Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879

No. 200.
Mr. Evarts to Mr. Welsh.

Department of State,
Washington, July 11, 1879.

No. 328.]

Sir: I inclose herewith, a copy of a dispatch recently received from A. C. Litchfield, esq., consul-general of the United States at Calcutta, in relation to the case of one John Anderson, an ordinary seaman on board the American bark C. O. Whitmore, who, it appears, stabbed and killed the first officer of the ship on the 31st of January last, while that vessel was on her way from New York to Calcutta, sixteen days from her port of departure, and on the high seas in latitude 25° 35’ H. and longitude 35° 50’W.

You will preceive that the consul-general invoked the aid of the local police authorities in securing the safe custody of the accused, who was a prisoner of the United States, until he could complete the necessary arrangements for sending him to this country for trial, against whose municipal laws only he was accused of having offended, and that while thus in the temporary custody of the local police, the colonial authorities took judicial cognizance of the matter, claiming, under the advice of the advocate-general of the colony, that, under a colonial statute which confers upon the courts of the colony jurisdiction of crimes committed by a British subject on the high seas, even though such crimes be committed on the ship of a foreign nation, and that inasmuch as the accused, although appearing on the ship’s articles under the name of John Anderson, subject of Sweden, had declared that his real name was Alfred Hussey, and that he was a native of Liverpool and therefore a British subject, the case came within the jurisdiction of those courts.

The matter is now believed to have reached that point in the judicial proceedings where effective measures for asserting the jurisdictional rights of the United States would be unavailable in this particular case. And whilst I entertain no doubt that the accused will receive as fair a trial in the high court of Calcutta, where it is understood he is to be tried, as he would in the circuit court of the United States, in which tribunal he would be arraigned, were he sent here for trial, I deem it proper, at the same time, to instruct you to bring the question to the attention of Her Majesty’s Government, in order to have it distinctly understood that this case cannot be admitted by this government as a precedent for any similar cases that may arise in the future. No principle of public law is better understood nor more universally recognized than that merchant vessels on the high seas are under the jurisdiction of the nation to which they belong, and that as to common crimes committed on such vessels while on the high seas, the competent tribunals of the vessel’s nation have exclusive jurisdiction of “the questions of trial and punishment of any person thus accused of the commission of a crime against its municipal laws; the nationality of the accused can have no more to do with the question of jurisdiction than it would had he committed the same crime within the geographical territorial limits of the nation against whose municipal laws he offends. The merchant ship, while on the high seas, is, as the ship of war is everywhere, a part of the territory of the nation to which she belongs.

I pass over the apparent breach of comity in the proceeding of the colonial officials as being rather the result of inadvertence and possible misconception on the part of the government law officer of the colony, than any design to question the sovereignty of the United States in this or cases of a similar nature.

You will take an early occasion to present the views expressed in this instruction to Her Majesty’s Government, and inform the Department of the result of your proceedings.

I am, &c.,

WILLIAM M. EVARTS.

[Inclosure in Instruction No. 328.]

Mr. Litchfield to Mr. Seward.

Consulate-General, U. S. A.,
Calcutta, May 23, 1879. (Received June 30.)

No. 262.]

Sir: I have the honor to inform you that Captain Shillaber, master of the American hark C. O. Whitmore, reported that during his passage fom New York to Calcutta, on the 31st day of January, 1879, when sixteen days out from New York, in latitude 25° 36’ N., and longitude 35° 50’ W., an ordinary seaman, whose name appears on the ship’s articles as John Anderson, stabbed the chief officer, Mr. William C. Moffett, in his left side, causing his death a few hours afterwards.

Intelligence regarding this occurrence first reached me by telegraph from Diamond Harbor, a station about —— miles below Calcutta on the Hoogly River. The telegram read as follows: “Murder has been committed on board the C. O. Whitmore. Please make necessary arrangements.”

This reached me on the evening of the 12th instant, after office hours, and, as it gave me the impression that the murder might have been committed that day, and that prompt measures might be necessary to secure the offender and prevent further trouble, I immediately sent a note to the superintendent of police with a copy of the telegram and requested him to take necessary measures to secure the accused upon the arrival of the vessel. The next day I received from the port officer a copy of an extract from the report of the captain of the C. O. Whitmore giving the particulars above referred to, copy of which is herewith inclosed.

