Hello Mr Unkles,
I can’t believe that you of all people have replied to my thread!
It was reading about the refusal of your pardon request that made me start the thread. Then on your website I saw that their trial began on 16th January, the same day as I posted the above question…small world!
I wondered about your opinion on the killing of Rev Hesse; I have heard that Morant, Handcock & Witton were sacrificed to prevent German intervention, even though they were acquitted of his murder. The argument being, I suppose, that the British could not admit to their troops killing a German citizen, but they would be executed for another crime anyway, so the Germans need not become involved.
Alternatively I have also heard that the Reverend may have been killed by the Boers because they were suspicious of a man who could cross the lines with impunity.
Do you have a view on who killed him?
Kind regards,
Hello and thnaks for your contribution. Theories abound about British motives to execute these men and keep the trials from the Australian government. Many writers assert that when found not guilty of killing Heese, their fate was sealed because Kitchener did not worry about Boers, his concern was about the missionary of German descent. As as I am concerned they were acquitted, were not treated in accordance with military law of 1902 and denied appeal rights.
There is not of reading out there about the Boer war, this one is excellent, William Woolmore The Bushveldt Carbineers and the Pietersburgh Light Horse
Woolmore, an authority of the Boer war and the Bushveldt Carbineers reviewed much of the evidence and concluded that the identity of the person/s responsible for the shooting could not be conclusively proved. In his analysis, Woolmore quoted from an eye witness account given by a native called Silas who claimed to have seen the man who shot Heese. His testimony was recorded in writing. His description of the culprit did not fit the build and rank of Handcock and therefore called into doubt the prosecution case. Woolmore also quoted from a written comment made by the Military chaplain, Reverend Joshua Brough who attended the courts martial. Brough stated, ‘In the matter of the shooting of the missionary, the court without hesitation found him (Handcock) not guilty and never, I should think, has a feebler charge been brought before a court’. There are theories that Heese was shot by Boers, we don’t know for suer, what we do know is that these men were acquitted.
Enjoy your reading
james unkles
Thanks for your detailed reply.
You’ve studied this in much more and much better detail than was available to me when I looked into it in an ancient period when one had to go a place unknown to most of the modern generation, which was called a library, and pursue footnotes by looking at typed cards and so on to find referenced books, so I’ll defer to you on matters on which I have no knowledge. Plus my memory on detail is pretty much non-existent at this distant remove.
How was this assurance given?
Its seems to be of little standing by a British military commander in the field to the first Australian PM
To be binding in any sense, it should have been at a government to government level. Even then, as Churchill showed much later in WWII with his attempted diversion to Burma of the elements of the 2nd AIF returning to Australia, the British government tended to see Australia as a dominion which should dance to Britain’s tune. The British attitude in the first year after Australian Federation, when Morant was tried, was likely to be even less concerned with Australia’s views. A question which arises is whether Australia’s government was deficient in not establishing the terms of service of Australian nationals in the Boer War.
How was the legal situation affected by Australia’s Federation on 1 January 1901, so that troops like Morant who had embarked as members of regiments raised by Australian colonies became, nominally, members of a national dominion force?
Should that have affected his status in the British irregular force of the Bushveldt Carbineers, or did it render him (especially as he was British born and Australian citizenship did not emerge until about 1948) fully subject to the British military legal system?
If he was subject to the British military legal system, what difference would it have made if Kitchener had informed the Australian PM or government of the arrest and trial of Morant and Co, given that Australia had no standing in that military legal system? Obviously there was potential for submissions at inter-government levels, but how would that have overridden the jurisdiction and process of the British court-martial which, if it operated as a proper legal system under the separation of powers doctrine, was not subject to political control?
Hadn’t Morant served as an NCO in a South Australian unit in the Boer War before joining the Carbineers? I can’t recall whether he was a corporal or sergeant, but he wouldn’t get to either rank “with no previous military experience”.
Could you expand on this?
Morant and Co don’t seem to have been dealt with any worse than a lot of British troops who were executed in WWI, and for lesser offences, in the sense of deserters etc not having murdered anyone as Morant and Co did.
I, or at least Google, didn’t have any success finding a copy online. Could you post the relevant provisions?
I agree that there was probably a conflict of interest in representing all six defendants, unless they were united in their instructions and none of them would be better off pursuing their own defence separately. Then again, the conflict of interest rules were vastly more liberal, particularly for a country conveyancer who could then (and I think may still be able to – I can’t be bothered checking the current professional conduct rules) happily act for vendor and purchaser and do other things which would have a modern ethics committee, not to mention the Family Court, doing cartwheels on a conflict of interest question.
I mentioned in my last post that my recollection is that there was no entitlement to representation by a lawyer, but only by a prisoner’s friend who did not need to be legally qualified. Do you know of anything in the British military regulations at the time which entitled the defendants to more than they got in the way of representation and notice?
