The Petition:
53/3980 Colonial Secretaries Office
Sydney
May 1853
Sir,
I do myself the honor to acknowledge the script from you on 5th instant of an armorials from the traders, miners and other inhabitants of Tambarrora setting forth their objections to the act of Council for the management of the gold fields of this day, 2nd.
Having submitted that document to the Governors General. I am now instructed by His Excellency to state to you for the information of the ??? that the views expressed by them have in common with the statements preferred by the inhabitants of their petitions of the gold fields, been duly considered by the Government when framing the Bill for the amendments of the Gold Act referred to which was introduced into the Legislative Council by ????? on the 11th instant.
I am now,
Thomas S. Mort Esq.
Sydney
Tambaroora 20th April 1853
Sir,
Observations on the Gold Fields Management Act
In contemplation of your expected visit to this district on a tour of official inspection through the “Western Gold Fields”, which we understand you have undertaken with a view to personal observation as to the working of the New Act for the management of the mines. We, the undersigned Traders, Miners and other inhabitants of Tambarrora, have deemed it expedient to prepare an Address to you setting forth in an explicit and formal manner our views and objections relative to the aforesaid Act; and we now beg leave to present the same, with every assurance of loyalty and respect due to the Government of which you are the chief organ an minister in this Colony.
I. – We object to the extraction of Traders’ Licenses, as such in the Mines, as are ????
Restrictions on freedom of industry in cases where no direct police regulation is either occasioned or required; and especially where such industry does not involve privileges or interfere with any of the sights either of the public, or of the crown.
Hawkins and Peddling Licenses, and Licenses for the sale of fermented and spirituous Liquors are quite a difficult thing – requiring as they do, police regulations and being liable to abuse. But with respect to other ordinary trades and callings, we are of opinion that no good reason can be shown why the liberty to practise them in the mines should be denied except under a system of License or ground rent, for the law on which a store, tent or building may be erected, cannot be objected to, provided the Fee or rent be not exorbitant and a definite tenure be guaranteed. Such occupancy, however no actual property, – no ?????? sight as in the case of squatting, and no franchise as in the case of mining. It is merely a temporary residence or lodgement on a few feet or yards of the naked superficies of the soil that is permitted or required: or if any rent or fee can be equitably?????? for such an occupancy (on the plea perhaps , of contributing towards police for objections), it ought certainly to be something less, we conceive, than what is charged for mining or Squatting privileges.
II. – We object to the Residence License, as required in the Fourth Clause of the Act; and to the provision contained in the Twenty second Section, whereby persons in Trade and others not connected with mining operations, are compelled, in addition to their own Trading and occupancy Licenses, to pay residences licenses not only for all their servants and employees, but for All the male members, but for their friends who may be sojourns with them, under their own roof, on their own paid occupancy, and I nowise connected with mining or separate heading operations. Our objections are founded on the following reasons:-
1st: Because, Squatters, Storekeepers and other occupants of Crown Lands in the Colony, (not connected with the gold fields,) are not and could not justly be, required to pay an extra License for their employees, or for their families or friends resident with them on their own licensed occupancies.
2nd: Because no reason in accordance, with crown law or equity, consistent with the natural as well as Constitutional rights of British Subjects, can be shown for the gratuitous and ex??????? ??? tax on man’s domestic rights and hospitality, as well as well as the private interests and natural arrangements of his family and business (apart from mining) in the Gold Fields.
3rd: Because it was incompetent and unconstitutional for the Legislature and Government of the colony to pass a law to authorise ex?????? ; and therefore such ex??????? Is at once illegal and unjust.
4th: Because when a man pays for a licence to Trade and hold an occupancy on Crown Lands, he has an untroubled natural, and no less ???????, right to share that privilege with his family, to extend extend rights friends and visitors: – to employ such servants and assistants as may be necessary to make his Trade or occupancy available.- and to participate in such privileges of use and want “such as fuel, water and the rough fare, which are universally warranted as Common Law Rights, and guaranteed to all by the Constitutional and Chartered Laws of England for ages past.
