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See at end of thesis, newly discovered ballad about the
Coady/Madden affair - supplied by Ed Madden (!) Vancouver, September 2003. Note March 2003 Note re text and format Spring 2003
FAMINE JUSTICE?
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TAKE WARNING OF THIS Not to employ any stranger except in a man in your own County or in your own barony and if you do you will get the death of Mr Kelet’s steward. |
It also indicates the continuing animosity towards the spailpins from the poorer counties of Cork and Kerry who would, like anybody from outside the barony, be considered a foreigner. But what was even worse — a foreigner, competing for their jobs, that worked harder, and for less pay than the locals . This was bound to be inflammatory at a time when money was increasingly devaluing in relation to the inflationary price of foodstuffs.
Peel perhaps best summarises the perplexity of the English politician towards agrarian violence in Tipperary. On the one hand he ascribes its cause to ‘sheer wickedness, violence and barbarity’ and on the other to the repeated employment of the Insurrection Act! He did not show much understanding either by his suggestion that Tipperary ‘was not justified in its violence having less excuse in the distress and suffering of its inhabitants than most other parts of Ireland.’32 Baron Richards lamented too that ‘. . . (Tipperary) is pre-eminent in crimes of this description (16 murders), above every other county in Ireland’.33
Another early nineteenth century writer had more of a grip on the problem; ‘disturbances . . . appear to prevail most where the peasantry are bold and robust . . . and where the land is productive (as in Tipperary, such a storm centre of disorder)’.34 A more recent researcher suggests that the conflict was between farmers and labourers over the issues of wages, conacre and the price of potatoes.35 Another maintained that agrarian violence in Tipperary was directed not against the land system itself but against attempts to change that system especially by enterprising landlords of whom more than a third were catholic and ostensibly liberal.36 A Clonmel priest suggested that Catholic Emancipation was the main cause of Tipperary’s agrarian violence! His quite reasonable point was that whilst emancipation was given with one hand, disenfranchisement of the 40/- freeholders was applied with the other. Combined with a change in the law making it cheaper to evict( £2-0-0 or less as opposed to between £18-0-0 and £150-0-0 previously) he goes on to say that clearances in Tipperary, post-emancipation, ‘were inaugurated which probably had no parallel in any civilised country’.37
It is fairly well accepted now that much of the agrarian violence in the county in the 1840s was directed towards farmers and improving landlords and to a large extent was the result of perceived grievance over land and labour rights. However as the effect of the famine began to be felt the nature of agrarian crime itself changed. The immediate closeness and obviousness of extreme have-nots with extreme haves caused unusual tensions in certain parts of Tipperary and in particular the upland areas such as the southern slopes of Slievenamon. This, taken together with the local background history of violence38, the relative robustness of the poor and the proximity of food sources, led substantially to the uniquely high levels of agrarian crime and Tipperary’s reputation of being the most troublesome county in Ireland.39
...Ar thaobh na greine do Shliabh na m-Ban.40
‘Long ago where the school is now was called Cody’s haggard, there were two boys of the Codys and a man named Kelly. Their mother’s name was Hearn. She lived up near the lodge where she died aged over one hundred years. The Codys and Kelly used to cut down all the oak trees in the wood and steal cattle and cut them up and give them to the poor. A man watched them one day to shoot them but they knew where he was and Kelly shot him. When the two Codys were arrested and were to be hanged, they could get no one to hang them but Kelly. When the second man of the Codys went up on the gallows a woman shouted, "it is Kelly what is hanging you Paddy"[sic]. Then Cody caught Kelly and he was going to throw him down into the pit. The execution had to be put off for one or two days till Cody got confession and communion again. When the school was being built the pikes and the guns which belonged to the Codys were found under the walls and St. John’s have them yet. The gun which shot the man who was watching them was one which was found’.
This was how Miss M. St. John, aged 78 years, of Killurney remembered the story of the Madden murder and the execution of the Cody bothers in her own words and idiom and told it to her granddaughter. It was part of Killurney’s contribution to the Irish Folklore Commission’s School Survey of 1937.41 It was here that the author first came across the case of Madden and the Cody brothers. It was intriguing; it was a countryside well known to the author; it sounded more like the stuff of novels than of history; perhaps even a case of the folk memory overweening in its embellishment of the facts - or not remembering the facts at all!
However, the essential details of the murder and the execution were easily confirmed; Edmund Madden was shot and Harry and Philip Cody were executed for the crime - that is a matter of public record. But could one of the co-conspirators to a murder really volunteer to be a hangman - to execute his comrades by hanging them in public? And could, or would, a condemned prisoner try to attack and kill or even hang the hangman? Surely if he did he must have had sufficient reason.
Being hung was a very solemn business. It was such a public act with every spectator watching every nuance of behaviour. A good hanging would be remembered with relish for years to come. It was a time for a man to show his mettle. The condemned mens’ character and reputation would be calibrated for ever by how they behaved in those few naked moments before their death. Even if a prisoner was only nominally catholic (as many of the dispossessed were believed to be) it was a time for ultimate reflection and reconciliation with one’s god. Only an extraordinary provocation at this moment of truth would tempt a prisoner to hazard his immortal soul. Did ‘Paddy’ Cody believe in those final moments that the hangman was really Kelly? Surely he was in the best position to judge, being closest to the hangman.
Why did his brother join in the attack on the wretched Ketch when he broke his bonds and removed his ‘cap’?
Turning ‘stag’ was certainly not unknown in Ireland or indeed in Tipperary at the time but, if true, what ugly inferences could be drawn about the character of Kelly and the police authorities and the methods they would have used in persuading a suspect to turn on his intimate associates in such a cynical ‘hands-on’ way. Then to have him execute his former comrades in public without any thing being done to conceal his identity from the prisoners; this must surely be a barbarity of the highest order, perverse cynicism, racism, sadism at its worst! It could only indicate, if it were true, that the representatives of ‘law and order’, in goading the prisoners and the crowd, were enjoying the ghastly ordeal of what could be regarded as the ultimate bloodsport.
Then there were the ‘Robin Hood’ aspects to the affair, robbing the rich of their stock and sharing the meat amongst the poor.
The questions kept piling up as curiosity developed and it was soon appreciated that they could only be addressed by starting a detailed study not only of the murder case but also of the district and the context in which the murder was committed in the famine years of the 1840’s.
The harvesting of the woods belonging to the Marquess of Ormonde on the southern and south-eastern slopes of Slievenamon gave employment to hundreds of local people in 1847. The greater number of the trees were oak and the wood mostly went into the making of barrel staves at the coopers of Clonmel and Carrick-on-Suir. The bark itself, peeled off mostly by women workers, was in itself a valuable commodity used in the curing of hides at the local tanneries. The fertile fields of the valley swept up to the base of the mountain and much like it is today, a few hundred feet up the gentler slopes to the lower tree line. Along that line in mid -nineteenth Ireland scores of cabins with their plotlets formed clusters and villages of a typical cottier/labourer community. There were concentrations of houses and cabins stretching along that border to the east from Killurney, Ballyknockane, Shanbally and Ballypatrick on land almost exclusively owned by the Marquess of Ormonde. To the west, and south the lands of Cooloran, Templetney, Knockanclash and Lisnatubrid were mostly owned by Lord Lismore (See Fig 1). Killurney, comprising 1, 262 acres, had thirty eight occupiers in 1850 ranging from the ‘house and garden’, 9 perches, of John Lee to the 90 and 165 acres respectively of William and Thomas O’Donnell.
