the property of the state.

The Duffy Land Act set apart 10,000,000 acres for agricultural settlement, and none of the land comprised within this area so re-

a Mr. Higinbotham on the Land Hill of 1869. Hansard, n. vol. S, p. 986.

page 74 served could be sold by auction until after it had been proclaimed and open for selection for three years. That Act also rendered it imperative that at least 2,000,000 acres should be always kept open for selection in agricultural areas. But by Mr. Grant's Bill, these reservations and distinctions of land were abolished. Any of the land delineated on the map mentioned in the 12th section of the Act of 1862 could be sold by auction after the lapse of 12 months from the passing of the amending Act. So that under the law as proposed by this Bill the best part of the country could, at the discretion of the Minister, be sold by auction. The Bill truly provided that persons should be able to select land in proclaimed areas, but it failed to state to what extent land would have to be proclaimed as open to agricultural selection. The quantity of land which might be sold by auction was practically unlimited. "In principle," said Mr. Gillies, member for Ballarat West, "it is an auction bill, and selection is its incident" a. "The measure," said Mr. Berry, "is simply auction in disguise" b. It was asked—How was this Bill consistent with Mr. Grant's speech at Inglewood, that not an acre would be alienated until bona fide evidence was given that the land would be settled and cultivated? But this pre-disposition in favor of the auction system was not the only characteristic of the Bill which favored the squatting party. Auction was to be applied universally inside and outside 10,000,000 acres; at any rate, that area was not absolutely set apart for selection; to that extent the squatting tenure was rendered more secure. The squatters then occupied 32,231,000 acres, and paid £228,000 rent per annum, or £55,000 less then what they paid under the system of assessment. The Duffy Act failed to secure a rental equivalent to the estate or the security of title given to the squatters. The McCulloch Ministry did not ask the House to revise the system of valuation of runs, because they said it would amount to repudiation to depart from the terms of the settlement made by the Act of 1862. In reply to this excuse for not grappling with the question, Ministers were taunted with having been placed and kept in power by the squatters, who having made use of Mr Duffy, coalesced against him when he proposed to re-adjust the rent on runs. Besides, it was urged with unanswerable force, if the Land Act, 1862, was passed, as it was said to have been, by bribery and corruption, it ought not now to be flung in the hon. members' faces to prevent them from securing a fair equivalent for the public teritory.
The Bill was read a second time without a division. On the motion that the Speaker leave the chair, howerer, Mr. John M'Gregor, member for Rodney, moved—"That inasmuch as the means provided by the present Land Act have failed in obtaining a fair and sufficient rental for the pastoral lands of the Crown, and as

a Hansard, vol. 11, p. 61.

b Id p. 70.

page 75 that measure distinctly provides that no occupier of land for pastoral purposes shall, by reason of its being hereafter repealed or altered, be entitled to any compensation, this House is of opinion that it is just and expedient that provision should at once be made for securing to the state the payment of an increased and adequate return for the use of the public lands for pastoral purposes." The amendment was negatived by a majority of 27.

Some important amendments in the Bill were made in committee. The term of five years for leases was extended to seven years. The period of one year within which no assignment of a lease should be allowed was extended to three years. In the clause allowing non-residental selectors, who had improved their allotments to the extent of £1 per acre, to apply to have the land put up to auction with a valuation for improvements after the expiration of a year from the beginning of the lease, the term of three years was substituted for one year. The clause relating to the sale of forfeited and un-selected land was amended so as to allow such land to be open for selection for three years instead of a year, and reducing the amount of land that could be sold by auction "from 400,000 to 200,000 per year. The clause which was complained of as abolishing the reservation of the 10,000,000 acres delineated in the map, mentioned in the 12th section of the Duffy Act, was amended so as to provide that none of those lands except those reserved for towns and villages should be sold by auction unless such lands as had been proclaimed open for selection on lease for a period of three years, save in special cases.

The Bill passed through the Assembly, and its second reading in the Council was carried without a division. Several amendments were made, to which the Assembly refused to assent, and a conference was held. The points in dispute were settled as follows:—1. The Council agreed not to insist on its amendment that land unselected or unleased within one year "after proclamation should be put up for sale by auction, the original term of three being retained. 2. The Council gave way to the question of fencing roads, and consented to the provisions against such fencing being made applicable to surveyed roads. 3. The Assembly agreed that compensation should be given for entry on lands sold under the Act of 1862 by the licensees of dams, races, and reservoirs; that no members of Borough or Shire Councils, or Road Boards, should be managers of commons, and that section 47 of the Act of 1862, known as the "novel industries" clause should be repealed.

