The Rule of Law and ‘Breaker’’ Morant Compromised !!

The decision of the Australian Attorney-General, Nicola Roxon, not to proceed with either an appeal to the British Government or a public enquiry into the “Morant Affair” was regretful and a failure to appreciate the principles of law, procedure and due process. Jim Unkles’campaign since 2009 to overturn the convictions and sentences in order to obtain posthumous pardons for the descendants of Morant, Handock and Witton will continue.

Roxon  overturned a finding by her predecessor, Robert McClelland, who went on the public record in August 2011 as saying, “…I have been persuaded in large part by the work you and Mr Denton have undertaken, that this case does raise procedural fairness concerns… I want to be sure that the British Government is aware that questions exist as to whether the men received fair treatment, in accordance with the standards accepted at that time.”

“It beggars belief that two Attorneys General, can interpret the same Departmental brief in such an entirely contrary manner. The very obvious legal flaws that were apparent to Mr McClelland must have been apparent to Ms Roxon, yet she, the Chief Law Officer, has chosen not to deal with them, I wonder why”

In his written submission to the Attorney-General Mr Unkles, backed by respected Melbourne lawyer, David Denton SC, maintained that the passing of time and the fact that Morant, Handcock and Witton are deceased does not diminish the errors and these injustices must be addressed to demonstrate respect to the rule of law. Mr Unkles contended that the issue is not whether Morant and Hadcock shot Boer prisoners, which they admitted to, but whether they were properly represented and Military Law properly and evenly applied.  Although Morant, Handcock and Witton admitted shooting Boer prisoners they were not the only ones, yet they were the only ones punished. Furthermore, were following orders – orders which, according to British military legal documents, did exist. Superior orders were a legitimate defence in 1902 according to the British Manual Military Law.

“All the inherent problems of the Attorney General also being a politician are evident in this letter. In an age where political policy seems to be driven by polling, it appears the Attorney General was more concerned with consensus and what people might think, rather than matters of legal principles.” Frankly, it has a Julian Assange ‘stench about it’, politics over legal principles and justice!

“It has been clear for 110 years that there are very divergent opinions on this case and a public enquiry would have allowed all parties to have their say and a retired judge to rule on its legal merits.”

‘’The losers in this decision are the descendants of three veterans men and all those who believe in the rule of law’.

“’Nicola Roxon was very concerned about the morality of advocating on behalf of the three Australians, yet made no mention of the morality of the British authorities who denied Morant, Handcock and Witton the legal rights they were entitled to, including a right to appeal death sentences – according to laws and procedures enshrined in the British Manual of Military Law 1902.”

Morant and Handcock were the first and last Australians to be executed during wartime and a century later it remains one of Australia’s most enduring military controversies. Opinion polls have consistently shown that around 80% of Australians feel the men were denied fair trials and were made scapegoats for the illegal and corrupt policies of the British military prosecuting a brutal war in South Africa.

However, Mr Unkles has insisted that this is not the end of the road in the campaign to get justice for the three Australians. He now intends to take judicial appeal action in the British courts to challenge the convictions and sentences of 1902

“I have exhausted all the possibilities and avenues of appeal with regard to the British and Australian governments and the Queen. Consequently, I will be lodging an appeal in the British High Court in London.”

“I look forward to finally having this case reviewed purely on its legal merits without political interference and agendas to appease interests. This controversy was created in a court of law and its only fitting that it should be resolved there.”

Boer war historians who have researched the conduct of three Australian volunteers, Lieutenants Morant, Handcock and Witton, and their trials and sentences may have overlooked the significance of Australian jurist and politician, Isaac Isaacs, who in 1902 came to the defence of George Witton.  Isaacs, a Kings Counsel and MP in 1902, (subsequently appointed as the first Australian born Governor General and Chief Justice of the High Court) applied his skills and reviewed the Witton’s convictions and sentence by courts martial. In August 1902, 6 months after Morant’s and Handcock’s executions, Isaacs completed a legal advice and a petition to the King.[i]

His work paralelled the storm of protest from Australians, representations from the South African Government and British politicians, including Winston Churchill for Witton’s release.  Isaacs dogged legal work, combined with protests and the petition eventually secured Witton’s release from prison in late 1904.  Witton served less than three years for offences that had been characterised as capital offences that deserved the severest of punishments!

Background

My interest in Isaacs grew from my research into the case against the three Australian veterans and how such an eminent jurist like Isaacs was so convinced of the injustice done to Witton that he acted on his behalf.  I was also intrigued how Isaacs was retained as counsel, what involvement did George Witton’s brother, Ernest have with Isaacs and how a petition that secured at least 80 000 signatures, was circulated through Australia.?

My research into the Isaacs connection followed from what George Witton stated in his book[ii]

On the 12th of November 1904 after a chequered experience extending over nearly five years, I placed my foot again on native soil.  On my arrival in Australia, I met among others, Mr Wrainwright, general secretary of the Australian Natives Association and his son, Mr Austin Wrainwright who so ably assisted my brother in his efforts towards my release.  I also met Mr Alfred Deakin a true compatriot who during his term of office as Prime Minister of the Commonwealth had been untiring in his efforts to secure my liberty and return to Australia.’

