Evidence of Orders Not To Take Prisoners- Revealed At Last!

One of the most controversial aspects of the case for the defence of Lieutenants Morant, Handcock and Witton has been their claim that they followed orders in shooting Boer prisoners.  Critics over the decades have consistently criticised the defence argument and ‘thrown’ out the challenge to produce evidence that such orders were ever given.

Witton quoted defending officer, Major Thomas’  statement to the court.  Thomas addressed superior orders, dealing with guerrillas operating under no rules of engagement or protocols of laws of war. In part he said, ‘the prisoners’ defence is that, no matter in what way the charge against them has been, or might have been framed, the action they respectively took in the summary execution of these eight Boers was justifiable, or, at any rate, not criminal’.  ‘That which would be a crime, a felony, or a malicious act in time of peace may be quite justifiable in time of war, and doubly so in guerrilla warfare, waged against men who cannot be regarded as lawful belligerents, but only as lawless bands of marauders, who carry on desultory hostilities, combined with train wreckings and other uncivilised practices. Upon such an enemy I maintain our troops are justified in making the severest reprisals, and are entitled to regard them, not as lawful belligerents at all, but as outlaws.’ (page 112).

I submit that evidence exists that corroborates Witton’s claims that the accused were given specific orders not to take prisoners and their culpability should have been judged against such evidence.

The proposition is simple, if such orders did in fact exist, the actions of the accused must be assessed against a number of factors including:

  •  Their status as volunteers as opposed to being professionally trained permanent officers of the British Army;
  •  The accused, being members of the Bushveldt Carbineers signed ‘attestations’ to, ‘obey the orders of my superior officers and to be loyal to His Majesty, King Edward the VII, his heirs and successors
  •  The accused held a bona fide belief that orders not to take prisoners was not obviously illegal.

Supporters of Morant have also argued that the orders emanated from Lord Kitchener himself in a desperate attempt to cobat the Boers who were inflicting significant losses in a ‘guerrilla’ style campaign against the British.

The issue of military command responsibility and obedience to superior orders has occupied the minds of lawyers and commanders for decades usually following war and its aftermath as occupiers have sought to hold accountable those responsible for excesses against prisoners of war and civilians.

This held true in the Boer War and in the trial of Morant, Handcock and Witton, (the accused) as their defence of superior orders received the attention of the courts martial and Lord Kitchener who had responsibility for approving death sentences.

At the heart of the defences raised by the accused was the proposal that their actions in executing Boer prisoners had been ordered by their superiors.

Ultimately, their plea was rejected and Morant and Handcock were executed for murdering Boers. Witton was also sentenced to death but had his sentence commuted to life imprisonment and was later released from penal servitude following a petition lodged with the Crown.

Superior Orders

At the time of the offences, the law of reliance on superior orders recognised a defence depending on the circumstances. This was balanced against the British military’s authority that all Army personnel regardless of rank, whether personnel were permanent or volunteers drawn from the colonies had to swear allegiance to the King and to obey orders of their superiors.  The Attestation of officers and soldiers of the Bushveldt Carbineers contained declarations that, ‘I hereby promise to obey orders of my superior officers.’

The Law – 1902

The law on the issue of superior orders was uncertain and drew its rationale from the provisions of the Manual of Military Law concerning obedience to lawful commands.   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.

The Law of the Constitution (relevant to 1902) by Dicey stated:

When a soldier is put on trial on a charge of a crime, obedience to superior orders is not of itself a defence. A soldier is bound to obey any lawful order which he receives from his military superior. But a soldier cannot any more than a civilian avoid responsibility for breach of the law by pleading that he broke the law in bona fide obedience to the orders (say) of the commander in chief. This of course must be taken with the qualification that if it be such an order as a soldier might reasonably suppose his superior officer to have good grounds for giving, the soldier would not be criminally liable.’[i]

In summary and according to the claims by Witton in his book, Scapegoats of the Empire, the defence case claimed:

  • Morant claimed he and Captain Hunt had acted on orders from Pretoria. He, Morant had been reprimanded by Hunt for bringing in 30 prisoners and was told not to do it again;
  • Morant decided not to disregard the order from Hunt to shoot prisoners after the circumstances of Hunt’s death by Boers. He carried out orders that he believed were lawful;
    • Under cross examination Morant stated he had orders to clear the Spelonken area of Boers and to take no prisoners. He had never seen written orders. He had not shot prisoners before the Visser incident;
    • Morant told the court that Colonel Hamilton, Chief of Staff was the one who had given Captain Hunt orders that no prisoners were to be taken. Others including Handcock received those orders from Captain Hunt. Morant had only the word of Captain Hunt that Colonel Hamilton had given the order;
    • Morant claimed he and Captain Hunt had acted on orders from Pretoria. He, Morant had been reprimanded by Hunt for bringing in 30 prisoners and was told not to do it again;
    • Morant decided not to disregard the order from Hunt to shoot prisoners after the circumstances of Hunt’s death by Boers. He carried out orders that he believed were lawful;
    • Under cross examination Morant stated he had orders to clear the Spelonken area of Boers and to take no prisoners. He had never seen written orders. He had not shot prisoners before the Visser incident;
    • Lieutenant Picton also stated he had been told by Hunt not to take prisoners and not questioned their validity and had been reprimanded by Captain Hunt for bringing in prisoners. He had obeyed the order to command the firing party that shot Visser;
    •  Sergeant Major Hammett corroborated evidence as to shooting of prisoners;
    • Defence counsel called evidence about orders given and the practices adopted in dealing with Boers;
    • Civil Surgeon Johnston gave evidence that he had heard Morant had been reprimanded by Captain Hunt about bringing in prisoners;
    • Captain Taylor was called to give evidence for the defence, and stated that he remembered one time when Lieutenant Morant brought in prisoners; he was asked by Captain Hunt why he brought them in; Capt. Hunt said they should have been shot. (references from Witton’s book pages  – 83, 115, 137)

The significant point to be made here is that Morant, Handcock and Witton as with many others were colonial volunteers, not full time British soldiers and officers eductated and trained in the finer details of military law and custom.  Colonial volunteers were under significant pressure to obey orders of their superior British officers.