The principle of probationary leases embodied in the Land Act of 1865 appeared to be a sound one. It was founded on the desire of, and necessity for, the State as landlord, to keep a hold on the selector and to fully control him, and to see that he performed the conditions prescribed by law before giving him a Crown grant. It page 76 is a melancholy duty to relate that wise, fair, and apparently effectual as this probationary condition seemed, it was not able to defeat the fraudulent schemes of those determined to defeat and degrade the law. The skilful wire-pullers of the dummy system discovered a means of turning the amended law to their own advantage. They caused their hirelings to select land as hitherto, and fulfil the conditions in a perfunctory manner; meanwhile, they either secured secret transfers, to become operative at the end of the probationary period, or manoeuvred to get the selection forfeited, and sold by auction. The control over the great body of selectors which it was expected the minister would be able to exercise was more fictitious than real, owing to want of sufficient discretionary and inquisitorial power. Thus, whilst the new system was evaded by determined opponents, its penal clauses pressed heavily on bona fide settlers who had neither motive nor capital to avoid fulfilling its conditions. While some political prophets were predicting with indignation what actually took place, that selectors would in time, begin to agitate that the rent should go towards the purchase money, they overlooked the circumstance, that by the Act of 1865, the rent of 2s. per acre for three years when added to the purchase money, £1 per acre, actually raised the price of land to .£1 6s. per acre. They further neglected to consider the fact, that, whilst a farmer had to pay 2s. per acre rent to the State and carry out valuable and expensive improvements, a pastoral tenant was allowed to occupy Crown Lands at a rental of 1¼d. per acre without being required to improve them. Again, by the Land Acts of 1860, and 1862, under which the most valuable land in the country was taken up, the periodic payments were not treated as rent, but part of the purchase money. So it followed that under the Legislation of 1865, an agriculturalist had to pay 6s. per acre extra for land inferior to that which could have been selected under the old law. In truth opinions were for a long time divided as to what would be the practical result of Mr. Grant's first Act. The circumstances under which the McCulloch Ministry obtained office gave rise to the suspicions that their Land Bill was framed pre-eminently in the interest of the squatters. The large power of sale by auction claimed by the Bill seemed to give color to the suspicions. As against that, were the re-iterated assertions of the Minister of Lands that not an acre of land should be alienated until the bona fide intentions of applicants were evidenced by settlement. It was not until the Act came into operation that the dubious and dangerous nature of some of its details became apparent.

It was found that the conditions of, and impediments to, selection, were sufficiently exacting and stringent to press heavily upon men of small means, but that they did not extinguish the dummy system. The squatters, by the aid of dummies, were still able to page 77 carry on their systematic frauds. In some districts the general selection clauses of the Act were productive of a vast amount of good, but in other districts thousands of acres opened for selection during the first year of the operation of the Act, fell into the hands of squatting proprietors. The obstacles in the way of selection were it was asserted, considerably increased by the dilatory conduct of the Minister of Lands in not surveying, and proclaiming for selection, the quantity of land directed to be so open by the Act. Section 10 of the Act provided that not less than 4,000,000 acres of laud should be open for selection within three months after the Act became law, and that 2,000,000 acres should be constantly kept open. This provision was completely ignored, notwithstanding, that Parliament voted £2,000 in order to expedite the surveys. Many of the so called agricultural areas were mere sham areas, consisting only of nine or ten allotments. Selectors travelled about the country, spending their money in vain, seeking for land. Under the Act of 1862, no land within the 10,000,000 acres area set apart for the agricultural purposes could be sold by auction until they had been opened for selection for at least three years. After the passing of Mr. Grant's Act, land which had been proclaimed open for selection under the Act of 1862, but which had not been selected was immediately closed against selection and sold by auction. Thousands of acres were selected by dummies and left unimproved, for the very purpose of inducing the Minister to forfeit the selections and sell them by auction and in numerous cases this dodge was eminently successful. The conditions of probationary leases were as severe upon bona fide settlers as they were favorable to dummies, whose object was to secure the forfeiture and sale of selections by auction. These were some of the early criticisms passed upon the Act, and Mr. Grant's administration of it. His defence, if not quite satisfactory, suggests at any rate the peculiar difficulties of the situation and its problem. When the first selections took place at Hamilton and Camperdown it was found that the land officers in their endeavours to comply with the provisions of the Act, had unwittingly thrown open the whole of certain runs. He then resolved, subject to the approval of the Assembly, to exercise his discretion as to what portion of the public territory should be thrown open for selection. Had he carried out the strict letter of the law by proclaiming 4,000,000 within three months he would have ruined hundreds of squatters, and he considered that the good sense and feeling of the community suggested that it was improper this should be done.

What is to be specially noted however, is the fact, that notwithstanding the delicate consideration shown by the Minister of Lands to the interests of the pastoral tenants in his neglect to carry out the commands of an Act of Parliament, these gentlemen did not page 78 show a corresponding respect to the law of the country, or the terms of the compact, by which they obtained their nine years leases. The land racket commenced under the Duffy Act was continued with aggravated energy. Persons, drafted from nearly every class of the population, were yarded up as it were for the purpose of acting as dummies. Taverns were kept open for the accomodation of gangs of dummies; stage coaches were with unblushing effrontery engaged from day to day to carry the dummies from sale to sale. Here, again, comes in another explanation by Mr. Grant, to account for the paucity of allotments thrown open for selection. He was compelled, he said, to withdraw from selection a large number of proclaimed areas when he found that the provisions of the Act did not protect bona fide settlers.

