, 1858-09-24

! uHplAON VI Nulo NOuAluGubs
The late discoveries in Siberia, Califor.
MIA and Australia have shown that the
most extensive deposits Of gold are not 10
mines proper, but are diffused through the
soil. Mines proper, in which it was an
ciently supposed gold was to be found, be-
ing entered by simple shafts, and develop.
ed by adits and levels beneath the ground,
could be worked without disturbing the su-
perfcial soil. The enjoyment oil the an-
cient prerogative of the crown in the "gold
placers" wonld be totally inconsistent with
private rights in the soil, and from consid-
eratons Of public policy cannot be exer-
cised in such "placers"
The crown undoubtedly possesses the
right to prohibit or regulate by law the
digging for gold in its possessions, just as
it might prohibit or regulate by law the
cutting Of timber or using the soil, but in
the absence Of positive law prohibiting
such occupation and use, it Is believed to
be the natural right Of every man who en-
terS a totally unoccupied country to cut
timber and wood, to consume the fruits Of
the earth, and gather oil the products Of
the soil, which have not been before appro-
priated. 1t is believed, that while the ju-
risdiction simply Of the British crown over
the territory Of Frazer and Thompson
river is not questioned, the crown has
made no appropriation of that territory by
law, and has exercised no acts restricting
the natural rights of man in q wild and
unoccupied country. Until the passage Of
such positive laws by proper authority,
every man possesses the right to dig gold
in that country, just as much as he has the
right to cut timber or appropriate the
fruits Of the earth.
1t is further believed that the acts Of
Governor Douglas, before referred to, in no
respect constitute legal and authorized
prohibition to enter the gold bearing coun-
try Of New Caledonia, and that his demand
Of payment of money for license to dig
gold is high-handed usurpation Of power.
VancouVer's Island belongs to class Of
colonies called Provincial establishments.
As Blackstone says Their constitutions
depend upon their respective commissions
issued by the crown 10 the Governors, and
the instructions which usually accompany
those commissions, under the authority Of
which provincial assemblies are constituted
with the power Of making local ordinances,
not repugnaDt to the crown Of England
have been unaole to obtain copy Of the
commission Of Governor Douglas, or the
instructions to the first Governor. 1t is
clear that be could exercise no power which
was not conferred upon him BY bis commits
sion and instructions. But it is hardly
conceivable that his commission and in
structions should authorize him to regulate
or license the digging Of gold in New Gale
donia, 4 region far distant from bis own
territory, and especially when the existence
of gold in that country was not even sus-
pected. 1t is not pretended that any law
regulating the gold diggings Of New Gale
donia had ever been passed BY the General
Assembly OF the colony. Indeed, that As
sembly had q mere nominal existence, so
that the power to issue these proclamations
was not derived from them. Governor
Douglas, it seems, hGl formerly claimed,
uuder his commission, the power, with the
advice of his council only, to pass such laws
as be considered required by the exigency
Of the time. l have before me . copy Of a
despatch from the Right Honorable H.
Labouchere, Secretary Of State Of the i'm
perial government, to Governor Douglas,
in which the Secretary says:-"It has been
doubted by authorities conVerSant in the
principles Of colonial law, whether the
crown can legally convey authority to make
laws, in a settlement founded by English
men, even for temporary and special pur-
pose, to any legislature not elected wholly
or in part by the settlers themselves. II
this be the case, the clause in your com
mission, on which you relied, would appear
to be unwarranted and invalid" :
Granting the authority of Governor
DOuglas over Vancouver's Island proper,
there are strong reasons for believing that
his authority does not extend to the regions
where the gold placers" are situated. As
/ stated to yOu in former communication,
be has always declined to exercise authority
over Indians on the main land in British
territory in his capacity Of Governor, while
he has consented to treat with them as
chief factor in the Hudson Bay Company.
A further reason for believing that his au-
thority does not extend 10 the main land is
the fact that the committee appointed by
Parliament to consider the state Of the
British possessionsi in North America which
are under the administration Of the Hudson
Bay Company, recommended that means
should be provided for the ultimate extern
sion # the colony Of Vancouver's Island
over any portion Of the adjoining country
to the west Of the ROcy Mountains, on
which permanent settlement may be found
practicable.
Assuming that the Governor in his po
sition as general agent Of the crown had
the right to prohibit trespass upon the
property Of the crown, it cannot for a mo.
ment be pretended that, without express
authority, he had the right to demand
money for licenses to appropriate the
crowns property.
The declaration Of his proclamation is
that all mines Of gold belong to the crown
! But the law upon which he fOunds that