Colonial Despatches

Mr Merivale

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.

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.

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.

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 be far more satisfactory if all civil authorities were withdrawn.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.

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.