Upon receipt of this information I wrote at once to the commissioner of police requesting him to have the accused taken ashore and imprisoned till such time as I should find it expedient to send him to the United States for trial. (Copy of this letter, No. 252, under date of May 13, inclosed.)

When on board the ship on the following morning the captain received a note from a sergeant of the river police requesting him to appear at the police court with the American consul with him. I accompanied Captain Shillaber to police headquarters, and had an interview with the deputy commissioner of police, who informed me that “the case” had been made over to the government solicitor, and the accused would be taken before the magistrate at once, and if I had any objections to his trial here I must appear before the magistrate and make them. I then called upon the government solicitor and expressed doubts regarding the jurisdiction of the local courts, and upon his suggestion the magistrate postponed the examination until the opinion of the law officer of the government could be obtained.

On the 20th instant I received a communication from the deputy commissioner of police to the effect that the question of jurisdiction had been referred, through the government solicitor, to the advocate-general, who had decided that the accused should be tried before the high court of Calcutta in its admiralty jurisdiction. (Copy of this letter, No. 1767, inclosed.)

Accordingly the examination before the magistrate was proceeded with.

On the 21st instant I sent a letter to the deputy commissioner of police requesting a copy of the advocate-general’s opinion. Shortly after, upon the same day, I received a letter from the deputy commissioner, inclosing a copy of said opinion. (Copies inclosed.)

From the nature of the application upon which the honorable advocate-general based his opinion, I felt convinced that he had misapprehended the nature of the case, and by reason thereof had given an opinion, which, if followed, would result in a violation of the rights of the United States. I therefore appeared before the magistrate yesterday and told him I could not concur in the opinion expressed by the advocate-general, and wished him to note the fact lest my presence during all the proceedings, without protest, might be construed as indicating my approval.

Upon my return to the office I wrote to the honorable secretary to the government of India, foreign department upon the subject, copy of which is inclosed.

The reasons therein stated for not concurring in the opinion of the advocate-general, viz:

1. That the crime was committed on board an American vessel on the high seas clearly within the jurisdiction of the United States.

2. That the accused, signed the shipping articles as a Swede, and I must regard him as such; or in case he denied that he was a Swede and claimed any other nationality, I must, in the absence of proof, regard him as an American.

3. That the accused, having been brought to Calcutta in irons on an American ship, was virtually a prisoner in my custody, and had not been surrendered to the local authorities, nor had I asked to have him delivered to me.

4. That the accused was not a “fugitive from justice,” and that I had reason to believe from the nature of the application for the opinion of the advocate-general, that he had been led to misapprehend the nature of the case, seemed sufficient for referring the matter to the Government of India and urging its careful consideration.

The accused says he signed the name John Anderson to the shipping articles and told the shipping commissioner he was a Swede at the suggestion of his boarding-house keeper in New York, and asserts that his real name is Alfred Hussey; that his home is in Liverpool, and gives the name and number of the street where he says both his parents are now living, but he furnishes no proof of these assertions.

If the accused is able to prove that he is a British subject I do not understand that the courts here would have jurisdiction, as he was not arrested on shore or surrendered for trial; and even then I am told by the government solicitor there is no Indian act by which offenses committed by a British subject within the limits of a foreign state are made punishable here.

As regards this particular case I feel confident that trial here would be as impartial and as satisfactory in its results as one held in the United States, and would be attended with far less trouble, and there are no special reasons that I am aware of why a trial in the United States should be desired if the courts here have jurisdiction; but as establishing a precedent it appears to me to be of the greatest importance to have it carefully considered and wisely decided.

I shall be thankful for any suggestion regarding the course I ought to pursue when similar cases arise in the future.

I am, &c.,

A. C. LITCHFIELD.

[Inclosure 1 in No. 262.]

Extract from the arrival report of the American Bark C. O. Whitmore, dated May 11, 1879.

In latitude 25° 35’ N., 35° 50’ W. long., an ordinary seaman, named John Anderson, stabbed the chief officer, Mr. Moffett, in the left side, thereby causing his death Friday, January 31, 1879, at 5.45 p.m. Man placed in irons still on board.

J. R. SH1LLABER,
Commander American bark C. O. Whitmore.

No. 2667.

