Breaker Morant Blog

Petition – George Ramsdale Witton

George Witton was sentenced to penal servitude for life on 27 February 1902. He was released from prison after a concerted effort by the Australian and South African governments and citizens of both countries.  A petition signed by 80, 000 Australians urged the Crown to pardons and release Witton and representations were also made by British MPs, including Winston Churchill.

Although Witton was released without a pardon being granted, it is time to recognise Witton’s case and grant him a posthumous pardon so that the issue can be concluded.

 Witton’s case was reviewed by Isaac Isaacs KC, MP in 1902 (destined to become Chief Justice and Governor General).  His legal opinion dated 28 August 1902 and the petition that he settled argued for a pardon for Witton and his release.

 Isaacs’ legal advice made the following claims:[1] The words in italics are quotes from his legal advice.

•  Witton’s sentence was ‘disproportionate to any possible blame attachable to him’;
•  ‘The great weight of testimony makes it difficult to see where he is culpable at all’;
•  ‘He was the junior subaltern. He had joined the Bushveldt Carbineers only on July 13^th and the Spelonken detachment under Captain Hunt’s command on earlier than August 5^th’
•  He was not aware of the orders given to or transmitted by Captain Hunt;
•  A witness at the court martial involving the Visser death, Sergeant Robertson admitted in cross examination that Captain Hunt ‘had given direct orders that no prisoners were to be taken and had on one occasion abused the witness for bringing in three prisoners without orders’;
•  Morant had deposed that Hunt had given these orders and named Colonel Hamilton as the authority; 
•  Isaacs expressed the issue of obedience to orders as, ‘If Captain Hunt informed his subordinate that Colonel Hamilton had given such orders and directly required obedience to them, what could his Lieutenants do?’
•  ‘Witton was an inexperienced officer with no previous experience in the field, with less than a month with his corps and less than a week with his detachment, placed faith in and yielding obedience to the distinct assurances and positive commands of two superior officers having better means of knowledge and with all the advantage of rank and authority’;
•  Isaacs further argued, ‘immersed in services of continuous activity and serious pressure, engaged with the enemy under circumstances that lent some colour to the likelihood of such orders, having no reason for disbelieving what he was told and led by men of masterful mind and strong personal force, under the influence as Lord Kitchener himself says, of Morant and Handcock, what was this young officer to do?
•  Isaacs quoted Lieutenant Colonel Pratt in his handbook of military law, the principle of obedience to lawful commands and Clode’s Military Law and Martial Law 1874, p56;
•  Isaacs reasoned, ‘Thus there was a large body of uncontradicted evidence that Hunt had in fact given the orders to take no prisoners and that he had reprimanded officers for transgressing those orders’;
•  Isaacs stated, ‘the belief entertained that such orders had in fact been lawfully issued’;
•  Isaacs also referred to the prosecution of murdering 8 Boers.  He argued that Morant had asserted his authority not to take prisoners and had been credited with following orders. Isaacs also referred to the evidence of other soldiers, Lieutenant Hannam and Sergeant Waller-Ashton who stated that orders had been followed to take no prisoners and one Colonel Craddock had reprimanded others for taking prisoners;
•  Isaacs also detailed the events of the Boer attack on Pietersburg on 23^rd of January during the court martial.  He described the attack, the accuseds’ call to arms and the temporary ‘restoration of the prisoners to the fighting force of the British if any exigency should occur’. The prisoners were not armed for their own protection and it was done to assist in the defence of the town and garrison as every available officer and man was required;
•  Isaacs also discussed the principle of condonation and quoted the Duke of Wellington’s edict on the performance of a duty of honour or trust after the knowledge of a military offence ought to convey a pardon. He also quoted Clode’s observation, ‘no soldier should be put on duty having hanging over him the sentence of a court martial’.
•  Isaacs concluded his advice about Witton’s culpability, ‘I conclude that the balance of testimony of inference and of reason, is in favour of acquitting Lieutenant Witton of moral culpability and that a most weighty factor on his side is further added by the Pietersburg incident’
•  Isaacs’ analysis in his legal opinion was used in the construction of the petition. It is clear from his opinion that Witton:
•  Acted lawfully in obeying the orders of his superiors (including Morant and Handcock) not to take prisoners. Further, Witton had not acted wilfully and by design but according to the orders he received ;
•  Had a bona fide belief that the orders were reasonable and lawful;
•  Witton’s lack of experience and training were relevant factors in assessing his culpability and whether it was reasonable to expect that he would have known such orders were unlawful;
•  Acted in accordance with the principle of condonation in defending Pietersburg against a Boer attack;
•  Had participated in the incident of the shooting of 8 Boers but only in so far as he acted in self defence in shooting a Boer who had attacked him.

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 Petition

 The petition argued for a pardon on the following grounds:[2] The words in italics are quotes from the petition.

