Mr. Burlingame to Mr. Seward

No. 78.]

Sir: I have the honor to forward the papers relating to the trial, conviction, and execution of John D. Buckley, at Shanghai, April 1, 1864. He, like Williams, claimed to be a British subject; but the claim was not allowed. A rigorous effort was made by Mr. Eames, the counsel of the prisoner, to secure a reference to the President; but I could not see my way clear to grant his request. Such men as Williams, White and Buckley had so long escaped punishment that they had come to believe that they could take life with impunity. The United States authority was laughed at, and our flag made the cover for all the villains in China. I felt that any relaxation of our purpose to punish the guilty would only aggravate the evils of our situation. That the lawless would find fresh inspiration in the uncertainty of punishment. The result has shown the wisdom of the course taken. There has been a regular exodus of foreigners from China since. I received from Sir Frederick Bruce the following letter, which is in proof of what I say:

Peking, April 15, 1864.

“My Dear Sir: Mr. Adkins, our vice-consul at Chin-Kiang, in writing to me on the decrease of rowdyism on the Yangtse river, states, ‘the steps taken by the United States consul general of Shanghai will have the best effect. I do not hear of many acts of violence now.’ You will be glad of this impartial testimony to the soundness of his action in the cases of Williams and others.

“Yours, sincerely,

“FREDERICK W. A. BRUCE.”

The French admiral stated the same thing to me. Buckley was one of the worst villains of his class, and would have been lynched, probably, had he been taken on the evening of the murder of Captain McKennon. Please find the papers marked A, B, C, D, E, F, G, H, I, J.

I have the honor to be, sir, your obedient servant,

ANSON BURLINGAME.

Hon. William H. Seward, Secretary of State, &c., &c., &c.

A.

Mr. G. F. Seward to Mr. Buckley

Sir: You are aware that you are held in custody for trial upon a charge of murder. My intention, not less than my duty, is to allow you every facility to defend yourself. In order that you may not delude yourself with any false hope of frustrating the law by declaring yourself of different nationality than American, I call your attention to your declaration to her Britannic Majesty’s consul at Nagasaki; also to your letter to Mr. Walsh. It will be well for you, therefore, to see your case thoroughly defended; therein is your only hope.

You will be allowed to choose a lawyer yourself. This must be your own expense, as no provision is made for legal services in prosecution or defence by the United States government; I trust to see counsel upon both sides, however. [Page 401] You will be allowed three days to secure your lawyer; after you have chosen, a selection will be made by me on the part of the United States. You will then be furnished with a copy of the commitment. Upon trial you will be allowed to challenge the associates, and any reasonable objection made on your part will be considered. The number of associates is four; three, with myself, form a competent court to try you, and the judgment made [requires] only the assent of the minister to make it final. Your trunk, pistol, and $30 in money are in my hands; you will please hand over the key of the former, and, after examination, it will be handed the jailer for your convenience. The money you will probably leave in my hands to remunerate, in part, your lawyer.

I am, sir, your obedient servant,

GEORGE F. SEWARD, Consul General.

J. D. Buckley, Esq.

Mr. G. F. Seward to Mr. Buckley

Sir: One week has elapsed since I wrote, stating that you would be allowed three days to secure a lawyer, and that when your choice was made known to me I should furnish you with a copy of your commitment. I am not yet in receipt of any information regarding your choice of a lawyer, although a much longer time has elapsed than I expected. I have now to inform you that your trial will be docketed for Monday of next week. I enclose a copy of your commitment.

Your obedient servant,

GEORGE F. SEWARD, Consul General.

J. D. Buckley, Esq.

[Untitled]

John D. Buckley stands charged with having, on the evening of the 22d day of May, 1863, wilfully and maliciously, and without provocation, caused the death of one Captain John McKennon, against the peace of the people of the United States.

[Untitled]

Consulate of the United States, Shanghai, China, ss:

An inquisition taken for the people of the United States at the International hotel, in the port of Shanghai, China, on the 24th day of May, 1863, before me, George S. Porter, deputy consul of the United States, in and for said port, upon the body of Captain McKennon, then and there lying dead, upon the oaths of J. S. Brown, Captain J. S. Dolliver, Captain Abbot, Captain McKay, W. C. Clemens, and J. E. Wainwright, good and lawful men of said port, who, being duly sworn to inquire on the part of the people of the United States into all the circumstances attending the death of the said Captain John McKennon, and by whom the same was produced, in what manner, when and where the said McKennon came to his death, do say upon their oaths aforesaid, that one J. D. Buckley, of Shanghai, on the 22d day of May, 1863, at 7.30 o’clock in the evening of [Page 402] that day, with force and arms, did, at Shanghai aforesaid, then and there feloniously and violently make an assault in and upon the body of Captain John McKennon, then present; and the said J. D. Buckley, then and there, with a pistol which he held in his right hand, did violently and feloniously inflict a mortal wound in the abdomen, about four inches above, to the right of the navel, the ball passing through his body and lodging on the right side of his spine, near the surface, of which mortal wound the said John McKennon died at the hour of 3.15 o’clock p. m. on the 22d day of May, 1863. And so the said jurors do say, that the said John D. Buckley did, then and there, feloniously, mortally wound and murder the said Captain John McKennon, against the peace of the people of this port.

In witness whereof, as well the said deputy consul as the jurors aforesaid have to this inquisition set their hands and seals, on the day of the date thereof aforesaid.

GEORGE S. PORTER. [seal.]

J. S. DOLLIVER. [seal.]

J. H. BROWN. [seal.]

W. C. CLEMENS. [seal.]

J. McKAY. [seal.]

C. L. ABBOTT. [seal.]

JAMES E. WAINWRIGHT. [seal.]

[Untitled]

John D. Buckley stands committed for trial on the first day of February next, for the crime of murder, as more particularly set forth in the attached report of inquisition.

GEORGE F. SEWARD, Consul General, acting judicially.

[Untitled]

In the case in which United States is plaintiff, John D. Buckley defendent; charge murder; before George F. Seward, consul general, acting judicially; eight associates called in.

W. Scott Fitz has heard of the case, and thinks he is biased against the prisoner—told to stand aside. G. M. Boyd is also biased against the prisoner, and stands aside. Mr. E. Hawkins is called, to whom the prisoner objects without any questions—he stands aside. Mr. J. M. Nixon thinks he can sit and give an impartial verdict—he is accepted. Mr. T. W. Stillman is of the same opinion, and is accepted. Mr. A. L. Freeman is also accepted. Mr. H. C. Endicott knows nothing of the case, and is accepted without further questions.

The court is composed of the following gentlemen: George F. Seward, consul general United States of America; H. E. Endicott, A. L. Freeman, T. W. Stillman, J. D. Nixon, associates; E. Lawrence, attorney for the prosecution; T. B. Eames, attorney for the defence.

JOHN L. SEWARD, Clerk.

[Page 403]

Objected to by prisoner:

Prisoner claims the right to be tried by a jury of (12) twelve men, and objects to the court consisting of the consul general and four associates, as unconstitutional in a case of felony.

