The Indentures

The formalisation of an agreement between the gentlemen, prepared by Barrister, Joseph Tice Gellibrand (which was shortly to be named the ‘Port Phillip Association‘) in respect to the area surrounding the western half of Port Phillip Bay, was affected on the 29th June, 1835:

“This Indenture made the twenty ninth day of June in the year of our Lord one thousand eight hundred and thirty five Between John Batman of Ben Lomond in Van Diemens Land Esquire of the one part Charles Swanston of Hobart Town in Van Diemens Land aforesaid Esquire Thomas Bannister of the same place Esquire James Simpson of the same place Esquire Joseph Tice Gellibrand of the same place Esquire John and William Robertson of Hobart Town aforesaid Merchants Henry Arthur of Launceston in Van Diemens Land aforesaid Esquire John Helder Wedge of the same place Surveyor John Sinclair of the same place Esquire John Thomas Collicott of Hobart Town aforesaid Esquire Anthony Cottrell of Launceston aforesaid Gentleman William Gardner Sams of the same place Esquire Michael Connolly of Launceston Merchant and George Mercer of the city of Edinburgh Esquire of the other part Whereas the said John Batman did on or about the twelfth day of May one thousand eight hundred and thirty five proceed from Launceston to Port Philip on the South Western Coast of New Holland at the Joint expense and on the account of himself and the several other persons parties hereto for the purpose of effecting an amicable Intercourse with the Aboriginal Tribes who were living at or near Port Philip and who were the possessors of that tract of Country and also for the purpose of obtaining after effecting such intercourse a Grant from the said Tribes of a portion of their tract of Country for the purpose of enabling the several persons parties hereto to export Sheep and Cattle thereon and to carry on pastoral and Agricultural pursuits in connexion with the Civilization . . . 

 – Source:  Excerpt – Indenture dated 29th June 1835  (Transcript)

George Mercer being of ‘Edinburgh‘ provided his the power and authority to negotiation with the British Government:

” . . . John Batman  Charles Swanston Thomas Bannister James Simpson Joseph Tice Gellibrand John and William Robertson Henry Arthur John Helder Wedge John Sinclair John Thomas Collicott Anthony Cottrell William Gardner Sams and Michael Connolly have transmitted full power and authority to the said George Mercer to negotiate with the British Government for a Confirmation on the part of the Crown of its rights to the said Land or a Grant from the Crown of the Land as may be considered most advisable and upon such terms as the said George Mercer may be able to obtain AND WHEREAS the said George Mercer will have to expend a considerable sum of Money in procuring from the Crown such confirmation or Grant and the said several parties last mentioned have agreed with the said George Mercer to repay him all such sum or sums of Money as he may so advance in proportion to the aforesaid undivided Interests in the said Land . . . “

 – Source:  Excerpt – Indenture dated 29th June 1835  (Transcript)

And hence, the ‘Port Phillip Association‘ came into being.

The Indenture awarded:

” . . . hereto according to the several undivided Shares and Interests hereinafter mentioned (that is to say) the said John Batman two undivided seventeenths the said Charles Swanston one undivided Seventeenth the said Thomas Bannister one undivided Seventeenth the said James Simpson one undivided Seventeenth the said Joseph Tice Gellibrand one undivided seventeenth the said John and William Robertson one undivided Seventeenth the said Henry Arthur one undivided Seventeenth the said John Helder Wedge one undivided Seventeenth the said John Sinclair one undivided Seventeenth the said John Thomas Collicott one undivided Seventeenth the said Anthony Cottrell one undivided Seventeenth the said William Gardner Sams one undivided Seventeenth the said Michael Connolly one undivided Seventeenth the said George Mercer one undivided Seventeenth and as to the other two undivided Seventeenths In Trust for such person or persons and in such Share or Shares as the said George Mercer shall by any Deed or Instrument in Writing direct limit or appoint And whereas a certain Report of the proceedings of the said John Batman bearing date the twenty fifth day of June instant hath been transmitted with the concurrence of the said several other persons parties hereto to His Excellency Colonel George Arthur Lieutenant Governor of Van Diemens Land . . . “

– Source: Excerpt – Indenture dated 29th June 1835 (Transcript)

The Indenture was very detailed as in the duty, expectations and responsibility of the newly formed association:

” . . . And whereas it is expedient that possession should be forthwith taken of the said tracts of Land and that Stock should be with all convenient speed placed thereon and that the same should be placed for the next Twelve Months under the general Superintendence of the said John Batman and John Helder Wedge and such person or persons parties hereto of the second part as may think fit to proceed there during that period and it is also expedient that certain Rules and Regulations should be drawn up and defined for the management of such Stock and the Affairs of the said Association until a complete Survey of the Land and division takes place as hereinafter is mentioned Now this Indenture witnesseth And It is hereby declared and Agreed by and between the said several persons parties hereto and each of them Doth hereby bind himself his heirs executors and Administrators to the others and other of them for the full complete and perfect fulfilment and performance of the several Conditions – Stipulations and Agreements hereinafter mentioned (that is to say) 

That each of the said parties shall and will at his own expense well and truly deliver at Port Philip to the said John Batman or to a competent Authority there on his behalf within Six Months from the date hereof five hundred good and improved breeding Ewes and five hundred more within twelve Months from the date hereof that all Overseers Servants and others requisite for carrying on the Establishment at Port Philip shall be hired by the said John Batman or the said John Helder Wedge And that each party on whose Account such Servants may be hired shall pay such Wages as the said John Batman or John Helder Wedge shall agree for and for which they may give an Order to the Servants so employed upon the Party hereto for whose benefit he may be employed and that the said John Batman and John Helder Wedge or one of them shall have the superintendence of the several Flocks and herds which may be so delivered for and on account of the several persons who may have so shipped and delivered the Stock rendering to such person a just and faithful account of the same and of the Increase thereof.  That accounts shall be kept by the said John Batman and John Helder Wedge of all Supplies furnished to the Servants of each party having Stock and of other expences connected therewith which shall be duly paid by such person party hereto on whose account such Outlay shall have been incurred.

That the tracts of Land shall be with all convenient speed properly Surveyed and charted and that the Grant of Geelong shall be divided into Seventeen Shares and the other Grant – Dutigallar into Seventeen Shares.

That all expences to be incurred by the said John Batman during the said term which shall be for the benefit of the General Concern shall be repaid according to the proportions aforesaid.

That during the period aforesaid no Liquor of any description shall be landed on the Settlement for Sale or distribution amongst the Servants excepting only Wine for Family use or medicinal purposes. 

That the management and arrangements with the Natives of every description and also the distribution of Tribute shall be vested solely in the said John Batman.

That all the Servants shall be of good Character and if possible be married Men and proceed with their Wives and families in order to prevent the possibility of any Injury being inflicted upon the Natives.

That the actual expense of surveying the Lands and all expences of procuring the Grant or Confirmation by the Crown either by way of purchase or quit Rent shall be borne and paid rateably and in the proportions aforesaid.

That so soon as the Grant or Confirmation shall be obtained from the Crown or other Act made Known equivalent thereto or intimation given that the Crown will not interfere then that the said John Batman his heirs or Assigns or such other person party hereto or any person In trust for them or him as may have any legal Interest or Title under the Crown shall and will make execute and convey all his or their right title or Interest of in and to the said two several tracts of Land and all other Lands which may be comprised in any new Grant unto and amongst the several other persons parties hereto in the proportions aforesaid to the use of them their heirs and Assigns in fee Simple and Subject only to the Conditions and reservations which may be in such Grants contained.

That in order to determine the portion or share of each party in the Land It is hereby declared and Agreed that the said John Batman in consideration of his personal services and exertions shall be entitled to make the first Selection of one Share not only of the Land at Geelong Point but in the other tract of Land called Dutigallar and that the remaining Sixteen Shares – to each tract shall be determined by Lot.

That no proprietor shall sell or dispose of his Estate and Interest in the Lands or any part thereof for the space of five years to any person or persons except a Co Proprietor on pain of thereby forfeiting all his right title and Interest to his Share in the said lands and every part thereof and the same shall then become a forfeited Share to be divided amongst the other proprietors.

That for the purpose of protecting the Native Tribes and also of enforcing due Order and Morals a Medical Attendant and a Catechist shall be provided at the expense of the Establishment and shall form an Item of general expense to be charged in the said John Batmans General Account.

That a Committee consisting of the said Charles Swanston Joseph Tice Gellibrand and James Simpson shall have power to make further arrangements for the purpose of carrying the Objects of these presents into execution And also to correspond with the Agent in England respecting the Grants and other matters relating thereto.  And that a Committee consisting of the Said Michael Connolly John Sinclair and Henry Arthur shall have power to superintend arrange contract for and direct the Shipment of Stock and the periods and method of completing the same And also to purchase Supplies for the use of the Establishment when required it being understood and agreed that each party shall pay the expence of shipping and delivering his Stock at Port Philip.

