Sir FRANK IGNATIUS FOX (1874-1960), journalist and Imperialist lived and worked in Australia (1874-1960) He led a life as a distinguished journalist and author, writer for the Bulletin, Morning Post, The Times, the Daily Mail and ‘a swarm of other papers’. He was a talented political agitator and commentator. In 1902, as ‘Frank Renar’, he published Bushman and Buccaneer, a Memoir of Harry Morant. His details are contained in Australian Dictionary of Biography on line edition, at adbonline.anu.edu.au/biogs/A080585b.htm
The article, Bushman and Buccaneer, A Memoir of Harry ‘Breaker’ Morant was published in 1902. It was not a learned review of the case against Morant on charges of murdering Boer prisoners, but rather a ‘romantic’ publishing and review of Morant’s poetry, a history of Morant’s life in Australia and his adventures in South Africa.
In Fox’s words as author’s foreward he stated in part, ‘I purpose to set forth the true facts without word of comment. Some I trow, will give to Harry Morant a shudder of pity as to a brave man who died mistakenly avenging his fried and serving his country. It will not be my task to sit in judgement, but to give in all faithfulness the sorry history of the man withholding nothing of fact, venturing nothing of censure or apology.’One may ask, why am I writing about this article by Renar? Aside from learning something of Morant’s life and poetry, the significance of the article is as follows:
– It was published in 1902, shortly after Morant’s death, making it contemporaneous to the circumstances surrounding Morant’s arrest and trial;
– Some of Morant’s letters are published and these give an insight into Morant’s state of mind, his belief in his loyal service to the Crown and his decison to follow the orders that had been given to him by his superiors, including Captain Hunt who Morant believed had been tortured and killed by Boers;
Morant’s performance of duty on 22 September 1901 in capturing Boer Commander, Cornet, Tom Kelly without the loss of life on the British or Boer sides. This action later earned Morant praise from his superiors, in particular Area Commander Colonel Hall;
Several men sildenafil canada online today suffer from certain sexual problems such as erectile dysfunction and premature ejaculation. Smoking The chance of smoking for your erectile dysfunction which will generic viagra you can try this out really make a difference in these people’s lives. It is unnecessary to frankkrauseautomotive.com purchase cialis on line say that it can have a damaging impact. Men feel embarrassed when they online levitra get to see themselves as undesirable. – Renar reproduces material from the courts martial, including recommendations for mercy and the desperate steps taken by Morant and his counsel, Major Thomas to try and lodge a plea for mercy with the King;
– The article reproduced the character evidence given by Major Lenehan, the CO of the Bushveldt Carbineers, about Morant. On pages 43 of the article, Lenehan describes the loyal and professional service that Morant provided to the Crown and his general reputation;
On page 42, the article reproduces the letter written by Major Thomas, defence counsel for Morant. The letter gives insight into the circumstances of the courts martial and the unjust manner (according to Thomas) that the men were treated and denied an appeal to the King;
– Renar comments on the secrecy of the trials , the carrying out of sentences and the reactions in Australia when the circusmtances were became known. This account highlights the deviousness of the decision to keep the arrest, trial and sentencing of Morant, Handcock and Witton from the Australian government and its people;
Conclusion
Noting that the courts martial transcripts have not been discovered, we must be grateful that writings such as Renar’s and others, including the book by George Witton, Scapegoats of the Empire exist.
The Renar article adds to our understanding of the service provided to the British Crown by volunteers like Morant and how he was treated after being arrested. Ultimately, Renar’s article reveals the charater of Morant, an educated, loyal and talented man, who if guilty of any infraction of military law did not deserve the sentence of death while being denied the support of his family, the Australian government and right of appeal to the King.
Andries, no more. I am content to wait for a response from the British government about the petition and the submission I have made. I will keep you advised of developments via announcements on the web site.
Regards
Andries, let’s give this a rest, enough. You are sounding paranoid! I am content to wait on news from London. I am concerned about some of your language and the direction you have been pursuing. I feel uncomnfortable about your assertions about me and I am becoming tired of repetitive argument. I will leave it to the British to set the terms of reference if an Inquiry is ordered.
I will keep you posted of developments.
Regards
Jim
Thanks Andries, I am always interested in documents that substantiate assertions. I have encouraged the British government to hold an open and independent inquiry. I would be pleased to receive copies or authoritative sources about the Van Staden’s including:
1. evidence that a 12 year old boy was shot on the orders of Morant
2. brith record of the 12 year old
3.the deposition of Botha about his action in shooting a 12 year old boy
I accept I may have missed something, happy to review any evidence but I still stand by the case for pardons.
4. Bolton’s statement about his understanding of the shooting
5. Stetements made by relatives who claimed compensation
I don’t suggest you have claimed rape by Morant, I am referring to unsubstantiated allegations by historians, writers and some Sth Africans (for example those interviewed on 60 minutes who claimed that Morant shot children and other civilians and committed rape. You may also recall Kitchener’s cable in April 1902 to the Aust GG in which Kitchener alleged more than 20 murders. I don’t recall charges laid alleging 20 or more murders.
I agree with you, an open independent inquiry is needed. You and I don’t have all the answers.
Finally, as I have said before, I have been asked who I am and what rigour to I bring to this debate. I have gvne limited details about myself and encouraged readers of the web site to get involved and read about the case for themselves
and if so inclinded to sign the petitin and poll. The more you focus on me, the more distracted you and others become, stay focused on your views (just a suggestion) becasue this case won’t be decided by who I am and necessarily what I have to say.
Regards
Jim
Andries, apology for the spelling mistake. We will have to wait and see what the British government decides. As to your swipe about seeking personal fame I find that a ‘cheap’ shot and gross assumption on your part. You can say and think whatever you like, but the caravan continues to roll!
I hardly call spending a year and half and countless hours of my time and effort as well as expense (using my own leave time etc ) to research this matter an expensive way of seeking fame. I don’t seek fame, I do seek justice on behalf of the accused, the principles involved and the descendants of the accused.
With respect, you are way off the mark. I think the case for pardons is very strong, but that does not mean I have pre determined the result. That is not my ‘style’ nor is that my role in this matter, and it would not be professional. I have the raised the issue with the Australian and British governments. Regrettably, in cases like this, critics (in this case) who have maintained the ‘status quo’, have decided to ‘play the man’ and ‘attack’ me rather than focusing on the merits of the case.
I have noted your No to an Inquiry, and it would be blind folded with hands tied. What’s your evidence for that assumption or is it a guess?
I will keep you advised of developments.
Regards
Jim
Hi Andries, I again repeat my position. An Inquiry is the most appropriate forum in which the issues concerning this case, including the grounds for overturning the convictions, sentences and the case for pardons. The newspaper source you quoted is interesting, it is not evidence however. I am also mindful of the communciations I have received from the descendants of the accused and the views expressed by those who have signed the on line petition, the on line poll and those viewers who expressed support for pardons after the airing of the 60 minutes programme.
You are critical of the Petitions committee, yet the committee was aware of the three convictions for murder, yet it concluded there was a strong case for pardons. Maybe you haven’t reviewed the arguments for pardons and instead have remained fixated on the Van Staden matter. I respect your views and ask again as I did yesterday, do you want me to pass on your support for an Inquiry to the British government? A yes or no will suffice.
The real question about the Van Steden matter are did orders exist to shoot any Boer prisoners, were there any limitations, were they told not take any prisoners who tried to surrender, did Morant honestly believe that was he dealing with 2 men and a youth, you say 12, Morant may have believed 16 or 17. They were armed and Morant acted on orders. Who should take responsibility, Morant or those officers like Taylor who we know issued such orders (as stated by Col St Clair). The war was out of control and the British took extreme steps to persecute Boer fighters and their families, reprisals occured on both sides. The use of colonial volunteers was an efficient way for the British to implement stern measures to deal with a guerilla style war. Any Inquriy will need to deal with matters such as this and other issues that remain uncertain. Answers are needed on a variety of issues, including the arguments for pardons. An Inquiry is the best way forward.
