Sunday 28 April 2013

more Colclough vs. Colclough


Continued from the previous post;
The basis of Patrick Sarsfield Colclough's case was that his grandparents were not legally married at the birth of their two eldest sons, Caesar and the reverend Dudley. Adam Colclough married Mary Anne Byrne as noted previously, the case was that she was catholic and remained catholic until before the birth of her son Sarsfield when she became protestant and was married by a protestant minister...

So read some extracts now from our friend Beauchamp with some contemporaneous newspaper accounts, I would say bear in mind that to the victor the spoils, and that Beauchamp was a strong friend of the Rossborough's, also bear in mind the pressure Patrick Sarsfield would have been under if he was basing his case on needing to prove that his granny was 'living in sin'!

Extract from the defendants (the Rossborough Colcloughs) brief.

Four writs of summons and plaint in ejectment have issued at suit of the plaintiffs against the defendants, one to recover the Manor, House and Demesne of Tintern Abbey, the second to recover the general lands forming the Tintern Estate, situated in the County Wexford, the third to recover that portion of the Estate situated in County Carlow, the fourth to recover the lands of Ballydorough, in the County of Wexford, of which the defendants are not in possession, but in the first instance the plaintiffs are only to try one of these actions as to the lands comprised in the summons and plaint.
The Plaintiff, Patrick Sarsfield Colclough, is the heir male of the late Caesar Colclough of Tintern Abbey, and of the late Sir Vesey Colclough, who was father of Caesar, and the defendant Mrs Rossborough Colclough, is the heiress at law of same parties, and as such heiress at law of said Caesar Colclough and of Sir Vesey Colclough, and also as heiress at law of her father, Chief Justice Caesar Colclough, who was devisee of Sir Vesey Colclough, as hereafter mentioned, is in possession of and claims to be owner of the estates in question. The Plaintiff Patrick Sarsfield Colclough, and defendant Mary Grey Wentworth Rossborough Colclough, are respectively the heir male and heiress at law of Adam Colclough formerly of Duffry Hall, who was the common ancestor of both. The defendants have no certain knowledge of the grounds on which the plaintiff rests his claim. There is no reasonable doubt but that the plaintiff has instituted these proceedings to extort money from defendants, nevertheless it being incumbent on defendants to defend their title, they state that title as follows, here the defendants prduced the titles, deeds and wills. JC.


Extracted from Newspaper reports May the 2nd and 3rd 1864.
Court of Exchequer, Saturday. Before the Chief Baron, and Barons Fitzgerald and Hughes. Colclough v Colclough

Mr. Sergeant Sullivan, with whom was Mr. O’Hagan, moved on behalf of the plaintiff, Patrick Sarsfield Colclough, to enlarge the rule for non suit. The action was brought to recover possession of the Tintern Abbey Estates in the County of Wexford, which the plaintiff claims as heir. The case went down for trial at the last Wexford Assizes. On the morning fixed for the trial, an application was made for a postponement on behalf of the plaintiff, but the learned Judge, Mr. Justice O'Brien, refused the motion with costs. A rule to nonsuit the plaintiff if he did not proceed to trial at the last Assizes had been obtained in 1863. It therefore became necessary to make the present application to enlarge that rule in order to enable the plaintiff to go to trial at the next Assizes. Mr. Brewster Q.C. was heard on behalf of the defendant against the motion, and Mr. J.E. Walsh followed on the same side. The Court reserved judgment (which was eventually given for the plaintiff).


