1822 Markham -Arrest and Trial

 

Edward/Edmund Markham and unrest in Co Limerick.

                 “It can’t be helped now!” was the laconic reply from the young ploughman.^[1] Nineteen year old Edmund Markham was standing outside his rural County Limerick cottage in the mid-winter pre-dawn, responding to the rebuke from Thomas McEnnis, a private of the Third Dragoons, that “he was a fool to bring such desolation and trouble upon himself.” ^[2]  Markham had been arrested and was later to be charged under the Irish Insurrection Act 1822 with “having in his possession at Mt Brown on 28^th Ult one case of pistols which he denied possession of and for being an idle and disorderly person”.^[3] In the Tholsel (Courthouse), in Limerick City, later that same day, Markham was further rebuked, this time by the presiding Magistrate, Mr Sergeant Torrens:

“When the Clerk of the Peace read the indictment, the prisoner desired he should read it again, which was done. He again desired a repetition in a more audible voice, seemed to smile and appeared to have no concern as to his condition. The Court interposed and remonstrated with the prisoner as to his assumed levity. Sergeant Torrens then repeated the words of the indictment to the prisoner to which he replied that he was not idle or disorderly, that the arms were certainly found in his house but that no charge was ever before preferred against him.” ^[4]

 

   The Act had been promulgated only the previous evening, February 28, and within hours, at three in the morning of March 1, a unit of the Third Dragoons had arrived at Markham’s house at Mount Brown in the Parish of Croagh near Rathkeale. Private McEnnis stated in evidence that he “repaired with others on the night of the 28th of February in search of arms in the neighbourhood of Mount Brown accompanied by Mr. Brown a Magistrate, and demanded arms at the house of the prisoner who said that he had no arms in his possession. Mr. Brown made a diligent search after the soldiers and found in the bottom of the cupboard a brace of pistols one of which was silver tipped, the other was of a large size and seemingly a military one.” ^[5]

 

Under the terms of the Act, a total curfew was imposed from sunset to sunrise, persons found away from home at night or in possession of arms and ammunition, as well as persons tendering oaths, unlawful assembly, and posting or delivering a threatening notice were liable to be transported for seven years. Persons arrested on these charges were to be brought for summary trial before courts of general sessions, presided over by a barrister assisted by as many magistrates as could be persuaded to attend. Trial by jury was suspended. ^[6]

 

   Was Edmund’s arrest a set-up? Firstly, the authorities apparently selected (pre-selected?) him for attention within hours of promulgation of the Act. The soldiers conducted their search but found no pistols. Then the local magistrate and landholder, likely over the very land occupied by the prisoner, entered the house alone, conducted his ‘diligent’ search and returned holding two pistols? The (London) TIMES, only a few days earlier, had already expressed serious concern at the passing through the British Parliament of the Insurrection Act, highlighting a number of issues, one of which was:

• • “the appointment of local Magistrates from among these very men, whether clergy, laity, gentlemen, or middlemen, …….to try and sentence their own personal enemies.” ^[7]
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While John Brown was not the presiding Magistrate in this case, being only a witness, though one who conducted his search in an official capacity, he fits within the group described. Thus it is the TIMES, almost two centuries before this writer does so, which draws attention to a possible (likely) miscarriage of justice in Insurrection Act cases. Was this a prime example? Despite the fact that Markham did not himself plead innocence, nor conspiracy, (at least not until later in Cork prior to embarkation) it is very doubtful that a modern day court would allow the prosecution to proceed, given the circumstances described above. But this was 1822.

 

   The case proceeded, and John Brown duly gave his evidence:

“John S. Brown Jr. Esquire, a magistrate, said that on the night of the 28th he proceeded to the party of the 42nd and some of the police which amounted to about 19 men. They searched some of the houses in the neighbourhood of Mount Brown which is distant from Rathkeale about 3 miles. At about 3 o’clock in the morning he proceeded to the prisoner’s house. One of the soldiers searched the house after demanding arms but could find none. Witness examined after the soldiers and found concealed in the lower part of the cupboard a large pistol mounted with brass and one of a smaller size tipped with silver both in good preservation.”