•  Witton was inexperienced, followed orders given to him by his superiors, had no option but to obey and would have been insubordinate if he had ventured to, ‘demand from his superior officer proof of the truth of his statement as to the issue and meaning of the orders in question before yielding obedience’;
•  ‘The defence of obedience to orders and the view that Lieutenant Witton honestly and reasonably believed in the existence of lawful orders were, as your Majesty petitioners believe, materially corroborate and supported by evidence in other cases before the same court martial, that other corps believed the same thing and acted accordingly’.  Isaacs cited Lieutenant Hannam and Sergeant Waller-Ashton who stated evidence of, ‘to take no prisoners and Hannam having been reprimanded by Colonel Cradock for taking prisoners’  Witton concluded, ‘Your Majesty’s petitioners humbly submit that such reprimand and orders could only but one meaning and that they afford strong reason for not imputing criminal conduct to Lieutenant Witton.’
•  ‘There was no criminality in a young and comparatively inexperienced Lieutenant with no previous experience in the field with less than a month with his corps and less than a week with his detachment, placed faith in and yielding obedience to the distinct assurances and positive commands of two superior officers having better means of knowledge and with all the advantage of rank and authority’;
•  Isaacs quoted from Lieutenant Colonel Pratt and suggested that Witton was bound to obey the command of his superior officer, ‘if the illegality of it was not on the face of it apparent’;
•  Isaacs also argued, ‘no doubt can ever have existed that Captain Hunt had given the orders referred to’;
•  Isaacs further submitted in the petition for a pardon based on condonation. In paragraph 12 of the petition, Isaacs stated the circumstances of the attack by Boers on Pietersburg and asserted that Witton rendered ‘honourable perilous service in his country’s and your Majesty’s cause’.[3]
•  Isaacs also made a significant point regarding the charge against Witton of murdering 8 Boers. There was evidence that Witton was present at the shooting. Isaacs argued that Witton’s conviction of murder was unsafe and against the evidence. Isaacs stated, ‘So far as Lieutenant Witton is concerned he was present with others but did not take part in any decision regarding the fate of the men. One of them rushed at him and seized hold of him and then Lieutenant Witton shot him, apparently to protect himself. He neither ordered nor participated in the shooting of the other seven’.[4] This submission by Isaacs was drawn from Witton’s statement that he made in the trial. In part, Witton stated, ‘on 23^rd August, one of the Boers rushed at me to seize my carbine, and I shot at him to keep him off.’[5]
•  Isaacs also cited a procedural error in the composition of court that tried Witton. Isaacs stated, ‘humbly beseech your Majesty to consider whether Lieutenant Witton has not suffered some disadvantage in not having as one member at least of the court martial an officer of an irregular corps in accordance with the rules of procedure’.

George Witton’s Brother, Ernest Acts To Free George 

George’s brother, Ernest organised for a petition to travel the length and breadth of Australia, through small country towns to the large cities. In his letter to then Australian Governor General, Lord Tennyson, Ernest declared that the petition had been signed by ‘all classes of the Australian community, including Parliamentarians, professional and business people’. Ernest laboured mightily on the behalf of his brother, George and sought legal opinion of his eminent adviser, Isaac Alfred Isaacs. This extraordinary effort set the scene for a concerted move that succeeded in Witton’s release

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[1] Isaac Isaacs Legal Opinion – Witton dated 28 August 1902

[2] Isaac Isaacs Petition  G. Witton dated 1902

[3] Isaac Isaacs Petition, G. Witton dated 1902, para. 12

[4] Isaac Isaacs Petition. G. Witton dated 1902, para. 9

[5] Lieutenant G. Witton, Scapegoats of the Empire, 1907, p.109

After Witton’s imprisonment in February 1902, a campaign for his release was mounted in Australia and England.  Support for Witton attracted the support of thousands of citizens, public figures, politicians in Australia, South Africa and Britain including, Edmund Barton, Alfred Deakin and Winston Churchill.

What was surprising was that support also came from South Africa, from Boer leaders who fought the British.

In his book, Scapegoats of the Empire, Chapter 24, George Witton recounted the support he received from concerned citizens of South African who objected to what was perceived to have been a gross injustice at Witton’s imprisonment for the criminal deeds of his superiors. 

The following extract in the book described the representations made to Sir Gordon Sprigg, the Cape Premier by members of the Constitution Club, ‘its objects the maintenance of the glorious traditions of British justice and fair play’.

‘So to this fate I had for the time being to submit. I knew that at Capetown a meeting had been held and a powerful organisation formed, and strenuous efforts were being made for my immediate release. Messrs. W. B. Melville, Herbert Easton, and R. Bruce-Hardy, did Trojan work. An influential deputation waited on Sir Gordon Sprigg, the Cape Premier, with the object of enlisting his sympathy. The following is a summary of the proceedings, extracted from the South African press:–

A deputation of citizens waited upon the Premier, Sir Gordon Sprigg, with the object of enlisting his sympathy on behalf of the movement to secure the release of ex-Lieutenant Witton, of the Bushveldt Carbineers. Lieutenant Witton, it will be remembered, was tried with others by a court-martial in connection with certain military irregularities on the high veldt. He was sentenced to death, which sentence was commuted to imprisonment for life by Lord Kitchener. He is now a prisoner in an English gaol. The deputation consisted of the following gentlemen:–The Hon. J. H. Hofmeyr, and Messrs. J. W. Van Reenan, J. J. Michau, C. A. MacBride, R. Bruce-Hardy, B.A., W. B. Melville, C. R. Juchau, F. W. Wilson, G. W. Baudinet, Thomas Gibson, Drs. Forsyth and Crozier-Durham, Dr. Petersen, M.L.C., D. Van Zyl, ex-M.L.A., and Messrs. Herbert, Easton and D. McKey.