Extracted from “Wexford Independent”, Saturday 25th Feby,1865.
Wexford Spring Assizes, Record Court, Thursday 23rd Feby, 1865. The Right Honourable Baron Hughes took his seat on the Bench at 10 o’Clock this morning, Colclough v Colclough.
The following Special jury were sworn in to try this case. John Whitney (foreman), John Goodall, Harry Goodison, Clement Archer, Mathew Kinch, William Gibson, Richard F. Borbridge, John G Hatton, Henry Braddell Croker, Montifort Westropp Dawson, Peter Rowe, and Luke Whitney, Mr. Joseph J. Green opened the pleadings, (stating that the plaintiffs in this case, were Patrick Sarsfield Colclough and others, and the defendants were John T.R. Colclough, and Mary G.W.R. Colclough his wife, and that the action was one of ejectment on the title to recover Tintern Abbey Estates).
Mr. Hemphill Q.C. then said- My Lord and Gentlemen...But I am sure, with you whom I address, if I and my learned colleagues can prove to you the justice of the plaintiffs’ claim, neither the exquisite tact and genius of Mr. Brewster, nor the overwhelming eloquence of Mr. Whiteside will avail with you. I now feel obliged to go into the history of this ancient family. You have all heard of Tintern Abbey, of its broad appanages, and that it formerly was a religious house, which shares the fate of many similar establishments in the reign of Elizabeth. She gave it to Sir Anthony Colclough who was then in this Country. It will now behove to run through the history of the family, for it will appear by facts I have to state, that there was an extraordinary anxiety in this family to transmit those Estates in the lineal male line (this feeling may account for the fact that even the most legally learned members of the family appears to have considered the male heir, was as a matter of course, heir at law.) There was a weakness which seemed to have governed the young people of this family, as well as others, marrying at will or pleasure, all pleasing themselves. I cannot say how it was that this propensity originated, whether it was from the old vigour of an ancient family, or from that of youth- we find that Vesey eloped with a young lady, a Miss Grogan, and they were married. They went off to Portpatrick, a short way to that Court of Hymen Gretnagreen. The offspring of that Scotch marriage leads to the question now before the Courts, and the facts are in many passages stranger than story. That son died, some 20 years ago, with whose widow, the present defendant had so much and so well known litigation. The Counsel would perhaps tell them that the blood of the Colclough's was ever warm, and led to the fatal termination of John’s life. I do not wish in any way to disparage the lady who is the wife of the defendant in this case, for even, if I did attempt to do so, I am sure it would have no effect on this Court, nor on the Gentlemen I have the honor to address. The burial place of the Colclough (Duffry Hall) family is, I believe Templeshambo, and there is a singular absence of any records of the family on the tombstones and mural inscriptions. We can, however, produce a class of evidence which is equally admissible, and no less persuasive, the testimony of declarations made by the deceased members of the family. If the jury believe such evidence comes from pure sources, and not exaggerated, it may be regarded as reliable, for this reason that the statements of families about what concerns them closely may be regarded as true. If you gentleman, are convinced that Patrick Sarsfield Colclough is the heir at law, you will I am sure, as you are bound to do give a verdict in his favour utterly regardless of consequences. Your verdict will not be swayed by the eloquence of the bar, but by the weight of the evidence- I feel confident that you will give your verdict in favour of my client, truth is powerful and will prevail, and justice is omnipotent. I leave the case in your hands. Witnesses having been examined in support of the plaintiffs’ Case (which was, in a few words, that the elder sons of Adam Colclough, viz. Chief Justice Caesar Colclough and the Rev. Dudley Colclough were born out of wedlock, that Sarsfield was born after his parents marriage, and that the plaintiff, being Sarsfield’s son, was heir at law).

