Hammond to Merivale (Permanent Under-Secretary)
30 January 1860
I have laid before Lord John Russell your letter of the 18th Instant, inclosing Copies of Governor Douglas' correspondence with General Scott respecting the temporary adjustment of the question respecting the Island of San Juan.
I am to state to you, in reply, for the information of His Grace The Duke of Newcastle, that Lord John Russell considers that GovernorManuscript imageGovernor DouglasGovernor DouglasGovernor Douglas has acted in conformity with his Instructions which did not authorize his consenting to a joint occupation of the Island of San Juan. Her Majesty's Government, however, being anxious to maintain the most amicable Relations with the President of the United States, and feeling the difficulty in which the President was placed by the acts of General Harney, consentedManuscript imageconsented as the Duke of Newcastle is aware, sometime ago to the principle of joint occupation.
Lord John Russell has in consequence given to Lord Lyons and the Board of Admiralty Instructions of which Copies have already been sent to the Colonial Office: The question of civil and criminal Jurisdiction does not appear to have been satisfactorily treated by General Scott, and the settlementManuscript imagesettlement of this question in conformity with the principle laid down by Secretary Marcy will no doubt engage the attention of The Duke of Newcastle.
I am etc.
E. Hammond
Minutes by CO staff
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ABd 31 Jany/60
Mr Fortescue
I would refer you to my minutes on 12699, containing remarks on a confidential minute of Ld J.R. with which minute this letter appears to have been drafted in conformity. I do not know whether anything ought to be done on it? beyond conveying to Govr Douglas (if this has not been done) the formal approval of his conduct.
HM Jan 31
CF Feb 3
But what about the "question of civil & criminal jurisdiction"? Ld J.R. "had no doubt it will engage my attention," but Mr Merivale has shewn in 12699 that it cannot be joint [one line cut off file] there is nothing to be done but to trust to the discretion of the Officers on each side who will exercise a quasi Martial law amongst the few Squatters.
N 4
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Secretary Marcy's despatch, to which so much reference is made by the Foreign office, is really quite general & does not lay down any rule of practical stringency. It is all very well to say we must exercise mutual forbearance & so forth, but how can the Federal authority enforce forbearance on a State officer? And it seems from a despatch received today from Governor Douglas that there is an American magistrate on the island: who as I conclude must belong to the State of Oregon. See minute on that despatch.
HM F 15
It might, I think, be well to suggest to Lord J. Russell that a joint military occupation of San Juan having been instituted, it wd. be far more Manuscript imagesatisfactory if all civil authorities were withdrawn. We hear that the Americans (i.e. Washington Territory) have a Magistrate & Customs House officer on the island, and we, it seems have also a magistrate there. These gentlemen are much more likely to come into collision, and to raise awkward questions of jurisdiction, than military or naval officers wd. be—and such is evidently the opinion of Gen. Scott. The F.O. might be referred to Gen. Scott's views, and recommended to propose to the U.S. Govt that the joint occupation sh. be strictly a[nd] exclusively military—and the only law that mild kind of martial law wh. Gen. S. proposes, consisting in the expulsion of offenders, or in handing them over to the respective local Govts. However, the more the authorities of the Territory can be Kept out of the question, & the more it can be kept in the hands of the U. States (Federal) officers, the better.
CF 18
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I believe the withdrawal of all Civil Officers on both sides would be the best plan, but I am afraid the U.S. will not consent. I will write however to the F.O. and suggest it.
The best way will be to send copy of a despatch which I passed from Govr Douglas two days ago in which he mentions the American Magistrate and Customs House Officer and state the danger of collision arising from this [mixed?] authority—reminding the F.O. that these must be State of Washington Officers and therefore not under the control of Federal Authority.
N 20
Other documents included in the file
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Draft, Merivale to Hammond, Confidential, 2 March 1860, proposing that the civil authorities on both sides should be withdrawn, making the joint occupation a strictly military one.
Minutes by CO staff
This should have come straight to me with the Duke's minute.
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But would this really meet the case? There would be civilians on the island. And these could only be dealt with by officers having civil authority though they might be soldiers. The only way would be, to place the island under martial (i.e. military) law by consent.
Hammond, Edmund to Merivale, Herman 30 January 1860, CO 305:15, no. 1010, 120. 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/V605FO02.html.

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