But even if there is overwhelming evidence that orders to shoot prisoners existed, where does that leave Morant and Co?
We come back to the Nuremberg defence, which I raised in the sense of “we were only following orders”. If Kitchener and anyone else is to be condemned for issuing such orders, doesn’t it follow that Morant and Co should be condemned for following them?
If nobody is to be condemned for issuing or following such orders, is that morally acceptable by the standards of the time?
If so, why should anyone be upset about Morant and Co being executed after a rather better trial process than they gave to the people they summarily murdered?
If not morally acceptable, then why pardon them?
Wow, lots of interesting questions, thanks
1.Colonial troops. Morant did serve as an NCO before the BVC. Remember, colonial troops had some limited experience in State militia. Woolmore’s book gives detail. It is a big call to compare militia to professional troops / officers trained at Sandhurst with military experience in Europe. Remember, Britohs troops had a history of conflict with France et al going back centuries. Aussie colonial troops had never been outside of their country let alone engaged in armed conflict. I doubt they were learned in the customs of war. Aussies were recruited for one reason, because most could live off the land, ride and shoot and beat the the Boers at their own game - guerilla war. It is tempting to judge troops like Morant against the sort of training in armed conflict and rules of engagement againsty standards of WW1 and 2 and even today. Conclusion, we are stuck with the assessment made by the courts martial in the recoomendations for mercy. The courts memebrs heard all the evidence, we weren’t there, the officers assessed that Morant et al were not professionals and had limited experience and no understanding of mil law and customs. I trust their assessment rather than those made by commentators in 2011 (including myself).
To illustrate the feelings of the time and the gerat ‘adventure’ that most colonials thought about supporting the mother country, the contracts (attestation documents) that men like Morant and Handcock signed stated: (from Handcock’s contract):
’ I agree to serve in the
Manual of Military Law
Wow, lots of interesting questions, thanks
1.Colonial troops. Morant did serve as an NCO before the BVC. Remember, colonial troops had some limited experience in State militia. Woolmore’s book gives detail. It is a big call to compare militia to professional troops / officers trained at Sandhurst with military experience in Europe. Remember, British troops had a history of conflict with France et al going back centuries. Aussie colonial troops had never been outside of their country let alone engaged in armed conflict. I doubt they were learned in the customs of war. Aussies were recruited for one reason, because most could live off the land, ride and shoot and beat the the Boers at their own game - guerilla war. It is tempting to judge troops like Morant against the sort of training in armed conflict and rules of engagement against standards of WW1 and 2 and even today. Conclusion, we are stuck with the assessment made by the courts martial in the recoomendations for mercy. The courts members heard all the evidence, we weren’t there, the officers assessed that Morant et al were not professionals and had limited experience and no understanding of mil law and customs. I trust their assessment rather than those made by commentators in 2011 (including myself).
To illustrate the feelings of the time and the great ‘adventure’ that most colonials thought about supporting the mother country, the contracts (attestation documents) that men like Morant and Handcock signed stated: (from Handcock’s contract):
’ I agree to serve in the Bushveldt Mounted Rifles for a period of 6 months, or until the cassation of histilities, and I hereby promise to obey the orders of my superior offiicers and be loyal to His Majesty King Edward V11, his heirs and successors and I decalre that I can both ride and shoot dated 28 Feb 1901.’
These men weren’t viewed in the same tradition of English regulars, particularly officers. Colonial, including those from NZ, Canada and even volunteers from America were recruited to supplement English troops who were confronted with a war that was very different to fiughting war in contintental Europe.
Manual Of Mil Law 1898 You won’t find this book on line, you might be lucky on ebay but it is an edition difficult to locate. The copy I have is in pristine condition and for its time it reflected Britain’s commitment to militay law and customs. For the time, Britain had a proud commitment to mil law and procedures. The MNL has over 800 pages and the provisions and procedures on arrest, trial and sentencing are exacting with the force of legislation.
Legal Representation
A few provisions - Court of Inquiry:
• ‘every person subject to military law when so charged may be taken into custody’;
• Military custody means , putting the offender under arrest or putting him in confinement’;
• The charge made against every person taken into military custody shall without unnecessary delay be investigated by the proper military authority and as soon as may be, either proceedings shall be taken for punishing the offence or such person shall be discharged from custody (section 45
Army Act 1979
Right of accused. ‘Whenever any inquiry affects the character of an officer or soldier, full opportunity must be afforded to the officer or soldier of being present throughout the inquiry and of making any statement he may wish to make and of cross examining any witness whose evidence in his opinion affects his character and producing any witness in his defence of his character Rules of Procedure 1899, Part 11, Para 125 (D)
Superior Orders
The Nuremberg prinicples did not apply in 1901. Some provisions existed in the MML on treatement of prisoners. I assert the Hague Convention did not apply, Boer republics were not signatories. I assert these men were like many other volunteers, sworn to obey orders, believed the orders given were legal and issued by British officers, their understanding of mil law and customs was minimal, (as asserted by the recommendations for mercy),. The most glaring aspect of this case was if the orders of Captains Taylor and Hunt were illegal, why were theese men held accountable while Taylor was allowed to resign his commission and was not prosecuted for several murders as recommended by the JAG? Witton’s sentence of death was commuted for a number of reason, including that he was follwoing the orders of Morant and was under his influence to obey. In my analysis, the same could be said of Morant who had at one point reprimanded by Capt Hunt, (his friend and superior) for bringing in prisoners. When Hunt is killed by Boers, Morant swears revenge and obedience to orders of his superiors. Why shouln’t Morant receive the same mercy as that shown to Witton?
