Beyond the Fatal Shore: Pastoral Squatting and the Occupation of Australia, 1826 to 1852

by John C. Weaver
Beyond the Fatal Shore: Pastoral Squatting and the Occupation of Australia, 1826 to 1852
John C. Weaver
The American Historical Review
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Beyond the Fatal Shore:
Pastoral Squatting and the Occupation of Australia,
1826 to 1852


INREVIEWING HOW INDIVIDUALS AND CORPORATIONS SEIZED PORTIONS of the American public domain, Patricia Nelson Limerick identified a contradiction. On the one hand, land hunters were habitually disrespectful of the property rights of the federal government. On the other, "the individualistic desire for exclusive, secure property meant that one's personal interests were best served by an agreement to respect other people's property."l Was this defiance of authority and grasping egocentrism unique to the American historical experience? The question calls to mind debates about American exceptionalism. Proponents of comparative and international history have aroused controversy by denying the uniqueness of the United States. Most comparative work treating exceptionalism has dealt with slavery and labor movements. Assessments of American exceptionalism have not considered a basic question about resource allocation. Were there fundamental differences between the United States and other new societies with respect to how "public7' land came into private hands? The ways in which neo-Europeans during the nineteenth century gained control of land in new societies-Argentina, Australia, Canada, Chile, New Zealand, South Africa, and the United States-is a topic that invites criticism of American exceptionalism.

The topic can be classified by subjects, such as the means by which governments secured territory from first peoples or the ways in which individuals manipulated laws to procure large tracts at low cost. However, meaningful comparisons also need an analytical guide. In a commentary on the exceptionalism debate, George

M. Fredrickson recently noted that "comparativists" and "exceptionalists" have tackled similarities haphazardly and staked out extreme positions. Advocating the need for a more systematic analysis of cross-cultural resemblances, he offered a way of considering how the United States could have had a different-not unique-

Ideas for this article originated when I was a Visiting Research Fellow at the Urban Research Program, Research School of Social Sciences, Australian National University in 1991 and 1993. Further research on land and new societies has been supported by the Social Sciences and Humanities Research Council of Canada (grant 410-92-0678). A number of individuals have commented on early versions; I wish to thank Dennis Jeans, Joseph Powell, Terry Kass, Peter Griggs, David Russo, and anonymous reviewers. The title comes from Robert Hughes's book The Fatal Shore: A Histoly of the Transportation of Convicts to Australia, 1787-1868 (London, 1986). For errors and omissions, I am responsible.

Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York, 1987), 62.

history while taking part in transnational processe~.~

Many societies confronted common structural problems, he noted, but culture and environment affected how resources were deployed to deal with problems or to exploit opportunities. In short, he produced signposts.

This article concentrates on squatting in Australia and proposes comparisons with similar events in the United States. Parallels occurred because of what Frederickson called structural factors. Diverse peoples in the London-based world economy of the early nineteenth century-from frontier settlers to urban capital- ists-contrived low-cost methods of grabbing land. Their ploys upset both British schemes for disposing of crown lands and congressional designs for the American public domain. During economic booms, surveyors and bureaucrats could not handle demand. Bottlenecks in the official allocation processes provided unautho- rized occupants with excuses for their actions. However, most squatters required none. Free usufruct was a temptation. So, too, was speculation, because many squatters gambled correctly that they could peddle mere possessory interests. Capitalism, weak governments, and the common law provided similar structures in the United States and Australia. Certain cultural features differed: political dynamics in an imperial colony that held a smattering of convicts were unlike those of a decentralized republican democracy. But Americans and Australians shared a robust cultural trait: the desire to possess territory, nurtured in densely settled European societies where land was power.

Squatters included true settlers as well as restless people with short-term intentions toward the land. For profit, the latter would sell it or exploit it in ways that despoiled prior ecological systems; they collided with first peoples and their perceptions of the land. In a comparison of dependent development in Australia, New Zealand, Chile, Argentina, and South Africa, Donald Denoon summarized the evolution of land ownership under "settler capitalism" as a process whereby "landowners consolidated their control . . . while a benign administration registered their titles and protected their pr~perty."~

It was not so simple at first. Adminis- trations became benign only after squatters defeated them; the economic ambitions and land-holding strategies of squatters had to efface official blueprints. This defiance prospered in Australia and America during the 1830s and 1840s. The Australian experience with squatting reveals structural similarities with the United States, but it also indicates the importance of cultural and environmental variations. As a republican democracy, the United States was different, not unique; the British colonies of Australia were different, not unique.


AND AMBITIOUS PEOPLE in the penal colony of New South Wales recognized that wool exports offered a path to fortune and commenced a pastoral invasion of the continent. An illegal occupation of land

George M. Fredrickson, "From Exceptionalism to Variability: Recent Developments in Cross- National Comparative History," Journal of American History 65 (September 1995): 600. For an additional review of the debate, see Michael Kammen, "The Problem of American Exceptionalism: A Reconsideration," American Quarterly 45 (March 1993): 1-33.

Donald Denoon, Settler Capitalism: The Dynamics of Dependent Development in the Southern Hemisphere (Oxford, 1983), 222.

swept across New South Wales and subsequently cropped up in Western Australia and South Australia. Aggressive pastoralists in each Australian colony understood that an unsanctioned occupation of crown land provided cheap pasturage. More than that, they believed that the occupation of land might someday beget profitable legal interest^.^ Their headway is denoted in the shifting meanings of "squatter" in Australian English. Initially, it had the conventional definition: someone who illegally occupied land. Early Australian usage went further and associated the squatter with the convict and bushranger (rustler), but by mid-century it meant a wealthy pastoralist.5 How precisely did this radical turnabout happen? How did Australian squatters during the 1830s and 1840s-like their contemporaries in the United States-eradicate the liabilities of illegal occupation?

On both the American and Australian frontiers, squatters stressed their heroic acts of discovery, general usefulness to society, and value added by redeeming ''waste land."6 In Australia, some went further and, while contrasting themselves to the lounging drones of the English aristocracy, postured as educated gentlemen, distinctly superior to coarse American squatters.7 The rhetorical distinction had a practical role in the British convict colony of New South Wales, where character and station counted when soliciting official bounty. New South Wales was no republican democracy. But more than a rhetorical deceit was expressed in that cultural comparison. American squatters included-along with speculators-nu- merous folk eager to become smallholders. In Australia, the mix was different; the dominant squatters were engaged in large-scale pastoral production and had metropolitan backing. By the credit standards of the day, they had to be socially acceptable.

Despite social and cultural differences that separated most American squatters from Australian counterparts, they shared specific goals and inconveniences. They shared suppositions about the natural justice of their claims and professed qualities appropriate to the prevailing political ideology of their respective community: a variant of aristocratic worth in Australia, republican yeomanry in America. Against these were ranged the unambiguous rules of the common law. When coupled with the determination of the highest authorities to cling to planned alienation-the legal transfer of titles to real estate-these precepts deprived squatters everywhere of private property rights such as the freedom to exploit the land without restriction, exclusivity of occupation, transferability, and heritability.8

To overcome legal handicaps, squatters in Australia, like those in contemporary America, devised stratagems for cheap, exclusive, and continuous use of acreage. In places where squatters flouted formal legal order, there was deception and

Michael Cannon and Ian MacFarlane, eds., The Crown, the Land, and the Squatter, 1835-1840: Historical Records of Victoria, Foundation Series, Vol. 6 (Melbourne, 1991), 11-12; Jan Kociumbas, The Oxford History of Australia, Vol. 2: Possessions, 1770-1860 (Melbourne, 1992), 125.

5 Stephen H. Roberts, The Squatting Age in Australia, 1835-1847 (1935; Melbourne, 1975), 54-68.

Limerick, Legacy of Conquest, 61.

William Campbell, The Crown Lands ofAustralia (Glasgow, 1855), 47.

For a discussion of what makes up property rights, see Gershon Feder and David Feeny, "Land Tenure and Property Rights: Theory and Implications for Development Policy," World Bank Economic Review 5 (1990): 136-37. They do not mention freedom to exploit the land without restriction, but that has been added because administrators in colonial Australia attempted to prohibit licensed squatters from using land for anything but pasture.


In many of their dealings with neighbors, latecomers, buyers, and lenders, Australian squatters worked out customs that averted anarchy. An unsanctioned marketplace in unsurveyed land functioned successfully and their legal interests grew because they had the same great advantage as American squatters: possession. What failed utterly with terrible consequences-and what highlights a significant difference between the United States and Australia-were the efforts of colonial administrators to buffer the impact of the squatters on those peoples who had prior but unrecognized possession, the Aborigines. The govern- ment of the United States had the power to play an ignominious role in removing first peoples from lands coveted by settlers; the colonial administration in Australia ignored Aboriginal tribes as political entities but wished to protect them.lo For this task, however, they lacked resources.

Australian squatting can be ordered into five phases. During the first phase, from the early 1820s to the early 1830s, pastoral squatting abounded in areas being surveyed for alienation to what the government hoped would be a farming yeomanry. These coastal regions, referred to officially as within "the Limits of Location," were the sole districts where people could locate acreage specified in grants or purchased land orders. In these declared counties, the movement of squatters "was infinitesimal as compared with the migrations of the Heroic Age of the thirties."ll The Heroic Age-the second phase of squatting-began around 1834, when grazers expanded dramatically "beyond the Limits." Most activity occurred in the present-day states of Victoria and New South Wales, although it penetrated Queensland and South Australia. Unable to check this vigorous new pattern of squatting, the government tried to superintend it by introducing annual depasturing licenses in 1836. Licensed squatters became temporary users of a vast open common. Even though the unauthorized occupation of crown lands "within the Limits" persisted, the scale of what occurred "outside the Limits" made it synonymous with Australian squatting.

