Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I
Earl Russell to Mr. Adams.
Sir: I have the honor to bring to your notice an account taken from a newspaper of what passed at a trial before Mr. Justice Keogh of the British subjects indicted for having taken service in the United States ship Kearsarge, at Queenstown, in violation of the provisions of the foreign enlistment act, and with reference to the correspondence which has passed between us. I have the honor to request that you will inform me whether you have any explanations to offer on the subject.
I am, &c.,
Extract from the Dublin Evening Mail of March 16, 1864.
Crown Court.—Before Mr. Justice Keogh.—The Kearsarge.
John Sullivan, John Murphy, Edward Pyburn, Thomas Murphy, Denis Leary, and Daniel O’Connell, were indicted for having on the 4th of November, 1863, agreed to enter service as sailors on board a vessel-of-war of the United States of America, called the Kearsarge, contrary to the provisions of the foreign enlistment act.
The right honorable the attorney general, M. P., Sir Colman O’Loghlen, Q. C., M. P., C. R. Barry, Q. C., James O’Hea, George Waters, and J. C. Neligan, appeared for the crown. Mr. J. C. Coffey, instructed by Mr. C. P. Wallis, appeared to watch the proceedings on behalf of the Confederate States of America. The prisoners were undefended.
They were all young men of very respectable appearance, and wore the naval dress of American sailors.
They pleaded “guilty,” one of them saying that they did not think it was any harm.
The Attorney General said that the object of his attendance had been to some extent accomplished. The traversers had wisely submitted, for the evidence [Page 765] against them was conclusive. The law had been vindicated in the first and only case in which it had been possible to prove an infringement of the foreign enlistment act in Ireland; and he took that opportunity of announcing to the people the nature of that statute, the mischief which it aimed to prevent, and the determination of the executive to enforce its provisions. The act 29 George III, cap. 69, presented in the briefest untechnical language, forbade any natural-born subject of the Queen, without her express authority, to enlist, or to induce others to enlist, in any foreign service, military or naval, under pain of fine and imprisonment, at the discretion of the court. The policy of this law was manifestly wise and just. It tended to maintain amity throughout the great family of civilized nations, and it had the highest sanction of morality and religion, in forbidding men to shed the blood of their fellow-creatures in conflicts with which they had no concern, for the wretched hire of the mercenary, without the pretext of self-defence or the approval of legitimate authority. The circumstances of this country made the enforcement of the statute especially necessary to Ireland. He lamented the vast emigration which had been produced by much suffering in latter years, encouraged by increased facilities of transit, and the larger rewards of labor beyond the seas, and continued by the family attachment which induced those who had gone to help their friends to follow, and those who remained to desire reunion with the objects of their old affections. But, lament it as we might, we could not forbid the free egress of our people, save when it was made for purposes condemned by the law. A fearful struggle was convulsing the western continent. That struggle commanded our anxious attention, but we had no right to decide between the combatants. The wisest and best among us held opposing views upon the merits of the contending causes, and those who administered the law were bound to see that, so far as possible, the subjects of this realm should not meddle with it to their own destruction, and the interruption of our friendly relations with foreign powers. When we thought of the blood which had been shed by Irishmen in that terrible contest, the necessity for the discharge of that duty became more painfully apparent. They had been slaughtered wholesale, it was said to the number of 200,000. Was it not dreadful that men of our race should be arrayed in both the contending armies, and butcher each other in a ruthless controversy which was not theirs, for objects with which their country was not identified? If it were true, as has been stated, that in December last there were in New York 108,971 persons born in Ireland in a state of pauperism, of whom 65,500 were women, it was surely impossible to give more appalling proof of the wretchedness which had been born of this war, or more persuasive argument of the propriety of making an effort to save our people from such calamity. Not merely, therefore, for the legal maintenance of international relations, but also for the well-being of the Irish community, the executive government would put the law in force with perfect impartiality, whether the attempt at enlistment should be made for the south or the north. This was the first case in which it had been found possible to prosecute, and the traversers, having perhaps erred in ignorance of the law, and having shown a proper feeling in submission, would, he had no doubt, be dealt with leniently by the court. But hereafter, should any attempt be made to evade or defy the law, all who might have concern in it, and especially any who might be engaged as agents in inducing others to enlist, would be without excuse, and should be without mercy.