Morant gave evidence about his belief that he and his subordinates were following orders issued to the BVC by Lord Kitchener:
‘I alone was responsible. You can’t blame the young un’s, they did as I told them. They just carried out orders and that they had to do. They obeyed orders and thought they were obeying Lord Kitchener’s
Witton also gave evidence at the trials and claimed that he and Lieutenant Picton had initially refused to obey Morant’s order to execute the prisoner Visser. In response to the charge of murdering eight Boer prisoners, Witton again stated that he had refused to follow Morant’s order to execute the prisoners even though Morant had stated he was justified in following superior orders that had been conveyed to him.
Assertions of Lieutenant Witton
Witton’s book provides valuable material that suggests the accused in good faith in following what they believed were lawful orders to take no prisoners.
Witton’s assertions are critical in determining whether Morant, Handcock and Witton acted in a manner that respected the orders that they believed had been given and were not seasoned and experienced career soldiers educated in the details of military tactics and laws of war. They were volunteers from the colonies of Australia without the experience of European wars. Accordingly, their culpability should have been considered in light of their service under the command of experienced English regular soldiers including Major Lenehan, Captain Hunt, Colonel Hall and Lord Kitchener.
Morant also claimed provocation for his action against Visser and his resolve to follow the order that he and others had received. In part he stated,
‘I considered I was quite justified in not treating such men with the amenity usually accorded to prisoners of war, and I am quite satisfied that they fully deserved the summary execution they received. In ordering these Boers to be shot, I did so fully believing that, in view of what Capt. Hunt had so distinctly ordered me, and what I myself knew bad been done elsewhere, I was practically right and justified by the rules of guerrilla warfare’. I was Senior Officer of the B.V.C. in the Spelonken, and for the ordering of the shooting of these Boers I take full and entire responsibility I have been told that I was never myself after the death of Capt. Hunt, and I admit that his death preyed upon my mind when I thought of the brutal treatment he had received. This treatment of Capt. Hunt’s body, coupled with the train wreckings which had occurred, made me resolve to act on orders and do as other officers have done under less trying circumstances than myself.’ This statement by Morant is very probative of his state of mind (page 107)of Witton’s book;
Witton’s statement also provides insight into the motives of the accused. He stated. ‘I was told what the orders about Boers were as received from Captain Hunt, and I took it they were correct; I did whatever I was told, and raised no question one way or the other, as it is customary to obey orders. Capt. Hunt and Lieut. Morant were great friends and I supposed that all orders were correct that Capt. Hunt gave. He was greatly relied upon by all when he came to reform matters at Spelonken, after Captain Robinson left.’ (page 108);
Witton also claimed in his statement that Morant and Lieutenant Picton had been reprimanded by Hunt in bringing in prisoners. Witton also quoted another witness about Hunt’s words to Morant, "What the hell do you mean by bringing these men in? We have neither room nor rations for them here. (page 108);
Witton quoted evidence of Major Lenehan. ‘Mr Handcock had a very strong sense of duty, and anything he was ordered to do he would do without the slightest question, no matter what it might be.’ (page 111);
Superior Orders – Justification for murder?
The MML (1899) stated:
‘If the command were obviously illegal, the inferior would be justified in questioning, or even in refusing to execute it, as for instance if he were ordered to fire on a peaceable and unoffending bystander
The Law – 1902
The law on the issue of superior orders was uncertain and drew its rationale from the provisions of the MML concerning obedience to lawful commands.
Chapter 3 of the MML stated the law concerning section 9 of the Army Act concerning wilful disobedience. The Section differentiated between two offences, one serious and the other of less consequence. The essential ingredients of the serious offence was, ‘the disobedience show a wilful defiance of authority and should be disobedience of a lawful command given personally and given in the execution of his office by a superior officer’.
The MML expressed clear direction that all lawful orders had to be complied with to preserve the integrity of Military Command. The serious wilful disobedience offence carried the maximum penalty of death. The second offence of disobedience characterised by hesitation, forgetfulness or misapprehension carried a maximum penalty of imprisonment or dismissal from the Army.