 Lieutenant Colonel Pratt on military law stated:

A soldier is bound to obey the commands of his superior Officer and before a court martial, it would be held that a soldier is bound to obey the command of his superior Officer if the illegality of it was not on the face of it apparent’.

New Evidence of Superior Orders

In addition to the assertions made by Witton in his book, I have recently discovered material that corroborates his claims.  The existence of orders not to take prisoners is contained in a legal opinion written by Colonel. J. St Clair, Deputy Judge Advocate General and addressed to Major General Kelly, Adjutant General. The opinion is dated 22 November 1901 and was written by St Clair after he had reviewed the report of the investigation conducted in November 1901.

The opinion recommended prosecution action against Morant as the ‘prime mover’ and Lieutenant Handcock as the ‘principal executioner’ of Boer prisoners.  What is interesting in the legal opinion is St Clair’s conclusions, noting his access to a record of the investigation:

  • ‘The idea that no prisoners were to be taken in the Spelonken appears to have been started by the late Captain Hunt and after his death continued by orders given personally by Captain Taylor.’[1]
  •  ‘Lieutenant Morant seems to have been the prime mover in carrying out these orders, Lieutenant Handcock willingly lent himself as the principal executioner of them.’
  •  ‘I agree with the opinion of the Court of Inquiry, the order given by Captain Taylor that no prisoners were to be taken was against the usage of modern warfare in my opinion rendered him personally responsible for the shooting of these 6 Boers who were coming in to surrender and who made defence when fired on as being an accessory before the fact he is liable to a charge of murder.’
  •  ‘The verbal orders given by Captain Taylor to the officers and men of the BVC at various times not to take prisoners rendered him personally responsible for these massacres and I think he is liable as an accessory before the fact.’

 St Clair also made comments about Captain Taylor’s culpability in the murder of non combatants.  He stated:

  • ‘Case No 9.  Captain Taylor should have been have been aware when he ordered these natives to be shot that he was exceeding his powers’;
  •  ‘The summary shooting of these two natives as spies does not appear to have been warranted by the evidence against them and Captain Taylor should have known that he was exceeding his powers in ordering summary punishment’;
  •  ‘Case 11.  I think a charge for manslaughter will lie against Captain Taylor in this case.’ 

Significance of Attestation Papers

A document signed by Handcock on 28 February 1901 is the same in its content to the documents signed by Morant and Witton and other BVC volunteers and notes that ‘I hereby promise to obey the orders of my Superior Officers and to be loyal to His Majesty King Edward V11 his heirs and successors.’

This attestation highlights the predicament faced by volunteers like Handcock, Morant and Witton.  They were uneducated and inexperienced colonials and unlike their British permanent counterparts, expected to follow the directions of their superiors without question.  In the circumstances, they had every reason to believe that the orders given to them were lawful and designed to defeat a determined enemy who waged a guerrilla / insurgency style of warfare.

 Similar documents were signed by other BVC men who were involved in shooting Boers, including Duckett and Hammett.

The proposition is simple, if such orders did in fact exist, the actions of the accused must be assessed against a number of factors including:

 – Their status as volunteers as opposed to being professionally trained permanent officers of the British Army;

  – The accused, being members of the Bushveldt Carbineers signed ‘attestations’ to, ‘obey the orders of my superior officers and to be loyal to His Majesty, King Edward the V11, his heirs and successors’;[1]

  – The accused held a bona fide belief that orders not to take prisoners was not obviously illegal.


[1] Andrew Duckett & Ernest Hammett Attestation papers as  signed by all BVC officers and soldiers

Conclusion

The findings of St Clair, a notable and senior lawyer responsible for reviewing inquiries and proceedings involving breaches of the Army Act was convinced by the evidence he reviewed against the accused, including Captain Taylor.

His findings about Captain Taylor are significant.  He confirmed that Captain Taylor, (the superior officer of BVC officers and men), was responsible for issuing orders not to take prisoners. Indeed, Taylor followed his own orders when he directed the shooting of 6 Boers.

Captain Taylor played a pivotal role as Lord Kitchener’s Intelligence Officer. He took responsibility for directing BVC officers and men in fighting the Boers.  In the assessment of the claims made by Witton in his book, it is clear that he, Morant and Handcock followed the directions given to them by Captain Hunt and Captain Taylor, both permanent British officers.  Taylor and Hunt were superior to Morant and gave directions that they expected to be followed. In the circumstances, it would have been foolhardy for Morant or any other irregular volunteer soldiers or officers to disobey.  Even if one concludes that they should have refused to obey an illegal order, Lord Kitchener was in error in not taking into account the issues raised by the courts in the recommendations for mercy.  If ‘technically’ guilty of murder, it is clear that Morant, Handcock and Witton were under extreme pressure to obey the orders of their British superiors.  The pressure was recognised in the recommendations for mercy, but not given sufficient weight by Lord Kitchener and his legal advisers.

It is also clear from St Clair’s findings that it was Captain Taylor who took the initiative to issue orders not to take prisoners.  It was not at the instigation of Morant, who had been reprimanded by Captain Hunt for refusing to obey the order. He eventually followed the order once Captain Hunt had been killed, (Morant having an honest belief that Hunt had been tortured and killed by Boers).  This is an important point since critics of Morant have argued that he alone had embarked on a ‘killing spree’.  There is no evidence to substantiate the allegation.  This is reflected in the finding of the Courts martial, convictions of three counts of murder involving 12 Boers and recommendations for mercy that recognised Morant’s loyal service to the Crown, his belief in following orders, his ignorance of military law and custom and his reaction to extreme provocation at the death of Captain Hunt.

This is not a case of pathological killing of innocent civilians, but inexperienced colonial volunteers following orders with a sense of loyalty in serving the Crown.  Morant, Handcock and Witton were singled out for particular attention for a flawed strategy of fighting an enemy that used devious insurgency tactics to inflict great losses on the British military.  The accused followed orders in belief that not taking prisoners was ordained at the highest level of command.  Despite the findings of St Clair with respect to Captain Taylor, ultimately, those held responsible were not British superior officers but colonial volunteers of lower ranks.


[1] Colonel. J. St Clair, legal opinion dated 22 November 1901
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44 Responses to Evidence of Orders Not To Take Prisoners- Revealed At Last!