Witton’s reference to the ANA led me to the archives section of Australian Unity.[iii]

Australian Unity is a diversified mutual company that is owned by its customers has a rich history and is founded on creating social value.  It provides high trust products and services in healthcare, retirement living and financial services.  The company has material growth ambitions in all its businesses over the coming five years, and an aspiration of being known as a thought leader on key aspects of community wellbeing

Australian Unity has a long and proud history dating back to 1840. Australian Unity as an entity was formed by the merger of the Australian Natives’ Association Friendly Society (ANA) and the Manchester Unity Independent Order of Oddfellows in Victoria Friendly Society in 1993 and expanded further in 2005 through a merger with Grand United Friendly Society Limited[iv]

The Australian Natives’ Association (ANA) was established in Melbourne in 1871. It was founded as a friendly society whose membership was open to Australian-born males only. It gradually established city and country branches in Victoria. The ninth branch to be formed was in Charters Towers, Queensland in 1879. By 1901, 205 branches had been formed. When the ANA was formed, it had two aims—to act as a friendly society offering financial support to its members in need, and to promote the moral, social and intellectual improvement of its members.

My research (though ANA branch minute books) revealed the following:

• Isaac Isaacs was a member of the ANA;
• Alfred Deakin, PM was also a member, who lobbied the British government for George Witton’s release from prison;
• George Witton had been an ANA member since 1899.  His brother, Ernest was also an ANA member;
• Ernest Witton circulated copies of the Isaacs petition to ANA branches.   Ernest wrote to the ANA branches as follows:[v]

I have the honour to send you the enclosed petition addressed to His Majesty the King praying for the release of Lieutenant Witton, a famous Australian citizen and one among the thousands who left native land and kindred to fight for the flag.  The petition is founded upon and in accordance with the opinion of the Hon. Isaac Isaacs, KC, MP of Victoria and is circulated for signature throughout the Commonwealth.  It is desired that all signatures should be simply as citizens of the Commonwealth and not in any sense official.   I sincerely trust you will find it agreeable to your sense of justice to sign the petition yourself and help in obtaining other signatures.’

• An original petition and signature pages were collated and sent by covering letter signed by Ernest Witton to the Australian Governor General, Lord Tennyson.  The letter stated;[vi]

The petition contains over 80,000 signatures, including those of Members of the Commonwealth Parliament, members of the State Parliaments throughout Australia, representatives of commercial and business men, representatives of banking and insurance companies, barristers, clergy and members of all the learned professions. it has been numerously circulated and subscribed to by the Friendly Societies throughout the Commonwealth and has been enthusiastically taken up and signed by members of the rifle clubs.

• Following his release from prison and return to Australia, George Witton toured Australia and gave presentations to ANA branches.
• The support Ernest and George Witton received from the ANA is best summarised by the entry made in the ANA’s magazine.  It stated[vii]

Lieutenant G.R. Witton, who arrived from England by the ‘Runic’, recently visited the offices of the Victorian Board of Directors on his return and was warmly welcomed by the General Secretary and the Hon, Alfred Deakin, MP.  It will remembered that the Lieutenant was court martialed and sentenced to imprisonment for life for having been concerned in the shooting of unarmed Boers in the South African War.

He was incarcerated in the Portland prison where he spent two and half years being released in consequence of the representations made by the Federal Government.  His brother, who is a well known member of the Association, worked very hard to secure the Lieutenant’s release and was considerably encouraged in his efforts through the sympathy and assistance of accorded him by the Hon, Alfred Deakin when Prime Minister

The role that the ANA played in assisting tom secure Witton’s release was significant and was achieved through the collaboration members of the ANA and Ernest Witton who circulated the petition though ANA branches

Isaacs’ professional analysis of the case against Witton (and by implication the prosecution evidence against Morant and Handcock), argued that the men obeyed orders that they honestly believed had been issued by their British superiors and that the principle of condonation ought to have been applied at the courts martial.  In this regard, Isaacs quoted from the Duke of Wellington edict on the performance of a duty of honour or trust after the knowledge of a military offence ought to convey a pardon. He also quoted from military lawyer of the time, Clode’s observation, ‘no soldier should be put on duty having hanging over him the sentence of a court martial.’[viii]

Conclusion

Historical argument on this case has filled journals, books, entertained readers and viewers and fuelled the egos of academics.  However, the military law of 1902 that was used to prosecute these men has never been thoroughly examined and re revisited to settle this controversial case.

Fortunately, Isaacs’ opinion still resonates in 2012 and provides compelling reason why these men should be pardoned.  Isaacs’ understanding of the case was contemporaneous with the trial convictions and sentences came from a jurist who held a prominent position in Australia.  My proposition is that Isaacs’ representation of Witton would not have occurred had he not been convinced that the charges against these men were not proved beyond reasonable doubt and did not receive fair trials

The law of the civilised society is more a more discerning and precise instrument than historical debate and I have focused on the legal aspects of this case.  This is where this saga began and where it will ultimately end – with the law, not history being the ultimate judge of whether Morant, Handcock and Witton were guilty as charged or used as political pawns for the crimes of their superiors.

If flaws were made in the administration of justice yet to be determined by an independent inquiry, then the British reputation for fair play and justice should prevail, apologies issued and pardons granted

Frank, a farmer from Queensland volunteered to join the war in South Africa and on the 27 January 1901 Frank was made Commanding Officer of the 5th Australian Contingent which sailed on 6 March on the Templesmore for South Africa. After service with the Australian Bushmen as they were called, Frank was transferred to Colesburg as Area Commandant. Amongst a rebel farming population he had 4 District Commandants under him and his area covered 8,000 square miles. He had the power to raise mounted troops and town guards. He had to watch the rebel farmers and supervise all supplies. Frank completed his service and returned horiie in 1902. On 19 June that year he resigned his commission in the Queensland Defence Force and returned to Lowood on the 13 August.