Prisoners Rights in preparation of defence
In addition to the rules of procedure that applied to the rights of an accused before an Inquiry, further rules of procedure provided for the rights of an accused to prepare his defence for court martial.
These rules were:
Rule 13. a prisoner for whose trial by court martial has been ordered to assemble shall be afforded proper opportunity of preparing his defence and shall be allowed free communication with his witnesses and any friend or legal adviser with whom he may wish to consult.’
Rule 14 (A). the prisoner before he is arraigned should be informed by an officer of every charge on which he to be tried and also that on his giving the names of any witnesses whom he desires to call in his defence, reasonable steps shall be taken for procuring their attendance. Rule 14 (D) If it appears to the court that the prisoner is liable to be prejudiced by any non compliance with this rule, the court should take steps and if necessary adjourn to avoid the prisoner being so prejudiced
(Rules of Procedure 1899, Part 1, para 13 and 14, p. 583 MNL)
Procedural Rule 33 stated:
‘The prisoner is to have proper opportunity to prepare his defence and liberty to communicate with his witnesses and legal adviser or other friend. The object of the rule is to give the prisoner full opportunity to prepare his defence but not to enable him to postpone his trial’
Legal Representation: The accused were presented for trial having had limited contact with defence counsel, Major Thomas who had been tasked with an oppressive assignment of representing six officers charged with serious offences. Major Thomas who had been requested by one accused, Major Lenehan to assist him was unprepared for such a task. At the outbreak of war, Thomas went to South Africa as Officer Commanding A Squadron, New South Wales Citizens Bushmen.
Thomas took on the job as defence counsel. The conspiracy theorists have speculated that Thomas was chosen in an attempt to compromise any possibility that the accused would be acquitted. Denton has added to the speculation:
‘Given that there must have been some number of able legal men amongst the several thousand Australians who fought in the Boer War, the selection of Thomas as the Defending Officer at the infamous court martial is a little puzzling. He had no court room experience let alone practical knowledge of the specialised detail of military legal procedure but his work was obviously very able’ K. Denton, Closed File, The true story behind the execution of Breaker Morant and Peter Handcock, 1983, p.4
Thomas was not an experienced lawyer. In Australia he had established a legal practice in Tenterfield and became a community leader. His presence in the Boer war was as a mounted infantry officer, not a lawyer. According to Denton, ‘In Tenterfield the sort of law that needed practising was pretty straightforward, wills, conveyancing, bills of sale, nothing dramatic or outstanding’
Although Thomas did the best he could, the accused were placed at a distinct disadvantage. Having endured a long period of solitary confinement they were then presented with legal counsel not of their own choosing and of limited advocacy experience. Unlike the prosecution attorneys, Thomas was not a full time career military lawyer and had not had any courts martial or advocacy experience. There was not strict adherence to military law and even by the standards of trial of the day, the accused were not treated fairly and accorded every reasonable opportunity to prepare a defence.
George Witton. I recommend you read Witton’s book, Scapegoats of the Empire, 1907, he makes many references to way he and Morant/Handcock were treated from their time of arrest until trial. He complains of denial of rights to prepare a defence and of being presedt during the inquiry, to cross examine witnesses and located other witnesses. Woolmore referred to several claims made by Witton, including:
‘The sentences were decided upon the evidence taken at the court of inquiry at which no one was given an opportunity of making a defence, or even of denying the slanderous and lying statements made by prejudiced and unprincipled men. Morant and Handcock were sentenced to death long before the court sat to take evidence for the murder, or supposed complicity in the murder of the said German missionary’ W.Woolmore, The Bushveldt Carbineers and the Pietersburg Light Horse, 2002, p14
Witton made many claims, including:
• On 23 October 1901, he and other officers including Handcock were taken into custody by officers under the instruction of LTCOL Hall; (page 71)
• He was prevented from communication with anyone, all correspondence had to be sent through LTCOL Hall. Witton told if he attempted to escape he would be shot, (page 71);
• Two weeks after he attended a court of inquiry and became aware of the charges against him and made a statement about the allegations of murdering prisoner Visser and a German missionary, Heese, (page 72 - 73);
• He felt he was adjudged guilty until he proved he was innocent, (page 73);
• Statements were made on behalf of witnesses without their knowledge, consisted of hearsay, witnesses were bullied, harassed and threatened with arrest if they did not agree with the statements prepared for them, (page 73);
• Handcock was staggered about the charges he faced and was ‘completely ignorant of military law and proceedings’ and asked the president of the inquiry for advice, (page 76);
• The Bushveldt Carbineers Regiment was disbanded Prospective prosecution witnesses were given discharges and paid one pound per day detention allowance to remain in Pietersburg. ‘The remainder were discharged and sent out of the district as though purposely to obstruct the course of justice and when certain men, most important witnesses for the defence were asked for, the authorities at first refused to make any inquiries as to their whereabouts and stated that the expense of securing their return would have to be borne by the defence. This was acquiesced in, and later on the authorities declared that they were unable to trace the men asked for’ (page 78);
• ‘On 15 January, just twelve weeks from the date of my arrest, I was served with the charge sheets.’ (page 78);
• Witton was ordered to appear at a court martial on the morning of 16 January 1902 and learnt that a Major Thomas would act as legal counsel for all the accused charged including Morant and Handcock and had only a few minutes to consult with Major Thomas before the first trial began, (page 79);
Conclusion. Despite their rights as per the MML, these men were given second rate consideration of their rights. Being served with charges and consulting Major Thoams one day prior to the first court martial is an appalling insult to the principle of fairness, noting the prosecution had almost 3 months to prepare its case
Aust Federation Britain failure to inform the Aust government about this matter was no accident. Woolmore at chapter 21 of his book sets out many facts concerning this assertion of Secrecy. So annoyed was the Aust governmengt about not being consulted, amendments were made to the Defence Act, 1903 to remove Australians from capital punishment provisions of the British Army Act. Many Australians don’t know that in WW1 350 soldiers were executed for dessertion. No Australians who served with British forces were executed, despite about 119 being arrested.