Two clauses of this Act which became potent agents for the distribution and loss of the public estate deserve special attention in this sad record of the embezzlement of the lands of the state—the solicitors' certificates, and volunteers' certificates, are now referred to. By the Land Act of 1862, any person seised in law or equity. of lands in fee simple within the colony purchased prior to the passing of the Act of 1860, was entitled to select and lease an allotment of Crown Lands in any agricultural area, and hold the same under lease on the same terms and in the same manner as ordinary selectors, but the area which such an owner could select and lease, was not to exceed the extent of land of which he was seised, and in no case could it exceed 320 acres. This clause, known as Cummins' clause, was passed in order to confer certain advantages upon people who had, prior to 1860, purchased land at high prices and without deferred payments. Certificates, enabling holders of land coming within the meaning and qualification of the clause to exercise this privilege, could be obtained from the Crown Solicitor, but it was obligatory on them to apply for the certificates and use them within 12 months from the passing of the Act. This provision, which was said to be justifiable on reasonable grounds, and was supported by Mr. Wilson Gray, who thought it might assist bona fide settlement, was eventually converted into a cunningly devised scheme for the aggregation of squatting properties. When the real effect, and possible use, of this clause became evident to the world, it was boldly asserted that it had been placed in the Act as nothing more nor less than a bribe to the landed proprietors to induce them to help the squatters to obtain a good Land Act, and this statement was not successfully contradicted. The jobbery and corruption which took place in connection with these certificates became a notorious public scandal. It must be observed that there was a limit of time within which these land certificates could be applied for and used. Owing to the sudden suspension of selection under the Duffy Act, many scores of persons entitled to certificates did not apply for them, page 79 whilst many who had obtained them, did not, and could not select within the time limited. Mr. Richard Heales, whilst in office, denounced the unused certificates, and said they were not worth the paper on which they were written. This brought them into general disrepute as securities. But the Land Act of 1865 re-enacted Cummins' clause in a modified form. Section 7 provided that any person who had, before the passing of this Act, became entitled, under the Land Act of 1862, to select or purchase land within twelve months from the date of the Act, and the executors, administrators, and assigns of such person might, subject to all the limitations, conditions, restrictions, and obligations attached by the Act to such selection or purchase, exercise the right of selection or purchase, upon making application to the Board of Land and Works at any time within twelve months after the passing of the amending Act. A stringent provision was added giving the Board of Land and Works power to make regulations for the purpose of enforcing the conditions and obligations attached to selection, and of preventing the violation or evasion of any of the provisions of the Act of 1862. These certificates were assignable, and they soon became the subjects of an enormous amount of traffic. The squatters bought up every available certificate at prices ranging from 5s. per acre represented in each certificate. A legal difficulty of an unexpected character arose which somewhat disconcerted the proceedings of the pastoral tenants. Were persons who selected land by virtue of certificates in the same positions as regards rights and duties as ordinary selectors under the Duffy Act? If so they would have to comply with the conditions of occupancy prescribed by section 36 of that Act.—" Every selector of an allotment, as aforesaid, within one year after he becomes a selector, shall cultivate at least one acre out of every ten acres thereof, or shall erect thereon a habitable dwelling, or shall enclose such allotment with a substantial fence." By sec. 126, a selector who did not, within one year, either .cultivate, or build a dwelling, or fence in his allotment, was liable to a penalty of 5s. per acre. It was generally admitted that owing either to design or accident, the improvement clauses of the Duffy Act could not be enforced as against the assigns of original selectors, and seeing that certificates could be assigned, the grave question was raised, whether the conditions could be enforced against the assigns of certificate holders. The proviso referred to in the 7th clause of the Act of 1865, enabled the Government to insert conditions in leases to be granted to certificate holders and their assigns, for the purpose of preventing evasions and violations of the Act of 1862. Among other things, the Government inserted a covenant in these leases by which the lessee undertook "to cultivate one acre out of every ten, or erect a habitable dwelling, or enclose with a substantial fence". In one case an ap- page 80 plicant for a lease refused to subscribe to this covenant, and on the Government declining to issue the lease without it, he commenced a suit against the Crown to compel the issue of the lease. The Full Court, reversing the decision of the primary judge, decided that the conditions which the plaintiff had been asked to sign were wise and fair, just to the state, and not unjust to the selector, and perfectly legal a. This decision proved a great blow to the holders of certificate selections, as it compelled them to carry out the condition of improvement which they were anxious to escape. A bill was then brought into the Assembly by Mr. R. B. Tucker, of Kyneton, to relieve them from the awkward dilemma. It was entitled "a bill to quiet the titles of selectors of land under certificates." From the outset it was plain that this bill was not introduced in the interests of the original holders of certificates. They had sold out long previously at reduced prices; the squatters and money lenders had got hold of bushels of these certificates which they wanted to convert into leasehold, or freehold security on easy terms. Whilst the Bill was under discussion, the lobbies of the House were invaded by the minions and agents of the squatters, and bank managers were actively engaged in beating up recruits to vote for it. Notwithstanding the earnest and indignant protests of Mr. Grant and Mr. Higinbotham, the second reading was carried by a majority of two. The Bill, however, was lost in committee, and subsequently, Mr. Charles Edwin Jones was expelled the House for having accepted a bribe to vote for it. The rebuff thus received by the certificate system, no doubt, saved many thousands of valuable acres to the country. As it was no less than 3,841 selections comprising 616,415 acres were made under the provisions of the Act of 1862, and 1865, relating to solicitors' certificates.

As an illustration of the chicanery and fraud which squatters practised to defeat the law and rob the state of its land, some of the expedients adopted may be mentioned. In order to comply with the condition of fencing, the pastoral tenant would enclose large tracts of Crown lands with very suspicious structures, and within these tracts they would select on certificates. These so-called fences were then claimed and set down as a compliance with the requirements of the certificate leases, although as a matter of fact, they did not touch the boundaries of the selected allotment. Yet it was said that as the fences included these allotments, together with Crown lands, therefore the selected allotments were fenced. In cases where these fences were disallowed or were inconvenient to adopt, the pastoral tenant erected "a habitable dwelling" upon the allotment of the following description:—He had a small movable house, made of a light deal frame, covered with galvanised iron, nine feet long, seven feet wide, and six feet high to the wall

a Kettle v. Queen, 3 Wyatt, Webb and A' Becket Reports.

page 81 plates, formed in six pieces, consisting of two sides and two ends (with gables), and two sides of the roof. Taken to pieces, it was carried on a dray to the allotment selected. Four blocks were sunk in the ground about eight or nine inches, and standing from three to five inches out of the ground. The sides and ends of the house were quickly fixed on the blocks, and fastened together by screws; the two portions of the roof were affixed in like manner; a small iron fire-place screwed on, a nail driven through the footplates into each block, and the building was then pronounced by the builders complete. It had a door, and an aperture covered with calico, for a window. It took about twenty minutes to erect, was at once taken down, put on the dray, and removed to another allotment to undergo the same operation. The builders made notes of the erection of this "habitable dwelling" upon each allotment, so as to be prepared to prove that it had been erected upon the specific allotment on the day noted. This one dwelling served to prove compliance with the certificate leases of selection in the several areas, and was of course a very convenient and happy mode of defrauding the country. In other parts of the country where this mode of compliance with the law was too civilized and scientific for adoption, an ordinary bark hut was erected and described as a habitable dwelling. On easy terms such as these, the pastoral tenants exercised the privilege of free selection.

