State Library of Victoria > La Trobe Journal

No 88 December 2011

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Maggie Black
The Battle for the Lands: glimpses from a squatter's correspondence

Are we not all men of yesterday in various degrees, the democrats of the day in all things having a majority (Niel Black)1
The Dawn of 1861 finds Niel Black – squatter, pastoralist, Member of the Legislative Council, proprietor of lands in the Western District2 – laid up in a state of enforced rest in his new house at Glenormiston. He had been riding on an inspection tour of his neighbouring run, 'The Sisters', to examine land put up for sale on it. Three miles from home – as he writes to his partner, T. S. Gladstone – 'My horse came down, throwing a complete summersault, in which process I appeared to rival him. The result to me has been two broken ribs and collar bone the same'.3 At 56, he is lucky that the damage is no worse.
Involuntary inaction has in no way dampened Black's ardour to contest every last section of cultivable, grazing, or reserve land put up for selection on runs that 'our concern' – Niel Black & Company – holds under license from the Crown. The first legislated step in the battle to prise men like Black from their broad acres, the Land Act passed in September 1860, is now being carried into effect. He is determined to hold onto the acreage into which he has poured his energies and Company's resources over two decades.
To him, the injustice is not that he and other squatters have gained a stranglehold over large tracts of the public domain. It is that hot-headed diggers and 'democrats' who understand nothing of the obstacles pioneers such as he had to overcome, or of the productive possibilities of the lands they occupy, are trying to deprive them of the holdings they went through fire – sometimes literally – to create, and cast them, their flocks and herds onto the scrap-heap of history.4 Broken bones or no broken bones, Black is up for the fight.
Black's correspondence, held in the State Library of Victoria, provides an extraordinary lens on the battle over land ownership and occupation which engulfed political life in early 1860s Victoria. At stake was a revolutionary experiment in land distribution that contravened the 'free trade' ideology dominant in the mother country, by requiring government intrusion into the development of the market in a key capital asset. Such a proposal was shocking to men of mercantile and proprietorial interests who lived by the market, as did Black. It also threatened them with ruin.
The battle over the lands became entrenched in 1857. A bill to confer preferential means of purchasing Crown land on men of modest resources, as opposed to selling
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it at whatever price it would fetch to in situ tenants, was thrown out by the Legislative Council, demonstrating thereby both its pro-squatter caste and its fighting mettle. But the stand-off could only get more bitter, encapsulating as it did a far wider struggle over economic resources and political power in the newly self-governing colony. On this struggle went, through the formulation and passage of land acts in 1860, 1862, 1865 and 1869, a process dogged by populist ferment, political crisis and ministerial collapse. Each attempt to foster 'selection' and dislodge the squatters by means of the law seemed utterly to fail. Each failure led to a successor Act to resolve the shortcomings of its predecessor.5
1861 was an important year, the year in which the first Land Act to make it onto the statute book was put to the test. Until this was done, no-one could foresee exactly what would happen when the various contestants – squatters, officials, 'selectors' – came face to face on the ground. Who would ally with whom to influence the operation of the Act? And under its workings, who would gain or suffer?
Black personifies one of the parties to the contest – in different hues, some sympathetic, some much less so. He is often a caricature of the expostulating squatter, a redoubtable 'man of yesterday' doing his damnedest from a position of wealth and privilege to hold at bay the rising bourgeois tide. But he is also the genuinely beleaguered, decent, upstanding, grazier-entrepreneur whose portfolio of problems – aside from the land issue – includes low fat stock prices, high input costs, fires, droughts, diseases in the cattle, thistles in the grass, 'stranger' incursions on his runs, and repeated complaints from his partners in Scotland about their low remittances.
Although he manages to pick his way through the minefield of successive Land Acts and maintain his grip on the Company's holdings, this outcome is by no means assured at the start. The route is unmarked, the terrain unsure, there are no real antecedents,6 and all participants, including Black, trim their scruples as the battle ebbs and flows. He is set on gaining ownership of the Company's land at whatever price, while his Scottish partners repeatedly try to rein him in. Black's account of his travails as revealed in his correspondence illustrates that day-to-day personal experience of events intersects unpredictably with received historical wisdom. Although the battle for the lands turned out to be heavily weighted in favour of men such as he, retrospect is a wonderful thing. Several fellow squatters went under.
Black was a vivid letter-writer, especially to his principal partner, Thomas Steuart Gladstone of Capenoch, Dumfriesshire. This wise and genial figure is the respected friend and mentor to whom Black confides his actions, even when they reflect badly on himself. He copied his correspondence to Gladstone in letterbooks containing literally hundreds of thousands of words for the early 1860s alone. Land is a constant, interwoven with politics, stock prices and ailments, his nephew Archie's misdeeds, colonial snobberies and the vicissitudes of public life. Gladstone was a successful Liverpool merchant, and first cousin of William Gladstone, later Prime Minister of Britain. He and his friend Alex Finlay of Castle Toward, Argyllshire, another landed proprietor, were the key financial backers of Niel Black & Co. The ambitious tenant farmer and stock trader had managed
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Niel Black, M.L.C., c.1860