III. – We object to those provisions of the Law which exacts double Licence fees or Royalties from Foreigners in the Mines. The law in this respect has exited general disappointment not only in the mines, where some jealousy of foreigners might be expected to exist, but even in Sydney and throughout the whole colony. It may be reasonably inferred therefore, that a provision which has worked unqualified therefore universal a sentiment of repugnance, must be wrong in principle, bad in policy and uncongenial to the natural feelings and generous spirit of a free and civilized nation.
In a commercial point of view it is regarded a needless infringement on the reciprocal, and now almost policy of free trade. The liberal spirit and policy of the age has swept away the abuse and often mischievous restrictions of now obsolete commercial system of bygone times. The Navigation Laws have been repealed; and in nearly all civilised and commercial countries. The once stringent and oppressive laws respecting aliens have been gradually deleted and adapted to the more liberal spirit of free trade, and to the pursuit of unrestricted industry. The illustration of this fact, as regards to the policy of England, we quote the following passages from “Blackstones Con??????”
“ an alien may acquire a property in goods money and other personal estate, or may hire a house for his habitation; for personal estate is of a transitory and movable nature; and besides this indulgence to strangers is necessary to the advancement of trade. Aliens may also have (subject to some unimportant exceptions) as freely as other people: to the higher duties to which they were formerly subjected and at the Custom house, being now in general repealed”
“By Magna Charter it is provided that all merchants (unless publicly prohibited beforehand) shall have safe conduct to come into, to carry in, and go through England, for the exercise of merchandise, without any unreasonable imports except in time of war. This seems to be a common rule of equity among all the northern nations; for we learn from “Stiernhook” that it was ?????? among the Goths and Swedes “quaui legem externi nobis posuere eandem illis poneuis. But it is somewhat extraordinary that it should have found a place in Magna Charta a mere interior treaty between the King and his natural born subjects, which occasions the learned Montesquien to remark with a degree of admiration “that the English have made the protection of foreign merchants one of the articles of their national liberty”
Reciprocity is the equitable rule of ????? among civilizes and friendly nations; and on that principal each country excludes its hospitality to the citizens or subjects of the other. There is no obvious policy in this founded in reciprocal advantages – ????????, who profit in a new field of enterprise, and to the country in which he lives, whose public wealth and practical industry are extended and improved by his superior skill and peculiar energy.
This precisely the case with foreigners in the mines of this country; and instead of being looked upon with any jealous or inhospitable feeling by our own people, they are welcomed among them accession of skill and productive capacity to the mines of this country. AT THE Turon , the advent of foreign miners was the dawn of a more efficient and hopeful systems of operation on the bed claims, which have lain so long unpractical under teg imperfect and presence of foreigners was then regarded as an advantage; and instead of begin restricted, they should rather receive every encouragement and facility we afford to our own people.
In all other pursuits we allow foreigners equal facilities with our natural subjects, and do not impose upon the many higher exactions or more stringent or more stringent regulations than we do upon ourselves. This is as it ought be; and so likewise in the mines. What essential or practical difference is there between allowing foreigners the privilege of appropriating our pastures and speculating in the growth of wool, and allowing them the privilege of employing their capital and industry in digging and searching for gold? All mining countries in America, both north and south, not only reciprocate this privilege with each other, but extend it freely to all friendly foreigners where enterprise may lead them to such pursuits.
In California the State Government (usurping to some extent and proper functions of the National Government) attempted injudiciously and without due consideration, to levy a tax on foreign miners but public opinion was against it, and the American people in the mines, held meetings protested against the tax, and put a stop to its collection. On the principle of ????????
Therefore independently of other considerations of policy, we should now act with equal liability towards them. The counties of nations, and the friendly feeling which ought to be cultivated two communities of kindred origins, of the same language, and with similar religions and laws, unite I the strongest manner to recommended the interchange kind offices and liberal hospitality, of the free and unrestricted industry and enterprise among each other for the mutual advantage ?????wealth
The worst feature of this restrictive law on foreigners, and even in regard to the British operative in the mines, ???????? this although the humble miner can not employ himself or others without a special license per head, still the large monopolist who arrangement with the Government for the payment of a royalty, can employ as much or native labour as he pleases without any license for labourers at all! The object of the law is obvious: it is the embarrassment and oppression of independent industry, and the subjection of it to the all-engrossing capital!!!!