Frank’s letters discuss tactics used by the Boers agaisnt the British and Colonial soldiers, African natives and scouts and Dutch civilians who sided with the British.  Some letters also discuss orders to shoot Boer prisoners.  Some of his assertions corroborate claims made by Breaker Morant and George Witton on the tactics used by both the Boers and the British to prosecute the war.

I will include some of the exerpts of the letters on this Blog topic.  Suffice to say, the contenets of the letters challenge much of what has been claimed by historians and provides new insights into the conduct of the war by senior commanders on both sides.

I am grateful to the Flewell – Smith family for their approval for me to study and publsih some details of the letters.

However, I appreciate the support I have received from other South Africans who understand that Morant, Handcock and Witton were victims of their British Superiors who gave the ‘no prisoners’ order and used these men as scapegoats to deflect responsibility for their own culpability.

A number of South Africans who signed the on line petition include,  John Hall,  Susan Van Staden, Louis du Plessis, Roche Petersenm,  Cobus Strydomm , Rob Marshall and Marga Williams.  The following is a statement from John Hall, (dated 11 Nov 11) who supports the case for pardons.  He made this comment on the petition site:

 ’lets get over our selfs if need to review the case lets then do it. these people shoulh have been pardoned years ago. i am a white south african, Afrikaans speaking and can not believe we still live in 1901 in the boer war. if there is still people living there shame thats why we get nowhere. PARDON THEM. We are in 2011 leave the past in the past‘

Rob Marshall also supports pardons.  He stated  on 13 Nov 11:  ‘The British government were looking for a scapegoat and these unfortunates were conveniently available‘

 I appreciate their support and understanding that it is time to deal with this case and deliver justice through pardons.

Regards

Jim Unkles

The British Government’s Secretary of State for Defence, Mr Liam Fox, MP has announced that the petition for pardons (quote) ‘does not identify any new primary evidence and I have determined that there are insufficient grounds on which to take the petition forward’ (end quote).

The refusal of the British Government to consider the case for pardons and the evidence that says Lieutenants Harry “Breaker” Morant, Peter Handcock and George Witton did not receive fair trials and should not have been sentenced to death is an insult to our democratic traditions of due process of law.

I would like to offer the descendants of these men my sincere apology for the decision made by the British government. I join Australians who support the case for pardons in condemning the decision about this case as it demonstrates the British government’s refusal to have an independent judicial assessment of the case in an open and accountable manner and without the interference of those who support this travesty of justice.

In 1902, the British conducted a trial of these men in secret and without consultation with the Australian government. One hundred and eight years later, Dr Fox has again conducted a review in secret, without any accountability to the public and scrutiny of his decision. Although I produced previously ‘hidden‘ evidence of orders of British officers to men like Morant not to take prisoners, Dr Fox has refused to convene a judicial inquiry to assess all the evidence for and agaisnt the granting of pardons. The evidence of superior orders is compelling and corroborates what Morant said, that he obeyed orders and yet payed the ultimate price while his British superiors, (in particular Captain Taylor) escaped liability!

Regrettably, Secretary Fox has relied on the advice of public servants in his Department rather than an assessment by an independent judicial officer. Further, the decision is protecting the reputations of senior British military officers, in particular Lord Kitchener who used these men as scapegoats for flawed tactics in fighting the Boers in 1902.

This decision is not only against the weight of evidence in support of pardons, it is an insult to the Australian House of Representatives inquiry into the matter in March 2010 when the case was described as strong and compelling. It also flys in the face of prominent judicial figures, MPs and others who have urged the British government to do the right thing and subject the case to a judicial inquiry and not rely on the subjectiveness of British public servants ‘behind closed doors’.

This case won’t go away with this decision. It will continue to attract support for justice and criticism of the British Government. Winston Churchill once said, ‘If you are going through hell, keep going’. I assure the British Government, the case for pardons will continue and redress will be sought through judicial means!! I have already commenced work in this regard, to get this case away from bureaucrats and before a judge in an open and transparent hearing.

A final word about the Australian government! The reluctance of the Gillard government to lobby the British for a fair and transparent judicial review is regrettable. While Ms Gillard supported a mercy plea for drug trafficker, Schapelle Corby she has ignored the plight of the ‘Breaker’ !

Details of the case for pardons can be viewed at: www.breakermorant.comThe public are invited to sign the on line petition and poll and write to protest about this decision to:

Rt Hon Philip Hammond MP, Secretary of State, Ministry for Defence,
Level 4 Zone B Main Building Whitehall, London SW I A 2tIB and:

The Hon Julia Gillard MP, Prime Minister, Parliament House
CANBERRA ACT 2600

jamesunkles

Ms Fyfe has called on the British government to, ‘review the convictions and sentences against Lieutenants Morant, Handcock and Witton through a proper inquiry in the spirit of fairness, justice and integrity on which both our great nations were founded.’

This call for an Inquiry by Ms Fyfe again demonstrates Australia’s concerns about the case and the need to review the case in a fair and transparent manner.

Paterson was an Australian bush poet, journalist and author. He wrote many ballads and poems about Australian life, focusing particularly on the rural and outback areas, including the district around Binalong, New South Wales where he spent much of his childhood. Paterson’s more notable poems include “Waltzing Matilda“, “The Man from Snowy River” and “Clancy of the Overflow“.

In 1885, Paterson began submitting and having his poetry published in the Sydney edition of The Bulletin under the pseudonym of “The Banjo”, the name of a favourite horse. Paterson, like The Bulletin, was an ardent nationalist, and in 1889 published a pamphlet, Australia for the Australians which told of his disdain for cheap labour and his admiration of hard work and the nationalist spirit. In 1890, The Banjo wrote “The Man from Snowy River“, a poem which caught the heart of the nation, and in 1895 had a collection of his works published under that name. This book is the most sold collection of Australian Bush poetry and is still being reprinted today. Paterson also became a journalist, lawyer, jockey, soldier and a farmer.