  1. Allan Gardiner says:

    James, there’s no need for anyone to seek a pardon for Morant, Handcock and Witton because they’ve already been *exonerated by Australia*, so there’s no need to waste time and effort in trying to obtain anything – especially a paltry pardon – from the bloody British Queen or her gormless government. These three honourable members of the Bushveldt Carbineers who served with distinction and were then scapegoated wouldn’t want anything from anyone at all associated with such nonsense known as British jerry-rigged justice, so why would any other sane and intelligent person? It stands to reason. Two wrongs don’t make a right. The British had their chance to get it correct at the Courts Martial and they made a right bloody murderous mess of it, so they must never again be given any opportunity to make matters worse, because that would be an insult of the very first water to every Australian.

  2. Leslie Martin says:

    I know this is a long time after the petition for review was submitted and refused but it seems to me that what is at issue here is not whether soldiers took no prisoners but whether there was a nod and a wink given that they should take no prisoners.
    I think the really big scandal is that the British high command – not unused to blundering – overlooked the mistreatment of the Boers when it suited them and, by not prosecuting every case of summary execution, tacitly condoned it. It was only when it looked like a scandal could be laid at Kitchener’s door that it became more expedient to find the absolute minimum number of scapegoats and, by killing them, or sentencing them to life behind bars (thus cunningly also staking a claim to be tempering justice with mercy), demonstrate that anyone who came forward with the truth of their own involvement would be similarly treated. I don’t think you have to look further than this for an explanation of why the court papers cannot be found.
    It was a high stakes game but the dice were – and still are – loaded in favour of those at the top, who routinely got away with murder while receiving unwarranted admiration and deference. (Take the concentration camps, for example. Was that a big enough scandal? No. They faced that one down quite easily: no-one was “killed”; they merely “died”.)
    Witton, in his own way, motivated by his own experience, speaks out against one small aspect of this. That is why this case has refused to go away. For Boer and Brit, man and woman, black and white, old and young, Witton’s testimony invites us to take stock of our own involvement whenever it suits us to turn a blind eye to the banality of evil.
    That was how Hannah Arendt might have put it. John Donne put it another way:
    Therefore, send not to know
    for whom the bell tolls,
    It tolls for thee.

  3. Richard Williams says:

    Any serious attempts to research this matter is seriously hampered by the absence of the transcripts of the Court Of Inquiry. One would think that any primary source documents that give as any hint of what was contained in those transcripts would be highly valued by historians and freely published.

    Fortunately, the legal opinion of Colonel J. St. Clair, the Deputy Judge Advocate General on Kitchener’s staff, has survived and is preserved in WO 93/41 in the British archives as Jim Unkles has pointed out. St. Clair reviewed all the transcripts of the Court of Inquiry and wrote his opinion on this basis. This was the Legal Opinion of a highly trained military lawyer, not some casual observer. Arthur Davey, in “Breaker Morant and the Bushveldt Carbineers” 1987 reproduced part of that opinion on page 111. However, he only published St. Clair’s opinions regarding the Bushveldt Carbineers officers and left out the more damning recommendations relating to Captain Taylor. When I read this and saw St. Clair’s concluding remark “I will report separately on Capt. Taylor’s case” I was amazed to find that Davey had not seen fit to publish the Taylor recommendations despite the fact that they were contained in the same British archive.

    There are several documents in Davey’s book and elsewhere that point to the fact that Taylor was in command at Fort Edward and even though St. Clair’s opinion was that he should be charged with 5 separate cases of murder (including the “8 Boers” and “3 Boers” cases where he was identified as being “primarily responsible”) and one of manslaughter, he was only eventually charged with the murder of the “6 Boers”. He was able to escape conviction because the prosecution did not contest his claim that he was a native commissioner and was not in military command. He was also charged with shooting a native but that charge was doomed to fail because even St. Clair concluded that “Captain Taylor may have acted in good faith”.

    It is my understanding that the St. Clair document regarding Taylor is the primary component of the “new evidence” referred to by Jim Unkles because, to the best of my knowledge, it has never been previously published elsewhere. The fact that Taylor escaped punishment while subordinates paid with their lives leaves a stench about this case which will not go away.

    I was astonished to read on historian Craig Wilcox’s aptly named website “Wilcox is History” his claim that “The supposed new evidence that’s prompted Australia’s attorney general Robert McClelland to ask the Brits to look yet again at the Morant case isn’t new. It appeared in a memo published in a book in 1987.” As I’ve pointed out above, no it didn’t, Craig – not surprising we only got the opinion about the BVC officers from Davey.

    I’m disappointed that we’ve never seen anything about the St. Clair opinion in anything that Craig Wilcox has published over the years either, although he has shared some thoughts about the man at times:

    “Distant rule often meant absent rule, as was the case at an outpost called Fort Edward, where the senior soldier was not a Carbineer but an Irish-born local intelligence officer, Alfred Taylor, who claimed authority to direct local military operations himself.”
    Ned Kelly in Khaki – Craig Wilcox
    The Weekend Australian Magazine February 23-24 2002

    Australia’s Boer War – Craig Wilcox:
    Page 283
    “…he soon edged James Robertson out of effective command and claimed authority to exercise a free hand in the Spelonken, authority from Kitchener himself, so he said.”
    Page 284
    “He was almost certainly responsible for encouraging the local Carbineers detachment to kill Boers who fell into their hands. Was he following secret orders from someone in headquarters, perhaps Kitchener, to wage war to the death in the Spelonken?”
    Page 286
    “Taylor’s influence was untouched by the new regime, testifying to his forceful personality, his knowledge of local languages and conditions, and perhaps to backing from the intelligence department in Pretoria. He soon dominated Hunt as he had dominated Robertson.”

    I am at a loss to understand why the various historians have seen fit not to share St. Clair’s damning indictment of Taylor with their readers. We read the occasional “tut tut” that he escaped punishment but you don’t need to be a conspiracy theorist to conclude that there was something very sinister about the way he was treated. What did he know and who was he protecting?