IV. – We object to the ordinary Monthly License fee for alluvial mining;
1st: Because it operates as a direct tax upon labour in advance of its productive results, under circumstances of unusual difficulty, of great uncertainty, and probable loss. This obviously contrary to the acknowledged principles and approved maximums of a sound acouoncy and fiscal policy. We consider that the proper bases of taxation are either labor or capital per se but the profits of both, and the realised income of property.
2nd: Because the amount of the fee – considering uncertainty and inequality of the results of mining, and that the Tax is exacted in advance,-is greater on the average than the Royalty extracted from Capitalists on Gold actually, obtained and operates with unequal severity-being most oppressive on those who are least able to bear it. This also vislates a sound maximum of fiscal acouoncy, to wit, – that the incidence of a just system of taxation should be such as to make all pay, as nearly as possible in proportion to their respective liabilities.
3rd: Because it makes mining practically a system of gambling with many of its evil influences and demoralising effects on both the social and personal character of the people. It is, in fact, nothing better than a state lottery, in which there are some prizes and a vast number of blanks; the License is the lottery ticket drawn monthly, for which the Government charges thirty shillings, and there upon invites the whole population to try their luck, and stake the last shilling they have in the world!
4th: Because every tax or fiscal exaction (no matter what it may be called) from which a public is derived, “ought to be levied at the time, and in the manner in which it is most likely to be most convenient for the contributors to pay it.” The license fee in advance is not in accordance with this maxim.
5th: Because a uniform Royalty on the Gold to be collected at the Mint, when such an institution is established in the colony, obviate all these objections and enable the Government to secure a much greater amount of revenue from the mines, with far more certainty, and infinitely less oppression than under the present system.
6th: That until this institution shall be established, we suggest what, we believe is immediately possible, namely;- that a Government Assay Office be established in Sydney, under proper auspices and regulations for testing the purity of Colonial Gold dust and casting it into ingots of certified weight and fineness;- that in connextion with this institution there should be passed a law
7th:In this Colony, prohibiting under severe pains and penalties, the export of gold either land or sea, except in the form of certified Bullion assayed by the Government. In this way the Government might collect its Royalty as easily and securely as if a mint existed; and the exsistance of a Government assay office, which could be depended upon with confidence the public, would be of great utility and advantage to the Commercial, Financial and Mining interests of the colony. Under all circumstances the chances of any considerable evasions of Royalty being ???????????? effected would be improbable, considering the number of persons who must be necessarily privy to such frauds,- the formed able penalties and forfeitures to be incurred,- the perilous risks to be hazarded, on no better assurance than the confidence of accomplices implicated in all the penal consequences of a criminal conspiracy,- with the strongest temptations to betray, and with no adequate interests to keep faith, even if all the profit of the evasion were to be divided amongst them.
8th: That if neither an assay office or any of those other expedients can be brought into operation, we propose that the present Lincese system should (as it necessarily must) be continued with as much mildness of administration as possible, but with a reduced fee of ten shillings per month, from which, we believe a that a greater revenue than at present will accrue. Even with this reduction amount the Licensing system would still be libel to the very serious objections already stated; but its proportion in average incidence on the whole would be somewhat assimilated to the rate of Royalty, and coupled with other relaxations of the present law, would have the effect, in some measure, of recalling to our own mines much of the active population, which the over stringent severity of that law has driven to other Gold fields.
If this proposition of an Assay Office cannot conveniently be adopted at present, then sooner continue the present system of Licensing in the mines. We would suggest the expediency of collecting a revenue from gold through The Custom House, by the imposition of an export duty of five per cent; which, we believe under proper regulations would not be evaded to any considerable extent and would yield, on the whole, a greater and more economical Revenue than accrues under the present uncertain, oppressive, and expensive system.
In order to carry out this mode of collection into effect, it would be necessary that the same duty and regulation should be established by in the neighbouring colonies of Victoria, South Australia, and the Swan River. If the Government and Legislatures of the colonies will not concur in one and the same measure for this purpose, then unquestionably, an Export duty will not do in New South Wales.
But even then an expedient of a legitimate nature exists where by this very objectionable system of Licensing may be disputed with, and a free system of mining established which would attract vast ?????????? to the Gold Fields of New South Wales, who now engrossed in the mines of Victoria.