Still waiting on your view of the Fergusson shooting and the acquittal of Pinsloo. I was also wondering if Pretorius who gave the order to shoot Fergusson was a relative of yours? Just a question out of interest.
Regards
Jim
Andries, I remain committed to the petition and the case for pardons. Its time after 108 years to examine this case in its entirety. In March 2010, the House of Representatives Petitions Committee described the case for pardons as ‘strong and compelling’. It is in eveyone’s interest to have this matter reviewed and settled after years of controversy and rumours ‘dressed’ up as historical fact.
Regards
Jim
Andries, the line, take it easy, is some friendly advice. We appear to going around in circles, perhaps best if we give our corrospondence a rest for awhile. My focus is ensure an independent Inquiry is convened, I think that will be in the interests of all parties, including descendants.
I will let you know if I post any new topics on the blog or forum and any news that I may receive from the British government.
Regards
Jim
Take it easy Andries, I don’t have all the answers, neither do you. There’s a lot about this case that needs investigating by a judicial inquiry. We have had endless debate over many years about the histrory and very little about the law of 1902 and whether it was applied correctly. All of this is in addition to the grounds raised in the petition for pardons.
Let’s focus on an Inquiry and the issues can be examined.
Regards
Jim
Thanks Andries, an Inquiry will hopefully investigate this issue. How do we know what Morant’s understanding was of the circumstances of the 3 Boers? He may have acted on false information that all three Boers were combatants, he may have been told that the three Boers were two men and a youth, (not aged 12 years) and still followed the orders given by Captains Taylor and Hunt. Witton’s version of the events is what he heard from Morant. You seem to suggest / speculate that Morant deliberately set out to kill a 12 year old. The issue won’t be decided by our continued debate, an Inquiry is needed.
Regards
Jim
Andries, to demonstrate that superior orders had other applications to incidents in the Boer war, you maybe familar with the case of J. M. Prinsloo, who was charged with murdering H.D. Fergusson, compound manager of the Douglas colliery, in 1900.
The trial of Prinsloo was reported in the Ohinemuri Gazette – 9 October 1903, entitled A War Episode ACTED UNDER ORDERS
The article stated:
‘There was no denial of the story of the prosecution that Fergusson was shot by the accused. Fergusson was one of several men employed on the mine, who had undertaken to remain neutral, and on that condition they were allowed to remain, which they did, until the British advance. Then Fergusson was suspected of giving information to the British and otherwise violating his undertaking, and he was examined by the Boer Commandant and allowed to return to the mine. Shortly afterwards the accused and others came to Fergusson, and, on the pretence of taking him to the camp, kept him wandering about till dusk, when the accused went up, and is alleged to have shot him through the head and buried him.
Field-cornet Pretorius was called as a witness. He denied that orders had been given for Fergusson’s execution, but witnesses swore that the field-cornet had said that Fergusson was to be sent out with a secret telegram, this being a phrase among the Boers to indicate that the person referred to was to be executed.
The accused, who gave evidence on his own behalf, said that he had complained of Fergusson’s conduct to the field-cornet, who said it would be better if Fergusson were sent away with a secret telegram, as he did not want to have any more bother with him. Some time after, mirror flashes were being thrown on Fergusson’s house. Fergusson was sent for and taken into the veldt, where witness sending his comrades ahead of himself, shot his prisoner, and reported what he had done to the field-cornet.
The jury found that the accused had acted under orders, and he was consequently not guilty, and he was discharged.’
Although I am not relying on this case as an aspect of the case for pardons, it does demonstrate in some circumstances orders that may be inherently illegal can be believed by a subordinate to be a lawful order. In this case, the court was so satisfied and acquitted Prinsloo. Incidentally, was Field-cornet Pretorius a relative?
Regards
Jim
Andries, I am focused on the case for pardons. I also note Witton’s version of the Van Staden incident (3 Boers)
Regards
Jim
Thanks Andries, if you agree I will pass on your comments to the British government.
Regards
Jim
Andries, apology for the spelling mistake. We have discussed this issue before. A judicial Inquiry will provide the answers. With no disrespect to the deceased and their descendants I am focused on the case of three Australians and the case for pardons.
Regards
No Andries, 3 counts of murder, a total of 12 prisoners. I have used the golden rule correctly, but have to stress it is not the focus of the case for pardons or the claimed errors in trial and sentencing of the accused. I have only recently referred to it because you raised it, otherwise it remains irrelevant to the case I have mounted. In my view you raised it about the treatment of Boers, but stop short of seeing it as applicable to the manner in which the accused were treated by the British Military.
Regards
Andries, I have said nothing that suggests I don’t rely on condonation. I have a number of appeal points, condonation is one of them. Sir Isaac Isaacs did the same in 1903. I am focused on this case invloving Morant, I am not concered with British officers like Taylor, none of whom were held accountable as recommended by Col St Clair.
I have read what Patterson has said and I don’t agree, again an Inquiry may assist in sxettling the matter. Will you add your voice for an Inquiry or remain silent, content with debates on blogs such as this one?
Regards
Jim
Andries, you and so many other have asked for evidence of superior orders. I have presented it to you in the form of the St Clair legal review and you are still not satisfied. The law of 1902 did recognise the definition of criminal culpability and the evidence of such orders. There was ample evidence from the accused and (others who gave evidence at the investigation and trials) that they held a reasonable belief that the orders they were given were given by their superiors were legal. See my previous writings on this issue as I am aware that I am repeating for your benefit what I have already written. The courts martial recommendations recognised that the men were colonial voilunteers and were ignorant in military laws and customs of war, not British officers trained and eductaed in the finer details of military law.
Finally, I do not, do not accept your version of the Van Steden incident. Again, support my call for an Inquiry and let’s get the matter reviewed for the first time in 108 years!
Andries, thanks, my reply:
3 convictions for killing Boers, (8, 3 and 1), acquitted of the Hesse shooting, that all. They were not charged with more, although lots of allegations, including from Kitchener that Morant was involved in more than 20 shootings. If you believe assertions about Morant he was supposed to rape and pillaged his way through Sth Africa. I am more concerned with the facts, 3 convictions of murder totalling 12 individuals;
2. Andries, you need to study the Manual of Military Law and Rules of Procedure, the accused were denied reasonable opportunity to prepare a defence including locating witnesses. A day’s preparation is ludicrous by the standards of 1902. The prosecution had the luxury of nearly 3 months, (see the golden rule Andries);
3 Andries, I have quoted the article that you recommended to me. So, I took your recommendation and read it. The article confirmed many of the aspects that I have raised in the case for pardons. The fact is, comments by Krischke support the case for pardons (my opinion). In addition, his claim that no ‘direct’ evidence exists about orders is not correct as I have pointed out in the evidence from Col St Clair
4. The observations made by Krischke about the logiistical difficulties in taking prisoners was a significant issue during the Boer war. This may, I say may explain why such orders were issued by officers Like Capt Taylor (as stated by St Clair). If you have issue about this, don’t ‘attack’ me, contact Krischke and challenge him on what he has said.