There were farms of 29 acres, William Quinn; 22 acres, John Kelly; 19 acres, Walter Asper (he had a house and 400 acres in neighbouring Ballyknockane) and 15 acres, John Shea. The average size holding of the thirty one other tenants was one and a half acres. Three other properties described as ‘house and garden’ were valued at 3/-, 4/- and 5/- each. Some of the names of these small-holders were Quinn, Kelly, Mara, Cody, Gibbs and Madden.42 Folklore sources describe cabins built of yellow clay, ‘pros’, with feathers and sally switches mixed through. They were thatched with ‘reed’, the local name for wheat straw, and sedge. Old churns and wickerwork boxes often served as chimneys. Windows invariably had no glass and were blocked with bags of hay in cold weather and at night. Heather and turf, called fraoch, were cut on the mountainside for fuel. Balls of coal slack mixed with cow-dung were another local fuel. Furniture was scarce and a resident of Knockanclash said, ‘There were no chairs only a few big stones in the corners at the fire and if a stranger came in a bag was put on the stone for him.‘43
The same sources describe the effects of the great famine in the area. The poor in some cases sold their land for a hundred weight of ‘yellow meal’. Sometimes emigration passage was offered in exchange for holdings, paid at the quayside. There are also the familiar accounts of roadside deaths, dogs feeding on cadavers, trap coffins and descriptions of land grabbers. Particular families notorious in this respect, such as Barnes and O’Donnell were mentioned. A branch of the O’Donnells’ in Knockrathkelly earned a particular wrath due to evictions and were reputedly cursed for seven generations. Oaten and barley bread as substitutes for potatoes are described as being reluctantly eaten. Oaten bread with cream was called ‘rotten bread’. Barley and oaten bread were said to be so notoriously hard that it gave rise to the saying ‘that barley bread could kill a man dead’. Praipin, ground wheat with new milk, was a much better liked concoction.44
As a reminder of the desperation of the upland poor the following threatening notice in a turnip field at Toor during the famine was remembered in 1937; ‘Take one, take two, but if you take three, I’ll take you’.45 Remembered bitterly even to this day is the local doggerel ‘chaff and oats for the mountainy goats, spuds and sprats for the valley rats’.46
It must have been particularly galling for the dispossessed of this mountain-side to be continuously reminded of the awful inequality of their position by the large fertile fields and the prosperous farm-houses laid out before their eyes to the south across to the Comeraghs and the Galtees.
If the fields of pastoral splendour were not sufficient provocation in a time of famine there was the busy traffic on the newly improved Bohermore road at the foot of the mountain to the south. Here, almost daily, herds of cattle, sheep and pigs bought by jobbers at the fairs of Fethard, Cashel and Cappawhite, were driven to the processing and exporting centres of Carrick-on-Suir and Waterford. This was some of the abundant, if unavailable food that Ireland produced during the famine — the produce of farmers selling unrestrictedly in the market place to the highest bidder with the blessing of a laissez-faire government.47 In most cases the purchaser was an exporter, as food in England and Europe was scarce and dear also. Irish merchants, butchers and meat processors to a large extent, were not buying for the rural home market as these animal products could not be afforded by the poor. These could indeed only barely afford ‘Peels brimstone’, Indian corn at its cheapest. Beef, mutton, bacon, fowls, butter and cheeses, the fruits of the rich farmland on their way to the tables of the middle classes of Ireland, Britain and Europe, might well have been produced on Mars, they were so inaccessible to the moneyless at the bottom layer of the economic system.
The ‘mountainy goats’ took radical group action in 1847 in what was termed the ‘Slievenamon pig case’. James Egan and his brother bought 69 pigs at Cappawhite fair in April 1847 on behalf of a Mr Milward, a bacon and corn merchant. Patrick and Laurence Maher were employed as drovers to bring them to Mr Milward’s premises at Carrick-on-Suir. This was the common practice of the day. James Egan described travelling between 5 and 14 miles a day with the animals depending on conditions. At the cross of Templetney, just below Killurney, they were confronted by a mob of ‘upwards of a hundred people which ran down from the mountain’. First, eight pigs were driven away, then they returned half an hour later and took thirty seven more leaving the unfortunate Mahers with only twenty four of their original herd. In court, Patrick Maher protested (perhaps too much), . . ‘on my oath they took them against my will’. The only violence offered it would seem was when Maher followed the crowd for ‘40 yards’ and ‘one of the people went to the dyke and took a stone and threatened to take my life’. Perhaps Maher did not offer too spirited a defence of his employer’s property? His attempts at reporting the robbery however, were thorough enough. But surprisingly he met indifference at every turn! The constabulary at Kilsheelin referred him to the barracks at Two Mile Bridge who ‘could not leave the station’ and passed him on to the parish priest at Gambonsfield. Finally the Rev Mr Mandeville gave him a lift in his carriage to Clonmel where he made his complaint to the stipendary magistrate. The normally eager magistrate, William Ryan, fobbed him off with the claim that ‘...Templetney was outside his district. ‘ None of the pigs were recovered and there is no evidence now that any effort was made by the authorities to do so. Could it be that the police could have foreseen the difficulty of identifying one flitch of bacon from another — Mr Milward’s rashers from home-grown ones?
Mr Milward brought an action for damages against the inhabitants of the Barony of Iffa and Offa East for £300-0-0. The judge, Baron Pennefeather, asked the counsel if he (the judge), therefore, was ‘one of the defendants’. The reply, -‘you are my lord’, from Mr Martley caused great hilarity, and set a tone of levity for the rest of the proceedings. Mr Milward was awarded £147-0-0 damages and 6d costs. The 24 pigs that made it to Carrick-on-Suir weighed a total of 41 cwt which give an average weight of over 13 stone 4 lb - a respectable weight for pigs that had been walked thirty miles over a number of days.48
All this and the subsequent fate of the pigs may or may not have given rise to the recently remembered saying; ‘Hay and oats for the Cloran goats; eggs and rashers for the Killurney dashers’.49 The abduction of Mr Milward’s pigs was a fairly unusual action in that it was committed by a large group of people in a community show of force. Because of their numbers and solidarity no overt violence was needed. Furthermore they must have had some confidence in getting away with it. Killurney in many ways was ideally situated as an ambush site. Itself on the edge of arable land and its food resources Slievenamon rose sharply behind to the north with a wide skirt of thick woods to the east and west. The steep overgrown sides of Glengoul, whose stream flowed through the village, would have been a formidable obstacle to any pursuit. Above all else however the small close-knit community of Killurney with its own version of ‘omerta’, gave support and cover for such adventures.
Persons wanted by the police could openly work in the fields and if threatened could simply melt into the woods and in case of really serious pursuit retreat towards the heights of Carraigeenaveark and Carraigdotia with their sheltering slabs and strategic views.The mountain has a rich history of Fiannian and other folklore and has a long tradition of being a place of refuge.50 In 1848 the Slievenamon area was chosen to give cover to a meeting of 50, 000 Young Irelanders. Such an inaccessible place, it was deemed, would test the faint-hearted and reduce the possibility of informers.51 Later when the rising had failed at Ballingarry, Michael Doheny sheltered here and was fed well too, it seems, from the farm houses at night.52
There are several other documented robberies of food in the area including a notorious armed hijacking of 57 firkins of butter.53 In contrast to their apathetic reaction to the pig theft the authorities, led by William Ryan,this time roused themselves to great efforts and successfully prosecuted the thieves. A few miles to the south the movement of food cargoes by barge from Clonmel were particularly vulnerable because of the history of piracy on this waterway. In 1846 military might, represented by artillery, cavalry and infantry were accompanying convoys of barges on their way to Carrick-on-Suir.54
There is evidence too that the farmers of South Tipperary were not solely relying on the police and military to protect them and their produce. They were busily buying firearms in the many gunshops of Clonmel. Anyone could possess a firearm up to Nov.1847 - only a receipt from the shop was necessary for legal purposes.55 Many cases of violence against petty food thefts were recorded but perhaps the most gruesome was that of the farmer who bludgeoned a woman and her daughter to death in his garden.56 ’...Substantial farmers in general do not seem to have greatly modified their traditional hostility towards those less fortunate than themselves’.57 Magistrates often criticised the usually farmer plaintiffs for their heartlessness in taking to court starving people for stealing small quantities of food.58 As the forces of empire and the middling farmers, each in their own way, secured their crops and stores against theft people died because they had no access to this food at the going prices. Apathy was often the concomitant of hunger. Often during the famine it was observed that people accepted their awful fate with passivity. The worst affected the area the more apathetic the people were to helping themselves. And conversely the least drastically hit areas were generally the more violent.59 Whether this was submission to fate and the will of God, which later was often claimed, or the terrible apathy and inertia that accompanies severe hunger, is debatable. The Rev. Woodward, rector of Fethard was described as lauding the poor Irish for accepting the fate that God had meted out to them and observed their ‘pious resignation to the hand that smites them’.60
Submissiveness to the inevitable consequences to their class in the face of continuous famine was not it would seem prevalent in the population of Killurney. In other words they had backbone! This was shown clearly in the community abduction of the pigs which so amused the court in Clonmel. Whereas they may not have taken such direct group action on other occasions they showed in their initial solidarity of silence and inaction in the Madden case that they supported their champions the Bohermore Robbers who, according to folk-memory, shared with them the spoils of their robberies.
