No. 202.
Mr. Evarts to Mr. Welsh.

No. 341.]

Sir: Referring to my instruction No. 328, of the 11th instant, in relation to the case of John Anderson, alias Alfred Hussey, and the claim of jurisdiction advanced and exercised in relation thereto by the high court of Calcutta, a British tribunal, notwithstanding that the accused was a seaman upon the American bark C. O. Whitmore, and the crime for which he was tried was committed on the high seas, I have now to transmit for your further information, and as material to the intelligent discussion of the points involved, should Her Majesty’s Government provoke argument thereon, copy of an additional dispatch, dated the 10th ultimo, received from Consul-General Litchfield, in which the later proceedings of the high court, comprising further assertion and exercise of jurisdictional power in the premises, are so fully set forth that it is found unnecessary to your understanding of the case to send you transcript of the voluminous appendices transmitted by the consul-general.

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.

I am, &c.,

[Inclosure in Instruction No. 341.]

Mr. Litchfield to Mr. Seward.

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—

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.
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.
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.
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 ———.
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.,