No. 122.
Mr. Frelinghuysen to Mr. Lowell.

No. 366.]

Sir: From the tenor of your telegram of the 20th instant, I learn that six American suspects are still detained in prison. Of these six cases three, viz, O’Mahoney, McSweeney, and McEnery, had been previously made known to the department. The cases of Slattery, Brophy, and Gannon are now made known to us for the first time.

It appears from documents on file in this department, that O’Mahoney in 1866 made application in Louisiana for naturalization under the soldiers’ act (Revised Statutes, section 2166) and was refused, for what cause is not stated. He then returned to Ireland, where he remained. In October, 1875, he went into business as a keeper of a public house and retailer of liquors, at a place called Ballydehob. This business has been carried on in his name since 1875. In 1878 he came to the United States of America, and obtained naturalization there in February, 1880, without stopping his business in Ballydehob. He then returned to Ireland, where he was and still is a rate-payer, tax-payer, and voter, and offered himself as a candidate for poor-law guardian. He was elected, qualified, and entered upon the discharge of the duties of the office, and was discharging them when arrested. His imprisonment under his present arrest dates from November last.

On this statement it cannot be denied that O’Mahoney is a citizen of the United States. The assurance which the ordinary processes of naturalization give to the United States that its citizenship is sought with a purpose of forming part of its population, and contributing to its wealth and its strength, is waived in this statute, and that great privilege is conferred for the sole consideration of a year’s service in its military [Page 231] forces. And although that alleged service had been rendered fifteen years before the naturalization, and although the person seeking the naturalization had abandoned the country and was in business in a foreign land, and holding office there with every apparent purpose of remaining there permanently, the language of the act seemed to leave the court no discretion to refuse the decree when it was once proved that the applicant had enlisted in the armies of the United States, that he had been honorably discharged therefrom, and that he had resided more than one year in the United States previous to his application.

In this statement I make no account of the fact that O’Mahoney informed the consul at Cork that his alleged service was in the Navy. If his statement to the consul was correct, his alleged naturalization was fraudulent and in violation of law under the settled rulings of this government. This precise point has been decided by the district court of the United States for the district of Oregon. (In re Bailey, 2 Sawyer’s Reports, 200.)

Assuming, however, that the naturalization was within the letter of the law, the President is of the opinion that it was only just within the letter, and that it was wholly outside the spirit and intent of the naturalization laws. We generously welcome aliens within our folds with the expectation that they are really to become bone of our bone and flesh of our flesh; that they are to cast their lots in with us, and that the fruits of their industry are to form part of our national wealth. But when an alien is at the very time of his naturalization, and for years before has been, a resident and office-holder in the country of his origin, when after Ms naturalization he puts his certificate in his pocket and returns to the country of his origin, and continues to reside there in business and holding office, the President feels it to be his duty to afford to such a citizen only the measure of protection demanded by the strictest construction of duty, namely, that he shall receive from the hands of the government under which he is holding office the measure of protection which it affords to its own citizens or subjects.

Mr. McSweeney was naturalized many years since and resided in San Francisco, engaged in the cattle trade. About six years ago he returned with his family to Ireland and purchased some property there. For the last six years he has been residing there, and it is understood that he also is holding office as a poor-law guardian with an apparent purpose of remaining in Ireland. He is a gentleman of influence and appears to have taken a prominent part in the troubles which are now agitating Iceland. He says that his action has been that of a peaceable citizen and within the line of the law. The British authorities maintain that they have good right to suspect him of inciting persons unlawfully to assemble together and to commit riot and assault. It is understood that the British authorities are ready to release him if he will leave Ireland.

The President has carefully considered this case also. When a naturalized citizen resumes his residence with his family in the land of his origin, and goes into business there, and becomes an office-holder, and takes active part in political discussions, if it turns out that his action gives offense to the local government, and he is thrown into prison, the laws and interests of the United States do not require us to do more than insist that he shall have a right to return to the country of his adoption, leaving the question of damages for future discussion.