Mr. Brewster Q.C. addressed the Court (it is much to be regretted that space will not permit a verbatim Copy of Counsel’s exhaustive and convincing statement for the defendants case.) My learned friend on the other side, referred to 1719, as to the legitimacy to the heirship of the property of Tintern Abbey. He says that his client is the only one, and according to what Mr.Mooney, the Solicitor for the plaintiff, has set forth for you, would any one think that that Gentleman was going to bring any thing else, anything hostile to the interests of the family of his client. He sets forth for instruction of Counsel that the ancestors of my client carried away a lady, and that they lived for years in concubinage, until just before the birth of the father of Patrick Colclough, just 18 years after the time the father and mother had eloped. At that time it should be remembered that the Irish penal laws were in force. She, the wife of Mr.Colclough was a Roman Catholic it was said. Mr. Fitzpatrick has told you so. How he came by that knowledge I know not – he got many certain lectures, and they must, as we may suppose, have been given whilst he was asleep. I must call on you gentlemen to make up your minds about the marriage which took place, or is said to have taken place 119 years ago, the children of which were universally acknowledged as holding rank and credits, and I now ask, can a jury of the County of Wexford, tell your lordships to the contrary? Oh, but Mr Fitzpatrick tells you that one man a Colclough, was married to a Miss Byrne, a Roman Catholic – was only married
by a Popish Priest, and that not until as far back from the elopement as the year 1773. The second cardinal point is, whether Chief Justice Colclough was living with a woman, described in Madam Gaultier’s evidence as a servant maid, and that Mrs Rossborough Colclough was a low woman, that no body would know. He would dispel this imputation by the most indisputable testimony. It was sworn on the other side that Mrs. Byrne vented a volume of Blasphemy and cursing on her daughter, Miss Byrne. Can this be credited? If a formal marriage according to the law was necessary, could she not have got them married? Why at the very time they speak of the young couple they were actually living with Caesar Colclough. Is there one of you on that jury would allow your children to enter a house where a young couple were living in a state of open contumacy and illicit intercourse? It is preposterous, and the whole story is fabricated to trump up their wretched case. Colonel Caesar contracted a second marriage with a lady named Henrietta Vesey. She was the mother of Adam, and not only survived the running away of the young couple, but she was at that time living with her husband, living at Duffry Hall when the young couple came home. She received these ‘fugitives’ and continued to show them every countenance and favour. The third son was Adam, the grandfather of the present plaintiff, and likewise the grandfather of my client here. Having shewn you that Caesar was seized in fee of the estate, there is no question that if the father of my client was the eldest son of Adam then my client must be Caesar's heir. My learned friend on the other side has talked of the blood of the Colcloughs, why they are all of the blood of the Colcloughs. Everyone knows that the daughter of an eldest son, is entitled before a younger son, or the son of a younger son. Now that the proofs of my clients heirship, which I shall offer to you, are not the talk of two old women, not what may have been told to a gentleman in the course of a curtain lecture, or what that gentleman may have dreamed after undergoing such an infliction. They are indisputable proofs, founded upon documentary evidence that Adam Colclough and Mary Anne Byrne were lawfully married, that Caesar Colclough is third eldest son, and their eldest legitimate son from the hour of his birth. It will not be evidence in the sense of talk. It will be founded on documents and matters so clear and precise and so important, as were never before laid before a jury. For I venture to think that there is a Providential hand sometimes in such matters, and if ever we could calculate on such, I think you will by and by agree with me that in this instance it has been made visible for the protection of my client, and for the confusion of those who have sought him to extort a compromise from him, under the most wretched pretences. Remember, the theory is, and the statement was repeated and gone over again and again, and is mixed up with the whole case, the theory is that Miss Byrne was a strict Roman Catholic when she married, that she remained so for many years after her marriage with Adam Colclough, and that only previous to the birth of her third son, Sarsfield, she turned Protestant and was married by a Protestant parson, and it is added as a warning to all who would desert their faith in old age that she did not die in her bed, but in the hall of the house, that this was a judgment on her for deserting the Roman Catholic religion! It is plain that Mr Adam Colclough was paying his