That although the Stock shall be under the general management and control of the said John Batman or the said John Helder Wedge during the period of twelve months it is Nevertheless distinctly Agreed and understood that nothing herein contained shall extend or be construed to extend as created a Partnership or Community of Interest but each person shall have a separate Interest in his own Flock and the Increase and returns thereof the said John Batman or John Helder Wedge being paid by each party entrusting him with their Stock a Commission beyond all expenses of actual Outlay of ten pounds per Cent upon the net Gains and profits after deducting losses and Casualties as a compensation for his or their trouble in the Superintendence and which Commission shall be paid within one month after the expiration of the said term.

That in case of any dispute between all or any of the said parties arising out of these presents or connected therewith the same shall be submitted to the Arbitration of three persons one to be named by each party and the other by the two Arbitrators and the decision of any two of them shall be binding and final so as to avoid all litigation and cement the parties in the Bond of Union.

That at the expiration of the said term of twelve Months and before any Conveyance of the Shares shall be made the several persons parties hereto shall and will subscribe and agree to a Code of Rules and Regulations for the better Government of the said Settlement based upon the principles hereinbefore mentioned and declared together with such others as the State of the then Settlement shall in the Judgment of the major part of the Proprietors render requisite for the extension of the two principle objects namely Civilization of the Native Tribes and pastoral pursuits In witness whereof the said parties to these presents have hereunto set their hands and Seals the day and year first above written . . . “

– Source: Excerpt – Indenture dated 29th June 1835 (Transcript)

This Indenture is so well written and covers all possibilities of the anticipated settlement even down to a simple process to resolve any dispute, should one arise.  It shows an unprecedented level of knowledge, professionalism and detail.  These gentlemen did not enter this agreement in ignorance or unpreparedness, they covered all their bases, even to the extent of acquiring a representative in England.

However . . .  the gentlemen, after having agreed and signed the Indenture dated 29th June 1835, must have realised, with some horror, that they had not covered the circumstance should John Batman become ill or die before all could be settled !!!

Hence, another Indenture was drafted, formally describing and specifying the lands involved.  It was signed the very next day:

” . . . whereas  by a certain Indenture bearing date the twenty ninth day of June instant and made between the said John Batman of the one part and the several other persons before mentioned certain stipulations and agreements were made and entered into for the occupation of the said several tracts of land and for the agistment of Sheep and Cattle thereon and for the establishment of a Settlement at Port Philip and also for procuring a confirmation or Grant from the Crown of the said tracts of land and for the future division of the said Land into separate shares and proportions and for the Conveyance of the said tracts of Land in such shares to the several persons hereafter to be intitled thereto And whereas in order to provide against any contingency or impediment that may arise by the illness or death of the said John Batman before such Conveyances can be properly made It hath been proposed and agreed by the said John Batman to convey and assure the said two tracts of land to the said Charles Swanston Joseph Tice Gellibrand and James Simpson and their heirs and assigns Upon the trusts and for the ends intents and purposes hereinafter mentioned Now this Indenture witnesseth that for the purposes aforesaid and in consideration of five shillings of lawful money of Great Britain by the said Charles Swanston Joseph Tice Gellibrand and James Simpson to the said John Batman in hand well and truly paid at or before the execution of these presents the receipt whereof is hereby acknowledged He  the said John Batman Doth  grant bargain sell release and assure unto the said Charles Swanston Joseph Tice Gellibrand and James Simpson and their heirs All that tract and indented Head of Land situate lying and being at the Bay of Port Philip in New Holland called or known by the native name of Geelong extending from Geelong Harbour about due South ten miles to the Heads of Port Philip taking in the whole neck of Land and containing about one hundred thousand acres of Land be the same more or less And also all  that other tract of Land situate and being at Port Philip running from the branch of the River at the top of the Port about seven miles from the mouth of the River forty miles North East and from thence West forty miles across Iramoo Downs or plains and from thence South west across Mount Vilamnarnartar to Geelong Harbour at the head of the same and containing five hundred thousand acres more or less Together with all timber growing thereon ways rights members and appurtenances to the said several tracts of land belonging or appertaining / all which said tracts of Land are now in the possession of the said Charles Swanston Joseph Tice Gellibrand and James Simpson by virtue of a bargain and sale for a year made to him thereof by Indenture bearing date the day next before the day of the date of these presents and by force of the statute made for transferring uses into possession To hold the said tracts of Land with their and every of their rights members and appurtenances / but subject to the payment of the annual tribute therein respectively reserved and made payable to the Chiefs of the said Tribe for ever / unto and to the use and behoof of the said Charles Swanston Joseph Tice Gellibrand and James Simpson their heirs and assigns for ever Upon the Trusts  nevertheless and to and for the ends intents and purposes and subject to the several rights shares equities and interest expressed and declared of and concerning the said tracts of Land in and by the said in part recited Indenture of the said twenty ninth day of June and for no other trust intent or purpose whatever And  the said Charles Swanston Joseph Tice Gellibrand and James Simpson do and each of them doth hereby covenant to and with the said John Batman his heirs and assigns that they the said Charles Swanston Joseph Tice Gellibrand and James Simpson and the survivors and survivor of them and the heirs of such Survivor shall and will make do and execute from time to time such Conveyances and assurances as shall fully and effectually carry into full effect the trusts and conditions mentioned and contained in the said recited Indenture In Witness  whereof the said parties to these presents have hereunto set their hands and seals the day and year first above Written. // . . . “

