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Colonel John Warren

The Cruise Of The Jacknell

3. Colonel John Warren

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, 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 citizens 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 cognisance 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

Warren - I claim the privilege established by precedent. I have had no opportunity of making any remarks on my ease, and 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.

Prisoner - You instructed the jury, at the same time, that the fact of my holding the position of a colonel in '63 was sufficient corroboration of the evidence that I belonged to it in 1867.
The Chief Baron - I told the jury that holding the rank of colonel was evidence for their consideration, upon which to determine whether you previously belonged to the Fenian confederacy. I told them they were at liberty to consider whether you would have got that rank if you then joined for the first time.
Prisoner - Precisely the same thing, but in different phraseology. Am I to understand that I have not liberty to address the court as to why sentence should not be pronounced upon me?
The Chief Baron - You are not so to consider. You are at liberty to address the court, but you are not at liberty to comment upon the evidence to show that the verdict was wrong.
Prisoner - What can I speak on? To what can I speak, if not to something connected with my case? I am not here to refer to a church matter or any political question.
The Chief Baron - I have informed you what we are bound to rule.
Prisoner - Then I state, my lord, that as an American citizen, I protest against the whole jurisdiction of this court, from the commencement of my arraignment down to the end of my trial. I protest against being brought here forcibly, and against my being convicted on the evidence of a man whom you yourselves designated a man of the most odious character. You instructed the jury pointedly on one occasion, and subsequently you said that no respectable jury could act on his evidence, and that it was a calamity for any government to have to resort to the evidence of such a man. I do not wish to say anything  disrespectful to this court, but I think I may say that if I stand here as a convicted felon, the privilege should be accorded to me that has been accorded to every other person who stood here before me in a similar position. There is a portion of the trial to which I particularly wish to refer.  That is, in reference to the oath which it was stated the pilot was forced to take on board the vessel. Much importance was attached to this matter, and therefore I wish to ask you and others in this court to look and to inquire if there is any man here who could suppose that I am scoundrel enough and ignorant enough to take an ignorant man, put a pistol to his face, and force him to take an oath? I ask you, in the first place, not to believe that I am such a scoundrel, and in the second that I am not such an idiot. If I were at this moment going to my grave, I could say that I never saw that man Gallagher till I saw him in Kilmainham prison. These men, although they have been, day after day, studying lessons under able masters, contradicted each other on the trial, and have been perjuring themselves. Gallagher, in his evidence, swore that his first and second informations were false, and that he knew them to be false. It is contrary to all precedent to convict a man on the evidence of a witness who admits that be swore what was false. In America I have seen judges, hundreds of times, sentencing men who were taken off the table, put into the dock, and sent to prison. In this case, this poor, ignorant man was brought into Kilmainham gaol on the 1st of July. He knew my name, heard it called several times, knew of the act of which I was suspected, and, on the 2nd of August he was taken away. On the 12th of October he is brought back, and out of a party of forty or fifty he identifies only three. If that man came on board the vessel, he did so in his ordinary capacity as a pilot. He did his duty, got his pay, and left. His subsequent evidence was additions. With respect to the vessel I submit that there was not a shadow of evidence to prove that there was any intention of a hostile landing, and that the evidence as to the identity of the vessel would not stand for a moment where either law or justice would be regarded. Now, as to the Flying Dutchman which it is said appeared on the coast of Sligo and on the coast of Dungarvan. In Gallagher's information nothing is said about the dimensions of the vessel. Neither length, breadth, or tonnage is given, but in making his second information he revised the first.
The prisoner then proceeded to argue that there was nothing to show that the vessel which had appeared in Sligo harbour was the same with that which had appeared off Dungarvan, except the testimony of the informer, Buckley, of which there was no corroboration. He also denied the truth of Corydon's evidence, in several particulars, and then went on to say: -

As to the position in which I am now placed by British law, I have to repeat that I am an American citizen, and owe allegiance to the government of the United States. I am a soldier, and have belonged to the National Militia of America. Now, if war had broken out between these two countries, and that I had been taken prisoner, the English government, according to English law, would hold me guilty of high treason. I would not be treated as an ordinary prisoner of war, but would he liable to be strung up at the yard-arm. See then the position of England towards the United States. The Crown should not be in such haste to act thus. It was hardly a judicious policy. Andrew Johnson was the grandson of an Irishman; Mr. Seward was the son of an Irishwoman; General Jackson was the son of an Irishman; General Washington and Benjamin Franklin lived and died British subjects if this law be correct. There is another point to which I wish to refer - it is to the manner in which my government has acted in this matter –

The Chief Baron - We cannot allow you to enter into remarks on the conduct of any government. We have simply to sit here to administer the law which we are called upon to discharge.
Prisoner - I wish simply to call your attention to one point. On the 3rd of August I wrote to my government –
The Chief Baron - I cannot allow you to refer to that.
Prisoner - The President of the United States, on a report submitted to him –
The Chief Baron - I cannot allow you to proceed with any reference to what has been done by any government. We have nothing to do with the conduct of any government. We are only hare to administer the law which we are sworn to administer.
Prisoner - I was simply going to state that while the vile officials of your government –
The Chief Baron - We have nothing to do with the conduct of any government. We are here to dispense justice according to law, and whatever the officials of our government or of the American government have done cannot have the slightest influence upon our judgment. It can neither affect us favourably or unfavourably to the prisoner or to the Crown. We stand indifferently between both.
Prisoner - I beg simply to call your lordship's attention to the correspondence –
The Chief Baron - We cannot allow you to do so. We cannot allow you to refer to the correspondence between the officials of one government and the officials of another.
Prisoner - If America does not resent England's conduct towards me, and protect that allegiance to her government which I proudly own is the only allegiance I ever acknowledged, I shall call on thirteen millions of Irishmen -
The Chief Baron - I cannot allow you to use the position in which you stand there as the arena for those observations.
Prisoner - I must then state, in conclusion, that while I protest against the jurisdiction, I am confident that the position which I take will be sustained. I know that the verdict of the jury will be reversed, and while returning you, my lord, thanks for your kindness during the trial, I must say you have taken from me the privilege l am entitled to get. I am sure that I shall live longer than the British Constitution.

Author: A. M. Sullivan

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