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The Napoleonic Wars 1792-1815

Pte. Thomas Birch - 9th (East Norfolk) Regiment of Foot

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Pte. Thomas Birch - 9th (East Norfolk) Regiment of Foot

Postby Rural53 » January 2nd, 2014, 7:54 am

As I said in my introduction, researching my great, great, great grandfather Thomas Birch has lead me to the Army of Occupation in France. It appears he was a deserter, as well as an arsonist and thief, from the 9th (East Norfolk) Regiment of Foot.
I came across a lead from the Napoleon Series archive from 2010 leading to his court martial in Valenciennes in 1818. The information on his court martial is found on pages 506-507 of the following text.

The general orders of Field Marshal the Duke of Wellington ... in Portugal, Spain, and France, from 1809 to 1814: in the Low Countries and France in 1815; and in France, army of occupation, from 1816 to 1818; comp. alphabetically from the several printed volumes, which were orginally issued to the general and staff officers commanding regiments in the above campaigns. Arthur Wellesley Wellington (Duke of) Compiled by John Gurwood. W. Clowes and Sons, 1837
http://books.google.com/books?id=C_KgAAAAMAAJ&pg=PA506&dq#v=onepage&q&f=false

The record of the original court martial:

Cambrai, 30th June, 1818.
At a General Court Martial, of which Colonel Sir E. Blakeney was President, Private , of the — reg., was arraigned 'for feloniously setting fire to the dwelling-house and premises of , and , inhabitants of St. Amand, whereby the same were consumed;' 'for feloniously stealing, during the said fire, two watches, a great coat, &c, of the value of £3 and upwards, the property of the above inhabitants.' The Court do find him guilty of the first charge; but the Court considering the 10th article of the 16th section of the Articles of War, and that less than two-thirds have concurred in the said finding, the Court are precluded from giving sentence of death against the prisoner. The Court, having further considered on the second charge, are of opinion that he is guilty of stealing to the value of 39s. only; and do therefore sentence him to be transported for seven years.


The review by Wellington telling the court martial they can only impose a sentence of death:

The Court having met again on the 23d April, in conformity with the orders of His Grace the Commander of the Forces, for the purpose of revising the proceedings and sentence on this trial, the following letter from His Grace the Commander of the Forces to Colonel Sir Edward Blakeney, President of the General Court Martial, was accordingly read to the Court, a copy of which is as follows :—
‘Paris, 19th April, 1818.
Sir, I have the honor to return the proceedings of a General Court Martial, of which you are President, from the trial of Private , of the — reg., for revision: because it should appear that the division of the Court in opinion on the first charge could only have arisen from an erroneous impression, that actual evidence of his having been seen to apply the fire to the houses was necessary to warrant a conviction, and that the absence of such proof amounts to a legal objection to pronouncing the prisoner guilty on a capital charge.
Because, on the second charge, the Court have exercised a discretion in estimating the articles stolen, in order to reduce the charge below a capital offence, in contradiction to the only evidence on oath before them of the amount (namely, £5 or £6 for the watches alone, and about £7, estimating them with the coat and hat), and, as it should seem, in contradiction to the apparent value of the objects themselves, which were before the Court.
That, on a conviction to the full extent, on either charge, with the concurrence of a competent number of the members of the Court, a capital sentence is the only one recognized by law; and a General Court Martial, sitting to try such offences abroad, are not competent to commute the sentence of the law which they may be so called upon to pronounce.
I have the honor to be, &c. Wellington.'
The Court, having accordingly reconsidered the evidence adduced on the first charge against the prisoner, are of opinion that he is guilty. But the Court, further considering the 10th article of the 16th section of the Articles of War, and that less than two-thirds have concurred in the said finding, the Court are precluded from giving sentence of death against the prisoner. The Court, having further reconsidered the second charge, are of opinion that he is guilty of the same, and do therefore sentence the said prisoner to be hanged by the neck till dead, at such time and place as His Grace the Commander of the Forces may deem fit.


The sentence was commuted to transportation:

Horse Guards, 22d June, 1818
My Lord Duke,
Having laid before the Prince Regent the proceedings of a General Court Martial, on Private , of the — reg., I am to acquaint your Grace, that, under all the circumstances of the case, His Royal Highness was pleased, in the name and on the behalf of His Majesty, to extend his gracious clemency to the prisoner, by commuting the sentence of death for transportation as a felon for seven years; and to command that he, , shall be transported accordingly to New South Wales.
I am, my Lord Duke, Frederick Commander in Chief.


Further along in the Napoleon Series thread there is an answer to who is being referred to in the above book.

On page 673 of the following text the private is named as Thomas Burke 9th Foot. The same first names and Burke is likely to be a transcription error for Birch as all the following information, ie transportation records and release records, etc, refer to Thomas Birch.

Supplementary Despatches and Memoranda of Field Marshal Arthur, Duke of Wellington, K.G. Volume 12. Compiled by Arthur Wellesley 2nd Duke of Wellington. J. Murray, 1865
http://books.google.com/books?id=b4IBAAAAQAAJ&pg=PA673&dq

Cambrai, 5th Sept., 1818
To Earl Baihurtt
My LORD,
I enclose an application which has been made to me by Mons. La Tour, the Commissary of Police of Cambrai, for assistance for certain inhabitants of the village of La Croisette, near St. Amand, whose houses and property were lately destroyed by fire.
The circumstances of this case are as follows:—Thomas Burke, a deserter from the 9th Regiment, was accused and tried by a general court-martial on charges of setting fire to these houses with an intention of robbing them and others while the inhabitants of the village should be employed in extinguishing the fire.
He was convicted of the robbery, but acquitted for want of evidence of setting fire to the houses, and sentenced to transportation for seven years; and although I concurred in opinion with the general court-martial that there was not sufficient judicial proof of the latter crime, I entertain no doubt whatever that he was guilty. I directed that the sentence might be revised, and the court-martial sentenced him to suffer death; but as some doubts were entertained of the legality of this last sentence, I recommended that His Royal Highness the Prince Regent might commute it for transportation for seven years.
This man therefore, who is certainly a great criminal, appears to the public in this country to have been an object to whom His Royal Highness the Prince Regent extended his mercy; and for this reason, as well as because I entertain no doubt that he did set fire to these houses with a view to rob them, I am anxious to be permitted to give a sum of money not exceeding one hundred pounds to the sufferers.
I have, &c,
Wellington.


I’m not having any luck tracking down any information on his military service before the court martial, any help would be appreciated.
The other questions I’ve got are:
- How often would Wellington, or another very senior officer, review a court martial and sent it back to the court to revisit?
- How often would Wellington, or another very senior officer, intervene on behalf of an obviously guilty private solider?
- Would the recommendation to the Prince Regent for clemency have been an individual appeal or just one among a whole list that would be presented to him?
Rural53
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Re: Pte. Thomas Birch - 9th (East Norfolk) Regiment of Foot

Postby Rural53 » September 21st, 2016, 6:23 am

I'm bumping this in the hope someone can answer some of my questions.

Justin
Rural53
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