During the trials and according to the book written and published by George Witton, Morant made the following statement to the court. In part it stated:
‘In the case of Visser I gave the fullest explanation of my position and my instructions regarding the Boers captured in the Spelonken district. I was distinctly and repeatedly told by my late friend and commanding officer, Capt. Hunt, on our arrival at Spelonken, which happened a few days after the train-wrecking occurrence, that no Boer prisoners were in future to be taken. I have already shown in Visser’s case, and can bring further evidence in this case, to prove that Capt. Hunt gave these orders not only to me, but to others under his command, that is, ‘that no prisoners were to be taken,’ and he reprimanded me for not carrying out this order. “Capt. Hunt had been my most intimate friend in South Africa. We were engaged to two sisters in England. He joined the B.V.C. in order to be in the same regiment as myself, and he practically asked Major Lenehan that we might be together in the same squadron. Capt. Hunt had Imperial service in the 10th Hussars, and some colonial service in French’s Scouts, and I had implicit confidence in him and regarded his orders as authoritative and bonâ fide. Until Capt. Hunt’s body was found stripped and mutilated I shot no prisoners, though I maintain it is generally known that Boers who had been concerned in misdoings and outrages, such as the nomadic Dutchmen of the Spelonken, had been executed summarily by many Irregular Corps who have done good work in South Africa. After Capt. Hunt’s death and the brutal treatment of him, alive or dead, I resolved as his successor and survivor to carry out the orders he had impressed upon me, orders which other officers have in other places and in other corps carried out, with the provocation we had received. The Boers had left my friend’s body, the body of an Englishman and officer, lying stripped, disfigured, and not buried–thrown into a drain like a pariah dog. Moreover, I had heard so much about the deeds of these particular Boers that I have charged with murder, reports which connect them with train wreckings and maraudings. I also know they belonged to the same gang that had maltreated and dishonoured the body of my friend and brother officer. I considered I was quite justified in not treating such men with the amenity usually accorded to prisoners of war, and I am quite satisfied that they fully deserved the summary execution they received. In ordering these Boers to be shot, I did so fully believing that, in view of what Capt. Hunt had so distinctly ordered me, and what I myself knew bad been done elsewhere, I was practically right and justified by the rules of guerilla warfare.’ I have been told that I was never myself after the death of Capt. Hunt, and I admit that his death preyed upon my mind when I thought of the brutal treatment he had received. This treatment of Capt. Hunt’s body, coupled with the train wreckings which had occurred, made me resolve to act on orders and do as other officers have done under less trying circumstances than myself.’
This statement by Morant in his defence was seized on by Major Copeland, the Judge Advocate during his summing up to the Court. In my submissions to the British government I have focused on the duties of the Judge Advocate and the errors he made in failing to give a full and proper direction to the courts on points of law , including criminal cuplability, onus of proof, the law on reprisals, customary law and principles of sentencing. However, in what the JA did say to the court as recorded by Witton, there is one direction to the court that appears to have been acted on by the court members in their recommendations for mercy.
The JA stated:
‘It will be on the accused to prove such facts as may reduce the offence to manslaughter, or excuse him from all criminal responsibility. It may be taken generally that in all cases where a killing cannot be justified, if it is not murder it is manslaughter; again, the offence is manslaughter if the act from which death results was committed under the influence of passion arising from extreme provocation, but it must be clearly established in cases when provocation is put forward as an excuse that at the time the crime was committed the offender was so completely under the influence of passion arising from the provocation that he was at that moment deprived of the power of self-control, and with this view it will be necessary to consider carefully–(1) The manner in which the crime was committed, whether deliberately and with premeditation, and also (2) the length of the interval between the provocation and the killing, so as to establish the fact that the alleged provocation was a justification of the crime.’
The JA directed the court to consider the principle of provocation as justification of the crime of murder and reducing the accuseds’ culpability to one of manslaughter. One may argue that the court was not so satisfied as verdicts of guilty were returned to the counts of murder. However, in the case of Morant, the court did make recommendations for mercy as follows:
The Visser case:
‘The court strongly recommends the prisoner Morant to mercy on the following grounds:-
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1. Extreme provocation by the mutilation of the body of Capt. Hunt, who was his intimate personal friend.’
The Eight Boers case:
‘Provocation received by the maltreatment of the body of his intimate friend, Capt. Hunt.‘
In both of these cases, the courts noted provocation and recommended mercy. A persuasive argument exists that the court acted on the direction of the JA and examined the principle of provocation as a defence to charges of murder. Although findings of manslaughter were not entered by the courts martial, provocation was noted in the recommendations for mercy and in the Visser case, described as extreme provocation, (being a term used by the JA).
