An Irish Diary

Seconds Away – An Irishman’s Diary about the once-legal remedy of ‘trial by combat’

The year was 1583, the venue Dublin Castle’s inner courtyard

Frank McNally's face
Frank McNally
Fri Apr 20 2018 - 00:01

The concept of taking the law into your own hands is now just a metaphor for extrajudicial revenge. But it used to have a more literal meaning in British courts, as illustrated by a case that ended 200 years ago today.

An Englishman called Thornton had been cleared of the rape and murder of one Mary Ashford after a dance they had been seen leaving together. Despite the acquittal, local opinion remained convinced of his guilt. So did Ashford's brother, who appealed, causing Thornton to be rearrested, whereupon the latter invoked a medieval law, unused for centuries but still on the statute books, and demanded "trial by combat". Brought to Britain by the Normans, this was a once-common remedy on mainland Europe for deciding cases where all other evidence was insufficient. Essentially it was a legalised duel, in which litigants fought under court supervision. Provided there was no chicanery, it was assumed that the ultimate judge – God – would ensure the right outcome.

In the event, the case of April 1818 did not go to those lengths.

Ashford declined the offer of combat. So Thornton walked, again, although he had to leave the country eventually. Soon afterwards, the ancient law was abolished.

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Three years earlier, in Dublin, something similar had happened in another murder case, O'Reilly v Clancy (1815).

There, again, the defendant claimed the right to “wager by battle”, as it was also known, until somehow being persuaded to plead guilty instead.

But so far as anyone seems to know, it had also been in Dublin, more than two centuries before the Clancy case, that a trial by combat was last pursued to its ultimate conclusion in these islands. The year was 1583, the venue Dublin Castle’s inner courtyard. A dispute had arisen between two members of a Gaelic clan, the O’Conors of Uí Failge, over the circumstances in which a number of other men had died.

Conor MacCormac O’Conor, to whose protection the victims were entitled, accused Teige MacGillpatrick O’Conor of murder. Teige claimed the dead men had consorted with rebels, making them rebels too.

No other recourse being apparent, the rivals settled their differences, feudal style, before a packed attendance at the castle, including the well-named Lord Justice, Henry Wallop.

The event was conducted with great ceremony. On the appointed date, the litigants sat on stools at either end of the courtyard. Then they stripped to the waist, shook each other’s hands, and swore on the Bible that they would not thwart divine judgement with “enchantment, sorcery, or witchcraft”.

After that they fought with swords, "far into the day", according to Cox's Hibernia Anglicana, until at last, "the appellant made a mighty stroke at the respondent who, side-stepping, gave a swirl to his sword and at one fell blow swept off the appellant's head".

The victor presented the head to the bench as proof of verdict, although not everyone was convinced God had made the right decision. State papers record that Teige had also been hurt, “but not mortally, the more was the pity”.

The ancient seat of the O’Conors, by the way, was Croghan in modern-day north Offaly. And this was not the first occasion that area had resorted to rough justice.

Among the National Museum’s so-called “Bog Bodies”, the most intriguing is “Old Croghan Man”, a headless torso from the Iron Age found in 2003.

His manicured finger-nails, stature, and even his mutilated nipples tend to suggest he was a member of the local nobility, deposed or sacrificed.

Getting back to trial by combat, it gradually fell from whatever repute it had once enjoyed here, with the 18th-century Irish MP Edmund Burke being among those who campaigned for its abolition.

But of course, during Burke's lifetime and later, the related practice of duelling was still much resorted to by the upper orders. Although without the blessing of law, it was notoriously popular among lawyers, as witnessed by the Irish Code Duello, a rulebook drawn up during the Clonmel summer assizes of 1777. Indeed, the same year that legal trial by combat last threatened to occur in Ireland, 1815, no less a person than Daniel O'Connell participated in a fatal duel.

It was more-or-less forced upon him by his opponent, John D’Esterre, who fired first on the occasion and missed.

And by all accounts, O’Connell did not mean to kill D’Esterre. But kill him he did.

For the rest of his life, ashamed of the hand into which he had taken the law, O’Connell always wore a glove on it in church, or when passing the widow’s house.

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