Regards
Andries, I reviewed the Krischke article on the matter of superior orders. This is what he said on page 48,
‘The case against him and his cohorts, as presented by Thomas, hinged on whether they had carried out the killings of the prisoners under secret orders from Lord Kitchener: the so-called Rule 303 (so-called, no doubt, because .303 was the caliber of the British rifles). Morant claimed he had received such orders directly from his friend, Captain Hunt, whom the Boers later fatally tortured. If Morant had, argue some scholars, then these orders would have been repugnant to the accepted rules of warfare. “The normality was…that soldiers fought one another, observed a code of conduct which was tough but humane” (Denton 41). No direct evidence has ever been uncovered to indicate that any such Rule 303 order ever existed, and most of the scholarly literature on the case reflects this reality.”
My work in the area of superior orders has uncovered evidence, that disputes Krischke’s conclusions about this important aspect of the defence put by Major Thomas.
In a post on the Blog I stated in part:
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.’
Conclusion:
The evidence of Col St Clair is significant. From his own handwriting and his postion to review the evidence of the investigation, St Clair was in a postion of being intimately involved in the evidence. He knew better than any modern day historians / writers to make conclusions on the evidence he reviewed. St Clair made damning conclusions about the culpability of Capt Taylor, yet laid the responsibility on Morant and of course eventually, it was the colonials who bore the brunt of the conspiracy to protect senior British officers. Capt Taylor ‘walked’ away from any culpability, resigned his commission and escaped charges of killing Boer prisoners nothstanding St Clair’s findings about Taylor’s culpability.
Andries, as I have said many times, I suggest you focus attention on the real culprits in this case, senior British officers, rather inexperienced colonial volunteers. The evidence about St Clair has been in existence since 1901, yet its significance has only come to light in 2010. The question that many historians and commentators avoid is this; The legal opinion of Col St Clair was very clear, Captain Taylor was culapable and had a case to answer on murder or at least manslaughter charges, at least with respect to the shooting of the 6 Boers, but also issuing oredrs to shoot prisoners. Why was he never charged as recommended by St Clair? Who interveneted in the chain of command to ensure he wasn’t charged with murder / manslaughter and allopwed to resign his cvommission?
It now needs an inquiry to put it into perspective, were such orders given and why were senior officers not held accountable? Andries, the golden rule that you quote may have some relevance!
Regards
yes you are right Andries, the golden rule also had application in the manner in which the accused were treated by the British military. They should have been tried and sentenced in accordance with the law of 1902. The case for pardons highlights the serious errors of procedure that happended from the time of their arrest to the day of execution. And condonation was applicable in 1902!
Hi Andries, regarding the Krischke article:
1. p48 final para, .‘Their crime, however, was considerable. Morant faced charges for his reported
orders to shoot some 14 prisoners in a number of separate incidents ‘ Correction the charges concerned 12 and only 12 prisoners;
2. p. 50‘The deck appeared to be stacked against the defendants. Even the observance of discovery protocols had favored the prosecution: Breaker, Handcock, and Witton were arrested in October 1901; defense counsel Thomas received the boxes full of paperwork on the case on January 10, 1902; the court martial began the next day (Bridges 25)’ This comment by Krischke is typical of what I have argued, the men were not given adequate time to prepare a trial on very serious charges of murder. A day’s notice to prepare was a disgrace by the standards of procedure of 1902 when compared to the three months that the prosecution had.
3. P 50 ‘The relatively closed process for holding a court martial at that time helps to explain how it could have been manipulated’. An interesting comment given that Lord Kitchener ensured that the secrecy excluded any notification to the Australian government and the accused’s relatives. The motive was clear, to avoid any interference or appeal for mercy.
4. P 50. ‘The Morant case had precipitated from a visit to Kitchener’s Headquarters by the German Proconsul in South Africa, who had inquired about the alleged murder of a German missionary. Throughout the Boer War, German threat had remained on the horizon of British Imperial power’ This observation has been speculated by many writers, a motive for Kitchener execute Morant and Handcock, to appease the German government, particularly after they were acquitted of the charge.
5. P 51 ‘In their book In Search of Breaker Morant, Margaret Carnegie and Frank Shields write that Kitchener desperately hoped to keep the trials from the Australian authorities, as he most likely could expect “unwelcome interference.” Kitchener evaded all requests for relevant information and documents on the Breaker group until well after the trials and sentences had occurred. The spotlight was especially uncomfortable’. Once the accused had been convicted, however, the General wasted no time in carrying out the verdicts: he confirmed the sentences on the following day, and within 18 hours Handcock and Morant were executed.’ Krischke’s comments are chilling. He impugns criticism of Kitchener, effectively accusing him of conspiring to subvert the course of justice by the denial of the accused’s appeal rights.
6. P 52. These charges notwithstanding, writers like Bridges, Denton, and Doyle fail to mention several mitigating tactical realities concerning Breaker’s unit. Its small, tired, and often out-numbered long-range horse patrols never had any spare horses or wagons with which to transport Boer prisoners. In addition, Breaker’s necessarily swift-moving command could barely carry with them enough food and water for their own subsistence. The small bands of Bushveldt Carbineers certainly had no means to provide shelter for any Boers they captured. Nor did they have any materials with them, such as barbed wire, to confine any prisoners they captured. Without electronic communication, Breaker could not even seek advice from headquarters on how to manage captured Boers. Since the Boers often knew of nearby ammunition and weapons caches, not to mention hidden storehouses of food and water on the veldt, had the Boer prisoners been released, they would likely soon thereafter have again become active enemy combatants’.
This analysis by Krischke is very interesting and highlights the difficulties that Morant faced in dealing with Boer prisoners without adequate facilities while under the pressure to obey the orders of Captains Taylor and Hunt. It certainly highlights mitigating circumstances and puts a perspective on how difficult it was for Morant to prosecute the war far from headquarters, with little support and advice from more experienced officers (an aspect that formed one of the recommendations for mercy made by the court.
Regards
Andries, over the weekend I reviewed the Krischke article. I will post some comments, but suffice to say it provides some critical comment about the manner in which Morant, Handcock and Witton were treated by ‘military justice. In particular, the denial of their appeal rights. Some interesting paralells to the ‘golden rule’ that you quote.
Regards
Jim
Andries, thanks for the wikepedia quote which could have had relevance to the manner in which Morant, Handcock and Witton were treated following their arrest in 1901. It appears to apply as a modern day concept, we don’t know precisely its status in 1902, however even if Moarnt, Handcock and Witton were criminally liable, I am sure the ‘golden rule’ would dictate that any injustice perpetrated by them (and I don’t agree that they did) did not excuse a denial of rights to a fair trial and sentences in proportion to the criminality. The ‘golden rule’ would also demand that the men should have been given the right to appeal their convictions and sentences, a right that was cruelly denied by Lord Kitchener.
In conclusion Adnries, your claim about the ‘golden rule’ may be correct. In which case let’s have an Inquiry to investigate and decide whether the accused were denied the same ‘golden rule’ that you so passionately claim applied in 1902.
Regards
Thanks Andries, many historians, jurists, public figures, jouranalists and authors have written about the Morant matter and the perceived injustices therein. The case will continue to attract claims of injustice. Until the case is settled once and for all by an Inquiry, these claims will continue.
The case I have mounted callls for an Inquiry as I believe there is a case for pardons. Like so many others, you fail to appreciate that the real culprits in this case were the senior officers who dictated the tactics of the war and issued various orders that inflicted suffering on so many innocent Boers. Three Australian volunteers of minor rank were made scapegoats for a flawed policy to oppress an enemy (Boers) at any cost.
I want to see this matter reviewed in the public arena so we can all get answers and move on.
Regards
Jim
Andries, the golden rule I have worked with for 28 years is about statutory interpretation. If you are serious as you say then lobby the British governemnt and let’s get an inquiry moving. The only deebate I am interested in is, were these men tried in accordance with the law of 1902?