Photograph by Batchelder & O'Neill. Victorian Parliamentary Library.

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to win their commitment to his enterprise in late 1838, sailing to Port Phillip from Glasgow in 1839, and taking up his first flocks and stations around Mount Noorat in early 1840.7 Black had weathered the serious depression of the 1840s and seen his labours on behalf of himself and his partners come good. In 1850, he went back to Scotland aged 46 to find himself a wife, leaving his young nephew Archie in charge. Acceptable Scottish brides willing to take on this formidable figure did not prove numerous and Black was away for nearly eight years.
In 1858, a wife having finally materialised and Archie having come worryingly unstuck, Black returned to Victoria to take Company matters in hand. Although he thought he had kept himself fully informed, he was taken aback – both by the state of Company affairs, and by those of the colony, which gold and immigration had transformed in his absence.
The Company had done well from the extraordinary rise in fat stock prices, and Archie had purchased significant stretches of land on Glenormiston.8 But the combination of a swollen bank balance and his uncle's long absence derailed him, and Black found endless fault with his much put-upon nephew. Meanwhile, Victoria's uniquely advanced state of democracy, especially manhood suffrage, left Black aghast. He wrote to Gladstone in tones of foreboding about the colony 'fast sinking into the trough of a deep wave. Where and at what distance another wind will come to lift it up is a matter that is placed beyond the light that is in me to see clearly'.9 He saw the mass of uneducated voters as open to manipulation by upstart politicians intent on power for personal gain, and deplored the 'rampant democracy' that had taken hold since he went away.
Populist demands for land were seen by Black and other 'Old Settlers' not only as a spiteful attack on their class, but as an assault on the natural order whereby men of capital made the land productive and underpinned the colony's economic prosperity. Attempts to upset this balance would, he believed, bring back the depression of the 1840s and inflict ruin on a country otherwise blessed with natural advantage. Such views were shared not only by conservatives, but by many liberals. But the radicalisation of political life and the accompanying vilification of the squatters made it difficult to express support for a cautious land policy without attracting obloquy. By 1859, questions relating to land distribution and settlement had become 'a giant complex', subsuming other acute political and social problems.10
The image propagated by – largely urban, working or digger – reformers, and endorsed by Governors Gipps and La Trobe, both in thrall to an agricultural ideal,11 was of smallholder farmers nestling in English-style villages throughout the plains of the Western District. This vision gained a political impetus that could not be stemmed, never mind that it was hopelessly unrealistic. This was known both by those who understood the environment because they lived in it, and by the government's own surveyors. An extensive yeomanry living on small-scale agriculture was a non-starter; grazing was the only viable use of most of these lands for the time being.12 Black personally had no wish
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Recapitulation of all Lands Bought and Leased in the Colony of Victoria

In 'Supplement to the Statistical Report of all Lands Bought and Leased by Niel Black & Co. down to 1st January 1863', p. 126. MS 8996, Records and Personal Papers of Niel Black, Australian Manuscripts Collection.

to stop farming settlement where it would succeed. He frequently expressed the desire to see more farmers – owners and tenants – settled on the land, including on his own; but in a way ordained by practical wisdom and market rates, not by ideology. He saw all such people, where they were bona fide landsmen and especially if they were Scots, as allies, comprising a composite group, class-tiered though he would expect the group to be.
In 1859, Black gained election to the Legislative Council, to represent squatting interests and promote sound land use and development against the hue and cry of demagogues and 'the mob'. He deplored the indifference of most squatters to political responsibility, which he believed was an obligation of service owed by those with the privileges of wealth and social position.13 Time and again he tries to find words to
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Map of Glenormiston, 1865

MS 8996, Records and Personal Papers of Niel Black, Australian Mansucripts Collection.