 

The prosecution closed and the prisoner had no defence. He was found Guilty. Sergeant Torrens then: “addressed Markham in a most impressive manner upon the nature of his offence and told him that this very moment, even while the sentence of the Court was pronouncing upon him, preparations were making for taking him out of the country. He was sentenced to transportation… placed (with seven other men) on two carts at the courthouse door and a detachment of the 43rd Light Infantry, being in readiness, they were instantly forwarded to Charleville on their way to Cork to be put on board the hulks for transportation agreeable to sentence.” ^[8]

 

   It was not the role of Magistrates to decide which Colony would receive particular transportees, or even whether those convicted would eventually be transported out of Ireland at all. (None of the other seven men in the “two carts”  finished up in NSW, though analysis of statistics suggests that they were transported out of Ireland). But Sergeant Torrens clearly had in mind a personal view that the Colony of New South Wales provided too easy a life. Next day, when sentencing  one Thomas Shaughnessy, whose name will appear again and again throughout Edmund Markham’s life, he said:

“that a report had been currently circulated that New South Wales was a comfortable place to be transported to, but the Prisoner would find, and the Public may be assured, that an Island not so comfortable would be selected by the Government.” ^[9] 

His assurances counted for little, at least in respect of Markham and Shaughnessy. Happily, (for their many descendants), they were destined for the Colony of New South Wales.

 

   What brought Edmund Markham (recorded as ‘Edward’ in Irish and New South Wales official records) to this sorry state of incarceration? What was the situation in Ireland, particularly, County Limerick and more precisely the rural areas of the County, which led to the passing of the Insurrection Act 1822 at Westminster on 11 April and its promulgation in respect of Limerick, on 28 February? 

“In the 1760s, Irish agriculture passed from tillage to pasturage, with the result that the landlords began to fence in the commons. This enclosure of common land affronted the peasants who considered it their right to use the commons; and, as a basic fact of existence, the peasants did not see how they could eke out a living if access to the commons were denied them. So they banded together and, under cover of darkness, threw down the fences. This activity accounted for the name “Levellers” given to them. In the course of time they acquired a variety of titles; for example, those who wore white shirts on a night raid came to be called Whiteboys. And, as time went on, they extended their activities to the settlement of other grievances as well, such as the eviction from one’s land; low wages; and especially the imposition of the hated church tithes. (It was odious for an overwhemingly Catholic peasantry to have to pay tithes to the Established Church. The Presbyterians in the north of Ireland also had to pay this tithe, and they were similarly resentful of the arrangement.) The secret society members beat up landlords and the proctors who collected the tithes. They meted out brutal punishment, and they themselves were brutally dealt with when caught.” ^[10]

 

   But a further reason for the unrest in the early 1820s was the serious famine of the time. December, 1821 saw The TIMES reporting in late December that

“the Dublin papers … give a melancholy picture of the state of Ireland. Natural, seem now to conspire with political, causes to desolate that ill-fated country. The late heavy rains have produced the most ruinous consequences upon the potato crops; and typhus, the usual result of any extraordinary scarcity in an impoverished country, has made its appearance.” ^[11]

 

Major Wilcocks, the local military commander wrote on 23 January 1822 of “distress among the poorer classes and unprecedented price of potatoes.” ^[12] Three weeks earlier, T Lloyd had noted “ the distress of the poorer class in this neighbourhood is beyond description. The severe weather has caused the loss of almost all their turf and they are cutting down their orchards etc for fuel.” ^[13] The Dublin papers noted that

“we have heard from several instances of wretched families driven to the necessity of killing their only cow for food, from the cries of their starving children, and having no other means of appeasing hunger.  The typhus fever, which is generally the companion of famine, has made its appearance in several parts of the country.” ^[14]

 

There is much evidence that many convictions – and transportations – in this period were for theft of food, i.e. sheep or cattle. The TIMES, criticising the emphasis on ‘measures of oppression and chastisement’ in the Act, recognised “distress (as) the admitted cause of the malady,” asked “why does not some distinct recommendation of relief form part of the prospective cure?” ^[15]

 

   In fact, the whole district was almost wholly agricultural, the only manufacturing being linen on a small scale. There was a flour mill, giving employment to 100 people. This situation was a reflection of the situation across all of Ireland in the first half of the nineteenth century. Under pressure from English merchants and manufacturers, the British Parliament had so restricted  Irish trade in the eighteenth century that the country was forced to rely on agriculture. The landlords thus found themselves with a virtual monopoly on the means of livelihood. The French traveller, Gustave de Beaumont wrote in 1839 ” The Catholic of Ireland finds only one profession within his reach, the culture of the soil”.

 

   As if to reinforce  the conclusions that distress and hunger were the reasons for the lawlessness in Ireland, the Lord Lieutenant of Ireland stated later that “the general character of the Irish convicts differs widely from that of other convicts. Their crimes for the most part are not the result of habitual profligacy and vicious contamination. They are not hardened offenders……nor are they usually found associated in gangs under experienced leaders for the commission of great and well-planned crimes. The offences of the Irish convicts are usually thefts to which they are often driven by distress.” ^[16]

 

