Petition – George Ramsdale Witton
George Witton was sentenced to penal servitude for life on 27 February 1902. He was released from prison after a concerted effort by the Australian and South African governments and citizens of both countries. A petition signed by 80, 000 Australians urged the Crown to pardons and release Witton and representations were also made by British MPs, including Winston Churchill.
Although Witton was released without a pardon being granted, it is time to recognise Witton’s case and grant him a posthumous pardon so that the issue can be concluded.
Witton’s case was reviewed by Isaac Isaacs KC, MP in 1902 (destined to become Chief Justice and Governor General). His legal opinion dated 28 August 1902 and the petition that he settled argued for a pardon for Witton and his release.
Isaacs’ legal advice made the following claims:[1] The words in italics are quotes from his legal advice.
- Witton’s sentence was ‘disproportionate to any possible blame attachable to him’;
- ‘The great weight of testimony makes it difficult to see where he is culpable at all’;
- ‘He was the junior subaltern. He had joined the Bushveldt Carbineers only on July 13th and the Spelonken detachment under Captain Hunt’s command on earlier than August 5th’
- He was not aware of the orders given to or transmitted by Captain Hunt;
- A witness at the court martial involving the Visser death, Sergeant Robertson admitted in cross examination that Captain Hunt ‘had given direct orders that no prisoners were to be taken and had on one occasion abused the witness for bringing in three prisoners without orders’;
- Morant had deposed that Hunt had given these orders and named Colonel Hamilton as the authority;
- Isaacs expressed the issue of obedience to orders as, ‘If Captain Hunt informed his subordinate that Colonel Hamilton had given such orders and directly required obedience to them, what could his Lieutenants do?’
- ‘Witton was an inexperienced officer with no previous experience in the field, with less than a month with his corps and less than a week with his detachment, placed faith in and yielding obedience to the distinct assurances and positive commands of two superior officers having better means of knowledge and with all the advantage of rank and authority’;
- Isaacs further argued, ‘immersed in services of continuous activity and serious pressure, engaged with the enemy under circumstances that lent some colour to the likelihood of such orders, having no reason for disbelieving what he was told and led by men of masterful mind and strong personal force, under the influence as Lord Kitchener himself says, of Morant and Handcock, what was this young officer to do?
- Isaacs quoted Lieutenant Colonel Pratt in his handbook of military law, the principle of obedience to lawful commands and Clode’s Military Law and Martial Law 1874, p56;
- Isaacs reasoned, ‘Thus there was a large body of uncontradicted evidence that Hunt had in fact given the orders to take no prisoners and that he had reprimanded officers for transgressing those orders’;
- Isaacs stated, ‘the belief entertained that such orders had in fact been lawfully issued’;
- Isaacs also referred to the prosecution of murdering 8 Boers. He argued that Morant had asserted his authority not to take prisoners and had been credited with following orders. Isaacs also referred to the evidence of other soldiers, Lieutenant Hannam and Sergeant Waller-Ashton who stated that orders had been followed to take no prisoners and one Colonel Craddock had reprimanded others for taking prisoners;
- Isaacs also detailed the events of the Boer attack on Pietersburg on 23rd of January during the court martial. He described the attack, the accuseds’ call to arms and the temporary ‘restoration of the prisoners to the fighting force of the British if any exigency should occur’. The prisoners were not armed for their own protection and it was done to assist in the defence of the town and garrison as every available officer and man was required;
- Isaacs also discussed the principle of condonation and quoted the Duke of Wellington’s 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 Clode’s observation, ‘no soldier should be put on duty having hanging over him the sentence of a court martial’.
- Isaacs concluded his advice about Witton’s culpability, ‘I conclude that the balance of testimony of inference and of reason, is in favour of acquitting Lieutenant Witton of moral culpability and that a most weighty factor on his side is further added by the Pietersburg incident’
- Isaacs’ analysis in his legal opinion was used in the construction of the petition. It is clear from his opinion that Witton:
- Acted lawfully in obeying the orders of his superiors (including Morant and Handcock) not to take prisoners. Further, Witton had not acted wilfully and by design but according to the orders he received ;
- Had a bona fide belief that the orders were reasonable and lawful;
- Witton’s lack of experience and training were relevant factors in assessing his culpability and whether it was reasonable to expect that he would have known such orders were unlawful;
- Acted in accordance with the principle of condonation in defending Pietersburg against a Boer attack;
- Had participated in the incident of the shooting of 8 Boers but only in so far as he acted in self defence in shooting a Boer who had attacked him.