The expedient we refer to is one of indirect taxation on the luxuries to a great extent by miners and other operatives,- indeed by all classes of the community.
To a greater extent since the Gold discovery than before, A very slight augmentation of the scale of tariff on some of the common articles of luxurious consumption would yield on the whole a quarter revenue than the present License system in the mines could ever do, to meet all the ends exigencies of Government, and wealth of the colony.
V. – We not only object to, but solemnly protest against the twenty third section of the present Act, as a monstrous outrage on Common justice, Common law and Common sense. It provides that if any miner or servient on the Gold Fields when called upon anytime, to show his license, should not have it on his person, and “jail forthwith to produce and show it, he deemed to be an unlicensed person, and shall be liable accordingly”;-( then follows this amazing act of retributive mercy!!!!) provided that if such person shall prove that he was in fact was duly licensed, he shall be liable only to the extent of one half of the penalties imposed by the seventeenth Section, and shall not be subject to any forfeiture of goods or chattels.” (!!!!) That is for not having his precious and all important License in his pocket to be worn, tattered or lost, or probably defaced, if not destroyed, by the mingled action of dirt, gravel and water in the various position which men have to place their bodies and exert their strength in mining operations!- Because forsooth, a man under such circumstances may have his license at home or in some safe Keeping, and not have “forthwith” to produce when called upon show it at any moment, is that a reason why he should be liable to fine or imprisonment without excuse, when afterward he produces it in the Court, it the Commissioner or his Assistant does not choose to let him go for it at the time? He is first apprehended at first as an unlicensed person, and assumed to be a dishonest man; but when he is put on trial a and proves himself to be innocent of fraud of which was suspected or of any evasion of law at all, he is by no means honourably acquitted and discharged; but in addition to the annoyance of his needless apprehension and previous confinement in the lockup, he is told that his very ???????? is half a crime, and must suffer half its penalty; that for the ??????? offence however, of having a license when he was suspected of having none he willbe leniently, dealt with; and having proved, to the satisfaction of the Court that he is “Not Guilty”, his sentence shall not be more than half as severe as would otherwise be !!!!
Were it not serious a matter for us to treat with levity, so absurd a travesty upon Justice might forthwith matter for amusing satire, and most ludicrous caricature!!! But what might be sport to the Critic, would be a most grievous affliction to the suffers in the mines. I is ???????? to think that the monstrosities contained in this most shameful law, should not have struck the moral vision of its ??????? with an intuitive perception of the indelible ?????? and discredit which such objectionable legislation must inevitable attach to them. It is to be hoped however, that they will soon obliterate the memory of this glaring fault by entirely removing from the Statute Book of the Colony an Act which has proved so universally repugnant to the public feeling of the country, and supply its place with some comprehensive measure more suited to the circumstances and wants of the Colony, and more accordant with the enlightened and liberal spirit of the age.
VI. – We object to the absolute and sweeping denial of any right of appeal to the supreme court “by Certiorari, or any other writs or process whatsoever,” against the erroneous proceedings, or judgements of the Commissioner an Magistrates in the mines. We admit that summary jurisdiction to a certain extent, must be given to Magistrates in ordinary cases in the management of the Gold Fields; and much must be left to their discretion and immediate action.
But when such arbitrary process over the liberty and property of the subject are entrusted to magisterial discretion, the law should hold magistrates strictly responsible for the consequences of any abuse of their powers, and even for theirerr4ors of judgement, when they are culpable, and seriously injurious to the parties affected. It is true, a right of action of damages against the Magistrate either for error or abuse; but so far as the majority of mines are concerned, this affords no available regress inasmuch as such action would involve too great a sacrifice of time and expenses besides other difficulties of a practical nature, of limited and precarious means to resort to. In such cases the poor man no alternative but to submit to wrong without any chance of ??????? or redress; where as, if writs of Certiorari, of Prohibition, or the Habias Corpus were not thus peremptorily denied him he might promptly send his case to Sydney for Judicial reviews, and as promptly obtain what ever relief the nature of his case might in justice require. Such reviews would not put the Magistracy to any expense, or even having the effect of suspending the operation of their judgement, except under adequate recognisance—————We trust, therefore, that these ancient channels of redress so long and faithfully cherished by the Common Law of England as the Constitutional safe guards of the personal rights and liberty of the subject, shall not thus be swept away in any future Act which may be adopted for the Mines.