There is not doubt Australia resented the trial and execution of two of its citizens and the result was expressed in exempting Austyralian from capital punishment when convicted under British military law. Tne failure to inform the Aust government certainly prevented any plea from Australia to the King to show mercy to Handcock and Morant, noting the recommendations for mercy of the courts martial. A plea from the Aust government via the Gov General, would have been entirely appropriate. Remember, the right of any citizen to petition the King had been a part of common law for centuries. In addition, any country could express a representation to another country about any matter, including commutation of a sentence. This is not an issue of over riding or usurping the court martial jurisdiction. It is the right of a citizen or his government to ask for mercy to be exercised.
The MML stated the following to clarify what is a lawful command:
• ‘A command not contrary to ordinary civil law and one justified by military law’;
• ‘In any case of doubt the military knowledge of and experience of officers will enable them to decide on the lawfulness or otherwise of the command’;
• ‘If the command were obviously illegal, the inferior would be justified in questioning or even refusing to execute it, as for instance if he were ordered to fire on a peaceable and unoffending bystander. But as long as the orders of the superior are not obviously and decidedly in opposition to the law of the land or to the well known and established customs of the army, so long must they meet prompt, immediate, and unhesitatingly obedience’
MML P 23
I have made detailed submission to the British Government about this issue of obedience to orders. The situation with Morant et al is far from clear and must be examined and assessed by a judicial inquiry. I even question whether in the circumstances of the Boer war and the nature of the conflict, (an insurgency), whether the orders were in fact illegal or whether Morant et al had the necessary criminal intent to shoot innocent civilians or believed they followed orders in good faith. Clearly, the courts martial made a reasoned judgement having made recommendations for mercy that noted the accused’s obedience to orders, their loyal service and ingnorance of mil law and customs.
More to follow, cheers
Jim Unkles
Jim Unkles
Thanks for your most informative reply.
The information about the legislation governing the court martial; the events surrounding access to representation and preparation for trial; proscution intimindation of witnesses; and the removal of witnesses certainly supports the case that the convictions were unsafe. If an appellate court accepted those facts the result should have been an acquittal or order for retrial. Was it possible to appeal the court martial decision? Could the trial have been reviewed by a British civil court?
On the Defence Act removing Australians from British death sentences, I’ve just read Peter Stanley’s (former Principal Historian at the AWM) recent book 'Bad Characters’http://www.murdochbooks.com.au/bad-characters-9781741964806.htm which gives a lot of detail about Australian soldiers avoiding execution in WWI and British resentment about it.
You mention the contract Morant and Co signed. What was their status under that contract? Did it, in law, render them subject to British military authority and military justice? Or did they need to take an oath or undergo some other formality to become members of the British military? Were they just contracted irregulars under British command but not members of the British military forces, in a similar way that, for example, indigenous people in Burma, the Philippines, Papua New Guinea, and Timor were in relation to Allied troops commanding them in WWII? If Morant and Co were analogous to the latter, then it could be argued that they were not subject to military justice and the court martial had no jurisdiction, in which case the convictions cannot stand.
Hello, the attestation documents for volunteers rendered them subject to military law as per the MNL and the Army Act, similar to reservists who serve in modern Defence forces.
The appeal process is complicated and I am working on this at the moment. I expect to have appeal documents completed very soon. The key to this case is to get it away from government, the executive, (bias and political agendas) and have all the evidence assessed by an independent authority, the judiciary. I understand why the Brit government does not want to have this case reviewed by the judiciary, embarassment about the trial mistakes that were made and orders to shoot prisoners, an embarassment in today’s wars of war crimes in Iraq and Afghanistan etc. The greatest embarassment, the execution of 2 colonials for the murders ordered by Britrish officers who were not held culpable!! The Brits want it to go away, that’s not going to happen as long as I am involved in the case!