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Petition
The petition argued for a pardon on the following grounds:[2] The words in italics are quotes from the petition.
- Witton was inexperienced, followed orders given to him by his superiors, had no option but to obey and would have been insubordinate if he had ventured to, ‘demand from his superior officer proof of the truth of his statement as to the issue and meaning of the orders in question before yielding obedience’;
- ‘The defence of obedience to orders and the view that Lieutenant Witton honestly and reasonably believed in the existence of lawful orders were, as your Majesty petitioners believe, materially corroborate and supported by evidence in other cases before the same court martial, that other corps believed the same thing and acted accordingly’. Isaacs cited Lieutenant Hannam and Sergeant Waller-Ashton who stated evidence of, ‘to take no prisoners and Hannam having been reprimanded by Colonel Cradock for taking prisoners’ Witton concluded, ‘Your Majesty’s petitioners humbly submit that such reprimand and orders could only but one meaning and that they afford strong reason for not imputing criminal conduct to Lieutenant Witton.’
- ‘There was no criminality in a young and comparatively inexperienced Lieutenant with no previous experience in the field with less than a month with his corps and less than a week with his detachment, placed faith in and yielding obedience to the distinct assurances and positive commands of two superior officers having better means of knowledge and with all the advantage of rank and authority’;
- Isaacs quoted from Lieutenant Colonel Pratt and suggested that Witton was bound to obey the command of his superior officer, ‘if the illegality of it was not on the face of it apparent’;
- Isaacs also argued, ‘no doubt can ever have existed that Captain Hunt had given the orders referred to’;
- Isaacs further submitted in the petition for a pardon based on condonation. In paragraph 12 of the petition, Isaacs stated the circumstances of the attack by Boers on Pietersburg and asserted that Witton rendered ‘honourable perilous service in his country’s and your Majesty’s cause’.[3]
- Isaacs also made a significant point regarding the charge against Witton of murdering 8 Boers. There was evidence that Witton was present at the shooting. Isaacs argued that Witton’s conviction of murder was unsafe and against the evidence. Isaacs stated, ‘So far as Lieutenant Witton is concerned he was present with others but did not take part in any decision regarding the fate of the men. One of them rushed at him and seized hold of him and then Lieutenant Witton shot him, apparently to protect himself. He neither ordered nor participated in the shooting of the other seven’.[4] This submission by Isaacs was drawn from Witton’s statement that he made in the trial. In part, Witton stated, ‘on 23rd August, one of the Boers rushed at me to seize my carbine, and I shot at him to keep him off.’[5]
- Isaacs also cited a procedural error in the composition of court that tried Witton. Isaacs stated, ‘humbly beseech your Majesty to consider whether Lieutenant Witton has not suffered some disadvantage in not having as one member at least of the court martial an officer of an irregular corps in accordance with the rules of procedure’.
George Witton’s Brother, Ernest Acts To Free George
George’s brother, Ernest organised for a petition to travel the length and breadth of Australia, through small country towns to the large cities. In his letter to then Australian Governor General, Lord Tennyson, Ernest declared that the petition had been signed by ‘all classes of the Australian community, including Parliamentarians, professional and business people’. Ernest laboured mightily on the behalf of his brother, George and sought legal opinion of his eminent adviser, Isaac Alfred Isaacs. This extraordinary effort set the scene for a concerted move that succeeded in Witton’s release
[1] Isaac Isaacs Legal Opinion – Witton dated 28 August 1902
[2] Isaac Isaacs Petition G. Witton dated 1902
[3] Isaac Isaacs Petition, G. Witton dated 1902, para. 12
[4] Isaac Isaacs Petition. G. Witton dated 1902, para. 9
[5] Lieutenant G. Witton, Scapegoats of the Empire, 1907, p.109