Regards
Andries, the golden rule you rely on means little to me. Morant followed orders and the disparity I refer to is the disgraceful denial of the rights these men had to lodge appeals to the King. Their culpability did not call for the death sentence which is why recommendations for mercy were made.
Regards
Jim
Andries, lots of very valid reasons why condonation is out of place in 2010. It won’t alter the fact that it applied in 1902 as argued by Isaacs. It was relevant then and it fprms a critical part of the case for pardons.
Finally, I haven’t ‘attacked’ the Krischke article, I ‘ve read it , agree with some, disagree with several assertions. As a matter of style, I still don’t like comparisions with the film and that’s what I said at the outset. I will come back to with some further views.
Regards
Andries, Kirschke’s article makes some interesting statements in support of claims made in the case for pardons, including:
1. The disparity, however, of the sentences and the swiftness with which the executions were carried out seem unusual, even in the generally brisk and straightforward British military justice system. Moreover, the historical record describes similar cases of Boer shootings by British officers in the field, but none of these cases came to be
prosecuted by the British military courts My Comment : Australians prosecuted, British soldiers excused, haste in sentecing ensured no hope of appeal that was Morant’s right
2. The moral question of shooting prisoners during the Boer War was actually a logistical one, Because of the strain on British resources, the fate of any Boer prisoners, captured anywhere in the countryside, during this period must have become increasingly tenuous. Furthermore, the Boers’ already extreme tactics were becoming alarmingly aggressive, surreptitious, and successful. The impulse to summarily dispatch Boers was therefore strong, and it went all
the way to the top. In July 1901, a month before the first episode for which Morant was eventually charged, General Kitchener himself had applied to the British War Office in London for permission to shoot the whole of a Boer Commando force captured in Cape Colony. The British War Office denied permission. Nonetheless,Kitchner’s documented request offers telling support for Morant’s claim regarding Rule 303. Comment: Kirschke also quotes Denton and supports that oreds to shoot priasoners eminated from the ‘top’.
3. The deck appeared to be stacked against the defendants. Even the observance of discovery protocols had favored the prosecution: Breaker, Handcock, and Witton were arrested in October 1901; defense counsel Thomas received the boxes full of paperwork on the case on January 10, 1902; the court martial began the next day Comment: This issue is one of the arguments raised by the petition. Contrary to the Manaul of Military Law, the accused were denied a fair and reasonable opportunity to prepare a defence.
4. The relatively closed process for holding a court martial at that time helps to explain how it could have been manipulated Comment: This has also been argued in the petition.
5. Margaret Carnegie and Frank Shields write that Kitchener desperately hoped to keep the trials from the Australian
authorities, as he most likely could expect “unwelcome interference.” Kitchener evaded all requests for relevant information and documents on the Breaker group until well after the trials and sentences had occurred. The spotlight was especially uncomfortable. Contemporaneous with the Morant court-martial, media criticism of a separate, unrelated trial of Australian officers facing a lesser charge, “inciting mutiny,” was burgeoning (Carnegie 112). Kitchener was publicly steering clear. Once
the accused had been convicted, however, the General wasted no time in carrying out the verdicts: he confirmed the sentences on the following day, and within 18 hours Handcock and Morant were executedComment: The article confirms, Kitchener was behind a conspiracy to deny Australia knowledge of the trials and sift execution to prevent an appeal.
6. writers like Bridges, Denton, and Doyle fail to mention several mitigating tactical realities concerning Breaker’s unit. Its small, tired, and often out-numbered long-range horse patrols never had any spare horses or wagons with which to transport Boer prisoners. In addition, Breaker’s necessarily swift-moving command could barely carry with them enough food and water for their own subsistence. The small bands of Bushveldt Carbineers certainly had no means to provide shelter for any Boers they captured. Nor did they have any materials with them, such as barbed wire, to confine any prisoners they captured. Breaker could not even seek advice from headquarters on how to manage captured Boers. Since the Boers often knew of nearby ammunition and weapons caches, not to mention hidden storehouses of food and water on the veldt, had the Boer prisoners been released, they would likely soon thereafter have again become active enemy combatants. Comment. This explains the mitigating circumstances surrounding Morant’s decision to follow the orders he had been given.
Conclusion: Kirschke’s article discusses views for and agnsit Morant and certainly explores Kitchener’s role in prosecuting the Boer war.
Andries, I have reading the Kirschke article with interest.
You said above, ‘I have pointed out writings by others who disagree with you about Maj Thomas lack of knowledge of Condonation or use of it It appears you are referring to Kirschke, then you are very much mistaken. He does not say condonation was raised by Thomas at the trial. What he does refer to is at page 48, note 8, ‘In court Thomas puts this fact forward in hopes of obtaining condonation, but such efforts (which happened several times in Vietnam) did not induce the acquittal of the three Carbineers’ This quote refers to Kirschke’s discussion of the film and not what actually happended at the trial! Suggest you re read the article.
I do not know of any credible evidence that proves Maj Thomas argued condonation at the trials. If it had been I would have expected it to have been mentioned by Witton in his book. Condonation is not mentioned by the Judge Advocate in his summary to the court nor is it mentioned by Maj Thomas in his corrospondence to Australia after the sentences had been carried out. Thomas wrote a number of letters, including to Witton’s father, the Premier of WA and to newspapers.
I wll provide some further comment about the Kirschke article tomorrow.
Regards
I will keep you advised Andries. The relevance of condonation in the modern era is of no consequence to the case for pardons in an era when condonation was applicable. Your focus on 2010 is with respect, misplaced. I can assure you, any inquiry will, as I have always said, focus on the laws of 1902 and the circumstances of the arrest, investigation, trial and sentencing of Morant, Handcock and Witton
Regards
Andries, I repeat my point, in my opinion (you stay with yours), the artiicle spends too much time relating to the film. I will review the article and get back to you.
As to your other points. The status of condonation in the modern era is irrelevant. What is relevant is that the principle sttod the test of British law during the 18th, 19th and 20th centuries. Most importantly, it applied in 1902, that’s all I am concerned about. It was a principle raised by Isaacs and considerd by the Crown before Witton was released. It applied then, and I am determined that the British government rule on the relevance of the principle in the case for pardons. The rationale for condonation had its ‘roots’ in British military law, its existence cannot be denied. Its relevance in 2010 is a different matter. Again, Andries, add your voice in calling for an inquiry, let the principle of condonation be judged against the other aspects that have been raised in the petitions I lodged, have your say by all means, as will the descendants of Morant, Handcock and Witton.
Regards
Andries, thanks.
I don’ necessarily agree with your version of the Van Staden case, I am not convinced the boy was 12 and it is possible that the Van Steden’s were involved in a subversive form of guerilla warfare. I will study more materials.
Secondly, you can source whatever materials you like, what their value is open to discussion, just like the materials I source, the same caveat applies. Some sources will be credible, others of limited value.
On the condonation matter. The priniciple applied before 1902 and after, in cases involving Army/ Air Force personnel subject to British militay law. It has two ‘limbs’ , one the condoning of offences by superior personnel aware of the offences, second, the performance of duty of honour while under arrest. It is arguable that both limbs could have been applied to Morant, Handcock and Witton. Condonation was available at the time and it should have been applied, it wasn’t but could be applied posthmously. You talk about injustices , I agree, and it would be injustice not to apply condonation.
A few comments about the Kirschke article that you rely so much on. My opinion
1. I found the article interesting
2. Far too much discussion about the Breaker Morant film. I am more interested in the case against the accused, the law and procedures that governed the courts martial and the errors that I believe were made during the arrest, investigation, trial and sentencing of the accused
3. My view is that this article, like many other historic articles on the BVC etc do not address the law of 1902. History is important, what hasn’t been done for 108 years is a judicious examination of the law and subject the case to judicial review. My hope is the British review will do what hasn’t been done, a fair examination of the case.