William Cahill of Cooloran in 1937, remembered the robbers. ‘In the night, they would go to a farm and say they were going to take a bullock and the farmer would tell them to take them (sic) away. Then they would drive the animal up to the glen and kill it. They brought the meal to the poor people. Then they would ask for potatoes and give them to the poor people. Another night they would take some sheep and give them around’. Miss St. John of Killurney said that ‘the Codys and Kelly used to cut down all the oak trees in the wood and steal cattle and cut them up and give them to the poor. ‘61
On the other hand the authorities’ view of the happenings in the area were indicated by William Ryan, the Clonmel magistrate, who said that at Bohermore and Killurney were ‘two gangs of the most notorious robbers and plunderers’.62
Apart from the officially recorded thefts of food, there is an untold number of unrecorded ones. Potatoes turnips, grain stores, vegetables, cattle, sheep, fowl and pigs were practically on the doorstep and even in normal Times there must have been considerable pilfering. We can never now know the minds and conversations of the marginalised people of Killurney and can only guess at them by their more public actions and the traces surviving in folklore. But it is not hard to imagine that as the effects of the famine began to bite they would be tempted more and more to reach out and take illegally the fruits of the land that surrounded them so closely. In this way they were not perhaps behaving uniquely against type in the period. They and the relatively few others in their position, twixt the land of plenty and want, stole what they needed and applied their own rules of ‘rough justice’ within their community. They put into practice what in Ballingarry was but threatened, ‘. . . I will not bear hunger no longer while there is a beast in the field’.63
The particularly practical way that the poor of Killurney reacted to the famine was very local however and their special conditions did not apply to many other areas. Even just a couple of miles away on the uplands above Kilcash ‘normal’ famine scenes prevailed. In Fethard, seven miles to the north, in the midst of rich farmland, people were ‘drained of every shilling’ and the parish priest in desperation wrote a begging letter to his archbishop (he was sent £12-0-0).64 Similar descriptions of deprivation came from other priests in the diocese of Cashel and Emly . People in Killurney had relatives and friends in some of these areas and would have been only too aware of the frightening stories of their kinsmens’ suffering. This would have added to their determination to resist a similar fate in their own locality if there were the means. Thefts however were becoming increasingly dangerous as the famine progressed and it was necessary to be as well armed as the protectors of food. Although anyone could purchase a weapon legally for a guinea in Clonmel, and black-market weapons could be easily purchased for a couple of pounds, the only way for those without money to arm themselves was by raiding households that had guns. It was as a result of such a raid that the Bohermore Robbers and Edmund Madden developed a fatal grievance.
‘The wild justice of revenge’, from Shiel’s speeches(fn. 29).
Edmund Madden was a steward employed by the Marquess of Ormonde in the woods of Killurney. His particular job was to allocate and supervise the women workers employed in debarking the felled trees. Along with scores of other workers he was making his way along to a collection point above the Glen (Glen Goul in Killurney) before 6 a.m. on the morning of Friday 9th July 1847. As he approached a debarking box three men emerged from cover behind heaps of branches. Two of them wore white waistcoats or were ‘in their linen’. As least two had guns. None were in disguise. One of them, wearing a blue or black frock coat, fired a shot which hit Madden in the left side. Madden made a ‘bawl’ turned and ran. At least one more shot was fired and the three assassins ran after him. They left off after a short chase and the severely wounded Madden made his way to the house where he lodged, Patrick Daniel’s, less than a half mile down the hill. Some of the one hundred and sixty six men and women present dispersed but more than a hundred stayed at their work. Nobody could or would identify the assailants. Nobody tried in any way to stop them before or after the shooting. When Martin Rockett was later questioned as to whether he followed them he replied, ‘By gor, I did not’. Some went to see Madden where he was lying at the ‘head of the barn’ at Patrick Daniel’s. His first cousin, Edward Madden, found him there a quarter of an hour later ‘wounded in the belly’. In evidence he said he was sitting at the debarking box when his cousin was shot and implied that it took place behind his back. He went to Kilsheelin for the police. A doctor had been called and Dr. Sloan arrived at Daniel’s at one o’clock. He saw that Madden ‘. . . had a gun-shot wound on his left side and that a large portion of the lungs were protruding. He felt himself in very great danger and he was constantly wishing for death. He was in intense pain and suffering violent paroxysms. He was constantly vomiting, but was in most perfect possession of his reason’.
Next to arrive on the scene at about 2.30 pm. was William Ryan. He was accompanied by Sir Charles O’Donnell, commander of the forces of the district, sub-constable John Hartnett and a number of troops. Edmund Madden did not have much hope for his survival at this stage and had shortly before received the dying rites of the catholic church. He was still lying in the out-house and he said to Ryan, ‘Ah, sir, they have done my job at last’. He then asked Ryan; ‘sir, I hope you will have an eye to my bit of ground and have it settled on my oldest child’? (It was curious that he was lodging at Daniel’s when he had a family and holding near by.) Ryan claimed that he took the following statement from Madden, ‘from his own lips’.
‘Having my affairs in this world settled, and having received the rites of my church from my clergyman, and do not expect to recover from the effects of the wounds I have received on this morning, July 9th, 1847, do make this, my dying declaration, in the presence of God, in whose presence I expect to be very soon. I now sait (sic), that on this morning, Friday, the 9th of July, 1847, I was going to my work, to act as steward in Lord Ormond’s wood of Killurney, about the hour of six o’clock, a.m. I was met by Harry Cody of Ballyknockin, and Philip Cody of Bohermore, and a strange man who I at present do not know, but he was like one Ned Kelly of Kilcash, all of whom lay concealed behind a heap of fire-wood that was made up in said wood for sale, until I came within nine or ten yards of said heap of fire-wood. I then felt myself wounded in the left side, and heard the report of a shot at the same time from behind said heap of wood. I was facing the heap at the time the shot was fired, and I saw the said Harry Cody and Philip Cody and the other man, all of whom were armed with guns. I ran back towards home and the said party followed me and fired two shots after me, neither of which hit me.
I now solemnly declare that the said Harry Cody of Ballyknockin, was the man that fired the shot that wounded me. I now make this, my solemn declaration, in the presence of my Almighty God’.
