Granville to Charles R. Lowell, June 8, 1880

Earl Granville to Mr. Lowell.

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.,