Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Douglas, Sir James to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 9 November 1859, CO 305:11, no. 12699, 217.
Abstract
Douglas, Sir James to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 9 November 1859, CO 305:11, no. 12699, 217.
Despatch to London.
Minutes (2), Enclosures (untranscribed) (8), Other documents (1).
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.
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withdrawn, with the exception of a hundred men to be maintained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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Detailed plan for the proposed joint military occupation,
no date, no signature (five pages).
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.
People in this document
Fortescue, 1st Baron Carlingford Chichester