explain to Gladstone the disastrous state to which he believes public life in the colony is descending. 'Packs of hungry dogs have reached our shore and the poor squatter's dog will not be allowed to enjoy in peace the home he obtained through years of anxious toil and labour. . . . The leaders of the democratic party are bent on spoliation, calling it the just rights of the people.' 'The mind of the nation – the ruling and Governing mind – is rude, untended and uncultivated as the soil not yet emerged from a state of nature. What sad experiences we have to face through before we can reach in political wisdom the status of the old country.'14 If his rhetoric often sounds exaggerated, it is mild by comparison with that of many contemporaries fulminating in the pages of the Argus and the Age.
During 1860, a bill to introduce a fairer land-owning regime endured an agonising Parliamentary gestation. While the contest over its provisions raged back and forth between Assembly and Council, Black was both attending debates and pursuing his own affairs. He and his wife Grace, now the mother of a small son, lived in South Yarra while a new family home was under construction at Glenormiston.
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'I had an interview with the Chief Secretary', he writes to Gladstone in April 1860.15 'I had a lithographed map of a considerable portion of "The Sisters" with me, on which I pointed out to him the way in which our purchases there stand detached' – meaning they are piecemeal. He also pointed out to Chief Secretary William Nicholson, a man he thought 'plain, decent and commonplace' but not admissible to membership of the Melbourne Club,16 that the land on which he had built a dairy and other improvements was not yet in his hands, and that 'all the watering places are artificial, made by damming the water, all done at our private expense'. As long ago as 1858, he had been promised that these lands would be brought onto the market. Bringing Crown lands onto the market favoured the squatter, so he is explicitly asking that his purchase of freehold on his run be facilitated before any Act for selection comes in.
Such a barefaced attempt to influence government in his favour would today be an abuse of Parliamentary position. Then, this kind of twisting of the Ministerial arm was normal practice. Since early 1860, the administration had been allowing individual squatters the opportunity to buy sections of their runs by putting up these lots at auction, on the understanding that this was a 'last chance'.17 Even James Service, the Lands Minister and author of the bill, a man deeply committed to the democratic view, was prepared to allow the squatters such a window.18 So Black, with his carefully drawn maps, his list of dams, dairies, and improvements the Company had built, and his specific request for blocks that will unite his run and give his stock access to water, is merely doing the same as his fellows. Nicholson is sympathetic: he promises Black to 'get it brought onto the market for me, but that the quantity I wanted must be offered at two different times so as not to attract too much notice'. And there is a quid pro quo. If the land is put up for sale, Black will be expected to support the Land Bill when it arrives in the Upper House. 'This is tasteless work but out of it I will take all the good I can without compromising my honour but that is a [barrier] I never did and never will cross from mortal gain.'19
Over the next months Black has further interviews with Nicholson. The Chief Secretary instructs Service to put up the land for sale, but while similar requests are granted, this one is ignored.20 Black is sure that the District Surveyor, Robert Scott, whose allegiance is critical in any matter concerning Western District land, has been working against him. For this, he blames his nephew Archie for having been seriously rude to Scott's wife. Scott is not Black's only problem. Service, the reformist Lands Minister, is Black's MP. He is bound to oppose monopoly of land by a Company with absentee partners in Scotland, and his constituents in nearby Terang compound his unwillingness to do Black favours. 'Stranger' horses being grazed on Glenormiston without permission have been impounded by Black's overseer, tidying up after Archie's lax administration.21 Their owners are demanding the right of pasturage on Crown reserves, even if such lands are under licence to a Crown tenant. The need for commonage is another bone of contention the land bill is supposed to resolve.
While Black is going all out to buy land, his partners are bewildered. They had agreed before he returned from Scotland that the Company would be wound up as soon
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as possible and its assets split. But until he has secured ownership over sufficient land to make three unified estates of 8-10,000 acres, Black is not ready to dissolve the Company. The purchased land on Glenormiston is contiguous and can be divided in two. But Sisters in its piecemeal condition is no good; worse, the lower acreage already bought will have little value unless it can be united and properly fenced. Without enclosure of paddocks, stock diseases spread, thistles spread, pests spread and 'improvements' cannot be economically undertaken. Land can only be valuable after ownership and improvement have worked their leaven.
Black explains his 'three estates' strategy repeatedly to Gladstone and Finlay, sending colour-shaded maps – what has been bought, what needs to be bought, what neighbours have bought – for illustration. But they did not invest in Black's enterprise to become landed proprietors in remote Victoria – a prospect to Gladstone as distant as settling on the moon. What they want is cash, the realisation of profits, the sale of assets before some revolutionary law or economic downturn sweeps all away. But moving Black from his course is tantamount to dealing with a force of nature. 'To this plan I stick through thick and thin, without fear or favour,' he writes.22 And he does. His pen works overtime, his clerk John Buys, the map-maker, also.
May, June and July 1860 see repeated efforts to wreck the Land Bill by the Council, followed by repeated Assembly efforts to repair it. At the end of May, Nicholson resigns. News of this crisis is conveyed to Black by the Governor, Sir Henry Barkly, who flatteringly calls him in for 'consultation'.23 Barkly's strategy is to summon the most obstructive Council members and persuade them to be more cooperative, or face the arrival in power of a Ministry far more antagonistic: one made up of 'democrats'. Barkly suggests that those who make such sound and fury should have their bluff called by being given 'a trial' in government – an idea greeted by Black with horrified amazement. But Barkly's negotiations are unsuccessful and Nicholson resumes power – expecting after the Governor's 'consultations' to receive more Upper House support. They budge very little.
Black veers between feeling that the bill is harmless – as he has been encouraged to believe by Barkly; and sinking into despair when the Council seems to be caving in to pressure: 'All hope of comfort or peace on our squattage is gone . . . Class legislation never went so great a length before in any country.'24 When told that land at Sisters will definitely not be put on the market at present, he detects a conspiracy. A more reasonable explanation is that whatever land still remains unsold in the sought-after Western District has, for political reasons, to come within the purview of the Act.25 Black's real unacknowledged – mistake was to stay away so long in the 1850s, leaving everything in Archie's erratic hands.
The story of the Land Act's passage is one of high drama. After endless stand-offs between Assembly and Council and another Nicholson resignation, Barkly determines to get the bill through come what may. He recalls Nicholson, lame duck though he has become. Deadlock is finally broken by the democrats' rabble-rousing antics. On
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Two Views of Glenormistom, one a photograph, the other an artist's impression.