His lordship asked the attorney general whether he pressed for any punishment. He did not wish to be misunderstood as suggesting any course. He would offer no suggestion whatever.
The Attorney General. I quite understand your lordship. I accept the responsibility, and say at once that, considering this is the very first occasion on which the statute has been authoritatively promulgated in Ireland—the high probability that the traversers were, as they alleged, ignorant of its existence—[Page 766]the probability, also, that they acted from straitened circumstances, and with a view to better their condition—the excellent characters which, as the resident magistrate informs me, they have always borne, and the fact that those by whom they were induced to act illegally are not amenable to justice—I think I exercise a sound discretion in stating to the court that I do not press for punishment. I believe every purpose of this trial and of my presence here will be substantially attained if the prisoners are bound over to appear for judgment when called. The country will know what the law is, and that it will be stringently enforced.
His lordship said the attorney general had taken a bold course. He had taken the whole responsibility on himself—a responsibility which he (Judge Keogh) was satisfied the attorney general was able, as he always was, to sustain. The course which had been taken was also a wise one. The act on which the prosecution was grounded was one of the wisest, in his opinion, now remaining on our statute-book, and the policy of the law had been most clearly stated by the attorney general in language which he (the learned judge) could not attempt to imitate, and with eloquence which he had seldom heard surpassed. It was an act passed so long ago as the year 1819, and it provided that any person who should, directly or indirectly, violate that act should be liable to a heavy fine and imprisonment. Here we had those young men entering the service of the United States, a power at peace with Great Britain, at Queenstown, in the grossest violation of all amicable relations which ought to exist between friendly powers. The subjects of this realm were taken by officers of that navy. They well knew that they were violating the municipal laws of this country in taking the subjects of these realms on board that ship. He regretted exceedingly that, instead of trying these young men, who he could well believe were ignorant of the act, influenced, perhaps, by want of employment, perhaps by a desire for adventure, perhaps by a desire to see other lands—he was not trying the guilty persons who had induced them to violate the law. It was no imputation on those who administered the law that those parties were not here, as we are aware that the vessel had gone across the sea. He concurred in all that had been so eloquently said by the attorney general as to the policy of the law, and he concurred in the prudence and wisdom of every word of the advice which he had given to our countrymen to hold aloof from that internecine conflict in which our people in the north and south, many of them natural-born subjects of this country, were enlisted to fight in a cau e in which they had no concern. Hundreds and thousands of them had fallen, “unwept, unhonored, and unsung.” Their bones were bleaching under a foreign sun, where they had been entrapped by the hope of reward and by enormous promises. Whether these promises would be fulfilled they would see in time. There they had gone down to their graves, after hard-fought fields, upon which they had exposed their valiant breasts for men who cared not whether they lived or died, provided they only could carry out their own selfish objects. (Applause.) He had other cause of regret in this case. He saw there those young men, whose countenances spoke no guilt, no crime, and he did think it was a subject of deep regret that the adventurous spirit they displayed was not availed of in this country more than it was. Questions of public policy were not for the bench, but one might even here express regret that that magnificent harbor, second to none in the world, placed in the highroad of all nations, the entrance gate of those seas which lead to the capital of the empire, to her arsenals, to her ports for her navy, to the ports of her mercantile marine—that it was not more availed of for the purpose of teaching, by practical visible examples, that under no flag in the world are such opportunities presented for the brave and the adventurous as that which floats over the British empire; that no flag has ever floated upon the ocean beneath which so many deeds of glory have been performed as that which waves over the subjects of her Majesty. (Applause.) He could wish, and he did hope, that even they [Page 767] might live to see the day when those waters would not lie without a burden’ but that there might arise on the banks of that great bay arsenals such as existed in other places, and that the expenditure, to a certain degree, of both countries might take place here, and that the adventure and enterprise of such men as he now saw before him might be enlisted in the cause of our own Sovereign, and not directed to the army or fleet of any foreign power in the world. (Loud applause.) He trusted that the warning of the attorney general would be understood by every one, and that many would leave that place with a better opinion of British law and justice, especially when administered by men such as the distinguished gentlemen he now saw before him.
The prisoners then entered into recognizances in 20l. each to come up for judgment if called on, and were discharged.