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MARTIAL LAW

Law in Ireland half a century ago – Its delay remedied, but not its uncertainty – Principal and Interest – Eustace Stowell and Richard Martin – Valuable precedents– A bloodless duel – High sheriffs and their Subs– Irish method of serving a writ – Cases of warranty – Messrs. Reddy Long and Charley White – The latter guarantees an unsound horse to the author – Zeal of a second– Mr. Reddy Long’s valuable legacy to Sir Jonah Barrington.

The administration of the law among gentlemen in Ireland fifty years back, is curiously illustrated by the following little narrative, the circumstances whereof have been communicated to me from such a quarter as not to admit of their being doubted.

Our laws, in their most regular course (as every body knows, who has had the honour and happiness of being much involved in them), are neither so fleet as a race-horse, nor so cheap as water-cresses. They indisputably require eloquent advocates and keen attorneys; – who expound, complicate, unriddle, or confuse, the respective statutes, points, precedents, and practice, of that simple science, which too frequently, like a burning-glass, consumes both sides of what it shines upon.

Some prudent and sensible gentlemen, therefore, principally in the country parts of Ireland (who probably had bit upon the bridle), began to conceive that justice ought to be neither so dear nor so tardy; and when they reflected that what were called their “barking irons” brought all ordinary disputes to a speedy termination – why, thought they, should not these be equally applicable to matters of law, property, and so forth, as to matters of honour? At all events, such an application would be incalculably cheaper, than any taxed bill of costs, even of the most conscientious solicitor.

This idea became very popular in some counties, and, indeed, it had sundry old precedents in its favour, – the writ of right and trial by battle having been originally the law of the land, and traditionally considered as far the most honourable way of terminating a suit. They considered, therefore, that what was lawful one day, could not be justly deemed unlawful another, and that by shortening the process of distributing justice, they should assist in extending it. The old jokers said, and said truly, that many a cause had been decided to a dead certainty in a few minutes, by simply touching a trigger, upon which attorneys, barristers, judges, jurors, witnesses, and sometimes all the peers of the realm, spiritual and temporal, had been working and fumbling for a series of years without bringing it even to an unsatisfactory issue.

My old and worthy friend, “Squire Martin,” afforded a most excellent illustration of this practice; and as all the parties were “gentlemen to the backbone,” the anecdote may be deemed a respectable one. I have often heard the case quoted in different companies, as a beneficial mode of ensuring a compromise. But the report of my friend makes it any thing but a compromise on his part. The retrograding was no doubt on the part of the enemy, and equally unequivocal as Moreau’s through the Black Forest, or that of the ten thousand Greeks, though neither so brave nor so bloody as either of them.

I name place, parties, cause, proceedings, and final judgment – just as I received these particulars from the defendant himself; and I consider the case as forming a very valuable precedent for corresponding ones.

Eustace Stowell, Esq. challenger.

Richard Martin, Esq. acceptor.

Operator for the challenger, D. Blake, Esq.

Operator for the acceptor, Right Honourable St. George Daly, late judge of the King’s Bench, Ireland.

Case as reported by Defendant.

Eustace Stowell lent me a sum of money on interest, which interest I had not paid very regularly. Mistaking my means, I promised to pay him at a certain time, but failed. He then called on me, and said I had broken my word. I answered, “Yes, I have, but I could not help it. I am very sorry, but in a few days will satisfy the demand.” Accordingly, my worthy friend the late Earl of Mountjoy accepted my bills at three and six months for the whole amount.

Having arranged the business thus, I enclosed the bills to Mr. Eustace Stowell, who immediately returned them, saying, that as I had broken my word, he would accept of no payment but hard money.

I replied that I had no hard money, nor was there much of it afloat in my part of the country; upon which Mr. Eustace Stowell immediately sent his friend to me, requiring me either to give him cash or personal satisfaction; and in the latter event, to appoint time and place. My answer was, that I did not want to shoot him unless he insisted upon it; but that as to cash, though Solomon was a wise man, and Sampson a strong one, neither of them could pay ready money if they had it not. So I prepared to engage him: my friend the Right Honourable St. George Daly, since judge of the King’s Bench, assisted in arranging preliminaries to our mutual satisfaction, and pretty early next morning we met to fight out the debt in that part of the Phœnix Park called the Fifteen Acres.