Witness; John Hartnett, S. C. Endorsed by William Nolan, head constable, 10th July 1847.65
There is some confusion about when Dr Sloan first saw Madden and his two subsequent visits. Later, defence counsel was to claim that Dr Sloan stated he was speaking to Madden an hour after he died! Altogether Sloan’s evidence was very sloppy. However, it would seem that from his and Ryan’s testimony Edmund Madden died of his wounds either on Saturday night the 10th July or the following Sunday morning. (Ryan in a letter to Secretary of State said he ‘lingered until Sunday 11th July’)
The Tipperary Free Press reported the inquest on 14th July. ‘. . . on Monday an inquest was held on his body by William Ryan Esquire, J. P., Coroner, Sir Charles O’Donnell, S. I. (sub-inspector) Fosberry and a most respectable jury who after hearing the evidence returned the following verdict; ‘That the said Edward (sic) Madden came by his death by being wilfully, maliciously and feloniously murdered by Henry (sic) Cody and that Philip Cody with others at present unknown were aiding and abetting’. The other major local paper, The Tipperary Vindicator, put forward the reason that Madden was murdered, in ‘that lawless district in which he resided’, was because he had prosecuted a man named Day at the previous quarter sessions in Carrick-on-Suir. Day had fractured Madden’s skull in a ‘violent assault on him’ and was sentenced to transportation for seven years by the court. Philip Cody was one of the attackers.66 Another fracas had apparently taken place at a race meeting at Anner Castle when Madden was confronted with the accusation of ‘turning stag’ and giving information on the Bohermore Robbers. Philip Cody was again one of the attackers who ‘beat him severely. ‘67
The newspaper article further described Madden as ‘a bold, bad man’, who had been involved in ‘wholesale robberies’, in the area of ‘provisions in transitu’ (sic). William Ryan, when later giving evidence, stated that ‘Madden had given him most important information’ in four or five instances. When asked if he (Ryan) knew if Madden had ever been accused of a crime he replied;’ — No, save and except fighting and taking a gun’. According to Ryan he had not been prosecuted for taking the gun, presumably, because ‘. . . he was one of the parties who gave me [Ryan] the information about it’.68
Five men were transported for that crime. Edmund Madden must have lived with the constant fear of retribution. He was a branded informer responsible for the transportation of six men. Ryan claimed that as a result of the second beating Madden had at the hands of Philip Cody and others ‘he lodged the information before me . . . by which means two gangs of the most notorious robbers and plunderers were broke up at Bohermore and Killurney’. It is difficult to understand why he would have continued to live amongst the friends and relatives of the people he had betrayed. Surely only a great hate, or suicidal pride, or perhaps desperation for work and survival could have kept him in Killurney in those circumstances.
On July 30th, having had little success in arresting the Codys or anybody else for the murder, Ryan wrote to the Secretary of State suggesting ‘the propriety of offering a good reward’. In his reply the Secretary chided Ryan; ‘. . . (as) it appeared that the two principles were known. . .(there) was reason to hope that their arrest might have taken place’. He was told to ‘offer £50-0-0 reward for the arrest of Harry and Philip Cody and proportionately for either of them — payable on conviction and £50-0-0 for such information as will lead to the prosecution and conviction of any of the other parties’.69
It was not surprising that Ryan had no success till then in arresting the Codys given the nature of the people and the district. For example a warrant had been issued on the 5th May 1847 for the arrest of Philip Cody. It was issued by Ryan to S. I. Fosberry who delegated Constable James Nash to carry it out.70 Nash claimed he had gone to look for him several times but without success. He had searched both the Codys’ houses on many occasions, both day and night, but they continued to elude him.
Ryan was under pressure. Dublin Castle were anxious for arrests. Madden was his informer and his death made it more personal to him. He also had ‘good information’ that he was the next to be shot along with two more men who had given information on Philip Cody. He declared his defiance at this threat by inviting them ‘to begin as soon as they liked... [he] was ready for them’.71
The Clonmel stipendary magistrate was indeed very busy and,on this occassion, efficient at his job. In his letter of 30th July to the Castle, he says ‘I can assure his Excellency that I have left nothing undone since the occurrence (?) took place in trying to arrest them and will lose no opportunity in devising means to arrest them’. With troops under O’Donnell they went several to the area and ‘scoured the whole side of the mountain and several houses with a large body of military and police in search of the murderers’.72
On August 24th, Ryan was able to write to the Castle; ‘. . . that about 11 o’clock p.m. on 23rd, I received private information relative to Philip Cody. . . I immediately put myself into communication with the police and made arrangements . . . I sent a party under the command of constables Fitzgerald and Connors and directed them to call on the Kilsheelin Police to accompany them to the locality. I am happy to be able to report that they succeeded in arresting the said Philip Cody exactly in the place (?) and under the circumstances the man gave me the information’. He proceeds to recommend the efficiency of the constables and the ‘arrangements’ they made when they arrived at the place.73 Constable James Nash from Kilsheelin barracks, who was again involved gave this account of the ‘arrangements’; ‘I and a party of police lay in a corn field during the night and at the approach of morning we were all dispersed in different directions. The prisoner was reaping along with other men. They reaped up the field between the two parties of police. One of the police got convenient to him and made a signal that all were to bolt up. A shot was fired and Constable Fitzgerald then caught hold of the prisoner. . . . he gave very severe, bawls when arrested’.74 Ryan finished his letter, ‘I trust I will be able to have Harry Cody, the other person charged with the murder in a few days. ‘
A triumphant Ryan was able to report to the Under Secretary on Sept. 12th, that Harry Cody and another man named Michael Keating had been arrested the day before.75 Again the circumstances were dramatic. Five constables were sent in disguises and again Kilsheelin barracks and Constable Nash assisted. ‘They proceeded to Ballyknockin where, after a long pursuit, they succeeded in arresting the said Harry Cody after having a severe struggle with one of the police’. Sub-constable James Flanagan was the one who grappled with Cody. In evidence he said; ‘I saw him running from what I consider his own house at Ballyknockin, down by the wood. I had been concealed all night in another wood. . . . I saw him running away from the house with a gun in his hand. . . . I was half a mile from him and pursued him. The rest of the police in the wood were all pursuing him. When I came near him he snapped the gun at me and missed fire. That was when I reached him in the kitchen garden, . . . He was in the act of rising the gun again when I took hold of him and knocked him down. We both fell together and he succeeded in getting up and ran away again. . . . I had a pistol and when I caught him again while trying to get over the hedge, he seized the pistol and fired it at me. But I put my hand up and it went over my head’. I took it (the pistol) from him, knocked him down and held him there until the police came up to my assistance’. Flanagan was quite severely beaten in the tussle. Asked if Cody said anything when arrested, Flanagan replied; ‘No more than that he grieved he had not shot me’. The policeman apparently was a slight young man while Harry Cody was ‘a very powerful person’.76 Michael Keating, according to Ryan, the ‘third man’, ‘deliberately went on his knees and took aim twice at Constable Connors but fortunately the gun did not go off.‘77 The magistrate identified the gun as one taken in a robbery near Clonmel some time before.
The prisoners were then taken to Kilsheelin Police barracks. A crowd of about 1,500 people gathered and Ryan was told, by a gentleman driving through the village, that a rescue of Cody and Keating would be attempted. Ryan ‘...immediately got a strong party of military and proceeded within 10 minutes accompanied by Sir Charles O’Donnell and lodged them safely in the County Gaol’. He again praised the police, along with ‘the military and a number of persons who came along the road with them’. A post script excuses the police generously; ‘I do not think the police can possibly report the arrest today as they have been up the whole night and only returned this moment’.78 Evidently he felt they had earned the rest. They had earned more also as the following entry in the records show; ‘Reward to constables for the arrest of Cody and Keating.’79 No figure is given. It should have amounted to £100-0-0 if it did not have to be divided with an informer and if convictions could be secured against both men.
No further mention is made in any contemporary record of the near-riot situation in Kilsheelin. Yet it was a quite extraordinary event that over a thousand people should gather in such a small village so quickly after the arrest of Harry Cody and threaten the authorities. Perhaps further evidence of the status of the Codys as folk heroes in their district?
Little is reported in press or correspondence between the last arrests and the trial in Jan 1848. The widow of Edmund Madden however was very quickly and viciously ostracised by the community of Killurney. So much so that Colonel Sir Charles O’Donnell wrote a ‘memorial’ to the Lord Lieutenant on her behalf in Sept.
To his Excellency The Lord Lieutenant of Ireland.
The Memorial of Mary Madden widow of
the late Edmond Madden, who was
shot lately at Killurney, Slievenaman(sic)
near Clonmel.
Humbly Sheweth.