Glenormiston, c. 1866. Collection of descendants of Steuart and Isabella Black.

Glenormiston, the Residence of Niel Black, Esq

Wood engraving by Frederick Grose (based on illustration by Nicholas Chevalier), Illustrated Australian News, 4 February 1868.

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29 August, a crowd of two thousand angry rioters marches from the Eastern Market to Parliament Yard. Alarmed by the sound of stones on their windows, MPs temporarily unite against the mob and both houses make concessions. The Act is passed in mid-September. Under its terms, a selector can put in for between 80 and 640 acres of surveyed 'country lands' (mostly less good, 'unimproved' lands) at £1 an acre; or purchase part of this acreage and hold a lease on the rest for one shilling a year. No-one may purchase more than 640 acres in a year. There are exclusions and caveats, and improvements have to be undertaken. But a law to help the small man become an independent farmer has at last come into being.
The price, however, is high. The bill's process through Parliament has rendered it unrecognisable, worn out the government and set up a pattern of conflict between Assembly and Council for the next 20 years.26 Nicholson can no longer command the Assembly and loses office in November. The forces of democracy finally enter power, further attacks on the squatters instantly in their sights. On the practical side, the prospects of 'selection' are yet to be seen. The outcome of the Act will depend largely on the way in which land is brought onto the market by the land offices in the districts. Questions are many. Will selectors come forward? If they do, who will they be?
From late 1860 when the Act came into operation, Niel Black is at least able to take up the battle on his own terrain. He is a much happier man on his beloved Glenormiston than in the red plush of Parliament or the panelled embrace of the Melbourne Club. His experiences of the past year have left him sorely disenchanted with public life, relieved to be settled in the countryside with his family on a permanent basis.
Unable to attend the land sales at Warrnambool on 20 December 1860 thanks to his broken bones, Black despatches Archie in his place. Whatever sins he may have committed, Archie is expert at land sales. His uncle has given him the resources necessary to evade the Act by employing others to purchase on the Company's behalf, putting up for 2,000 acres on Sisters. Having long protested that 'I so far succeeded in life without having recourse to expedients that appeared to me dishonest',27 Niel Black has allowed his conscience to relax. But the wily pioneer stoops to the use of 'dummies' with a heaviness in his fiercely upright Presbyterian heart. He writes to Gladstone: 'Yesterday I gave you a sketch of the promising side of the picture' – the Company had gained all the land it wanted, unopposed. 'This day I may give the reverse side. The feeling of having employed some of our own servants to buy for me is so far from being comfortable to my mind.'28 He even sent Archie to sound out the Attorney-General, R. D. Ireland, on the legality of buying under powers of attorney signed by his partners for other purposes altogether, wanting to stay technically within the law.29
He soon rationalises his procedures. Unlike in 1860, when he could not overcome 'official' objections to sales of land on Sisters, in 1861 sales come thick and fast. But there is much navigation to do. At the final hurdle of the passage of the Land Act, the Assembly had conceded the principle that 'special lands' – lands within a mile of an owner's existing purchases – could be put on the market by auction. Limited auction
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Photograph of Glenormiston, c. 1866.