Every thing proceeded regularly, as usual. Our pistols were loaded, and the distance measured, eight yards from muzzle to muzzle. I stepped on my ground, he on his. I was just presenting my pistol at his body, when, having, I suppose, a presentiment that he should go somewhere out of this world if I let fly at him, he instantly dropped his weapon, crying out, “Mr. Martin! Mr. Martin! a pretty sort of payment this! You’d shoot me for my interest money, would you?”

“If it’s your pleasure, Mr. Eustace Stowell,” said I, “I certainly will; but it was not my desire to come here, or to shoot you. You insisted on it yourself: so go on, if you please, now we are here.”

“What security will you give me, Mr. Martin,” said he, “for my interest money?”

“What I have offered you already,” said I.

“And what’s that?” demanded Mr. Stowell.

“I offered you Lord Mountjoy’s bills at three and six months,” said I. Before I had time to finish the last words Mr. Stowell cried out, “Nothing can be better or more reasonable, Mr. Martin; I accept the offer with pleasure. No better payment can be. It is singular you did not make this offer before.”

“I think,” said I, “you had better take your ground again, Mr. Eustace Stowell, for I tell you I did make this offer before, and may be you don’t like so plump a contradiction. If not, I’m at your service. Here is a letter under your own hand, returning the bills and declining to receive them. See, read that!” continued I, handing it him.

“Bless me!” said he, “there must be some great misunderstanding in this business. All’s right and honourable. I hope the whole will be forgotten, Mr. Martin.”

“Certainly, Mr. Stowell,” replied I: “but I trust you’ll not be so hard to please about your interest money in future, when it’s not convenient to a gentleman to pay it.”

He laughed, and we all four stepped into the same carriage, returned the best friends possible, and I never heard any thing irritating about his interest money afterward.

This case, however, was only a simple one on the money counts– a mere matter of assumpsit, in which all the gross and ungentlemanly legal expressions used in law declarations on assumpsits were totally avoided – such as “intending thereby to deceive and defraud:” – language which, though legal, a Galway gentleman would as soon eat his horse as put up with from his equal – though he would bear it from a shopkeeper with sovereign indifference. When such a one, therefore, was sued in assumpsit for a horse or so by a gentleman, the attorney never let his client read the law declaration – the result of which would be injurious to two of the parties at least, as one of the litigants would probably lose his life, and the attorney the litigation. The foregoing cause was conducted with as much politeness and decorum as could possibly be expected between four high well-bred persons, who, not having “the fear of God before their eyes,” but, as law indictments very properly set forth, “being moved and seduced by the instigation of the devil,” had congregated for the avowed purpose of committing or aiding in one or more wilful and deliberate murders.

I must here observe that, in addition to the other advantages this mode of proceeding between gentlemen had over that of courts of justice, a certain principle of equity was understood to be connected with it. After a gentleman was regularly called out, and had duly fought the challenger respecting any sum of money, whether the trial ended in death or not, after a single shot the demand was extinguished and annulled for ever: no man can be sued twice for the same debt. Thus, the challenger in a money case stood in rather an unpleasant situation – as, exclusive of the chance of getting a crack, the money was for ever gone, whether his adversary lived or died – unless, indeed, the acceptor, being a “gentleman every inch of him,” might feel disposed to waive his “privilege.”

But this short, cheap, and decisive mode of terminating causes was not confined to simple money counts; it extended to all actions at law and proceedings in equity. The grand old procrastinators of Irish courts —demurrers and injunctions– were thus dissolved or obviated by a trigger, in a shorter time than the judges took to put on their wigs and robes. Actions also of trover, assault, trespass, detenu, replevin, covenant, &c. &c. were occasionally referred to this laudable branch of jurisprudence with great success, seldom failing of being finally decided by seven o’clock in the morning.

The system was also resorted to by betters at cock-fights, horse-races, or hurlings; as well as on account of breaches of marriage-contracts with sisters, nieces, or cousins; or of distraining cattle, beating other gentlemen’s servants, &c. &c.: but none were more subject to the trigger process than high sheriffs when their year was over, if they had permitted their subs to lay on (as they called it) such things as executions, fieri facias, or scire facias, haberes, &c.; or to molest the person, property, or blood relations, of any real and spirited gentleman in his own bailiwick, or out of it.