That two men named Coady are in the
Gaol of Clonmel for the murder . It was
the second attack made on his life. For
information he lodged against bad
characters one of whom was sentenced to
transportation at the last sessions of
Carrick-on-Suir. Since the murder no one
about the neighbourhood would even
speak or come near your very poor
Memorialist so that herself and her
two young children are starving
and the greater objects of commiseration
praying your Excellency’s most bountiful
relief for such unprecedented distress, as
may deem meet And your memorialist will ever pray
Mary Madden (widow)of Killurney,
Care of
Colonel Sir Charles O’Donnell.
Clonmel.
24th September 1847.
It was not possible to discover if the appeal elicited any relief for the unfortunate woman. In Feb. 1848 there were further claims from Mary Madden for relief.
Keating who was arrested with Harry Cody was released in Nov. In view of his attempt to shoot a policeman and Ryan’s assertion that he was the ‘third man’ this is very surprising. There is no further record of him after that. Was Keating in fact the one that Madden called the ‘...strange man who I at present do not know, but he was like one Ned Kelly of Kilcash’? There is no further information in the files regarding a search for another assassin. Nobody at the trial, including the astute Mr Rollestone, raised this very obvious discrepancy either. Scenes at the execution described by newspapers, a book and the recollections of Miss St. John, in the 1937 Folk-lore Study, suggest a possible solution.
The Codys had another brother, John. He was arrested in Dec. 1847 with Patrick Dinn in connection with the murder of Michael Coughlan. Coughlan was murdered on 13th Oct., 1847, at Miltown, near Thorny Bridge, below Killurney. His skull was fractured, supposedly with a spade handle ‘. . . while stooping to rob an eel-weir and for the purpose of preventing said Coughlan from coming forward next day at second sessions to prosecute three men, named John Gorman, Richard Synott and Patrick Dinn. ‘ Two of these men, Gorman and Synott later gave evidence against Cody and Dinn. This caused William Ryan to comment; ‘. . . it is most extraordinary that at the end of two months they come forward against the man who, as they say, murdered the man who was to be a witness against them.‘80
It does not seem to be on record what crime, Gorman, Synott and Dinn were being prosecuted for. The trial of John Cody and Patrick Dinn seems to have been continuously adjourned during 1848. There is no record of John Cody receiving a sentence subsequently. There does not seem to be a direct connection between this and the Madden case, but with hatred and suspicion festering in the neighbourhood its not unlikely that there was. It was remarkable that all three Cody brothers were in jail at the same time accused of murder.
All the people above lived within a quarter of a mile of each other in Killurney and Cooloran.
The Special Commission sat in the main court of Clonmel Court-house in Nelson Street on Wed. Jan. 26, 1848. The court was extremely crowded as the gowned and wigged Judges took their seats on the bench. They were surrounded by ‘the usual Sheriff’s retinue of lacquies[sic] dressed in blue livery’.81 Crown lawyers, the Solicitor-General, the Attorney-General, the Governor of the Gaol of Clonmel and attorneys sat in the well of the court. Constabulary and military stood to their posts. It was likely that apart from officials only ‘jurors of the county’ their friends and members of the press got past ’the host of peelers, with glistening bayonets and muskets in their hands’ probably guarding the entrance.82 Harry and Philip Cody were arraigned before the Special Commission on Wed. 26th Jan. 1848. Their case, called ‘Murder of Edmund Madden, the Queen V. Harry Cody and Philip Cody’, was to be heard before the Lord Chief Justice Baron Pennefeather, Chief Baron Pigot and Chief Baron Richards. Richards was prevented by illness from sitting on Wed and as the prisoners had claimed they were not ready for trial, having no attorney, the case was put forward to Thurs., Jan, 27th.
At ten o’clock on Thurs. the Codys were led into the court and placed in the ‘cage’,a dock enclosed by iron bars. They pleaded not guilty to the indictment for the wilful murder of Edmund Madden. The Times described the prisoners as ‘two hardy and athletic peasants. They were well clothed and appeared to be very indifferent to their perilous position.’83 Henry Cody was described as ‘being about 35’ and Philip, 18 or 19.84
The fullest transcript of the trial available is in Appendix 1.85 A hand-written summary of the trial is given in Appendix II.86 The extra comment is made here for clarity or to add what may be relevant from other sources.
The ‘Freeman’s Journal’ reported that the prisoners did not object to any of the jury; ‘They apparently did not understand the meaning of what his lordship had said to them’.87 Neither of the Codys it seemed were able to read or write and signed documents with their ‘mark’. Although at one stage the deceased Madden was said to be able to read and write it would appear that he also signed his death bed declaration with his ‘mark’.
A shabby business ensued when the attorney, Hughes, who had apparently been briefed by the prisoners, refused to act for them as the court refused to assign and therefore pay him. The Codys had already said that they had no attorney ‘nor the money to pay for one’. On stating that they were unable to employ counsel the court assigned Mr Rollestone, Queens Counsel. It is more than curious that the court saw fit to assign counsel but not assign an attorney to brief the counsel. Rollestone was very reluctant to act without one. ‘The mens’ lives shall not lie at my foot’ he stated. However, having said his bit about Hughes and being given some time to read the ‘informations’ he undertook ‘to act under all those disadvantages’. Mr Hughe’s stock was very low with the court and the press as the Chief Justice reminded him that, . . . ‘he must lay to his serious account his abandonment of these men at the time of their peril.’ The Judge ,addressing Mr Rollestone,said; ‘If you require time to consider the case, or read the information, you shall have it.’(Trial,pp 1-2) The court was delayed for ‘ a few minutes’ whilst the barrister acquainted himself with the files.88 It is fairly obvious from the proceedings that Rollestone, despite the handicaps, conducted a spirited and intelligent defence. The Times described his speech to the jury as ‘able’. The Chief Baron also refers to it as ‘his very able address ‘(Trial,).Given the surprisingly short time that he was allowed to brief himself it was a pretty outstanding performance.
Most of the witnesses to the crime were probably women given that Madden was their overseer and was on the morning of the shooting arriving at the gathering point. But no women were called as witnesses. John Kelly related that ‘a number of women were before and behind me. Another witness cross-examined by Mr Rollestone stated that; ‘Ellen Mc Grath was in the work, but I don’t know whether she was there that day’.89 No comment was passed on the dress of Madden’s three assailants but the description of two of them as being in ‘white waistcoats’ could indicate a type of ‘Whiteboy’ uniform. John Kelly, who gave the most detailed evidence for the Crown did not identify the attackers. He claimed ‘their backs were to me’ and he would not even make a guess as to who they were.
It is indicative of the caution that the authorities exercised towards the Slievenamon area that Sir Charles O’Donnell states in his evidence that he ‘took some cavalry and infantry with him’ to Killurney where Madden lay wounded.
The Times explained the puzzle of the slightly built Flanagan’s overpowering of Harry Cody to the use of the retrieved pistol as a cudgel- ‘I knocked him down with it’.
Mr Rollestone in his address to the jury hints at their being ‘grounds for mistake or the operation of worse motives’. Unfortunately he does not elaborate on his suspicions. He is obviously frustrated in not having the opportunity to cross-examine the chief prosecuting witness-the deceased Madden. His only recourse was to discredit Madden’s character so thoroughly that the almost sacred death-bed declaration would be devalued. He really had little to go on but he uses it well. Madden, he says, ‘had everyman’s hand against him’ and ‘numbers over the whole riding’ could have had ‘a motive for putting him to death’. He points out that even well-intentioned witnesses like Rockett and Sloan gave contradictory evidence on oath and why therefore could Madden not also have been mistaken? How could he identify three men when he was shot by the first man and immediately turned and ran? Would the assassins not have been disguised? Would not the prisoner Harry Cody, ‘a very powerful man’, have been able to catch up with Madden? These and other questions were put by Mr Rollestone in his submission to the jury. He blackened Madden’s character to the limit. He called him a ‘felon’, an ‘informer’ and a ‘man whose character was justly open to imputation.‘ He winds up judiciously with some flattery to the jury and turns necessity into invention by saying, ‘. . . not a single juror has been challenged, because I could not have chosen a jury better qualified by intelligence and integrity . . . ‘
The solicitor-general replied addressing himself mostly to the questions raised by Mr Rollestone. He was followed by the Chief Baron’s charge to the jury which overall was fair and lucid and well presented the complexities of the evidence.
