No. 55
9 November 1859
I have the honor of transmitting herewith for your information the Copy of a Correspondence which I have lately had with Lieutenant General Scott, Commanding
the
the United States Army, relative to the temporary adjustment of the difficulty connected with the present occupation of the Island of San Juan, by Naval and Military Forces of Her Majesty and the United States of America.  
2. You will observe that General Scott proposes in his first communication that the forces of both Governments should be withdrawn, with the exception of a hundred men to be maintained respectively by each Government on the Island while the question of title is in abeyance, for the protection of their several interests and subjects: his proposal in fact involving the formation of a joint Military occupation of San Juan.  
3. An adjustment founded on the principle of a joint Military occupation was for many obvious reasons objectionable.  
I could not for example without inconsistency, assent to a measure against which I had entered a formal protest on behalf of Her Majesty when the first detachment of United States Troops was landed at San Juan, nor did I conceive it proper to anticipate the instructions of Her Majesty's Government by assuming a power for which I had no sanction or authority. I moreover conceived that the removal of the whole of the United States Troops might be demanded by Her Majesty's Government as an indispensable act of national courtesy, preliminary to any negociation for the Settlement of the difficulty; and I therefore did not think it proper to assent to any measure short of that concession.  
4. Presuming however, that Her Majesty's Government would not desire that unnecessary obstacles should be placed in the way of an immediate adjustment, I submitted to General Scott for Consideration another project of arrangement by means of a joint Civil occupation, which appeared in principle unobjectionable, and not inconsistent with my general instructions.  
5. General Scott in his second Despatch states certain constitutional objections to my proposal, which he appears to think will render the Employment of Civil Magistrates inexpedient, and expresses a doubt of their efficiency for protection or preventing collisions;
and
and with some remarks touching the object of his mission to this Country, renews his first proposal for a joint Military occupation of the Island.  
6. In my second Despatch of the 3rd of November instant, I have entered more freely into the Circumstances connected with the occupation of San Juan, and distinctly inform General Scott that I cannot without express instructions from my Government assent to his renewed proposal for a joint Military occupation.  
7. I also took the liberty of Suggesting to him what I from the first conceived to be the proper and graceful course for the Government of the United States to pursue, namely that General Scott should at once proceed to carry into effect his mission of peace by removing the large Military force with its Eight heavy guns and numerous field pieces which wear the appearance of menace while Crowning the heights of San Juan; assuring him that the British Naval force, consisting of Her Majesty's Ship "Satellite", would in that case also be withdrawn; and that no attempt would be made, on our part, to occupy the Island, or to take any proceeding to the prejudice of the position in which the question of title was placed by Her Majesty's Representative, and Mr Secretary Marcy in the Year 1855.  
8. General Scott in his reply dated the 5th of November instant States that he has ordered the number of United States Troops on the Island of San Juan to be reduced to Captain Pickett's Company of Infantry consisting I believe of 50 men, who will be left there
professedly
professedly for the protection of American Settlers against Indians; and a Copy of the orders to the Officer in Command of the United States Troops at San Juan to that effect, as transmitted with his letter.  
9. In my reply of the 7th of November I have simply stated that I will communicate the intention expressed in his letter to Her Majesty's Government, in the hope that it may be accepted as a proof of the desire of the United States to restore the former Status of the disputed Territory.  
10. There is no reason to doubt that the United States Troops now occupying San Juan will be reduced, as soon as circumstances permit, to the number appointed by General Scott to remain there; and I am informed that they are now actually under orders to leave the Island: but the question still remains as to the necessity of maintaining any Military force at all upon the Island.  
11. The alleged reason, the protection of settlers, for leaving the Troops there will apply with equal force in any other Settlement of white men on this coast, the settlers on San Juan not being peculiarly exposed to the incursions of Savages. I however admit the general proposition that protection is at times necessary; but that object may be as fully attained by the occasional appearance of a Vessel of War, with a moveable force, as by forming a permanent Military Station, and it is moreover worthy of remark that the United States Settlers on San Juan are, with one or two exceptions, persons who have recently arrived there, subsequently to its occupation by the Troops of their Government.  
12. I am therefore unable to admit the necessity alleged by General Scott of maintaining permanently a body of Troops there, which I conceive would occasion a fruitless and unnecessary Expenditure to both Governments; and moreover there are many Serious objections to that course, one of the most evident being the encouragement it would give to a Squatter population, whom it would be a very difficult matter to control, and whose presence notwithstanding every precaution that may be used to prevent
difficulties
difficulties, would lead to incessant Complaints and recriminations.  