Licensing opened a third phase, which lasted until 1839. From the moment when licenses were issued until an undertaking to introduce leases in 1847, squatters recognized the legal disabilities that the government created. They chiseled relentlessly at the stony denial of legal interests. During these years, another set of frontier relationships also reached a critical stage. European violence and diseases ravaged native peoples farther and farther from the centers of population. The government demonstrated its inability to protect Aborigines and squatters' employ- ees from each other. Squatters' shepherds cut down the native population, while the squatters themselves managed to tighten their grip on grazing lands. Concerning the latter campaign, during the late 1830s, squatters started to fashion territorial domains while the government stubbornly upheld the concept of a common. In 1839, Sydney officials conceded the existence of boundaries but reminded squatters of their insecurity. During the fourth phase, from 1839 to 1847, with the principle of boundaries acknowledged, squatters moved to consolidate, absorbed more

Malcolm Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837 (1968; rpt. edn., Belmont, Calif., 1990), 183.

lo Vivienne Rae-Ellis, Black Robinson: Protector of Aborigines (Melbourne, 1988), 178-79.

11 Roberts, Squatting Age in Australia, 2.

territory, refined customs that 'facilitated speculation, and pressed for leases. In

1847, the economic importance of grazing forced an imperial guarantee that a large

portion of licensed lands would be transformed into leasehold. Like squatters on

the American public domain who had pressed their claims until in 1841 they had

what they wanted-a preemptive right to buy land they occupied-Australian

pastoral squatters worked two levers expertly-their occupation of the land and

their economic significance.

The promised day for leases arrived in 1852. From 1847 to that year, during the fifth phase of squatting, grazers "outside the Limits" scrambled to tidy up boundaries, seizing as much land from the crown and from each other as possible. The glimmer of a once-in-a-lifetime opportunity to profit from the windfall of securing legal interests excited them-and their creditors-into a frenzy of activity. Shortly after they had leasehold tenure and after the British imperial parliament had granted the eastern Australian colonies control over their lands, squatters- now leaseholders-confronted legislatures in New South Wales, Victoria, and South Australia, which, like the imperial authorities before them, tried to promote freehold tenure for agriculturalists.

UNTIL1831, COLONIAL AUTHORITIES ALIENATED LAND mainly by grants, although at times sales were permitted under narrow conditions. Land grants varied in size according to the amount of capital brought into the colony by the petitioners, or their military rank, or presumed social worth.12 Each governor introduced varia- tions. Social rank and favoritism generally influenced their actions. All the same, the alienation of land officially proceeded by formulas that placed limits on the size of crown grants. Grazers dealt with limits by squatting. Land was temptingly accessible and government ineffectual. As an early reaction to a process of occupation it could not curtail, the government of New South Wales granted tickets of occupation to grazers. These "indulgences" conferred a right to depasture on land around a stockyard on legally alienated land. The temporary tickets, given as a boon to people deemed worthy, were replaced in 1826 by a revenue-generating system. The crown provided one-year leases, which gave greater security of tenure than had the tickets. In August 1841, however, licenses replaced leases, delivering a calculated blow to the lessees' security by eradicating limited rights to a defined tract.13 This curtailment of interests derived from the government's wish to weaken occupants' status before the law and recover more quickly the land it hoped to sell.

12 For New South Wales, see Peter Burroughs, Britain and Australia 1831-1855 (Oxford, 1967), 2; United Kingdom, House of Commons, A Return of the Alienation of Crown Lands in New South Wales and Van Diemen's Land Respectively, during the Last Ten Years (London, 1832), 2-14; Australian Almanack, 1827 (Sydney, 1832), 120-21. For Van Diemen's Land, see Sharon Morgan, Land Settlement in Early Tasmania: Creating an Antipodean England (Cambridge, 1992), 6-9, 32. For Western Australia, see Paul Hasluck, Black Australians: A Survey of Native Policy in Western Australia, 1829-1897 (1942; Melbourne, 1970), 19; Pamela Stratham, ed., The Tanner Letters: A Pioneer Saga of Swan River and Tasmania, 1831-1845 (Nedlands, 1981), xv-xxii; Stratham, "Swan River Colony, 1829-1850," in A New History of Western Australia, C. T. Stannage, ed. (Nedlands, 1981), 181-89.

l3 Sydney Gazette, August 30, 1826. The licenses that replaced leases were for a definite portion of land and thus considered equivalent to leases. The important point made by the government was that the squatters had a limited right to use the land for no more than a year. Sir George Gipps to Lord Stanley, April 3, 1844, Commonwealth of Australia, Historical Records of Australia (hereafter, HRA), Series I: Governors' Despatches to and from England (Sydney, 1922), vol. 23, 509.

The limited size of grants was only one incentive to squat on crown land. Another was introduced when the imperial government inaugurated land sales in 1831. London's instructions fixed the price at a level much higher than what was believed a reasonable market price. It was certainly higher than that established for the American public domain, and Australian crown land was generally of an inferior quality.14 Grazers scoffed at the official price and continued to evade purchasing what they coveted for an expanding wool industry. In addition to occupation tickets and then leases, the colonial administration sought to oversee unauthorized occupation by proclaiming, in 1826, boundaries for an area of approved settle- ment-the Limits of Location. Beyond those boundaries, settlers could not select land for grants. Squatters who entered lacked all benefits of government, but the warning failed to check them. In October 1829, the Limits were defined as nineteen counties; other counties were added later (see map). Squatters trekked past these boundaries. And within the counties, squatting continued. It is worth considering its traits, for the practices of the second phase built upon them.15

Procedures for the legal occupation of crown land within the Limits paradoxically served illegal encroachment. To appreciate how this could happen, it is necessary to understand that whether by land grants or sales, alienation proceeded according to free selection, whereby settlers could carve out tracts from unoccupied lands declared available.16 This chaotic process was comparable to that practiced in Virginia and on lands it claimed in Kentucky and the Ohio territory. Virginia's free selection contrasted with the survey-before-settlement practices in New England.17 Wherever practiced, free selection created an untidy patchwork of odd-shaped rectangular tracts and confusion about who held what. In New South Wales in the 1820s and 1830s, rough terrain, scarcity of water, and the modest complement of surveyors favored free selection, even though it left unsettled spaces among those parcels that had been selected, measured, and registered. By purchasing a land order and then selecting a commanding tract-water frontage or the mouth of a

l4 Dixon Library, Mitchell Library, Sydney, microfilm CY 541, New South Wales, Governors' Despatches to the Secretary of State for the Colonies, vol. 19, January-April 1831, Thomas Mitchell to Sir George Murray, January 28, 1831. See Burroughs, Britain and Australia, 3.

l5 Eric Rolls, A Million Wild Acres: 200 Years of Man and an Australian Forest (1981; Ringwood, 1984), 72. For an account of early settlement patterns within the Limits, see T. M. Perry, Australia's First Frontier: The Spread of Settlement in New South Wales, 1788-1829 (Melbourne, 1963), 121. To control land distribution in areas certain to develop as hinterlands for ports, the government declared other counties apart from the group centered around Sydney. It established one at Moreton Bay (future site of Brisbane) in 1830 and two at Port Philip Bay (site of Melbourne) in 1836. Others were declared later, and surveys within them heralded land sales.

l6 Governor Lachlan Maquarie had distributed land by an uncontrolled right of selection. His successor, Governor Sir Thomas Brisbane, attempted surveys before settlement. The surveyor general found it impossible to execute this plan fully. Systematic surveying failed due to the shortage of resources for an effective survey department. Parcels of land freely selected were eventually surveyed with reference to magnetic north, producing a series of regional grids with odd-sized rectangles forming individual parcels. See Surveyor General John Oxley to Ralph Darling, January 26, 1826, HRA, vol. 12,

380. See also Dennis Jeans, "The Impress of Central Authority upon the Landscape: South-eastern Australia, 1788-1850," in J. M. Powell and M. Williams, eds., Australian Space, Australian Time: Geographical Perspectives (Melbourne, 1975), 7-12; Roger J. P. Kain and Elizabeth Baigent, The Cadastral Map in the Service of the State: A History of Property Mapping (Chicago, 1992), 308-13.

l7 Thomas Donaldson, The Public Domain (Washington, D.C., 1884), 82-83; Norman J. W. Thrower, Original Survey and Land Subdivision: A Comparative Study of the Form and Effect of Contrasting Cadastral Surveys (Chicago, 1966), 18; C. Albert White, A History of the Rectangular Survey System (Washington, D.C., 1983), 9; Burroughs, Britain and Australia, 2.

valley-it was possible to hold residual spaces as "back runs" for sheep or cattle.