Paterson became a war correspondent for The Sydney Morning Herald and The Age during the Second Boer War, sailing for South Africa in October 1899. His graphic accounts of the relief of Kimberley, surrender of Bloemfontein (the first correspondent to ride in) and the capture of Pretoria attracted the attention of the press in Britain.^[3] He also was a correspondent during the Boxer Rebellion, where he met George “Chinese” Morrison and later wrote about his meeting.^[3] He was editor of the Sydney Evening News (1904-06) and of the Town and Country Journal (1907-08)

On 8 April 1903 he married Alice Emily Walker, of Tenterfield Station, in St Stephen’s Presbyterian Church, in Tenterfield, New South Wales.  One of his most famous poems is “Waltzing Matilda“, which was set to music and became one of Australia’s most famous songs. Others include “The Man from Snowy River“, which inspired a movie in 1982 and inspired a TV series in the 1990s, and “Clancy of the Overflow“, the tale of a Queensland drover.  Paterson’s poems mostly presented a highly romantic view of rural Australia. Paterson himself, like the majority of Australians, was city-based and was a practising lawyer. (refererence http://en.wikipedia.org/wiki/Banjo_Paterson)

During his career, he became a close friend of ‘Breaker’ Morant and given his contact with Tenterfield, he apparently met Major James Thomas, the lawyer who defended Morant at his courts martial in 1902.

In an extroadinary letter to the Sydney Morning Herald dated 25 Feb 1939 http://newspapers.nla.gov.au/ndp/del/article/17564428),  Banjo gave a a ‘lively’ description of ‘Breaker’ Morant and how they became acquainted.  What is intriguing is Banjo’s meeting with Major Thomas.  In a paragraoh entitled, the ‘Execution of Morant’, Banjo describes what he had been told by Thomas.  In particular, Banjo’s description of Thomas’ story said in part, ‘

“Morant was sentenced to death “Thomas said, “but I never believed the execution would be carried out.  When I found that the thing was serious, I pulled every string I could; got permission to write to Australia, and asked for the case to be reopened so that 1 might put in a proper defence. It was of no use,  Morant had to go.   He died game. But I wake up in the night now, feeling that Morant must have have believed that he had some authority for what he did and that I ought to have been able to convince the Court of it.’

Banjo’s story also claimed:

‘I happened to know all that was to be known about Morant’s trial and execution, for the lawyer who defended him, one J F Thomas, of Tenterfield asked me to publish all the papers-evidence cablegrams decision appeal etc-a bulky bundle which he carried about with him grieving over the matter till it seriously affected his mind He blamed himself, in a measure for the death of Morant but I could not see that he had failed to do the best he could with a very unpleasant business.’

Comment

Banjo’s description of his discussion with Thomas confirmed:

• Thomas consistently maintained that his clients did not receive fair trials and an appeal against convictions and sentences should have been permitted in the interests of justice;
• Thomas blamed himself for failing to convince the courts martial in the defence of Morant;
• Thomas  suffered mental anguish for many years after the courts martial;
• Thomas carried with him documents about the trials and wanted Banjo to publish the documents.

From my own investigation of this matter and Banjo’s writings, it appears that Banjo either did not receive the papers from Thomas or if he did, they were not published.  The papers as described by Banjo could have included Thomas’ copy of the courts martial transcripts.  Another intriguing aspect of the Morant case.  Had Banjo received and published the court documents, the case for pardons could have relied on a record of all the evidence given at the trials, directions of the Judge Advocate etc

This communication betweeen Banjo and Thomas is a another fascinating aspect of Australia’s military history.

Jim Unkles

‘He continued to conduct his practice in jail and work seemed to continue to arrive from Tenterfield and he seemed to also to be the jail solicitor, representing some other prisoners.’

Thomas died alone, a lonely and somewhat embittered man on Armistice Day (11 November) 1942 from nephritis and malnutrition at his small property at Boonoo Boonoo near Tenterfield. Perhaps the Morant trials and his experience of British ‘justice’ had a profound affect on his mental health.

In one of the few books published by Witton that has survived to this day, Thomas made an inscription on the inside cover, it reads:

‘This book only gives a superficial statement of the facts, much that Lieut Witton probably did not know is not given, The true story of the Bushveldt Carbineers has never been written. These officers were truly ‘scapegoats’ shot or imprisoned not so much for their own sins but for those of the system of militarism in which they were involved and which was responsible for the drastic instructions secretly issued from high places to irregular corps against the indomitable Boers. In the later European war Regular Army Officers were not given the opportunity to season themselves by victimising Colonial Officers, as was the case in the South African war.’

This was an emotional and extraodinary claim by Major Thomas. Critics would argue that it amounts to no more than a self serving and perhaps bitter complaint about the British system of justice. It certainly does not contain any material that could be construed as probative evidence that would assist an inquiry to decide questions of fact that are in dispute, such as the issuing of orders to shoot prisoners.

Nevertheless, when compared to other writings of Major Thomas (to Australia shortly after the sentences took place), the inscription is consistent with his statements and belief that Morant, Handcock and Witton were ‘scapegoats’ for a flawed policy of war and those who were really responsible (British regular Officers) escaped liability for their actions.

I place great credibility on Major Thomas’ writings. It must be appreciated that he sat through the trials, ‘sifted’ through evidence, examined witnesses and had first hand exposure to the evidence for and against his clients. His writings are one of the few ‘eye’ witness accounts that have survived to this day and as such are important. My view is that his writings rate highly alongside those of Witton, Thomas’ client who survived to tell his story of what he witnessed during the investigation, trials and sentencing processes.