Mr. D. McKey, who introduced the deputation, said:-Sir, as a member of the recently-formed Constitutional Club of this city, which includes among its objects the maintenance of the glorious traditions of British justice and fair play, I have the honour to be one of the conveners of this deputation, which has been formed to ask you, as the Prime Minister of this colony, to use your influence in such a manner as you may deem best on behalf of our young fellow subject, for some time known as Lieutenant Witton, but who is at present undergoing sentence for life in Portland Prison. When first approached upon this matter I was of opinion that it was a case which called for mercy alone, but upon hearing the statements of one of his fellow-officers, and that of others acquainted with the entire facts, I have come to the conclusion that there has been a grave miscarriage of justice in committing to prison for life one who I have every reason to believe is an innocent man, and, therefore, as it is justice alone that is sought, it is with that end in view that Mr. Easton and myself called upon and asked you to receive us here to-day, and I feel sure that our appeal for your assistance will not be made in vain. In forming this deputation we have endeavoured to make it non-political by inviting the leading representatives of both the Progressive and South African party, to each of whom we have written, giving at least seven, days’ clear notice, and asking them to attend; and I therefore, hope, that whatever may be the outcome of our efforts on behalf of this unfortunate man, our motives will not be misconstrued, as our sole desire is to obtain his honourable release.

I have not considered it necessary to go fully into the details of the case, as there are others of this deputation who are in a position to, place the matter more fully before you. I will therefore ask Mr. Herbert Easton to address you, and I beg to thank you for the patient hearing which you have given me.

Mr. Herbert Easton said:–Sir Gordon,–Our object in meeting you to-day is to enlist your sympathy and secure your support towards a deep and far-spread movement to obtain the release of ex-Lieutenant Witton on the grounds of justice. We do not approach you to, ask mercy on his behalf, for, regarding him as innocent, we think it a scandal that this young officer is being detained in an English gaol.

The War Office is an administration that has lost the confidence of the people, and public feeling on the Witton case has been intensified by the tactics adopted by that discredited administrative board in resisting the, efforts of Witton’s advocates to bring the true history of the case to light. The voluminous evidence taken at the courts-martial–on behalf of the War Office–remains withheld, and all official information so far published is that which has been subjected to the severest press censorship. Little by little the true history of Witton’s connection with the B.V.C. has come out, and has made a profound impression on the popular mind, which is now filled with anxiety for what we believe to be the unjust fate of a British subject. (Hear, hear.) You, Sir Gordon, are fully aware of the extraordinary excitement caused by the Dreyfus case-how the military authorities of the great French Republic were so wilfully misled as to the accusation against Dreyfus; that it was only after the intemational-and particularly the British press roused such a great wave of feeling by minor discoveries, that the French Government suspected the verdict of the military court-martial, and was compelled to have Dreyfus retried before a civil tribunal, which fully justified the immense trouble and labour taken by the public in his cause. We here to-day feel convinced that we are voicing the sentiments of millions in saying that we believe a retrial of Witton before a civil tribunal will reveal a second Dreyfus case.

We are oppressed with the belief that the promises made to, the petitioners to have our statements and prayers brought directly under the notice of His Majesty the King have not in England been carried out to the spirit and the letter, as we, feel assured that, were it possible to reach the ear of His Majesty with the whole evidence, there would be no question that His Majesty would cause a retrial of Lieutenant Witton to be instituted.

In conclusion, Mr. Easton read the following letters

Schoongezigt, Stellenbosch,

4th December, 1903.

Dear Sir,-I regret that a previous engagement to speak at the Paarl on the Chinese importation question will prevent me from joining your deputation. As a firm believer in the fullest possible measure of amnesty, I think that it would be good policy to release Witton. I do not wish to enter on the particulars of his crime, his trial, or his sentence, but upon the broad grounds of policy; I think that you have followed the right course in appealing to the Prime Minister of the colony to use his good offices in laying the case before the Imperial authorities, with whom the matter rests.

I am, dear Sir, yours faithfully,

JOHN X. MERRIMAN.
De la Rey, Gardens,
5th December, 1903.

As a result, men fail to respond to traditional treatments, platelet rich plasma therapy (PRP) is a perfect therapy check out now levitra brand online for alleviating chronic pain and providing relief. Aging also comes up tadalafil 80mg with the risk factors in a nutshell. One of these changes is atrophic gastritis, a condition in which a man is unable to sustain or keep an erection for a viagra generic sale satisfactory time duration. This action is known for preventing a man from lovemaking and satisfying a woman as purchase levitra find that storefront a whole. My dear Mr. Easton, I regret very much that I cannot form one of the deputation to interview the Prime Minister in connection with the Witton case. I have to leave on Monday early for Pietersburg to address the electors at several places in that district, where I am a candidate. I hope you will be successful. I cannot see any reason for believing that Sir Gordon Sprigg will not assist you in connection with your efforts re the Witton case.