By the 5th section of the Act of 1865, every officer, non-commissioned officer, and member of the Volunteer Force of Victoria who was unpaid, who was enrolled at the passing of the Act, and who served as an effective for not less than five years, was entitled to receive a certificate equivalent in value to £50 towards the purchase money or rent of any Crown Lands. At the time this clause was passed there were 2900 effective volunteers in the colony, and if that number remained effective for the period mentioned, they would receive grants of land equal to £145,000 in value. This provision was never applied for by the volunteers; it was a gift on the part of the House. When it became law it was found to be of little avail in promoting settlement. Most of the volunteers were young men residents of and engaged in business in towns, who were unable to work 50 acre farms. It was not long, however, before an effort was made to render these volunteer certificates negotiable, like the certificates under Cummins' clause. They were unassignable at law and an attempt made to carry a resolution in the Assembly affirming the desirability of rendering them transferrable was defeated. The law was evaded with the usual dexterity. Although the Minister of Lands could prevent the sale and transfer of certificates, he could not prevent the sale and transfer of lands purchased by the certificates. Volun- page 82 teers who wished to turn their certificates into cash instead of land sold to land owners the authority to buy on their behalf and gave the certificates into the bargain. Certificates representing land worth, £50 were passed to those not intended to be benefitted, who only paid from £30 to £40 for them. The traffic in certificates increased to such an extent that the liability of the country for land under this head became somewhat alarming. The number of certificates issued in 1867 was 719, representing £35,950; in 1868, 276, representing £13,350. Up to the time of the financial statement in 1869 the value of land appropriated in this way amounted to about £100,000. It was found that the volunteers had not, as expected, taken up, and settled on, the land covered by the certificates but had sold it to the squatters. The unfortunate experiment added another to the long and melancholy catalogue of injurious land laws.

After this wearisome review of legislative disasters, ministerial blunders, dummyism, bribery, corruption, land certificates converted into transferable scrip and sold like green-backs, and of every form of legalised iniquity, it is a relief to turn to a section of Mr. Grant's Act which slipped in without notice and without debate, and yet which, as previously hinted, proved the salvation of the measure, placed thousands of people upon the soil, and saved Mr. Grant's name from absolute disgrace. The 42nd clause became a household word throughout Victoria before the Act was long in force, and it was particularly popular among goldfields' population, for whose benefit, no doubt, it was specially designed. This clause took the place of, and carried on, the great work of settlement so well begun under the occupation licenses. It was founded on the principle of those licenses. Its general terms gave the Minister enormous power and almost unfettered discretion. Although the terms of the section prohibited the granting of a licence covering more than 20 acres the Minister was not thereby prohibited from granting more than one license to one applicant. The rule was laid down that the Minister would allow four licences to each bona fide applicant, thus enabling him to select a farm of 80 acres in area. The rent charged was 2s. per acre per annum. By virtue of the power conferred on the Minister, regulations were promulgated from time to time, prescribing the manner and conditions of selection under this clause. Its operation was not confined to goldfields, or even to localities within close proximity to goldfields. The Minister, in the exercise of his discretion, proclaimed areas open for selection under this clause distant as far as 30 miles from goldfields. The facilities for agricultural settlement presented by this law were swiftly recognised and largely embraced by the industrial classes. In less than three years 25,000 licenses were issued to 13,000 bona fide cultivators.

page 83

The total amount of selection which took place during, and under the operation of, this clause from 23rd March, 1865, to 31st December, 1869, was—17,038 holdings, containing 786,088 acres, the average size of each holding being 46 acres. During the same period only 5,900 ordinary selections were made, comprising the gigantic area of 1,499,910 acres. The secret of the success of the 42nd clause was that it gave the head of the department responsible to Parliament complete control of the leased land, and he could prevent it from being misapplied, or transferred to land sharks and dummy-mongers. It was the only redeeming feature of the Land Act, 1865; it suggested the leading idea of, and prepared the way for, the Land Act of 1869.

Neither the general principles nor the administration of the land Act of 1865 gave satisfaction to the country. The rent of 2s. per acre that did not go towards the purchase money pressed heavily on selectors, and hundreds of holdings taken up by steady, honest, hard working men were .forfeited, together with improvements, which went to the state. The value of improvements thus confiscated under this Act amounted to £100,000—a tremendous sum, when it is remembered that it was drawn from the savings of ruined families. The enormous quantities of land thrown into the market and sold by auction gave rise to a suspicion which soon grew into a strong belief, that the popular minister was playing into the hands of the capitalist, whilst professing to be; the people's friend. More land was sold by auction during Mr. Grant's long reign in the land department than during the term of office of any other Minister of Lands in Victoria. Under his Land Act 680,607 acres were sold under the hammer, whilst the alienation by that mode under preceding Acts were—Land Act, 1860, 398, 862 acres; Land Act, 1862, 456,705. It was, therefore, not surprising that long before the time fixed for the expiration of the Acts of 1862 and 1865, strong organisations were established throughout the country in favor of a radical change in the existing land system. On 1st December, 1868, a conference of land reform delegates representing associations all over the colony was held at the Albion Hotel, Melbourne. There were twenty delegates present. The following scheme was unanimously adopted:—That at the expiration of two years after the land has been taken up, if the selector has satisfied the Board of Land and Works of his having carried out the improvements required by the present Amending Land Act, the rent from that date shall be credited to him as part of the purchase money, and that all payments shall be at the rate of 2s. per acre per annum, and that the Act be made retrospective. That, at the expiration of two years after the granting of the lease or license, upon the bona fides of the selector being proved, a certificate of title upon payment of the first instalment of ten yearly payments of 2s., be issued to the holder page 84 of the said lease or license. That selectors under the 42nd section of the Act have the right of purchase at the fixed price of 20s. per acre at the end of three years, if they have complied with the conditions of the Act. That selectors under the 42nd clause be allowed to select annually.

