Mr. Moran to Mr.
Seward
No. 90.]
Legation of the United States,
London,
August 5, 1868.
Sir: Being anxious to act upon your dispatch
No. 21, of the 16th ultimo, and bring the case of Colonel W. G. Halpin
to the favorable notice of Lord Stanley before he should leave London to
attend upon her Majesty during her visit to the continent, I sought and
obtained an interview with his lordship to-day.
I began by saying that you had sent me a number of documents establishing
Colonel Halpin’s American citizenship, his services to the cause of the
Union as an army officer during the rebellion, and the fact that he was
not at the attack on the police station at Stepaside, in the county of
Dublin, in March, 1867, for participation in which it was alleged by his
friends that he had been tried, convicted, and sentenced to 15 years’
penal servitude. I further said that from a source which seemed to me to
be deserving of credit, I understood that the Crown solicitor confirmed
this last statement. As I had been instructed to avail myself of these
documents when an opportunity offered of using my good offices with her
Majesty’s government for the release of Colonel Halpin or the mitigation
of his sentence, I would with his lordship’s permission place copies of
them in his hands, and request his favorable consideration of the case.
He cheerfully took them, and thanked me for bringing the subject to his
notice. If it should prove true that Colonel
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Halpin had been unjustly convicted of being in the
affair at Stepaside, his claim to release deserved attention; but his
lordship added that Halpin may possibly have been tried and convicted of
treason-felony, the overt acts in the indictment having been committed
not at Stepaside but elsewhere. He promised to lay the papers before
Lord Mayo at once, with a view to an investigation, and the favorable
consideration of her Majesty’s government, provided it could be shown
that Colonel Halpin had been unjustly convicted as alleged by his
friends. His lordship repeated that it was not the wish of the
government to deal harshly with these prisoners, and I understood him to
intimate that it was by no means its wish unnecessarily to prolong their
confinement. As incidentally connected with the case of Colonel Halpin,
I beg to call your attention to a letter from Mr. Scallan, the counsel
for Warren and Costello, in the Times of yesterday, and to the editorial
remarks thereon.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
[From the
London Times, August 4,
1868.]
The Jacmel prisoners
To the Editor of the Times:
Sir: Permit me to correct a serious error,
into which you have fallen in the leader which appeared in the Times
of Wednesday on the naturalization question.
Referring to the only two members of the “Jacmel expedition”
convicted—my clients, Captain John Warren and Augustine E.
Costello—you assert that although the acts of these prisoners while
in America were put in evidence at their trials against them, these
acts were not proved as constituting the offense itself, but merely
as showing the intention with which the prisoners came into the
United Kingdom.
Now that is not correct. Their acts while in America were not only
proved, but were charged against them as forming an actual offense,
distinct and separate from the charge growing out of the “Jacmel
expedition.”
Two questions went to the jury in each case:
1. Was the prisoner connected in America with the Fenian organization
there on the 5th of March, 1867, at the time of the Fenian rising at
Tallaght, in the county Dublin?
2. Was the prisoner a member of the “Jacmel expedition?”
On each trial the prisoner’s alleged complicity in the March rising
was supported exclusively by evidence of his acts in America; and no
other evidence could by any possibility have been adduced in proof
of it, because the “Jacmel expedition,” according to the case made
by the Crown, did not sail from New York until the 12th of April,
1867.
But what is more important is the fact that if the Crown had failed
in obtaining a verdict on that part of the case they should have
failed altogether, because unless some one or more of the overt acts
charged against the prisoner were found by the jury to have been
committed in the county of Dublin, he should have been acquitted,
for otherwise the commission court sitting for the county of Dublin
had no power to try him, and the only act of the kind laid in the
indictment was the Tallaght rising, which occurred while the
prisoner was in America.
It is therefore true that Warren and Costello were indicted, tried,
and convicted for acts done in America. And, furthermore, it is true
that if the naturalization law now passed by the United States
legislature had been in existence at the time of their trials, and
its operation recognized by the British government, their
convictions would not have resulted, and to-day, instead of being
consigned for a hopeless period to the horrors of penal servitude,
they would be living and acting as free citizens in their adopted
country.
I am, sir, your obedient servant,
[Editorial.]
Mr. Scallan, the attorney for the prisoners, Warren and Costello,
who, on coming to Ireland from the United States in the Jacmel, were
tried and convicted of
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treason-felony, writes to us concerning a passage in an article on
the American naturalization bill which appeared on Wednesday last.