The high sheriff being thus, by the laws of custom, honour, and the country gentlemen of Ireland, subject to be either shot or horsewhipped, or forced to commit a breach of public duty, very fortunately discovered an antidote to this poison in the person of his sub-sheriff – an officer generally selected from the breed of country attorneys. Now, it was an invariable engagement of the sub that he should keep, guarantee, and preserve his high from all manner of injury and annoyances. But as it was by common accord decided, that a sub-sheriff could not possibly be considered a gentleman, none such would do him the honour of fighting him. Yet, being necessitated to adopt some mode of keeping the high out of the fangs of fire-eaters, and himself from a fracture by the butt-end of a loaded whip, or the welts of a cutting one, or of having his “seat of honour” treated as if it were a foot-ball, the sub struck out a plan of preventing any catastrophe of the kind – which plan, by aid of a little smart affidavit, generally succeeded extremely well in the superior courts.

When the sub-sheriff received a writ or process calculated to annoy any gentleman (every inch of him, or to the backbone), he generally sent his bailiff at night to inform the gentleman that he had such a writ or process, hoping the squire would have no objection to send him the little fees on it with a small douceur, and he would pledge his word and honour that the squire should hear no more about the matter for that year. If the gentleman had not by him the amount of the fees (as was generally the case), he faithfully promised them, which being considered a debt of honour, was always, like a gambling debt, entitled to be earliest paid. Upon this, the sub, as soon as he was forced to make a return to such writs, did make a very sweeping one – namely, that the defendant had neither “body nor goods.” This was, if required, confirmed by the little smart affidavit; and if still doubted by the court, the sub never wanted plenty of respectable corroborating bailiffs to kiss their thumbs, and rescue the high out of any trifling dilemma that “his honour might get into through the Dublin people, bad luck to them all! root and branch, dead or alive,” as the country bums usually expressed themselves.

Of the general application of this decisive mode of adjudicating cases of warranty and guarantee, I can give a tolerably clear example in my own proper person. When very young, I was spending a day at a cottage belonging to Mr. Reddy Long, of Moat, near Ballyragget, a fire-eater, when one Mr. Charley White sold me a horse for ten guineas, which he warranted sound, and which seemed well worth the money. Next day, when the seller had departed, the beast appeared to my host (not to me) to limp somewhat, and the dealing had thereby the appearance of jockeyship and false warranty – which occurring in the house of a fire-eater, rendered the injury an insult, and was accounted totally unpardonable. I knew, that if the beast were really lame, I could oblige the seller to return the money; and accordingly told my host that if it turned out unsound, I’d get John Humphreys, the attorney, to write to Charley White to refund.

“An attorney write to a gentleman!” said Reddy Long, starting and staring at me with a frown. “Are you out of your wits, my neat lad? Why, if you sent an attorney in an affair of horse-flesh, you’d be damned in all society – you’d be out of our list, by – ”

“Certainly,” said I, “it’s rather a small matter to go to law about,” (mistaking his meaning).

“Law! Law!” exclaimed Reddy, “Why, thunder and oones! jockeying one is a personal insult all the world over, when it’s a gentleman that resorts to it, and in the house of another gentleman. No, no; you must make him give up the shiners, and no questions asked, or I’ll have him out ready for you to shoot at in the meadows of Ahaboe by seven in the morning. See here!” said he, opening his ornamented mahogany pistol-case, “see, the boys are as bright as silver; and I’m sure if the poor things could speak, they’d thank you for getting them their liberty: they have not been out of their own house these three months.”

“Why, Reddy Long,” said I, “I vow to God I do not want to fight; there’s no reason for my quarrelling about it. Charley White will return my money when I ask him for it.”

“That won’t do,” said Reddy: “if the horse limps, the insult is complete; we must have no bad precedents in this county. One gentleman warranting a limper to another in private is a gross affront, and a hole in his skin will be indispensable. At fairs, hunts, and horse-races, indeed, its ‘catch as catch can;’ there’s no great dishonour as to beasts in the open air. That’s the rule all the world over. Law, indeed! no, no, my boy, ten guineas or death – no sort of alternative! Tom Nolan,” continued he, looking out of the window, “saddle the pony; – I’ll be with Charley White of Ballybrophy before he gets home, as sure as Ben Burton!”