These proposals were embodied in a memorial and presented to Mr. Grant who promised to place them before the Cabinet. They formed the basis of a bill, which Mr. Grant brought in on 24th May following, to amend and consolidate the laws relating to the sale and occupation of Crown lands. The Bill was divided into two parts, the first dealt with agricultural settlement and the second with the squatters' tenure. It was proposed to abolish selection by lot introduced by the Act of 1862, and the probationary leases, arid non-residence selections which formed the main feature of the Act of 1865. In place of those systems it was proposed with certain reservations to extend the principle of selection before and after survey, and the operation of the famous 42nd clause over the entire territory with this difference—that the interring settler would be able to select 640 acres on license, and that after paying rent at 2s. per acre for three years, and residing on and cultivating the allotment during the same period, the rents would cease, and he would be able to purchase the Crown grant of the lands at £1 per acre each, or pay the purchase money in instalments at the rate of 2s. per year. The Governor-in-Council was vested with the solo and absolute power of determining whether a licensee fulfilled the covenants of his license or not; whether he was a dummy or whether he was guilty of any fraud, or trickery. Such questions were to be for ever withdrawn from the jurisdiction of the ordinary courts of law The Minister of Lands was, in future, to exercise the duties and functions of state landlord. With regard to the pastoral tenure, the bill proposed that the squatters licenses should be renewed for ten years at a rental of 8d. per sheep and 4s. per head for cattle and horses.

At the time of the introduction of this bill the territory of Victoria stood as follows:—9,750,409 acres were alienated by auction and selection; 484,520 acres were used as roads, etc.; 2,000,000 acres were reserved as commons. The remainder of the public estate was either unoccupied or was held as pastoral runs. The country under pastoral occupation was as follows:—
Mallee country, waterless 4,104,606
Partial mallee country 2,256,734
Lower Murray frontages, partial mallee 861,776
Auriferous country, proved 2,766,573
Mountainous country 1,925,270
Remnants of runs 696,595page 85
First pastoral country 7,008,493
Second ditto 6,458,480
Third ditto 956,258
The unoccupied country was thus classed:—
Mallee country, waterless 4,264,815
Mountainous country, non-auriferous 1,100,000
Ditto, auriferous 10,322,920
Lakes, lagoons, and morasses 405,925

In round numbers 10,000,000 acres were alienated; 2,000,000 acres appropriated for commonage; 27,000,000 acres were under the occupation or in partial occupation of pastoral tenants; 16,000,000 acres were unoccupied. It will be seen from the above returns that the amount of arable land suitable and convenient for cultivation left unalienated was comparatively small. The best land of the colony was indeed parted with under the Land Acts of 1860, 1862, and 1865. The agricultural land available for settlement under the proposed legislation of 1869, was far removed from the great centres of population, situated either in treeless and rainless regions, or in thickly timbered, and impenetrable forests. This circumstance, of itself would probably have been sufficient to disarm opposition from the squatting party to the proposed new land law, but when it was coupled with the proposal to renew the pastoral tenancies for ten years, it was quite secure from any demonstration of antagonism from that quarter.

The principal objections raised against the bill on the second reading debate were:—(1) By the Liberal members of the House to the continuation of the squatting system; and (2) by Conservative members to the endowment of the Minister of Lands with arbitrary power. By those members, like Mr. Everard and Mr. Longmore, who represented the old views of the convention, the proposed renewal of .the squatting tenure was strongly opposed. They contended that the squatters' tenure was finally settled by the Act of 1862, and that after the expiration of that tenure, the pastoral tenants of the Crown had no right either legal or equitable against the community. Further it was urged that the squatters had cut off all hope of sympathy and support from the people of Victoria because they had plundered and divided the public inheritance, and outraged every form of law, and order, by their criminal practices. The opponents of the old squatting system were, however, divided in opinion as to what should be done with the waste page 86 lands of the Crown if the squatters were driven into the Yarra, or across the Murray. One section wanted the country thrown open for free grass, but they were not quite agreed about the details of the scheme. The leading argument in its favor was that the industrial classes would not then be embarrassed in their effort to settle upon the soil; that free selection would have a fair trial, and that the squatters not being located upon the lands of the colony with their flocks and herds would have no strong motive for seizing every available block. Another section advocated the sub-division of existing runs into small squattages, whilst a third party objected to this proposal, on the ground that it would multiply impediments in the way of selection, by creating a numerous and more powerful body to oppose and resist popular legislation. What would be better than this, it was argued, would be to sell existing runs by auction or tender. In this diversity of opinion the squatting interests prevailed. There were at that time about 1040 pastoral tenants. The revenue derived from pastoral occupation in 1868 was £177,643. The capabilities of runs for carrying sheep were as follows:—There were 254 runs which carried less than 1,000 sheep each. There were 182 runs carrying under 2,000 sheep; 71 runs carrying under 4,000; 101 runs carrying under 5,000; 120 runs carrying under 7,500 sheep. Altogether there were 824 runs carrying less than 7,500 sheep each. There were 71 runs carrying under 10,000 sheep; 80 runs carrying under 15,000; 40 runs carrying under 20,000; two runs carrying under 30,000; three runs carrying under 40,000; and there were two runs carrying under 50,000 sheep. It was estimated that there were 6,500,000 sheep depastured on these pastoral runs, and the amount of money invested in the property or represented by stock was about £3,000,000. "True," said Mr. Grant and the friends of the ministry supporting their Land scheme, "we may have a legal right to deal with that interest as we think fit, but as legislators, as statesmen as men having all the interests of the colony under our charge—would it be a wise thing suddenly to put this vast property in a condition in which it might be exposed to serious danger? If all these runs were let by tender or auction the State would be a great loser, because the only persons who would bid for them would be the present occupants. At all events we should not, in my opinion, be a gainer by the transaction. But, apart from this, let us consider, as wise men and as statesmen, whether we should deal with that interest suddenly. If we do, we shall produce such a commercial panic in this country as never has had a parallel in the southern hemisphere, and probably would never have again."