The inscription by Major Thomas is an important piece in the puzzle of what actually happened in South Africa in 1902.  Major Thomas’ writings are to be celebrated and should be respected as those of an officer and lawyer who performed his duties in most difficult circumstances and under extraordinary pressure.  

Major Thomas also pleaded the innocence of his clients (Morant, Handcock and Witton) in his writings to newspapers and to individuals, including politicians.  The following extracts demonstrate his unwavering claims that his clients were innocent, did not receive trials and the sentences were excessive.  I have highlighted Thomas’ writings, since he is one of the few individuals who was at the courts martial and who can claim to have an intimate understanding of the evidence that was given at the trials and the claims made by his clients.

For the record, I have reproduced Thomas’ writings to assist in assessing the case for posthumous pardons.  The fine thread that runs through Thomas’ writings between 1902 and his death in 1942, is the consistent plea that his clients were denied justice. 

The writings are as follows:

No 1

Letter from the Prisoners Counsel

2^nd March 1902

Dear Sir,

 I have the painful duty, though I am glad it is not so painful as it might have been, of giving you some particulars of the conviction (for instigating to murder) of your son. Lieutenant George R Witton late of the Bushveldt Carbineers. I do not know whether he has told you that he, with other officers of that corps, has been under arrest since 24^th October last, charged with various offences, principally instigation to murder certain Boers. For being concerned in these affairs he has been sentenced to penal servitude for life whilst two of his brother officers have been shot.

Now, I may say at once that I believe when the facts become known to your Government, it will not be long before you son is released. But in any case I anticipate he will be kept a prisoner till the war is over, or possibly till the King’s Coronation. But of course this is only my surmise.

I acted as counsel for your son and other officers at the trial, and consequently all the facts and all the evidence is known to me, and the evidence is all in my possession. I am seriously dissatisfied wit the severe punishment meted out, which has astounded, I think every unbiased person. I cannot say much here. But to one at least of the officers who has been shot (a New South Wales man) I owe a sacred duty and that is to let Australia know all the circumstances. Lieutenants Morant and Handcock (who were shot here on the 27^th uli) were convicted, together with your son by a court martial consisting of Imperial Officers, of ordering their men to murder (as the charges alleges) several Boers who had been captured under the following circumstances, briefly stated: The evidence distinctly shows that their senior officer, Captain Hunt, formerly a Hussar officer, gave his junior officers and his sergeants orders that (after a train wrecking episode, in which an officer and a number of men were killed, near Pietersburg) they were to “take no prisoners.” Hunt was soon afterwards killed himself, and Lieutenant Morant, his personal friend for years- succeeded to command the detachment. Hunts body was badly mutilated by the Boers. Morant swore vengeance, and swore to carry out Hunt’s orders. He pursued the party of Boers that had done this to Hunt and captured one that was hit through the heel and had portion of Hunt’s clothing in his possession. It was decided to hold a “drum head” Court Martial, of which your son was made a member, and the Boer was found guilty of wearing khaki and of being implicated in the barbarities to Hunt, and was shot by firing party. Your son said “I will be guided by my Superior officers.” And that is all the part he took in the affair, but subsequently eight Boers who had been captured in some outlying place, and who were being sent in under a sergeant, were met on route by Morant, Handcock and your son, and under Morant’s orders they were all shot for being train wreckers, bandits and concerned in Hunt’s maltreatment. Your son was present, and a Boer who rushed at him as shot by him. It was considered by the Court Martial that these executions were illegal, and that all the officers present were equally to blame for the shooting of these Boers by their men. The defence maintained that under the customs of war the shooting of these Boers was allowable as they were merely roving bands of marauders. It was proved that in other cases exactly the same procedure was adopted and approved of by other officers. Consequently you will see from a soldiers point of view at any rate the crime brought in was not so dreadful as might appear- for technically it was a crime. Your son, too, took a very minor part, and I cannot conceive that one so young in years (and an Officer) will ever be allowed to carry out anything like the life long term of penal servitude. I only regret that poor Morant and Handcock did not receive the same sentence: but, poor fellows, they were shot at about eighteen hours notice. Over Handcock’s death I have suffered deepest grief. It may be that before long I shall be back in Australia when I shall make it my business to let the Government know the position. Your son has been sent a prisoner to England, and I think it would be wise to defer any active steps concerning him till the Australian Commonwealth Government is in possession of the facts. As counsel for your son, and the other officers, I should like to see that all the facts- from the prisoners point of view-are fairly brought forward. You might see the Premier of Victoria and show him this letter. As regards your family, though the occurrence cannot but be painful and cause you all much anxiety, I think that I can safely assure you when everything is known you will not think the disgrace amounts to much or anything. War is war and rough things have to be done. Only yesterday news came in of horrible barbarities on the part of the Boers towards some of our colonials. I dsay they deserve all (the Boers) get, and with less nonsense and sentiment the war would be over. I have to send you a few little things of your son’s by and bye-

Yours truly

J.F. Thomas, Army Post Office, Pretoria 2^nd March, 1902

No 2

 Major Thomas write a letter to the Premier of WA.  The letter was dated 2 May 1902 and asked the Premier to forward to the Perth newspaper, a letter Thoams had written about the trials of Morant, Handcock and Witton.  The Premier responded to Thoams and declined to have his letter forwarded to the newspaper for publishing because it related to Army matters.  However, the Premier offered to forward the letter to the PM of Australia for consideration.  It was eventually sent to the Acting Minister of State for Defence.  