VII. – We object to the Twelfth Section of the Act, Which provides that ”no license shall be granted to any person who shall not produce a certificate or other proof, to the satisfaction of the Commissioner to whom he may apply for the same that he has duly discharged from his last place service or apprenticeship, and is not improperly absent from such service. “This in fact, is penal clause of the most severe, unjust, and unconstitutional description. The the offence it creates is inability to prove a negative;- and a whole community is put on their defence to prove positively that they are not runaway servants or absconding apprentices!! The penalty attached to this offence is a total disfranchisement or exclusion from the mines,- amounting to a virtual abnegation and suspension of the national rights and proper liberty, social policy, no right thinking person can doubt. The rights of the master or employer are amply protected by other laws for that very purpose made and provided, with remedies and penalties for breach of contract of a sufficiently stringent and available description, for all the reasonable ends of punishment or redress.
But such a law as this, is a monstrous outrage on one of the obvious principals of Justice, recognised as an established maxim of English Law- that no person should be punished on mere suspicion; but every man deemed innocent until proven guilty.
VIII. – We object to the Act in toto as a unique specimen of the very worst description of Class Legislation exemplifying in all its details, the selfish and unscrupulous character, the enslaving tendencies, and tyrannical spirit ??????? Government in New South Wales. It might do very well in despotic countries like Russia or Mexico, where the working men are a state of serfdom; or it might even have done in this country in the dark days of transportation, when, when the operative population were in bondage, and the rights of ????????? were scarcely known in law. But were the ?????? auspices of a free Constitution, we have a right to expect, and demand a final emancipation ????? and ????????? of mere penal government, and a general cessation of all modes of administration incompatible with the spirit of English Liberty and the ?????? rights of British subjects.
In conclusion, we now submit our objections and sentiments respecting the most obnoxious act for the consideration of the Executive Government of which you are so a distinguished member, and we only to express the hope that you will support our view in your place in both councils, and the ultimate result may be satisfactory for the country.
We have the honor to be
Sir,
Your Most Obedient Humble Servants
The Petitioners: (Showing the page on which the signature appears)
| Family Name | First Name |
Page |
| ? | J |
1 |
| ???? | John |
2 |
| ?????? | Arthur |
2 |
| ??????? | Willian |
2 |
| ????????? | Francis |
3 |
| ???ggate | George |
6 |
| Andrews | George |
2 |
| Arnold | William |
5 |
| Birkett | William |
1 |
| Bloomfield | Alex. |
7 |
| Blundell | Abraham |
3 |
| Bone | Patrick |
7 |
| Bonnor | G |
7 |
| Brenan | Edward |
3 |
| Broion | Thos. |
5 |
| Broion | Miche. |
5 |
| Brown | Thos. |
4 |
| Browne | Wm. |
6 |
| Buckley | James |
7 |
| Burton | George |
5 |
| Butcher | William |
5 |
| Butcher | Henry |
6 |
| Button | Edward |
6 |
| Button | Henry |
6 |
| Cambell | Charles |
3 |
| Canning | James |