With regard to the enlarged discretionary power which the bill gave the Minister of Lands, objection was taken to this part of the measure by Mr. Duffy, Mr. Edward Langton and other hon. members, who assserted that a political head of a department should not be page 87 called upon to exercise judicial functions, and that under the new system the right of a selector would be placed at the mercy of a minister. If this bill became law, it was said, a free selector, after lie has lived three years upon his land, made his improvements—complied with the conditions—and then desires to purchase the fee simple instead of being enabled to do so in the ordinary course of law, could only do so by the personal permission of the President of the Board of Land and Works. Mr. Higinbotham vindicated the policy of the bill. "All our land legislation," he said, "had failed so far as it had failed through the competition of wealth against poverty, and fraud against simplicity." The Nicholson Land Act was hardly passed before a number of squatters and capitalists, availing themselves of the legal machinery provided by the Act for all, succeeded in securing for their exclusive benefit, and at a cost less than the real value of the land, a large portion of the territory. The Duffy Land Act was followed by the same disastrous and melancholy consequences. The great defect of these acts, in Mr. Higinbotham's opinion, was the want of some strong central authority, in whom could be vested a power not merely to carry out the wishes of the House, but to give effect to those wishes and sustain them through all opposition coining from whatever quarter, and set in operation by whatever means, legal or illegal. "It is idle," said the hon. member, "to say that the land legislation can meet and defeat the various contrivances of fraud. Those contrivances are so numerous, and the means of resisting them, if absolute power be not given, so weak, that—I care not how carefully your acts are framed—if men are tempted by strong inducements of avarice, and are provided with legal means to effect their object, the State will be defrauded, and the poor man for whom you wish to legislate will be utterly defeated. Therefore, I avow that while I regard these large powers as an essential part of this Bill, I am prepared to support the Bill because it contains these powers, and I should not be prepared to support any Land Bill which did not contain them."

Mr. Berry was equally emphatic in his support of this principle of the bill. "I would warn hon. members," said that gentleman, "who are new in land legislation, who are sincere in their desire to promote the settlement of the people, and who admit a large amount of settlement has taken place by the use of the discretionary power vested in the Minister of Lands under the existing law, that every attempt made by the Legislature to tie the hands of the Minister, to give him no discretionary power, but to insist that he shall follow the strict letter of the law, has altogether failed. If it has failed in the past, we have no guarantee that it will not fail in the future. I believe, however, that not only is their no objection, but it is desirable to extend the discretionary powers at present vested in the Minister of Lands provided that they are exercised publicly. page 88 I think that we should constitute the Lands office something more of a court than it is at present. It will have to deal with questions of a much larger and more important nature than hitherto. Every year, as free selection and the settlement of the country progress numerous questions will arise which can be much better settled in the Lands-office than in the court of law."

An amendment proposed by Mr. McGregor, member for Rodney, declaring that the administrative powers proposed to be conferred by the Bill, arbitrary and excessive, was negatived by a majority of 26, and the second reading was carried. It would be beyond the scope of this work to follow the fortunes of this measure through committee of the Assembly or to trace its progress in the Upper House, and in the conference of both Houses until after many additions and modifications, it became law on 28th December, 1869, when the Macpherson Ministry was in office. It will be sufficient for the purpose of this work to give an outline of the framework of this Act, which was supposed to incorporate and concentrate all the good results of our previous experience and observation in land legislation.

Any person not being under 18 years of age, or a married woman not judicially separated from her husband, could peg out and apply personally to a land officer for a license to occupy an allotment of land, before or after survey. The Governor could, if he thought fit, issue a license to occupy an allotment applied for not exceeding 320 acres in the whole, for a period of three years at 2s. per acre payable in advance. Every license contained conditions:—1. For payment of license fees, half-yearly in advance. 2. That the licensee would not assign, or transfer, or sub-let the allotment during the currency of the license. 3. That the licensee would, within two years, enclose the allotment with a fence, and, during the currency of the license cultivate at least one acre out of every ten. 4. Conditions for re-entry in case of breach of covenant, or in case the licensee did not occupy the land within six months from the granting of the license, or in case he did not carry out improvements to the extent of one pound per acre before the end of three years. 5. A condition that if the licensee occupied, fenced, and cultivated, and proved to the satisfaction of the Board of Land and Works that he had complied with the law, he would be entitled, within 30 days after the expiration of the three years' license, to obtain a Crown grant of the allotment on paying 14s per acre, or otherwise that he might obtain a lease of the allotment for seven years at 2s. per acre, the rent to go towards the purchase money. Besides this every license might contain such other conditions and provisions, not inconsistent with the Act, as the Governor approved of. Every applicant was required to make an affidavit that his application was in conformity with the law. 6. Assignment of page 89 an allotment by act of parties or operation of law was utterly inoperative. No person could select more than one allotment, or allotments, to the extent of 320 acres. Persons whose allotments were forfeited for evasion of the Act should be unqualified to select again. Persons who had selected under previous Land Acts the maximum number of acres allowed by this Act were not entitled to apply for licenses. No one could apply as agent or trustee of another. Licenses obtained contrary to law could be forfeited with all improvements on land so licensed. Contracts made in violation the Act were void. A licensee, lessee, or assign of an allotment had all the rights of an owner as against trespassers except the right of impounding, and that right was acquired as soon as the land was fenced in. Licensees of land under the 42nd clause of the Act of 1865, who occupied for two years and a-half, and erected buildings and other improvements on the land, were entitled, if there were no objections to the alienation on the ground of its being auriferous, to have the exclusive right of purchasing the allotment at a price determined by the Board not exceeding the upset price of the nearest land sold by the Crown before the issue of the license, and the rent previously paid by the licensee was credited as part of the purchase money. The 42nd clause was reproduced with amendment in section 49 of the new Act—by which it was provided that one person could not .hold more than one license, covering 20 acres. As in the Act of 1865, the quantity of land that could be sold by auction in one year was limited to 200,000 acres. The Governor was authorised to issue yearly pastoral licenses to persons who at the time of the passing of the Act were in the licensed occupation of runs for pastoral purposes. The licensed land, however, was still available for sale, or for selection, or for proclamation as commonage, or for occupation under miners' rights, or business licenses. The rent in each run was fixed at the rate of 8d. for every sheep and 4s. for every head of cattle, which it was determined to be capable of carrying. Unoccupied Crown lands and forfeited runs could be converted into runs and exposed to auction in areas sufficient to carry 4,000 sheep, or 1,000 head of cattle. General provisions were made for the proclamation of commons and other reserves, and for the issue of leases of land, for other than agricultural or pastoral purposes.

