Confidential
11th October 1870
My Lord,
I have had the honor to receive Your Lordship's Confidential Despatch of the 24th August, enclosing for my information Copies of a correspondence with the Foreign Office in regard to the reported intention of the United States Government to include San Juan and theadjacentManuscript image adjacent Islands in the Census of the United States.
2. This matter has already been brought to my notice by Mr Thornton, as he states in his Despatch to the Secretary of State for Foreign Affairs, and I now enclose a Copy of the reply which I then forwarded to Mr Thornton. It was in fact too late for interference, even if I had authority for the purpose, or, if interference had appeared desirable. But I was notdisposedManuscript image disposed to attach much importance to the proceeding. I have however recently received another Despatch from Mr Thornton, of which I forward a Copy in which he acquaints me that the United States Government have relinquished the intention to include San Juan in the Census.
3. There is I fear very little doubt of the disposition of the authorities of the United States gradually to transgress the limits of the understandingagreedManuscript image agreed upon for the occupation of San Juan, if they are allowed to do so. I now forward to Your Lordship a Copy of a Letter from the War Department at Washington, which has been brought under my notice within the last few days, addressed to a person interested in property at San Juan, in which jurisdiction is claimed for the Courts of Washington Territory over the persons and property of American residents on the Island. ThishasManuscript image has come into my hands through a private channel or I would forward it to Mr Thornton, but I scarcely feel at liberty to furnish it as the basis of any formal representation to the United States Government. In representations which have been made to me it is alleged that British subjects as well as Americans were interested in the property to which the Letter refers, and application was made to me for interference; but I did not regard myself under yourpredecessor'sManuscript image predecessor's instructions as having any authority, or the Courts of this Colony as at present possessing any jurisdiction.
I have the honor to be,
My Lord,
Your most obedient
humble Servant
A. Musgrave
Minutes by CO staff
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Mr Herbert
Enumeration of San Juan in the Census of the U. States.
See F.O. 11302.
The U.S. Census Dt explains that all political purpose was disclaimed, & that it was taken solely in the interests of statistical science!
Copy to F.O. calling attention to the last par. of this despatch as to claimsManuscript image of the Courts at Washington over the persons and property of American residents in S. Juan?
CC 8/11
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RGWH Nov 8/70
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Sir F. Rogers
By the arrangement of 1859, San Juan was to be jointly occupied, militarily, by detachments of British Marines and United States Troops. That arrangement is temporary, and without prejudice to the claims of either Government. A vast quantity of corresce has since taken place, but I think that I have annexed as much as you will care to look at.
Assertion of rights of Washington Territory (F.O./3685 of 69).
Proposed convention (F.O./554 of 69).
Mr Howard's speechManuscript image against it (F.O./2504 of 70).
Simply states that at that date, it was of no use reopening the question (F.O./6150/70, 4 June).
Besides this correspondence, the Legislature of B. Columbia moved a Resolution (Govr 5724/70) for the settlement of the question in their interest.
The Government of Washington Territory moved for its settlement in theirs (F.O./1515 & 1872/69).
A Memorial, said to have been signed by a number of Residents in Victoria, V.I., (F.O./917/70) praying for annexation to the States, and addressed to the President,Manuscript image was stated by Mr Musgrave to be the production of some forty aliens there resident (Govr 3869/70).
The Canadian View of the question is given in M/37/68 (M37/68/69).
To sum up, the proposed Convention has lapsed by time owing to the opposition with which it met in the States; which Americans and English have alike sought a termination of the difficulty according to their respective views.
Incidentally, the following questions have been raised:
The relative professional ranks of the American and British commandingManuscript image officers.
As to the taking of an American Census in the Island. The States have abandoned this project.
Claim of Washington Territory to decide on Civil cases from the Islands. These papers are in circulation. They shall be sent you as soon as possible, if you wish to see them. A minute of yours is now being drafted.
Printed copy of corresce annexed for reference.
RSM 12/11/70
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Mr Monsell
It appears to me that this Washington Law Court may get us into some difficulty. A state tribunal being an echo of the popular feeling will of course proceed recklessly in its judgements, according to the popular view of the popular rights.
Then will come the question of enforcement. Even if Enforced as betn American subjects, the Act of Enforcement wd be contrary to the notion of a mere joint military occupationManuscript image and the practice of enforcement on the U.S. side, unaccompanied by the exercise of any civil authority on our side would establish a precedent against us. On the other hand, if a population grows up, it is no doubt requisite that they shd be subject to some civil authority.
If it belongs to Gt Britain at all, it belongs to B. Columbia (vide Lgn in Act of Parlt)—and their Courts wd have in our view the same right of interference as those of Washington.
Either both Courts ought to act therefore—avowedly—or neither. And it appears to me that the matter ought to be placed before [Mr Firth?] in this light. I am not myself aware that there is any reason for desiring one form of equality more than another, so long as equality is secured.
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If the U.S. Courts give judgement in a matter in which British subjects are concerned—it will I suppose be necessary effectually to resist Enforcement of their decree—wh I suppose the Military Officers on both sides, might not improbably agree to do, in an amicable way, if they are left alone.
It seems to me however that the W.D. letter is almost a direction to allow the Washington Courts to enforce their decrees.
I shd be disposed to write to the F.O. in something of this sense.
Only Mr E.T. must not be at liberty to quote the letter from the War department, but must find his own way to opening up the subject.
FR 9/11
WM 12/11
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Write as proposed to F.O. Let me see draft.
K Nov 15/70
Documents enclosed with the main document (not transcribed)
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Musgrave to Edward Thornton, Washington, 2 August 1870, acknowledging previous correspondence concerning the census question and advising that he was not in a position to interfere.
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Thornton to Musgrave, 29 August 1870, advising that the U.S. would not take a census on San Juan.
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J.C. Bancroft Davis, Department of State, to Thornton, 29 August 1870, advising of the exemption of San Juan Island from the U.S. census.
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J.D. Cox, U.S. Secretary of the Interior, to H. Fish, U.S. Secretary of State, 14 July 1870, regarding the proposed enumeration and enclosing a letter from the census office.
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F.A. Walker, Superintendent, Department of the Interior, Census Office, to Cox, 14 July 1870, advising that the enumeration had no political purpose but rather was to be conducted "solely in the interests of statistical science."
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Fish to Cox, 22 July 1870, giving instructions to exclude San Juan Island from the census.
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L.D. Whiner, Inspector General, War Department, to David Cross, 30 April 1870, advising that any land claims in the San Juans were to be referred to the Law Courts of Washington as "they have legal jurisdiction over the property and persons of American Residents of the Island."
Other documents included in the file
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Herbert to Under-Secretary of State, Foreign Office, 22 November 1870, forwarding copy of the despatch and commenting at length as per minutes.
Musgrave, Anthony to Wodehouse, John 11 October 1870, CO 60:41, no. 11857, 101. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/B70125CO.html.

Last modified: 2020-12-02 13:40:34 -0800 (Wed, 02 Dec 2020) (SVN revision: 5008)