Surveyor General John Oxley warned Governor Ralph Darling in 1826 about such

practices benefiting "the opulent Men."l8 Oxley's successor, Sir Thomas Mitchell,

estimated in 1834 that most of 5.3 million acres sold in ten counties had been

purchased to control back runs.19

The government sought revenue from this usage. Commencing in October 1828, settlers could rent land adjacent to their grants at a cost discounted to roughly one-eighth the charge for all other leased land. This fee acknowledged a market- place reality. A strategic placement of grants rendered back runs almost valueless if severed from a controlling property. In 1831, the government forced each purchaser of a crown lot with water frontage to buy the rear lot, too, and by the mid-1830s a tract of land would not sell unless it controlled an area three or four times its size.20 The widespread informal practices of control and squatting irked Edward Parry, ,manager of the Australian Agricultural Company. In 1826, this private company, the largest in the colony, selected near the central coast of New South Wales a million acres in fee simple, on which it intended to raise Merino sheep with convict labor. By 1833, Parry alleged that, along the Hunter River, three-quarters of the grantees there exploited back runs, a condition that made nonsense of his company's investment. Parry would have agreed with his contem- porary, Henry Clay, the congressional critic of squatters, who condemned their anlawful opportunism as a threat to legitimate business.21

It is impossible to know what proportion of pastoralists in the early years obtained keystone tracts to control crown land. The passage of an act in 1833 to appoint commissioners of crown lands to prevent trespass on the public domain within the Limits signified a serious problem. Contemporary impressions confirm that squatting flourished inside the Limits.22 The government lacked the resources to prosecute all trespassers. As the American republic had discovered earlier, it was one thing to proclaim that squatters would be ejected from the public domain but

Is Oxley to Darling, January 26, 1826, HRA, vol. 12, 385. l9 Dixon Library, Mitchell Library, microfilm reel CY 671, New South Wales, Governor's Des- patches to the Secretary of State for the Colonies, vol. 46, September-October 1844; New South Wales,

Report of the Select Committee on Crown Land Grievances with Appendix, Minutes of Evidence, and Replies to Circular Letters (Sydney, 1844), 1, evidence of Sir Thomas Mitchell, June 3, 1844. This copy of the report is particularly useful because it has Sir George Gipps's comments rebutting the select committee's assertions.

20 Sydney Gazette, October 17, 1828. Report of the Select Committee on Crown Land Grievances, Minutes of Evidence Taken, June 3 and 14,1844, William Henry Suttor; June 1and 3,1844, Sir Thomas Mitchell, Surveyor General. D. N. Jeans, "The Breakdown of Australia's First Rectangular Grid Survey," Australian Geographical Studies 4 (1966): 119-28.

21 John Perkins, "Convict Labour and the Australian Agricultural Company," Convict Labourers: Reinterpreting Australia's Past, Stephen Nicholas, ed. (Cambridge, 1988), 167-68. Noel Butlin Archives Centre, incorporating the Australian National University Archives of Business and Labour, Australian Agricultural Company, vol. 78, 1113, folio 503, Edward Parry to Colonial Secretary, March 11, 1833. Helene Sara Zahler, Eastern Workingmen and National Land Policy, 1829-1862 (New York, 1941), 126; Daniel Feller, The Public Lands in Jacksonian Politics (Madison, Wis., 1984), 170.

22 4 William IV, No. 10, "An Act for protecting the Crown Lands of this Colony from encroachment, intrusion, and trespass." In early 1837, Evelyn Sturt rode beyond the Limits to serve as a commissioner. Along the trail, he had been "informed by several Magistrates and others, that unauthorized occupants are if anything more numerous within the Limits of occupation than without." Archives of New South Wales (hereafter, ANSW), Sydney, 412348.3, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, E. H. Sturt to Colonial Secretary, April 14, 1837.

988 John C. Weaver

another to effect unpopular evictions. On both the American and Australian land-sale frontiers, therefore, governments let purchasers bear the brunt of resolving the trespass issue. In the United States, the playing out of this practice led squatters to form land-claims associations to protect themselves against buyers; it also fostered their insistence on preemption, the right to have the first option to buy the land they occupied. Outcomes were slightly different in A~stralia.~~

Within the Limits, where crown land was for sale, squatters did not form protection clubs or insist on preempting all the land they used. For one thing, the keystone strategy, also known as "peacocking," gave many what they wanted. They chafed at buying land for the high price set in London, so preemption was not an aspiration at first. They had other ways of suppressing buyers. Selection by newcomers could be deflected by a squatter who had initiated a purchase and then conveniently neglected to fulfill its terms.24 More important, a land distribution system in which paying settlers and lessees selected their acreage supported a confusion helpful to squatters. Strangers clutching their land orders and hunting for land without benefit of a government plat found it difficult to determine which lands were eligible for legal entry. Established squatters readily misled buyers. By mid-century, as purchasers squeezed out illegal occupants, threats prevented these later settlers from lodging a formal complaint for trespass against squatters.25 A faster rate of American settlement along with the fact that land buyers received a relatively firm location may help explain the more extensive recourse to intimida- tion in the United States.

DESPITESTRATAGEMS FOR DIVERTING LEGITIMATE GRANTEES and despite the inability of surveyors to keep pace with requests to measure and tie freely selected tracts into a cadastre, legal land sales within the Limits pushed many squatters aside.26 "Peacocking" also hindered new stockmen. By 1830, squatting within the Limits was constricted and vulnerable. Consequently, grazers fanned out beyond the nineteen counties and initiated a monumental outbreak of pastoral squatting. Few in number, they quickly took possession of immense tracts of the choicest land. By 1835, they had established sheep runs in the Monaro country 200 miles south of Sydney, as well as on the New England Plains 250 miles north. Other squatters, the "overstraighters," entered the Port Philip Bay district in 1835, sailing across the Bass Strait from Van Diemen's Land. A year earlier, they began landing at Portland Bay, the southwestern extremity of what became Victoria. Overstraighters thus

23 Rohrbough, Land Office Business, 13-15, 162, 183; Paul W. Gates, Landlords and Tenants on the Prairie Frontier: Studies in American Land Policy (Ithaca, N.Y., 1973), 11 1.

24 ANSW, 217827, microfilm reel 1111, Colonial Secretary, Letters Received Relating to Land, William Macpherson, Collector, Internal Revenue, regarding Capt. John Coghill, October 18, 1832. Also see ANSW, 413659, Colonial Secretary, Copies of Letters Sent to Commissioners of Crown Lands, February 20, 1837, to December 11, 1840, F. G. Harington to Henry Bingham, March 10, 1838; Copies of Letters Sent to Commissioners of Crown Lands, December 14,1840, to September 13,1844, Edward Deas Thomson to W. P. Faithful, June 3, 1841.

25 James Busby, Authentic Information Relative to New South Wales, and New Zealand (London, 1832), 39. ANSW, 412811, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, William Howell to Colonial Secretary, January 15, 1848.

26 For the forced movement of squatters, see Rolls, Million Wild Acres, 76.

established two nuclei: one along the coast from Portland to Warrnambool, another at Port Philip Bay. They descended on the seaboard, cramming choice disembar- kation points along a hazardous coast.27 By late 1839, runs near Warrnambool allowed little space for new operations: "the one crowding as near the other as possible."28

Squatting parties in August 1835 clashed at Port Philip Bay, where there had been an audacious pursuit of legal cover by the Port Philip Company's expedition led by John Batman.29 When Batman landed at Port Philip Bay in June 1835, he did what land seekers in America had done decades earlier, he prepared a "trinket treaty."30 Batman alleged that Aborigines had freely ceded a region of roughly 600,000 square miles for £200 of trade goods. Bypassing the government of New South Wales, he notified the British government of his treaty and, to back his claim that the area he purchased was beyond the jurisdiction of New South Wales, Batman acknowledged the Aborigines as "the possessors of the soil."31 Governor Sir George Gipps dismissed this cheeky bid to usurp the crown's dominion and prohibited comparable maneuvers.32

By 1837, the overstraighters were surpassed in number by overlanders, who headed southwest out of the nineteen counties. Driving huge flocks, they forded the Murrumbidgee and Murray rivers. A few overlanders staged their forays from stations acquired at the margins of the nineteen counties, thereby securing access to the south bank of the Murrumbidgee River and to convict servants.33 In the southwest corner of the nineteen counties, stations just within the boundaries acquired value as staging bases for operations on runs beyond the Limits. Later grazers overwhelmed these stations. An early squatter along the Murrumbidgee complained of this pressure in 1837. A rival tried to drive him off. Victimized at his own game of illegal occupation, he protested that life as a squatter had become a case of "That he may hold, who gets; And he may get, who can."34 Such expressions were common. Concerning the occupation of the Liverpool Downs north of Sydney, squatter John Campbell recalled that "each took all he could get, and each kept all he could."35 In 1854, a critic of squatters cited their motto as "Let him take who has

27 Thomas Francis Bride, Letters from Victorian Pioneers, being a Series of Papers on the Early Occupation of the Colony, the Aborigines etc. (1898; rpt. edn., Melbourne, 1969), 137. 28 LaTrobe Library, State Library of Victoria, Melbourne, Niel Black Papers, Ms. 6035, Niel Black Diary, December 9, 1839.

29 Mitchell Library, microfilm reel CY 1046, Port Philip Company Papers, 1835-1843, John Fawkner to [illegible], ca. 1839. According to Fawkner, Batman pulled down Fawkner's fence and threatened to drive him and others off "by inciting the blacks against us."

Thomas Perkins Abernethy, Western Lands and the American Revolution (1937; New York, 1959), 8-9: Donaldson. Public Domain. 240. -il Port Philip Company ~apkrs, Petition of Port Philip Company to Under Secretary of State, June 27, 1835.

32 Dixon Library, Mitchell Library, Broadsides, D36511-20, no. 117, Proclamation of Sir Richard Burke, August 26, 1835. He repeated the prohibition and warned that "atrocities" against the Aborigines must stop. No. 118, Proclamation of Richard Burke, May 3, 1836.

33 William Gammage, Narrandera Shire (Narrandera Shire, 1986), 20. Neither the overstraighters nor overlanders could legally bring convicts with them into the regions beyond the Limits, but the overstraighters had more difficulty bringing convict servants out of Van Diemen's Land.