    Regards

  4. james unkles says:

    Hello, thanks for your comments. Be certain that this case will be reviewed by an indpendent authority, either by inquiry or judicial appeal in London. The case is complex and involves allegations that these men were not tried and sentenced according to law of 1902. The ‘following’superior orders argument is only one aspect of the points of appeal. More news soon as the Aust Attroney General considers the advice of her Department

    Regards

  5. HHH says:

    Definitely sucks to have been part of any colonial participation, augmenting British forces. Superior officers appear to brand servitude, regardless of rank at that time?What’s with opinions made by people, in reference to intelligence and empire vs. colonials! Your kidding, right?

    Given the lack (conveniently) of no written orders to kill POWs disseminated to the troops, what’s the point in arguing on verbal orders which may or may not have been issued? Denial from higher CoC’s that it was even hinted at, lends credibility that this case embarrassed to many governments and military leadership to even acknowledge that crimes against humanity were being committed on all sides.

    Kitchener and quite a few cronies, should have been relieved with disgrace; but then it would have been an admission…wouldn’t want that to happen on their watch and/or to stain the empire.

    I still don’t get that detainees were sent to concentration camps w/high morality rates; guess this is only a footnote for historians… damn shame the suffering of people’s was condoned by respected and educated men?

  6. Andries says:

    Troy,

    You obviously know little about the case.

    Having visited the site I find it unlikely that Heese would have been shot by Boers at the actual site of a British outpost…

    Witton writes early in his book that it was the ideal place for an ambush…

    Witton wrote that Handcock had confessed to him about the murder and in fact did so in writing to the British. This letter was later withdrawn.

    How does the fact that he MAY have been shot once been an indication that he was shot by a Boer sniper?

    The fact that he was shot through his hand indicates that he was fairly close to his killer, Lt Handcock.

  7. troy says:

    The entire case was based on the testimony of one trooper, and there is good reason to suspect that Heese may in fact have been killed by a Boer sniper, since he was shot once, from the front, apparently while driving his wagon

  8. Andries Pretorius says:

    Troy,

    British officers were indeed held accountable for this, the british officers Morant, Handcock, Witton, Picton and Lenehan were all convicted in relation to these crimes. Lord Kitchener reduced Wittons death sentence to life in prison. The fact that Witton spent the time in a British jail also indicates who they represented.

    Hunt was killed in action, his body and that of the Boer leader Barend Viljoen were mutilated by Africans for what they believe is potent medicine. Please investigate the matter before making silly statements without substance.

    Morant never saw Hunts body.

    Hunt armed 200+ natives in this failed attack in contravention of standing orders. If avenging any form of atrocity is looked upon favourably then should this action of Hunt or the many by Captain Taylor have been reason for reprisals by the Boers?

    The court found that Visser was NOT wearing Khaki and was the victim of murder.

    Lt Calley was indeed found guilty of a similar crime and that conviction still stands.

    Witton wrote that Handcock had confessed to him about murdering Heese.

  9. troy says:

    the take no prisoners order was issued in the boar war. i found out canadians were doing the same as the soldiers in the B.V.C did to avenge Major ”Gat” Howard

  10. troy says:

    regarding the visser case visser was cought wering british khaki belived to Captain Hunts. kitchener did state in his diary that any boars cought wering khaki were to be trialed on the spot then shot.

  11. troy says:

    morant and hancock were cleared of the missonry killing becuse hancock clamed he was viseting 2 boar ladys to see how they were copeing with out there husbands who were at war. one a P.O.W and the other in potugese terrotory.

  12. Troy says:

    there was a simuler incedent in the vietnam war with an american Lieutenant Calley
    followed orders from his superior officers to kill suspected Vietcong at Mai Lai

  13. Troy says:

    the British officers should have been accountable over this. the boars did mutilate captian hunt with knives and dumped his body for morant to see. morant sould be pardoned

  14. james unkles says:

    Thanks Troy, you are correct and Colonial officers also signed contracts for service in which they had to swear allegiance to the King and obedience to orders of their superiors. I have a copy of the contract signed by Peter Handcock.

    What is galling, is the orders given in this case only rebounded on Morant, Witton and Handcock. The British officers who gave the orders were not held accountable!

    Cheers

    Jim

  15. troy says:

    Harry Morant did not give the orders he took em becuse there’s a rule in the Military manual witch states when a soldier gives you a direct order you must carry it out.

  16. jamesunkles says:

    Andries, no need to apologise. The plea for pardons does not involve an appeal to a higher court at this time. What it does involve is a detailed review of the evidence (as it is), entertain submissions on the case for and against pardons, and the law of 1902.

    A case for pardons can also include submissions for mercy, that in law the convictions were unsafe and should be over turned and the sentences were excessive and should not have resulted in a penalty of death. The question that concerns me is were these men tried according to law of 1902, were errors made in the trial process, were they denied their rights under Military law?

    We will see what happens.

    Regards

  17. Andries Pretorius says:

    Jim,

    My apologies, but I simply do not understand how this can be about justice if the rules cannot be applied both ways.

    My understanding of an appeal is that it reopens the case in its entirety, therefor you may be found guilty on appeal on charges which you were initially found not guilty in and vice versa. Is this not what the inquiry could do?

    You wrote above “Andries, the court entered a not guilty verdict on the Hesse matter, the case rest there, no amount of protest will alter this fact”

    Jim if this “principle” is applied to the fact that Morant was found guilty by same court martial of 12 murders and sentenced to death and then executed, then should not “the case rest there” as “no amount of protest will alter this fact”?

    My seemingly mistaken idea about justice is that it is about fairness and right and wrong and includes all men, not a very set of narrow rules selectively applied to a few.

    Regards,
    Andries

  18. Andries Pretorius says:

    Jim,

    As I am not a historian but an ex-soldier I don’t take offence to your statement about the ravings of historians. I have written no book and have no interest other than justice for everyone concerned and not just for a select few. I am open to change my mind if the facts change. Unlike others I have not publicly and irreversibly committed myself to a single outcome on this matter.

    As a soldier I was taught to use triangulation to determine your position on a map, this required identifying at least three clearly identifiable landmarks that stood out and some basic calculations could tell you where you are. I have used this principle in life after military service and it has served me well, I would much rather trust three or more sources even though some of them may not be what I initially expected or hoped for. This has saved me many times.

