Free Selection in NSW: Who held the land ?

Free Selection in NSW in the 19th Century

WHO HELD THE LAND ?

Between 1788 and 1820 land was granted free by the governors. The practice was to make grants of 40 acres (plus extra if a man had a wife and child) to emancipated convicts and other small free settlers, of which there were few in this early period (Note 1). This practice contrasted with large free grants to officers (Note 2) 1 and civil officials (Note 3) or those carrying recommendations from patrons in England (Note 4). The most controversial was the grant to John Macarthur of a huge tract of the best land relatively close to Sydney at the Cowpastures (Note 5).

Most of those with small grants were unsuccessful (Note 6), because of a lack of capital and other economic pressures, natural disasters, or merely lack of skill or suitability for farming. Furthermore, block sizes were too small (Note 7). Their grants were foreclosed, or sold for rum, ended up in the hands of larger landowners.

From 1821 to 1831 free grants were made on the basis of capital introduced into the colony (Note 8). There were also some sales of Crown land; about 1/2 million of the 3million acres alienated (Note 9). The poor, at this time mostly ex-convicts, were thus denied access to land (Note 10). During this period, virtually the whole of the fertile Hunter Valley was given away to well to do settlers (Note 11). Massive tracts were also granted to the Australian Agricultural Company (Note 12). Much of the best land in the colony was given away during this period (Note 13). Of the area encompassed in the Nineteen Counties, over 2/3rds the size of England (see Figure 1), about 1/5th was alienated, with the remainder largely poor soil or mountainous (Note 14).

Official proclamations defining the "limits of location" in 1826 (Note 15), and the slightly larger "Nineteen counties" in 1829 (Note 16)" , were ineffective in restricting settlement (Note 17) in accordance with Wakefieldian design. The government recognised it could do nothing about the illegal squatting (Note 19), and allowed settlement beyond the limits in 1836, on payment of licence fees of Ł10 per year (Note 20). To this was added a stock tax of Ł20 per year for a large grazier running 10,000 sheep on a licenced run (Note 21).

From 1831 to 1846 about 1.25 million acres of land were sold by auction. The price of 5s. per acre (1831-39), 12s. (1839-42) and Ł1 (1842 onwards) kept purchase of land out of reach of many workers. Most of the sales in this period occurred prior to the price rise in 1842 (Note 22), coinciding with the depression in the early 1840s. Why buy land when you can lease as much as you want for Ł10 per year ? The largest squatters held runs of 200,000 to 500,000 acres (Note 23). Large scale pastoral development was funded to a great extent by capital from Britain (Note 24). Some shepherds, overlanders and managers for men of capital also made it as squatters themselves (Note 25).

In 1844 Governor Gipps issued regulations charging Ł10 for each run, limited in size to 12,800 acres or enough to depasture 4,000 sheep or 500 head of cattle, whichever was the smaller (Note 26). The squatters did not wish to pay the increase in licence fees which this entailed, and formed an association which lobbied strongly, especially in England.

Gipps' regulations were overturned by the 1847 Order-in-Council made by the Privy Council pursuant to the Waste Lands Occupation Act 1846 (Imp.) (Note 27). Under the Order, significant opportunities for squatters to gain greater security of tenure were available (Note 28).

TABLE 1: PASTORAL LEASES UNDER 1847 ORDER- IN-COUNCIL
ROUGH DESCRIPTION (Note 29)	COAST	MOUNTAINS & SLOPES	PLAINS
1847 TITLE OF DISTRICT	Settled	Intermediate	Unsettled
1861 TITLE (renamed - Note 30)	First Class Settled	Second Class Settled	Unsettled
RAINFALL (Note 31)	High	Medium	Low
PROVEN SUITABILITY (Note 32)	Agriculture, dairy	Wheat and sheep	Pastoral
LEASE PERIOD FROM 1847	1 year	8 years (Note 33)	14 years
LOT SIZES FROM 1847	-	16,000 acres	32,000 acres

A leaseholder had a pre-emptive right to purchase any part of the land during the term of the lease (Note 34), to the exclusion of all others (Note 35). This gave squatters the power to buy up the eyes out of a lease.

In NSW about 180 million acres were put in the hands of some 1,800 people after the Order-in-Council (Note 36). Nearly the whole of Victoria outside the mountain mass in North Gippsland was in the possession of less than a thousand pastoralists (Note 37). However these figures can be misleading. In Victoria, Governor Latrobe responded to a Court decision which prevented all sales of Crown lands under lease to all but the lessee by refusing to issue leases, issuing annual licenses instead (Note 38). In NSW (of which Victoria was part until 1851), the authorities would not convey leases of runs without survey, because the boundaries could not be described with certainty. Of about 3,000 runs, only 148 were held by lease under the 1847 Order-in-Council (Note 39). The remainder were held under yearly license to occupy, although leases were claimed by runholders (Note 40).

However, the squatters were not prevented by the lack of a lease from exercising the pre-emptive rights of purchase, and many took advantage of this and purchased the most desirable sections of their runs without competition (Note 41) Abuse through corruption in the Survey Department also worked in the squatters' favour (Note 42).