34 ANSW, 412348.2, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, James [last name illegible] to the Colonial Secretary, July 23, 1837. 35 John Campbell, The Early Settlement of Queensland and Other Articles (Ipswich, 1875), 27.

stock trails was despoiled.39 When Alexander Hunter came through in November 1839, he reached a good stockyard. "Mr Jinkers," he recorded, "had not the civility to ask us in."40 Mobs of livestock had already overrun him.

Clear of the gateway, overlanders left the stock trails to settle along the Murray's tributaries that originated in the southern highlands. Stockmen had learned that ideal runs were well drained, with year-round warmth and major water sources no farther than a day's drive for The open plains of Australia Felix-the Western Port and Portland Bay districts of New South Wales-had the added advantage of requiring fewer shepherds to superintend sheep. In the early 1840s, to the south of Sydney, the three expanding nuclei of squatters on Port Philip lands met in the middle of the future colony of Victoria. During 1841, to the north of Sydney and above the New England Plains, sections of the frontier advanced at the rate of ten to fifteen miles a month. Between 1842 and 1844, over three hundred miles north of Sydney, squatters seized the rich Darling Downs in what became southern Queen~land.~~

The commercial search for land in new societies startled rival scouts, naturalists, adventurers, and government officials. In the United States, travelers in recently opened territories of the Louisiana Purchase were amazed to find they were not alone, for everywhere they encountered land h~nters.~3

Similarly, crown officials who rode into the wilderness were surprised to encounter parties who had "come to look for C0untry."~4 It was a happy time for plunder. Governor Sir George Gipps in 1844 estimated that squatting in eastern Australia extended through fourteen degrees of latitude with an average width of four degrees of longitude; a line through the middle, running north to south, measured 1,100 miles. Within this territory, there were reported to be 9,885 settlers, 15,052 horses, 573,144 horned cattle, and 3,023,408 sheep. Most of this activity was contained on approximately two thousand grazing stations in New South Wales.45 A few squatters near Portland Bay and along the Murray who worried about a scarcity of open land were already overlanding stock to South A~stralia.~~

The extent of squatting challenged author- ity, "making nonsense of the official British land policy which was to confine

39 William Adams Brodribb, Recollections of an Australian Squatter, or Leaves from My Journal since

1835 (Sydney, 1883), 17; Randell, Pastoral Settlement, 75.

40 LaTrobe Library, State Library of Victoria, Ms. 10300, A. M. Hunter Diaries, November 17, 1839.

41 Cannon and MacFarlane, Crown, the Land and the Squatter, xvi.

42 J. M. Powell, The Public Lands of Australia Felix: Settlement and Land Appraisal in Victoria 1834-91 with Special Reference to the Western Plains (Melbourne, 1970), 4-8. ANSW, 412525, Colonial Secretary's Papers, Letters and Reports Received, Commissioners of Crown Lands, Lachlan Hunter to Colonial Secretary, August 20, 1841. Maurice French, Conflict on the Condamine: Aborigines and the European Invasion (Toowoomba, 1989), 73-74.

43 See, for example, Thomas Nuttall, A Journal of Travels into the Arkansas Territory during the Year 1819: With Occasional Observations on the Manners of the Aborigines; Illustrated by a Map and Other Engravings (1821; rpt. edn., Ann Arbor, Mich., 1966), 103.

44 ANSW, 412719, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Henry Bingham to Colonial Secretary, May 16, 1846. 45 Gipps to Stanley, April 3, 1844, HRA, vol. 23,509; Parliamentary Inquiry into the Disposal of Crown Lands: Minutes of Evidence Taken, Oswald Blaxsome, 82. 46 George Russell to William Cross, March 5, 1840, in Philip L. Brown, ed., The Clyde Company Papers, Vol. 2: 1836-40 (London, 1952), 37.

settlement and encourage land sales."47 Squatting in the United States also made nonsense of official policy, although a difference in the political constitutions of the two societies influenced their resolutions of the squatting problem. In the United States, the presence of elected representatives at the national and state levels supported an incessant debate about land distribution in forums that had the power to change policies.

During the 1830s, the U.S. Congress showed signs of granting preemption, making a major concession to squatters. Democratic politics, intense sectional disputes among the East, South, and West, and the actions of state governments favored squatters' interests. One of the political contrasts between the United States and Australia was the existence of a significant measure of local government in America. In New South Wales, the British first experimented with democratic processes at the level of "local" government in 1843, but London still set policy. There was no substantial political consultation within the colony. Firm direction from London meant, therefore, that colonial administrators initially confronted squatting outside the Limits as outright theft and worked to get the crown's property back. In 1836, colonial officials acted to assert the crown's title. Unable to repress a movement that stimulated trade, the government of New South Wales announced that pastoralists would have to obtain depasturing licenses. Licenses gave squatters cheap access to grazing while withholding security; licenses put the crown into the picture and apparently conceded no interests to squatters. In order to foil rivals, the latter labored amid distrust and deception.

The leaders of the overland expeditions often received shares in the venture, and some became professional land hunters working on their own account as well as for employers, conditions that sharpened cunning on the They rode ahead to scout unobserved. Encounters with other parties involved calculations. Courtesy usually prevailed, and rivals cooperated at dangerous river crossings or when Aborigines threatened. Pioneering squatters later shared bullocks carts to haul out wool and convey supplies.49 Stockmen needed each other, but interaction did not restrain competition during dashes for land. With much at stake, civility could serve a competitive purpose. Campfire hospitality provided an occasion to circulate a warning or initiate a subterfuge. One squatter, when he determined that another had the same destination, feigned illness, disparaged the place, and pretended to give up. He doubled back and increased his pace to sneak ahead. If a squatter found out that another's flock was moving toward the same rich lands, a dash began with determined parties pressing on through the night. Land hunters tried to beat out

47 J. B. Hirst, Convict Society and Its Enemies: A History of Early New South Wales (Sydney, 1983),


48 Victoria Public Record Office (hereafter, VPRO), Melbourne, VRPS 94, unit 1, Commissioner of Crown Lands, Murray District, Correspondence Received, Statement of John Smith, King River, February 28,1844. He describes the arrangement he had with Thomas Walker of Sydney. Walker paid for the cattle; Smith would receive half the profits or pay half the losses. "Taking in Sheep and Cattle on thirds" seems to have been commonplace; stockowners gave the holder of a run one-third of the calves, lambs, and wool. See Gipps to Stanley, April 16, 1844, HR4, vol. 23, 546.

49 LaTrobe Library, State Library of Victoria, Ms. 10300, A. H. Hunter Diaries, November 30,1839. Mortlock Library, State Library of South Australia, Adelaide, Business Record Group 42/46, South Australian Company, Reports from William Lillecross at the Company's Mount Gambier Station, Lillecross to William Giles, June 20, 1845.

994 John C. Weaver

each station, and with a view to keep the country only one shepherd with one flock consisting of about 600 is sent to each station.53

Once at a satisfactory destination, a number of squatters stumbled on or discovered greener pastures. For a short period, many original squatters enjoyed good relations among themselves. There was pasture enough to permit the footloose activities of grazers, who shifted about as they experimented with the carrying capacity of the land. Favorable reports soon reached Sydney and Van Diemen's Land, luring latecomers, who jostled for space with the pioneers. Also, a number of early squatters selected runs as temporary stages in a long trek, selling out and moving on. Inside a territory where the government insisted on making all occupation legally insecure, squatters began fixing rudimentary boundaries for their grassy El Dorados and enforced these among themselves. From 1836 to 1839, during the second phase of squatting, the government studiously ignored boundary disputes among licensees in order to weaken squatters' intere~ts.~4

Colonial administrators could have introduced leases. However, they suspected that leasehold granted outside the Limits would undermine land sales within the Limits, as well as tie up crown lands outside the Limits, precluding their eventual use by a yeomanry. Leasing implied attachment to an area; licensing did not. Leasing, to be effectively managed, needed cadastral maps; licensing placed no demands on the surveyor general. Squatters immediately perceived that licenses were inferior because they failed to delineate a territ~ry.~S

A Bathurst squatter, Major General William Stewart, reported ponderously in November 1836, "great fear is entertained that much confusion will arise, from the locality, for which the License may be granted, not being distinctly specified."56 Another complained that the license "does not even reserve to you the right of bringing an action against trespassers but, on the contrary, may be granted to any number of applicants for one and the same spot."57 The notion of a commons proved vexing to established squatters but useful to a few other licensees, who could put sheep where they wished. This type of squatter acquired the nickname "cuckoo" after the parasitic bird that deposits its eggs in the nests of other birds. Squatters had to deal with cuckoo encroachment. Neighbors struggled to reach agreements and encouraged late arrivals to move 011.58

53 LaTrobe Library, State Library of Victoria, Niel Black Papers, Ms. 6035, Diary, February 29, 1840.

54 ANSW, 412348.2, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, James [last name illegible] to Colonial Secretary, July 23, 1837. There are numerous descriptions of squatters moving to better lands. See, for example, Randell, Pastoral Settlement in Northern Victoria, 40; Edward Curr, Recollections of Squatting in Victoria, then Called the Port Philip District (From 1841 to 1851) (Melbourne, 1883), 68.