The jury retired. In twenty minutes (some accounts say ten minutes) they returned to the court. It could hardly be said that the intricacies of the case were deeply considered in such a space of time.
The defendants, Harry and Philip Cody were pronounced ‘guilty as charged’.
Philip Cody heard the sentence ‘with much firmness’. Harry’s ‘countenance and manner exhibited the anguish he felt at the moment’.90
The Lord Chief Justice of the Queen’s Bench Division, Baron Pennefeather and Chief Baron Pigot, attended by the High Sheriff, Lord Suirdale, presided over the crowded sitting of the Special Commission on Wed 2nd Feb. 1848.
The ‘Tipperary Vindicator’ described the scene; ‘The Codys were an object of great interest. The elder Cody is a strong powerful, athletic man about 30 years and of a shrewd, fine and rather obstinate cast of features. His younger brother has scarcely reached puberty, is of a clear open and confiding appearance, and apparently a lad of extreme agility. . . . The elder Cody glanced hurriedly about and seemed deeply affected’. John Lonergan of New Inn was also in the ‘cage’ awaiting sentence for his conviction for the murder of the landlord, William Roe, near Cashel.
Baron Pennefeather said that there was, ‘. . . not one mitigating fact, one gleam of humanity [in the cases] ...that should sway him from passing the sentence of death on the prisoners’.91
He reminded the condemned men that, ‘. . . (they would) not be buried in blessed ground but (your) ashes (will). . mingle with the ashes of murderers’ until Judgement Day’.92
Harry and Philip Cody and John Lonergan were sentenced to be publicly hanged at Clonmel Gaol on the 1st March 1848.
‘Go home ,my Lord chief justice;
God be with you all boys’ (Prisoner sentenced to seven years transportation, Clonmel, Jan.1848.)
The sentence of the Codys and others gave rise to a somewhat lukewarm debate on capital punishment. A meeting took place in Dublin in early Feb. 1848, presided over by the Lord Mayor. ’He had convened the meeting at the request of a very respectable deputation that waited upon him a few days ago’. Mr John Reynolds, MP, suggested that execution ’ ...be substituted by transportation and confinement for many crimes...[and] why not go one step further and abolish capital punishment altogether...juries had made lethal mistakes ...’ He then made some unusual and specific recommendations about punishments; ‘Perpetrators should be imprisoned at night, subjected to hard labour during the day and wear the coarsest fabric. The jacket should be well-oiled, with the name, crime and sentence painted on with white. There should be a chain put on the limbs and he should be tied to a ‘log of woodies heavy as his body.Then he should be put to work in his own locality.’
After this indulgence in alternative sadism however he goes on to say that the ‘...meeting[was] called because of sentences of death passed by the Special Commission...’ Referring to the Commission’s trials in Clare, Limerick and Tipperary he insisted ...’that justice was purely and impartially administrated and that there was no packing of juries’.
Reynolds proposed the motion ;’ That death punishments are directly opposed to the principles of morality and to the spirit and letter of the Christian religion and ought therefore to be immediately and for ever abolished in every Christian country’.
A Mr Houghton having described the recent refusal of a hang-man in Clare ‘ to perform the duties of his unholy office’ goes on to plead that ...’the spirit of mercy would touch the hearts of our rulers and induce them to mitigate in some degree the awful punishment which was in store for the unfortunate culprits now lying in the gaols of Limerick and Clonmel’.
The Rev Dr Miley, who was received with rapturous applause, said ; ’...the meeting has for its object the case of the persons now under sentence of death in the gaols of Munster, towards whom the dreaded hour of execution is hastening with rapid strides...[the crime of] murder is a reserved crime[i.e.reserved to the bishop for confession]... But for the persons now under sentence ...[he would not ] say anything which would tend to encourage in their breasts even the most feeble gleam of hope...It is good and merciful, however and meritorious to make the effort [cheers]...but their hopes, their cries, their tears should be raised to the King of Kings.’
Finally a petition based on his proposal was drawn up by John Reynolds and put to the committee.
The secretary however gave the thumbs down! ‘...The committee after the best consideration which they could give the subject had decided on not bringing forward any memorial to be presented to the Lord Lieutenant praying him to alter the sentences of death passed upon the culprits at the late Special Commission.’
The appealA formal judicial appeal was not made. However what is termed an ‘administrative ‘ appeal was . This does not seem to have been reported publicly at the time. At least there is no mention of it in any of the newspapers. A bound parcel of documents, almost certainly unopened since the 1840’s, was discovered recently in the National Archives (Dublin) by the author whilst researching this article. The main documents were in date order; a two page petition on behalf of the Codys’; a four page letter from the Lord Chief Justice, Baron Richards; a 16 page summary of the trial followed by a four page letter by Baron Pigot; a letter from the Under- Secretary at Dublin Castle and a letter from the Governor of Clonmel Gaol. (see Appendices II ).93
The letters from Richards and Pigot and the abstract of the trial, naturally enough, serve to uphold and defend the verdict. They all followed on foot of the petition which, it is not too difficult to guess, was probably drafted by Mr Rollestone (for one thing, it was well drawn up legally and expertly obsequious-the emphasis on the terms ‘unsworn’ and ‘uncorrobarated’ are his from the trial defence address to the jury).The petitioners, naturally enough too, claim ‘...entire and perfect innocence of the crime...’They emphasise that the only evidence against them ‘...was the unsworn and uncorroborated evidence of Edward(sic)94 Madden...’ They had new dirt on Madden too at this stage. It is claimed that his ‘... character was so bad, that he was bound over in Recognizances of £100 and two sureties of £50 each, to keep the peace to all her Majesty’s subjects for 7 years by Wm. H. Riall J. P. the then Lord Mayor of Clonmel.’They asked that the Clerks of Petty Sessions for Clonmel, the Constable at Kilsheelin and Constable Connor of Clonmel be consulted as regards Madden’s ‘bad character’.
In the fifth paragraph there is a surprising new development.The petitioners claim that there is an ‘... unimpeachable witness to prove an Alibi for them on the trial, but owing to their having no Attorney, their Counsel was unaware of that material fact, until after their trial and conviction.’This caused a certain flurry of letter writing. The petition is dated Feb. 14, 1848; a letter from the Under-Secretary to Richards was sent on the 15th (not extant). Richards replied on the 16th. Pigot’s trial summary was compiled on the 17th and his covering letter was sent on the 18th. The under-Secretary’s final letter was dated Feb. 19.95
Pigot refers to the behaviour of the attorney, Hughes as ’distressing’ but not sufficient to indicate that a miscarriage had taken place. He goes on to say that without sufficient grounds being shown to impeach the evidence it would be ‘subversive of the administration of justice...to go against the verdict of a jury.’With regard to the alibi witness, he says that ,’The prisoners do not even state who their witness was, where he resided; what was his condition in life; on what nicety[?] he was proposing to [explain] ...the absence of the prisoners’ from the scene of the murder at the time of its commission.’ Pigot, it is apparent, reluctantly conceded that if clemency was to be shown ‘...a distinction may be made in favour of Philip Cody who is a very young man’.
Baron Richards claimed that ‘...(we) did all in our power to assist the prisoners and assigned Mr Rollestone as counsel; of that gentleman, I am bound to say that in every case in which he acted for the prisoners he displayed the utmost zeal and anxiety; and his great ...experience gave to their defence all that able advocacy could supply...’ He gives the question of the alibi short shrift; ‘...the prisoners had a material witness who was absent, I cannot see how it is possible now to attend to such a suggestion that they could ...prove an alibi.’ He maintains that the jury was well informed as to the fact ‘...that Madden was a man of bad habits.’He concludes thus; ’I can only say that I am satisfied of the guilt of the prisoners.’