Referring to the protest of the democratic party against the alleged
punishment of Fenians for acts done on American soil, we observed
that the case of the Jacmel came nearest to the assertion of such
power, but that even in that case it might be technically held that
the vessel was brought by her crew within British jurisdiction. We
are now informed by Mr. Scallan, on the part of the two convicts,
that they were each tried on a double charge—firstly, for having
been connected with the Fenian organization in America, and having
thus become accessory to the rising at Tallaght, in the county of
Dublin, on the 5th of March, 1867; and secondly, for having taken
part in the expedition and come to Ireland for the purpose of aiding
the rebellion. Although our remarks did not apply particularly to
the Jacmel case, and, indeed, rather excepted it, yet we have no
objection that Mr. Scallan should refer them to that case, and if it
be the fact that the prisoners were actually convicted and punished
for being accessory to the attack on Tallaght, there would
undoubtedly be an instance of that punishment of acts committed in a
foreign country against which the Americans protest. But on looking
back to the trial of the two prisoners we find the case for the
prosecution was constantly directed to establish the guilt of the
prisoners in respect of their hostile return to Ireland. Whatever
else they might be charged with, the Jacmel expedition engaged the
attention of the judges, barristers, and jury. In the trial of
Warren, on the 1st of November last, we find it proved, first, that
the prisoner was a member of the Fenian conspiracy in America, and
had become Head Center for the State of Massachusetts. We are then
at once taken to the Jackmel. We are told how, on the 12th of April,
1867, a party of 40 or 50 men, all officers or privates who had been
in the American service, went on board a vessel that had been
purchased for an invasion of Ireland. Of the moral guilt of the
prisoners there could be no possible doubt. The party sailed without
papers, or colors, or luggage, but had on board a quantity of arms
of various kinds “packed in piano cases, in cases for
sewing-machines, and wine casks, all consigned to some merchant in
the island of Cuba.” It was sworn that the arms consisted of
“Spencer’s repeating rifles, seven-barreled Enfields, Austrian
rifles, Sharp’s breech-loading rifles, and Burnside’s breech-loading
rifles, together with some smaller arms, a million and a half rounds
of ammunition, and three pieces of unmounted cannon, which threw
3-pound shot, and were frequently fired during the passage.” The
whole case went to show that Warren was one of this party, and was
cognizant of and participating in the evil designs. To this the
evidence of the prosecution was directed; and to refute it the
prisoner, who conducted his own case, used all his ability. Thus it
is plain that the offense for which Warren was convicted and
sentenced was a hostile invasion of this country, assuming it was
made out that the vessel was brought by its crew into British
waters. The evidence connecting him with the Fenian conspiracy in
America was made subservient to the overt act of invading Ireland,
and the sentence which he is now undergoing is the punishment of
what was found at the trial to be an act committed within British
jurisdiction. It may be mentioned that though the prisoner
remonstrated violently against the refusal of a mixed jury, we do
not find him objecting to the admission of evidence concerning his
acts in America, and we must come to the conclusion that he knew the
question to be simply whether or not he came in the Jacmel with a
hostile intent within British jurisdiction. In the trial of Costello
precisely the same features are to be noticed. The prisoner demanded
a mixed jury, and it was refused. At the trial in November, Mr.
Heron, his counsel, admitted that “the sole issue raised was whether
Costello was on board the Fenian vessel. He admitted that if the
prisoner was on board, under the circumstances stated, he would be
guilty.”
Thus, if even the prisoners, being British born subjects, were
indicted for taking part while in America in a conspiracy of which
the chief overt act was committed in Ireland before they arrived,
yet it was furthermore proved beyond a doubt that this was not their
only offense, but that they followed it up by actually crossing the
Atlantic, and coming as rebels and with materials of war into Irish
waters. So that the case is not the same as if a Fenian whose acts
had been wholly confined to America had fallen by accident into the
power of the British government. It is worth while to hear the
ministerial account of the affair. In answer to Mr. Mill, Lord Mayo
stated, a few days since, in the House of Commons, that “the
prisoners were convicted of coming to Ireland in an armed vessel and
cruising along the coast with intent to effect a landing of men and
arms in order to raise an insurrection against the Queen.” “The only
evidence,” he went on to say, “given against them was of their being
members of the Fenian Brotherhood previous to March, 1867, being the
date of the overt acts in which their brother conspirators were
engaged. This evidence was necessary to connect them with the Fenian
society, and, in accordance with the provisions of the
treason-felony act, to bring them within the jurisdiction of the
court.” From this it would appear as if the conspiracy with the
Tallaght affair was introduced in order to enable the commission to
try the prisoners in Dublin. But they might have been tried and
convicted in Sligo without any reference to Tallaght at all, and
this even though they had been Americans born; so that as far as the
prisoners themselves are concerned there has been no injustice
done.
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In this matter we have argued rather against our own sympathies; for
it has been since made so doubtful whether the Jacmel was really
brought within British jurisdiction, that were the matter to arise
again we would rather see Warren and Costello liberated, as Nagle
and the rest subsequently were. But we have felt bound to point out
that the prisoners were found guilty of an offense which, under any
intentional system, would be punishable by British courts. Of
course, all we have said is independent of the question how far it
is lawful in such a case to look upon the whole series of the
prisoners’ acts as one act, and also how far a nation has a moral
right to punish those who have anywhere levied war against it in
time of peace, if at any time the offenders should voluntarily come
within its jurisdiction.
