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Colonial Cases

Tasmania, Army

Hobart Town Gazette, 26 July 1817

GOVERNMENT & GENERAL ORDERS.

Government House, Hobart Town.

Saturday, 26th July, 1817.

HIS EXCELLENCY the GOVERNOR in CHIEF  having signified to the LIEUTENANT GOVERNOR that he had received from Mr. Acting Assistant Commissary General Broughton an Official Report of Certain Charges against him by Edward [Lord], Esquire, with an Application that they might be forthwith investigated; and His Excellency having, in consequence, intrusted the Lieutenant Governor to convene a Court of Enquiry for Investigation of the Charges in question, a COURT OF ENQUIRY  is directed to assemble at Hobart Town at Eleven o'Clock in the Forenoon. - [The Place of Assembly not being yet fixed may be known at the Secretary's office on Thursday morning. .  .  .  

The report of the Court of Enquiry to be made to His Excellency the LIEUTENANT GOVERNOR and the Court will state their Opinion whether there appears to them to be sufficient ground for bringing the charge before a General Court Martial.

 

Launceston Advertiser, 2 September 1836

  The Court Martial held on Sergeant Sweeny of the 50th regiment, on the complaint of Messrs. Franks and Clark, having created considerable interest, we give in today's Paper a full report of the proceedings during the three days occupied by the trial.

  The Court Martial, it is plain throughout, from a survey of the evidence, became in effect more a trial of the two gentlemen named than of Sergeant Sweeny; and though the finding of the Court is at our present writing unknown to the public, it would only be misplaced delicacy to refrain from expressing our conviction that the Sergeant must be fully acquitted -or in other words that the two gentlemen will stand condemned.

     Endeavouring, and we trust not without success, to look with an independent eye upon the body of evidence laid before the Court, we cannot see how it is possible to avoid coming to the conclusion that both Mr. Franks and Mr. Clark are in error.  Mr. Clerk was told by a Sergeant on duty that he must not pass through the gate of the Government Gardens. In place of debating with the soldier about the privilege of the entrée, as Police Magistrate, he should have immediately turned back.  Mr. Franks should have done the same; and he should not have got into a passion.  True, Mr. Franks, in his evidence, avers that he behaved temperately - and Mr. Franks unquestionably thinks as he speaks; but the evidence of others proves incontestably that his deportment was not temperate, as temperate is generally understood; and accordingly we are led to inquire, how, if Mr. Franks behaved in his own opinion in a temperate manner on the occasion, - how he would demean himself in an acknowledged passionxxx The fact we believe to be that the equanimity of all the parties to the affray was seriously disturbed.  But what, had the matter ended at the gatexxx We should have regretted Mr. Frank's apparent infirmity of temper, and should have hoped it might not display itself on the magisterial bench to which he has been recently elevated.  We should have regretted Mr. Clark's ignorance; but should have seen it only a confirmation of our opinion expressed long ago, of his unfitness for the office to which that worthy gentleman, Colonel Anthur, had chosen to appoint him; and we should have blamed the Colonel more than the Colonel's protégé.  Nay, had something like an admission of error been conceded, we do not know that even censures light as these would have been called forth.  But what ensued - the Sergeant is placed upon his trial - and Mr. Clerk is his prosecutor!

  And now we come to the trial. We are constrained to say, that if Mr. Clerk's conduct was censurable in affair of the gate, he appears in a much less enviable light in his demeanour at the Court Martial.  He displays glaringly his unfitness for the important office which he holds, throughout the entire proceedings.  He may be a good, conscientious youth, but he is sadly inexperienced in the ways of the world, and elevated as he has been, under a vicious system of patronage, viciously exercised, to a height remarkably beyond his merits, he had evidently taken a false view of his own personal importance, which makes him one of the most disagreeable and offensive of the official species with which the public are brought into contact.  This is no recent opinion, founded on his conduct before the Court Martial.  We have long been credibly informed that his nonchalance - apparently an elaborate piece of affection - and his outward indifference of manner to complainants, are intolerably disagreeable.  His conduct before the Court Martial confirms our opinion; and we only trust that the lecture he more than once received from the President will have an emendatory effect on his manners in future.

  The Proceedings, it is but just to say, were conducted in a remarkable spirit of fairness and impartiality - this indeed our report of the trial will fully demonstrate; they were guided by the spirit, while they were not crippled by the technicalities of law; and the courtesy of the President to the auditors, and reporters of the Press, who had availed themselves of the "Open Doors" to be present at the trial, read a practical lesson to those of our colonial civilians who are not distinguished in a remarkable degree for that indispensable requisite in the composition of a gentleman.

 

Launceston Advertiser, 22 September 1836

PROCEEDINGS at a Court Martial, held at the Military Barracks, Launceston, on Sergeant Bernard Sweeny, 50th or Queen's Own Regiment.

FIRST DAY - Friday, Sep. 16.

  The officers of the Court Martial took their seats at 10 o'clock this day.  Present  Captain Peddie, 21st Regiment, President; Captain Forth, 21st Regiment; Captain O'Hara, 54th Regiment; Captain Lonsdale, 21st Regiment; and Ensign Stapylton, 50th Regiment.

  Before the Court was  sworn in, John Clark, Esq., P.M. begged to read a letter, the purport of which did not transpire.

  Major Ryan objected, on the ground that it would be prejudicing the case to hear any evidence on the subject previously to the formation of the Court.