Objection overruled.

The prisoner, upon being asked by the court whether he is guilty, or not guilty, pleaded not guilty.

Charles J. Ashley, being duly sworn, says: I am a sailmaker by trade. I remember the evening of the murder; cannot say as to date, whether it was the 22d or 23d of May. I was stopping in the large house on the French Bund known as General Wade house. I had my meals at the International hotel. I arrived there on the evening of the murder. I saw the prisoner; he was dining that evening at the International hotel. The deceased, Captain McKennon, was also among them that evening. They were sitting nearly opposite to each other. My attention was called by hearing some loud talking and harsh language—so much so, that I spoke to the proprietor of the house. I heard some of the remarks, but do not remember what they were. The subject was secession. The conversation commenced about that. The parties were Captain Abbott and Captain McKennon. They were at first talking about the trouble in the United States. They were not excited. I could not hear all that was going on. The prisoner took part at the end of the conversation. He sat on the opposite side from me. During this high talk, the prisoner got up and left the room. Dinner was not over then. The deceased went out some six or ten minutes after. The prisoner said, as he went out, that he would make the deceased answer for that, or words to that effect. I did not hear deceased make any reply to that. When deceased went out he said, in a quiet manner, that it was always his way to allow everybody to have his own opinion. I left shortly after the deceased left. I went into the hall. As I was going from the dining-room, I saw two parties scuffling in the office—the prisoner and Captain McKennon. They seemed to be fighting; were clenched together as they came out. I was close enough to rub against them. I saw then the prisoner with his left arm around McKennon’s neck. As they came to me the prisoner was stooping. I saw him take a pistol from his sleeve or his breast pocket, I cannot say which; the gleam of the lamp was upon it, and I knew it was some weapon. The prisoner placed it up against the deceased, and I heard the report; it was almost against the deceased. The prisoner then stepped back and passed me, and then turned round and faced the whole party with the revolver in his hand. I saw it distinctly. I could not identify the pistol. I was the next one to the prisoner. I said, “Buckley, don’t shoot here.” He said, “I will, by God.” I heard the pistol click, but cannot say whether it snapped on a bad cap or whether he was cocking it. I ran back into the dining-room as quick as I could; some more were then in there. We shortly after went out and assisted Captain McKennon up stairs; I staid with him and helped to undress him. When he was laid upon the bed I saw the wound; it appeared to be in the pit of the stomach. I saw Dr. Walden feeling the back of the deceased. I did not see the prisoner after that. I did not see the deceased give the prisoner any provocation. I knew nothing of Captain McKennon. I am quite sure that the prisoner is the man who fired the pistol; I am positive of it. Knew nothing of the prisoner before that, except that he was a boarder in the house.

Cross-examined by defendant’s attorney.—The dispute was about secessionism; they were discussing that subject. I am prepared to say, that the prisoner answered the captain—he was talking about that. I can’t remember the words; he used harsh language. Prisoner was addressing a person opposite. I cannot say whether there was any conversation with Captain Abbott; [Page 404] do not recollect the language used; do not remember Captain Abbott’s addressing the prisoner about the San Francisco vigilance committee. The prisoner was talking to Captain McKennon. I do not know what the prisoner said. The dinner was not finished when the prisoner went out. The deceased went out five to eight minutes after the prisoner; I went out with several others, among whom were Dr. Walden and wife, Mr. Lozey and wife. I saw the scuffle when I was going out of the dining-room. I saw the parties coming out of the office door. The prisoner had his left arm around Captain McKennon’s neck; they were both in a leaning posture. The captain is a large man; not much larger than the prisoner. I saw him distinctly after he was laid upon the bed. I cannot say that he was much stronger than the prisoner, but he was an older man. I am sure that the deceased did not have the prisoner’s head under his arm. I could not tell what the pistol was. I saw the gleam of light upon it; could not tell whether it was a revolver or not. The prisoner was dressed in a long dark coat. There were half a dozen people about there. I did not see any blows struck; I am positive that I saw no blows; I was looking right at them; they appeared to be scuffling out of the door. I cannot tell what the Captain did; he might have been striking, but I did not see it. No one was taking any part in it. Mr. Lozey, Dr. Walden, Dominick Lynch, were present. Lynch was close to me; I saw him in the dining-room afterwards. Do not remember any others at present, except Captain Abbott, and Mr. Dow, owner of the bark Emily Banning. No one was interfering when I was looking at them. The struggle did not occupy a half minute after I saw the discharge of the pistol. I was not acquainted with Captain McKennon. I heard of the reward that was offered for the prisoner; I offered to subscribe my share. I never paid, as they never came to me for anything. I heard no one offer to lynch him; am not aware that any one carried a rope in his pocket to hang him with; never heard that before; have heard talk if he had been caught, it would have gone hard with him. He would probably have been lynched. I have no opinion on that subject. Did not notice the captain at the table. He did not appear excited— he was cool; was not angry. Did not appear to have been drinking. I will not say that the deceased had not been drinking at the table; he sat at the same side that I did. Do not remember seeing him rise from his seat; did not keep my eyes on him; was eating my dinner. I did not get through before the others. Others went out with me; do not know why. Captain McKennon came to the hotel that night. Did not hear it stated that he was looking after Dominick Lynch, or that he had a quarrel with him. There was something snapped about the pistol after the shot was fired. I distinctly heard a click. Could not see whether he took it from his pocket or his sleeve. The prisoner was leaning over sidewise in the scuffle. His coat was a long, dark-colored one. I did not aid the United States marshal in searching for him. I gave information to French police, and inquired several times about the prisoner. Did not see any blood on the prisoner’s face; he was facing me a short time. I wanted to get away from the pistol. His face might have been hurt, but I did not see it. Do not know what bystanders said; there was a great deal of confusion after the pistol was fired. I heard no remarks like, “Give it to him, captain.” Was not acquainted with the prisoner, no more than he was a boarder in the house. Do not remember hearing Captain Abbott charge the prisoner with having been sent away from California by the vigilance committee. Do not know who spoke first about the vigilance committee. I heard nothing about it; could not hear everything that was said. Prisoner said, when he left the room, he would make him answer, or something like that. Am not positive as to the words he used. I do not remember the prisoner telling Captain Abbott that he lied; did not hear the deceased say, “You are no gentleman.” I heard something that he would make the deceased answer. I heard distinctly, also, something about a gentleman, but I do not know who it came [Page 405] from. I cannot give any idea of position of the bystanders. Do not know whether there was any interfering.