I am still reading the article and will make further comment. I have an adversion to articles, books that combine fact and supposition with fiction. This case is not about the film. Anyone who makes any comparision with the film to study the realities of the Morant case is missing the point.
Regards
Andries, I haven’t changed any rules!! You previously asked for details of condonation before and after 1902, so I obliged to demonstrate that the principle has been relevant in the 18th and 30th centuries in English military law. Suggest you refer back to your own comments / questions about condonation and do some further research. Condonation applied in 1902, the question for an inquiry should be why was it not raised during the trial and by the lawyers responsible for advising Kitchener when the convictions / sentences were reviewed. The other intriguing question, is what motivated Isaacs Isaacs to focus on condonation in the petition and the legal opinion he authored? Speculation I know, but if Isaacs knew about condonation, one can be assured that so did the legal advisers to Kiitchener and maybe even Kitchener himself and other senior officers. It is likely that Maj Thomas was not aware of condonation given his limited legal experience. Thomas did not refer to condonation in later corrospondence
A submission on condonation is not mentioned by Witton in his book, but the defence of Pietersburgh by Morant and others was discussed.
I expect condonation to be applied posthmously in consideration of the case for pardons
Regards
Andries, I see that you are struggling to accept the significance in English law of condonation. Again, I will provide you with some information.
Condonation received Military Command sanction in the 19th century:
‘When any offence has been committed by Officer or soldier and that offence not punished or forgiven but advisedly overlooked, the person implicated being continued in his employment these circumstances are held to be a good plea of condonation and a bar to further proceedings.’ .Clode, Military Forces of the Crown 1869, p. 173
In a despatch dated 11 April 1813, Lord Wellington stated: ‘No soldier should be put on duty having hanging over him the sentence of a court martial.’
In Australian military cases the principle has also been analysed and quoted. In an appeal case before the Courts Martial Appeals Tribunal that arose from the service of an Australian Army officer during the Vietnam war the Judge Advocate, (JA) ruled on the question of condonation, including its history and definition. For the purposes of the Morant, Handcock and Witton trials, the following quotes are used to understand the principle and its interpretation in understanding the Morant trial.
The JA stated:(JAG ruling No 54(1) of 1966 p, 2)
‘In this case the accused has raised a plea in bar of trial based on both condonation and pardon. Clode a recognised authority on military law writing in 1869 said this, ‘The offence for which the accused is arraigned must be uncondoned. The principle of condonation for criminal offences is peculiar to the military code and is of comparatively modern origin. The performance of a duty of honour or trust after the knowledge of an offence committed ought, said the late Duke of Wellington, to convey a pardon for the offence and such is the case. When an offence has been committed by an officer or soldier and that offence not punished or forgiven but advisedly over looked, the person implicated being continued in his employment, these circumstances are held to be a good plea of condonation and a bar to further proceedings.’
The JA went on discussed condonation and quoted from authorities:
• In 1943 the JA General of the Australian Military Forces stated that ‘condonation is a question of fact and each case must depend on its own circumstances’;
• In 1872, in his Treatise, The Administration of Justice Under Military and Martial Law, Clode stated, ‘the performance of a duty of honour or trust after the knowledge of a military offence committed ought to convey a pardon. No man ought to be put on duty with a court martial hanging over his head. The discharge of duty involves condonation.’
• ‘Another recognised authority on Military Law, namely Simmons wrote in 1875, A pardon may be pleaded in bar of trial, if full, it at once destroys the end and purpose of the charge by remitting the punishment, to inflict which the prosecution is set on foot. The same principle applies to the condonation or formal overlooking of an offence by a superior, having authority to dispose of the case, with a knowledge of the circumstances.’
• ‘Quoting from the 1941 edition of the Australian Manual of Military Law. In that manual, the learned author referred to the passage from Clode and Simmons and went on to say, for the purpose of barring a trail condonation means such conduct on the part of a competent authority ie an authority having power to determine that a charge should not be proceeded with as is inconsistent with subsequently trying the offender and as would make it inequitable to do so. It must be a deliberate and intentional act, done with full knowledge of all the material facts.’
The JA also quoted from the Courts Martial Appeal Tribunal decision of Thomas Johnston, (1960) 9 FLR 31 which discussed condonation. In summary, the JA stated the following as the salient aspects of condonation:
• there is a distinction between condonation, (plea at bar) and pardon (following an act of honour and trust);
• condonation requires proof that the alleged offence has been forgiven, either expressly or by conduct by a person having authority to deal with the offence acting with a full knowledge of the circumstances and that authority had the power to dismiss the charge or direct no trial take place or to take steps to bring the offender to trial;
• the competent military authority must have had full knowledge of the material facts and intended to condoned the offence;
• the competent authority must have intended to condone the alleged offence, this intent may be expressed or inferred from such conduct on the part of the competent authority. Condonation must be a deliberate and intended act;
• when an offence has been committed by an officer or soldier and that offence has not been punished or forgiven but advisedly over looked, the person implicated being continued in his employment, these circumstances may be held to be a good plea of condonation and a bar to further proceedings;
• pardon, means that the performance of a duty or trust after the knowledge of a military offence committed, ought to convey a pardon. Every case must depend on its own facts. The fact that after trial, but before confirmation the accused has been employed in active operations does not affect the legal validity of the sentence, but affords grounds for pardon; (JAG ruling No 54(1) of 1966, p. 3)
What This Means?
Condonation could be applied posthmously to Morant, Handcock and Witton at one of two levels. Firstly, on the basis that the offences were condoned by superior officers, in particular Capt Taylor and LTCOL Hall. Secondly, pardons could be granted on the basis that the men performed an act/s of honour and trust.
Andries, condonation is recognised in military and common law and applied at the time of the Boer war. It was argued by Isaacs in Witton’s petition and was provided for in the Manual of Military law 1899. The legitimacy of condonation does not ‘hinge’ on the number of cases in which it has been argued. Again, it is one aspect that I have raised in the petition to the Crown and I expect it will receive full and detailed consideration by an Inquiry into this case.
Finally, the mystery question. Did Kitchener and his leagl advisers know about condonation. Speculation of course, but I suspect he did, but of course it wasn’t raised in the review of the trials and Maj Thomas’ inexperience ensured condonation was not pleaded. It took the intervenetion of jurists like Isaacs to raise the matter. It is now time for condonation to be acknowledged and applied to this case. Condonation is a significant aspect of the petition I have submitted.
Regards
Andries, will get back to you on this.
Regards
Hi Andries another aspect of the Condonation argument for your consideration. There appears to be no impediment to a plea of condonation after sentences have been carried out.
A pardon is the remission (forgiveness) of legal consequences of a crime or conviction. In the Murchison case as I have previously discussed, the trial and sentencing was complete when a “duty of honour and trust” arose and condonation granted. In the Morant affair, the accused completed a “duty of honour and trust” after the offences were committed, but before formal charges were laid (capture of Field-Cornet Kelly). The accused again qualified for a plea of condonation by completing a “duty of honour and trust” after charges had been laid and before the first court-martial concluded (defence of Pietersburg against the Beyers Commando). The Warm Baths incident also called for the accused to stand to arms. The two latter acts of condonation were not mentioned at the courts-martial. In addition both Hall and Lenehan failed to remove the accused from duty in full knowledge of the offences committed thus “condoning” the offences. There is adequate evidence to support the plea of condonation at the courts-martial of Morant, Handcock and Witton, in which case they should be pardoned of the legal consequences of their convictions.