4 |
| Carr | George |
2 |
| Clark | George |
2 |
| Clewwitt | John |
5 |
| Collins | Richd. |
4 |
| Collins | David |
5 |
| Collins | Benjamin |
6 |
| Cornish | C |
6 |
| Cotton | Henry |
4 |
| Cranney | William |
2 |
| Cullen | Thomas |
2 |
| Cummings | Thomas A |
3 |
| Cummins | Chas. |
7 |
| Cutts | George |
4 |
| Dickson | I |
7 |
| Doyle | William |
5 |
| Drenal | Daoca |
3 |
| Duffy | Patrick |
2 |
| Dugan | H H |
2 |
| Eckersley | Charles |
2 |
| Enderlast | James |
4 |
| Enderlast | John |
4 |
| Endersey | Michael |
5 |
| Enduson | Thos. |
4 |
| Franklin | James |
5 |
| Fredetick | John |
5 |
| Fredetick | John |
5 |
| Freeman | ? |
1 |
| Gidley | Wm. |
5 |
| Giles | John |
5 |
| Gillespie | M B |
7 |
| Gillespie | A |
7 |
| Goddard | George |
1 |
| Grahame | Joseph |
7 |
| Guest | Joseph |
2 |
| Harrison | Thos. |
7 |
| Hayes | Henry |
5 |
| Hearney | Maurice |
2 |
| Hewitt | James |
6 |
| Hickey | John |
4 |
| Hobbs | James |
3 |
| Holden | Patrick |
2 |
| Hopkins | George |
4 |
| Hopkins | James |
5 |
| Horne | William |
2 |
| Hughes | William |
4 |
| Humphries | Frances |
5 |
| Hunt | William |
2 |
| Hunt | Richard |
2 |
| Hyland | Thos. |
6 |
| Jarvis | Matthew |
6 |
| Jenkins | Edward |
4 |
| Johnson | Charles |
4 |
| Johnson | Thomas |
6 |
| Johnson | Samuel |
6 |
| Jones | Charles |
3 |
| Jones | James |
5 |
| Keine | Thomas |
2 |
| Laveracks | James |
4 |
| Lewis Argles | Thos. |
1 |
| Limden | Matthew |
4 |
| Linasey | James |
3 |
| Livingstone | Don |
7 |
| Lowe | John |
7 |
| Mackdingal | James |
4 |
| Macnamarra | Shaoq. |
5 |
| Mahny | James |
5 |
| Maiters | Robt. |
3 |
| Marshall | James N |
1 |
| Maythew | Frances |
4 |
| McCambridge | O |
1 |
| McEacherrn | Robert |
1 |
| McEacherrn | J W |
1 |
| McEacherrn | James |
1 |
| McQueen | John |
5 |
| Moloney | Michael |
2 |
| Moore | James |
6 |
| Mullins | Wm. |
7 |
| Murray | Thomas |
7 |
| Neal | John |
7 |
| Niven ? | Docra |
3 |
| Niwronan | Hy |
6 |
| O’Brien | Wm. |
6 |
| O’Donald | Daniel |
2 |
| Oppickensten | Wm. |
7 |
| Pattinson | W |
7 |
| Pendergast | John |
2 |
| Philipps | Jno. |
1 |
| Piper | Thomas |
6 |
| Piper | Henry |
6 |
| Pollev?????? | ????? |
5 |
| Powell | John |
7 |
| Pye | John |
4 |
| Robinson | Edward |
2 |
| Robinson | David |
2 |
| Robinson | James |
3 |
| Rofs | John |
7 |
| Rogers | James |
3 |
| Shaik | M J |
6 |
| Sharman | ????? |
5 |
| Sharpe | John |
2 |
| Sharpley | ????? |
6 |
| Sharpley | David |
6 |
| Sherman | Btyson |
2 |
| Shields | Frances |
5 |
| Simpson | Thos. |
4 |
| Smith | Willm. |
3 |
| Smith | Edward |
3 |
| Smith | James A |
6 |
| Smith | E |
7 |
| Spinks | George |
6 |
| Stone | William |
4 |
| Sturt | James |
4 |
| Sullivan | James |
5 |
| Taylor | David |
3 |
| Taylor | Joseph |
3 |
| Taylor | Richard |
3 |
| Ter | William |
4 |
| Thompson | Charles |
3 |
| Thompson | John |
4 |
| Thompson | Samuel |
7 |
| Torvend | M? |
1 |
| Trimble | And. |
1 |
| Turner | William |
3 |
| Underwood | Thos. |
3 |
| Unreadable | Unreadable |
2 |
| Unreadable | Unreadable |
2 |
| Unreadable | William |
2 |
| Vaughan | Dennis |
7 |
| Walker | James |
3 |
| Wallace | John |
3 |
| Walsh | James |
2 |
| Watkins | George |
5 |
| Wayte | William |
5 |
| Whitaker | A B |
5 |
| Wilkinson | Joseph |
5 |
| Williams | Henry |
2 |
| Williams | Charles |
3 |
| Wilson | Peter |
4 |
| Wythes | Joseph |
1 |
| York | William |
6 |
.