Both judges emphasised the competence with which Rollestone defended the prisoners. Neither mentioned the substantial handicap the Counsel was under in being given only a matter of minutes to prepare a defence. At the end of the trial summary Pigot glossed this over by saying that ‘...the trial was not proceeded with until an interval had elapsed, [my italics] for the purpose of enabling Mr Rollestone to peruse the copy of the informations.’ In view of this inadequate preparation time and the speed with which the trial proceeded it seems to be a hollow claim put forward by Pigot that the prisoners had ‘...ample oppurtunity of apprizing their Counsel of the name of a witness if he was in attendance and ready to be [called] for their defence.’
Overall the impression gained is that the two Barons blustered their way towards influencing the Castle to uphold the verdict. They succeded only too well. T.N. Reddington, the Under Secretary, wrote to the governor of Clonmel gaol on Feb. 19;
‘I have to advise that you will acquaint Henry and Philip Cody, prisoners in the Gaol of the Co. Of Tipperary under sentence of Death, that the Lord Lieutenant having given to their case his most serious consideration, has decided that the Law shall take its course.
The documents were wrapped in parchment and neatly but tightly bound in a knotted green ribbon. They were indexed, ’C - 15 - 1848’. Written in red ink in a clerk’s hand, amongst the list of contests, were again the words ; ‘Let the law take its course’.
‘...The melancholy scenes passing at tbe late Special Commission, from a letter inthe Freeman’s Journal, March 7, 1848.
The 1st March 1848, being the first Wednesday of the month, was a fair day in Clonmel. Hundreds of farmers, jobbers and tanglers had been doing business since the early hours. The shop-keepers, traders, stall-holders, tricksters and hucksters were all doing a brisk trade as usual at Munster’s premier monthly street market. Underfoot the streets were thick with animal dung and its smell mingled with those of the hot-food stalls, porter, whisky and sawdust.
As the animals began to clear from the streets thousands of people began to converge on the area around the scaffold and the streets leading to it. The military were out in force; ‘The 47th Regiment and a squadron of the 4th Light Dragoons lined both sides of the drop and were with difficulty controlling the throng’.96
The hangman came out and began to prepare the gallows and the trap.97 He seemed to adopt a frivolous attitude to his tasks. ‘Jack Ketch’(a common pseudonym for hangmen) ‘cut . . a conspicuous and unenviable a figure and outraged public decency by his effrontery and daring. . . he lounged on the trap, soap(ed) the ropes. . and seemed to pride himself on his position’.98 This infuriated the crowd.
‘Ketch’ was harangued by the spectators. The Tipperary Vindicator said that there was ‘a report in circulation that the executioner was, or resembled one of the prosecutors (another source said he bore a ‘striking resemblance to a witness in the trial’). His name was called out by several country people in the crowd who attribute to his evil counsels, society and example, the fatal punishment which the Codys were now about to suffer . It is believed by many that this conviction flashed upon the unhappy elder Cody and that, stung to madness, he attempted the rash set which has no parallel in the record of Tipperary executions.‘99
Harry Cody, ‘with a firm step’, was the first to be led out onto the platform and ‘he addressed the crowd, desiring them, to use his own language, "to pray for them -to pray for them all".100 He spoke to them ‘for about one and a half minutes declaring neither innocence nor guilt. He then retired into the preparation room at the back of the drop’.101
Lonergan and Philip Cody were then brought out, ‘...the caps were fitted and the rope adjusted’. The elder Cody followed and when the hangman attempted to put the rope on his neck Cody seized him and endeavoured to throw him over the railing . Cody, bound tightly around the arms,[his lower arms were free] kicked him in the lower part. Philip Cody took his rope off and held onto the bars.’102 The Times reporter said that ‘. . the crowd cheered and a rescue was feared... Philip Cody tore off his cap and was going to help his brother... they kicked the hangman three times... the Rev Mr Power, RCC, caught Cody’... The brothers were then seized by some soldiers and handcuffed...Fr. Power and the other clergy man attending, Fr. O’Connor, had them brought back into the preparation room and after arguing with them and praying he at length got them to go out quietly and submit to their fate’.103
Lonergan stood all this time (about 30 min.), hooded, on the edge of the platform praying.
The Codys were again brought out to the trap. The hanging ropes were put about their necks and the bolt on the trap pulled. ‘In falling Philip Cody caught the railing with his hand and held on for a second’.104
‘They all died very easy, apparently having had a fall of nearly seven feet’.105
At eleven o’clock on the morning of Wednesday, 1st of March, 1848, three murderers were led out to die in front of Clonmel jail. Around the scaffold were assembled a dense throng of people, townsmen and peasants, men and women; every eye strained on the three gibbets and the three looped cords that swayed in the morning breeze. In all the crowd no voice denied that these men deserved their doom. The crime was black; the evidence clear; the conviction just. And yet even before the dismal procession of the condemned came into view, pitying exclamations might be heard bewailing that they should perish thus "so young." Close by the scaffold glittered the bayonets of two companies of the 47th, and on the flank the drawn sabres of the 4th Light Dragoons. It was plain that the authorities did not choose to trust merely to the strong party of police which occupied the other side to guard against eventualities.
A murmur from the crowd directed attention to a figure which appeared on the scaffold. It was the hangman. He coolly examined the ropes, and looked to the noose of each to see whether it ran smoothly. He tried the drops or traps, and shot the bolts to ascertain wnether they were clear and free. So far the people gazed silently, as these performances were gone through; but wnen they saw him pull out of his pocket a piece of soap or grease and apply it to the ropes, a yell of indignation arose, and he disappeared through the doorway into the jail amidst a storm of execration.
Soon the prison bell began to toll, and as the death-knell sounded, the crowd fell on their knees. Through the doorway leading to the scaffold there emerged the tall figure of Father John Power (the present Catholic Bishop of Waterford), in surplice and soutane; his voice, reciting the office for the dying, reaching to the farthest bound of the hushed multitude. Then came the prisoners - three young men ; two of them brothers; and foul as was their crime, one now could understand the compassion of the women in the crowd. They were really fine-looking young peasants; the eldest could hardly have been twenty-three. The brothers, Henry and Philip Cody, were to be executed for the murder of Laurence[sic] Madden, nine months before; and John Lonergan - "the widow’s son," as he was designated by the witnesses at the trial - for shooting Mr William Roe, J.P.,at Rockwell.The executioner first put the rope around the neck of Lonergan, who asked the people all to pray for him. Henry Cody, who stood at the narrow doorway, saw the process which was so soon to be gone through with himself. As if in answer to Lonergan’s appeal, he cried aloud"Lord Jesus, have mercy on us! Lord, have mercy on him! Lord have mercy on us!" Then the hangman approached the younger Cody, and, having put the cap on his face, began to place the noose on his neck. In so doing, it is thought, he made some observation which reached Henry’s ear. At the sound of the voice he started as if pierced by an arrow. He ceased praying, and was observed to tremble from head to foot. The fact is, it was currently reported, though I believe quite groundlessly, that the man who acted as executioner was the identical Crown witness who had, as the people expressed it, "sworn away the lives "of the hapless brothers. That he marvellously resembled him is, at all events, indubitable; and whether the elder Cody had heard the rumour, or recognised, as he fancied, the voice of the"approver",there is now no knowing; but plainly, he believed this was the man. He sprang at the hang-man, and, with his bound and manacled hands, smote him again and again. Then he seized him, dragged him to the front, and by main force tried to fling him over the railing of the scaffold. It was an awful, a horrible sight! Murderer and hangman gripped in deadly struggle; the latter screaming aloud for mercy and help. Beyond doubt, Cody, even with arms strapped and pinioned, would have succeeded in his deadly purpose had not some of the warders rushed over. The younger brother heard the struggle, and knew something unusual had happened; but , having the cap over his face, he could not see. Father Power, fearful lest he might know what it was , kept resolutely at his side, fervently pouring prayers and exhortations into his ear. At last, Philip heard Henry’s voice in the struggle, and despite all the priest could do, he managed to tear the covering from his face, when lo! he saw his brother and the hangman in frightful encounter. He tried to rush to Henry’s aid, but Father Power flung his arms around him, "Oh! my child, my child! For the sake of that Jeus, your God who gave Himself to his executioners, do not, do not. Oh, think of the Son of God - oh, think you are going to meet your Creator and Judge!"and the good priest, fairly overcome, sobbed aloud. Then the unhappy young man let his head fall on Father Power’s shoulder, and he too cried like a child; "Oh, Henry! Henry! My brother! My brother! Oh God! Oh God!"