55 VPRO, VPRS 94, unit 1, Commissioner of Crown Lands, Murray District, Correspondence Received, John Jobbins to H. W. Smythe, April 11, 1846. 56 ANSW, 412348.2, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, William Stewart (Major General) to Colonial Secretary, November 23, 1836. 57 John Ormont Randell, Pastoral Settlement in Northern Victoria, Vol. 1: The Cloiban District (Melbourne, 1979), 43.

58 ANSW, 412393.2, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Richard Bayley to Henry Bingham, January 25, 1838; Henry Bingham to Colonial Secretary, January 31,1838. Mitchell Library, Newspaper Cuttings, vol. 39, Case of Bowerman v. Mackenzie at the Brisbane Circuit Court, November 1850. On cuckoos, see Graham Pizzey, A Field Guide to the Birds of Australia (Princeton, N.J., 1980), 193-94. Campbell, Early Settlement, 6.

Licensing provided squatters with a short-term right merely to run stock on pastures ostensibly open to other licensed pastoralists. The government under- scored its denial of property rights by insisting that usufruct alone was permitted; it refused licensed squatters the right to plant crops, except to support employees. However, the chief instruments for a denial of property rights were refusals to acknowledge boundaries for the runs and the power to deny a license renewal. The former disability was something that squatters could almost contend with alone; the latter persisted and required a political solution.59

Recognizing that neighbors' sheep could ravage pastures or that invading diseased sheep could infect their stock, many grazers disdained open access. For established squatters, one attraction of sanctioned boundaries, therefore, was the prospect of increasing their stock in peace. Enterprising squatters also desired property rights to permit them to buy and sell, mortgage and improve. Lenders wanted clients to control the terrain where the associated collateral-livestock- could feed and multiply.60 As one squatter put it, leasehold tenure would equip grazers with "ample security for the English ~apitalist."~~

Any exchangeable interest in the land rested on proof of possession. Acknowledged boundaries helped.

How did squatters go about establishing possession? Some were lucky, protected by remoteness and the acquiescence of latecomers. One squatter on the Darling Downs abandoned his land and left notes on the doors of his huts that he had not really deserted it; it would be restocked. He succeeded in selling the abandoned land to which, having surrendered possession, he had no claim. Knowledgeable squatters in more popular regions realized that they had to assert possessory rights against other squatters and could do so if they built head stations and shepherds' huts at strategic places, typically along a river or stream. The largest establish- ments-the head stations-were best located at an extremity of a run in the direction from whence strangers came. Three miles along the river from the station, there might be a hut; if the squatter operated extensive pastures, then there were more huts or paddocks. Even these conspicuous markers might fail to divert intruders. A rival well-versed in the branding of territory could plow land near a hut, thereby exposing the absenteeism of the hut builder and challenging posses- sion. The rules of possession were unspecified, but squatters knew that they might have to apply the right of might. The related tension, effort, ambiguity, and instability were draining. Squatters moved toward a system of ad hoe unsurveyed b~undaries.~~

59 ANSW, 413669, Colonial Secretary, Copies of Letters Sent, Commissioners of Crown Lands, Edward Deas Thomson to Laurence Vance Dalhunty, July 20 and 23, 1838.

60 In 1843, to assist grazers during a depression, the colonial government enacted a law that permitted lenders to register preferable liens on the next wool clip or to register mortgages on sheep, cattle, and horses. Such loans had been a part of colonial practice for some time before the act. 7 Victoria, No. 3, "An Act to give a preferable Lien on Wool, from season to season, and to make Mortgage of Sheep, cattle, and Horses, valid, without delivery to the Mortgagee" (September 15, 1843).

61 Report of the Select Committee on Crown Land Grievances, 26, June 5, 1844, testimony of William Henry Suttor.

62 Gammage, Narrandera Shire, 41. Also see VPRO, VPRS 94, unit 1, Commissioner of Crown Lands, Murray District, Correspondence Received, Statement of John Chisholm, February 28, 1844. Campbell, Early Settlement, 5-6. ANSW, 412348.2, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, James [last name illegible] to the Colonial Secretary, July 1837.

IN THEIR BID TO WITHHOLD PROPERTY RIGHTS from squatters, officials in Sydney at first maintained neutrality respecting squatters' claims against other squatters. Nevertheless, they could not remain indifferent to events beyond the Limits. The penal-colony roots of New South Wales nurtured misgivings about settlement in an unsupervised territory. If there were no magistrates and constables, how were bushrangers to be suppressed? Controlled access was believed the solution. Thus not only were grazers licensed but so too-in this odd realm without property rights-were innkeepers, blacksmiths, and shopkeepers. Still, if there were no magistrates and constables, who would determine if squatters behaved properly or had licenses? There could be no control without resident government agents.63

Asserting social and legal control, the government in 1837 appointed nine commissioners of crown land for regions beyond the Limits. More were assigned when the government proclaimed new grazing districts. It had already appointed commissioners of crown lands in 1833 to check on leases and timber cutting within the Limits. British land-management practices-the employment of stewards-on crown and private estates may have been the model for the commissioners. There was nothing like these uniformed officers in the Old Northwest of the United States. Instructed to prepare a census and check for licenses, the uniformed and ill-equipped appointees of 1837 rode out to inspect their uncharted districts without the authority to eject squatters. The commissioners' functions would multiply, but in 1837-1839 they handled applications for licenses and reported on squatters' morals-tasks of little value to squatters, though important for social control and revenue collection. From the outset, squatters tried to involve commissioners in their boundary disputes. When commissioners reported that they had attempted to remove squatters for trespass on others' runs, the colonial secretary's office cautioned that prior occupancy gave squatters no interests and that commissioners should avoid interventi~n.~~

In March 1839, the government instituted an act "to further restrain the unauthorized occupation of Crown Land." Commissioners were empowered to evict unlicensed squatter^.^^ Applications for licenses were given to commissioners, who forwarded them to the colonial treasurer. In determining whether to recom- mend an applicant, the commissioners still assessed character. Among their sensitive new chores was an especially tricky one. They now had to decide if there was any encroachment on an existing run. Encroachment implied a defined territory; commissioners were to mediate in disputes over boundaries. By the same act that strengthened its hand to evict squatters promptly for trespass, the government conceded de facto boundaries and, thereby, exclusivity of occupation. The government provided no instructions about how to determine encroachment. No instructions directed squatters to append descriptions of runs to license

63 ANSW, 412348.2, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, John Lambie to Colonial Secretary, July 17, 1837.

e4 ANSW, 413659, Colonial Secretary, Copies of Letters Sent, Commissioners of Crown Lands, Edward Deas Thomson to John Lambie, February 20,1837; Edward Deas Thomson to Henry Bingham, September 14, 1837; March 30, 1838. ANSW, 412348.2, Letters and Reports Received, Commissioners of Crown Lands, Bingham to Colonial Secretary, August 23, 1837. Gipps to Stanley, April 3, 1844, HRA, vol. 23, 509.

2 Victoria No. 27, "An Act to further restrain the unauthorized occupation of Crown Lands, and to provide the means of defraying the expense of a Border Police."

applications. No immediate orders required commissioners to record boundaries or sketch maps, but at least one voluntarily mapped his district in 1843. In July 1845, a circular finally instructed the commissioners to draft sketch maps.66 Perhaps the omission of references to mapping was an oversight, although deliberate efforts to weaken interests had been policy at least until 1839.

Rough maps could not resolve friction on the pastoral frontier. Without clear directions on fine legal points about what constituted possession, squatters and commissioners labored to sort out entitlements to pastures. The lack of guidance contrasted with attempts by the American republic to determine possession. In 1830, the United States required claimants for special preemption rights to prove occupancy with an affidavit of occupation and evidence before a justice of the peace. The United States had the benefit of a survey and a frontier judiciary, although corruption could defeat the rules. In New South Wales, a weak colonial administration with assertive ideas on checking squatter interests in land surren- dered them piecemeal because it simply had too few agents policing an expanding fr0ntier.~7

According to the common law, prior occupancy could not be used to support a claim, but commissioners routinely applied it to settle encroachment disputes anyway.68 When squatters clashed over territory, the common law only recognized possession. But what precisely was possession? Could the size of a flock be equated to the possession of an exact area? Not at all. Grazing needs were estimated at one sheep to three acres, although in some circumstances the ratio might be one to one or one to six. Ideally, a flock of a thousand sheep was tended by three men, but on open plains a single shepherd could tend a flock of fifteen hundred to two thousand sheep on a run. Three flocks often made up the stock for a station. Accordingly, a station could have runs occupying roughly twenty-five square miles. Additionally, squatters reserved land for lambing, old ewes, and diseased sheep. That might bring the area to thirty square miles. The search for better land frequently provided squatters with several stations, and they used the land between stations, so that a home station under one license might control sixty to a hundred square miles. Overseers kept sheep only a day's drive from a major source of water. That fixed the depth from the river frontage at about six miles, although some runs were deeper. A few commissioners had established almost standard frontages by the mid-1840s; these ranged from six to ten miles. Without a survey, land was being shaped into rough parcels, even though there was no standard formula to equate sheep and acres. Without such a guide, it was impossible to relate possession to the number of sheep or cattle.69

Possession also remained slippery due to the fine line between legitimate and

66 ANSW, 412719, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Bingham to Colonial Secretary, May 2, 1846. Bingham refers to a circular of July 21, 1845.

67 Rohrbough, Land Office Business, 165.

68 Mitchell Library, Newspaper Cuttings, vol. 39, Case of Bowerman v. Mackenzie at the Brisbane Circuit Court, November 1850, 44-46. Two squatters had agreed to avoid a disputed waterhole until the commissioner fixed a boundary. However, one squatter broke the accord. The court upheld his claim, for he was in possession.