Yours truly,

C. Du P. CHIAPPINI.
“Ons Land,” Kantoor, Kaapstad,
27th November, 1905.

Gentlemen,–I have the honour to acknowledge the receipt of your letter of even date with reference to “the Witton case,” inviting, me to join a deputation which will wait upon the Prime Minister on Monday, 7th December, and I beg to state that I have the greatest sympathy with the object of the proposed deputation. I would consider it a privilege to be able to do something towards its attainment. I find, however, that it will be impossible for me to be present on that date, seeing that I have already arranged for a public meeting (announced in “Ons Land” of yesterday) at Vredenberg, Saldanha Bay, with my fellow-candidate, Mr. J. A. Smuts, for Saturday, 5th December, and that I shall not reach Capetown again before Tuesday evening, 8th December.

I sincerely regret that this previous engagement will prevent me from joining you in the deputation, but I wish you all success, and I shall do all in my power to assist you.

Believe me, gentlemen, to be, yours faithfully,

F. S. MALAN.

Mr. W. B. Melville, who was deputed to state the case for Witton, said:–

“We are grateful, Sir Gordon, for the opportunity you are affording us to-day to lay before you, as the head of His Majesty’s Government in this free country, the case of Lieutenant Witton. Your readiness to receive us, and to listen to what we have to say is courtesy and consideration characteristic of you, and appreciated by us. It will be our aim to represent to you to the best of our ability the broad circumstances and salient features of the case as they bear on the innocence of Witton of any act of barbarism or criminal complicity in connection with the tragedies on the high veldt in August, 1901. At the outset, we desire to dissociate ourselves from any defence of the murders and other brutalities which blacken the record of some members of the Bushveldt Carbineers; but we do say that it is unfair to assume that any more than a small percentage of that irregular corps is directly, or indirectly, responsible for crimes that cried to heaven for vengeance. Unfortunately retributive justice, in blind pursuit of the guilty, punished, in at least one instance, the innocent. You will gather from this that we regard the court-martial proceedings as incomplete, and seriously unsatisfactory. As the responsibility of Witton’s sad position rests with the court-martial, and as the strength of our position is the imperfect character of that tribunal, perhaps it would be well to state at once how it was possible for that court to fail in arriving at the truth. In the first place it was hurriedly summoned, and sat for three weeks dealing with a host of charges against the Bushveldt Carbineers. Counsel for the defence (Major Thomas) appeared in court forthwith, as he had no time for the preparation of the many cases entrusted to him. He had scarcely a statement to guide him, and was only confronted with evidence while the trials proceeded. There was no chance of testing credibility, and there was little opportunity of sifting evidence. Evidence objected to was admitted, and rebutting evidence, available under ordinary circumstances, was unobtainable. The defence, not designedly, but none the less regrettably, was hampered throughout. The period was scarcely favourable to calm judicial temperament, and the accused were prejudiced by the stories current regarding the barbarities of the Bushveldt Carbineers. These barbarities were bad enough, but report made them infinitely worse. The men on trial had to bear the full brunt of every crime, real or imaginary, attributed to the corps. Witton, being one of the accused, had his case prejudiced with the rest. The headquarters of the military were impressed with the necessity of decisive action to counteract the effects of the international wave of horror created by the reports from the high veldt. Necessarily, the mind of the court-martial–in direct touch with Army Headquarters-was imbued with little official sympathy with the men on trial. We do not infer that the court-martial was corrupt; we do say it had been unconsciously influenced by its environment. If the same court-martial sat to-day, its proceedings would be widely different, and its conclusions more in conformity to British justice. We trust, therefore, Sir Gordon, that you will bear in mind the all too rough and ready character of the court-martial. However much it sufficed for the period at Pietersburg, its deliberations and decisions must not be held, at this later and quieter date, to be beyond review and reversal when a precious human life is fretting within the walls of an English prison.

“We understand that you, Sir Gordon, have devoted some attention to this case, and that the evidence published in the London ‘Times’ of 18th April, 1902, may have come before you. That evidence does not fill a page in the ‘Times,’ whereas the court-martial proceedings extended to three weeks. Not more than one-twentieth part of the evidence has been made public. Press censorship was responsible for the elimination of questions and answers not deemed judicious for public examination during the war. Since the signing of peace the War Office has not been called upon to produce for public inspection the whole of the evidence. It is most unfortunate that the papers–the missing papers–have been so completely hidden from view. We now ask your assistance in procuring a certified copy of the whole of the evidence, believing that such will be sufficient to establish innocence, in Witton’s case at least.

“As to the condensed and sharply-censored report of the evidence, we desire to say little. As it has been tampered with, it is almost valueless. Nevertheless, it does not disclose the guilt of Witton, even though it infers it. But it does not assist the inquiry. It merely mystifies it.”

The connecting links in the Witton story have been gathered from many sources, chiefly from those who gave evidence, or who were present to give evidence, and were not called, or who were not asked to be present at the court-martial. It is necessary to narrate everything about which there is general agreement.

 Comment:

The previous statements demonstrate the feelings that were generated about  Witton’s plight.  It appears that many were convinced that a great injustice had been done to Witton, that British traditions of justice had failed Witton, Moranat and Handcock in the courts martial and legal standards had been compromised.  Views expressed, included that Witton had followed orders to the ‘letter’ and had not been trained in the finer details of military law and customs.

Clearly, the British Government was influenced by such representations as  Witton was eventually released.