– Source: Excerpt – Indenture dated 30th June 1835 (Transcript)

Documentation

The detail of the Port Phillip Expedition:

that was described in John Batman’s journal and that was summarised by him, for issue to the British governance;

the thoroughness of the indentures raised and completed in reference to the formation of the Port Phillip Association;

together with the many, many correspondences between members of the ‘Port Phillip Association’ and the constabulary

⇒ absolutely no doubt can remain as to who first explored Port Phillip for the specific purpose of settlement –

who sited the ” . . . place for a village . . . “

and the specifications, descriptions and locations of the tracts of land involved . . .

It is also confirmed that the British Governance was initially somewhat confused as to their responsibility and jurisdiction.

Also, contrary to the letter issued by Governor Arthur to Lord Glenelg dated 28th August, 1835:

” . . . Since I had the honour to address the Secretary of State on the 4th ultimo upon this subject—(Batman’s enterprise)—it has come out that the Association have made overtures to His Majesty’s Government through friends in England.  The country they seek to possess is not within the Territory of Van Diemen’s Land, and I have therefore no right to complain of the course they have pursued;—on the contrary, I beg to do them the justice to say that they are a very respectable, and in respect of pecuniary matters, responsible body—but at the same time, I cannot avoid expressing the hope that this fine tract of country may not be ceded to them to be converted into a sheep-walk, and cattle-run by absentee proprietors . . . “

⇒ the Indenture clearly outlined the terms of the settlement – and it was never to be ” . . . run by absentee proprietors . . . “

Excerpt – William Todd’s Diary – 21 Oct 1835

As to John Pascoe Fawkner’s claims to be the founder of Melbourne – these are totally unsubstantiated and absolutely disproved by the unadulterated documented evidence of the time.  The following article clearly describes an interaction between Fawkner and Batman, prior to Fawkner departing for Port Phillip:  The Argus – 16th February 1935.

William Todd, one of the eight men left at Indented Head by Batman on the 9th June 1835, noted the following in his diary:

” . . . Oct 12.  About 10 this day Johnny started for the River.

Oct-21-  Johnny has returned this day.  Fell in with a mob of Natives about 12 miles from here.  He brought four Native boys down with him and seem to say that they are all coming down here tomorrow.  He also states that Mr Fawkner’s vessel has arrived at the river.  She must have gone up in the night as we did not see here pass . . . “

Wedge & Batman – a Misunderstanding

An Excerpt form the book “John Batman, The Founder of Victoria” by James Bonwick, published in 1867, portrays the following transaction, between John Helder Wedge and John Batman on the 13th of October 1835; from which the character of these two gentlemen cannot denied.  Wedge writes the following from Launceston:

“DEAR BATMAN,—I have remained in town in the hope of seeing you this morning.  I have just learnt that there is no probability of your being here till the afternoon.  As it is inconvenient for me to wait longer, I think it only fair towards you to state candidly the course I shall adopt.  The line of proceeding that you have chalked out in reference to the occupation, by Messrs. Fawkner and Co., of a portion of the land ceded to us by the native chiefs, is so contrary to my ideas on the subject that I shall protest against it, a copy of which I enclose.  However, to obviate the consequences likely to result from the difference of opinions, add the dictatorial attitude assumed by some of the parties, which I never could submit to, I will offer my share for sale to the proprietors generally, or to any of them individually, who may choose to purchase it.”

