Principle of Condonation – Ground for Pardons

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Manual of Military Law 1899 – Condonation

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

In the MML, Paragraph 53 also stated:

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

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

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

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

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

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

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

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

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

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

Witton’s version of the Boer attack was:

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

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

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

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

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

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

• They did not resist the order;

• On both occasions they were under close confinement;

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

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

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

Witton’s Petition – Condonation

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

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

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

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

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

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

Precedent – Condonation

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

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

Analysis of Isaac Isaacs, KC, MP

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

These two documents are very persuasive of the following issues:

• Condonation;

• Defence of superior orders;

• Sentences imposed on the accused and

• Mitigation circumstances with respect to Lieutenant Witton.

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

A final word

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

Charles Francis, QC (deceased).

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

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

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

Conclusions

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

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

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

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

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

Regards

Jim Unkles

Copyright © James Unkles 2010