Cheers
Regards
James,
You claim to be the first person to prove the existence of orders.
It is strange that it took you two years to find information about the allegation of orders when it was in fact mentioned in the first two documents about the case (see pages 78 to 89 of Arthur Davey’s authoritative book “Breaker Morant and the Bushveldt Carbineers” published in 1987 by the Van Riebeeck Society in Cape Town).
15 members of the Bushveldt Carbineers that included Australians and New Zealanders indicated that Morant and Handcock forged Colonel Hall’s name to create a false impression that orders came from British Headquarters. You make no mention of this.
There was no obligation to follow illegal orders.
A pardon for Morant and Handcock is just as worthy as a pardon for those who executed the Holocaust.
The allegation that the Boers tortured and murdered Captain Hunt is a furphy. Your credibility suffers when you rely on false information to support your case.
James, should any court base a decision on evidence that has since been found to be false?
You are incorrect in claiming Kitchener “only spared Witton”… Lt Picton also received a relatively minor punishment in line with the Courts finding on their relative culpability.
Question: What percentage of people who were executed by the British during the Boer War were given the opportunity to appeal to the King or Queen about their death sentence?
Rising Sun, mate I think you have summed up the entire case extremely well. Morally it was and always will be wrong to shoot civilians and children. It is madness from anyone to suggest otherwise.
The officers did not dispute the fact that they murdered unarmed civilians, I believe even children as young as 11 or 12 were amongst the victims. Morally the case is indefensible.
When Warren Buffet, who at the time was the richest man in the world, wanted to buy a private jet he phoned a friend who owned an airline and asked him how he could justify buying a private jet. His answer was “you cannot justify it, you rationalise it!”
In the Morant case one has to rationalise why it was acceptable to shoot unarmed people and children in their care.
Cpl Ben Roberts-Smith became the 98th recipient of the Australian VC, that is what positive military actions actions look like. Significantly different!
Hi,
The best source for the truth about the murder of Reverend Heese is a letter from George Witton to Major J.F. Thomas dated 21 October 1929. It was kept secret until 1970. The State Library in NSW could get you a copy, email them at dds@sl.nsw.gov.au
Regards,
Jim on your own blog you have indicated differently in August 2010, you stated: “I agree with you, yes, an illegal order, the point I have made since I took this case on, an illegal order instituted by Kitchener and carried on by his subordinates and obeyed by colonial volunteers who knew little, if anything about military law and customary law.”
Thanks, perhaps I haven’t expressed myself correctly. This case needs a judicial inqury to review the laws of war of 1902 and decide whether the orders not to take prisoners (illegal in 2011) was in fact an illegal order in 1902, noting that the Boer republics were not signatories to the Hague convention of 1899 and therefore did not enjoy the protection of international law provided for in the convention. Even if the orders given by Hunt and Taylor were deemed to be illegal, there is reasonable doubt that Morant, Handcock and Witton obeyed the orders knowing that to do so was illegal and exposed them to criminal liability. In this regard, the trials made significant recommendations for mercy, noting that the men were completely ignorant of military law and customs. This issue of criminal liability is in doubt and is deserving of review, (noting that the appeal of Thmoas and his clients) was denied by Kitchener. Justice demands that the matter be reviewed.
The killing of Hunt is only relevant in the sense that Morant believed he had been tortured and killed by Boers. Whether this is fact is immaterial, what is relevant is what was in the mind of Morant. Witton discussed this in his book. The courts martial officers also heard all the evidence and were in an ideal place to make a finding. Whether you agree is not relevant. The officers stated that Morant acted under extreme provocation at the the murder of Hunt, end of story. Yopu may be correct, Hunt could have been mutiliated by local witch doctors, but the court martial determined otherwise. I am not relying on false information, just repeating and using the finding of the courts martial that confirmed that Morant’s actions were comitteed under extreme duress, when the defence of provocation was recognised in military law.
Whether you agree or not, the fact remains the officers who tried these men were best placed to make determinations. They heard the evidence. On the matter of appeal, the fact also remains that appeal and petition to the King was permitted and was entrenched in English military and common law that had existed for decades, a proud tradition of British law. The arrest, investigation, trial and sentencing of these men was done in secret and a cruel decision was made to ensure that their relatives and the Australian government were not informed, thus preventing any interference by way of protest / appeal to the King.
Frankly, the percentage question you posed is just that a question. I am concerned only with this case, the rights of the convicted and whether due process was followed. From Thomas and Witton we know that appeal was not permitted!
Re Lt Picton, he was also tried, but not sentenced to death, hence recommendations for mercy and kitcheners’ confirmation of the sentence was not relevant. I am not sure why you have discussed the Picton case.