69 U.K., House of Commons and House of Lords, Papers Relative to the Occupation of Crown Lands, New South Wales (London, 1848), Minutes of Evidence Taken, 93, T. S. Mort, auctioneer. Mort was a major wool exporter who financed pastoralists. Also see ibid., E. Cornish, 95. Gipps to Stanley, Janu-

Faced with intricacies of possession, commissioners interpreted prior occupancy as tantamount to posse~sion.~~

After announcing a time and place to meet to resolve the encroachment-and often traveling hundreds of miles to hear the case-the district commissioner collected depositions to establish prior occupation.72 Adver- saries searched for an old-timer who could "interlard his testimony with remarks upon 'the first sight of the district.'"73 Despite efforts to authenticate a thread of occupancy, reaching back to a first squatter, courts-as opposed to commission- ers-ignored the idea and reaffirmed the unhelpful principle of possession. The whole business reminded squatters of their slender legal standing. Prior occupancy not only persuaded commissioners to favor a party in a dispute, it also gave a squatter tactical advantage for enforcing possession. Niel Black knew that "posses- sion is the first point of the law here." And he knew how to assert possession. After he spied a party of squatters in March 1840, he had his men shift sheep to warn them off. "When we have got the name of occupying these stations, I will slip the sheep quietly home."74 Prior occupation helped to get "the name." This outcome duplicated what was occurring during the American scramble for resources.75

The property rights of squatters during the third phase remained inchoate, although there was a strengthening of the right of exclusivity based on the prohibition of encroachment-whatever that meant in particular circumstances. Squatters continued to defend their possessory rights with strategically located huts and occasionally intimidation. In an extreme instance, James Hodgkinson of the Maiden Hills rode out to drive off encroachers "with whip and Kangaroo Dogs."76 Reports of violence among squatters are rare; when they surface, they mention stockwhips, fists, dogs, and sulfurous words? Contempt seethed among neighbors. Niel Black, whose overextended empire tempted incursions, routinely blocked neighbors' maneuvers. John Thompson repeatedly tested a boundary shared with Black, even advancing diseased sheep to displace Black's flocks.78 On August 1, 1842, Black recorded "[my] men ploughing and forming a stony rise this [sic] was

Affidavit for the Case of Hall v. Cox and Andrews Decided July 11, 1844. VPRO, VPRS 94, unit 1, Commissioner of Crown Lands, Murray District, Correspondence Received, Thomas Perrott, Cathkin, to H. W. Smythe, July 25, 1845; Phillipotts to Smythe, March 15, 1845. ANSW, 412680, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Captain W. Ogilvie to Colonial Secretary, July 28, 1841; Joseph Cope to Colonial Secretary, September 11, 1845. Haygarth, Recollection of Bush Life in Australia, 91.

71 Curr, Recollections of Squatting in Victoria, 332-33.

72 ANSW, 412720.1, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Arthur Selwyn to Colonial Secretary, October 14, 1846. Selwyn thought he would sometimes have to travel 400 to 600 miles to settle a dispute. VPRO, VPRS 95, unit 1, Commissioner of Crown Lands, Murray District, Correspondence Received, Deposition of Richard Brodie, September 4, 1843.

73 Haygarth, Recollections of Bush Life in Australia, 92.

74 LaTrobe Library, State Library of Victoria, Niel Black Papers, Ms. 6035, Diary, March 6, 1840.

75 Limerick, Legacy of Conquest, 66.

76 VPRO, VPRS 95, unit 1, Commissioner of Crown Lands, Western Port District, Correspondence Received, [name illegible] from Maiden Hills to Powlett, January 5, 1846. ANSW, 412680, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, James Aitkin to Colonial Secretary, March 25, 1845.

77 ANSW, 412680, Colonial Secretary's Papers, Letters and Reports Received, Commissioners of Crown Lands, Aitkin to Colonial Secretary, March 25, 1845. Mitchell Library, Newspaper Cuttings, vol. 39, Case of Bowerman v. Mackenzie at the Brisbane Circuit Court, November 1850, 44-46.

78 LaTrobe Library, State Library of Victoria, Niel Black Papers, Ms. 8996, Station Journals, August 24, 1842.

1000 John C. Weaver

done on account of our worthy neighbour Thompson commencing to build a Hut near our Gro~nd."~~

Thompson's advance of "scabbed" sheep to move Black's stock was a common tactic where no accepted boundaries existed. Another squatter boasted that he had bluffed about the appearance of scab, a mange-like infection, among his sheep to keep an aggressive neighbor at bay. Squatters could strike at one another through diseased animals in another way. Under the terms of an act to control the spread of scab, a grazer could report another party and force on him the inconvenience of a trip to the nearest board of magistrates, usually Sydney or Melbourne. Since a considerable amount of stock came from Van Diemen's Land, where the scab was reputed to be rampant, it was easy to inconvenience a rival and weaken vigilance.80

To stabilize boundaries, squatters continued to assert possession by markers and documents, in addition to a demonstrated presence. The alienation of crown land in the nineteen counties, by free selection, likely furnished squatters with ideas about how to brand a run as one's own. By the early 1840s, bounds might be tied into trees that had been ring barked or marked with a carved symbol, plowed furrows, piles of rock, and heights of land separating watersheds. Fencing was expensive until the introduction of wire in the 1860s; the first use of a sapling fence probably was in Victoria in 1854. Whether crudely or precisely marked, boundaries were a prelude to documentation, arbitration, and litigation. Squatters sometimes contracted in elaborate legal language to respect one another's boundaries and gave the text to a neutral neighbor. In the absence of a survey and a land registry for real property outside the Limits, an informal system of documentation was emerging. In December 1845, the government instructed commissioners to recognize the agree- ments and uphold their terms.81

The preparation of boundaries, the introduction of arbitration, assertive occu- pancy, and the involvement of the commissioners in adjudicating encroachments did more than protect established squatters against interlopers. These actions enabled them to sell property for which they had no title. Strictly speaking, vendors sold their licenses, but they and buyers assumed much more. Colonial administra- tors found they could not arrest the development of a property right-in this case, transferability. Squatters understood among themselves that the sale of a license and flock entailed greater interests. Investors who bought into the grazing business or squatters who expanded by purchase acquired the sheep and the "right of run,"

7y Ibid., August 1, 1842.

80 VPRO, VPRS 95, unit 1, Commissioner of Crown Lands, Western Port District, Correspondence Received, David Kelsh, Campaspe River, to F. Powlett, January 8, 1843. Curr, Recollections ofsquatting in Australia, 340. LaTrobe Library, State Library of Victoria, Ms. 10766, John Carre Riddell, Station Journal, 1843-47, October 23, 1845; Randell, The Cloiban District, 149.

81 VPRO, VPRS 94, unit 1, Commissioner of Crown Lands, Murray District, Correspondence Received, Chenery (?) and Goodman, Malahide, Devils River, to H. W. Smythe, May 26, 1846. Cuthbert Fetherstonhaugh, After Many Days (Melbourne, 1917), 74. ANSW, 412680, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, J. G. Macdonald to Colonial Secretary, November 11, 1845. ANSW, 412680, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Report of December 3, 1845, enclosed in J. G. Macdonald to Colonial Secretary, November 11, 1845. Squatters sometimes devised procedures, customs, and documents for arbitration. See the documents for an arbitration in LaTrobe Library, Ms. 11920, William Adeney of Chocolyn Station, Adeney to [name illegible], October 23, 1845.


worth by one estimate a fifth the value of its stock. Bold speculators sold crown land without stock.82

Transactions could be complicated and risky in the recondite world of squatting beyond the Lirnihg3 A number of remote squatters never bothered taking out a license but sold runs regardless. To evade paying for a license for each run, grazers who bought additional runs denied they had purchased a distinct territory, turning the denial of property rights against that policy's authors. If runs were part of an open range, as the government alleged, then one license should enable a squatter to pasture anywhere so long as he did not encroach. This dodge minimized fees. To confirm possession, grazers purchased the good will to secure a link to prior occupancy.g4 One potent regulation barred perfect transferability. Each year, commissioners could refuse license renewals.g5 Therefore, disgruntled squatters correctly described the commissioner as complainant, judge, and jury. The govern- ment had deliberately arranged this to secure "prompt and decisive action," in order to protect the crown's title to the land.86 Thus, though squatters found commissioners helpful, as embodiments of the government's authority to eject they were an evi1.87 "The Caprice and Whim of a Commissioner of Crown Lands," wrote one indignant squatter, "was a poor sort of Tenure for the unfortunate sq~atters."~~

Squatters protested that commissioners behaved arbitrarily; however, this may have been a code for having been caught and duly punished. Government orders guided decisions about whether or not commissioners should grant or renew a license. The character of the applicant remained a consideration. Extensive farming, prohibited under a license, could be the basis of a warning. Encroachment precipitating disorder was a firm reason for denying a license. If abandoned-even temporarily-a run might be licensed to another squatter. Official policy toward Aborigines guided commissioners, too. As squatters increasingly clashed with Aborigines in the early 1840s, their conduct could reflect on their character and hence prospects for a license renewal. Prudent commissioners asked the colonial secretary to review the decisions they reached when interpreting official circulars.89

82 ANSW, 412680, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, John Lambie to Colonial Secretary, May 21, 1845. Lambie had been approving such agreements since 1842. VPRO, VPRS 95, unit 1, Commissioner of Crown Lands, Western Port District, Correspondence Received, [name illegible] of Maiden Hills to Powlett, January 5, 1846. Gipps to Stanley, April 16, 1844, HRA, vol. 23, 546. ANSW, 412759, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, H. M. Borthwick to Colonial Secretary, August 10, 1846.