    Many convictions under the Act were for merely breaking curfews, (though many would have been up to no good!). Hunger, poverty and distress certainly, but there had also been much tumult and disturbance around Edmund Markham’s home district of Rathkeale and surrounding settlements of Croagh, Ballylin and Mt Brown. For example, the murder late in 1821 of Major Wilcock’s predecessor, Major Going, was an indication of the disturbed state of the countryside. The TIMES reported that Going was “attacked by 4 men, 3 dressed in white, fourth was not disguised. His body was made a riddle of. He had a case of pistols which was taken by the murderers. They did not take his money.” It was in the grounds of the Rathkeale Courthouse that Major Going had earlier ordered men to be buried without coffins in quicklime. This cruel act so stirred up the people in the district that nine of them took an oath to take his life. Three months later, they got their opportunity, and riddled him with bullets, on his way from Cappagh to Rathkeale.^[17]

 

Major Going was seen by many as a participant in promoting the Orange order in the County among the police and military. Major Wilcox, as the assassinated Going’s successor, was to testify that his first duty as the Inspector for the Rathkeale area was to purge the police force of Orangemen. Certainly the reduction in violence, following Willcox assuming command, indicates that the police may well have been the agents of provocation in this outbreak of violence.^[18] Next year, a James Fitzgibbon was tried with a Patrick Neville for murdering Richard Going and in spite of being ably defended by Daniel O’Connell, they were convicted and executed.^[19] Despite his family connections with other Nevilles and Fitzgibbons from Co Limerick in later years in New South Wales, we can assume Edmund Markham had no connection with this incident.

 

   Military and police reports of the Irish “outrages” leading up to the February legislation included:

January 1822. “T. Lloyd: The spirit of the peasantry is hourly becoming worse. The only chance of averting an explosion is to immediately send down large military forces. Details of attacks on small bodies of soldiers. Robbery is rife under pretence of levying funds for ‘the cause’.

7th February, 1822.  This district has become much disturbed since the removal of the Troops, outrages frequent and daring. The insurgents appear to have assumed more confidence, and are much bolder in their attacks for arms than even heretofore – they proceed in small parties through the fields so that they elude the vigilance of our patrols.

18th February, 1822.   Magistrates to Marquess Wellesley, Governor-General We consider the County of Limerick to be in a state of disturbance. Various attacks lately made both by day and by night by armed insurgents upon the houses of the inhabitants.

11 February, 1822.. Raids for arms at home of Mr Hewson, five miles from Rathkeale. Gallant Mr Peppard and sons repelled attack on house.

13 February, 1822. Barn and small quantity of corn burnt last night near Rathkeale.

22nd February 1822. House of Mr Rose, flour miller, attacked and entered by armed Whiteboys demanded arms and ammunition. Apprehended with the property. Patrick Cleary and Owen Sullivan are notorious leaders of the Whiteboys. William Kelly.” ^[20]

 

    On the 25th February, Major Wilcocks reported that a private meeting of magistrates was to be held the next day to consult on the best measures to be pursued under the Insurrection law. Opinion was that there is now no intention of an immediate rising in this County. He said the outrages for the last week appear to be all relative to land and rents – agrarian dispute. He did not pass up the opportunity to slip into his report a plea that “my Chief Clerk is ill and I have not a moment to myself. I seldom have 6 hours in bed – and not half an hour in the day unoccupied”!

 

 The Magistrates’ meeting was duly held, and consistent with the provisions of the Insurrection Act, which left the timing of promulgation and commencement of “Special Sessions” to specific districts, passed the resolution for more troops “for the purpose of carrying out the provisions of the Insurrection Act”. —26th February, 1822 Magistrates, Courthouse of Rathkeale – Resolution:

1^st: We lament the state that the Conspiracy which has existed for some

      months in this County, has recently shown itself in Insurrection, and has

      produced outrages of a nature the most revolting and abominable.

2^nd: As we have by experience learned this melancholy lesson, that neither moderation nor forebearance can procure safety for the lives and properties of loyal men, we do hereby pledge ourselves upon our honor as Gentlemen and Magistrates to use every exertion in our power to bring to punishment the perpetrators of these horrid crimes.

3^rd: We lament to state that the laudable and unremitting exhortations of the Ministers of their own religion have failed to produce any salutary effect on the hearts of these debased and deluded men.

4^th: Persons of the lowest class destitute of education and would be ludicrous and despicable but for their numbers and their atrocities. ^[21]

 

The proposed action was an extension of measures taken over previous years to cope with unrest. In the period 1800 – 1815, habeas corpus was almost continuously suspended; the Insurrection Act of 1796 was re-imposed in 1802-3, 1807-9, and 1814. There was martial law from 1803-5; there were about fourteen different Coercion Acts during this decade and a half; new enactments gave landlords terrible powers of confiscation and oppression.^[22]

 

   Thus, for Limerick, the Act came into being two days later, and remained so for two years, during which period 813 men were arrested in the county, of whom 173 were convicted. Moreover, nearly four fifths of those arrested in the County under the Act were acquitted.^[23] (The latter category included a Timothy Markham and a Patrick Markham arrested together, jailed on 8 January, 1824, acquitted and released eight days later.^[24] It will be for speculation later in this story whether these were brothers of Edmund.) The Dublin Evening Post reported that local Judge Blacker commented that