Cheers
When you say that it is illegal one moment and claim that it was legal the next, then it does not look like problems with expression it seems like flip flopping. Do you think the order was legal or don’t you? You’ve stated both!
Do I understand you correctly you think that it was legal to murder civilians because the government of one of the countries did not sign a piece of paper?
Was the Hague Convention of 1899 not trying to set a standard of conduct by the signatories?
Are you saying that these Officers thought that shooting unarmed civilians was legal?
The fact that 0% of those who were executed during the Boer War were given the right to appeal to the King or Queen is very relevant since it indicates the norms of the time.
James, the question you prefered to evade is therefore an important one.
The claims you make are at odds with the findings of Col St Clair and Pemberton. Their’s is in fact the second last word by the Court, Kitcheners decision being the last. This means that your facts are wrong about the Courts finding about Captain Hunts death. Since the facts would hardly make great propaganda I understand why opportunistic people would use false information and hope no one points out the facts.
The authoritative book on the Breaker Morant case is Arthur Davey’s book “Breaker Morant and the Bushveldt Carbineers” published in 1987 by the Van Riebeeck Society in Cape Town.
On pages 139 to 141 Arthur Davey quotes the following Legal Opinions of Colonel St Clair (Deputy Judge Advocate General) and Colonel Pemberton (Deputy Judge Advocate).
What follows, the letter to the Attorney General regarding the findings of the Courts Martial, is the same information available to Kitchener when he had to decide on the fate of the officers (See Davey page 114) .
When you read this it seems quite clear why Kitchener decided to have Morant and Handcock shot.
Why he did not have Witton shot seems to be the real question…
“A.G.
The procedure in these trials was by trying the prisoners jointly on each charge of murder and conducting each trial to its conclusion, including the sentence.
It resulted from this mode of procedure that Lieut. Morant has been convicted three different times of murder and sentenced three times to death.
Lieuts. Picton, Handcock and Witton have been convicted of manslaughter and sentenced to cashiering, Lieut. Handcock has been also twice convicted of murder and sentenced to death twice.
Lieut. Witton has been also convicted of murder and sentenced to death.
From the above it appears that the responsibility of these illegal acts were in the following order:
- Morant 2. Handcock 3. Witton 4. Picton.
According to rules of procedure 48 and 62 the trial on the separate charge sheets should have proceeded up to and including the findings – but that one sentence should have been awarded each prisoner for all the offences of which he was convicted.
This irregularity has not in my opinion inflicted any injustice on Lieut. Morant but I am not prepared to say that it has not done so in the other 3 cases. A heap of irrelevant evidence was admitted by the Court on the part of the defence despite the rule of the Judge Advocate who I consider was justified in protesting.
Signed by Col. St Clair on 20 Feb 1902
Colonel Pemberton Remarks:
Lts Morant, Handcock, Picton and Witton BVC.
I consider that Lieut Morant was properly convicted.
Murder of Visser
- The so-called Court [Conducted by Morant] was not a court at all; it may be more justly called a consultation between 4 officers which ended in a party of subordinates being ordered to commit murder.
- The provocation theory will not hold water. [Emphasis provided] Visser was captured on the evening of 9 August – he was not shot until the next day; had he been shot at once there might have been a slight presumption that his execution was ordered on the spur of the moment – but the evidence discloses a totally different state of affairs – Visser was not executed until the next day. Lieut. Morant himself admits that the death of Capt. Hunt gave bias to his mind. A stronger case of implied malice aforethought has rarely been represented before any tribunal – I fail to understand on what grounds the other 3 prisoners were found guilty of manslaughter only – I disagree with their finding; from the evidence adduced I consider the 4 officers are jointly and severally responsible for the death of Visser and guilty of murder. I do not think it proved that Visser was wearing British uniform.
Signed by A.R. Pemberton, Col
Col J. St Clair wrote “I agree.” and signed his name.
8 Boers
I consider that the above officers were rightly found guilty of the charge preferred against them. The evidence shows that they “took the law into their own hands” an illegal proceeding for which they should take the consequences. The plea of justification falls to the ground.
Signed by A.R. Pemberton, Col
Col J. St Clair wrote “I agree.” and signed his name.
3 Boers
Lts Morant and Handcock
I consider the prs [prisoners] were rightly convicted. Lieut. Morant evidently constituted himself the avenger of Capt. Hunt and should take the consequences.
Signed by A.R. Pemberton, Col
Col J. St Clair wrote “I agree” and signed his name.
Major Lenehan late Comm. Of Bushveldt Carabineers
Convicted of
Neglecting to make a report of the illegal shooting of a comrade [Tpr Van Buuren] by one of his men [Lieut Handcock] which fact had been brought to his notice by his officers.
Sentenced to be reprimanded.