W. C. Waldron, being duly sworn, says: I am a doctor by profession. Was a boarder there in May, 1863, and dined there, as usual, on the evening of the 22d of May. Captain McKennon and the prisoner also dined there that evening. I was not sitting near the prisoner, but at the other end of the table, on same side with prisoner. I heard them talking, but could not understand any particular part of the conversation, as I was too far off. There was considerable loud talk. I saw Buckley leave the table. He said, as he was going out, “I’ll see you after dinner.” Heard no reply to that. Doctor Kennief and deceased then left the table. I saw the prisoner and deceased were coming into the hall from the office. Captain McKennon had the prisoner by the hair, and was using his fist. I then heard the report of a pistol immediately after. Captain McKennon said he was shot. Did not see the pistol. Took deceased up stairs from the dining-room; attended him professionally. The wound was in left side of the abdomen, and came out at the spine. Deceased said Buckley had shot him. Was not with him when he died, but a few minutes before. Do not know whether he made any statement before he died. Have seen him frequently. He was a very good, clever man. Never heard any one say anything against him. He was of a pleasant disposition, so far as I can judge. Did not see the origin of the scuffle.

Cross-examined.—Could not hear what they said. Do not remember seeing Captain McKennon rise from his chair. They scuffled from the sitting-room or office into the hall. There were a great many people in the hall—say from ten to twenty; could not tell exactly. They seemed to be rushing out from the office. I did not see any one taking part in the scuffle; was getting my family out of the way of it. Did not see any wound on the prisoner’s face. Was there only a few seconds. Went into the hall after the shot was fired. Don’t remember when Mr. Ashley left the table. Know Mr. Lozy. He was at the table, and came out with me. Position of the prisoner was fronting the door. Captain McKennon was coming out first. McKennon seemed to have Buckley by the hair. He was a powerful, thick-set man; was an invited guest of Doctor Kennief. Do not know of any others coming with him. Did not hear any conversation about McKennon being in search of Dominick Lynch; did not know of their having any quarrel. Have known Captain McKennon about a month— from the time he arrived up to his death. Knew him by visiting his vessel; had no particular acquaintance with him. Do not think he was a quarrelsome man. Do not think I could find out his disposition in a month. Was not aware there was any difficulty between Lynch and McKennon about the affair. Was slightly acquainted with the prisoner. Do not remember how he was dressed; think he had a long, dark coat on. The light in the hall was not good; it came from the dining-room. Can’t say whether there was a lamp in the hall. Had not heard of the struggle until I opened the door; from what I saw, thought it had been commenced in the office. I continued to board at the house some time after the affair. Heard some talk about lynching the prisoner if he was captured. I was one of the persons that were looking after him. Heard persons say he would be lynched; heard Dolliver say it. I think he would have been lynched at the time if found. Am not aware that people went about with ropes prepared to lynch him. When I saw the prisoner his head was down. Captain McKennon had his hand on his head, and was putting it down. Heard something about vigilance committee—not distinctly. Did hear something about McKennon saying that he was no gentleman.

B. Kennief, being duly sworn, says: I am a dentist by profession. Came to Shanghai the beginning of May, 1863, in the Emily Banning, of San Francisco. Deceased was master of her. Remember the evening—22d of May. Was a [Page 406] boarder in the house. The deceased was a guest of mine. On the evening of the murder he sat on my left at the table. The prisoner sat on the opposite side. I heard the conversation between Captain Abbott and the deceased about the north and the south. The prisoner took part in it. Cannot describe exactly what he said. Know he took part in the conversation. Cannot say what took place exactly. The parties were not excited, in my judgment. Buckley at the latter end appeared to be excited, and went from the table first. Going out he said, “When you come out I’ll see you,” or words to that effect, addressed to Captain McKennon. Deceased, made no reply, that I recollect, nor did he appear excited when Buckley left. Five or ten minutes after the prisoner left, I went out, followed by the captain. I went into the sitting-room. Deceased also came in there. The prisoner was then there. I was conversing with Mr. Dow, the owner of the Emily Banning, and Mr. Eckfeldt, a clerk of Russell & Co., who was a passenger in the Emily Banning. Immediately after the captain came in there were some words took place between the prisoner and the deceased. Then I saw the prisoner strike the deceased over the head with a stick or cane. They got clinched, and commenced fighting, and went on until they got into the hall. The next I heard was the report of a pistol. I did not see the prisoner fire it, but the universal cry was Buckley had shot the captain. They then took the captain up to a room. I followed immediately, and saw where he was shot. Saw no more of the prisoner after that. Am quite sure I saw the prisoner strike the captain first. The captain was a man of exemplary character; he was liked by his officers and passengers; perfectly sober man, and, I think, would be incapable of commencing a quarrel.

Cross-examined.—I am not a particular friend of Captain McKennon. Was with him sixty-two or sixty-three days—the passage over. Was one of the parties at the dinner-table. Do not remember all the remarks made, or that deceased said prisoner was no gentleman—don’t recollect. Cannot say whether I heard the prisoner say anything before the vigilance committee subject was brought up. The discussion was between the prisoner and Captain Abbott; the origin about “secession.” Captain Abbott introduced the subject of vigilance committee, to the best of my recollection. Captain McKennon did drink occasionally; was my guest that evening. There was wine on the table, but we were not drinking freely—a bottle of claret between two of us. Do not know that any one came to the hotel with deceased. I think prisoner went into the sitting-room after me. The deceased went in there. Saw the prisoner when he went into the sitting-room. First saw prisoner strike deceased on the head with a cane; that was the first I saw, and am confident that was the first of the quarrel. Did not see Dolliver there. Dow and Eckfeldt were there. Did not see Captain Abbott there. Do not recollect Mr. Parsells being there. The prisoner struck deceased with a cane. I will swear that he struck him on the head or shoulders. The prisoner was on the opposite side of the room from me; and hearing high words passing between him and deceased, I looked and saw prisoner strike the deceased in the way I have represented. Was not looking that way before, as I know of. Can swear the deceased did not strike the first blow. There was no striking on the part of the deceased. I was looking in that direction when the captain came in, so there could not be any striking. Did not follow them out of the room. Saw them in contact with each other. After they got into the hall I saw no more of it. Did not follow my guest out. Do not think he was in the room more than a minute before the blow was struck. Do not know what was said. I was about the middle of the room. The table was between the prisoner and me. The deceased’s side was towards me. I do not know exactly whether he had arrived at the table or not; it was not exactly between the prisoner and me. The prisoner was sitting right back of the [Page 407] table. The deceased was getting his hat from off it, and was facing Buckley. Did not try to arrest the prisoner. Did not hear that they intended to lynch him.

Do not remember of hearing about lynching. I expressed no opinion that I wished he was caught, and punished accordingly. I did not offer any opinion whether he ought to be lynched or not. Do not recollect the high words that passed. Do not know who fired the pistol. The position of the parties the last time I saw them was close together, tussling like. Do not know the deceased had the prisoner by the hair. I saw no mark upon the deceased, except the pistol shot. Did not see the prisoner’s face bleeding. Do not know the weight of Captain McKennon; he was a small, strong man—stronger than the prisoner, and heavier. Cannot remember who was present, or if those present took part in the struggle or not. I know no one interfered while they were scuffling in the office. I heard Captain Dolliver say, “Let them be.” I was under the impression that the prisoner was rather getting “jessie” than otherwise. There was a number crowding in. Captain Dolliver’s language I cannot account for; no one offered to interfere during the time they were in the room. The prisoner had a long black coat on. I cannot tell how many crowded around; might have been more than 5; don’t think more than 20 when they got into fisticuffs. I do not know how many men there were in the hall. Dolliver was within a few feet of them when he made the remark; am not sure he was close enough to take hold of one of the parties. I did not crowd in with the rest; there were people between the parties and myself. I can say it was impossible for anything to occur I did not see; do not undertake to swear positively that no person interfered. Do not know whether Captain McKennon was in the habit of carrying a pistol.