• In the letter, Thomas made comments including that his clients had followed orders not to take prisoners, their actions were sanctioned under reprisals against a ruthless enemy, the reprisals were legal and justifiable, the British press had attributed horrors and enormities to the BVC and his clients that had not occurred, the trial and sentencing of his clients had occurred without any reference by the British to the Australian government.

No 3

In a meeting with Perry John Alfred Ironside, an old school friend (Kings school, Sydney, 1876-79), Thomas gave a candid explanation of his experiences in South Africa.  According to Ironside, Thomas claimed that the execution of Morant and Handcock was a mistake and Lord Kitchener had attempted to silence the writings of a journalist who had attended the trial of Morant.

No 4

• Banjo Paterson was a friend of Breaker Morant, noting their mutual appreciation of poetry. At some point Paterson must have met Major Thomas as in a letter to the Sydney Morning Herald in 1939, Paterson wrote: [i] 

‘I happened to know all that was to be known about Morant’s trial and execution, for the lawyer who defended him, one J.F. Thomas, of Tenterfield, asked me to publish all the papers – evidence, cablegrams, decision, appeal etc. a bulky bundle which he carried about him, grieving over them matter till it seriously affected his mind. He blamed himself, in a measure, for the death of Morant, but I could not see that he had failed to do the best he could with a very unpleasant business. “Morant was sentenced to death,’ Thomas said, ‘but I never believed the execution would be carried out. When I found that the thing was serious I pulled every string I could; got permission to wire Australia, and asked for the case to be reopened so that I might put in a proper defence. It was of no use. Morant had to go. He died game. But I wake up in the night now, feeling that Morant must have believed that he had some authority for what he did and I ought to have been able to convince the Court of it.’

[i] A.B. Paterson – Sydney Morning Herald 27th February, 1939

Copyright © James Unkles 2010

Condonation is a misunderstood principle of Military law that can be traced back to the times of the Duke of Wellington and his role in the Peninsula wars of 1807 culminating in the battle of Waterloo in 1815.

In a despatch dated 11 April 1813, Lord Wellington stated: ‘No soldier should be put on duty having hanging over him the sentence of a court martial

Condonation consists of two aspects, any offence has been committed by Officer or soldier and that offence not punished or forgiven but advisedly overlooked, the person implicated being continued in his employment and secondly, the performance of a duty of honour and trust after knowledge of a military offence.

The application of condonation should have caused pardons to be granted to the accused at the time of the trials or after their convictions but before sentences had been carried out. Condonation arose from the call to service during a Boer attack on Pietersburg on 22 January 1902 and again on 31 January 1902. Condonation should also have been recognised as a ‘plea in bar’ due to the offences being condoned or pardoned by a competent military authority.

‘When any offence has been committed by Officer or soldier and that offence not punished or forgiven but advisedly overlooked, the person implicated being continued in his employment these circumstances are held to be a good plea of condonation and a bar to further proceeding’ [/i]C.Clode, Military Forces of the Crown 1869, p. 173

There is adequate evidence to support a plea of condonation at the trials of Morant, Handcock and Witton even though their counsel and the trial officers failed to raise the issue at the time. The passing of time since the trials ought not to be held against the convicted men. Nor should the fact that condonation was not considered and discussed by counsel, trial officers and legal personnel responsible for the review of the proceedings and advice to the confirming authority, Lord Kitchener.

If it is concluded that there is insufficient evidence to support a finding of condonation by a ‘competent authority’ there is sufficient evidence of condonation by way of the performance of a duty of honour by Morant, Handcock and Witton during the Boer attack at Pietersburg. As argued by Isaac Isaacs in the Witton petition, this action by the men should be recognised.

One authority has stated:‘The acquittal of Morant whilst certainly open on the evidence, is with hindsight best supported by the defence of condonation based on the call to service during the attack on Pietersburg.’ odd, Robert, Morant Harry Harbord (1864-1902) Australian Dictionary of Biography, Vol 10, 1891 – 1939, Lat-Ner, U.P. Melbourne 1986, p.5

• Condonation in military law applied at the time of the courts martial of Morant, Handcock and Witton;

• Condonation consists of two aspects, any offence has been committed by Officer or soldier and that offence not punished or forgiven but advisedly overlooked, the person implicated being continued in his employment and secondly, the performance of a duty of honour and trust after knowledge of a military offence;

• The proof of either aspect of condonation rests with the accused and should amount to a plea or grounds for a pardon;

• The principle of condonation received sanction in the 19th century from Lord Wellington;

• The 1899 Manual of Military Law Rules of Procedure 36 A (2) outlined the procedure for a plea in bar of trial on the grounds the offence had been condoned. Rules of 46 Procedure 36(A) (2) recognised the principle that an offence could be condoned “by the deliberate act of some superior authority” Rules of Procedure 34, Note A;

• ‘When any offence has been committed by Officer or soldier and that offence not punished or forgiven but advisedly overlooked, the person implicated being continued in his employment these circumstances are held to be a good plea of condonation and a bar to further proceeding’ C.Clode, Military Forces of the Crown 1869, p. 173;

• The offences committed by Morant, Handcock and Witton were condoned by Colonel Hall (competent authority);

• Morant, Handcock and Witton performed a duty of honour and trust after knowledge of their military offences. They were called to arms by their commanders while under arrest, confinement and trial. Once on 23 January 1901 when they assisted in the defence of Pietersburg during an attack by Boers. Again on 31 January 1901, Morant, Handcock and Witton were being transported by train enroute from Pretoria to Pietersburg and were called to bear arms when Boers were sighted on the rail line;

• In the courts martial condonation was not raised. This does not mean that a pardon on the basis of condonation cannot be exercised posthumously and granted by legislation or on proclamation by the British Crown

Manual of Military Law 1899 – Condonation

The trial procedure at the time of the Morant trial recognised the plea of condonation. The 1899 MML Rules of Procedure 36 A (2) outlined the procedure for a plea in bar of trial on the grounds the offence had been condoned. Rules of Procedure 36(A) (2) recognised the principle that an offence could be condoned or pardoned by a competent military authority ‘by the deliberate act of some superior authority’ Rules of Procedure 34, Note A gave directions on how a court would proceed with a special plea.