I am of the opinion that the evidence justified the finding. The prosecution was embarrassed by the absence of Lt. Col. Hall, lately commdg at Pietersburg to whom reports had been made from the Spelonken.
The action of Major Lenehan in this matter was probably caused by his anxiety to keep the scandals in his corps from becoming public and may possibly be looked on as a grave error of judgement."
My conclusion after reading the last verdict by members of the Courts Martial given to Kicthener for his final decision:
- The provocation theory was rejected by the most qualified legal minds with complete knowledge of the facts following the Court Martial. This formed part of the legal process. The finding above is therefore the second last word on the case, the last being that of Kicthener.
- The Court did not believe Captain Hunt was tortured and murdered by the Boers.
- They thought that the death sentences were appropriate.
- The Court found that Tpr Van Buuren was shot by Lt Handcock. Those who claim to seek “justice” would do well to ask for Handcock to be charged with the murder of Trooper Van Buuren (BVC), his own comrade.
Could there be any question about Lieutenant Handcock not knowing that it was illegal to shoot his own comrades?
Your reference to norms is exactly what has always concerned me about what amateur/professional historians have done, trivalised or ignored the laws and procedures of trial and sentencing that applied in 1902. These men had a right of appeal, it was denied. The findings of Col Pemberton / AG were reviewable, and appeal was denied, as serious miscarriage justice in 1902 as in the present!
St Clair made very direct conclusions about orders to shoot prisoners, somnething that many so called experts and historians denied ever existed. Even Davey, who knew of the existence of St Clair’s written findings, failed to acknowledge or realise its legal significance. The British Command at the time of the trials and since have failed to accept the culpability of Hunt, Taylor and other British officers who wroked directly for Kitchener. If justice meant anything, then their culpability needs to be acknowledged and an admission made that Kitchener was the architect of brutal rules of engagement that caused so much death and destruction to Boers, both civilians and fighters.
If you are so determined to support the convictions and sentences of Mrant et al, then open your mind to the methods that were used to fight a war that the British was loosing, a determined insurgency, the likes of which the British military had not encountered in wars fought in Europe.
Your conclusion are in error:The court was satisfied that Morant believed Hunt had been tortured and killed, hence its recommendation for mercy.
Handcock was never tried or convicted of Van Burren’s killing. If there was evidence why wasn’t he charged? Speculation about this and Heese shooting is meaningless when it comes to assessing the case for pardons.
The law as it existed in 1902, including the status of the Hague convention was not clear and the issue needs to be settled by a judicial inquiry. This case will not disappear and doubts about the legitimacy of the convictions and sentences will persist. I am pleading for a judicial inquiry for the benefit of all descendants of the Boers who were kiled and those related to Morant, Handcock and Witton. We need an inquiry independent of government, transparent and open to the public.
I sense that British governments have feared this case for decades and consistently refuse to subject the case to judicial review. Instead it relies on internal advice of its own public servants, hardly a robust and open process to do justcie to a case where doubts linger, particularly on the issue of ordes issued to shoot prisoners. Perhaps it is this issue that the Britiosh government fears, to open for debate before a judicial inquiry, a process that would invite criticism and scrutiny of the revered military reputation of Lord Kitchener and his British subordinates who devised methods of warfare that were contrary to customary law.
Perhaps, you could use your energy and join me in the call for an inquiry to answer this and many other questions, after all, what have we to fear, surely not the truth? If these men were lawfully arrested, tried, convicted and sentenced, then let an independent process examine the issues and make a decision. We can then all move on.
I expect to have some more news about this matter very soon. Will post on this site and www.breakermorant.com
Regards
Jim Unkles
What I think is not the issue, I have referred to the findings of the courts martial on recommendations for mercy. The court officers heard and assessed the evidence, not you or me. Yes, they convicted the accused, but made significant findings and expressed them in recommendations for mercy. Kitchener failed to act on those findings and denied the men and their counsel the right of appeal. The case for pardons is about that denial and failure to act on the recommendations made.
The Hague convention and the rights of prisoners did not apply to the Boer war and the courts martial found that these men were completely ignorant of military law and customs. This finding hardly comes as a surprise. Colonials were recruited for their bush skills, to hunt an elusive and resourceful enemy. Colonials were not full time, British educated soldiers, experienced in war and the laws and customs of war. They signed contracts, (attestation forms) that stated they would obey all orders of their superiors and be loyal to the King and that’s exactly what they did.
The issue I have always had with this case is many historians, writers, commentators apply current standard to judge what these men would have known. I prefer to work from:
what the laws and customs were in 1902;
the findings of the recommendations of mercy. These findings reflect the judgement of officers who were present and assessed the evidence and made findings of fact.
Conclusion: Lee’s see what a judicial inquiry decides. I will be content with an outcome, (for or against pardons) decided by a process independent of the bias and agendas of the British government.