T. W. Eckfeldt, being duly sworn, says: I was passenger in the Emily Banning, from San Francisco; had abundant opportunity to judge of the character of Captain McKennon; thought it good; never saw him intoxicated; he was very much liked by his passengers and crew; never saw him use violence towards any one; was at the hotel on the evening of the 22d of May; went there to see Dr. Kennief, who was also a passenger in the Emily Banning, and was boarding at the International hotel at the time. It was dinner hour when I arrived; I called at Dr. Kennief’s room; found he was not in. I sent my card to him in the dining-room, and the proprietor showed me a seat in the sitting-room. I remained there about fifteen minutes when a stranger to me came in. He was talking, but what he said I do not know. Cannot be positive as to the subject. Ten or twelve minutes after the first person there were three or four gentlemen came in the sitting-room from the room opposite, which I believe was the dining-room. The next I heard was a scuffle between parties in the room. As soon as I heard this I ran out of the room into the hall to the door of the long hall of the hotel, some distance from the office. A few moments after this I heard the report of a pistol; stopped some five minutes after, and heard persons saying Captain McKennon was shot; did not see the prisoner [Page 408] after that. I saw the captain after he was put to bed; he said to me, I am shot, but did not mention names.

Cross-examined.—Never saw Captain McKennon excited; did not see him before he was shot—that is, did not know it was he who was scuffling. I ran from the room as soon as I could; there was one or two there when I first went in; before I left three or four came in with the captain; afterwards three or four more came in from the opposite room. I was sitting on a lounge when two or three came in, and I then heard the commencement of the struggle; was talking with Mr. Dow; no other person was talking with me. Dr. Kennief had just come in from the dining-room, and said “Good evening” to me, but nothing more; the room was full when I broke and ran away; did not know any of them; have not seen any of them since to know them; there were four or five mixed in the scuffle when I saw it in the office; never thought Captain McKennon was quick-tempered.

J. D. Riley, being sworn, says: I am foreman to Mr. Ashley. The evening of May 22, 1863, I was stopping at the International hotel; arrived that evening. The prisoner and Captain McKennon dined there that evening. I sat near the door next to the prisoner—he on my right and Captain Abbott on my left—and Captain McKennon sat right opposite. The conversation commenced between Captains Abbott and McKennon about the trouble at home in the States. After a while the prisoner took part in it, when it turned upon a privateer schooner that was fitted out in San Francisco, which was captured and taken back. Captain Abbott was telling McKennon, when the prisoner joined in and said the privateer was right, and he hoped she would succeed. The prisoner left the table soon after—eight or ten minutes before the rest. He made some remark to the captain about settling with him when he came out. The captain replied, Very well; you are a gentleman. I left the room about the same time as the deceased, and went into the office a little behind him; he picked up his cap from off the table; the prisoner rose and struck him two or three times over the head; they then closed in, and had a fist-fight of it; as they were going round the table it tilted and upset the lamp; the globe fell to the floor, but I caught the lamp, and held it in my hand; as they got to the door I put the lamp back on the table and followed them out; just as I got to the door I heard the report of a pistol; I saw the prisoner; the pistol was in his hand; he seemed to be in the act of firing the second time; as he was backing down the hall some one asked if the captain was shot; he walked towards the door and Captain Dolliver took hold of him; he began to unbutton his vest, and Captain Dolliver walked off with him; I did not go up stairs.

Cross-examined.—I sat near the door; Ashley sat near the other end of the table. There were about thirty-six people at dinner, I should think. Table 25 or 30 feet long; might be less; about 18 people on a side; might have been 20 or 30; do not recollect the first words of the conversation; the first I heard the prisoner say was, the people that sent the privateer out were right; did not pay much attention, it did not interest me; I am rather deaf; the prisoner seemed to be talking with Captain Abbott, who asked him what made him say so? The captain did not arise in his seat when he said prisoner was a gentleman. I understood that he meant it; the latter part of the conversation was about the San Francisco vigilance committee. The captain made no remark about a gentleman before the prisoner left the table; prisoner was going out when the remark was made. There were five or six persons in the office when I went in. I went out of the door with the captain, but he was in the office before me. I stopped to get my cap; was about seven feet from Buckley; when he stood up he was close to the table. I saw the scuffle until they got to the door. The lamp did not go out; was occupied a short time putting it to rights; know Captains Lynch, Dolliver, Abbott, and Purcells were there; do not remember any one else; there were others—about six people in the office—don’t [Page 409] think there were more; have seen Dr. Kennief; don’t know whether he was there or not; did not see Mr. Eckfeldt; will swear there were not twenty; there were only two taking part in the scuffle. I beard some one say “Let them go;” did not hear anything else said; did not see any one touch either party; will swear no one interfered in the office; did not see Dolliver interfere; was not ten feet off; was not trying to get into the crowd. Dolliver is a medium-sized man; have seen Mr. Dow; did not notice where he was; Dow and Dolliver were larger than me; all were taller men than me; there was quite a crowd between the prisoner and me; the prisoner was nearest to me; the crowd followed them up; there were blows struck by both in the scuffle; Buckley had his hands on the deceased; the captain appeared to be trying to get off; did not see him have his hands on the prisoner, nor on his head; he might have; did not see blood on the prisoner’s face. Saw the prisoner strike the deceased about the neck and shoulders with a light cane; he struck more than once. Saw Captain McKennon after he was shot; did not see any marks on his face; the prisoner raised the stick and did strike him; there were two lamps burning in the hall; have been with Ashley as foreman ten months; have not frequently discussed this case with him. Ashley did not tell me what he testified the other day; did go into hall; was in the door when the shot was fired; there were a number there, say fifteen or twenty; cannot remember any others; do not know their names; the prisoner had a long dark coat—black suit on; the light was only a little dim; did not hear anything said in the hall; only Lynch said, “Let them go.” Did not hear any one say “Give it to him, captain;” I have no interest in this case for or against the prisoner.

G. S. Stephens, being duly sworn, says: I am a pilot; I was dining at the International hotel May 22, 1863; was a boarder there, and sat next to Captain McKennon the evening of the murder; Dr. Kennief sat the other side of him; the prisoner sat nearly opposite. The conversation began about a schooner which was fitted out in San Francisco to go down and take the mail-steamer. It was carried on by deceased and Captain Abbott. The prisoner did not join in at that time. It then turned to the Alabama, Florida, and other confederate privateers. Prisoner then joined in and said that “he wished there were more vessels fitted out as privateers; that he was a southerner and of southern principles, and thought their cause was right.” They were not much excited at that time; then something was said about “vigilance committee;” do not remember what; do not know why the prisoner left the room; he left before the deceased, and said he would see the deceased after dinner as he was going out of the door. The deceased said “Very well, if you are a gentleman;” deceased left in ten or twelve minutes. I did not leave until some time after. After the pistol was fired, was sitting in the room; when I heard the report, I saw the deceased coming in with other parties, and heard him say be was shot. Did not see the prisoner afterwards.