In the MML, Paragraph 53 also stated:

‘A plea in bar may also be offered by the prisoner at the time of his general plea of guilty or not guilty on the ground that the offence has been pardoned or condoned. The plea must be recorded at as well as the general plea of the prisoner and maybe supported by evidence. If the court find the plea not proven they will proceed with the trail, if they find it proven they will notify their finding to the confirming authority and adjourn unless there is some other charge against the prisoner not affected by the plea. In either case the finding requires confirmation’

Circumstances concerning the Performance of a Duty of Honour and Trust after knowledge of a Military Offence

The second ‘limb’ of condonation involves a pardon for the performance of duty after the commission of a military offence. This aspect has also received considerable comment from jurists and historians who have asserted that a pardon should be granted to Morant, Handcock and Witton in recognition of the service they rendered while under close arrest and trial.

Incident One. During the first court martial, the fort at Pietersburg was attacked by Boers led by General Beyers on two occasions, once on 22 January and again the next day. The first attack was successful for the Boers, however in the second attack the Boers were met with fierce resistance. Incredibly, Handcock, Witton and Morant were released from their cells and given firearms:

‘These two Officers climbed on to a block house roof and from an exposed position poured a hot fire into the Boers as they closed in. They fought fearlessly until the Bores were driven off in a north easterly direction. Beyers second attack had been a complete failure and some of his men had fallen a mere few yards from the block house.’

Renar, ( Bushman and Buccaneer, a Memoir of Harry Morant), noted that the officers were:

‘brought out of their cells to help fight for the lives and freedom of their gaolers, Morant was in command at his own prison, and right gallantry he held himself fighting like the brave man that he was, and having probably in his heart more hope than fear of death since an evil fate threatened him just then so sorely. The other too, Lenehan, Picton, Handcock and Witton showed out as men of courage.’

In addition to the actions by the accused, Handcock was credited by Witton with killing the Boer leader, Marthinus Pretorius during the attack on Pietersburg on 24 January 1901.

In Adelaide Observer, Saturday April 5th 1902, included under the heading Melbourne, March 27 Supplementary particulars concerning the execution at Pretoria:

‘Between the dates of the arrest in October and the court martial in February the men who were under arrest continued to take part in engagements which were being fought from day to day, and they fought in one pitched battle of considerable magnitude. This fight took place when Commandant Beyers, having captured the town of Pietersburg, released 150 Boer surrenderers and armed them against the British. The officers who were awaiting trial led the Bush Veldt Carbineers in action and defeated Commandant Beyers, killing five of the enemy and wounding ten’.

Witton’s version of the Boer attack was:

‘Morant joined Handcock as soon as the firing commenced and they climbed together on to the flat roof of the fort, in the most exposed position. Disregarding any cover, they fought as only such brave and fearless men can fight. Handcock in particular, in his cool and silent manner did splendid work, one of his bullets finding its billet in Marthinus Pretorious, Beyer’s fighting leader. Handcock was the only man armed with a Mauser rifle and when Pretorious was brought in, dangerously wounded, it was found he had been struck with a Mauser bullet’.

The participation of Morant, Hancock and Witton in repelling the attack on Pietersburg was not raised in mitigation at the trial. The reason for this is not known. Perhaps defence counsel and or the trial officers were unaware of condonation. Whatever the reason, it appears the members of the court were also called to duty as Witton commented; ‘perhaps they were slightly tired by their exertions in the early morning.’

Incident Two. During their confinement the accused were also involved in another incident when they were called to bear arms. On 31 January 1902, during their confinement for trial and enroute from Pretoria to Pietersburg their train halted near Warm Baths Station as Boers had been sighted on the rail line. This occurrence caused concern as Boers had been very successful in attacking and derailing trains, killing British soldiers and damaging rail property. Witton claimed:

‘A member of the court came to our little sheep-truck and for the second time during our trial we were ordered to stand to arms.’

Although no offensive action against the Boers occurred, the fact remains Morant, Handcock and Witton were ordered to bear arms and they did so even though they were in confinement.
Of significance with both incidents is that:

• Morant, Handcock and Witton were ordered by their commanders to bear arms;

• They did not resist the order;

• On both occasions they were under close confinement;

• They did not attempt to escape custody even though they were armed;

• In the defence of the attack at Pietersburg, the accused use firearms against the enemy, defended their fellow officers and men in a brave manner and at risk to their own safety;

• Handock’s actions ensured the wounding and capture of Boer leader, Marthinus Pretorious.

Witton’s Petition – Condonation

Witton raised the plea of condonation, (through his counsel, Sir Isaac Isaacs, KC MP, noted jurist, legislator and later Chief Justice and Governor General of Australia) in his petition to the King and this together with other matters in the petition influenced the decision to grant his release.

The rules of procedure stated, ‘if he offers a plea in bar the court shall record it as well as his general plea

The 1899 MML Rules of Procedure (cited) outlines the procedure for a plea in bar of trial on the grounds the offence had been condoned.

