Pending the reply of Her Majesty’s Government to the dispassionate
representations you have already been directed to make, I have no further
observations to add to those of the consul-general than to remark that,
while the verdict of the jury, convicting the man of manslaughter, seems to
have been technically right as to the degree of the crime committed, the
partiality and unfairness of the proceedings, which this government had
confidently hoped would be marked by the most signal impartiality and
fairness, cannot but be deduced from the result of the trial. I refer
especially to the keeping back of the testimony of witnesses who would have
shown aggravating circumstances of guilt; in the notably strong
recommendation to mercy and, more than all, in the character of the
sentence, a purely nominal punishment, such as would be usually inflicted
for a slight contempt of court, and unheard of before in any British court
as a measure of the penalty for manslaughter, the conviction for which
rested on the verdict of a jury, the prisoner having been set free within
forty-eight hours, without even the form of executive clemency. These facts
are here thought to justify what might otherwise seem to be the heated and
indignant comments of Mr. Litchfield on the affair and should the assumption
of British jurisdiction in the case be defended by Her Majesty’s Government,
the circumstances adverted to would seem proper to be brought to Lord
Salisbury’s attention, with all the temperance of representation permitted
by the facts themselves, and as justifying the ground taken, with respect to
such assumption of jurisdiction, in my previous instruction No. 328.
[Inclosure in Instruction No.
341.]
Mr. Litchfield to
Mr. Seward.
Consulate-General, U. S. A.,
Calcutta, June 10, 1879.
(Received July 18.)
No. 263.]
Sir: Referring to my dispatch No. 262, under
date of 23d May, relative to the murder upon the high seas of Mr.
William Moffett, mate of the American hark C. O. Whitmore, by John
Anderson, an ordinary seaman, I now have the honor to inform
[Page 447]
you that, in the absence of
any instructions from the Government of India to the contrary, the trial
of the accused was proceeded with in the high court on the 27th of May,
resulting in a verdict of manslaughter accompanied with a strong
recommendation to the mercy of the court on account of the excessively
cruel treatment received at the hands of the mate (as appeared from the
evidence).
The prisoner was sentenced to imprisonment during the remainder of the
“sessions,” which terminated the following day, since which time he has
been at large. Subsequent to Anderson’s release, the deputy commissioner
of police sent him to me with a written request that I would have the
goodness to state if I had any objections to pass an order for the
delivery of Anderson’s clothing, which was still on board the ship. I
replied that I regretted I could not at present order the delivery to
Anderson of anything that might have been his before he killed the mate
of the C. O. Whitmore.
On the 2d day of June I wrote to the deputy commissioner of police
requesting him to cause John Anderson to be returned on board the C. O.
Whitmore, which he declined to do on the grounds that Anderson had
passed out of his custody. (Copies of these letters inclosed.)
It is a matter of painful regret to me that the confidence expressed in
one of the closing paragraphs of my dispatch of the 23d of May, that the
trial here of the accused would be impartial and satisfactory in its
results, proved to have been entirely misplaced; and I left the
court-room with a deep conviction that had there been an intention, it
could not have been more skillfully contrived for the purpose of
concealing the real facts of the case concerning the vital points upon
which the actual guilt of the prisoner hinged, viz, the nature of the
treatment received by him at the hands of the mate, and the amount of
provocation just prior to the stabbing.
In order that you may understand my reasons for entertaining, much
against my will, such deep convictions of the unfairness of the trial, I
respectfully submit copies of the depositions of the captain, the second
mate, and eight of the crew of the C. O. Whitmore, from which you will
observe—
- 1.
- That the captain states that Anderson used insulting language
to the mate; that he is sure the mate did not strike him when on
top of the cabin or in the boat; that there were no marks on his
face to indicate that it had been jammed or pressed against
anything,-or that it had received heavy blows.
- 2.
- That Thomas McDonald, who was at the wheel near to and facing
the affair, testifies that the mate shook Anderson; that he
never saw him strike any one on board the
vessel; that Anderson called the mate a ———; and that when the
mate was bleeding to death lying on the poop, Anderson stood and
looked at him and said, “You’ll kill me, will you?” Furthermore he did not
notice any blood on Anderson’s face, and is positive it couldn’t
have escaped his attention had there been much.
- 3.
- Peter Hopp, an able seaman, a German, who was at work on the
top of the cabin close by the scene, says he did not see the
mate strike him; he heard Anderson call the mate a ———; and he
furthermore testifies to the uniform good character of the
mate.
- 4.
- Thomas Brown, an able seaman, who was sitting on top of the
house near to them, stated that he did not see the mate strike
Anderson at that time, nor at any time. He heard Anderson call
the mate a ——— and a ———.
- 5.
- I may add that Mrs. Shillaber, the captain’s wife, who did not
witness the killing but came on deck shortly after the affair
and confronted the murderer face to face, says she has a very
vivid recollection of his appearance; that there were no bruises
on his face, only a little blood from one nostril dried on his
lip, and something resembling a pin-scratch on the side of his
chin and neck. I may remark that her delicate condition caused
me to delay taking her deposition for a time.
You will observe that all the witnesses testify that the captain
separated them when quarreling, and nearly all, that the accused rushed
after the mate when he was removed some distance from him.