13. I would further take the liberty of suggesting with the view of preventing further complications, that neither Government should promise or hold out the prospect of protection of Settlers, and that it should be agreed as a mutual advantage, to leave the whole of the disputed Territory unoccupied until the question of Sovereignty has been determined, when it may be disposed of in accordance with the views of the Government to which it may be adjudged.  
I have etc.
Minutes by CO staff
Duke of Newcastle
See also 12817.  
I forwarded this Dsp. to Ld J Russell in obedience to your direction, & I send his Lordship's confidential minute thereon, separate.  
In that minute Ld John R says that "the question of civil & criminal jurisdiction does not appear to have been satisfactorily treated by General Scott."  
This raises a very curious question (novel to me) which I am sorry I can only indicate, & in no degree solve, without much more inquiry than there is now time for.  
Govr Douglas objected to a joint military & proposed to Gen. Scott a joint civil occupation.  
Gen. Scott's objection to this proposal is not fully stated, but I infer it to be this. If San Juan is American of right, then it is part of "Washington Territory" (not yet constituted a State). But in its condition of "Territory" this district possesses by the US constitution laws and a legislature of its own, with which the Federal authorities cannot interfere within certain limits.  
Consequently a joint civil occupation could only mean on the American side an occupation by the territorial authorities, more anxious perhaps to provoke a collision than to avert it.  
This seems an additional reason in favor of preferring Gen. Scott's proposal to that of Governor Douglas (as Lord John Russell has done.)  
The difficulty, however, by no means ends here, though this may be the best temporary way of putting it aside.  
It seems to me that a Colonial Government (with a representative legislature) answers very nearly indeed to a territorial (not State) government in the U.S. It, likewise, has laws & an Assembly of its own, within certain limits of power, & the rights of the Imperial Executives are limited like those of the federal.  
Consequently, in the event of a joint civil occupation (unless otherwise provided for by treaty) the Vanc. I. authorities would have a legal position in San Juan: which, if English, is a dependancy of that island.  
But how are Gen. Scott's military officers on one side—and the British military officers on the other—to answer, legally, for acts done in the execution of civil duties under Gen. Scott's proposal?  
What answers could Gen. Scott's officers give, for assisting an American citizen on San Juan under a criminal charge, in the courts of Washington Territory?  
And what answer could our officers give, for assisting a British subject, in the courts of Vancouver's Island?  
Mr Fortescue would be glad to see these papers when the immediate occasion for them is over.  
HM
D 29
CF
Feb 3
These are curious questions and may entail much fresh difficulty. There can be no doubt that Govr Douglas' plan—to leave the Island unoccupied by either Country—would have been the best if there had been any chance of getting the United States to agree to it.  
Govr D. will however before now have admitted the joint occupation by Military in obedience to the despatch I wrote to him when we heard of Genl Scott's Mission, and I do not see that any orders can be sent in answer to this despatch except a reference to the one I allude to & expression of conviction that in accordance with it he will have arranged matters with Genl S.  
N
1-1
Documents enclosed with the main document (not transcribed)
  • General Winfield Scott to Douglas, 25 October 1859, laying out his proposal for a joint military occupation of San Juan Island.  
  • Douglas to Scott, 29 October 1859, explaining his objections to a military occupation, and proposing a joint civil occupation instead.  
  • Scott to Douglas, 2 November 1859, explaining his objections to a civil occupation, and again promoting the advantages of a military occupation.  
  • Detailed plan for the proposed joint military occupation, no date, no signature (five pages).  
  • Douglas to Scott, 3 November 1859, detailed explanation of his reasons for again rejecting a military occupation, at least until receipt of instructions from England.  
  • Scott to Douglas, 5 November 1859, advising that the number of troops stationed on the island had been reduced to a small detachment under Captain Pickett, and enclosing his orders for same.  
  • Special order authorizing the removal of the bulk of American soldiers from San Juan Island, 5 November 1859, signed by L. Thomas, Assistant Adjutant General.  
  • Douglas to Scott, 7 November 1859, advising notice of his actions had been sent to England.  
Other documents included in the file
  • Draft reply, Newcastle to Douglas, No. 4, 10 January 1860.  
 
Despatch to London:
Douglas to Newcastle, 9 November 1859, National Archives of the UK, 12699, CO 305/11. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871. Ed. James Hendrickson and the Colonial Despatches project. Victoria: University of Victoria. http://bcgenesis.uvic.ca/getDoc.htm?id=V59055.scx. Accessed 10 December 2018. 

Last modified: 11:59:30, 4/12/2018