Scallan to Dublin , July 31, 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,