The representations made did not get Witton a pardon, but they did assist in securing his release. Perhaps after all these years justice will be achieved through an Inquiry that will result in pardons for Witton, Morant and Handcock.

Copyright © James Unkles 2010

During the trials and according to the book written and published by George Witton, Morant made the following statement to the court. In part it stated:

‘In the case of Visser I gave the fullest explanation of my position and my instructions regarding the Boers captured in the Spelonken district. I was distinctly and repeatedly told by my late friend and commanding officer, Capt. Hunt, on our arrival at Spelonken, which happened a few days after the train-wrecking occurrence, that no Boer prisoners were in future to be taken. I have already shown in Visser’s case, and can bring further evidence in this case, to prove that Capt. Hunt gave these orders not only to me, but to others under his command, that is, ‘that no prisoners were to be taken,’ and he reprimanded me for not carrying out this order.  “Capt. Hunt had been my most intimate friend in South Africa. We were engaged to two sisters in England. He joined the B.V.C. in order to be in the same regiment as myself, and he practically asked Major Lenehan that we might be together in the same squadron. Capt. Hunt had Imperial service in the 10th Hussars, and some colonial service in French’s Scouts, and I had implicit confidence in him and regarded his orders as authoritative and bonâ fide. Until Capt. Hunt’s body was found stripped and mutilated I shot no prisoners, though I maintain it is generally known that Boers who had been concerned in misdoings and outrages, such as the nomadic Dutchmen of the Spelonken, had been executed summarily by many Irregular Corps who have done good work in South Africa. After Capt. Hunt’s death and the brutal treatment of him, alive or dead, I resolved as his successor and survivor to carry out the orders he had impressed upon me, orders which other officers have in other places and in other corps carried out, with the provocation we had received. The Boers had left my friend’s body, the body of an Englishman and officer, lying stripped, disfigured, and not buried–thrown into a drain like a pariah dog. Moreover, I had heard so much about the deeds of these particular Boers that I have charged with murder, reports which connect them with train wreckings and maraudings. I also know they belonged to the same gang that had maltreated and dishonoured the body of my friend and brother officer. I considered I was quite justified in not treating such men with the amenity usually accorded to prisoners of war, and I am quite satisfied that they fully deserved the summary execution they received. In ordering these Boers to be shot, I did so fully believing that, in view of what Capt. Hunt had so distinctly ordered me, and what I myself knew bad been done elsewhere, I was practically right and justified by the rules of guerilla warfare.’   I have been told that I was never myself after the death of Capt. Hunt, and I admit that his death preyed upon my mind when I thought of the brutal treatment he had received. This treatment of Capt. Hunt’s body, coupled with the train wreckings which had occurred, made me resolve to act on orders and do as other officers have done under less trying circumstances than myself.’

This statement by Morant in his defence was seized on by Major Copeland, the Judge Advocate during his summing up to the Court.  In my submissions to the British government I have focused on the duties of the Judge Advocate and the errors he made in failing to give a full and proper direction to the courts on points of law , including criminal cuplability, onus of proof, the law on reprisals, customary law and principles of sentencing.    However, in what the JA did say to the court as recorded by Witton, there is one direction to the court that appears to have been acted on by the court members in their recommendations for mercy.

The JA stated:

‘It will be on the accused to prove such facts as may reduce the offence to manslaughter, or excuse him from all criminal responsibility. It may be taken generally that in all cases where a killing cannot be justified, if it is not murder it is manslaughter; again, the offence is manslaughter if the act from which death results was committed under the influence of passion arising from extreme provocation, but it must be clearly established in cases when provocation is put forward as an excuse that at the time the crime was committed the offender was so completely under the influence of passion arising from the provocation that he was at that moment deprived of the power of self-control, and with this view it will be necessary to consider carefully–(1) The manner in which the crime was committed, whether deliberately and with premeditation, and also (2) the length of the interval between the provocation and the killing, so as to establish the fact that the alleged provocation was a justification of the crime.’

The JA directed the court to consider the principle of provocation as justification of the crime of murder and reducing the accuseds’ culpability to one of manslaughter.  One may argue that the court was not so satisfied as verdicts of guilty were returned to the counts of murder.  However, in the case of Morant, the court did make recommendations for mercy as follows:

The Visser case: 

‘The court strongly recommends the prisoner Morant to mercy on the following grounds:-
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 1. Extreme provocation by the mutilation of the body of Capt. Hunt, who was his intimate personal friend.’

 The Eight Boers case:

‘Provocation received by the maltreatment of the body of his intimate friend, Capt. Hunt.‘

In  both of these cases, the courts noted provocation and recommended mercy. A persuasive argument exists that the court acted on the direction of the JA and examined the principle of provocation as a defence to charges of murder.  Although findings of manslaughter were not entered by the courts martial, provocation was noted in the recommendations for mercy and in the Visser case, described as extreme provocation, (being a term used by the JA).

Critics may argue that that as verdicts of manslaughter were not entered by the courts martial, the courts were satisfied that the defence of provocation did not apply, nevertheless they chose to express the matter of provocation as recommendations for mercy.  This is a confusing aspect of the findings by the courts in these two cases and again highlights the unsafeness and unreliability of the decisons made by the courts martial.  In the least, this should have formed the basis of an appeal against the convictions and sentences.  However, noting the manner in which the sentences were carried out and Kitchener’s insistence that a stay of execution would not be permitted to allow an appeal, pardons should now be granted to address this injustice. 