    One point of reverence is useless to determine your relative position on a map and I am certain that using only SOME of the ravings and writings of an accused is probably also going to leave you without direction. At least not the direction that leads to justice.

    All I ask is that you consider more sources of information and be open to whatever that may lead to. I will commit to same.

    Regards,
    Andries

  19. jamesunkles says:

    Andries, I trust the writings of Witton in his book, far more reliable than the ravings and self serving suppositions of historians with their onw agendas to ensure the status quo and the ‘Brtish version’ of evnts is not scrutinised and over turned.

    I am well aware that many authors and historians have much to lose if the case for pardons is successful. Pardons will mean a re writing of history and a revelation of the mistakes made in British military and legal history (not the first time)!!

    Let’s see what happen, but make no mistake, I am driven by the rule of law and due process in accordnace with the laws and p[rocedures of 1902, not modern standards of morality and jurisprudence.

    Regards

    Jim

  20. jamesunkles says:

    Andries, the court entered a not guilty verdict on the Hesse matter, the case rest there, no amount of protest will alter this fact. If it helps you, there was doubt about the culpability of Morant and Handcock.

    What is a concern is the suspicion that Kitchener did not think an acquittal on this charge would happen and his decision to ignore the recommendations for mercy were driven by his fear of a German backlash, a political decision, the Germans had to be appeased in the interests of a peace deal with the Boers. Te appeasment was achieved wothout inflicting severe penalities on Captains Robertson and Taylor or any other British NCOs

  21. jamesunkles says:

    Andries, I am not convinced, some reports refer to a youth, in any case even if you are right, one has to consider Morant’s state of mind and the mitigating circumstances. A pardon is warranted for the reasons I have submitted to the British government, including a pardon solely base on the condonation principle which would abrogate all actions of the accused. See my writings on this principle on my web site.

    Regards

    Jim

  22. Andries Pretorius says:

    Richard,

    Jim is basing his entire case on Witton, one of the accused’s evidence in the form of his book.

    Personally I believe this a suggestion that is not an accepted legal protocol, I think it should be frowned upon when so much other research (multiple sources) that would be much more objective exists in the public domain.

    In reality, without the actual transcript of the original proceedings, which was lost we are all just speculating. I don’t know of any case law about people who received a pardon based solely on a book they wrote years later.

    Richard you are saying that you don’t believe “Witton’s unsupported claim alone entitles anyone to challenge that verdict” of Heese’s murder? So we should BELIEVE WITTON when he said they killed some people under an illegal instruction (and give him the benefit of a pardon), which was only followed when its outcome looked like revenge, but DISREGARD WITTON when he writes that Morant and Handcock killed Reverend Heese, hardly a man capable of “extreme provocation”.

    I was seemingly mistakenly under the impression that the whole quest was about “justice”.

    Jim is there a reason Reverend Heese or in fact any of the 12 people Morant was found guilty of murdering do not deserve justice?

    “However, in 1929 Witton wrote to Major J. F. Thomas, defence counsel for Handcock, Morant and himself, that Heese’s murder was ‘a most cold blooded affair. Handcock … described it all to me’” (source http://www.adb.online.anu.edu.au/biogs/A090179b.htm)

    Believing one of the accused where it suits Jim’s case but disregarding the same persons letter years later does not seem reasonable to me, to say the least.

    It will be a very sad day when “justice” could be limited to that which suits certain individuals for reasons which may not be altruistic service.

    Regards,
    Andries

  23. Andries Pretorius says:

    Jim,

    For some reason I can’t reply above as the reply button does not appear below your post regarding Witton, one of the accused, as a witness.

    Again I am no QC or even a lawyer, but something tells me that exclusively using the evidence of an accused without any form of cross examination or more likely in this case cross referencing would be a unique and probably less than objective exercise. If the Court did same in other matters, then Jon Venables and Robert Thompson may also have suffered an “injustice”?! If all evidence but their own version, put together years after the fact, is ignored then they may be pardoned too.

    Perhaps the problem is that our value systems and definition of justice may be totally different. For me getting a person who did despicable deeds off the hook, by means of any technicality known to man over more than 100 years, would probably not leave me with a tremendous feeling of accomplishment, given the lot of his victims.

    Justice(according to Wikipedia) “ is the concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of said ethics.”

    I would not be able to defend the ethics of persons who killed no less than 12, unarmed people including at least one child, without trail. The only “trial” of sorts Morant gave to any his victims, was the case of Mr Visser. Mr Visser was wounded so badly he could not walk… As Morant himself admitted, Mr Vissers’ trial was “less handsome” than his own.

    Then demanding Morant et al receive a SECOND trial to be held using ONLY the accused’s version of events hardly seems fair, reasonable or ”just”.

    Maybe you can enlighten me?

    Regards,
    Andries

  24. Andries Pretorius says:

    Jim,

    It seems you did not read the shortened charges I quoted above, so I’ll only highlight six words of the charge below:

    “…murder two men and one boy”

    In the quest for justice could you please list all the known names and details of those who Morant was found guilty of murdering?

    Disregarding Morants own deeds and simply wishing away his victims does not seem like justice to me.

    Regards,
    Andries

  25. jamesunkles says:

    Andries, the most reliable person as witness to the proceedings, is not you, me or Arthur Davey, it is the person who witnessed the trials, George Witton, perhaps the person who Kitchener who should have executed and removed the one perosn who could later set the record straight on what happened during the trials!

    I for one, go with what Witton says in his book and not Arthur Davey, you, me or any one of the so called experts on the Morant matter!

    Regards

    Jim

  26. jamesunkles says:

    I see the charge as I have seen before, I don’t see the details of a 12 year old boy, I see the charge of 3 Boers and Morant’s decision to follow the orders he had been given. I respectfully suggest you focus on those orders and the culpabilty of those who issued those orders and refrain from using the incident to avoid the recommendations for mercy made by the courst martial who unile you had the advantage of judging the culpability against the circumstances and the mitigating circumstances.