attention to Miss Byrne, with the full sanction of his family and of hers. I think I have evidence irrefragible on this point. And the Colcloughs being Protestants - strong Protestants I might say, they were no doubt determined that everything should be properly done, so that the marriage should be a legal one, and its offspring legitimate, that it should be above all doubt or difficulty. Now I admit that this young lady did go to Ross about this time, but not to be married by a Popish Priest, she went to receive the sacrament according to the form of the Established Church, and at the hands of the Bishop of the diocese (Mr.Brewster here read from a copy of the registry kept for the purpose, a certificate of the licence of the marriage, a certificate of the Administration of the Sacrament under the hand and seal of the Bishop of the diocese, and various other documents, detailing the legal steps taken by Mary Anne Byrne prior to her marriage for the Abjuration of Romanism). The certificate for her marriage licence, I believe Mr. Felix Fitzpatrick, happy Felix, has read. And you are to take away from my client, notwithstanding this 9 or 10 thousand a year, on the ground that Miss Byrne was a Roman Catholic when she married. Mr Patrick Sarsfield Colclough will go out of Court not the possessor of these estates, but he will at least have the satisfaction of knowing that his grandmother was an honest woman. I believe there was a time in that gentleman’s life where he would not have permitted any one to dare say that his grandmother played the strumpet, he would not have been satisfied with less than the blood of the man who should have dared to do so. When he was a young man, a proud young man, such would have been his conduct. But misery makes us acquainted with stranger bedfellows, and his present vicissitudes have made him the dupe and the victim of all those who are dissatisfied with the Mr. Rossborough Colclough and his wife. Mr.Patrick Colclough never instructed his counsel in this action. No, no, he could not do such a thing! That came from some other quarter. For unless he himself were a bastard he would willingly stand up and hear all that was said of the hot blood of the ladies of his family. Mr. Hemphill- As statements have been made on one side, my lord, I did not wish to interrupt Mr. Brewster sooner! but from the documents which Mr. Brewster has read, which I assume to be genuine, I have instructions from my client to proceed no further. We will therefore agree to a nonsuit. Mr Brewster-not a non suit, certainly. His Lordship- When a man makes a charge which he afterwards discovers to be unfounded, the only reparation he can make is to withdraw it. I think you should withdraw and allow the jury to record a verdict in favour of the defendant. 
Mr.Brewster- I am not surprised that Patrick Sarsfield Colclough withdraws the case, I knew him when he was a fine gallant fellow, and I tried dissever him from those who urged on this case but without effect. I think, however, he has not lost the best points in his character yet. He has behaved like a Colclough, and he will not repeet it. Mr. Tandy, my lord, on behalf of my client, Patrick Sarsfield Colclough, I must say that long before this period, when he heard the statements made by Mr.Brewster, he urged that the case be withdrawn. His Lordship - though the statement of Mr.Tandy needs no confirmation, I will say that I observed in the course of the hearing of the case, that Mr Patrick Sarsfield Colclough was anxious to have it withdrawn.
The jury then returned a verdict for the defendant, with six pence costs, which was followed by demonstrations of applause in Court.
Counsel for the Plaintiff: Mr.Hemphill Q.C. Mr.Tandy, and Mr.Joseph J. Green.
Solicitor: Mr.Lawrence Mooney.
For the defendants:, Mr. Brewster, Q.C. (special); Mr. Whiteside, Q.C. (special);
Mr. J.E.Walsh, Q.C.; Mr.Ryan and Mr.Nunn.
Solicitors, Messrs. Kernaghan and Saunders.


A post script now, here are some letters between the Rossborough Colclough's and Beauchamp Colclough ...

 Tintern Abbey, March 9th, 1865.
 My Dear Beauchamp,    
Your kind letter of congratulations I thank you for. A just providence has put a stop to our long persecution, and as you rightly say that the rightful owner now sits down in peaceful possession. We cannot but feel supreme contempt for the means, the brutal means tried to deprive us of our right, but we have come through an unparalleled fiery furnace, and our children after us are safe from all torments of law for ever. The children and ourselves join in kind love, and I remain my dear Beauchamp, your affectionate cousin,
Mary G.W.R. Colclough,
Addressed, Captain Colclough, Wexford.

Tintern Abbey, Kinnagh, New Ross, October,7th 1865.
My dear Beauchamp,
I shall be so delighted at your coming to take a shot at the partridge. Be good enough to prevail upon our juvenile friend Beatty to accompany you. What has become of Mary? Pray give my best remembrance, ever your faithful relative,
John T.R. Colclough,
Address Captain B.H. Colclough, Wexford.

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