Memo.—Forwarded with the compliments of the undersigned to the consul-general United States America for information. The commissioner of police has been communicated with on the subject.

FRED. WARDEN,
Officiating Port Officer.

Fort William Port Office,
Calcutta, the 13th May, 1879.

[Inclosure 2 in No. 262.]

Mr. Litchfield to the commissioner of police, Calcutta.

Consulate-General, U. S. A.,
Calcutta, May 13, 1879.

No. 252.]

Sir: Late yesterday afternoon, I received the following telegram from the captain of the American bark C. O. Whitmore, sent from the Diamond Harbor, at 3.45 o’clock p.m.: “Murder has been committed on board. Please make the necessary arrangements.”

Because of the lateness of the hour at which I received the dispatch, the nature of which indicated that prompt measures might be necessary, I took the liberty to communicate with the superintendent of police, requesting him to arrest and imprison the accused upon arrival of the ship.

I am now in receipt of the annexed from the officiating port officer, containing an extract from the report of Captain Shillaber, master of the Whitmore, from which it appears the murder was committed in the high seas by an ordinary seaman, named John Anderson. I therefore have the honor respectfully to request that you will please cause the said named seaman to be arrested, brought on shore, and imprisoned until I can find it expedient to send him to the United States for trial. I shall proceed on board the vessel early to-morrow morning, and take the depositions of the officers and crew.

I am, &c.,

A. C. LITCHFIELD.

[Inclosure 3 in No. 262.]

J. Lambert, esq., to Mr. Litchfield.

Calcutta, May 20, 1879.

No. 1767.]

Sir: With reference to your letter No. 252, of the 13th instant, regarding a murde committed on the high seas on board the American bark C. O. Whitmore, I have the honor to imform you that I have, through the solicitor to the government, obtained the opinion of the advocate-general, who states that the accused, John Anderson, should be tried by the high court of Calcutta in its admiralty jurisdiction. The case will therefore be placed before the presidency magistrate of the southern division this day at 2 p.m.

I have, &c.

J. LAMBERT,
Deputy Commissioner of Police.

[Inclosure 4 in No. 262.]

Mr. Litchfield to deputy commissioner of police, Calcutta.

Consulate-General, U. S. A.,
Calcutta, May 21, 1879.

No. 254.]

Sir: Referring to your letter No. 1767, under date of the 20th instant, relative to the alleged murder committed on the high seas on board the American bark C. O. Whitmore, I have the honor respectfully to request that I may be furnished with a copy of the opinion of the advocate-general regarding the jurisdiction of the high court of Calcutta in the case.

I am, &c.,

A. C. LITCHFIELD.

[Inclosure 5 in No. 262.]

J. Lambert, esq., to Mr. Litchfield.

Calcutta, May 21, 1879.

No. 1797.]

Sir: With reference to your letter No. 252, of the 13th, and in continuation of my letter No. 1767, of the 20th instant, I have the honor to forward a copy of the opinion of the advocate-general on the case of John Anderson, charged with murder on board the American bark C. O. Whitmore, on the high seas.

I have, &c.,

J. LAMBERT.

[Inclosure 6 in No. 262.]

Opinion of the advocate-general.

My opinion is asked for on the following case: Empress vs. John Anderson.

A British subject serving on board an American merchant ship is accused of committing murder on board that ship, when on the high seas. The ship comes to Calcutta, and the prisoner is handed over for safe custody to the police. The American consul claims to have the man delivered to him for trial in America. Does the case come within the provisions of the extradition law, or should the man be tried here?

The Indian act of 1872 as to extradition, gives me no help in this case. The act, in my opinion, applicable to the case, is the English extradition statute of 1870. Although there has been no order of Her Majesty’s council extending that act to the American treaty of extradition (and which, although stated by the American President as one that the United States are not inclined to continue to recognize, has never been formally revoked, and has in fact been since that speech acted upon by England), still, section 27 of that act does not seem to require an order in council in the case of America.

The sixteenth section of that act provides for crimes committed at sea, and the interpretation clause as to the words “fugitive criminal of a foreign state,” would at first sight seem in the case of crimes committed on board an American ship, that being a place in the “jurisdiction “of America, to include crimes committed by British subjects as well as others.