Cross examined.—The prisoner sat nearly opposite Captain Abbott; was on the same side as the prisoner; four or five persons between them, as near as I can remember; I was not acquainted with either party before; have not referred to the conversation; have not talked it over. Dr. Kennief was at the table next to deceased. He did not appear excited, and had very little to say. I noticed the deceased, he was drinking wine; he did not appear excited; did not rise in his chair at the time he said “You are a gentleman.” It was not said in a sarcastic manner. Captain McKennon was respectfully cool. I thought they were perfect friends. I cannot say how long I boarded in the hotel—three weeks, I think. There were about thirty boarders. Table was about fifty feet long; imagine he was toward lower end, opposite the door; do not know whether they could hear where Ashley sat; think they could hear considerable, if they were listening. Conversation was genera. Captain McKennon addressed Captain Abbott, and the prisoner spoke when the Alahama and Florida were mentioned. [Page 410] Am sure the prisoner took part in the conversation before the vigilance committee was named; they first seemed to get excited when the vigilance committee was brought up; the prisoner was talking with deceased and Captain Abbott. Abbott first mentioned the “vigilance committee;” do not remember the conversation on that subject; do not know if he was provoked by some remark of the deceased; do not remember that they appeared angry; did not see any one excited, except the prisoner, when he left the table; I did not take notice who else went out; know Ashley by name; cannot say whether he went out before me or not; the majority had gone out: only four or five remained. The report was just as I was getting up; heard the prisoner say he was a southerner; do not know that he is; did not search for the prisoner after the murder; nor did J. L. S. subscribe to the reward, or pay anything towards it.

Hugh Kennedy, being duly sworn, says: I know C. J. Ashley; saw him last Monday, the first day of this trial. I was standing outside when be came out and spoke to a witness; he told him he must be careful—be on his guard— “you must be very particular in what you say.” He asked how the trial was going; he said all right. I did not hear Ashley tell Kelly that the captain was struck first; he did not tell witness which to say struck first.

James Scott, being duly sworn, says: I am steward of the Steamship Navigation Company’s steamer Hu-Quang. The 22d of May, 1863, I was steward of the International hotel, and I carved at a side table, and overlooked the boys. My attention was called (I was in and out of the kitchen and wine cellar) to a conversation. The deceased dined with Dr. Kennief; I recognize the prisoner as having been there; I heard them talking politics; they got rather wrathy about vigilance committee in San Francisco. Mr. Dow was at the house; he sent a chit in by me to say he wanted to see the captain after dinner. I went into the office and saw Mr. Dow and another gentleman there. Buckley was sitting near a round ring-po table with Captain Lynch. I wanted to deliver the chit to the captain; he came in with Dolliver, Abbott, and others. Buckley had a cane in his hand. I spoke to the captain, saying there was a person waiting to see him. Buckley then rose and struck the captain, saying, “If you are a man resent that, or defend yourself;” and then a scuffle ensued. Did not hear either make any other remark. They scuffled towards the door, the deceased striking the prisoner. About three minutes elapsed in scuffle to the passage-way, and then I saw a weapon in prisoner’s hand; could not tell what it was; immediately after I heard the report of a pistol. Ashley was on the opposite side; he said, “Buckley, don’t shoot anybody here.” He had then fired, and had the pistol in his hand, cocked, and replied, “By God, I will.” Backing himself out of the passage, I saw no more of him. The captain was carried up stairs and his wound examined. They had a hand-to-hand fight I was within two or three feet of the prisoner when I saw the glance of the pistol. I saw Purcells run. The deceased had no weapon in his hand; saw him strike Buckley with his fists; did not see Buckley return the blow, when they were scuffling, after he struck with the cane. I had heard nothing of the deceased before he said “By Cod, I am shot!”

Cross-examined.—I keep the wine cards. Dinner was nearly over; when I went out some had left the table; there were persons there generally. I generally sold considerable wine; do not remember how much Dr. Kennief ordered; he went in with deceased. I remember snatches of conversation. The cane was a small ratan; the prisoner struck deceased over the shoulders; it was intended as an insult to the captain, and he had no chance to speak before Buckley struck him. Buckley was standing up; Captain Lynch was sitting on a chair. I did not get further than the middle of the room; there was a sofa in the corner of the room. Buckley was at the table, about eight feet from the door; he advanced towards the captain as he came in, and made the assault. The people interfered to part them; saw no one strike except the captain. I [Page 411] know Dolliver; he was in the crowd and tried to part them. The deceased had the best of the trouble. Abbott also tried to part them. Do not remember the deceased having hold of the prisoner’s hair. Lynch said, “Let them be.” I lived there a month and a half after that. There were from fifty to sixty people there to dinner; most of them had left the table and gone out. I heard of people searching for Buckley; heard say if he was caught he would be hung; do not think any lynching would have been done; did not interfere. Could not say how many blows were struck. Was a witness here before, on Lynch’s trial. The deceased had no chance; to my mind, he could whip Buckley; did not see any blood on prisoner’s face; saw deceased strike the prisoner a good many times, and he did not strike back; am not sure that he did not address any remarks to the prisoner. I never saw any one have a pistol there before. Do not know who came with deceased to the hotel; when the dinner bell was rung they all came in together. Abbott and Kennief lived in the same house. Do not remember Dolliver speaking about Lynch; Dolliver was very much annoyed, and took a prominent part; do not remember hearing him say “Let them be;” Lynch said that; the other did not wish to see anything of the kind going on; they tried to pull them apart—tried to pull the captain away; cannot swear which they pulled on; did not see prisoner after the struggle; did not see blood on his face. There were good lights right over where the fight occurred. They were all in the hall together. I have seen the prisoner before; he boarded at the hotel a month and a half; he had never been in a row before, and always conducted himself properly. Never heard Dolliver say anything about the prisoner. The prisoner kept company with Dominick Lynch. I have been in Shanghai about eight months.

Case closed for the prosecution.

S. B. Quick, being duly sworn, says: I was in Shanghai in May last, and remember the 22d instant. I know the prisoner; saw him between eight and nine o’clock that evening; he had the appearance of having been in a scuffle with some one; he was bruised and cut on the cheek; it was not bleeding when I saw him. I asked if he had been hurt; there were spots of blood upon his shirt-bosom. I knew of the search that was made for him; I was living in a Chinese bazaar; they searched there for him; Baron, the pilot, Clemens, Hathaway, and Dolliver were the parties; they were around my house. I asked them what they were there for. They replied, to find Buckley; that it would not be well for him if they found him.