Finally, critics may argue that preovocation was not mentioned in the case of the killing of the three Boers. While this is correct, the court nevertheless did make a recommendation for mercy and this should have been acted upon by Kitchener.  In addition, this finding should  have been the subject of appeal, had the defence been permitted to lodge a plea to the King.

Jim Unkles

One of the most controversial aspects of the case for the defence of Lieutenants Morant, Handcock and Witton has been their claim that they followed orders in shooting Boer prisoners.  Critics over the decades have consistently criticised the defence argument and ‘thrown’ out the challenge to produce evidence that such orders were ever given.

Witton quoted defending officer, Major Thomas’  statement to the court.  Thomas addressed superior orders, dealing with guerrillas operating under no rules of engagement or protocols of laws of war. In part he said, ‘the prisoners’ defence is that, no matter in what way the charge against them has been, or might have been framed, the action they respectively took in the summary execution of these eight Boers was justifiable, or, at any rate, not criminal’.  ‘That which would be a crime, a felony, or a malicious act in time of peace may be quite justifiable in time of war, and doubly so in guerrilla warfare, waged against men who cannot be regarded as lawful belligerents, but only as lawless bands of marauders, who carry on desultory hostilities, combined with train wreckings and other uncivilised practices. Upon such an enemy I maintain our troops are justified in making the severest reprisals, and are entitled to regard them, not as lawful belligerents at all, but as outlaws.’ (page 112).

I submit that evidence exists that corroborates Witton’s claims that the accused were given specific orders not to take prisoners and their culpability should have been judged against such evidence.

The proposition is simple, if such orders did in fact exist, the actions of the accused must be assessed against a number of factors including:

•  Their status as volunteers as opposed to being professionally trained permanent officers of the British Army;
•  The accused, being members of the Bushveldt Carbineers signed ‘attestations’ to, ‘obey the orders of my superior officers and to be loyal to His Majesty, King Edward the VII, his heirs and successors’
•  The accused held a bona fide belief that orders not to take prisoners was not obviously illegal.

Supporters of Morant have also argued that the orders emanated from Lord Kitchener himself in a desperate attempt to cobat the Boers who were inflicting significant losses in a ‘guerrilla’ style campaign against the British.

The issue of military command responsibility and obedience to superior orders has occupied the minds of lawyers and commanders for decades usually following war and its aftermath as occupiers have sought to hold accountable those responsible for excesses against prisoners of war and civilians.

This held true in the Boer War and in the trial of Morant, Handcock and Witton, (the accused) as their defence of superior orders received the attention of the courts martial and Lord Kitchener who had responsibility for approving death sentences.

At the heart of the defences raised by the accused was the proposal that their actions in executing Boer prisoners had been ordered by their superiors.

Ultimately, their plea was rejected and Morant and Handcock were executed for murdering Boers. Witton was also sentenced to death but had his sentence commuted to life imprisonment and was later released from penal servitude following a petition lodged with the Crown.

Superior Orders

At the time of the offences, the law of reliance on superior orders recognised a defence depending on the circumstances. This was balanced against the British military’s authority that all Army personnel regardless of rank, whether personnel were permanent or volunteers drawn from the colonies had to swear allegiance to the King and to obey orders of their superiors.  The Attestation of officers and soldiers of the Bushveldt Carbineers contained declarations that, ‘I hereby promise to obey orders of my superior officers.’

The Law – 1902

The law on the issue of superior orders was uncertain and drew its rationale from the provisions of the Manual of Military Law concerning obedience to lawful commands.   The MML expressed clear direction that all lawful orders had to be complied with to preserve the integrity of Military Command. The serious wilful disobedience offence carried the maximum penalty of death. The second offence of disobedience characterised by hesitation, forgetfulness or misapprehension carried a maximum penalty of imprisonment or dismissal from the Army.

The Law of the Constitution (relevant to 1902) by Dicey stated:

‘When a soldier is put on trial on a charge of a crime, obedience to superior orders is not of itself a defence. A soldier is bound to obey any lawful order which he receives from his military superior. But a soldier cannot any more than a civilian avoid responsibility for breach of the law by pleading that he broke the law in bona fide obedience to the orders (say) of the commander in chief. This of course must be taken with the qualification that if it be such an order as a soldier might reasonably suppose his superior officer to have good grounds for giving, the soldier would not be criminally liable.’[i]

In summary and according to the claims by Witton in his book, Scapegoats of the Empire, the defence case claimed:

• Morant claimed he and Captain Hunt had acted on orders from Pretoria. He, Morant had been reprimanded by Hunt for bringing in 30 prisoners and was told not to do it again;
• Morant decided not to disregard the order from Hunt to shoot prisoners after the circumstances of Hunt’s death by Boers. He carried out orders that he believed were lawful;
  • Under cross examination Morant stated he had orders to clear the Spelonken area of Boers and to take no prisoners. He had never seen written orders. He had not shot prisoners before the Visser incident;
  • Morant told the court that Colonel Hamilton, Chief of Staff was the one who had given Captain Hunt orders that no prisoners were to be taken. Others including Handcock received those orders from Captain Hunt. Morant had only the word of Captain Hunt that Colonel Hamilton had given the order;
  • Morant claimed he and Captain Hunt had acted on orders from Pretoria. He, Morant had been reprimanded by Hunt for bringing in 30 prisoners and was told not to do it again;
  • Morant decided not to disregard the order from Hunt to shoot prisoners after the circumstances of Hunt’s death by Boers. He carried out orders that he believed were lawful;
  • Under cross examination Morant stated he had orders to clear the Spelonken area of Boers and to take no prisoners. He had never seen written orders. He had not shot prisoners before the Visser incident;
  • Lieutenant Picton also stated he had been told by Hunt not to take prisoners and not questioned their validity and had been reprimanded by Captain Hunt for bringing in prisoners. He had obeyed the order to command the firing party that shot Visser;
  •  Sergeant Major Hammett corroborated evidence as to shooting of prisoners;
  • Defence counsel called evidence about orders given and the practices adopted in dealing with Boers;
  • Civil Surgeon Johnston gave evidence that he had heard Morant had been reprimanded by Captain Hunt about bringing in prisoners;
  • Captain Taylor was called to give evidence for the defence, and stated that he remembered one time when Lieutenant Morant brought in prisoners; he was asked by Captain Hunt why he brought them in; Capt. Hunt said they should have been shot. (references from Witton’s book pages  – 83, 115, 137)

The significant point to be made here is that Morant, Handcock and Witton as with many others were colonial volunteers, not full time British soldiers and officers eductated and trained in the finer details of military law and custom.  Colonial volunteers were under significant pressure to obey orders of their superior British officers.

 Lieutenant Colonel Pratt on military law stated:

‘ A soldier is bound to obey the commands of his superior Officer and before a court martial, it would be held that a soldier is bound to obey the command of his superior Officer if the illegality of it was not on the face of it apparent’.

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.’ 

Significance of Attestation Papers

A document signed by Handcock on 28 February 1901 is the same in its content to the documents signed by Morant and Witton and other BVC volunteers and notes that ‘I hereby promise to obey the orders of my Superior Officers and to be loyal to His Majesty King Edward V11 his heirs and successors.’

This attestation highlights the predicament faced by volunteers like Handcock, Morant and Witton.  They were uneducated and inexperienced colonials and unlike their British permanent counterparts, expected to follow the directions of their superiors without question.  In the circumstances, they had every reason to believe that the orders given to them were lawful and designed to defeat a determined enemy who waged a guerrilla / insurgency style of warfare.

 Similar documents were signed by other BVC men who were involved in shooting Boers, including Duckett and Hammett.

The proposition is simple, if such orders did in fact exist, the actions of the accused must be assessed against a number of factors including:

 – Their status as volunteers as opposed to being professionally trained permanent officers of the British Army;

  – The accused, being members of the Bushveldt Carbineers signed ‘attestations’ to, ‘obey the orders of my superior officers and to be loyal to His Majesty, King Edward the V11, his heirs and successors’;[1]

  – The accused held a bona fide belief that orders not to take prisoners was not obviously illegal.

---

[1] Andrew Duckett & Ernest Hammett Attestation papers as  signed by all BVC officers and soldiers

Conclusion

The findings of St Clair, a notable and senior lawyer responsible for reviewing inquiries and proceedings involving breaches of the Army Act was convinced by the evidence he reviewed against the accused, including Captain Taylor.

His findings about Captain Taylor are significant.  He confirmed that Captain Taylor, (the superior officer of BVC officers and men), was responsible for issuing orders not to take prisoners. Indeed, Taylor followed his own orders when he directed the shooting of 6 Boers.

Captain Taylor played a pivotal role as Lord Kitchener’s Intelligence Officer. He took responsibility for directing BVC officers and men in fighting the Boers.  In the assessment of the claims made by Witton in his book, it is clear that he, Morant and Handcock followed the directions given to them by Captain Hunt and Captain Taylor, both permanent British officers.  Taylor and Hunt were superior to Morant and gave directions that they expected to be followed. In the circumstances, it would have been foolhardy for Morant or any other irregular volunteer soldiers or officers to disobey.  Even if one concludes that they should have refused to obey an illegal order, Lord Kitchener was in error in not taking into account the issues raised by the courts in the recommendations for mercy.  If ‘technically’ guilty of murder, it is clear that Morant, Handcock and Witton were under extreme pressure to obey the orders of their British superiors.  The pressure was recognised in the recommendations for mercy, but not given sufficient weight by Lord Kitchener and his legal advisers.

It is also clear from St Clair’s findings that it was Captain Taylor who took the initiative to issue orders not to take prisoners.  It was not at the instigation of Morant, who had been reprimanded by Captain Hunt for refusing to obey the order. He eventually followed the order once Captain Hunt had been killed, (Morant having an honest belief that Hunt had been tortured and killed by Boers).  This is an important point since critics of Morant have argued that he alone had embarked on a ‘killing spree’.  There is no evidence to substantiate the allegation.  This is reflected in the finding of the Courts martial, convictions of three counts of murder involving 12 Boers and recommendations for mercy that recognised Morant’s loyal service to the Crown, his belief in following orders, his ignorance of military law and custom and his reaction to extreme provocation at the death of Captain Hunt.