The next part is about Establishing a Yeomanry Class: Was Free Selection really "free" ?

NOTES

Note 1

The Scots in Australia

History of Australia

Note 2 Prentis, op cit, 82-3.

Note 3 Ibid, 84.

Note 4 See Lang, Crown Land in NSW, 1973. See also Clark (1), op cit, 133.

Note 5 5,000 acres: Ernest Scott, A Short History of Australia, 7th ed, Oxford University Press, Melbourne, 1947, p.431.

Note 6 There were some exceptions: see e.g. Prentis, op cit, 82.

Note 7 Insufficient to permit rotation of the soil and raising stock. Yearly sowing caused the soil to become gradually exhausted and harvests became smaller: Lang, op cit, 97-8.

Note 8 Free grants of 640 acres for every Ł500 of capital invested, up to a maximum of 2,560 acres. A further 9,900 acres could be purchased by tender: C.M.H. Clark (2), A History of Australia, Vol.II, Melbourne University Press, 1968, p.69.

Note 9 Bruce Mitchell, The Australian Story and its Background, F.W. Cheshire, Melbourne, 1965, p.66.

Note 10 Clark (2), op cit, 69.

Note 11 For the history of this see W. Allan Wood, Dawn in the Valley: The Story of Settlement in the Hunter River Valley to 1833, Wentworth Books, Sydney, 1972. See also C.M.H. Clark (3), A History of Australia, Vol.III, Melbourne University Press, 1973, p.249.

Note 12 Created in 1824, with capital of Ł1 million, it was to receive large areas of land (500,000 acres) in return for its investment: Clark (2), op cit, 63-4; O.W. Hunt, Australia in the Making, Revised ed, Whitcombe & Tombs, Sydney, 1966, p.112.

Note 13 About 2.5 million in free grants and 0.5 million sold: Mitchell, op cit, 66.

Note 14 Ibid, 65.

Note 15 Clark (2), op cit, 69.

Note 16 Mitchell, op cit, 66. The area was increased to define the northern boundaries by distinguishing landmarks: Wood, op cit, 211.

Note 17 Edward Shann, An Economic History of Australia, Cambridge University Press, London, 1930, p.100.

Note 19 Shann, op cit, 191. See also Wood, op cit, 221-2.

Note 20 Mitchell, op cit, 65; Clark (3), op cit, 165.

Note 21 Clark (3), op cit, 165.

Note 22 Mitchell, op cit, 66.

Note 23 Clark (3), op cit, 302.

Note 24 E.g. for Scottish loans see Prentis, op cit, 93.

Note 25 Prentis, op cit, 96-8; see also Eric Rolls, A Million Wild Acres, Penguin Books Australia, Ringwood, Victoria, 1984.

Note 26 Clark (3), op cit, 303.

Note 27 Shann, op cit, 193; Clark (5), op cit, 93.

Note 28 Details in Mitchell, op cit, 68.

Note 29 Bill Gammage, "Who gained, and who was meant to gain, from land selection in New South Wales ?" , (1990) 24 Australian Historical Studies 104, at 107.

Note 30 Ibid.

Note 31 From a map in Richard M. Highsmith Jr., Case Studies in World Geography: Occupance and Economic Types, Prentice Hall, Englewood Cliffs, NJ, USA, 1961, p.112.

Note 32 Ibid, 113, from a map based on The Australian Sheep Industry Survey, 1954.

Note 33 Subject to resumption with compensation at the end of any one year: Shann, op cit, 194.

Note 34 A minimum of 160 acres and maximum of 640 acres at any one time: Shann, op cit, 194; Lang, op cit, 101; Hunt, op cit, 118.

Note 35 Shann, op cit, 194.

Note 36 C.M.H. Clark (5), A Short History of Australia, 2nd ed, The Macmillan Company of Australia, South Melbourne, 1981, p.94.

Note 37 Shann, op cit, 194.

Note 38 Ibid.

Note 39. D.W.A. Baker, "The Origins of Robertson's Land Acts", (1958) 8 Historical Studies: Australia & New Zealand 166, at 168, relying on the Register of Leases issued under the Order-in-Council.

Note 40 Ibid, 169. A lease confers on the tenant an interest in the land and the right to exclude all persons from the land; a tenant may exclude even the landlord, subject only to any rights conferred on the landlord by the agreement or by law. By way of contrast, a licence is a mere right to occupy and, without more, confers no interest in the land and no right to exclude all persons from the land. A tenant may sue in trespass to protect his or her right of occupancy; a licensee may not: see Peter Butt, Land Law, 2nd ed, Law Book Co, North Ryde, 1988, p.220.

Note 41 Baker, op cit, 169.

Note 42 Baker, op cit, 170.

The next part is about Establishing a Yeomanry Class: Was Free Selection really "free" ?

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Free Selection in NSW in the 19th Century

WHO HELD THE LAND ?

TABLE 1: PASTORAL LEASES UNDER 1847 ORDER- IN-COUNCIL