Cross-examined.—I made a statement on the 25th of May before the consul. I met Barker that night. I remember Langan; he was in my house; he came in; Barker saw me first; Buckley was up at my house, and he wanted me to go up; I went up and saw Buckley there; that was the occasion that I saw blood; he told me he had been at the dinner table, and that a discussion arose, about which I knew nothing, and Captain McKennon struck him; and he showed me the marks and said there were two or three others struck at him. That is all I remember of; he said that McKennon struck him.

Edward Dias, being duly sworn, says: I have not been acquainted with the prisoner long; saw him the night of the murder; it was between seven and eight o’clock p. m., on the 22d of May. He was disfigured about the face; blood on it and sores. I fancied that he had been struck by the blood.

Cross-examined.—His appearance was not as if he had been in a severe row or fight. He did not speak to me. I saw him on the “Bund;” did not speak. I saw him as he went by; I knew him by sight; I remarked to a party in the house about it. I am in her Majesty’s jail now for desertion.

William Richards, being duly sworn, says: I was in Shanghai in May last. Knew the prisoner by sight; he came into Langan’s the night of the affray. He was cut in the right eye, and had blood on his face and shirt. Some parties came into Langan’s and tore up the floor looking for Buckley; they asked for [Page 412] all of the small-arms in the house; I told them I had no small-arms, but would give them a bottle of brandy. Did not know McKennon; did not speak to the prisoner that night; his eye was cut, face scarred, and face bloody. I did not ask him anything about it.

Case closed for the defence.

The court finds the prisoner guilty of murder, and assesses upon him the punishment of death by hanging.

GEORGE F. SEWARD, Consul General, acting, judicially.

Assented to:

H. C. ENDICOTT.

A. L. FREEMAN.

T. W. STILLMAN.

J. M. NIXON.

I hereby certify that the foregoing is a true and faithful copy of the original documents on file in this office.

[l. s]

JOHN L. SEWARD, Clerk of Court.

B.

[Untitled]

Shanghai, ss:

On the 1st of February, A. D. 1864, John Buckley was arraigned as John D. Buckley at Shanghai aforesaid, before George F. Seward, United States consul general, and four associates, without a jury, on the following charge:

“John D. Buckley stands charged with having, on the evening of the 22d day of May, 1863, wilfully and maliciously, and without provocation, caused the death of one Captain John McKennon, against the peace of the people of the United States.” To which charge the said Buckley, having first claimed a trial by jury, pleaded not guilty; and he was, on the 4th day of February aforesaid, by the court aforesaid, found guilty of the crime of murder; all of which fully appears by the record.

And now the said John Buckley, by his attorney, J. B. Evans, prays that said judgment be arrested as erroneous; and for error assigns—

1st. That the said Buckley was not indicted or presented by a grand jury, as required by Article V of the amendments of the Constitution of the United States of America.

2d. That said Buckley was not tried by a jury, as required by Article VI of the amendments aforesaid.

3d. That the charge does not support the judgment, inasmuch as it contains—

1. No allegation that said Buckley is a citizen of the United States.

2. No statement of the place where the offence charged was committed.

3. No charge of malice prepense.

4. No statement of the manner of death.

5. No statement of the time of death.

6. No statement that said McKennon died of a wound inflicted by said Buckley, or that said Buckley inflicted upon the body of said McKennon a wound in its nature mortal.

4th. That the assessors or associates were permitted to separate and go about their ordinary business for two days after the commencement of the trial.

[Page 413]

Finally. That the judgment is not supported by the evidence, there being—

1. No sufficient evidence of malice prepense.

2. No evidence that said McKennon died of a wound inflicted by said Buckley, or that said Buckley inflicted upon the body of said McKennon a wound necessarily mortal.

The precise nature and extent of the power conferred, or intended to be conferred, by the acts of Congress giving to the consuls and ministers in China judicial power, may be matter of doubt. As, however, the decision of the consular court, in a capital case, must be referred to the minister for his sanction, it would seem to follow, as a natural consequence of the minister’s power to examine, that he would have power to set aside a judgment manifestly erroneous.

Where it is apparent on the face of the record that the consular court has no power to convict, there would seem to be great hardship in keeping the prisoner in confinement until the case can be corrected by the President. Moreover, if the judgment was improperly rendered, the prisoner has, in common justice, a right to have it reversed, instead of being obliged to sue for pardon of an offence never committed—or, what is in law the same thing, not proved; and unless the power to reverse the decision of the consular court is vested in the minister, it has no place under the acts referred to. Should your excellency decline to reverse the decision of the consular court, I pray that the execution may be stayed, and that the case be submitted to the President.

1st and 2d. As to the first and several objections, it is submitted that the case is too clear for argument. The amendments of the Constitution, V and VI, expressly secure, in cases like the present, the right to a trial by jury, and only on indictment or presentment by a grand jury, and an act of Congress authorizing a trial in any other manner is so far void.

The word “jury” has, by long usage, received a precise signification at common law, and through the common law, as such, has no place in the federal courts; yet it is always to be consulted for the definition of words used in the Constitution or laws of the United States; and when the word “jury” was used in the Constitution, a common-law jury must have been intended.

But, admitting that a jury may consist of a less number than twelve, the argument is the same; for the “associates” cannot, in any just sense, be deemed jurors, as, except in capital cases, the consul decides irrespective of the opinions of the associates.

The exterritoriality of the proceedings cannot affect the question. Congress has no power not delegated to it by the Constitution; and that territorial limits of the power cannot exceed those of the instrument from which it is derived.

3. But, aside from the unconstitutionality of the court, the defects in the proceedings are fatal to the judgment, for—

1. The charge contains no allegation of citizenship, and in the absence of such allegation it does not appear that the court had jurisdiction, the presumption being that all offences committed without the limits of the United States are out of the jurisdiction of the United States courts until the contrary is shown. Upon the 9th Geo. IV, c. 31, giving the courts of Great Britain jurisdiction of offences committed by British subjects out of her Majesty’s dominions, it has been held that the indictment must contain an allegation of citizenship.

2. No statement of the locus in quo. This objection, like the last, goes to the jurisdiction, but it also leaves the charge undefined, and it would be impossible to plead this judgment effectually to another trial for the same offence.

3. Any indictment for murder becomes an indictment for manslaughter upon erasing the words “malice prepense,” which is the very essence of the crime of murder.

4. No statement of the manner of death. It does not appear from the charge whether death was caused by prisoner’s stabbing or shooting. An allegation of the manner has always been claimed indispensable in indictment for murder, and its omission is fatal.

[Page 414]

5. It is only by the dates of the proceedings that it appears that the death occurred within a year and a day after the wound was inflicted.

6. This objection goes to the whole body of the offence, and it is submitted, that unless the whole system of criminal proceeding is to be swept away, and the government is to be permitted to convict and punish, as the testimony may seem to warrant, without any previous charge, this indictment must be held to be unmistakably bad, and judgment must be arrested on that account.