Such is understood to have been the course pursued by the United States during the late civil war. In September, 1862, the British, chargé d’affaires at Washington requested the discharge of one Francis [Page 232] Carroll, a British subject, who had been arrested by the military authorities in Baltimore. Mr. Seward refused the request, and in a note to Mr. Stuart said:

Is the Government of the United States to be expected to put down treason in arms and yet leave persons on liberty who are capable of spreading sedition? * * *

Certainly the government could not expect to maintain itself if it allowed such mischievous license to American citizens, Can the case be different when the dangerous person is a foreigner living under the protection of this government? I can conceive only one ground upon which his release can be ordered, and that is that he may be too unimportant and too passionate a person to be heeded in his railings against the government. But you will bear in mind that the times are critical, and that sedition is easily moved now by evil-designing men who in times of peace might be despised. (Diplomatic Correspondence for 1862, p. 228.)

A correspondence ensued, which resulted in a proposal that—

Mr. Carroll should be released from custody upon his agreeing to leave the United States immediately, and not return again during the continuance of this rebellion and giving security to the approval of the United States marshal that he will keep said agreement. (Diplomatic Correspondence for 1863, p. 460.)

This offer was accepted by the British chargé d’affaires and Mr. Carroll was discharged.

The President cannot assume that an exercise of national sovereignty which was performed by the United States when their security was assailed cannot be performed by other powers similarly situated, subject, of course, always to be questioned when the good faith of its exercise may be drawn in doubt.

But in the exercise of such an extreme right of sovereignty the comity of nations demands that the power exercising it should hold itself ready at all times to explain to the power on whose citizens it has been exercised the reasons which have compelled it. It cannot be doubted that Her Majesty’s Government will observe the same spirit of courtesy in this respect that the Government of the United States displayed when the case was reversed. You will therefore inquire of Lord Granville why these two prisoners are detained, and if it should appear that we are correctly informed as to their history and as to their active participation in the local politics of Ireland, and you are assured that they may leave the country at any moment they please, you will communicate these facts to the Department and await further instructions.

As to the prisoner McEnery, it is understood here that he was arrested last June on suspicion of being concerned in an assault and in breaking into a dwelling. It is now nearly a year since this arrest was made, and, making due allowance for the exceptional condition of Ireland, the President is of opinion that the time has come when Her Majesty’s Government should frankly state why he is held and when he may have an opportunity of defense. The President, on entering upon the duties of his office on the death of President Garfield, was ignorant of these arrests and of their nature. My attention was not called to them when I took charge of the Department. It was not until I had been here some weeks that the friends of the prisoners brought the real facts to my knowledge. Since then, under direction of the President, I have spared no effort to have this matter properly adjusted. I am bound to say that our exertions have been met in a spirit of friendship by Her Majesty’s Government; but it assumes as the basis of its action a principle to which the President cannot assent. In his note of the 6th April, to Mr. West, Lord Granville quotes with approval the following extract from a note of the 14th October, 1861, from Mr. Seward to Lord Lyons:

In every case subjects of Her Majesty residing in the United States and under their protection are treated, during the present troubles, in the same manner and with no greater or less rigor than American citizens.

[Page 233]

And he deduces from this the principle that “no distinction can be made in favor of aliens” or, as stated to yourself in a note of the 28th June last, that Her Majesty’s Government would not admit—

Any claim to exemption on behalf of any person, whether alien or citizen, from the operation of the laws which equally affect all persons residing in the domain and under the protection of the Crown.

Mr. Seward’s statement was rather an allegation of a fact than the enunciation of a principle. But if it can be taken to be the statement of a principle as broad as Lord Granville now lays down, the President cannot but look upon it as an extreme position taken in the heat of conflict, to which the government of neither Great Britain nor the United States can give adhesion in time of quiet and reflection. It is certain that Her Majesty’s Government did not accept it as a rule of action during the civil war, and as certain that Mr. Seward did not adhere to it, but permitted exceptional inquiries, as in Carroll’s case and Mc-Hugh’s case and the cases of the military commission in Fort Lafayette, to be made throughout the war. Lord Lyons was constantly and diligently asking the causes of arrest and imprisonment of British subjects, and Mr. Seward was as constantly answering his inquiries, notwithstanding the fact of the suspension of the habeas corpus.