From the above analysis it will be noticed that the Act of 1869 differed in the following respects from the law which it succeeded:—1. Introduced free selection before survey; abolished agricultural areas; terminated selection by lot, and gave allotments to first applicants leaving it to the land-officer or minister to decide in priority. 2. Reduced the size of selections from 640 to 320 acres. 3. Applied the rent paid during the probationary period of licensed occupations towards the purchase money. 4. Made the Minister of page 90 Lands for the time being supreme judge of the performance of conditions and covenants. 5. Imposed the conditions of residence, cultivation, and fencing as absolutely necessary to entitle a lessee to a lease or Crown grant.

So came into force the great Land Act of 1869. It was supposed to embody the highest wisdom of the Victorian Legislature derived from our own memorable experience in land legislation, as well as from the study of the land systems of other civilized nations. The debates which took place in connection with the bill displayed avast amount of political knowledge on the part of the hon. members; nor was the bill hurried through Parliament. For nearly eight months it was under the consideration of the Legislature, of the press, and of the people of the country. Surely this ought to have given universal satisfaction? As already indicated when the land Act of 1869 was passed the best of the agricultural lands forming the garden of Victoria was sold, the bulk of it being locked up in large; pastoral properties. The classification of available lands given on a preceding page shows that the Act of 1869 had not the same ample scope of rich and fertile country upon which to operate that was open in the experimental period of Victorian land legislation. This must be borne in mind in any critical examination respecting the efficiency and success of its principles.

The Act came into force on the 1st February, 1870. It took two or three months to get it into working order. Applications for licenses began to pour into the department in April. Between that date and December, 1874, 4,501,968 acres were selected. Three years probation being required, the first applications for leases, or Crown grants were not sent in till April or May, 1873. In 1870, 320,719 acres were selected; in 1871, 477,685 acres; in 1872, 780,819 acres; in 1873, 1,041,779 acres; in 1874, 1,809,668 acres. In December, 1874, the number of selectors' leases applied for represented 570,591 acres, and the Crown grants applied for comprised 82,415 acres, making a total of 653,006 acres, which, within four years passed from the control of the department. From these figures it will be seen that the provisions of the Act were extensively made use of from the beginning of its operation, and that there was every prospect of its popularity continuing. Notwithstanding this in September, 1873, Mr. J. J. Casey, Minister of Lands of the Francis Government, brought in a Bill to amend the Act, by increasing the area which a person might select from 320 to 640 acres, and to alter the conditions of tenure. The reason alleged for the proposed alteration was that the quality of land then available for selection was not nearly so rich and convenient as that already alienated; and that in order to make farming pay, a selector should be allowed to take up an increased area. Mr. Higinbotham then took the opportunity of drawing attention to the alarming rate at which the page 91 public lands were being alienated and the necessity of some radical reform by which the state would not part with all its territory for ever. he proposed the following new clauses:—Whereas it is expedient, for the purpose of maintaining and increasing the public revenue, that the State should retain in perpetuity so much at least of the lands of the Crown in Victoria as shall not be required either for permanent reservation for a public purpose or for alienation by license or lease under sub-division 1 of part 2 of the Land Act, 1869, and this Act, and that the sale by auction of Crown lands in fee-simple should accordingly be forthwith discontinued, and that Crown lands should henceforth be sold by auction for a limited term only, and should from time to time at the end or other determination of such term, revert with all improvements thereon to the State: Be it therefore enacted that sections 34 and 35 of the Land Act, 1869, shall be and the same are hereby repealed, and the two following sections shall, from and after the passing hereof, be and be deemed to be the 34th and 35th sections respectively of the said Act:—All lands of the Crown in Victoria, wherever situated may be sold by public auction for any term not exceeding 21 years from the date of such sale, subject to such covenants, conditions, exceptions, and reservations as the Governor may direct; providing that all such lands shall be sold at an upset price of £1 for each acre, or at such higher upset price as the Governor may direct, exclusive of any rent that may be reserved in respect thereof. Once at least in every quarter of the year there shall be holden one or more public sales by auction of lands for a limited term as in the last section mentioned; and any person authorised by the said board may hold such sales without having an auctioneer's license or incurring on that account any penalty; and notice of every such sale shall be given in the Government Gazette within three months and before one month thereof, and every such notice shall declare, with all practical precision, the time and place at which such auction will be held and the lands to be offered for sale thereat and the lots in which the same shall be offered, and the upset price for each lot, and the amount of the deposit required; and no upset price shall be altered without as full notice of such alteration by advertisement and otherwise being given as was or should have been given to the original upset price.