Critics may argue that that as verdicts of manslaughter were not entered by the courts martial, the courts were satisfied that the defence of provocation did not apply, nevertheless they chose to express the matter of provocation as recommendations for mercy. This is a confusing aspect of the findings by the courts in these two cases and again highlights the unsafeness and unreliability of the decisons made by the courts martial. In the least, this should have formed the basis of an appeal against the convictions and sentences. However, noting the manner in which the sentences were carried out and Kitchener’s insistence that a stay of execution would not be permitted to allow an appeal, pardons should now be granted to address this injustice.
Finally, critics may argue that preovocation was not mentioned in the case of the killing of the three Boers. While this is correct, the court nevertheless did make a recommendation for mercy and this should have been acted upon by Kitchener. In addition, this finding should have been the subject of appeal, had the defence been permitted to lodge a plea to the King.
Jim Unkles
Great Keith, pse reveal the evidence, we are waiting, what a revelation that would be !!
I have the evidence that Morant was not executed, and was serving in the Army after the Peace Treaty was signed and in September 1902.
Sorry Andries, but have to pick you up on this point as it does have a bearing on what you are suggesting.
The incidents involving Morant began in August 1901, not 1902 as you claim, so Morant’s experience in command was minimal following no formal training.
Regards,
Richard
Andries, I agree with you, yes, an illegal order, the point I have made since I took this case on, an illegal order instituted by Kitchener and carried on by his subordinates and obeyed by colonial volunteers who knew little, if anything about military law and customary law. Morant and others had every reason to obey the direction of the Manual of Military Law, namely disobedience of orders was an offence and secondly, they had every reason to have faith in the orders relayed to them by Command, ie take no prisoners and avenge the torture and death of Captain Hunt, (believing in good faith that Boers had tortured Hunt, even though that may not had occured). I note however, the Courts Martial, in its recommendations noted that Morant had acted under extreme provocation at the torture and murder of Hunt. Whether you agree or not, that’s the conclusion the courts martial reached.
Conclusion: The responsibility for the issuing of a covert illegal order was the responsibility of those who issued such orders, Capt Taylor and Lord Kitchener. Taylor’s complicity was noted by Col St Clair, the JA General in his review of the investigation evidence.
Regards
Jim
Andries, you and I both know that discretion plays a ‘big’ part in any decision to charge a soldier let alone an officer. Had Hunt and Morant been charged with wilful disobedience all ‘hell’ would have resulted. The order to shoot prisoners, was convert and not reduced to writing. Kitchener loathed written detail and frequently made do with verbal instructions. Had these orders about prisoners were made ‘public’, it would have implicated Kitchener and his immediate British subordinates. Why some prisoners were shot and not others is difficult to explain, perhaps different circumstances prevailed, we were not, who knows what really happended.
Regards
Jim
Thanks Andries, I am familar with the references you have noted. I understand what the law said in 1902, I am also aware of the law on obedience to orders contained in the Army Act and the Manual of Military Law. There are circumstances of this case and Morant’s alleged culpability that asserts that the case was not as ‘clear’ cut as you suggest. Extenuating circumstances existed and these were recognised by the Courts martial. The culpability of senior British officers has not been clarified and hopefully an inquiry will set the record straight. As I stated to Pieter, the case for pardons is not exclusively based on obedience to orders.
Regards
Jim
In addition, Andries, no evidence against Morant’s ‘love of killing’ or ‘looting’
Regards
Jim
Andries, I have always believed these three men were the focus of a cruel and calculated conspiracy to avoid any implication of British Military officer, including Kitchener had issued orders not take prisoners. Officers including Hall, Robertson and Taylor escaped culpability.
Finally, I must disagree with you, Morant’s service history was minimal when compared with the training, experience and education that British officers received.
Thanks Andries, I withdraw the reference to Nuremberg. Nevertheless you seem to be fixated on applying modern day international law of follwoing orders to the situation in 1902.
There is no evidence of Morant acting under the influence of alcohol, investigated or charged with any offences involving theft/ personal gain
Hi Richard, thanks for the summary, your analysis is correct and contains details that I have used in my submissions. There is no doubt that the ‘gravaman’ in this whole debacle was Captains Taylor, Hunt, Robertson and ultimately, Lord Kitchener. The culpability of the accsued must be judged agsint the circumstances and not ‘blanket’ summaries of what the law was in 1902 regarding the treatment of prisoners and the waging of war.