    Regards

    Jim Unkles

  27. Andries Pretorius says:

    Jim,

    This may help see charge iii… (source “BREAKER” MORANT— SCAPEGOAT OR SCOUNDREL? By MR R. K. Tom 4 August 1984)

    “The Court adjourned for a day to obtain
    authority from Headquarters for Major Thomas to undertake the defence.
    In shortened form, the charges were:
    (i) As to Visser
    Morant, Handcock, Picton and Witton.
    Each charged that they did incite instigate and command Trooper Silke and others to kill and murder Visser, an unarmed prisoner of war.
    (ii) As to the Eight Boers
    Morant, Handcock and Witton.
    Each charged that they did incite instigate and command Sergeant Major Hammett and others to kill and murder eight men, names unknown, unarmed prisoners of war.
    (iii) As to the Three Boers
    Morant and Handcock.
    Each charged that they did incite instigate and command Trooper Thomson and others to kill and murder two men and one boy, names unknown.
    (iv) As to the Reverend Heese
    Handcock: Charged that he did kill and murder one C.A.D.
    Hesse (sic), a missionary.”

    We now know the names of Chris Van Staden and his family.

    Regards,
    Andries

  28. Andries Pretorius says:

    Richard,

    I am no expert on the matter, I truly value your input even though we may disagree.

    I read the following on http://breakermorant.yolasite.com/

    “Evidence of Witton’s unreliability is his initial insistince in the book that he was “astounded” to hear that the death of missionary Heese had been laid at the door of Lt Handcock and that he had “not the slightest reason” to connect him with it. Writing to Maj JF Thomas, long afterwards on 29 October 1929, Witton made a statement that raises eyebrows about his general credibility for he stated that Handcock had told him all about the shooting of Heese. It had been, said Witton in this belated admission, “a premeditated and most cold blooded affair,” without divulging whether it was Handcock or Morant himself who shot Heese. A large number of depositions are, however, available, containing damning evidence against the accused. To date the best source of the Court-martials and depositions is Arthur Davey’s “Breaker Morant and the Bushveldt Carbineers.”

    Regards,
    Andries

  29. Andries Pretorius says:

    Jim,

    Please provide the names and ages of the so called “three Boers” Morant was found guilty of Murdering?

    Regards,
    Andries

  30. jamesunkles says:

    Hi Andries, please note:
    1. Morant was never investigated and tried for the Van Staden killings;
    2. there were many killing of Boers by soldiers and officers other than Morant and long before he arrived in the Speldonken;
    3. I am not interested in debating Morant’s culpability for offences he was not tried for;
    4. I join you in asking for objectivity in considering this matter by a duly constitued judicial inquiry so an independent authority can consider the process that was used to try Morant, Handcock and Witton;
    5. I remain confident that British justice (in the present) will treat the case for pardons with respect and due process. This will ensure fairness for case for and againts pardons.

  31. Richard Williams says:

    Hi Andries,
    I am reluctant to hijack Jim’s blog but I feel I must reply.

    The letter was not written to console Major Thomas but to dissuade him going further with his intention to publish a book. He says:

    “Personally I do not think there would be much [sic] in writing what you term the true story of the Bushveldt Carbineers in face of the fact that the War Office may still hold Handcock’s confession”.

    Witton obviously believed that such a confession existed although there is no mention of it in any of the available documents associated with the trials. I speculate that allegations of confessions may have been used as an interrogation tactic during the court of enquiry. This could account for the strange retort Witton claims Handcock made when he asked him about the “Heese business”: “Why, wasn’t you standing beside Morant when he asked me if I was game to follow the missionary and wipe him out”. It sounds to me like Handcock was accusing Witton of having made such an allegation to the enquiry – not confessing to a murder. They had such limited opportunity to interact that they may never have resolved this matter. Witton may have realised the irony of the remark at the time but as the years passed they may have taken on a different meaning as he became increasingly convinced that he was the “one and only one that suffered unjustly”. I repeat, this is speculation but if Handcock had really told Witton that he shot Heese then why didn’t Witton simply say so in his letter.

    Thomas had recently been struck off the roll as a solicitor and had been made bankrupt and Witton may have been reluctant to renew his association with him because of that. Alternatively, Witton’s wife was dying of cancer at the time so he may not have wanted a matter to re-surface that was likely to cause her distress.

    There is no way that the letter clearly shows that they were in fact guilty of murder as you claim. At no stage does Witton state that Handcock confessed to him that he shot Heese but rather he merely implies it with cleverly worded insinuations and use of the passive voice. For instance, he says that Handcock described Heese’s shooting to him and he may well have done so since he was the one who found the body.

    The fact remains that they were tried for this murder and acquited. I don’t believe that Witton’s unsupported claim alone entitles anyone to challenge that verdict.

    Regards
    Richard

  32. Andries Pretorius says:

    Richard,

    If it is “justice” that Jim is striving to achieve then the letter is relevant as it clearly shows that they were in fact guilty of murder.

    The letter was written to console Maj Thomas who felt that he failed Morant et al during their defence, the letter seems to indicate to Maj Thomas that he achieved more than could should have reasonably been expected.

    Regards,
    Andries

  33. Andries Pretorius says:

    Jim,

    I am not sure how many of the victims of injustice during the Anglo Boer War hail from the USA or NZ, I wager it would be negligible. None of Morant’s victims were from the USA or NZ. I fail to see why their opinion on the matter rates so highly with you other than that they agree with you. Let’s remain objective and try not to make a very serious matter a simple popularity contest.

    The opinions of the Dutch, Africans and Boers (or Afrikaners as they are now known) would probably be more applicable as they were Morant’s victims.

    The “Australians” in this matter were willing participants in atrocities and were found guilty of 12 murders although they are suspected of being involved in up to 38 killings according to Mr J H Morrow who was Morant’s warder. I fail to see how “justice” could be promoted by taking away the blame from some of the very few who were found guilty of war crimes without first proving that someone else was guilty. I shudder if I think of what this would do to case law if you were successful.

    Part of the injustice in the Morant matter was the total disregard of evidence provided by Africans. If this evidence was included then the tally, of victims Morant would have been found guilty of murdering, would have been much higher and would have included Hesse. Given South Africa’s recent past I hope that this injustice will also be rectified. Objectivity requires we consider all these matters carefully.

