Sir Isaac Isaacs, KC, MP, & The Australian Natives Association & the connection with the legal defence of Lieutenant George Witton

Sir Isaacs Isaacs, The Australian Natives Association and George Witton

Boer war historians who have researched the conduct of three Australian volunteers, Lieutenants Morant, Handcock and Witton, and their trials and sentences may have overlooked the significance of Australian jurist and politician, Isaac Isaacs, who in 1902 came to the defence of George Witton.  Isaacs, a Kings Counsel and MP in 1902, (subsequently appointed as the first Australian born Governor General and Chief Justice of the High Court) applied his skills and reviewed the Witton’s convictions and sentence by courts martial. In August 1902, 6 months after Morant’s and Handcock’s executions, Isaacs completed a legal advice and a petition to the King.[i]

His work paralleled the storm of protest from Australians, representations from the South African Government and British politicians, including Winston Churchill for Witton’s release.  Isaacs dogged legal work, combined with protests and the petition eventually secured Witton’s release from prison in late 1904.  Witton served less than three years for offences that had been characterised as capital offences that deserved the severest of punishments!

Background

My interest in Isaacs grew from my research into the case against the three Australian veterans and how such an eminent jurist like Isaacs was so convinced of the injustice done to Witton that he acted on his behalf.  I was also intrigued how Isaacs was retained as counsel, what involvement did George Witton’s brother, Ernest have with Isaacs and how a petition that secured at least 80 000 signatures, was circulated through Australia.?

My research into the Isaacs connection followed from what George Witton stated in his book[ii]

On the 12th of November 1904 after a chequered experience extending over nearly five years, I placed my foot again on native soil.  On my arrival in Australia, I met among others, Mr Wrainwright, general secretary of the Australian Natives Association and his son, Mr Austin Wrainwright who so ably assisted my brother in his efforts towards my release.  I also met Mr Alfred Deakin a true compatriot who during his term of office as Prime Minister of the Commonwealth had been untiring in his efforts to secure my liberty and return to Australia.’

Witton’s reference to the ANA led me to the archives section of Australian Unity.[iii]

Australian Unity is a diversified mutual company that is owned by its customers has a rich history and is founded on creating social value.  It provides high trust products and services in healthcare, retirement living and financial services.  The company has material growth ambitions in all its businesses over the coming five years, and an aspiration of being known as a thought leader on key aspects of community wellbeing

Australian Unity has a long and proud history dating back to 1840. Australian Unity as an entity was formed by the merger of the Australian Natives’ Association Friendly Society (ANA) and the Manchester Unity Independent Order of Oddfellows in Victoria Friendly Society in 1993 and expanded further in 2005 through a merger with Grand United Friendly Society Limited[iv]

The Australian Natives’ Association (ANA) was established in Melbourne in 1871. It was founded as a friendly society whose membership was open to Australian-born males only. It gradually established city and country branches in Victoria. The ninth branch to be formed was in Charters Towers, Queensland in 1879. By 1901, 205 branches had been formed. When the ANA was formed, it had two aims—to act as a friendly society offering financial support to its members in need, and to promote the moral, social and intellectual improvement of its members.

My research (though ANA branch minute books) revealed the following:

• Isaac Isaacs was a member of the ANA;
• Alfred Deakin, PM was also a member, who lobbied the British government for George Witton’s release from prison;
• George Witton had been an ANA member since 1899.  His brother, Ernest was also an ANA member;
• Ernest Witton circulated copies of the Isaacs petition to ANA branches.   Ernest wrote to the ANA branches as follows:[v]

I have the honour to send you the enclosed petition addressed to His Majesty the King praying for the release of Lieutenant Witton, a famous Australian citizen and one among the thousands who left native land and kindred to fight for the flag.  The petition is founded upon and in accordance with the opinion of the Hon. Isaac Isaacs, KC, MP of Victoria and is circulated for signature throughout the Commonwealth.  It is desired that all signatures should be simply as citizens of the Commonwealth and not in any sense official.   I sincerely trust you will find it agreeable to your sense of justice to sign the petition yourself and help in obtaining other signatures.’

• An original petition and signature pages were collated and sent by covering letter signed by Ernest Witton to the Australian Governor General, Lord Tennyson.  The letter stated;[vi]

The petition contains over 80,000 signatures, including those of Members of the Commonwealth Parliament, members of the State Parliaments throughout Australia, representatives of commercial and business men, representatives of banking and insurance companies, barristers, clergy and members of all the learned professions. it has been numerously circulated and subscribed to by the Friendly Societies throughout the Commonwealth and has been enthusiastically taken up and signed by members of the rifle clubs.

• Following his release from prison and return to Australia, George Witton toured Australia and gave presentations to ANA branches.
• The support Ernest and George Witton received from the ANA is best summarised by the entry made in the ANA’s magazine.  It stated[vii]

Lieutenant G.R. Witton, who arrived from England by the ‘Runic’, recently visited the offices of the Victorian Board of Directors on his return and was warmly welcomed by the General Secretary and the Hon, Alfred Deakin, MP.  It will remembered that the Lieutenant was court martialed and sentenced to imprisonment for life for having been concerned in the shooting of unarmed Boers in the South African War.

He was incarcerated in the Portland prison where he spent two and half years being released in consequence of the representations made by the Federal Government.  His brother, who is a well known member of the Association, worked very hard to secure the Lieutenant’s release and was considerably encouraged in his efforts through the sympathy and assistance of accorded him by the Hon, Alfred Deakin when Prime Minister

The role that the ANA played in assisting tom secure Witton’s release was significant and was achieved through the collaboration members of the ANA and Ernest Witton who circulated the petition though ANA branches

Isaacs’ professional analysis of the case against Witton (and by implication the prosecution evidence against Morant and Handcock), argued that the men obeyed orders that they honestly believed had been issued by their British superiors and that the principle of condonation ought to have been applied at the courts martial.  In this regard, Isaacs quoted from the Duke of Wellington edict on the performance of a duty of honour or trust after the knowledge of a military offence ought to convey a pardon. He also quoted from military lawyer of the time, Clode’s observation, ‘no soldier should be put on duty having hanging over him the sentence of a court martial.’[viii]

Conclusion

Historical argument on this case has filled journals, books, entertained readers and viewers and fuelled the egos of academics.  However, the military law of 1902 that was used to prosecute these men has never been thoroughly examined and re revisited to settle this controversial case.

Fortunately, Isaacs’ opinion still resonates in 2012 and provides compelling reason why these men should be pardoned.  Isaacs’ understanding of the case was contemporaneous with the trial convictions and sentences came from a jurist who held a prominent position in Australia.  My proposition is that Isaacs’ representation of Witton would not have occurred had he not been convinced that the charges against these men were not proved beyond reasonable doubt and they did not receive fair trials

The law of the civilised society is more a more discerning and precise instrument than historical debate and I have focused on the legal aspects of this case.  This is where this saga began and where it will ultimately end – with the law, not history being the ultimate judge of whether Morant, Handcock and Witton were guilty as charged or used as political pawns for the crimes of their superiors.

If flaws were made in the administration of justice, yet to be determined by an independent inquiry, then the British reputation for fair play and justice should prevail, apologies issued and pardons granted