The Dock and the Scaffold / The Manchester Tragedy and the Cruise of the Jacknell

by T. D. Sullivan

News of the landing which had been effected near Dungarvan was quickly spread amongst the coastguards and the police, and a few hours afterwards some twenty-seven men were under arrest, charged with having come into the country under suspicious circumstances. Amongst them were two whose trials for having formed part of an armed expedition destined to aid a rebellion in Ireland, have since been had at the Commission which opened in Dublin on the 28th of November, 1867, and whose spirited defence of themselves in the dock it is our purpose to record in these pages. They were Colonel John Warren, of the American army, and Augustine E. Costello.

The trial of the first-named of those gentlemen is likely, owing to the spirited and statesmanlike course which he adopted on the occasion, to become memorable for all time, and to have a prominent place in the histories of two great nations, England and America. One of its results, now actually in progress, is an alteration in the law of America, on a point of great importance to both countries; and this alteration will necessitate a corresponding change, if not in the law, at least in the practice, of the English courts. From these changes will ensue consequences of the utmost gravity to England, but of unquestionable advantage to the Irish people, and the cause which they have at heart; for all which the name of Colonel Warren will long be held in honour and in grateful remembrance among his countrymen.

Colonel Warren

Colonel Warren, who is a native of the town of Clonakilty, in the county of Cork, and of respectable parentage, emigrated to the United States some twelve years ago, and in due course of time, like most of his countrymen who transfer their domicile to that free and great country, he took out papers of naturalization, and became one of its adopted citizens. That act of naturalization is the declaration of a contract between the American government, on the one hand, and the new-made citizen on the other, whereby the latter formally and solemnly transfers his allegiance to that government, and withdraws it from any other which might previously have had a claim on it; and whereby the government, on its part, in exchange for that allegiance, engages to extend to him all the liberties and rights possessed by its native-born subjects—the benefit of its laws, the full scope of its franchises, the protection of its flag. In this way many hundreds of thousands of men, hunted by British law and British policy out of Ireland, have, during recent years, been added to the number of brave and devoted citzens possessed by the United States. But yet, it seems, the law of England affords no recognition to this transfer of allegiance, expressly denies the legality of any such act, and claims as subjects of the British crown, not only all persons born within British jurisdiction, but also their sons and grandsons, wherever their domicile and their place of birth may be. Between the British law on the subject of allegiance and the American system of naturalization, there is, therefore, an irreconcilable discrepancy; and the course taken by Colonel Warren, on his trial, was to bring this question of law between the two governments to a direct issue. He took his stand on his American citizenship; he claimed to be tried as an alien, and, on the bench refusing to accede to his demand, he abandoned all legal defence, directed his counsel to withdraw from the case, and put it upon his government to maintain the honour and vindicate the laws of America, by affording him the protection to which he was entitled.

Other Irishmen, naturalized citizens of America, had previously been tried and sentenced for Fenian practices, including acts done and words spoken by them in America, which would not have come within the cognizance of the court had they been tried otherwise than as British subjects; and in their addresses to the court they had made reference, proudly and hopefully, to the fact that they were adopted sons of that great country; but none of them had struck upon a course so well calculated as that taken by Colonel Warren to raise the international question, and necessitate a distinct and speedy solution of it. He had a good case to go before the jury, had he allowed himself to be legally defended, and he was perfectly aware of that fact; but he clearly perceived that, by taking the other course, whatever might be the consequences to himself, he would be able to render better service, both to his adopted country and his native land. He took that course, and it is, therefore, that he is to-day in a British convict prison, far away from his home and friends, from his wife and his children, subject to all the restraints and indignities imposed by England on the vilest and meanest of her criminals, and with a term of fifteen years of such treatment decreed to him. Let us be able to say at least, that his countrymen are not unmindful of the sacrifice.

In the course of the trial, which was had before Chief Baron Pigot and Mr. Justice Keogh, in the Commission Court, Dublin, Colonel Warren offered some few remarks on the evidence, and put some questions to the witnesses, all of which showed considerable acumen on his part, and were thoroughly ad rem. He complained particularly of the manner in which his identification was obtained. Gallagher, who had piloted the "Erin's Hope" around the west coast of Ireland, swore to his identity as one of the party who were on board; but the prisoner contended that Gallagher's knowledge of him was acquired, not on board that vessel, but in Kilmainham gaol, where Gallagher had been his fellow-prisoner for some weeks, during which time he had abundant opportunities of learning his, Colonel Warren's, name, and the charge against him. But it was a vain thing, as far as the jury were concerned, to indulge in such criticisms of the evidence. There were times in Irish and in English history, when juries could rise above the panic of the hour, and refuse to minister to the passion of the government, but we have fallen upon other times, and, now-a-days, to be accused of a political crime means to be convicted.

A verdict of "guilty" against Colonel Warren was returned as a matter of course. On Saturday, November the 16th, he, with two other prisoners, was brought up for sentence. On the usual interrogatory being put to him, the following proceedings took place:—

I claim the privilege established by precedent. I have had no opportunity of making any remarks on my case, and I would now wish to say a few words.

THE CHIEF BARON—Just state what you have to say; we are ready to hear you.

WARREN—I desire, in the first place, to explain, while ignoring the jurisdiction of this court to sentence me, and while assuming my original position, my reasons for interfering in this case at all. I can see beyond my present position, the importance of this case, and I was desirous to instruct the jury, either directly or indirectly, of the importance of their decision, while never for a moment deviating from the position which I assumed. I submit that I effectually did that. They incautiously, and foolishly for themselves and the country of which they claim to be subjects, have raised an issue which has to be settled by a higher tribunal than this court.

PRISONER—I propose to show that the verdict is contrary to evidence.

THE CHIEF BARON—I must again tell you that you are not at liberty to do that.

PRISONER—I propose to answer briefly the question why the sentence of the court should not be pronounced upon me. Do I understand you to refuse me that privilege?

THE CHIEF BARON—Certainly not; but I am bound in point of law to refuse to hear you upon any matter respecting the verdict. We are bound by that verdict just as much as you are. That is the law.

PRISONER—What position do I stand in now, my lord? I have been indicted with a number of parties, one of whom had been identified in America. I have been tried and convicted. What position do I stand in now? Am I convicted on the evidence of Corydon, who swears that I belonged to the Fenian Brotherhood in 1863? Does that prove that I belonged to it in 1867?

The Chief Baron then explained that what he left to the jury was, that if they believed upon the evidence that on the 5th of March the prisoner belonged to the Fenian confederacy, having for its object the deposition of the Queen, he would be answerable for the acts done by his confederates, whether he was present or absent at the time.