    For the sake of justice we also have to consider the impact of the inaction by Lt Col Hall after the murder of twelve year old Chris Van Staden and his family by Morant. This murder almost led to mutiny amongst the soldiers stationed at Fort Edward. Lieut-Col FH Hall simply failed to act on a protest letter on October 4th, 1901 sent to him by a group of 15 men and NCO’s. This letter also shows the myth of the “order” to “bring in no prisoners” for what it is. Had Lt Col hall acted lives could have been saved. Perhaps this gives the reason for the quick transfer of Lieut-Col FH Hall as he was a total disgrace.

    The Morant matter has been discussed ad nauseam for the past 108 years, one Australian example is on 4 August 1984 when Mr R. K. Tom delivered a paper “”BREAKER” MORANT— SCAPEGOAT OR SCOUNDREL?” at a meeting of the Medico-Legal Society at 8.30 pm at the Royal Australasian College of Surgeons, Spring Street, Melbourne. The Chairman of the Meeting was the President The Hon. Mr Justice Fullagar. For the sake of objectivity and completeness I respectfully request that you add this document to the blog’s document library.

    Mr Tod concluded that “There were terrible casualties on both sides in what South Africans call the Anglo-Boer War. But as in any war perhaps some of the saddest casualties were suffered by those in whom the insensate horrors of war brought out darker sides of the human spirit that might have remained undiscovered in civilian life. For these, we who have been spared the test must perhaps even more than other seek reserves of compassion. In many ways Breaker Morant got what he deserved and I can find little excuse for what he did. As folk hero he just does not stand up and it is time for such a tradition to be quietly put to rest.”

    Regards,
    Andries

  34. Richard Williams says:

    Hi,
    Witton’s letter to Thomas in 1929 is held by the Mitchell Library in Sydney. It was sent there by a relative of Thomas (W.B. Thomas) who was dealing with his estate after his death.

    W.B.Thomas attached a short note asking that the contents be kept confidential as Handcock’s widow was still alive. Someone in the Mitchell Library made the decision not to release it until 1970. It wasn’t kept secret at Witton’s request as suggested by Andries. I’ve sighted the originals of these documents and the appended library note “N.B. not to be issued until 1970”.

    He certainly doesn’t discredit his book in the letter apart from casting doubt on the verdict in the Heese case. Those particular passages have been widely quoted in various texts but as Jim has pointed out elsewhere, that topic is irrelevant to his petition as they were tried and found not guilty of Heese’s murder.

    Regards
    Richard

  35. jamesunkles says:

    Andries, I respect your views, but don’t necessarily agree, lert’s see what happens and then discuss it further. I do not mean to trivalise anything about this case and the affects that the British military action had on the lives of thousands of Boers and native South Africans. War is despicable and this was true in South Africam nay injustices occurred. I have focused on one such injustice and I garre with Peter, Lord Kitchener has much to answer for. Perhaps my work will contribute to the case against him and the case for pardoning Morant may focus attention on Kitchener’s flawed and brutal tactics in fighting the Boers. For decades the controversy over the trial and sentencing of Morant, Handcock and Witton has raged and the majority of Australians and many others from countyirs like USA and NZ expect a fair and impartial review of the circumstances. I am determined to see this happens!

    Regards

    Jim

  36. Andries Pretorius says:

    Jim,

    By asking “I wonder if those who oppose pardons can move on…” you do seem to trivialise it, I am sorry but this is the distinct impression I got. There is no empathy at all for the victims in your statement, just the expressed desire that people “move on”.

    A review of responses on this blog will show that you have accused Pieter van den Berg of claiming that Morant was accused of rape. He simply did not do so.

    Similarly you falsely accused me of making “unproven accusations” about Morant being responsible for the murder of twelve year old Chris Van Staden, you wrote that this is “another example of ‘fitting’ up Morant with a murder he didn’t committ nor was he charged with” (sic). Well Jim, Morant was convicted of this murder.

    Implying that I or others “appear incapable of understanding the case for review and justice” can only be an attack on my own or others’ intelligence.

    Regards,
    Andries

  37. jamesunkles says:

    Andries, take it easy, I haven’t attacked any one, including you and I resent being accused of not being objective and trivialising the shooting of 12 Boers.

    I do expect a fair and impartial review of this case, nothing more and I expect this will happen. This case is more complex than you think, but I welcome your input.

    Regards

    Jim

  38. Andries Pretorius says:

    Jim,

    Do you realise how you are trivialising the murder of people? It seems that the “little matter” of the proven murder of twelve people should weigh less than the execution of two war criminals who received a trial.

    The allegedly flawed trial that Morant et al received was as Morant himself put it “much more handsome” than the one he gave Mr Visser. The others were murdered without trial.

    I beg you show some respect for Morant’s victims and not to personally attack people who disagree with you.

    Regards,
    Andries

  39. jamesunkles says:

    Hi Andries, I would welcome your participation in any inquiry, if it does occur I expect there will be a stampede of many who will have agendas that they will want to present, more the merrier I say!! You are entitled to your views regardless of your profession, but I think you have seriously underestimated the ability of Morant and others, as colonial volunteers to challenge the orders of their British full time and experienced counterparts.

    In any case, the courts martial recognised the mitigating factors and I will be focusing on this amongst many other factors before an inquiry. The bottom line, the men did not get fair trials, after 108 years of in action, a review is warranted. I wonder if those who oppose pardons can move on and understand the case for pardons, in my view, many historians appear incapable of understanding the case for review and justice.

    Cheers

    Jim

    Cheers

    Jim

  40. Andries Pretorius says:

    Jim,

    I hope to be able to participate in such an inquiry as justice would require a measure of objectivity and openness to the facts of the matter, whether they support your view or not.

    It will be a happy day when the British provide the Court Martial transcript; unfortunately I suspect it was lost forever as it seems to have happened in other cases at the time too.

    I believe you are insulting Morant by implying he wasn’t that intelligent. Morant was given a commission; this indicates that he was at the least reasonably intelligent. However, not murdering people does not require extremely high IQ levels, merely the common sense to act reasonably.

    Witton’s book which you refer to was discredited later by none other than Witton himself in his letter to Maj Thomas… Witton wrote to Major Thomas in 1929, the letter was kept secret at Witton’s request until 1970. Let’s see if you can find the contents and reason for this? Please add this letter to the document reference list on the website?