• • “the Insurrection Act suspended a beautiful part of the constitution, when it made a man’s absence from his house at night prima facie evidence of his guilt. One’s house was not one’s castle, for magistrates could enter it; a man could not go where he pleased at night and he could be transported for riot, unlawful assembly, concealing arms and delivering threatening notices.” ^[25]
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    As noted above, Edmund Markham was promptly targeted, arrested, tried – without jury – and sentenced – without appeal – to transportation, (and all that within a number of hours.) His name appears on the top of all of the Returns submitted to the various authorities.^[26] But he was not the only one arrested and tried on the first day. 15 others were tried on 1 March, who ”did tumultuously and unlawfully assemble on 28^th February Ult at Old Abbey (near Shanagolden) in the daytime and against the peace and the statute.” Major Wilcocks, in giving evidence in that case, “stated that …….. 300 appeared … that he had delayed taking any steps against the insurgents knowing that in a few days the Insurrection Act would be in force and that his powers would be enlarged…” ^[27]

 

Edmund Markham was sent immediately to be held in Cork for some three months, being readied for transportation to  ‘Botany Bay’. In the days that followed, the Insurrection Act hearings proceeded apace, The record provides examples of the various activities which led to conviction under the Act. Each followed Markham from the Rathkeale area to Cork and eventually were transported with him:

Thomas Shaughnessy was convicted for being idle and disorderly persons under the Act, having been out of his home at half past ten o’clock on the night of the 28th ult (when an incident relating to the burning of a house at Adare occurred);

James Roche for having arms and ammunition on his person in a street of Rathkeale after denial and also a threatening notice signed General Rock;

William Nix for being found out upon a highway after hours, and

David Donovan for being absent from his own home.^[28]

 

In his Return dated 4 April, 1822, Joseph Tuohy, Clerk of the Peace listed the names of  51 men were convicted under the Insurrection Act in County Limerick in its first month of operation. Edmund Markham was at the top of the List.

 

While it is likely that all of the fifty one convicted in Co Limerick in March 1822, were sent to Cork (Cobh) for transportation, not all were eventually sent to New South Wales. Some may have had their sentences cancelled or varied – as was often the case. Only twenty nine left on the Mangles, the ship on which Edmund Markham was transported.

 

There was at the time a “Convict Depot” in Cork where convicts from various areas of Ireland were held pending being placed on the Transports. On May 8, 1822, forty nine prisoners, all convicted under the Insurrection Act, were transferred from the Convict Depot to the ‘Waterloo Steam Packet’ in Cork Harbour and sent down to Cove, some 20 miles away, there to go on board the transport ship.^[29]

 

The “Mangles” had been lying at Cove since 28 April, 1822  and had been taking on convicts since that time. The Ship’s Surgeon had the difficult task of identifying those without any illness. He wrote on 2 June, 1822 that :

• • “Several of the convicts are complaining of various ailments, some of which appear to be real and others feigned, with a view of being sent back to the Convict Depot”.^[30]

Only one man, described by the Surgeon as “an old infirm man” achieved this. He was ‘discharged to the Convict Depot on 2 June’. ^[31]

The record of patients does not include Edmund Markham’s name, neither prior to nor during the voyage.

 

In June, 1822, some time before the late June departure of the “Mangles”, Edmund Markham, Thomas Shaughnessy, (but not John Neville, the other Rathkeale/Croagh ‘neighbour’ to remain close in later life in the Colony) and 28 others, all convicted in County Limerick under the Insurrection Act, petitioned Lord Wellesley, Lord Lieutenant of Ireland , claiming that they were “not guilty of any Depradations in the County as will appear to Your Excellency by their Committals and also by an enquiry of the County magistrates.” ^[32] The document, listing the names of all the petitioners went on:

• • “Your Excellency’s petitioners were convicted more by accident than otherwise. May it please your Excellency to grant petitioners your Most Gracious Pardon and not suffer them to be banished from their native Country and from their poor distressed families. Petitioners will take the Oath of Allegiance and become Loyal Subjects to his Majesty’s subjects forever more and themselves to suppress any mutiny if the like should happen in future and if any arms has (sic) been concealed in the County that they will have them given up to their neighbouring Magistrates. Petitioners will enter any bail requisite for their future conduct and Good behaviour towards all his Majesty’s subjects.
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Lord Wellesley was obviously unmoved by the bid, merely noting in the margin, “Refer to the Judge…. ‘W’ ”. ^[33]  So it failed, although two of the thirty were not on the “MANGLES” when she left Cove on 21 June, 1822.

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