Collection of descendants of Steuart and Isabella Black.

is also to be used if competitors 'select' the same lot. Auction is the sale method that coincides both with 'free market' principles and squatter self-interest: at any auction, the longest pocket prevails. Because auction favoured the wealthy, the democrats had tried to eliminate it from the Land Act altogether, a sticking point with the Upper House. But auction or no-auction was a matter over which governments – even democratic ones were Janus-faced. While political support must go to the less well-off, the higher prices auctions produced filled the exchequer much more effectively than 'selection' at low set prices and deferred payments.
The government desperately needed money at this time, and soon after the Act was passed, large quantities of 'special lands' were put on the market.30 Black is now faced with a different problem: will his financial resources meet the strain and can he get his partners to cooperate? 'We still need all our spare capital for other purposes than building a green or a hot house for Mrs. Finlay', he writes home sourly.31 However, in early 1861, 'special lands' are cut back. The distance of a mile from previous purchases is peremptorily reduced to half a mile. The front line of the enemy is pushing forward, and his scruples recede accordingly. 'In order to connect our land purchases we must select or employ others to select this land for us.'32 He expresses no further reserve about 'dummying'; this has become a way of the world which 'men of the most honourable and high principles are compelled to adopt to protect their interests'.33
By March, he has hired an agent to do this for him. This is Sam McGregor of
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Warrnambool, a man he employed for many years and regarded as a 'thoroughly upright fellow'.34 Dummying is becoming an occupation; squatters recommend trustworthy dummies to one another, and when personal contacts are exhausted, agents hire dummies for them instead. Plenty are available: this is a much quicker and easier way for selectors to make money than by farming. The agents also manage all the other necessary transactions – leases, 'improvements', conveyances – on the squatter's behalf.35
Although the 'simple system of corruption'36 characterising land transactions in the Western District did not reach its zenith until after further Land Acts are passed, its features had already emerged. A shadowy land 'industry' is fledging. Financiers wanting investments equip squatters who have not the funds or power of obtaining credit in a money-tight market to select on their own runs. They can thus remain in place and preserve their herds and flocks. Black explains the process: 'Capitalists arrange for the occupier to purchase as agent for AB&C certain lands in his occupation, this he agrees to do in consideration of being allowed to lease the land at eight or 10% of the cost price for a period of years. These are good terms for the capitalist and saves the squatter from untold sacrifice of his stock, which would be unavoidable in the case of his being bought out by small agriculturalists'.37 The Act allows land to be conveyed or resold after a year; so in cases where the problem is not a shortage of funds, but the 640 acre ceiling per person per year, the 'agent' can buy the land off the original purchaser at the end of 12 months. Thus is the Exchequer deprived of revenues, and the bona fide selector of cheap land. No wonder that the new Ministry reflects aloud in Parliament that it might be better not to apply the 'unworkable' Act's provisions.38
Due to inaccuracies in land records of the period, it is hard to say what proportion of selectors was genuine as opposed to dummy.39 At sales of land on Sisters, Black often records that 'we had no opposition'. While he may sometimes have disposed of it in advance, there must have been many lots no-one contested. Many areas suitable for agriculture had already been settled as smallholdings in the 1850s.40 A drought in 1858-59 had devastated many farmers; Black refers to a tenant of his, William Houston, being unable to pay his rent for the past four years.41
The paucity of new settlers in the early 1860s implies not only that selectors were squeezed out at the sales, but that many viewed the prospects of farming success in as poor a light as the squatters. This would explain Black's outrage at having to sink to devious practice to buy at inflated prices what no-one else wanted. Where the land is good and water accessible due to 'improvements', there is competition; but here he is prepared to buy almost at any price. Such lots cannot be lost without the estate being compromised. 'I was offered £5 per acre for some of the last purchase', he writes to Gladstone in March, referring to 1200 acres on Sisters. 'The same person said he would have a portion of Sisters [at the next sale] if it cost him £10. I must try to fall upon a plan of supplying him otherwise.'42