“The acquittal [of Morant] whilst certainly open on the evidence, is with hindsight best supported by the defence of condonation based on the call to service during the attack on Pietersburg ‘ Todd, Robert, Morant, Harry Harbord (1864?-1902), Australian Dictionary of Biography, Vol.10, 1891-1939,
Lat-Ner, U.P., Melbourne, 1986, p.582
Andries, the relevance of bringing in Kelly concerns one arm of the condonation plea. The action involving Kelly came after Morant had followed orders and shot prisoners. Tne argument is that the shootings were known to Morant’s superiors, Taylor and Hall (in particular). Nothwithstanding this, Hall permitted Morant to continue with his duties, including planning to arrest Kelly, hence his alleged crimes aganist prisoners were condoned. When Morant reported the arrest, he was congratulated by Hall, another act relevant to condoning his earlier actions.
The second liimb is the argument that he acted under a sense of loyalty on two occasions by bearing arms when under arrest and trial.
I understand your attitude to condonation but hundreds of years of English law says otherwise.
Regards
Andries, the case for pardons is not (at this stage at least) a judicial review, it is a request for pardons based on a lot of grounds and material. It is not a matter of Witton’s book being tested in courts martial but the book is relevant in assessing its credibility when examining the grounds for pardons. An independent inquiry is the most apprppriate method of examing its content and inviting submissions. Again, add your voice to calls for an inquiry
Andries, try and focus on what this case for pardons is about instead of focusing on aspects such as, You rely almost exclusively on the untested “evidence” in these books, after admitting to becoming involved after watching a movie well known to be fictitious. The case is about reviewing the law of 1902, the content of primary and secomdary sources. Me watching the movie was simply an incentive to research the case about Major Thomas, I have never relied on the movie as evidence of anything, its a very entertaining film, but has no relevance to the case for pardons.
Regards
Andries, I have never claimed that the material in the Bleszynski book is all proven, some of it is and some is fiction. The case for pardons does not rely on its content. Suggest you read what I posted about condonation, it refers to examples and principles, including a successful plea. (Murchison case).
Concerning the Witton book, your quote from, Marquis de Moral described the book as “It is mostly a garbled and untrue version of the facts. It was not worth the trouble to attempt to analyse it is hardly convincing, particularly as de Moral dismisses the book, but then admits not amalyising the content. Well fortunately others have and it has stood up to scrutiny. It is likely Witton was assisted by James Thomas in writing the book, the quotes about evidence given and submissions made sound too authentic to have been concocted.
Regards
Andries, yes I do question newspaper reports from British sources of 1902. The one report that I do rely on was the article written by the Reuter corrospondent who was able to quote extracts of the court proceedings and which bear remarkable resemblance to the quotes in Witton’s book. I believe both sources are credible and probative.
Regarding condonation, Andries I offer the following, but suggest ypu do some further research. The principle is entrenched in common land statute law and there was precedent prior to 1902.
• Condonation in military law applied at the time of the courts martial of Morant, Handcock and Witton;
• Condonation consists of two aspects, any offence has been committed by Officer or soldier and that offence not punished or forgiven but advisedly overlooked, the person implicated being continued in his employment and secondly, the performance of a duty of honour and trust after knowledge of a military offence
• The 1899 Manual of Military Law Rules of Procedure 36 A (2) outlined the procedure for a plea in bar of trial on the grounds the offence had been condoned. Rules of 46 Procedure 36(A) (2) recognised the principle that an offence could be condoned “by the deliberate act of some superior authority” Rules of Procedure 34, Note A;
• ‘When any offence has been committed by Officer or soldier and that offence not punished or forgiven but advisedly overlooked, the person implicated being continued in his employment these circumstances are held to be a good plea of condonation and a bar to further proceeding’ C.Clode, Military Forces of the Crown 1869, p. 173
Precedent.
At the time of the Morant trials there was a precedent for a plea of condonation. Pakenham gives an example of condonation at the Siege of Mafeking. An artillery officer named Murchison was tried and sentenced to death by Colonel R. S. Baden – Powell for the murder of the Daily Chronicle correspondent, named Parslow, ‘but later was released because of gallant services in the siege.’
The Murchison case is precedent for the principle that after a sentence has been passed and confirmed, any act by a condemned man involving the performance of a duty of honour and trust may convey a pardon.
There appears to be no impediment to a plea of condonation after sentences have been confirmed or carried out. In the Murchison case, the trial and sentencing was complete when a duty of honour and trust occurred and condonation granted. In the Morant affair, the accused completed a duty of honour and trust after the charges of murder had been laid and before the first court martial concluded (in the defence of Pietersburg when attacked by Boers). In addition, a duty of honour and trust was committed by Morant in the capture of Boer commander Kelly in September 1901 after offences had been committed with Hall’s knowledge but before the accused were removed from duty and charges had been laid.
There is sufficient evidence to the requisite standard that the accused were condoned by a competent authority (Hall) and rendered loyal service when called to bear arms on two occasions while under arrest, confinement and trial,
Analysis of Isaac Isaacs, KC, MP
In support of the petitions lodged by the author, two significant documents were referred to, including legal opinion by Isaac Isaacs, counsel who acted on behalf of Lieutenant Witton and a petition for a pardon that was sent to the British Crown in 1902.
These two documents are very persuasive of the following issues:
• Condonation;
• Defence of superior orders;
• Sentences imposed on the accused and
• Mitigation circumstances with respect to Lieutenant Witton.
Andries, your dismissive attitude to condonation is simply not supported by noted opinions of jurists and cases where the principle has been applied.
Regards
Andries, the Witton material and other primary and secondary sources will be judged in the context of an Inquiry. You are critical of Witton’s book, I don’t agree with you.
Regards
Come on Andries, you can’t be serious. Most military personnel, regardless of the conflict or time sign up for many reasons, including financial. The Boer war gave nearly 20,000 men a chance for adventure in a newly federated counrty that had emerged from a serious recession. The chance to earn 7 shillings a day was ‘good’ money, plus a return ticket to South Africa!
I suggest you re read Witton’s book, in it he quotes statements made by Morant and gave details of Morant’s loyal service and exploits such as capturing Cornet Kelly. If that’s not be alturtistic, while being paid a fair wage then I suggest you give the matter further consideration. Morant did have the choice of taking the money and keeping his head down. The fact is he perfromed his duty to a high standard. This was acknowledged by evidence given at his trial and in the recommendations for mercy made by the courts martial.
In case you are interested the rate of pay was specifically provided for in the Attestation form signed by all Colonial volunteers. Handcock’s form stated, ‘pay to be at the same rate as authorised for Colonial Mounted Corps.’ Remenuration not set by men like Morant, but by regulation of the British Army. Of course the pay was generous, the British were desperate for soldiers as the war raged on and support in England was falling.
I am not really sure why you raised the subject of remuneration as a motive. A motive for what, what’s the point you are trying to make? In the end it make no difference to the case for pardons.
As to the rest of you comment, you like so many other historians, quote factually vague, prejudicial,and exaggerated statements that appeared in British newspapers. Such articles are not probative and mean nothing in the assessment of admissible evidence.
Regards
Thanks Andries, frankly, like many other newspaper reports of the time, such as this one relied on heresay and exaggerated reports. I don’t place much reliance on it. The same goes with some of the other British reports you have quoted. Many such reports were re printed in Australia. I prefer to rely on the account of Witton who was present.
Agian, if you are concerned support the call for an Inquiry to consider the circumstances of this case.
Regards
Andries, see previous response.
Regards
Thanks Andries, I quoted what Witton said about the Van Staden incident, he and Morant were there and knew about the circumstances, not you or me.
My web site and case for pardons is about Morant, Handcock and Witton and the manner in which they were treated. The case I have mounted is, with respect to the deceased, not about them. Again, for the record, I believe the men followed orders from superiors like Kitchener and Taylor. I suggest you focus your grief and anger against them and the tactics used to prosecute the war against Boers. The case for pardons is about lack of due and legal process according to military law of 1902.