BVC volunteers like Morant were:
1. inexperienced in warfare:
2.had never been involved in full time military service educated in ‘officer’ like qualities, including military law and customs;
3. They were retained on 6 month contracts and pledged to obey orders and serve the King;
4. The punishment of execution was totally out of proportion to their guilt and designed to deflect criticism of British officer, Kitchener and Hall included.
5. their ignorance, obedience to their superiors, and loyal service was recognised by the courts martial in the recommendations for mercy;
6. their obedience to orders was condoned by LTCOL Hall and Capt Taylor
Pardons are warranted to address the injustice suffered by these men.
Jim Unkles
Relax Richard, you and Andries are always welcome to contribute to the discussion of the variours aspects of this intriguing case
Regards
Jim
Jim,
My apologies – the above post is out of sequence – I think I forgot to click reply before posting.
Regards
Richard
Hi Andries,
I believe that Jim is correct in his argument that Capt. Taylor and not Morant was the man in charge when the offences for which Morant et al were convicted took place.
Here are some facts to support my belief:
1. Capt. de Bertodano, the HQ Intelligence Officer responsible for the Spelonken region and the man who claimed to have gathered up much of the evidence, believed that Taylor was actually 2IC of the BVC. In his “memoirs” he wrote: “The BVC were under the command of Major Lenehan; Captain ‘Bulala’ Taylor, Adjutant Edwards, Lieutenant Quartermaster Mortimer,…” (Arthur Davey P54);
2. When Peter Handcock made a report regarding the finding of the missionary Heese’s body – he addressed it to “Capt Taylor OC Spelonken”;
3. A letter from Sir Godfrey Lagden, Secretary of Native Affairs to Director of Military Intelligence, Col Henderson dated 31 Aug 1901 contains the passage: “Lord Kitchener suggests that we should take Taylor over, but I think it would be undesirable to do so so long as he is in command of men performing Military service whose usefulness might be impaired at this juncture by conflicting instructions.” (Davey P67);
4. And Henderson, on behalf of Kitchener, in a letter to Lagden on 24 Sept 1901 and referring to the appointment of a civilian native commissioner says: “The intention is that he should have control of Taylor’s present force, about 100 men, as police and for protection” (Davey P69). Not Morant’s force or Lenehan’s force but Taylor’s force;
5. Major Lenehan, in one of his submissions to the Australian Government wrote: “…the detachment was under Lieutenant Morant who received no orders from me. His orders came direct from Headquarters through a Captain Taylor, on the Headquarters Intelligence Staff. The Detachment was at the time working independently of the Regiment”. (Australian Archives CRS CP 78/1, Bundle 12, Item 382) (Carnegie and Shields P125)
The most compelling proof of all comes in the opinion of the Deputy Judge Advocate General St. Clair referred to by Jim in his comments above. Arthur Davey saw fit to publish St Clair’s opinion regarding Morant et al dated 22/11/1901 in which he said that he would report separately on Taylor (P111) but strangely didn’t think it was important enough to also include the opinion on Taylor which is filed in the same archive at the British War Office. In addition to the incidents involving Morant et al, St. Clair found Taylor culpable in 6 other separate incidents of murder and recommended charges of murder or manslaughter against Taylor in 4 of them.
On 27/12/1901 St. Clair wrote that “Taylor was employed as I understand by the Military Intelligence Dept with the equivalent rank of an officer & should I think be considered as subject to Military law under Sec: 175(7)” (WO 93/41 P1152) but he seems to have been persuaded to change his opinion after that because on 10/1/1902 he said “I think that A. Taylor’s trial should be postponed to the last and that he should be tried by a Military Court – if he was a native commissioner at the time of the offences, some such description will be advisable on the charge sheets.” (Davey P119)
Despite St. Clair’s recommendations that Taylor should face the same charges as Morant et al as well as 4 other murders, he only faced court as a civilian charged with 2 of them – the 6 Boer case and the shooting of a native. Could this be because of his close association with Kitchener and a threat to involve him directly perhaps?
St. Clair recommended that Captain’s Taylor and Robertson should be tried along with Peter Handcock for the shooting of Trooper van Buuren but nobody was tried for this offence, even though it looks as though from the statement Peter Handcock made in the 8 Boers trial that he was willing to admit to having carried out this shooting on the orders of the other two:
“…Capt. Robinson said it was right to shoot traitors … I did not much believe in Capt. Robinson, and when he ordered the man to be shot I told Capt. Hunt all about it.”