Sir Isaac Isaacs was obviously persuaded by the application of condonation in Witton’s case. His opinion was that a plea of condonation remained valid, even after a sentence had commenced. This of course happened in Witton’s case as he commenced penal servitude before his petition had been lodged with the Crown.

At paragraph 12 of the Witton petiton for clemency, Isaacs urged the Crown to recognise an act of condonation on account of Witton’s bravery during an attack by Boers at Pietersburg.

In Isaac Isaacs’ 1902 legal opinion about Witton, he concluded that the incident at Pietersburg warranted the application of condondation. In his reasoning, Isaacs quoted from the Duke of Wellington’s edict on condonation, Article 450 of the King’s Regulations and concluded that Witton had been called to arms due the emergency that arose during the attack on Pietersburg.

Precedent – Condonation

At the time of the Morant trials there was a precedent for a plea of condonation. Pakenham gives an example of condonation at the Siege of Mafeking. An artillery officer named Murchison was tried and sentenced to death by Colonel R. S. Baden – Powell for the murder of the Daily Chronicle correspondent, named Parslow, ‘but later was released because of gallant services in the siege.’

The Murchison case is precedent for the principle that after a sentence has been passed and confirmed, any act by a condemned man involving the performance of a duty of honour and trust may convey a pardon. There appears to be no impediment to a plea of condonation after sentences have been confirmed or carried out. In the Murchison case, the trial and sentencing was complete when a duty of honour and trust occurred and condonation granted. In the Morant affair, the accused completed a duty of honour and trust after the charges of murder had been laid and before the first court martial concluded (in the defence of Pietersburg when attacked by Boers). In addition, a duty of honour and trust was committed by Morant in the capture of Boer commander Kelly in September 1901 after offences had been committed with Hall’s knowledge but before the accused were removed from duty and charges had been laid.
There is sufficient evidence to the requisite standard that the accused were condoned by a competent authority (Hall) and rendered loyal service when called to bear arms on two occasions while under arrest, confinement and trial.

Analysis of Isaac Isaacs, KC, MP

In support of the petitions lodged by the author, two significant documents were referred to, including legal opinion by Isaac Isaacs, counsel who acted on behalf of Lieutenant Witton and a petition for a pardon that was sent to the British Crown in 1902.

These two documents are very persuasive of the following issues:

• Condonation;

• Defence of superior orders;

• Sentences imposed on the accused and

• Mitigation circumstances with respect to Lieutenant Witton.

A paper dated 3 January 2010 written by the author is persuasive of the issues discussed herein.

A final word

Two notable lawyers have commented on the convictions of the Morant, Handcock and Witton and the principle of condonation. Their views are persuasive.

Charles Francis, QC (deceased).

‘While expressing no views on the facts that gave rise to the court martial of Breaker Morant and Peter Handcock (“Morant deserves a break,” February 6), their conviction was clearly wrong in law. Early in the 19th century the Duke of Wellington propounded the military legal principle of condonation. No soldier facing court martial could be required to perform military duties until his trial ended. If he were placed on military duties, that was a condonation of any offence previously committed and thereafter he could not be tried for it. During the process of Morant and Handcock’s trial, the Boers attacked the unit where they were imprisoned. They were temporarily released to fight valiantly in a successful defence action. Consequently, when the trial resumed, the court had an express duty immediately to discharge them, as their offence, if any, had been condoned. Kitchener would well have known their conviction was wrongful. Because of these executions, the Australian Government in the first days of World War I made Australian participation conditional upon no British court martial having the right to execute an Australian. Charles Francis is a QC and a Herald Sun reader’

Helen Styles, lecturer in International Communication at Macquarie University and member of the Red Cross Committee on International Humanitarian law summarises the view of the legal proceedings and condonation and concluded the convictions were unsafe:

‘I agree strongly with the argument that Morant, Handcock and Winton deserve to have the conviction quashed as unsound on technical grounds. They deserve to be pardoned on the basis of military practice and opinion juris, in accordance with Wellington’s belief that the performance of a duty of honour and trust after knowledge of a military offence ought to convey a pardon’

Conclusions

There is adequate evidence to support a plea of condonation at the trials of Morant, Handcock and Witton even though their counsel and the trial officers failed to raise the issue at the time. The passing of time since the trials ought not to be held against the convicted men. Nor should the fact that condonation was not considered and discussed by counsel, trial officers and legal personnel responsible for the review of the proceedings and advice to the confirming authority, Lord Kitchener. An opinion stated:

‘The acquittal of Morant whilst certainly open on the evidence, is with hindsight best supported by the defence of condonation based on the call to service during the attack on Pietersburg.’

If it is concluded that there is insufficient evidence to support a finding of condonation by a ‘competent authority’ there is sufficient evidence of condonation by way of the performance of a duty of honour by Morant, Handcock and Witton during the Boer attack at Pietersburg. As argued by Isaac Isaacs in the Witton petition, this action by the men should be recognised.

The granting of a pardon does have precedence. If it is accepted that Morant, Handcock and Witton should be pardoned, based on the application of condonation or for any other reason, then a legislative solution could be used as in the case of the pardoning of World War 1 soldiers for military offences committed during times of war. During the war, over 300 soldiers were executed by the British for offences such as desertion and mutiny. Executed soldiers included 5 from New Zealand.

In the New Zealand case, the Pardon for Soldiers the Great War Act 2000 achieved a just outcome for the descendants of the executed soldiers. Legislation was also used in Canada, UK and Ireland to pardon soldiers executed. Legislation is an appropriate form of achieving pardons.

Regards

Jim Unkles

Copyright © James Unkles 2010