A long and important debate took place on these amendments, but they were ultimately negatived by 9 votes to 44. The Bill, however, was lost. The Council insisted upon adding certain amendments, curtailing the power of the Minister of Lands and giving the right of appeals against the decision to the ordinary courts of law. The Assembly rejected the new clauses, on the ground that they would substitute for a responsible minister irresponsible bodies and place the administration of the land law beyond the control of page 92 Parliament, whilst the right of appeal to a court of law, proposed to be given in all cases and in all stages would lead to endless and costly litigation, impose insuperable barriers in the way of selectors, frustrate the policy of settling the people on the lands, and confine the alienation of public lands to the wealthy and propertied classes.

In June, 1875, the same land Minister brought in another amending land bill to increase the size of selection to 640 acres, and lengthening the period of probation from three years to six years, giving the selector a non-transferrable lease for seven years at the end of the probationary period; and the providing for the issue of non-resident licenses within proclaimed districts. In committee on on the Bill, Mr. F. R. Godfrey, member for West Bourke moved an amendment in favor of leasing instead of alienating Crown lands, but it was rejected by a large majority. The Bill was discharged from the notice paper on the break up of the Francis Administration.

The years 1877, and 1878, were periods of great depression among the farming population, owing to want of rain, and bad harvests. In consequence of this unfortunate state of affairs, hundreds of selectors were compelled to mortgage their leases in order to raise funds. During the year 1877, 1,616 mortgages, representing 318,797 acres, were registered in the lands department. In the first nine months of 1878, 3,018 mortgages were registered, covering 646,104, acres. In February, 1878, there were 38,800 licensees and lessees of land, and of that number 13,623 were in arears of rent to the amount of £158,066; in September, 1878, 41,820 licensees and 15,771 lessees owed £196,462 in rent. In these times of hardship many selectors found the fencing conditions press very heavily on them, as the cost of a substantial fence round 320 acres was little less £200. Complaints were also made that they could not under the stringent resident conditions leave their homestead for short periods to take work and earn a few pounds to help them onwards. These questions of grave importance were inquired into by a commission, under the presidency of Mr. W. J. O'Hea, appointed by the Berry Ministry. The commission found that generally speaking the settlement effected under the Act of 1869 was bona fide, and permanent did not admit of doubt, but it was doubtful whether it would continue in consequence of the pecuniary embarrassment in which a considerable number of selectors were involved. The necessity of carrying out improvements on their land within the time prescribed by law had plunged them into debt, whilst the prolonged drought had proved fatal to their crops and stock. The consequence was that many of them were deeply in debt to the banks, to money-lending agents, and to storekeepers; and there was much danger that a consider- page 93 able number of these indebted selectors would not be able ultimately to discharge their pecuniary obligations. In that case they would lose their land, which would thus fall into the hands of their creditors, and pass from these into the possession of persons who apply themselves to aggregate extensive areas of land in the form of large private estates. "In this way," the Commissioners reported, "the wise and beneficent policy of the State, namely, to settle a numerous yeoman class upon the soil, it is to be feared, will be in a great measure frustrated, and the State will lose both its property in the land and the consideration for which that property was parted with, namely, a settled agricultural population, unless some means be devised for averting this calamity. The primary cause of this unfortunate state of things is the very limited capital—sometimes the absence of capital—with which selectors enter upon their holdings, combined with what is, under such circumstances, the burthen-some character of the conditions of settlement imposed by the Land

The remedies recommended by the commission were that the conditions of settlement should be so modified as to lighten the burden of selectors during the most onerous years of their occupancy. This could be best done by extending the preliminary period of license from three to six years, during which the improvements could be made and by reducing the payments to the Government on account of purchase from 2s. per year to 1s. per year. In that case the selector would be 20 years in possession—six years by license and 14 years by lease—before he got a Crown grant. These recommendations formed the ground work of the amending Act of 1878, brought in by Mr. Longmore, Land Minister of the Berry Government. In addition to giving effect to the scheme as proposed by the commission of lengthening the term of occupancy preliminary to the issue of the Crown grant and reducing the annual payments to 1s. per acre per year, the amending Act allowed a licensee on giving personal notice to a land officer to absent himself from his allotment during three months of a year. Selectors under the Act of 1869 whose license had been issued within three years from the commencement of the amending Act, were enabled to surrender their old licenses and obtain new licenses under the relieving Act. On the surrender of the old license every year of occupation under it was allowed to count as two years in the computation of time for which the new license would have to be issued. Licensees of residence sites under the 49th section of the Act of 1869 also received some concessions. On proof of occupation during a continuous period of three years and on payment of all fees due, they were entitled to demand and obtain a Crown grant of the site, provided it were not auriferous, or required for mining or public purposes, or not situated within any city, town, or borough. Power page 94 was given to issue "non-residence licenses." The terms of these were that the licensee paid 2s. per acre towards the purchase money for six years; that he improved the allotment to the extent of £1 per acre during the first three years of the currency of the license; that, before the end of the sixth year of the currency of the license an additional £1 per acre should be spent in improvements; that the entire sum payable in respect of the purchase money should be £2 per acre, and that residence or occupation was not necessary. This Act and the Act of 1869 are at present in force in Victoria, but a Bill to supersede them, brought in by Mr. Walter Madden, Minister of Lands of the O'Loghlen Government, is now before the Legislative Assembly. From 1st February, 1870, to December 1881, 8,700,806 acres were selected, and 949,181 acres were sold by auction, making a total of 9,560,077, acres alienated under the Acts now in operation.