This purchaser seems to have been a real farmer. But many buyers were already engaging in the land sales purely for speculation. This is described by Black's clerk, John
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Buys, in a hand-written book detailing the Company's land purchases since the 1850s: 'Lately a practise has sprung up of persons offering their services as agents to buy on behalf of the Crown tenant, which he can only decline to accept on the understanding that he will be opposed in every lot. To such an extent has this been carried that these agents professing to represent companies with a large capital at command have by a sort of tacit understanding divided the Colony . . . The success with which these men carry on these nefarious practices has induced a daily increasing batch of a smaller fry of bloodletting horseleeches to follow in their wake, attending all the land sales as their only means of employment'.43 Crown tenants, according to Buys, are thus subjected to blackmail and extortion.
Whatever the many immoralities and their degrees, selectors, squatters, agents, 'capitalists' and even local worthies with an eye to a choice piece of land all conspire to evade the Act.44 Officials, who themselves 'select' or get their cut from others' selections, co-operate. Thus the transactions increasingly form part of a skein of duplicitous land 'business' that is not supposed to exist.45 In time-honoured fashion, the market has found a way to flourish.
As 1861 progressed, so much 'special' Crown land was sold that the revenue crisis was relieved. But pressure from the Ministry remained unremitting – rubbishing the Land Act for populist reasons on the one hand, and finding ways of using it to advantage on the other. The Chief Secretary was now the unlikely figure of 39-year-old Richard Heales, a coachbuilder, temperance campaigner and working man's politician, pushed into leadership as a compromise candidate.46 The Lands Minister, John Brooke, was principally responsible for Nicholson's fall, while some conservatives also held office in a political patchwork created by faction and temporary alliance.47
There is talk of three million acres being thrown open to selection within a year. Black fears the effect on the money supply. Since squatters are the predominant purchasers of Crown lands, fraudulently or otherwise, and will pay whatever it takes, they will be forced high and need long credit. 'Here is one very important influence at work to make money scarce and which must press upon the Banks beyond their means.'48 By May 1861, he is describing capital flight and increased unemployment.49 He makes arrangements to borrow £20,000 at 10%, but implores his Scottish partners to supply the Company with finance rather than expose it to the shaky institutions of the colony. He is also simultaneously trying to settle with Archie for his share of land and stock and arrange his resignation from the 'co-partnery'. This is complicated by the difficulty of obtaining an agreed valuation of assets in a period of price instability and land insecurity. Black frequently cites cases of men in serious difficulty as a result of default. 'It is by profit that property is paid for, and where there is no profit there can be no pay, though the property if in stock is transferred to another.'50
Pressure on the Ministry intensifies with the popular cry that all the land is falling into the hands of the 'kid glove aristocracy' – a term the indefatigable Black finds deeply insulting. Having fiddled with the definition of 'special lands' and allowed
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encroachment onto pastoral runs by farmers claiming commonage, Land Minister Brooke stumbles on a new anti-squatter device. Clause 68 of the Land Act allows 'occupation licences' for inn-keepers, store-keepers and others using Crown lands for public purposes. In flagrant breach of the intention of the clause, Brooke starts issuing occupation licences to agricultural tenants.51 Black is in anguish: 'Where this may end it is impossible to see. Unless these men are speedily driven from office I would not be surprised to see Crown tenants authorised to settle down on the reserves in the midst of our property'.52 By July, the Ministry is collapsing. Instead of dismissing it, the Governor orders a parliamentary dissolution. 'Occupation licences' becomes the democrats' election gambit. They narrowly win, and immediately, agricultural licences start to be issued in their hundreds.53
