Rogers to Merivale (Permanent Under-Secretary)
Emigration Office
17 November 1859
In obedience to the directions of the Secretary of State contained in your Letter of the 10th instant, I have perused and considered Proclamations issued by the Governor of British Columbia under authority of the Act of Parliament 21 and 22 Vict cap 99 and of his Commission.
2. With regard to the form of these Proclamations I think itManuscript imageit would be convenient that the Governor should affix a number and title to each as is usual with Colonial Laws. Without this it will be very difficult to refer in future Laws or legal instruments to any of the Acts except those which contain a clause assigning what is called "a short title." Probably it will be best to call these enactments "Laws" or "Ordinances" and not "Acts" a term which is usually appropriated to Laws passed by a representative Assembly. The headings will therefore stand somewhat thus— No 1 of 1859 Law (or Ordinance) for the naturalization of Aliens. NoManuscript imageNo 2 Law respecting Oaths, etc. The short title may equally be given in the body of the Act "Aliens Law of 1857," "Oaths Law of 1859" and so on.
3. To every law should also be annexed the usual marginal abstract. In some Laws this is done, in others omitted.
4. I now proceed to report on the different proclamations.
5. The "Aliens Act" provides that every Alien who has resided in the Colony for 3 years may demand naturalization on producing a declaration of his residence and character from some British Subject, on making himself a declaration ofManuscript imageof residence and on taking the oath of allegiance. The latter declaration must be made and oath taken before a Justice of the Peace who is to declare that he knows no reason why the applicant should not be naturalized. These conditions being fulfilled "the Court of British Columbia" is to record the proceedings and the alien is to be deemed a British Subject for all purposes whatever "while within the Colony of British Columbia." The naturalization may be annulled if any party to either of the above declarations is convicted of perjury therein. But the Court is not entitled, as a matter of course, to examine into the truth of the documents which it records.
6. The certificate from a BritishManuscript imageBritish subject is thus merely nugatory, since in every community, and certainly in a gold digging one, individuals will be found who will sign it without any knowledge of its truth.
7. It would consequently be in the power of a fugitive American felon by the easiest possible fraud to qualify himself (as far as nationality is concerned) for any office in British Columbia or a place in the Legislature as soon as such a body shall exist.
8. If it be the opinion of the Home Government that the best chance of preserving order in such a Country a[s] British Columbia is to give out the utmost possible inducement to permanent settlementManuscript imagesettlement and therefore the greatest facility for acquiring the character of a British Subject, it may be inexpedient to raise any objection to the above enactment. And it may be that a population of naturalized foreigners exercising influence over the Local Government would be less dangerous than a population of aliens regarding it with jealous hostility. This is a question of policy for the consideration of the Duke of Newcastle.
9. But if it be decided that a certain amount of bonâ fide residence and of bonâ fide respectability should be required as a condition of naturalization, it appears to me that the Court of British Columbia orManuscript imageor some special officer designated for the purpose should be empowered to require proof satisfactory to such Court or Officer of the required residence and of the respectable character of the applicant for naturalization; and that, as a guide to their decision on this point, persons having been convicted of Treason Felony, rape, Forgery, or any other infamous crime should (as in Natal) be disqualified from naturalization.
10. It might be enacted that the Act of Naturalization should merely confer the rights of a British Subject as regards rights of property, but that the Governor should be empowered at his discretion to issueManuscript imageissue to any such naturalized person a certificate giving him the political rights of a British Subject. But probably such partial exclusions in such a population could not be maintained against the hostile feeling which they would elicit.
11. As a matter of language the 4th clause should give the alien the rights of a British Subject "within" (not "while within") the said Colony of British Columbia. The effect of introducing the word "while" would be (if the provision were valid) (1) that the naturalized person "while" within British Columbia would have the rights of a British Subject elsewhere (a privilege which the Colonial Legislature cannot confer) and (2) that while absentManuscript imageabsent from the Colony his rights of holding property within it would be dormant (which is not intended). The word "while" therefore should be omitted.
12. The Proclamation respecting Oaths (which I have numbered as No 2) may I conceive be properly sanctioned.
13. No 3 respecting Customs duties should be referred to the Treasury and Board of Trade.
14. No 4 and 5 respecting Tonnage and Passage and other dues on Shipping should be referred to the Board of Trade.
15. I am aware of no objection to No 6 imposing fees on Licences. The ratesManuscript imagerates are—
Spirit Shop in Town £25 per annum
Do in Country 10 "
Wholesale sale of liquor 10 "
Other Trades £1 per quarter
Occupation of Crown Lands for purposes of Trade 10s/ a month. But as a revenue Act I presume it should be communicated to the Treasury. The ta= on Spirit Shops has been lowered because a duty has been imposed on Spirits.
16. No 7 "The Gold Fields Act" is clearly framed and appears a sensible Act. The subject is of sufficient interest to make it proper that I should state the leading provisions of the Law.
17. The Governor may appoint Gold Commissioners who within certainManuscript imagecertain districts may issue "free miners licences" authorizing the holders to mine upon Crown Lands, and may register "claims" (i.e. allotments of auriferous land to individual miners) £1 is to be paid for a Free Miners Licence and 4s/ for the registration of a claim, each is valid for a year.
18. The Gold Commissioner is to be a Justice of the Peace with power to try and settle summarily all mining disputes and abate encroachments. He is sole judge of law and fact, subject to an appeal to the Supreme Court when in Civil cases the value of the matter in dispute exceeds £20 or when in Criminal matters the fine exceeds that sum or the imprisonment exceeds 30 daysManuscript imagedays. He may also mark out plots of 5 acres for the occupation of the Miners as Gardens or residences, and other plots for the occupation of traders.
19. The Governor may also lease auriferous lands under regulations to be prescribed by himself.
20. On the petition of 100 Free Miners in any district the Governor may establish a "Mining Board" to consist of from 6 to 12 persons elected by the Miners. A majority of the Board with concurrence of the Gold Commissioner, or two thirds without that concurrence may make bye laws respecting the size of claims, sluices, registration and mining matters generally. Three MembersManuscript imageMembers retire annually. A person convicted (after his election) of misdemeanour, felony, or assault with a deadly weapon vacates his office and is not re eligible. The Governor may dissolve the Board or in the absence of a Board may make bye Laws for the above purposes.
21. Pending the constitution of these Boards the Governor has issued a set of regulations of which a copy is transmitted with the Act.
22. The size of registered claims is to be, under these regulations,
in dry diggings 25 x 30 feet
in bar or river diggings 25 "
in breadth from the highest line to which the river rises in flood indefinitely into the stream inManuscript imagein ravine diggings 100 feet along the auriferous vein.
Discoverers have a right to an increased allotment varying from 1 1/2 to 2 ordinary claims.
23. Provision is made for letting "exclusive water privilege" which seems to be the right of bringing water from a given stream into particular diggings. On this privilege a rent is payable to Government equal to one days estimated receipts per month and the privileged person is bound to supply all Miners with water and not to waste it. Walls 3 feet thick are to be left between claims.
24. Leases of auriferous land may beManuscript imagebe made for periods not exceeding 70 years and of spaces not exceeding 10 acres in dry diggings and in river or ravine diggings 1/2 mile in length of unmarked or 1 1/2 mile of abandoned diggings.
I have etc.
Frederic Rogers
Other documents included in the file
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Draft, Merivale to J. Booth, Board of Trade, 6 December 1859, forwarding transcripts of three laws enacted by the government of British Columbia for opinion.
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Merivale to G.A. Hamilton, Treasury, 6 December 1859, forwarding transcripts of two laws enacted by the government of British Columbia for opinion.