He, however, submits another proposition—that a division of the land be made, giving Batman the first choice. Mr. Wedge enclosed the following protest to the members of the Association:—

“GENTLEMEN,—Having learnt from Mr. Batman since my return from New Holland that he is on the point of proceeding to Port Phillip, with the intention of carrying into effect the recommendation of ———, namely, to remove Mr. Fawkner and those connected with him, through the instrumentality of the natives, notwithstanding such a line of proceeding will be contrary to the general voice of the gentlemen who were present at the meeting when ——— made the proposition.  I, therefore, take the earliest opportunity of communicating my dissent from taking such steps.  To follow it, will lead to the most disastrous results, not only militating against the probability of the success of the enterprise, which at the present moment assumes so promising an aspect, but it will assuredly lead to bloodshed and murder, which, if once commenced, there is no foreseeing its termination.  It will at once open the eyes of the natives, and teach them the power they possess; and, knowing that power, they will not fail to use it against us in common with others whenever the impulse of their feelings may prompt them to do so.  Suspicion will be infused into the minds of the natives as to the friendly intentions of the whites in general towards them, which will counteract the happy results that have been the consequences up to the present moment of the friendly intercourse which was fortunately effected by Mr. Batman in June last.  For the foregoing reasons I solemnly protest against the measures about to be carried into effect.”

This noble protest exhibits the character of the man, and is worthy to be placed in the archives of our colonial history.  It was written a week before the arrival of Mr. Fawkner at the new settlement.

Mr. Batman answers the letter on the same day.  It is so candid and characteristic an epistle, that I copy the whole from the original letter now before me:—

“Launceston, 13th October, 1835.

Dear Wedge,—I received your letter, on my arrival here, which did not a little astonish me, particularly your protest.  In the first place you are in error in stating that ——— and ——— recommended me to remove Fawkner by force.  They have never hinted such a thing to me; in short, I received a letter to-night from ———, requesting to know how I intended to act towards the squatters, and that a great deal would depend as to our success in the treatment of them.  I have never heard of a meeting of the gents in Hobart Town, and ——— proposing that I should use force.  Your protest is the first I have heard of it.  I do not, neither did I, intend to use violence to remove Fawkner, as I am convinced there are many ways to get rid of him without that.  I should think a long time before I would cause the natives to use anything like violence towards any whites, as I fully agree with you as to the consequences that might occur hereafter towards ourselves.  I have not the least doubt but that Fawkner will see the necessity of crossing the River, as we shall overrun the land at once with stock.  I am half inclined to think that you have heard some strange tales since your arrival.  I am sorry to think you should wish to leave us.  If I can, I will ride out and see you before I leave.  But write me.

Yours faithfully,

“John Batman.”

He then returns to the matter in a couple of postscripts:—

“I cannot help thinking, and reading your Protest, you are surely wrong in everything. Surely, I would not do anything to thwart our prosperity with the Government.

J.B.”

“You must have mistaken the thing altogether.  I will see you, if possible, before I leave.”

It was after this memorable correspondence that a meeting of the Port Phillip Association took place in Hobart Town, and instructions affecting the treatment of the natives, and of the course to be adopted towards the invading squatters, were delivered to Mr. John Batman . . .

– Source: John Batman, The Founder of Victoria by James Bonwick, published 1867

Though the members of the association had communicated their wishes, intent and discoveries to the constabulary from as early as 1827;

though they had clearly demonstrated their professionalism, conciseness, planning, detail and fairness;

though they had clearly and irrefutably been responsible for the first settlement of Port Phillip and had honoured their agreement with the Aborigines until the day Batman died in 1839 – even though Bourke had revoked his treaty as early as the 10th October 1835;

⇒  the British governance scrambled to take control, especially once they had learned of the value of Batman’s discovery.

The many, many squatters such as Fawkner who did not comply nor attempt to converse with the government, succeeded.

Those who made every attempt to comply, failed . . .

Squatters all around the country were awarded grants of land, purchased lands from the government at incredulously low prices per acre – yet the same institution would not award even the tiniest of compensation to the founders of the Settlement at Port Phillip.

As the imperial government delayed ratifying the ‘purchase’; the hopes and dreams of this industrious group were rapidly eroding.  It was not long before members began selling their shares, mostly to Swanston and Gellibrand.

In November 1836 Governor Bourke agreed to pay the association a ‘fair’ compensation for the costs its members had incurred of £7,000, or about £400 a share.

By 1838 Swanston, Mercer and another pastoralist, Thomas Learmonth, had bought all the shares, including those of Gellibrand, who had previously died.  They formed the new Derwent Company.  It bought 10,500 ac (4,200 ha) of freehold land near Geelong, at auction, for 15 shillings an acre, using the £7,000 compensation in part payment.

John Batman died on the 6th May 1839 – his wife and eight children were left penniless.

What a unjustifiably tragic end to a story which had begun with such hope, dreams and wonder.

What a way to “honour” the man who founded ‘The Settlement’ that was to become Melbourne . . .