The proof of intention on the part of any officers, by custom entitled to grant occupation, has commonly barred the rights of the crown; but for this, a large amount of practical injustice must have been inflicted. Such was the only form in which grants could be distributed, when the country was just occupied, and the science of mensuration and accounts almost unknown.
To this, the case of the heir-at-law of Major Abbott is nearly a solitary exception. Being about to retire from office, Major Abbott applied for a reserve of 210 valuable acres at Launceston, and 3,000 acres elsewhere. On the recommendation of Sorell, then lieutenant-governor, who stated minutely the land desired, Sir Thomas Brisbane ordered the ground to be marked off as "crown reserves:" and Sorell, being just superseded, wrote on the order with a pencil the name of Abbott. Several persons at Launceston regretted the alienation of land useful to the township, and petitioned accordingly. Their views were favored by Arthur, and the claim of Abbott was supported by Sorell. Lord Bathurst ordered the grants in question to be given. Arthur, however, again appealed, and the decision in favour of Abbott was cancelled; but the 3,000 acres, reserved in the same terms and at the same time, were confirmed. Major Abbott through life maintained his right to the Launceston reserve, and devolved its prosecution on his son; for twenty years he contested his right with the agents of the crown. During the litigation its value has ranged from £2,000 to £8,000.
On an appeal to the secretary of state, Lord John Russell referred the claimant to trial by jury. He erected a house on the ground: this a chain gang was employed to destroy. He brought his action for trespass, which the law officers met by a demurrer. On his application for a deed of grant, a caveat was entered by Major Wentworth. Two of the commissioners decided in Abbott's favour, and the third, Dr. Turnbull, against him. The usual course was to issue grants on the decision of the major part: this the governor refused, and the case was once more referred to the secretary of state. In 1849, Earl Grey declared that the governor had exercised a sound discretion in refusing the advice of the caveat board,[175] and thus finally negatived the claim.
The intention of Sorell in favour of Major Abbott is clear: the provisional reserve of the land in his behalf is clear also. The views of Sir Thomas Brisbane are not so indisputable; but they probably changed on a remonstrance being offered by Arthur. The official answer to Sorell's application was a description of the reserve solicited, unaccompanied with demur or question: it was understood by Sorell to mean approval; and, but for subsequent interference, a grant would have issued of course. Where no corruption can be suspected, actual or ultimate value is certainly no equitable objection to perfect a claim founded on the custom, and created by the authorities of the time.
Except the grants claimed under the Downing-street regulations, lands were bestowed at the discretion of the governor, to the extent of 2,650 acres. Many received still larger quantities at different times. The arrest of robbers, the cultivation of flax or hops, the capture or conciliation of the aborigines, and losses by fire, were occasions for the governor's benevolence: other and less respectable causes were attributed, and scarcely require enumeration.
The large discretion of the governor was asserted by Sir George Murray. Mr. Hall, the editor of the Monitor, had been refused a grant by Darling, while others were freely indulged. He complained; but was told by the secretary of state (1829), that the governor could judge most correctly of an applicant, and that his decision would be usually held final.
The collection of quit-rents has baffled the agents of the crown: at first, the amount was too small to repay the trouble of collection, and for both colonies, in 1824, did not exceed £400 per annum.
A large number of grants in Van Diemen's Land became liable in 1831, and notice was given that payment would be enforced. The settlers of Cornwall, led by Messrs. Bryan, Joseph Archer, and Gleadow, signed a petition to the crown, which complained that the exaction was partial and oppressive. The governor promised to forward the memorial, but stated that he had no ground to expect that the claim would be ever relaxed.
Notwithstanding, in 1834, Arthur proposed a composition. He offered a release at ten instead of twenty years' purchase, if accepted within one year; without, however, allowing any set-off "for convict maintenance"—equal, in some cases, to the whole sum. In 1836, he proposed to intercede with the crown to relinquish all claims up to that year, a bond being given by the debtor for the arrears, if required: these offers were but little successful.
To prevent a return to this topic, it may be added, that in 1841 Sir John Franklin offered to mediate for a remission of accumulations prior to 1835, provided all from that date were liquidated by yearly instalments. The total amount of quit-rent is estimated at £15,000 a-year, including the towns.