'I was out on horseback two days ago at six o.c. mustering cattle for the butcher', writes Black. 'The day was cold and rainy, the country wet and plashy but even at this early hour I met a party of Germans, five on horseback and eight on foot, hunting all over our ground in search of land for occupation licences and viewing with envious feelings our purchased land. But where were these men when we risked life and property to make this land of value?'54 The licences become a major bone of contention, with opposition in both Assembly and Council demanding an end to such thievery, especially as many holders turn out to be absentee miners and tradesmen who make no effort to farm.55 The Supreme Court declares the licences illegal and in November, Heales' 'people's ministry' is brought down. The new Ministry, headed by O'Shanassy, is greeted with relief by the landed interest. But O'Shanassy appoints as Land Minister his old ally Charles Gavan Duffy, the renowned Irish nationalist come to grace Victorian political life as the poor man's saviour and the squatters' scourge. Duffy at once embarks on a new land bill designed to right Nicholson's wrongs.
Within months, Duffy's Act reaches the statute book, the Council having made only token resistance. Black explains to Gladstone that the Council was anxious not to lose the new Ministry after the disastrous Heales and his democrats. Plus the squatters have been given the nod behind Duffy's back that they may continue with evasion. Black went to Melbourne to make representations on the bill, and two Ministers, privately and separately, assured him that they did not expect the Act to work. One of these was almost certainly Ireland, still Attorney-General.56 By now O'Shanassy himself has squatting interests and thus has little motivation to make legislation bite too hard.
Duffy's Land Act turned out to be little more effective than Nicholson's. It was badly drafted, and the 'simple system of corruption' which was developing in 1861 continued to evolve unchecked, while Duffy's penalties against it turned out to be unenforceable. The more celebrated historical reputation it enjoyed compared with Nicholson's may be because Duffy was a much more distinguished politician than the one-time grocer who could not be admitted as a member of the Melbourne Club. He also put up a retrospective defence in his autobiography.57
The reason for the dire reputation of Nicholson's Act is the amount of land the
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squatters of Victoria purchased under it, even though it was under Heales that all this land was put up for sale. The squatters managed to buy most of three-quarters of a million acres.58 In many cases, the desire to consolidate their estates was thereby satisfied. Not in every case, however. By November 1861, Niel Black & Co held in fee simple 25,154 acres on Glenormiston, and 7,749 on Sisters;59 altogether purchases under Nicholson amounted to 10,680 acres costing £13,380.60 However Black's appetite for land is far from replete; he is still trying to purchase on Sisters in 1867 when the Company's assets are finally divided.
Black's disillusion with life in the colony is at its most potent in the early 1860s, when he is still half-drawn to going back to Scotland. 'Can my son, born and brought up in the midst of such corrupting influences, enter on the active duties of life with the same purity of mind which was instilled into the Father by more favourable circumstances?'61 Gladstone often asks him why, feeling as he does, he does not return home. But he cannot do this, especially before Archie's settlement and exit from the Company is secured. 'I could not return home and leave matters as I found them [in 1858] and the only alternative was to remain here, change the plan of my whole life, and disappoint my wife of her anxious wish and fond hope of seeing her father again.' The mansion in Dunoon overlooking the firth of Clyde Black had purchased from his father-in-law is resold. 'How could I go home without being certain of a fixed income, and at present the country is in so unsettled a state?'62 The die is cast. Until he is in a position to oversee a prosperous division of the Company's lands his life-work is unfinished.
As 1861 closes there is cause for joy. His wife Grace is expecting another child. This turns out to be a second son, born at Glenormiston and duly christened Steuart Gladstone Black in honour of his friend.63 Despite his fumings, deep down, Black is in love with Victoria, 'my bride of five and twenty years'.64 He never does desert her.