“I tell you, Mr. Long,” said I, rather displeased, “I tell you I don’t want to fight, and I won’t fight. I feel no insult yet at least, and I desire you not to deliver any such message from me.”

“You do!” said Reddy Long, “you do!” strutting up and looking me fiercely in the face. “Then, if you won’t fight him, you’ll fight me, I suppose?”

“Why so?” said I.

“What’s that to you?” said he; but in a moment he softened and added, taking me by the hand, “My good lad, I know you are a mere boy, and not up to the ways yet; but your father would be angry if I did not make you do yourself justice; so come, get ready, my buck, to canter off to Denny Cuff’s, where we’ll be more handy for to-morrow.”

I persisted in desiring him not to deliver any hostile message; but in vain. “If,” said he, as he mounted his pony, “you won’t fight, I must fight him myself, as the thing occurred in my house. I’ll engage that, if you did not call out Charley, all the bullock-feeders from Ossory, and that double-tongued dog from Ballybrophy at the head of them, would post you at the races at Roscrea.”

Before I could expostulate further Mr. Reddy Long galloped off with a view holloa, to deliver a challenge for me against my will²³ to Mr. Charley White, who had given me no provocation. I felt very uneasy; however, off I rode to Cuffsborough, where I made my complaint to old Denny Cuff, whose daughter was married to Reddy Long, and whose son afterward married my sister.

Old Cuff laughed heartily at me, and said, “You know Charley White?”

“To be sure I do,” said I; “a civil and inoffensive man as any in Ossory.”

“That’s the very reason Reddy will deliver a challenge to him,” said Cuff.

“’Tis an odd reason enough,” answered I.

“But a right good one too,” rejoined old Cuff. – “Reddy knew that Charley would rather give fifty yellow boys than stand half a shot, let alone a couple. I’ll answer for it Reddy knows what he is about:” and so it proved.

My self-elected second returned that evening with Charley White’s groom, to take back the horse; and he brought me my ten guineas. On my thanking him, and holding out my hand to receive them, after a moment’s hesitation, he said, “You don’t want them for a day or two, do you?”

Taken completely by surprise, I answered involuntarily, “No.”

“Well, then,” said my friend Reddy, “I am going to the races of Roscrea, and I won’t give you the ten till I come back. It’s all one to you, you know?” added he, begging the question.

It was not all one to me: however, I was too proud or rather silly to gainsay him, and he put the pieces into his purse with a number of similar companions, and went to the races of Roscrea, where he was soon disburdened of them all, and contracted sundry obligations into the bargain. I was necessitated to go home, and never saw him after. He died very soon, and bequeathed me an excellent chestnut hunter, called Spred, with Otter, a water-dog of singular talents. I was well pleased when I heard of this; but, on inquiry, found they were lapsed legacies, as the horse had died of the glanders a year before, and the dog had run mad, and was hanged long ere the departure of his master. I suppose, when death was torturing poor Reddy, (for he died of the gout in his head,) he forgot that the horse had been then skinned more than a twelvemonth.

BULLETIN EXTRAORDINARY

The author and Counsellor Moore laid by the heels at Rock House – Dismal apprehensions – A recipe and recovery – The races of Castlebar – The author forms a party to visit the spot – Members of the party described – Serjeant Butler and the doctor – Differences of opinion– The serjeant’s bulletin of the famous battle of Castlebar.

After fifteen days of one of the hottest election contests I had ever witnessed, I accompanied my friend, Counsellor Moore, to his aunt’s, (Mrs. Burke of Rock House, Castlebar,) where plenty, hospitality, and the kindest attentions would have soon made amends for our past misfortunes. – But ill luck would not remit so suddenly: – we had both got a Mayo chill on us, from the effects whereof, not even abundance of good claret and hot punch could protect us.