4. If my view of the character of the associates be sustained, and they be held to be mere advisers of the consul, this objection falls; but if they are considered as judges, it was an error to allow them to mingle with the public for two days after the commencement of the trial.

Finally. The judgment is not supported by the evidence. I shall not urge the want of proof of deliberate malice, though it seems to me utterly wanting. The possession of a pistol by an old Californian, or even by a man who has been long in Shanghai, raises no presumption that a crime is meditated. That the prisoner always, as most Californians do, carried a pistol, is probably true; but on account of the absence of the only person who was intimately acquainted with his habits, his room-mate, it was impossible to prove this fact. Moreover, the prisoner engaged counsel on Saturday night, and the trial commenced on the following Monday, leaving an interval of one day for preparation. But as to the killing, there was absolutely no testimony, except that the prisoner discharged a pistol, and that John McKennon was wounded.

There was not one word of testimony to show that death did result from the shot, or that the wound inflicted by it was, in its nature, mortal. The testimony would barely support a charge of aggravated assault with a deadly weapon, and only by setting at defiance all the established rules of criminal practice could it be made to support a verdict of murder. All the precautions of the law have not, in all cases, preserved the innocent from conviction; and it is of vital importance to preserve intact all the safeguards of personal security and civil liberty,

In conclusion, I pray that your excellency will carefully consider the testimony in the case, even if the objections taken should be overruled, and recommend the case of the prisoner to the consideration of the President.

It will appear from the testimony, that at the time when the shot was fired the prisoner was struggling at great disadvantage with a man much more powerful than himself; that several persons, not one of whom was a friend of the prisoner, were interfering in the quarrel, though the nature of their interference does not appear, and was probably unknown to the prisoner, and that the prisoner was entirely without aid or hope of assistance. Can it be possible that, under such circumstances, a homicide, even if one were committed, would amount to murder? How many men would have hesitated to avail themselves of any means in their power to release themselves from such a situation? Where was the opportunity for deliberation?

I beg to suggest, moreover, that the prisoner’s health is failing, and to urge the importance of deciding this question of the validity of the judgment, without the delay necessarily incident to a reference to the President, if possible. Confinement in his present quarters through the summer would probably prove fatal to the prisoner, and a reversal of the judgment would come too late.

J. B. EVANS, Attorney for Prisoner.

Note.—If the finding of the coroner’s jury should be made part of the case, I beg to object to its being so used, as it was not put in evidence at the trial and the prisoner had no opportunity to present his objections to said inquest.

J. B. EVANS.

His Excellency the Hon. Anson Burlingame, United States Resident Minister in China.

[Page 415]

C.

Mr. G. F. Seward to Mr. Burlingame

No. 17.]

Sir: I have the honor to transmit to you, enclosed, the minutes of the consular court in the trial of John D. Buckley, for the murder of John McKennon, together with the objections taken by the prisoner’s counsel, and a memorandum of same by myself.

I have the honor to be, sir, your obedient servant,

GEORGE F. SEWARD.

His Excellency Hon. Anson Burlingame, &c., &., &c., Peking.

D.

Memorandum concerning objections to decision in United States vs. John D. Buckley

To the first and second objections no remarks are offered. If the act of Congress is unconstitutional, the undersigned will be glad to know it, as the idea of committing a judicial murder is abhorrent to him.

To the third objection, generally and in detail, he would remark that the commitment of the prisoner, of which the inquisition formed a part, is sufficiently full upon the points made, excepting as to the citizenship of the prisoner; this is dwelt upon in his original letter to him. Moreover, the citizen does not even claim that he is not a United States citizen.

To the fourth objection the undersigned finds no prohibition in the act against such separation.

To the fifth, if the evidence does not prove malice aforethought, the minister will be able to correct the opinion of the members of the lower court as to an alleged want of evidence that McKennon died, and from the effects of a wound inflicted by Buckley; the undersigned believes that the evidence offered will leave no room to doubt on this point. Moreover, the prisoner does not claim that he did not so die.

The undersigned is aware that he is not rebutting technical arguments in a technical way. He has no desire to do so, because he has never understood that the government expects that his court will be conducted with reference to the numerous formalities of courts at home. He submits that in this instance there is no reason to think that any injustice has happened to the prisoner from the manner of procedure, and that, on the contrary, if he is allowed to avail himself of the merely technical points raised, a great injustice will be done to the inimitable laws of right.

GEORGE F. SEWARD.

E.

Mr. Burlingame to Mr. George F. Seward

Sir: John D. Buckley having been tried and convicted, according to law, of the crime of murder, by virtue of the power in me vested, as envoy extraordinary and minister plenipotentiary of the United States to China, and by act of [Page 416] Congress approved June 22, 1860, I order that the said John D. Buckley shall, on the second Friday after the receipt of this, be hanged by the neck until he is dead.

This sentence shall be executed, under your direction as consul general of the United States, at ten o’clock in the forenoon of the above day, and this shall be your warrant for the same.

In testimony whereof, I have hereunto signed my name and caused the seal of the United States to be affixed, at Peking, this 11th day of March, 1864, and the 88th year of the independence of the United States.[l. s]

ANSON BURLINGAME.

Attest:

S. WELLS WILLIAMS.

George F. Seward, Esq., United States Consul, Shanghai.

F.

Mr. Burlingame to Mr. George F. Seward

Sir: I have the honor to acknowledge the receipt of your despatch (No. 17) informing me of the trial and conviction of John D. Buckley for murder.

After a careful examination of the proceedings of the consular court, and an attentive consideration of the objections made to the same by the learned counsel for the prisoner, I am constrained to approve of the conviction of the said John D. Buckley, and have accordingly issued my warrant for his execution. You will be so kind as to observe in this case the general instructions contained in my letter directing the execution of David Williams.

I have the honor to be, sir, your obedient servant,

ANSON BURLINGAME.

George F. Seward, Esq., Consul General, Shanghai.

G.

Mr. George F. Seward to Mr. Burlingame

Sir: The execution of John D. Buckley having taken place this day, pursuant to the warrant issued from your office on the 11th ultimo, I have to report as follows:

The despatch and warrant were received on the morning of the 24th ultimo. The same day the prisoner was brought before me and the warrant read to him. He remarked at considerable length upon the evidence adduced at the trial, declaring that certain witnesses had sworn falsely. He said, also, that he was not an American citizen; that he was born in Ireland; had lived some time in the United States, but had never been naturalized; that he did not shoot McKennon with a revolving pistol, as generally believed, but with a Derringer; and that if he had had a revolver he would have used it again.

[Page 417]

On Saturday evening, the 26th ultimo, I received a. despatch from her Majesty’s consul, Sir Harry Parker, K. C. B., a copy of which, and my answer is enclosed. This morning, at about 9 a. m., the prisoner was removed from her Majesty’s jail to the jail building of this consulate. A force of twelve members of the municipal police acted as a guard in making the transfer, while as many more were on duty at the place of execution. The prisoner was placed in the lower room of the jail until the hour of 10. Admission was allowed to a relative of his, and to Pere de Jaques, one of the clergy of the Roman Catholic community of this port.