1

Niel Black (hereafter NB) to Alexander Finlay, 21 February 1864, Outward Letterbooks, Niel Black Papers, MS 8996, State Library of Victoria (hereafter NB Papers where all cited Niel Black letters are located). Margaret Kiddle drew from this the title of her seminal work Men of Yesterday: a social history of the Western District of Victoria, 1834-90, Melbourne: MUP, 1961.

2

For a (somewhat unsympathetic) summary of Black's life see his entry in ADB at http://adb.anu.edu.au/biography/black-niel-3003.

3

NB to T. S. Gladstone (hereafter TSG), 20 December 1860.

4

For example, Charles Jardine Don, a working class MP and champion of land agitation, threatened in the Assembly to 'drive the squatters over the Murray with their own stockwhips'. Quoted in Geoffrey Serle, The Golden Age: a history of the colony of Victoria 1851-1861, Melbourne: MUP, 1963, p. 301.

5

This is the received view, and the one current at the time; but J. M. Powell, see below, views the Acts as incremental in both elaboration and effect.

6

Kiddle, Men of Yesterday, discusses the opening of American lands, a parallel often cited at the time, but finds the equivalence unconvincing on many grounds, pp. 229-30.

7

Maggie MacKellar, Strangers in a Foreign Land, Carlton, Vic.: Miegunyah Press, 2008. This contains the journal of Niel Black, covering the period September 1839-April 1840.

8

John Buys, 'Statistical Report of All the Lands Bought by Niel Black & Co in the Australian Colonies', c. 1863, unpublished manuscript, NB Papers.

9

NB to TSG, 12 January 1860.

10

J. M. Powell, The Public Lands of Australia Felix: settlement and Land appraisal in Victoria, 1834-91, Carlton, Vic.: MUP, 1970, p. 75.

11

Powell, The Public Lands, p. 27; John Ireland, 'The Victorian Land Act of 1862 Revisited', Victorian Historical Journal, vol. 65, no. 2, October 1994, p. 130.

12

Powell, The Public Lands, pp. 54-55.

13

Kiddle, Men of Yesterday, pp. 227-228.

14

NB to TSG, 20 February 1860, 14 March 1860.

15

NB to TSG, 14 April 1860.

16

Serle, The Golden Age, p. 287; NB to TSG, 11 Jan 1860.

17

Serle, The Golden Age, p. 296.

18

James Service, (18231899). See his entry in ADB at http://adb.anu.edu.au/biography/servicejames-4561.

19

NB to TSG, 14 April 1860.

20

NB to TSG, 23 April and 16 June 1860.

21

NB to TSG, 23 April 1860.

22

NB to TSG, 19 February 1861.

23

NB to TSG, 16 June 1860.

24

NB to TSG, 25 July 1860.

25

Powell, The Public Lands, pp. 79-80.

26

Serle, The Golden Age p. 296.

27

NB to TSG, 6 July 1860.

28

NB to TSG, 21 December 1860.

29

Richard Davies Ireland (1815-1877), also Attorney-General under the next administration, was sympathetic to the squatters. Black must have known him personally. See Kiddle, Men of Yesterday, his entry in ADB (at http://adb.anu.edu.au/biography/ireland-richard-davies-3837), and various NB letters, notably NB to TSG, 22 March 1861.

30

Kiddle, Men of Yesterday, pp. 231-232.

31

NB to J. G. Hamilton, (the father of a young man sent out to learn about squatting and make his way in the colony, with NB acting as mentor), 23 March 1861.

32

NB to TSG, 24 January 1861.

33

NB to J. G. Hamilton, 19 February 1861.

34

NB to TSG, March 22 1861 and 5 October 1870.

35

Kiddle, Men of Yesterday, p. 239.

36

NB to TSG, [?] December 1866; a phrase from NB's correspondence used by Margaret Kiddle in Men of Yesterday to characterise the working of the Land Acts during the first half of the 1860s.

37

NB to TSG, 22 March 1861; NB to J. G. Hamilton, 23 March 1861.

38

NB to J. G. Hamilton, 19 February 1861.

39

Powell The Public Lands, p. 81.

40

Ibid, p. 67.

41

NB to TSG, 18 May 1861.

42

NB to TSG, 22 March 1861.

43

'Statistical Report', pp. 31-32, NB Papers.

44

J. M. Powell, 'Gamblers by Act of Parliament: some aspects of the first Selection Acts for Victoria', Victorian Historical Magazine, vol. 39, no. 4, November 1968, p. 209.

45

Powell, The Public Lands, p. 105.

46

Richard Heales (1821-1864). See his entry in ADB at http://adb.anu.edu.au/biography/healesrichard-3742.

47

Serle, The Golden Age, p. 302.

48

NB to TSG, 9 April 1861.

49

NB to TSG, 18 May 1861; NB to Alexander Finlay, 22 May 1861.

50

NB to TSG, 21 June 1861.

51

Serle, The Golden Age, p. 304.

52

NB to TSG, 19 July 1861.

53

Ireland, 'The Victorian Land Act 1862 Revisited', p. 133.

54

NB to TSG, 21 September 1861.

55

Powell, The Public Lands, p. 81.

56

Kiddle, pp. 234-5; NB to TSG, 16 January 1862.

57

Charles Gavan Duffy, My Life in Two Hemispheres London 1898, vol. II, pp. 232 and 238.

58

Kiddle, Men of Yesterday, p. 232.

59

NB to TSG, 21 November 1861.

60

'Statistical Report', NB Papers.

61

NB to TSG, 23 November 1861.

62

NB to TSG, 15 July and 18 May 1861.

63

Steuart Gladstone Black, born 14 April 1862, is the author's grandfather.

64

NB to TSG, 20 December 1865.