No. 308.
Mr. Lowell
to Mr. Evarts.
Legation of
the United States,
London, June 16, 1880.
(Received July 1.)
No. 17.]
Sir: Referring to your instruction to Mr. Welsh, of
the 11th of July, 1879* (No. 328), in respect to the trial at Calcutta of John
Anderson,
[Page 480]
for an offence alleged
to have been committed on board of a vessel of the United States on the high
seas, I have the honor to inclose a copy of the correspondence between this
legation and the foreign office in relation to this subject.
It will be observed that Earl Granville, while he takes occasion to differ
from yourself upon certain points of international law mentioned in your
instructions, admits that the high court at Calcutta had no jurisdiction to
try the case in question, and that the trial was a nullity and requests me
to express to my Government the regret of Her Majesty’s Government that the
action of the authorities at Calcutta should have been governed by a view of
the law which, in the opinion of Her Majesty’s Government, cannot be
supported, and trusts that I will convey the assurance to the Government of
the United States that you have justly attributed this incident to a
misconception, and not to any design to question the jurisdiction of the
United States in this or any similar case.
I have, &c.,
[Inclosure 1 in No. 17.]
Mr. Welsh to the
Marquis of Salisbury.
Legation of the United States,
London, July 29,
1879.
My Lord: I have the honor to inform you that
the Secretary of State of the United States has recently received from
A. C. Littlefield, Esq., the consul-general of the United States at
Calcutta, a dispatch in relation to the case of one John Anderson, an
ordinary seaman on hoard the American hark 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' north, and longitude 35° 50' west.
It also appears 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 for trial to that country against whose
municipal laws only he was accused of having offended.
It further appears that while he was 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 the 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 crime be committed on the ship of a foreign
nation, Anderson’s case came under the jurisdiction of those colonial
courts.
It is to be remembered in this connection that the prisoner appeared on
the ship’s articles under the name of John Anderson, a subject of
Sweden, and the only evidence that he was a British subject seems to
have been his own declaration that his real name was Alfred Hussey, and
that he was a native of Liverpool.
It is believed that the matter has now reached that point in the judicial
proceedings when effective measures for asserting the jurisdictional
rights of the United States would be unavailable in this particular
case, and whilst Mr. Evarts entertains no doubt that the accused will
receive 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 to the
United States for trial, Mr. Evarts deems it proper at the same time to
instruct me 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 the Government of the United States 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.
[Page 481]
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.
Mr. Evarts further states that he passes over the apparent breach of
comity in the proceedings of the colonial officials as being the result
of inadvertence and possible misconception on the part of the government
law officer of the colony, rather than of any design to question the
sovereignty of the United States in this or cases of a similar
nature.
I am instructed to take an early occasion to present these views to Her
Majesty’s Government.
I have, &c.,
[Inclosure 2 in No. 17.]
Earl Granville to
Mr. Lowell.
Foreign
Office, June 8,
1880.
Sir: Her Majesty’s Government have had under
consideration, in communication with the Government of India, the letter
addressed by Mr. Welsh to my predecessor on the 29th of July, on the
subject of the trial at Calcutta, in January, 1879, of one John
Anderson, a British subject, on the articles of the American bark C. O.
Whitmore, who was charged with having killed the first officer of that
vessel while on the high seas. In that letter, Mr. Welsh stated that, in
the opinion of the Government of the United States, the exercise of
jurisdiction in that case by the high court at Calcutta was a breach of
comity. He urged that “as regards common crimes committed on board
merchant vessels on the high seas, the competent tribunals of the
vessel’s nation have exclusive jurisdiction of the question of trial and
punishment of any person thus accused of the commission of a crime
against its municipal law.”
As regards the general proposition above laid down, Her Majesty’s
Government are not prepared to admit that a statute conferring
jurisdiction on the court of the country of the offender in the case of
offenses committed by its own subjects on the high seas, on board a
foreign vessel, or in places within foreign jurisdiction, would violate
any principle of international law or comity.
On the contrary, they are of opinion that there are many cases in which
the conferring of such jurisdiction would subserve the purposes of
justice and be quite consistent with those principles.
Such an assumption of jurisdiction does not involve a denial of
jurisdiction on the part of the state in whose territory the offense was
committed; it involves no more than an assertion of a right of
concurrent jurisdiction, and the most eminent authorities on
international law in this country, and also in the United States lay
down that the legislative and judicial powers of a state extend to the
punishment of all offenses against its municipal laws by its subjects
wheresoever committed.
But as regards the particular case of John Anderson, it appears from a
report furnished by the Government of India that, in the opinion of
their law officers, the high court at Calcutta had jurisdiction to try
the accused by virtue of the imperial act 23 and 24 Victoria, cap. 88,
which extends to Her Majesty’s territories in India the provisions of
the act 12 and 13 Victoria, cap. 96, “to provide for the prosecution and
trial in Her Majesty’s colonies of offenses committed within the
jurisdiction of the admiralty.”
The question of jurisdiction was not raised at the trial, and no decision
was therefore pronounced upon it, but Her Majesty’s Government are
advised by the law officers of the Crown in this country that the
jurisdiction of the admiralty does not extend to offenses committed on
the high seas in other than British ships.
It follows therefore from their view of the law that the high court at
Calcutta had not jurisdiction to try the case and that the trial was a
nullity.
It further appears from the report of the Government of India that, after
the trial, the consul-general of the United States applied for the
extradition of the prisoner, and was informed that the Government of
India were unable to order the surrender of a person on a charge in
respect of which he had been already tried and convicted by a competent
British court.
I have the honor to request that you will express to your government the
regret of Her Majesty’s Government that the action of the authorities at
Calcutta, in the case of John Anderson, should have been governed by a
view of the law which, in the opinion of Her Majesty’s Government,
cannot be supported, and I trust that you will convey to them the
assurance that Mr. Evarts has justly attributed this incident to a
misconception and not to any design to question the jurisdiction of the
United States in this or any similar case.
I have, &c.,