Finally, I have been asked many times to explain myself and my interest in the case, the information on the site describes my cv. Interpret my descriptions in any way you like, it does not change the case for pardons. Nor will I be using the site to give graphic details of Boers or British soldiers killed during the war. Hope that helps.
Regards
Thanks for your view Andries.
Regards
Thanks Andries for your reminders. I dispute your assertion that Morant and Handcock were paid ‘handsomely’, what evidence do you base that on? Morant and Handcock, like other colonial volunteers were paid as follows, ‘pay to be at the same rate as authorised for Colonial Irregular Mounted Coprs’(quote from attestation form signed by members of the BVC including Morant and Handcock.
These men were entiltled like any other British soldier to be paid. Frankly, I am not sure what relevance ‘your reminders’ bring to the case for or against pardons. You can’t possibly know what the motives were of these men and what relevance does it have on the debate about pardons? Britain called for colonial volunteers and these men like thousands of others volunteered. Let’s stay with relevant issues.
Regards
Andries, people have asked me why am I involved in this case and who I am I? What credentials I bring to the debate. So, that’s why I have given some information about myself. Interpret it in any way you like, it won’t change the issues in this case, as I say attack me personally, but the ‘caravan rolls on’ and the case for pardons hopefully will be judged on legal principles. Frankly, I don’t concern myself with what people think about what my motives are, it does not change the issues in the case for pardons. However, if it satisfies your interest, I have had a long career in the law and the military and I am concerned about this case, the culpability of senior British officers and the manner in which these men were treated!
I am interested in any debate that adds to the facts as you put it and the case for padons will stand on submissions that are supported by fact. The plea for condonation, (as Isaccs argued) stands alone and will be considered along with the other aspects of the case for pardons.
If the Van Staden lad was only 12, it does not necessarily mean that he was not a combatant. You should review the version of the incident as stated by Witton. ‘The last three prisoners shot by him had been entered in his charge-sheet as two men and a boy. The “boy” was about 18 or 20, and had been right through the war and seen more active service than many a veteran soldier, or than nine-tenths of the Carbineers. This was the first time I had spoken to Lieutenant Morant since my arrest’ (extract from Witton’s book chapter X11)
His death along with so many others in the war was regrettable. You are correct, I haven’t focused on the 12 victims, I am focused on the strength of the case against Morant, Handcock and Witton and the process that was used to charge, convict and sentence them, it does not mean that I don’t think the whole case was regrettable. I agree the Boers suffered terribly by the manner in which the war was prosecuted. But I am focused on a case for pardons, in doing so I may make comment about matters such as Kitchener’s policies. I saw the camps and I was moved by Charles Leach’s commentary.
Regards
Andries, condonation only applied to serving Army/ Air Force personnel from a recognised command and subject to Military law, not the IRA, a named terrorist organisation. I am only interested in discussing condonation with respect to the Morant case.
The case you have referred too I agree is disturbing, but again I am not focused on that particular case, just the Morant case. I do not see any paralell, I do not agree with you.
Regards
Thanks Andries, all the more reason for an Inquiry into the matter of Morant, his actions, were orders to take no prisoners issued as claimed by Col St Clair (in his review of the evidence of the investigation) and men who gave evidence of such orders at the trials, the significance of the recommendations for mercy and why they were ignored by Kitchener, the relevance of Condonation, were the rules of Procedure followed as required by law, why were the men denied a plea to the King, (as was their right), what was the role of Capt Taylor in this matter and why was he never prosecuted as recommended by St Clair, and so the list goes on. An Inquiry is needed to clear up these and other questions, (including yours).
A final comment Andries, the Boer war was fought as a guerilla war, combatants ranged from young and old men to women and childern who assisted with logistical support and providing fighters with intelligence. In many ways, the war was like modern day conflicts in the Middle East and previously, Vietnam. Guerilla wars are charcterised by unconventional tactics to fight an army that is superior in men and fire power. Using young childern as fighters and or ‘spies’ etc was not uncommon in the Boer war and subsequent wars.
The Van Staden incident is far from clear and many writers have disputed the Boer version of events, incl;uding the age of the youth shot on Morant’s order. I don’t dispute your grief, but I do question the evidence that support your vesrion of this incident. Witton for example describes the youth as 18 years and so on.
Again, an Inquiry may assist with this issue.
Finally, you suggested I have a motive of seeking fame with respect to this case. A quote from a paper I wrote, ‘ my motivation’ may assist in dispelling your suggestion. I wrote ‘my motivation’ because I suspected that along the journey I would be accused of acting in self interest or in your words ‘seeking fame’. In brief, I have written;
‘I am a lawyer by occupation. I have spent 28 years in the Australian Navy. I have specialised in criminal law and have extensive experience as an advocate before Military courts martial and as an advocate in civil courts. I am an experienced barrister and solicitor and spent many years working as a Police and Crown prosecutor. I have reputation for addressing injustices and delight to ‘righting’ wrongs.
I first became involved in this case 12 months ago when I watched the ‘Breaker’ Morant movie (not for the first time!!) I then decided to research the history of Major James Francis Thomas, the Australian lawyer who defended Lieutenants Morant, Handcock and Witton on charges of murdering Boer prisoners during the Boer War.
I discovered to my dismay that Lieutenants Morant, Peter Handcock and Witton were not tried in accordance with the law of 1902 and that they had suffered great injustice. In short, the convictions for murder were unsafe. I decided then that a review process had to be done immediately. Much to my dismay, the case had never been reviewed and despite extensive literature on the Boer war and the life of Morant, no one had ever examined the details of the trials and had questioned the legitimacy of the evidence produced and the conduct of the trial.
I have used my extensive legal and military experience to study the case and have produced significant evidence that asserts Morant, Handcock and Witton were not tried in accordance with Military law of 1902.
The work I have done has been a comprehensive study of military and civil law that applied at the time of the trials (1902). To highlight what I believe were fatal flaws in the arrest, investigation, trial and sentencing of the accused unsafe convictions resulted. I have used the historic process of petitioning to the Crown for the exercise of the royal prerogative of mercy to argue for an inquiry into the circumstances that led to the execution of Morant and Handcock and the sentencing of Witton to life imprisonment.
I remain committed to having this matter examined and justice delivered posthumously so that Major Thomas’ work can be completed and the descendants of these men can rest knowing that Morant, Handcock and Witton served the Crown in a manner that is deserving of honourable recognition.’
Conclusion:
Seeking fame, no, seeking justice for these men and their descendants, yes
Regards
Jim
Andries, you will be glad to know that I am planning a comprehensive documentary about the Boer and Australia’s participation, in particular all aspects of Britain’s invlovement, the policies of Lords Roberts and Kitchener, issues such as concentration camps, scorched earth policy and the destruction of farms and live stock . I have applied for funding and would like to consult people like you, ( if you would be interested) to participate in a production that will explore all aspects of the war, including the Morant saga and the use of colonial volunteers and controversial tactics used by the British military.
I believe there is more to this story than three colonials who historians say went on path of desruction and killed innocent civilians. There are too many unaswered questions about the alleagtions against them and the manner in which they were arrested, tried and senteneced in secret.
The idea of a documentary is to explore aspects of the Boer from all sides.
Finally, you mentioned an ‘in house’ inquiry as if this is something to be sceptical about. If an inquiry is convened, I expect it to meet the highest standards of probity and professionalism.
Regards
Jim
Andries, this is obviously a very personal matter of grief for you, I do not mean to offend, I do not use personal abuse in any debate or discussion, I welcome our messages and read and consider every point you make. I look forward to an inquiry.