This is not a case of pathological killing of innocent civilians, but inexperienced colonial volunteers following orders with a sense of loyalty in serving the Crown.  Morant, Handcock and Witton were singled out for particular attention for a flawed strategy of fighting an enemy that used devious insurgency tactics to inflict great losses on the British military.  The accused followed orders in belief that not taking prisoners was ordained at the highest level of command.  Despite the findings of St Clair with respect to Captain Taylor, ultimately, those held responsible were not British superior officers but colonial volunteers of lower ranks.

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LEGAL REVIEW – NOT REWRITING HISTORY!

Natural justice and trial by due process, independent of Parliament and Government is an essential aspect of a democratic society. This was the case in 1902 as it is in 2010.

My legal work and the petition lodged with the British Crown is not about altering historical facts. However, it is about due process, legal review and the investigation of claims that Morant, Handcock and Witton were not investigated, tried and sentenced according to the law of 1902.

The facts of this case, including their admission to shooting Boers  are that the accused’s actions must be judged against the following:

•  They were volunteers, recruited by and served under British military command.  The war against the Boers was ruthless and had to adapt to tactics of an enemy which did not respect conventional military tactics, not a signatory to any protocols of war and the treatment of prisoners of war, including the Hague Convention. Customary law of the time recognised retaliation as a means of fighting a ruthless enemy that used guerrilla tactics.
• The accused believed they and other units fighting under British military command were given instructions to “give no quarter” and to shoot prisoners caught wearing British uniforms or who fought while displaying the ‘white’ flag of surrender.
• The accused were aware of reprisals by other British units, particularly irregular units and acted according to the orders that they believed in good faith they had been given and were under an obligation to obey.
• The accused were aware of atrocities by the enemy against British soldiers.
• Given no caution by military command of harsh actions taken and reported (condonation – excusing the offence should have been applied at their trials).
• Operated under a chain of command that gave contradictory instructions on fighting Boers.
• Morant given a dangerous mission to perform after being suspected of a serious offence, again condonation should have been applied).
• The accused, once arrested were kept in solitary confinement for three months, denied contact with each other, and denied visits from other personnel, including the military chaplain.
• Denied details of the investigation conducted at times in the absence of the accused.
• The accused given no opportunity to seek legal advice and be represented, to conduct their own inquiries and arrange defence witnesses, or to cross examine those who gave evidence.
• The accused given no time to consult legal counsel and prepare a defence from the time of their arrest in October 1901.
• Not permitted to contact their relatives and / or representatives of the Australian Government who might seek clemency on their behalf.
• Denied access to a key witness to condonation (excusing the offence) in Col. Hall, their superior officer.
• Not pardoned for condonation by Major Lenehan and Colonel Hall.
• Placed on duty under arms twice during the trial, but not pardoned for condonation (performing a duty of honour while facing a serious charge)
• Not provided with a trial member drawn from the accused’s unit or another auxiliary unit.
• Denied a proper direction of the court by the judge advocate on issues including obedience to superior orders, evidence of provocation, evidence of the accused’s limited military service, their status as volunteers, their ignorance of military law, sentencing principles, admissibility and relevance of evidence of reprisals by other soldiers and the law of reprisal / retribution as a defence, the significance of a recommendation for mercy, mitigating circumstances and character evidence, and issues including sufficient time and resources to prepare a defence.
• Restricted in their rights to a fair trial according to Military law and trial procedures of 1902.
• Only one penalty should have been applied to multiple charges of murder, thereby creating a prejudice against a fair trial.
• Not advised that they, the accused could be tried separately if so wished.
• Denied the provision of a complete and detailed record of the trial proceedings to the Secretary for State for review by the Judge Advocate General.
• Denied mitigation of their sentences in accordance with the pleas for mercy made by the courts martial.
• Not informed of the verdicts and sentences within a reasonable time so they could seek legal advice about an appeal for clemency to the King.
• The accused and their counsel, Major Thomas denied access to Lord Kitchener to seek a ‘stay’ in carrying out the sentences so they could construct appeal against the convictions and sentences.
• Denied the opportunity to exhaust all lawful avenues of appeal for mercy, including seeking the assistance of the Australian Government and their relatives to petition the King for clemency.
• The apparent bias of Lord Kitchener in alleging that Morant and Handcock has been involved in the killing of more than 20 Boers.  This allegation was false and reflected Kitchener’s partiality in favour of confirming death sentences while not giving sufficient weight to the courts recommendations for mercy

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Comments invited

Jim Unkles

Copyright © James Unkles 2010

The ‘wash up’ of the 60 mins program aired on 5 July 2010 confirmed the poll results as announced on the program 12 July 2010:

The questions asked, Do you Support Pardons for Morant, Handcock and Witton?

Yes – 75%

No – 25%

The programs telephone poll provided an even higher result:

82% in favour of pardons!

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The on line petition as at 27 October 2010 has recorded  364 signatures in favour of pardons.  Both the on line poll and petition are still open for voting and signature.

These results are consistent with all the other polls that have been conducted since I petitioned the British Crown, the public has spoken, justice must be delivered in favour of pardons!!

Comments invited.

Jim Unkles

Copyright © James Unkles 2010