You would naturally suppose that these facts would have been brought out
in the trial, but such was by no means the case. Two of these witnesses,
Peter Hopp and Thomas McDonald, remained on board the ship during the
trial in the high court, while Thomas Brown, though present in the high
court, was not called to give his evidence. When the examination before
the magistrate was being held, I requested Mr. Fink, who was conducting
the prosecution, to call Hopp and McDonald, but he declined on the plea
that it was unnecessary, at the same time giving me an assurance that
all would be examined when the case was tried
in the high court, and it was not till I discovered that these witnesses
were not present, that my suspicions were excited, and but little then,
as I knew that they might have been detained on board the vessel and
could come the next day, not for a moment thinking that so grave a case
would be dispatched like a trial for petty larceny, and they were not
fully aroused until the government prosecutor arose to close the case,
when I told him and his adviser that the principal witnesses for the
prosecution—those on top of the cabin and nearest the scene—had not been
called, and that so far as I could see the witnesses had been mainly for
the defense.
[Page 448]
The prosecution was conducted in this manner. At first a police boat was
sent to prevent the men from deserting from the ship, hut before the day
appointed for the examination it was withdrawn. Three men deserted, but
they were not lost sight of by a sergeant of the river police, himself formerly a deserter from an American ship, but
were produced by him, and, strange to say, were made the leading
witnesses for the prosecution.
Their testimony was substantially as in the printed report annexed, and
the natural result—shall I say the desired result—was that public
opinion was at once turned in favor of the prisoner, and one heard
everywhere “It served the mate jolly well right,” which expression was
made the peroration of the argument for the defense, with this addition,
“and the only regret is that he did not stick the knife into him
sooner.” As I said, these three deserters were made the leading
witnesses for the prosecution, and when I requested the prosecuting
officer to ask any questions to invalidate their testimony, I was told
“We can’t cross-question them; they are our
witnesses.”
Moreover the evidence of the men who were examined differed materially
from what they deposed before me, being allowed to state only so much as
they chose, and not being questioned to any extent by the
prosecution.
For instance, you will observe in the deposition of Charles Radford that
he stated that he saw the mate jam Anderson’s face on the thwarts of the
boat, and kick him while in the boat, and yet I convinced him, by taking
him to the spot, that from where he stood he could not possibly have
seen what he testified to, and by his request modified his statement.
Yet that man went into the stand in the high court and repeated the same
statement that the mate jammed Anderson’s face on the thwarts of the
boat, and explained how he was able to see into the boat by saying that
the boat was on the lee side of the ship, and as the ship was listed
over he stood higher and could see in, when, as a matter of fact plain
to be understood by any one who has been to sea, any change in the
position of the ship does not change the relative position of a man
standing on deck to a boat lashed and immovable in davits above him This
man’s evidence ought to have been thrown out and he punished for
perjury, having sworn to what he knew to be false; but no, he was one of
“the witnesses for the prosecution.” One, be it noted, who said, “Keep
up good spirits Fred, I’ll do what I can for you.” No wonder the defense
called no witnesses.
When the trial was ended, I felt that a great injustice had been done;
that the well-deserved reputation of a British court of justice had been
disgraced by officers whose duty it was to have maintained its purity.
Would that I could have found excuses for such gross mismanagement, but
I could not, because I had kept before the government prosecutor the
great importance of testimony which they seemed wilfully and
persistently to ignore.
Inasmuch as Anderson was set at liberty when I considered him a criminal
deserving of punishment, and subject only to the jurisdiction of the
United States, I wrote to the honorable secretary to the Government of
India, foreign department (copy inclosed), requesting the apprehension
of John Anderson and his delivery to me under the extradition treaty, at
the same time submitting in a respectful manner my protest against the
manner in which the trial was conducted, and charged Mr. Fink, the
official who conducted the prosecution before the magistrate, with
having neglected to call witnesses whom he assured me would be examined
in the high court, and without whose evidence he must have known there
could be no fair trial.
I have received no reply to this communication sent to Simla on the 3d of
June, nor to my first dispatch on the subject under date of the 23d of
May. Meantime John Anderson came to me for a discharge from the CO.
Whitmore, for the balance of his wages, and for his clothes. He received
two and one half month’s wages in advance, and killed the mate when
sixteen days out. I declined to give him anything except my order to go
on board.
He did go on board on the 8th, doubtless with the idea that he could
obtain possession of his clothes and get away again, but I directed the
captain to keep all the clothes that were his under lock and key, and
give him but one suit at a time.
Yesterday I sent the following telegram to the foreign secretary:
“Referring to letter June 2, John Anderson, now on board Whitmore, will
government arrest him and put on board American bark Chalmette, sails
Thursday for America,” but as yet have received no reply. I still have
such confidence in the purpose of the Government of India to do only
what is just and right, that I feel certain a careful investigation will
convince them that there has been a grave mistake made which they will
endeavor Without hesitation to correct, while they will seek to
vindicate the integrity of their courts of justice by holding to strict
account those officers who have been recreant to the trust committed to
their charge.
I fear, however, that the time is so short before the departure of the
Chalmette that they may not be able to comply with the request I made
yesterday. I inclose several letters and one editorial relative to the
case, as published in the leading English newspapers here, to which
there have up to the present time been no replies.
I am, &c.,