  Captain Forth coincided with Major Ryan, and the proposal was withdrawn. - The Court were then duly  sworn in.

  Sergeant Bernard Sweeny, of the 50th Regiment, was arraigned on the following charge:

For having, while on duty at the Government Cottage in Launceston, on the afternoon of the 29th August, 1836, used highly improper and disrespectful language to, and committed an assault with his drawn bayonet upon, the Police Magistrate, John Clark, Esquire, and Mr. W. Franks; at the same time threatening that he would run the latter gentleman through; such conduct being unbecoming the character of a non-commissioned officer, and subversive of good order and military discipline.

              Plea - Not Guilty.

  The President asked Mr. Clark whether he appeared as prosecutor; and after some discussion between the Court, Major Ryan, and Mr. Clark, the latter gentleman agreed to appear as prosecutor.

  John Clark, Esq,, P.M., was then called on. On being sworn he again requested permission to read the letter above alluded to, which was understood to be a request from "the Ladies' Committee'" that the Court Martial might be postponed until time was given to communicate with His Excellency the Lieutenant-Governor., - On the suggestion of Capt. Forth, the Court was cleared to consider the application.,

  On the reopening of the Court, Captain Peddie explained to Mr. Clark that the Court did not feel itself authorized to postpone the trial without the express orders of the Lieutenant-Governor.  Mr. Clark then stated as follows:

  On Tuesday, the 29th ult., between 4 and 5 P.M. I went up to Government Cottage on duty; in going up I met Mr. Franks [No. 1.] who said he had some business there; we rode up together; when I arrived at the gate I saw Sergeant Sweeny (the prisoner); he was close to the gate and spoke to me over it; I asked him what ladies of the Committee were there; he mentioned the name of two with whom I was acquainted; I should say, perhaps, in this place, that he had nothing to denote he was on duty; he said nothing at this time to lead me to suppose he was on duty to prevent persons  from going in; he only answered my questions; I speak of the time I first saw him; some parties, I did not then know who, opened the gate; I believe I requested him to do so; Mr. Franks entered first and I followed a few yards behind him; the first thing I noticed was that Mr. Franks had advanced about 20 yards; prisoner's right hand was on the right side of Mr. Franks bridle, and both were talking very loud and very fast; I heard Prisoner say he would not allow Mr. F. to go in, or words to that effect; I don't recollect the exact words; I was a short distance behind Mr., Franks on his right and rear at this time; I never advanced as far as Mr. Franks, the Sergeant came over to me; I told him I supposed he would not prevent my going in, and told him who I was; I thought from the way in which he came over to me and from what I had seen between him and Mr. Franks that he was going to lay hold of my bridle, and I told him not to do so, and he did not; he drew his bayonet and held it in front of him; he never offered to touch me with it, but on, or immediately after me telling him who I was, he said, "I don't care a damn who you are;" I think I mentioned my name; but am certain I told him I was Police Magistrate; I told him he was wrong - I think the words I used were "Sergeant you are wrong, very wrong" and he put up his bayonet immediately, and offered no more observations, and went away; some of the ladies came up about this time, and some conversation took place between Mr. F. and one of the ladies, but I could not make out what; I only heard a word or two; after this I rode back to look for Major Ryan, and he rode back with me.

  Perhaps it is right for me to state, as it is in favour of the prisoner, that as we were going out of the gate to look for the Major, Mr. Franks said to the Sergeant that he would have him reduced to the ranks; when I rode back with the Major after having told him what had happened, he (the Major) said to the Sergeant "there is no general rule without an exception - you ought to have used your discretion, you should have admitted him," meaning me.  On gaining admission I was just riding away; I had gained the end I wanted, the right of admission, when I heard the Sergeant say to Major Ryan -

  The President here observed that this would not bear upon the case, and Mr. C.'s evidence ended.- On Captain O'Hara reading it over, Mr. Clark observed, with reference to the passage marked No. 1, that he met Mr. Franks before mounting his horse; and added that during the altercation between Franks and Prisoner he (Mr. C.) heard the latter tell the former that he had Major Ryan's orders not to admit him (Mr. F.) -

  Examined by Prisoner -After I had told Mr. Franks that I had orders not to admit him, did he not say go on Clark, and I will soon follow, and ride the fellow down, or words to that effectxxx

  I did not hear any thing of the kind.

 Did you see Mr. Franks during the altercation urging his horse on and endeavouring to force his wayxxx

  I did not observe him urge the horse; I think if he had, the horse would have plunged in a fearful manner, as it did both before and after going into the garden, when Mr., Franks urged him; I don't think 50 people would have stopped him without taking hold of the bridle.

  What was Mr. Franks manner during the time I was speaking to him, and in what way did he speak to mexxx

  This manner of speaking was fast and loud; I should say his manner was intemperate.

  Examined by the Court.

  Did the Sergeant in drawing his bayonet do so only by way of showing he was on duty, or with an intention of committing an assaultxxx Did he assault you with it, or only enforce the commands of his superiorxxx

  I did not at any period hear the sergeant say that he would run my body through, I consider the drawing his bayonet, an assault, but he did not attempt to use it on me.

 (The Court here explained that the mere drawing a bayonet, while on duty, by no means necessarily constituted an assault, in the military law.)

Published by Centre for Comparative Law, History and Governance at Macquarie Law School