It is not the interest of either government to be drawn into an extreme position in this delicate matter. The President concedes that he has no right to expect to transfer into foreign countries the forms of law which under American institutions are so great a security to the citizen. He concedes to every sovereign power the right to prescribe its own code of crimes and its own mode of trying offenders, and if it shall choose to adopt a system which gives the citizen fewer guarantees against injustice than prevail in the United States he feels that he cannot complain if it is applied to citizens of the United States who are found where it prevails.

But if, when thus applied, it works actual injustice; if it takes possession of an American citizen, and deprives him of his liberty without any allegation of offense; if it leaves him incarcerated without hope of trial or chance of release, it then becomes the duty of the President to inquire why this is done. Her Majesty’s Government pursued that course during the civil war. They will see that a self-respecting government must do the same now. And the President can have no doubt that when you, under these instructions, courteously, but firmly, ask to be informed why McEnery is deprived of his liberty and why he is afforded no opportunity of defense, Her Majesty’s Government, instead of referring you to the municipal law of Great Britain, which authorizes such treatment of British subjects, will at once give you with frankness and fullness the information you ask for. As soon as it is obtained you will cable the substance.

In regard to the other persons, of whom we now hear for the first time, I understand that as to one or more of them there is some doubt as to the citizenship.

In the present excited state of Ireland you will, as I doubt not you have hitherto done, exercise due caution and scrutiny to make sure that persons have the right to claim your protection. In a country where the ordinary course of law is suspended there is danger that unworthy and designing persons, who are not American citizens, will seek to put on our nationality. American citizenship is a great privilege, not to be lightly put on or unworthily worn. Its assumption implies the promise and the obligation to observe our laws at home, and peaceably as good citizens to assist in maintaining our faith abroad, [Page 234] without efforts to entangle us in internal troubles or civil discord with which we have not, and do not wish to have, anything to do. When an American citizen thus conducts himself, whether at home or abroad, he is entitled to the confidence of his government and active support of all its officials. If business interests or the ties of affection take him into lands where from any cause laws which protect him from arrest and imprisonment do not exist, his government claims the right to interpose its own shield to take the place of the protection which is denied by local laws.

The President is aware that Ireland is now in an exceptional condition. But even if all be true which is stated; if it is impossible to conduct a trial by jury of a breaker of the peace with any hope of conviction even with the clearest proof; if the witness who testifies against such an offender does it with his life in his hands if it be impossible for owners of property to collect rents under any process of law 5 if those who are responsible for the administration of law in Ireland are seeking to do away with this unhappy condition—even if all this be true, it furnishes no sufficient reason why an American citizen should remain incarcerated without accusation, without chance of trial, without opportunity for release. The President is gratified to observe that the claim thus to hold American citizens is modified by the following language in Lord Granville’s instruction of April 6th to Mr. West:

The Irish Government have in many instances released prisoners upon a reasonable belief that it could be done without risk to the public safety, and I need hardly say that Her Majesty’s Government are not desirous of detaining unnecessarily in prison any person from whom no danger to the public peace is to be apprehended.

They will therefore be prepared to consider the circumstances of any citizens of the United States now detained who may be willing to engage forthwith to leave the United Kingdom.

The President moreover has little doubt that Her Majesty’s Government do not intend to insist in practice upon the extreme doctrine that an American citizen against whom there is no charge shall, without trial, remain in prison or leave the United Kingdom. But he believes, by fairly considering each case as it arises, conclusions will be reached satisfactory to both governments.

After satisfying yourself that the three persons whose names are now reported to us are citizens, you will ask Her Majesty’s Government why they are detained, and whether it is contemplated to give them trials, reporting by cable; and should your intervention or protection be claimed by others hereafter, you will be governed by the rules and principles laid down in this dispatch.

You are instructed to read this instruction to Lord Granville and to leave a copy of it with him if he desires it.

I am, sir, &c.,