We had retired to rest after a most joyous festivity, when Moore (who had not been two hours in bed) was roused by the excruciating tortures of an inflammation of the stomach; and in less than half an hour after I heard his first groan, I found my own breath rapidly forsaking me; pins and needles seemed to be darting across my chest in all directions, and it was quite clear that another inflammation had taken a fancy to my lungs without giving the slightest notice. I could scarcely articulate, though my pains were not so very great as those of my poor friend: but I lost half the power of respiring, and had not even the consolation of being able to moan so loud as he. This was truly mortifying; but I contrived to thump strongly against the wainscot, which being hollow, proved an excellent conductor. The family took for granted that the house was on fire, or that some thief or ghost had appeared; and, roused up by different conjectures, its members of each sex, age, and rank, quickly rushed into our room screeching, and jostling each other, as they followed the old man-servant, who, with a hatchet in his hand, came on most valiantly. None waited for the ceremony of the toilet; but approached just as they had quitted their couches – not even a “blanket” being “in the alarm of fear caught up.”

The first follower of the old footman was a fat cook of Mrs. Burke’s, Honor O’Maily, who, on learning the cause of the uproar, immediately commenced clearing herself from any suspicion of poisoning; and cursing herself, without any reservation as to saints and devils, if the victuals, as she dressed them, were not sweet, good, and right wholesome: her pepper and salt, she vowed, had been in the house a fortnight before, and both the fritters and pancakes were fried in her own drippings!

Honor’s exculpatory harangue being with some difficulty silenced, a hundred antidotes were immediately suggested: Mrs. Burke, an excellent woman, soon found a receipt at the end of her cookery book for curing all manner of poisons (for they actually deemed us poisoned), either in man or beast; and the administration of this recipe was approved by one Mr. Dennis Shee, another family domestic, who said “he had been pysoned himself with some love-powders by a young woman who wanted to marry him, and was cured by the very same stuff the mistress was going to make up for the counsellors; but that any how he would run off for the doctor, who to be sure knew best about the matter.”

It was now fully agreed, that some of Denis Brown’s voters had got the poison from a witch at Braefield,²⁴ out of spite, and all the servants cried out that there was no luck or grace for any real gentleman in that quarter from the time George Robert was hanged.

Poor Mrs. Burke was miserable on every account, since the story of “two counsellors being poisoned at Rock House” would be such a stain on the family.

Being raised up in my bed against pillows, I began to think my complaint rather spasmodic than inflammatory, as I breathed better apace, and felt myself almost amused by the strange scenes going on around. Mrs. Burke had now prepared her antidote. Oil, salt, soapsuds, honey, vinegar, and whisky, were the principal ingredients. Of these, well shaken up in a quart bottle, she poured part down her nephew’s throat (he not being able to drink it out of a bowl), much as farriers drench a horse; and as soon as the first gulp was down, she asked poor Moore if he felt any easier. He answered her question only by pushing back the antidote, another drop of which he absolutely refused to touch. She made a second effort to drench him, lest it might be too late; but ere any thing more could be done, the doctor, or rather apothecary and man-midwife, arrived, when bleeding, blistering, &c. &c. were had recourse to, and on the third day I was totally recovered; my poor friend got better but slowly, and after two dangerous relapses.

The incidents which had taken place in Castlebar during the French invasion, three years before, were too entertaining not to be pried into (now I was upon the spot) with all my zeal and perseverance. The most curious of battles, which was fought there, had always excited my curiosity; I was anxious to discover what really caused so whimsical a defeat. But so extremely did the several narratives I heard vary – from the official bulletin to the tale of the private soldier, that I found no possible means of deciding on the truth but by hearing every story, and striking an average respecting their veracity, which plan, together with the estimate of probabilities, might, perhaps, bring me pretty near the true state of the affair. There had certainly been a battle and flight more humorous in their nature and result than any that had ever before been fought or accomplished by a British army; neither powder, ball, nor bayonet had fair claim to the victory; but to a single true blunder was attributable that curious defeat of our pampered army – horse, foot, and artillery, – in half an hour, by a handful of half-starved Frenchmen. So promptly (as I heard) was it effected, that the occurrence was immediately named – and I suppose it still retains the appellation – “The races of Castlebar.” I cannot vouch for any single piece of information I acquired; but I can repeat some of the best of it; and my readers may strike the average as I do, and form their own conclusions on the subject. At all events, the relation may amuse them; and, as far as the detail of such an event can possibly do, afford a glance at French and Irish, civil and military, high and low, aristocracy and plebeians: – undoubtedly proving that, after a battle is over, it suggests the simile of a lady after her baby is born – what was a cause of great uneasiness soon becomes a source of great amusement.