Why were Taylor and Robertson protected?
In the 6 Boer case Taylor was able to avoid conviction by claiming that he had no military command. The prosecution produced no evidence to refute this, and because he was by then a civilian it would have been easier for the court to accept his testimony. He claimed that the shooting of the native was accidental and he was acquitted on that charge also. So while two of his subordinates paid the ultimate penalty Taylor escaped unscathed – hardly a great example of good old British justice.
Regards
Richard Williams
Andries, a few facts that I am sure you are aware of;
1. Morant was not in Command of the BVC, Taylor, Robretson and Hunt were at differnt times. All three were permanent full time British officers
2. There was no evidence that what Morant did was for personal gain, he only followed orders to shoot prisoners after Hunt’s death;
3. Morant gave evidence and made statements admitting to following orders and relaying those orders to his subordinates, he never denied the shootings but said he followed orders;
4. Morant, Handcock and Witton like other BVC volunteers signed Attestations and pledged to follow orders and be loyal to the King;
5. As stated by the Courts martial in the recommendations for mercy, Morant was inexperienced in military matters, ignorant in military law and custom and did not have a superior officer at the time of the shootings to consult. The recommendations noted that Hancock and Witton acted under the influence of Morant in following orders. This aspect is significant as Morant acted under the influence oif his superiors, Hunt and Taylor;
6. This was not a case of psychopathic killing by Morant, there is plenty of evidence that these men acted under the influence of their superiors. The notes from the Judge Advocate General, Col St Clair in his review of the investigation, stated;
‘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.’
‘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.’
7. The only law that is relevant in evaluating this matter is of 1902. Your reliance on Nuremberg and modern day intyernational and domestic military law that would be applicable in conflicts like Afghanistan is completely irrelevant to judging the culpability of Morant 108 years ago. One thing is clear is that the law on orders has been developed over decades of jurisprudence and international agreements between governments and through the sponsorship of the United Nations and the International Criminal Court.
8. So what did the law say on the subject in 1902?
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 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.
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’.
The Manual Of Military Law
The law on the issue of superior orders was uncertain and drew its rationale from the provisions of the MML concerning obedience to lawful commands.
Chapter 3 of the MML stated the law concerning section 9 of the Army Act concerning wilful disobedience. The Section differentiated between two offences, one serious and the other of less consequence. The essential ingredients of the serious offence was, ‘the disobedience show a wilful defiance of authority and should be disobedience of a lawful command given personally and given in the execution of his office by a superior officer’.
The MML expressed clear direction that all lawful orders had to be complied with to preserve the integrity of Military Command. The serious wilful disobedience offence carried the maximum penalty of death. The second offence of disobedience characterised by hesitation, forgetfulness or misapprehension carried a maximum penalty of imprisonment or dismissal from the Army.
The MML stated the following to clarify what is a lawful command:
• ‘A command not contrary to ordinary civil law and one justified by military law’;
• ‘In any case of doubt the military knowledge of and experience of officers will enable them to decide on the lawfulness or otherwise of the command’;
• ‘If the command were obviously illegal, the inferior would be justified in questioning or even refusing to execute it, as for instance if he were ordered to fire on a peaceable and unoffending bystander. But as long as the orders of the superior are not obviously and decidedly in opposition to the law of the land or to the well known and established customs of the army, so long must they meet prompt, immediate, and unhesitatingly obedience’.
Conclusion
Andries, it is clear that these men were not experienced and understood the ‘finery’ of military law and custom. Each circumstance has been judged on its facts and in this case we had a clear case of mitigating circumstances and three colonial volunteers who were under duress to obey orders.
Morant et al signed up for 6 months, they came from an isolated part of the world and had no military experiience unlike their continental contemporaries who had a history of military experience in Europe, Africa and the Middle East. The officers who made up the courts martial had the final word on this subject, they recognised the mitigating circumstances, made recommendations for mercy and expected their recommendations would be followed. The case for pardons may finally deliver the mercy that was denied by Lord Kitchener.
Jim Unkles
Andries, I have reviewed what the courts martial found and stated in the recommendations for mercy. Evidence of superior orders and that these men acted under provocation, (at the time, a defence to murder) and the alternative offence of manslaughter. I am currently reviewing the law of 1902 as to reprisal and whether the actions of Morant was lawful under customary law. Remember, we are considering the law of 1902 not modern day international law.
More to follow.
Jim Unkles