The decision in the Queen vs. Wilson (32 B. Div. 42), would also appear to make it necessary, unless the treaty expressly excludes the British subject to give up to the foreign nation a British subject who has committed a crime in the foreign jurisdiction.

But my opinion is that the case in question would not apply where the English or Indian courts also have jurisdiction, but only to cases where the foreign court has exclusively jurisdiction.

If a British subject commits a murder on American soil he cannot be tried in England, and I read the acts as intended to prevent a criminal from escaping from justice. But if he commit a crime, such as murder, on the high seas, even in a foreign vessel, he offends against the English law as well as the law of the ship on which he sails, and he can be tried by the high court here in its admiralty jurisdiction.

The point might be considered to have been settled by the opinion of the law-officers in England of the 25th of October, 1887 (1868 For Dep. Political A. proceeding’ January, No. 100), but as that opinion was given before the new statute and the decision of the Queen vs. Wilson, I have stated my reasons at length.

The man should, if the evidence be sufficient, be sent for trial before the high court, and he ought not to be delivered to the American consul.

J. D. BELL.

May 17, 1879.

[Inclosure 7 in No. 262.]

Mr. Litchfield to the secretary to the Government of India, foreign department.

Consulate-General, U. S. A.,
Calcutta, May 22, 1879.

No. 255.]

Sir: I have the honor of bringing to your notice the annexed copies of letters and their inclosures which have passed between the deputy commissioner of police and myself relative to a murder alleged to have been committed on board the American bark C. O. Whitmore, when on the high seas, as follows:

1. Copy of my letter, No. 252, under date of 13th of May, to the commissioner of police.

2. Copy of a letter from the deputy commissioner of police. No. 1767, under date of 20th May.

3. Copy of my letter, No. 254, under date of May 21, to the deputy commissioner of police.

4. Copy of a letter from the deputy commissioner of police, No. 1797, under date of May 21, with accompanying opinion of the honorable advocate-general, regarding the case as represented to him.

The examination of the accused before the magistrate was concluded to-day, and he was committed for trial before the high court on the 26th instant, I believe.

Regarding the proceedings in this case thus far, I regret that I cannot approve of the course pursued by the deputy commissioner of police, or concur in the opinion submitted by the honorable advocate-general, for the following reasons:

1. The crime was committed on an American vessel on the high seas, clearly within the jurisdiction of the United States.

2. The person accused of the crime appears on the shipping articles of the vessel as a Swede, and I feel obliged so to regard him; or in case he denies that he is a Swede, and claims any other nationality, in the absence of proof to establish his claim I must regard him as an American.

3. The accused was virtually a prisoner in my custody when he arrived at Calcutta on an American ship and in irons; and my request to the commissioner of police to take him ashore to a place of greater security, till I could find it expedient to send him to the United States for trial, was not a surrender of the prisoner to the local authorities, but a request for a favor, which, I presumed, it was usual to grant under such circumstances.

4. The application for the opinion of the advocate-general appears to me to have assumed without proof that the accused was a British subject, and to have represented me as having claimed his surrender for trial in America, whereas no such claim had been made by me.

Furthermore, by raising a question regarding the extradition laws, it may have conveyed the idea that the accused was a “fugitive from justice,” who had been arrested here, whose extradition I had asked for.

I fear that by reason of a misapprehension of the nature of the case, the honorable advocate-general gave an opinion quite different to what it would have been had he fully understood the facts concerning it.

Action in accordance with the opinion given, it appears to me would be in violation of the rights of the United States, and establish a precedent at variance with the accepted interpretation of international law both in England and the United States.

Were there proof to establish the claim of the accused to be a British subject, and had he escaped from the American vessel, and subsequently been arrested here, or had he come regularly into the custody of the local authorities otherwise than by my request, I should not have felt called upon to raise the question of jurisdiction.

Inasmuch, however, as I am impressed with grave doubts regarding the regularity of the proceedings referred to, and feel assured that the Government of India is equally desirous with my own that no mistake should be made from lack of a clear understanding of the question at issue, I respectfully submit the matter for your consideration, and have the honor to request as early attention thereto as may be convenient on account of the limited time before the date fixed for the trial.

I have, &c.,

A. C. LITCHFIELD.