83 ANSW, 412601, Colonial Secretary, Letters and Reports from the Commissioners of Crown Lands, Lambie to Colonial Secretary, September 15, 1842.

84 Maurice French, A Pastoral Romance: The Tribulations and Triumph of Squatterdom (Toowoomba, 1990), 19. ANSW, 413660, Colonial Secretary, Copies of Letters Sent, S. W. Elyard to Edward Mayne, September 7, 1842.

85 For examples of approvals that began as rough notes and developed into printed forms, see ANSW, 217625, Commissioners of Crown Lands, Liverpool Plains, 1843-47, Letters Received, C. W. Adams to F. Allman, May 4, 1845; W. H. Davis to Roderick Mitchell, May 6, 1846.

86 Roberts, Squatters' Age in Australia, 90. Roberts did not understand that the prompt action benefited the crown. 87 ANSW, 413660, Colonial Secretary, Copies of Letters Sent to Commissioners of Crown Lands, W. Elyard, Jr., to Robert Massie, April 9, 1844. ANSW, Commissioners of Crown Lands, Liverpool Plains, 1843-47, Letters Received, John McGeachie to Robert Bligh, April 4, 1848. 89 ANSW, Colonial Secretary, Copies of Letters Sent to Commissioners of Crown Lands, 413659, Edward Deas Thomson to Henry Oakes, September 25, 1839. On the prohibition of agriculture, see

In addition to instructions and counsel from Sydney, customs assisted commis- sioners in rendering judgments. Customs about boundaries directed judgments about encroachment; customs about abandonment influenced decisions about whether to let other squatters onto a run.90 Custom was what commissioners derived from conversations with squatters, and therefore it advanced squatters' property rights. In late 1843, Governor Gipps approved of custom, although he asserted concurrently the government's prerogatives. To guide the commissioners, he recommended they act "according to the established usages and customs of the Colony." Any departure, after late 1843, required government sanction, which would not "for light causes depart from that which has been established by usage, though it has the unquestionable right to do so, or of changing the usage of the Colony."gl The government labored to affirm the crown's rights; all the while, it sought an economical path to fairness and order. Achieving the latter two aims seemed impossible without relinquishing more property rights. Growth of these and the avoidance of fees by squatters who occupied "a most unreasonable quantity of Land under a Single License"92 obliged Gipps to reconsider licensing. The ensuing struggle between government and squatters had to come; it ended with an act of the British Parliament and an Order in Council that imposed a new policy on all Australian colonies.

NOTLONG AFTER THE ENLARGEMENT OF SQUATTING beyond the Limits in New South Wales, it developed in Western and South Australia, small colonies with distinct origins. Established in 1829, the Swan River Colony (Western Australia) was populated by recipients of land grants whose acreage was correlated to the value of capital and number of settlers they brought. Implanted with landlords and tenants, this colony was supposed to unfold as a transcript of rural England, but it suffered economically as a result of its isolation and the limited assets of would-be landlords. Private-market land prices stayed depressed. The floor price on crown lands exceeded what the market would support. Squatting inevitably followed. Officials knowledgeable about the colony's economic liabilities attempted in the early 1840s to give pastoralists legal occupation with easy terms by granting leasehold or a right of commonage adjoining homesteads. The Colonial Office rejected these measures

ANSW, Colonial Secretary, 413659, Copies of Letters Sent to Commissioners of Crown Lands, Thomson to Oakes, September 25, 1839. For attempts to restrain squatting in hostile areas, see 413660, Copies of Letters Sent to Commissioners of Crown Lands, Thomson to W. H. Wright, September 26, 1843. On denying licenses to squatters who mistreated Aborigines, see 413660, Copies of Letters Sent to Commissioners of Crown Lands, Thomson to Henry Bingham, October 6, 1843.

90 ANSW, Colonial Secretary, 413660, Copies of Letters Sent to Commissioners of Crown Lands, Thomson to Lambie, April 18, 1842. ANSW, 412674.2, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Macdonald to the Colonial Secretary, with enclosures, August 24, 1844.

91 ANSW, 413660, Colonial Secretary, Copies of Letters to Commissioners of Crown Lands, Thomson to Lambie, November 29, 1843. Thomson indicates that this letter is a circular to the commissioners of crown lands outside the Limits.

92 ANSW, 413660, Colonial Secretary, Copies of Letters to Commissioners of Crown Lands, Thomson to George Macdonald, April 11, 1844.

as endangering the sale of crown land. In 1844, after much bitter wrangling, London approved a local law that permitted licensing.93

South Australia was to have been surveyed before settlement by a convict-free populace. Promoters of the colony intended that land revenues would finance pauper immigration from the United Kingdom. These declared goals fostered myths, including the notion that settlement in South Australia progressed neatly from a design. While the founders' ideals placed a free yeomanry at the center of development, realities were different. Survey before settlement broke down, and pastoral enterprises multiplied from the beginning. In June 1835, when the sponsors of colonization drafted rules for the disposal of land, they introduced leasing "to afford the greatest facilities for the growing of wool, and the rearing of live~tock."~~ Survey before settlement was attempted around Adelaide, but by 1838 free selection was occurring even near the town site, and squatting had begun. Plans to control grazing, first by leasing and then by licensed grazing on commonage, floundered. South Australian authorities confronted unsanctioned grazing along the broad margins of a blueprint.

South Australia first tried to supply cheap pasturage by introducing leases. Individuals who purchased preliminary land orders received a right to lease unoccupied lands. For every forty acres bought, one could lease a square mile. Theoretically, the alienation of land would ultimately restrict the availability of leasehold tracts. However, before that predicament occurred, holders of the first land orders created a stir by demanding a presumed right of first selection of leased lands. They chose their freehold land and laid claim to a substantial leasehold nearby; they exercised a sanctioned version of the squatters' ploy in New South Wales, whereby carefully chosen freeholds controlled "back runs." By late 1838, new immigrants protested against this right of first selection.95

The government, eager to attract capital to its "incomparable pastures," revised rules for commonage. Starting in 1840, anyone could lease a square mile for three years. Immediately, this arrangement collapsed, because it assumed boundaries at a time when surveyors faced a hopeless backlog of work. In 1842, new regulations abandoned the assignment of defined areas of commonage and introduced a capitation fee on stock that ran on unalienated crown land. Much commonage had dissolved into squattage. In the early 1840s, new areas of pastoral squatting had begun to open away from the heartland around Adelaide. Choice grazing lands along the Murray River and on the fertile volcanic slopes of Mount Gambier lay temptingly close to expanding pastoral operations in neighboring Port Philip Bay. Before South Australian surveyors could chart outlying areas, grazers had envel-

93 A measure in 1841 granted ten square miles of commonage for each purchase of 160 acres. Commonage would be reduced as settlers moved in. The home government opposed the plan, alleging that too much commonage retarded land sales. The government of Western Australia introduced other measures favorable to squatters or lessees, only to have the home government veto them. The Western Australian Journal, June 19, 1841; The Perth Gazette, July 16, July 30, August 6, August 13, August 20, September 10, December 10, 1842; The South Australian Government Gazette, August 5, 1843; January 26, 1844. The Perth Gazette, December 10, 1842. J. M. R. Cameron, "Land Policies in Pre-Convict Western Australia: Rhetoric and Reality," Social Sciences Forum 4 (June 1977): 1-25.

94 The South Australian Government Gazette, August 18, 1842. 9s The South Australian Government Gazette, August 18, 1842; The South Australian Government Gazette, July 23, 1840; August 18, 1842.

1004 John C. Weaver

oped them with stock. At that moment, in the mid-1840s, all colonies had to reconsider squatting and grazing.96

In New South Wales by 1844, commissioners' reports showed that licensing lay in tatters. On the one hand, squatters and commissioners fashioned with inexact boundaries a de facto cadastral system that undermined the government's attempts to deny property rights. On the other, squatters actually accepted an open-pasture concept when it suited them, occupying several runs under a single license and stating that the license referred to no run in particular. This ability of squatters to control vast tracts for trivial sums while their property rights grew enraged Gipps, who faced a deadline. The act that empowered commissioners was due to expire in June 1846, after which the crown would labor under a cumbersome legal process if it tried to remove squatters. Squatters, meanwhile, had demands identical to the illegal occupants of the United States' public domain. They wanted compensation for improvements to the land when the government sold it to third parties.97 In both America and Australia, squatters knew that indemnification could deter buyers and safeguard their own occupation. Further, they wanted preemption-the first option to buy land when the government put it on the market.

During 1844-1846, Governor Gipps and his opponents sparred at home and in England. Still relying on the authority of an act soon to expire, Gipps issued new regulations on April 2, 1844. They required squatters to take out separate licenses for each station, limited the basic size of a station to twenty square miles, and specified that no one license could cover a station capable of depasturing more than 4,000 sheep or 500 cattle. Gipps wanted to control the transfer of licenses and sell them by annual auction. These provocative ideas would have destabilized the squatters' ad hoc arrangements for exclusive occupation and transferability. Gipps's 1844 regulations and his radical supplementary thoughts were aimed at breaking up large stations and intensifying the exploitation of land.9g

Squatters and their urban backers organized public meetings and a petition campaign within days of the publication of the 1844 regulations. In the Legislative Council, squatters' friends established a select committee to inquire into the administration of crown lands. The committee reported what it set out to find: justification for granting more interests in the land to those who had given it its "real value."" The Legislative Council also let expire the crucial act that empow- ered commissioners to eject squatters. At first, the Colonial Office supported Gipps, but in August 1846 the English Parliament passed an act that provided for leases of not more than fourteen years, compensation for improvements, and some

96 The Sozith Australian Goifernment Gazette, August 18, 1842; November 3, 1842. State Archives of South Australia, GRG 24/90. docket 270, Colonial Secretary's Office, docket 270, Charles Bonney, Commissioner of Crown Lands, to Colonial Secretary, November 6, 1843.