Regards
Jim
Thanks Andries, there is no agenda from me of personal attack, I don’t operate that way. I am sorry about your loss and I assure there is no agenda of seeking fame as you have stated, just an interest in settling a debate that has raged for years.
Regards
Jim
Andries, describing the prinicple of condonation as a ‘digression’ is with respect a gross attempt to diismiss a pinnicple of military jurisprudence that developed over hundreds of years. Your attempt to minimise its application to the Morant case won’t work.
Adnries like many other historians, you seem to emerse fact with fiction, and provide self serving statements as if your assertions are fact. By all means, make commnet but don’t pass off historical conjecture without proven fact. Major Thomas did not urge the court martial to apply condonation, there is no evidence that condonation was even mentioned during proceedings by Thomas or the court members, including the prosecutor.
A principle of law can attain no higher position than to be enshrined in legislation and this was the case in 1902.
The trial procedure at the time of the Morant trial recognised the plea of condonation. The 1899 Manual of Military Law, Rules of Procedure 36 A (2) outlined the procedure for a plea in bar of trial on the grounds the offence had been condoned. Rules of Procedure 36(A) (2) recognised the principle that an offence could be condoned or pardoned by a competent military authority ‘by the deliberate act of some superior authority’ Rules of Procedure 34, Note A gave directions on how a court would proceed with a special plea.
In the MML, Paragraph 53 also stated:
‘A plea in bar may also be offered by the prisoner at the time of his general plea of guilty or not guilty on the ground that the offence has been pardoned or condoned. The plea must be recorded at as well as the general plea of the prisoner and maybe supported by evidence. If the court find the plea not proven they will proceed with the trail, if they find it proven they will notify their finding to the confirming authority and adjourn unless there is some other charge against the prisoner not affected by the plea. In either case the finding requires confirmation’
Condonation was raised by Isaac Isaacs and this clearly influenced the King to order Witton’s release. Condonation was also discussed by Isaacs in his legal opinion of 1902. Whether you agree or not, the principle correctly identified by Isaacs and reflected the state of common law as it existed in 1902. With respect, you are wasting our time to discuss the modern day concerpt of condonation, hence I am not sure why you mention Vietnam. If it is of interest, condonation remained an aspect of modern military law in UK and Australia for most of the 21st Century
The rest of your response does not alter the fact that condonation should have been debated during the trial. As it wasn’t, the concept is most relevant today in the consideration of the case for pardons.
Again, if you are so convinced of your assertions, then urge the British government to convene an inquiry before an experienced judge. I suggest this whole case needs to be settled by a decider of fact and not tedious debate by commentators. For 108 years there has been debate by historians, professional and amateurs over so many issues. Arguments carefully constructed to support particular bias. What hasn’t occured is a legal review and findings based on evidence and provable facts.
Until,this occurs, the debates will continue and the Australian public will believe that a question mark hangs over the legality of the courts martial and the allegation that these men weer made scapegoats of British injustice.
I respect your right to debate the case, but set aside your self interest and support my call for an inquiry, unless of course you fear the truth being exposed. Like many other individuals and organisations in Australia, vested interests dictate attitudes of fear that maybe these men did not receive fair trials and the case for pardons is strong and compelling, (a conclusion that was stated by a member of the House of Representatives Petitions Committee in March 2010) .
For your benefit, in Australia the following reflected the law on condonation as recent as 1980:
Under existing Army and Air Force law, when an Officer or Soldier was charged with an offence before a military or Air Force tribunal, he could have raised a plea on the ground that the offence with which he was charged had been condoned by competent military or Air Force authority and, if he substantiated his plea, it operated as a bar to his trial for that offence.
‘The defence of condonation, which has no counterpart in naval law or in the civil criminal law, dates at least from the Peninsular War (1804-1014). “The performance of a duty of honour or of trust, after the knowledge of an offence committed, ought,” said the Duke of Wellington in a despatch, “to convey a pardon for the offence.” (quoted in C.M. Clode “Military Forces of the Crown” (1869) (Explanatory Memoranda of Defence Force Discipline Act, 1980 p, 262.
Finally, a couple of statements from those who have studied condonation.
Charles Francis, QC (deceased).
‘While expressing no views on the facts that gave rise to the court martial of Breaker Morant and Peter Handcock (“Morant deserves a break,” February 6), their conviction was clearly wrong in law. Early in the 19th century the Duke of Wellington propounded the military legal principle of condonation. No soldier facing court martial could be required to perform military duties until his trial ended. If he were placed on military duties, that was a condonation of any offence previously committed and thereafter he could not be tried for it. During the process of Morant and Handcock’s trial, the Boers attacked the unit where they were imprisoned. They were temporarily released to fight valiantly in a successful defence action. Consequently, when the trial resumed, the court had an express duty immediately to discharge them, as their offence, if any, had been condoned. Kitchener would well have known their conviction was wrongful. Because of these executions, the Australian Government in the first days of World War I made Australian participation conditional upon no British court martial having the right to execute an Australian. Herald Sun newspaper 13 Feb 2002
Helen Styles, lecturer in International Communication at Macquarie University and member of the Red Cross Committee on International Humanitarian law summarises the view of the legal proceedings and condonation and concluded the convictions were unsafe:
‘I agree strongly with the argument that Morant, Handcock and Winton deserve to have the conviction quashed as unsound on technical grounds. They deserve to be pardoned on the basis of military practice and opinion juris, in accordance with Wellington’s belief that the performance of a duty of honour and trust after knowledge of a military offence ought to convey a pardon’
In conclusion, I look forward to the British Inquiry that will consider condonation and its relevance to the case for pardons
Regards
Jim
Hi Andries, perhaps a judicial inquiry will satisfy your concerns, again I suggest you support the call for such an inquiry.
Secondlly, I agree with you, Hunt’s body may have been descecrated by natives for tribal rutuals, a practice that still happens today, but whether that did occur or not is not the point, what is critical is that Morant believed that Hunt had been tortured and killed and reacted accordingly. He carried out the orders he received and under considerable stress and reacted under duress. The court acknowledged this in its recommendations for mecry, ‘ extreme provocation ‘. What is importrant here is what was in the mind of Morant, a geniune belief that his best friend had been tortured and murdered I trust the findings of the court members who heard all the evidence and not commentators from the present day.
The issue of Hunt’s death and and how it affected Morant’s, (extreme provocation) and its relevance to a charge of murder will be one aspect that is considered by an Inquiry.
Finally, I would be interested in your view about the condonation principle.
Regards
Yes, thanks Richard, Renar does provide some detail of the actions of Morant, Handock and Witton in bearing arms while under arrest and trial, I will add some comment to the forum and post on condonation. Although Renar didn’t witness the action, his article on Morant clearly implies that he did some research on the matter and probably interviewed officers who were present duing the Boer attack.
Renar’s comments on condonation ‘mirrors’ the details given by Witton’s counsel, Isaac Isaacs, KC, MP who represented Witton in the petition to the King that resulted in Woitton being released in 1905. In the petiton that Isaacs drafted, he pleaded condonation as a ground for pardoning and releasing Witton from prison.
Regards
Jim
Hi Jim,
Fox’s article also supports the argument for a plea on the grounds of condonation. Although he doesn’t go into as much detail, his description on page 34 of the defence of the garrison by the accused is similar to Witton’s account. I’m not sure who his source was, possibly Maj. Lenehan, but it certainly wasn’t George Witton.
I was puzzled when I read the transcript of the Parliamentary hearing to see that historian Craig Wilcox claimed, when referring to the role of the accused in this action, that “The evidence comes entirely from one of the accused”, when I was aware that Fox’s article also provided supporting evidence.
Regards
Richard