Eye-witnesses of that scene speak of it today only with a shudder. The idea of launching into the presence of God men with souls aflame with passion of deadliest hate and vengeance was something dreadful to contemplate; and Father Power appealed to the sheriff to postpone for a while the execution. That gentleman himself, utterly shocked and indeed overcome, would willingly have complied, but there was a legal compulsion then and there to carry out the law; and the brothers, who for a monent had been taken to the rear of the scaffold, were again brought forward. The people, who throughout had given way to the deepest emotion- women crying and wailing, others praying aloud, and several fainting - thought, for a moment, the execution would be put off. When they saw the condemned led out again, a roar of grief and anger rose from the crowd, but at a gesture from Father Power they suddenly hushed, and once more sank on their knees. The three men were held on the traps; the bolts were drawn, and justice was vindicated, under circumstances such as I hope may never be parallelled in our land.
‘I have the honour to report that the extreme penalty of the Law was carried into effect this day at 12 o’clock on Henry Cody and Philip Cody...’ J.Strahan, Governor, Clonmel Gaol, March 1, 1848.
The citizens of Clonmel were also moved to abolitionest tendencies like their Dublin fellows but too late to save the Codys.The press reported a week after the execution as follows ; ’...the good men of Clonmel of all creeds and classes think, with me, for a petition for the abolition of capital punishment has been got up by Samuel Davis Esq. One of the most estimable members of the Society of Friends and in a very brief period has received the signatures of the clergy, gentry, merchants etc. of all religious persuasiion here. It was forwarded on Monday evening to the Hon. Cecil Lawless, MP for the Borough, for presentation to the House of Commons. I hope that its prayer will be conceded and that a recurrence of such disgusting scenes [the hanging of the Codys] will be prevented.’107
Although this petition was too late to be of any use to the unfortunate Codys and Lonergan the botching of their execution at least ensured that subsequent hangings were handled more humanely; if that term can be used in relation to any execution.
The following week two men named Daly and Corboy were hung. ‘On this occasion all the preparations were made inside and the unfortunate men were led out on the trap, the ropes being previously fixed round their necks and the caps drawn over their head;they were for a few moments engaged in prayer, when the fatal bolt was withdrawn. Daly died almost without a struggle, but Corboy suffered intensely and for a period of at least ten minutes; his limbs were distorted and his entire body seemed convulsed.The police and military were in attendance in large numbers, under the command of Sir Charles O’Donnell and Mr Fosberry, S. I. and I never witnessed so great a number of spectators at any former execution- the conduct of many of whom was characterised by a disgraceful levity.’108
The Freeman’s Journal commented on the ‘improvements’ also. ‘The hang-man ‘...[was] the same functionary who cut so conspicious and unenviable a figure at the recent bloody tragedy...on this occasion he acted with more caution and did not outrage public decency by his effrontery or daring...[he] did not unnecessarily exhibit his person on the platform, lounge on the trap, soap the ropes or seem to pride himself on his position...’. It reported also the ‘... disgraceful levity of the crowd’ and that they uttered ’... expressions not of the most uncomplimentary [sic] nature’ to the hangman.109
The over-riding impression to the researcher of this close look at an outrage case and the subsequent trial is that of a can of worms only partially opened. With regard to the trial it is felt that the form of justice was followed rather than the spirit. The impression is given of it having been an elaborate and deadly charade. What happened to the third man? Why was Keating released? Why were the Codys denied an attorney but allowed Counsel? Why did the jury only deliberate for such a short time on what seemed to be complex evidence?What happened to the alibi witness? Was the hangman involved in the trial?Why did the Under Secretary not seem to consider Pigot’s suggestion of commuting Philip Cody’s sentence. With these fundamental questions largely left unanswered it was difficult to get anywhere near the heart of the matter.
An account of legal procedures in Ireland given by a relatively unbiased observer in 1839 may have got closer to the problem.110 He describes the trials he observed as ‘...a lie of forms...a preparation for vengeance...on every side are displayed the prejudices and malevolent passions of which the accused is the object; they may be heard in the accent of the judge, seen in the emotions as well as the passiveness of the jury; the very language of the counsel for the defense reveals them. It is difficult to form an idea of the tone of contempt and insolence in which the members of the Irish bar speak of the people of the lower classes...the judge and jury treat the accused as a kind of idolatrous savage, whose insolence must be subdued, as an enemy that must be destroyed, as a guilty man destined before-hand for punishment...Who will be astonished that in Ireland this hatred of the law is universal?’
Whilst not all of de Beaumont’s subjective impressions may apply eight years later to the Special Commission in Clonmel it would not be unreasonable to suppose that most would. This type of account combined with the less impassioned ‘facts’ revealed in other records can help to complete the complex picture.
This study has not been able to answer very many of the questions raised by the Madden murder. It has answered some but generated more. Further investigation may be able to solve some of the remaining issues. But it has answered enough to prove at least one point - the value of folklore in particular local studies. Where there are good sources available, such as the collections in U.C.D. and increasingly, through the dissemination of the 1937, School Survey, at county libraries, it would be almost insulting to past compilers not to give the fruits of their work serious consideration. In this present essay some of the basic sources have been consulted but it is quite certain that there is much more quite easily available for further research. Perhaps that is one of the attractions (and frustrations) of history - it is a never-ending story.
What has been gratifying in this essay is the substantial verification of the Killurney folklore recorded in the School Survey and particularly in Miss St. John’s submission above on the Madden/Cody affair.The only part of her story that remains to be answered is whether or not someone cried out to the Codys on the scaffold that it was their former comrade Kelly that was their executioner. Whether she meant it literally or in the sense that it was his evidence that hung them it probably can never be verified. What is known however is that something very provocative was said either by the crowd or the hangman to Harry Cody and thus precipitated his violent outburst on the scaffold. It has been shown that the crowd at the hanging did believe that there was at least some connection betweeen the executioner and the condemned men. The Codys’ violent reaction would seem to bear this out.
The case has been made here that folklore was extremely useful in providing an entre to important events that had become obscure and forgotten. Folk memory is a neglected area of history that can be an important guide to exploring local history. It is acknowledged that it can be partisan, inaccurate,selective and variable in quality (i.e. it bears all the hallmarks of other types of history) but the author here asserts thaf if folklore, including that which is currently spoken, is ignored historical studies may be considerably impoverished. Even the prejudices and exaggerations, when they are there in folklore, can be illuminating and often point in a rewarding direction.
Finberg describes ‘local history as the Cinderella among historical studies’ and justifies the ‘microscope’ approach in history as well as the ‘telescope’. Perhaps folklore is the Cinderella among local studies and deserves to have the microscope focused on it more often! It is after all, or at least should be, as much an articulation of the national life (to bend what Finberg said a little) as any other area of history.
(Lapsing into the personal).
Maybe all this above is a bit pompous coming from very much an amateur historian who has dabbled at the academic pool for a matter of a few weeks. But encouragement is taken (even if not intended in this way) from Raymond Gillespie’s dictum - ‘Local history is too important to be left to the professionals.’ Even with this splendid warcry on my lips however I will, (to bend what he says a little too) ’...begin to take seriously the complex problems involved in the writing of local history.’111 It's hard work!