97 2 Vic., NO. 27 continued by 5 Vic., No. 1gave the commissioners of crown lands the power, as stipendiary justices of the peace, to fine unlicensed squatters summarily and repeatedly. Without the act, the government would have had to give the squatters more legal process. See Gipps to Stanley, April 3, 1844, HRA,vol. 23,517. Squatters wanted remuneration for capital investments, even though they had plundered the land. For their attitudes about improvement, see Papers Relative to the Occupation of Crown Lands: Minutes of Evidence Taken, 72, F. Macarthur; 81-82, Oswald Blaxsome.

98 See Roberts, Squatters' Age in Australia, 214-62. The South Australian Government Gazette, April 2, 1844. Gipps to Stanley, April 3, 1844, April 4, 1844, HRA,vol. 23, 511-14, 518. 99 Report of the Select Committee on Crown Land Grievances, Appendix of Minutes, 1-112. The appendix contained the replies of over 120 justices of the peace who were sent a questionnaire.

preemption rights. Because leases required some definition of property lines, their actual introduction took years. The interlude of this fifth phase of squatting inspired a host of disputes, for the promise of leasing had changed expectations and upset the equilibrium of squatting.

Squatters quickly took advantage of rare opportunities: a few dashed off deeper into unoccupied lands to grab as much as possible, because they anticipated that leasehold tenure would increase the market value of their runs. Tension increased because creditors disputed whose name really belonged on a license and hence on a future lease. Some grazers had to finalize their boundaries with neighbors. Those who recognized they could lose territory dragged their feet while the government pressed them to describe lands accurately or pay for an official survey.lOO Where squatters calculated that they could turn a quick profit from selling leaseholds or preempted freeholds, they pressed for rights immediately. This happened on the rich soils of the Darling Near the Victorian gold fields, squatters wanted their interests speedily confirmed so they could raise and sell crops, market leaseholds to miners and settlers, or preempt a portion of their runs and sell the newly acquired freehold. The government used delays to declare numerous government reserves, whose acres it sold. Squatters screamed foul, claiming that as expectant lessees their rights were being infringed.lO2 More accurately, their windfall profits had been hijacked. Thus, in the closing days of licensing, squatters and their creditors once more raked up questions of legal interests.

With leases in hand, squatters concluded a transformation of the land from a place of ecological relations mastered by Aborigines to parcels of assets managed by Europeans. As for the Aborigines, they suffered the abduction of their women, European diseases, losses during skirmishes, and local campaigns of genocide. Many who survived and stayed on the grazing frontiers became exploited laborers on sheep and cattle stations.lO3


AN AMERICA On Australian and American frontiers of the early nineteenth century, squatters applied natural justice arguments, possession, and political influence to legitimize what had started out as illegal occupation. The impetus for maneuvering was to reap riches quickly. If it is true that wants could be met by producing much or wanting little, the squatters and native peoples had antithetical beliefs. And on account of that, lands were stripped

looANSW, 217625, Commissioners of Crown Lands, Liverpool Plains, 1843-47, Manager of Bank of Australasia to Roderick Mitchell, August 11, 1846; James King to Roderick Mitchell, November 1, 1847. ANSW, 412759, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Thomas Bell to Colonial Secretary, June 5, 1847; W. C. Mayne to Colonial Secretary, August 7, 1847. State Archives of Queensland, CL0122, Commissioner of Crown Lands, Commissioner of Crown Lands for the Darling Downs to Chief Commissioner of Crown Lands, September 2, 1850.

lol ANSW, 412759, Colonial Secretary, Letters and Reports Received, Commissioners of Crown Lands, Petition from the Occupiers of Crown Lands at Drayton, Darling Downs, June 10, 1847.

lo2Campbell, Crown Lands of Australia, 11-31.

lo3See C. D. Rowley, Aboriginal Policy and Practice, Vol. 1: The Destruction of Aboriginal Society (Canberra, 1970); Jan Critchett, A Distant Field of Murder: Western District Frontiers 1834-1848 (Melbourne, 1990). Memoirs and the reports of the commissioners of crown lands contain abundant accounts of the violence. For Aborigines in the pastoral labor force, see Dawn May, Aboriginal Labour and the Cattle Industry: Queensland from White Settlement to the Present (Cambridge, 1994).

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from the native peoples. To gain their own legal interests, Australian and American squatters both demanded compensation for improvements and the right of "pre- emption." Here, major similarities end. The legal interests that squatters secured in Australia differed from what American counterparts won in the Old Northwest and prairies. So did the processes for gaining them. Australian squatters did not strive to own all of the land they used. Early on, they realized that they could control ample territory by a few judicious purchases; later, they accepted leasehold rather than freehold. Additionally, the high prices for crown land precluded general purchasing for grazing. Whereas American squatters were small operators or professed that status, the Australians started big. A temperate environment, decent soil, and democratic ideology favored smallholders in the Old Northwest and on the prairies; aridity and the legitimacy of social stratification in British colonies favored "squattocracy" in Australia.

What happened in New South Wales had its counterparts in South Australia and Western Australia. Experiences were similar around the arid continent. However, in the United States, the Old Northwest and prairies represented merely a pair of many frontier patterns. Instead of comparing Australian squatters with those on American bottom lands and the prairies, two other groups that established possession could have been selected: the American stockmen who "liberated" Texas or the grazers on the high plains. Stock raising in harsh environments required cheap and extensive territory. Mexican land grants provided this to grazers. Therefore, Americans swarmed into Texas at about the same time as grazers were squatting within the Limits in Australia. Many Americans in Texas were squatters. In the early 1830s, Mexico estranged both the legitimate and unauthorized American grazers with acts hostile toward their indirect invasion. Mexican officials shared the apprehension of British administrators in Australia who saw land being lost to unauthorized occupants. After their successful revolt, the American leaders of the Republic of Texas distributed public lands recklessly.lo4 The ranchers who entered the high plains in the 1860s controlled land under a system that resembled that of Australian licensing without the commissioners of crown land. By the late 1860s, they occupied parts of the public domain and later took out licenses that conveyed no interests.

American grazers rejected the Australian leasehold model "on the high ground of principle and outraged references to entails, federal landlordism, and tyrannical officialdom."l05 To avoid federal rents, they relinquished legal interests. These interests may not have mattered to cattlemen, because their associations regulated access to the open range by intimidation, the occasional range war, and their management of annual stock round-ups. Later in the nineteenth century, like Australian counterparts, they also secured water rights to control grazing areas. Grazers on the high plains evaded the modest impress of official order that Sydney officials had attempted when they combined licensing with supervision by commis-

lo4Thomas Lloyd Miller, The Public Lands of Texas, 1591-1970 (Norman, Okla., 1972), 12-30; David

Weber, The Mexican Frontier, 1821-1846: The American Southwest under Mexico (Albuquerque,

.Mex., 1982), 158-78, 242-72.

lo5United States Public Lands Commission, Report of the Public Lands Commission Created by the Act of March 3, 1879, Relating to Public Land in the Western Portion of the United States and the Operation of the Existing Land Laws (Washington, D.C., 1880), 544.

sioners of crown lands. Colonial administrators in Australia were more authoritar- ian than republican politicians; the English social model of landlords and tenants was not anathema to them.

Environment and culture conditioned how land seizures were undertaken. That Texas, the high plains, and Australia-what looked like similar environments- produced discrete forms of squatting suggests that culture influenced the details of several nineteenth-century land grabs. Environment, too, made a difference on the American high plains. The harsh winters at higher altitudes made ranchers staunch supporters of open ranges, so they could move their stock down to winter pastures. Texas ranchers favored an open range, so they could drive stock to the railheads. Divisions among American grazers who could not agree on a new system of usufruct on the public domain contributed to the persistence of licensing.106 These and other details should not be ignored, but they do not add up to a unique experience.

The cardinal judgment is not that the settlements of America and Australia were different but that, in both places, squatters' struggles for interests in the land defeated government schemes. Personal ambition and greed trampled over the rules of allocation. Comparisons, wrote Donald Denoon, "can reveal with unusual clarity precisely what is unique to a particular society, and remind us of the human abilities and weaknesses which are common to us all."107 Squatting reminds us of the cunning abilities and moral weaknesses evinced by pioneers who seized new world lands.

106 U.S.Public Lands Commission, Report of the Public Lands Commission, 544. John Clay, My Life on the Range (1924; rpt. ed., New York, 1961), 188. 107 Denoon, Settler Capitalism, 16.

John C. Weaver, a graduate of Queen's University (Kingston, Ontario) and Duke University, is a professor of history and the dean of graduate studies at McMaster University. He is interested in urban and legal history and is the author of Crimes, Constables, and Courts: Order and Transgression in a Canadian City, 1816-1970 (1995) and, with Michael Doucet, of Housing the North American City (1991). The article in this issue is the product of an ongoing study on land and new societies in the nineteenth century, a consideration of how land was acquired, allocated, traded, and altered in Australia, Canada, New Zealand, South Africa, and the United States.

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