The details of the execution are sufficiently set forth in the accompanying certificate of the attending physician and of five of the persons who witnessed it.

It is a matter of much regret to me that the remark made by the deceased at the reading of the warrant for his execution, that he would have used a revolver a second time if he had had one, was reported in one of the local prints in a manner which, if correct, would have evinced the utmost depravity on his part. I had fully explained the manner in which the misreport had occurred to the previously named relative of the deceased, and would have done so to the public had I entertained any idea the same would be traced to any source other than that from which it actually sprung, or if the slightest intimation had been given that the prisoner felt himself aggrieved.

I have only to say, in conclusion, that I trust no similar duty will be imposed upon me again so long as I remain in this office. There is no reason, excepting the absence of appropriate legislation, why American citizens in China, charged with grave offences, should not have the privilege of a trial by jury as elsewhere throughout the world where the institution of civilization prevails. When such is the case, I think it not right to deprive those thus charged from a privilege so dear to all freemen, nor yet to impose upon a consular officer the responsibilities so grave as they are now obliged to assume.

The occasion also affords me an opportunity to speak of the disabilities which we are under in carrying out the present system. In this case, fearing to trust the rickety jail building of this consulate, I caused the prisoner to be confined in her Majesty’s jail. For the expense thus incurred, together with a gratuity which I think it is right to hand the keeper, it is likely I shall have to provide from my personal income. I thought it right, also, for many reasons, to engage the services of a prosecuting attorney, the chief of which was, that it would be unfair to forbid the prisoner, who had no means of access to his witnesses, counsel for his defence, and still more unfair to the government to allow counsel for the defence without providing the same for the prosecution. Thus an expense of nearly $200 has been incurred—an amount I would not speak of were there not so many drains upon my limited means—no portion of which I may hope to collect from the government. Similar expenses have been accrued in other instances, and we are continually liable to them.

I have the honor to be your obedient servant,

GEORGE F. SEWARD.

His Excellency Anson Burlingame, Minister, Peking.

H.

Mr. Parker to Mr. George F. Seward

No. 100.]

Sir: I have the honor to enclose, for your perusal, a letter or statement which I have received this day from Mr. Eames, the counsel for the prisoner, John D. Buckley, claiming for him protection as a British Subject, although I learn the [Page 418] prisoner has already been tried in your court as an American citizen, without any objection being taken at the time of trial to the jurisdiction of your court, and has been sentenced to undergo capital punishment for the offence of which he was found guilty. I am by no means, therefore, prepared to find that his claim to British protection can be sustained; but I should be glad to receive any information on the subject which you can kindly furnish me, and I would beg your attention to the closing remarks of Mr. Eames’s letter, which allege that he was not charged with being an American citizen at the time of his trial. May I request you to return Mr. Eames’s letter and the two papers enclosed when you have read them.

I have the honor to be, sir, your obedient servant,

HARRY S. PARKER, Consul.

George F. Seward, Esq., United States Consul General, Shanghai.

I.

Mr. George F. Seward to Mr. Parker

No. 77.]

Sir: I have had the honor to receive your despatch of the 26th instant covering enclosures which, as requested, are returned herewith.

The prisoner, Buckley, was not charged upon his trial with being an American citizen, but he was charged as an American citizen. You will note the wording of the indictment, which says, “against the people of the United States.”

It was not thought necessary to inquire into the prisoner’s nationality, for two reasons: because it has never been customary to do so in similar cases, but to accept the prisoner’s own statement, and because Buckley had definitely surrendered himself to me for trial. I enclose a copy of a communication addressed by him to the United States consul at Nagasaki, which is in point. I was informed by the said official that Buckley, while in prison at that port, claimed British protection, but that upon being visited by her Majesty’s consul he said that he was not a British subject. Buckley explains this by saying that he said he was not an Englishman, he now declaring that he is of Irish parentage. Buckley’s counsel objected to the proceedings upon the trial, after the same had been concluded and the minutes had been prepared for transmission to his excellency Mr. Burlingame, upon the ground that it had not been proven that the prisoner was an American citizen. There was no claim made to me at that time or before that he was a British subject, but this was reserved until the decision of the minister had arrived. The case thus stands, in fact, quite the same as that of D. Williams, in which his excellency the British minister refused to interfere.

I need not say that, under other circumstances, the idea of assuming any power whatsoever over her Majesty’s subjects would be extremely repugnant to me. The many difficulties arising from the mixture of jurisdictions and the impossibility of receiving evidence as to the proper nationality of individual criminals, are a sufficient excuse for a manner of procedure which otherwise would be highly objectionable.

I am, sir, your obedient servant,

GEORGE F. SEWARD.

Sir Harry Parker, K. C. B., Her Majesty’s Consul, Shanghai.

[Page 419]

The undersigned hereby certify that they were present at the execution of John D. Buckley, convicted of the murder of John McKennon, master of the hark Emily Banning, which took place as follows: At the hour of 10 a. m., the 1st day of April, A. D. 1864, the prisoner was brought from a low room of the jail buildings of the United States consulate general at Shanghai, of a flight of stairs to a verandah, and thence to the scaffold, which was constructed in front of the same, and the floor upon the same level. He was placed upon the drop, and asked by Mr. Lewis, the deputy consul, whether he had anything to say. He remarked, in reply, that he was innocent of the crime of murder, he having shot McKennon in self-defence; that he was of Irish birth, and had never denied his nationality, but he could forgive those who had perjured themselves upon his trial, and those who had informed upon him, but that he could not forgive Mr. Seward, who had caused the publication of alleged remarks of his at the time when his sentence was read to him, which was false. He then said that he had nothing more to say, and after repeating a few words of prayer after the attending clergyman, Pere de Jaques, forgiving his enemies and committing his soul to God, the fatal noose and death-cap were adjusted, and, at a signal, the support of the drop was instantaneously removed. He fell nearly ten feet, and hardly made a struggle. Upon subsequent examination it was shown that the vertebræ of the neck was dislocated by the fall, and it is probable that he suffered no more than a momentary pain.

The conduct of the deceased was remarkably firm and collected throughout. No evidence of emotion or of faltering spirit could be seen. His hands, which were pinioned behind, were tightly gripped, and the almost purple hue they exhibited when the preparations were complete evinced the point of tension to which his nerves were strained. His remarks occupied a period of perhaps five minutes, the substance of which is given above. At the end of a half hour— no sign of life remaining—he was taken down and placed in a coffin prepared by his friends.

The utmost care was taken by Mr. Deputy Consul Lewis and Mr. Howard, the marshal, and no untoward circumstance occurred to render the sad duty they were called to perform more difficult.

J. J. HOWARD.

JOHN P. BENNETT.

S. C. FARNHAM.

JAMES S. WHITMAN.

DAVID S. CAUNELL.

J.

[Untitled]

I hereby certify that I was present at the execution of “John Buckley,” examined his body, and pronounced life extinct.

W. G. HAY, M. D.