To attain this, my laudable object, the first thing I had to do was, as far as practicable, to fancy myself a general; and in that capacity, to ascertain the errors by which the battle was lost, and the conduct of the enemy after their victory. Experientia docet; and by these means I might obviate the same disaster on any future occasion. In pursuance of this fanciful hypothesis, my primary step was, of course, to reconnoitre the position occupied by our troops and those of the enemy on that engagement; and in order to do this with effect, I took with me a very clever man, a serjeant of the Kilkenny militia, who had been trampled over by Chapman’s heavy horse in their hurry to get off, and left with half his bones broken, to recover as well as he could. He afterward returned to Castlebar, where he married, and continued to reside. An old surgeon was likewise of our party, who had been with the army, and had (as he informed me) made a most deliberate retreat when he saw the rout begin. He described the whole affair to me, being, now and then, interrupted and “put in,” as the corporal called it, when he was running out of the course, or drawing the long-bow. Three or four country fellows (who, it proved, had been rebels), wondering what brought us three together, joined the group; and, on the whole, I was extremely amused.

The position shown me, as originally held by the defeated, seemed, to my poor civil understanding, one of the most difficult in the world to be routed out of. Our army was drawn up on a declivity of steep, rugged ground, with a narrow lake at its foot, at the right whereof was a sort of sludge-bog, too thick to swim in, and too thin to walk upon – snipes alone, as they said, having any fixed residence in, or lawful claim to it. On the other side of the lake, in front of our position, was a hill covered with underwood, and having a winding road down its side. In our rear was the town of Castlebar, and divers stone walls terminated and covered our left. None of my informants could agree either as to the number of our troops or cannon; they all differed even to the extent of thousands of men, and from four to twenty pieces of cannon. Every one of the parties, too, gave his own account in his own way. One of the rebels swore, that “though he had nothing but ‘this same little switch’ (a thick cudgel) in his fist, he knocked four or five troopers off their beasts, as they were galloping over himself, till the French gentlemen came up and skivered them; and when they were once down, the ‘devil a much life’ was long left in them.”

“Were you frightened, Mr. O’Donnell?” said I (he told me that was his name).

“By my sowl!” replied O’Donnell, who seemed a decent sort of farmer, “if you had been in it that same day, your honour would have had no great objections to be out of it agin.”

“Now,” said I, “pray, Serjeant Butler, how came the Kilkenny to run away that day so soon and with so little reason?”

“Becaize we were ordered to run away,” answered the serjeant.

“How can you say that, serjeant?” said the doctor. “I was myself standing bolt upright at the left of the Kilkenny when they ran without any order.”

“O yes, indeed! to be sure, doctor!” said Serjeant Butler; “but were you where I was when Captain Millar the aidycam ordered us off in no time?”

“He did not,” replied the doctor.

“Why, then, since you make me curse, by J – s he did; becaize the officers afterward all said, that when he ordered us off, he forgot half what he had to say to us.”

“And pray, what was the other half, serjeant?” inquired I.

“Ah, then, I’ll tell you that, counsellor,” replied Butler. “That same aidycam was a fat, bloated gentleman, and they said he was rather thick-winded like a beast, when his mind was not easy: so he comes up (my lord was looking at the fight, and did not mind him), and he kept puffing and blowing away while he was ordering us, till he came to the words, ‘you’ll get off,’ or ‘you’ll advance backwards,’ or some words of the same kind, I can’t exactly say what; – but it seems, when he desired us to make off, he forgot to say ‘thirty yards,’ as the officers told us at Tuam was the general’s word of command: – and as he desired us to make off, but didn’t order us when to stop, by my sowl some of us never stopped or stayed for thirty good miles, and long miles too, only to get a drink of water or halt a noggin of whisky, if there was any in the alehouse. And sorry enough we were, and sore likewise! – Then there was that Chapman and his heavy horse; troth I believe every horse in the place cantered over us as if we were sods of turf. Bad luck to their sowls! many a poor Kilkenny lad couldn’t get out of their way while they were making off, and so they tumbled over the Kilkenny themselves, and all were tumbling and rolling together, and the French were coming on to stick us; and we were trampled and flattened in the dust, so that you’d hardly know a corpse from a sheet of brown paper, only for the red coat upon it.”