    The rest of your “evidence” seems to have all the hallmarks of “hearsay evidence”, but then I am only an average ex soldier, not a learned lawyer.

    As Wikipedia mentions about this matter “Fiction is not history”.

    Regards,
    Andries

  41. jamesunkles says:

    Andries, yes the transcript appears to be permanently lost, but who knows what may turn up as the British government is reviewing the matter. However, we do have Witton’s book and quotes from the transcript, detailed notes from the Reuter corrospondence who attended the trial or had material ‘leaked’ to him by an ‘insider’ to the proceedings.

    Yes, the orders may have been illegal, but why lay the responsibility at the Morant, Handcock and Witton. Instead, trace the orders to the creators, British officers who haven’t been held accountable!

    To Morant’s credit he initially didn’t follow such orders, while others did lomng before Morant arrived in the Speldonken. He eventually followed ordess under what the court said was ‘extreme provocation’. He was deserving of mercy as was Handcock and Witton. These men lacked the knowledge and education of military law and had sworn to follow orders and be loyal to the King. Again, as stated by the Courts martial, these factors also amounted to mitigation and deserving of mercy, again a recommendation ignored by Kitchener.

    An inquiry will settle issues such as the legality of the orders and the case for pardons.

    Regards

    Jim Unkles

  42. Andries Pretorius says:

    Jim,

    If Morant consistently followed the alleged order to “BRING IN NO PRISONERS” then you may have had something resembling a point, however Morant clearly disobeyed the alleged “order” and then after an incident CHOSE to start obeying the “order”. The order was obviously not legal, to the point of being ignored. In war much nonsense is talked in pubs and tents, this “bring in no prisoners” “order” was most probably just talk. Even in 1902 it was not expected of any soldier to follow an illegal order, much less one as obvious and serious as murder.

    This clearly demonstrates that he was not merely following orders, but was seeking revenge. There was an article in the news today in which some Rabi is trying to justify the killing of Non-Jews and even babies, equally the murders committed by Morant, Handcock and Witton are simply not justifiable. Not then, not now.

    I am not sure on what documentation the judicial inquiry you propose will make its decision, because to the best of my knowledge the actual court martial transcript is missing.

    Regards,
    Andries

  43. jamesunkles says:

    Hi Andries, thanks for the comment. Your view about what Morant could have done does not stand up to scrutiny of the conditions that colonial volunteers served under. Note the following;

    – Morant et al were not experienced and educated soldiers unlike their British full time counter parts. As noted by the recommendations for mecry, the men served the King loyally, but were ignorant of the the laws and customs of war;
    – Morant et al had signed attestation forms pledging to serve the King loyally and obey all orders of their superiors;
    – the volunteers were under strict obligation to obey orders, they did not understand the ‘finery’ of the laws of war;
    – it would have been a courageous volunteer to stand up to Captains Hunt, Taylor and even Kit chener and debate the lawfulness of an order to take no prisoners when so many other units were following such orders;
    -Morant had been reprimanded by Hunt for bringing in prisoners;
    – Morant was not charged or investigated for shooting / raping women or children, he was not involved in the shooting of the 6 Boers, (that was of Taylor’s doing, including the 12 year old child);
    – Morant’s obedience to the orders was known to his superiors, in particular LTCOL Hall, the area commander, in other words if Morant committeed an offence, his actions were condoned by his superiors, condonation in 1902 was a defence to criminal actions;
    – the recommendations for mecry also noted the extreme provocation over the detah of his friend, Capt Hunt that inspired Morant to finally obey the orders he had been given. The provocation was sufficient to inspire the court members to recommend mercy

    In conclusion, a full judicial inquiry will allow all matters to be reviewed by an independent authority, to decide disputed questions of fact and law and deliberate over the case for pardons. I for one will be thankful that the agendas of self serving historians and interest groups in Aust, UK and SA will be put to the test and the controversy put to rest.

    Regards

    Jim Unkles

  44. Andries Pretorius says:

    As pointed out above. The Law of the Constitution (relevant to 1902) by Dicey stated: ‘When a soldier is put on trial on a charge of a crime, obedience to superior orders is not of itself a defence.”

    Morant was not placed under undue influence to commit these murders.

    He initially had sufficient moral fibre to refuse to obey the alleged order to “bring in no prisoners”.

    No evidence exists to suggest that Morant was Court Martialed for refusing to obey this order before Captain Hunt was killed in action. No evidence exists of this after Captain Hunt’s death either.

    Morant was allegedly reprimanded, by his close friend Captain Hunt, for “bringing in” 30 POW’s. Morant could have chosen a number of different actions whilst obeying the alleged instruction to “bring in no prisoners”, potentially these alternatives include:
    (1) Simply continue to engage the Boers in a gun battle and refuse to accept or acknowledge their surrender. This would have given the Boers a fair go.
    (2) He could have won the gun battle, and left the wounded and those who surrendered on the battlefield without “bringing them in”.
    (3) He could have left prisoners of war under control of others alone.
    (4) He could refuse to accept prisoners of war who were to be handed over to him.

    One question is why Morant did not choose any of the reasonable alternatives above.

    A Boer, named Visser, who was wounded in the defence of an attack that led to Captain Hunt’s death was told by Morant that he would be set free if he told them the truth about the death of Capt Hunt. He told them what happened. The next day Morant decided to have him shot.

    Some would argue that decisions in the heat of battle are made instinctively and without much time to deliberate. However, Morant was not involved in a gun battle with the eight Boers, who he and others shot next to the road. They were already disarmed after having surrendered and were under the control of others.

    Another Boer family, the Van Staden’s, were summarily executed when they were asking for medical assistance as a twelve year old child, who is also one of Morant’s victims, was suffering severely from Malaria. This was genocide not war.

    It seems that Morant went out of his way to “comply” with his own narrow definition of his instructions; most people would describe this as a rather cowardly act of revenge. None of his questionable decisions were made during battle.

    I believe that the grief of the loss of his close friend, Capt Hunt, simply drove Morant to revenge. Instead of engaging a vastly outnumbered and out resourced defending enemy in a fair fight, he chose to attack the infirm and disarmed.

    Morant simply received the justice he deserved.

    Morant, Handcock and Witton do not deserve to be pardoned.

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