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heimwehr danzig
01-16-2011, 08:45 AM
Hey everyone,
Time to take off the coal scuttle helmet and put on a slouch hat for this one.

In 1902, Lt Harry 'Breaker' Morant and Lt Peter Handcock of the mainly Australian Bush-Veldt Carbineers were executed in South Aftica by the British - their crime, shooting Boer p.o.w.'s and a German Missionary. A third officer had his death sentence commuted.

Their defence was that the men were shot in reprisal for the killing and mutilation of a fellow officer, and furthermore that they were ordered not to take prisoners because they would be a liability.

The verdict was the cause of considerable controversy, particularly in Australia. The surviving officer Lt Witton published a book entitled 'Scapegoats of the Empire' in which he suggested the men were shot to avoid German entry into the war and bring the Boers to the negotiating table.

In 2010, a petition for a pardon was submitted to the Queen, however despite what was described as a "strong and compelling case" the appeal was rejected in November of that year.

The interesting thing is that there appears to be little dispute that prisoners were indeed shot, however the case still elicits strong feelings. I wondered what other posters thought. Should they be pardonned or not; or indeed, should they not have been shot in the first place.

If you would like to know more, the following link is a good starting point:
http://en.wikipedia.org/wiki/Breaker_Morant

Kind regards,

skorzeny57
01-16-2011, 09:22 AM
Hi heimwehr danzig,
thank for sharing this informations and for the link you posted. It sounds like an interesting story, that took place in an area and in a period of history almost unknown to me. Good opportunity to learn something...
Best regards

Rising Sun*
01-16-2011, 09:41 AM
I wouldn't pardon them.

Leaving aside popular myths created by various writers and cinema, the only realistic case for pardon is based upon, quite clear, inadequacies in the conduct of their trials.
http://www.smh.com.au/world/breaker-morant-legend-poised-for-a-rewrite-20101111-17o42.html

However, Morant and Co were irregulars who murdered Boers and who deserved the death penalty then imposed upon murderers. http://adbonline.anu.edu.au/biogs/A100564b.htm

heimwehr danzig
01-16-2011, 10:11 AM
Hi Skorzeny, I guess that in Italy the Boer war is relativly unknown, even in the UK it is something of a forgotten war. I guess it's a bit like the Italian colonial campaigns in that respect.

Interesting to get a response from an Aussie, Rising Sun*!
May I ask, although you agree with the sentence per se, do you feel that they were singled out because they were Australian (even though Morant was english by birth)? How about the fact that the well connected English officer Cpt Taylor was not executed, but went on to a promising career? I take it you reject the conspiracy theories surrounding this case?

Rising Sun*
01-16-2011, 10:38 AM
Interesting to get a response from an Aussie, Rising Sun*!
May I ask, although you agree with the sentence per se, do you feel that they were singled out because they were Australian

No, they were dealt with because they murdered people.


(even though Morant was english by birth)?

Most Australians will concede that being English by birth should be a criminal offence down here, although generally not a capital offence. ;) :D


How about the fact that the well connected English officer Cpt Taylor was not executed, but went on to a promising career?

Taylor's subsequent career has no bearing on the guilt of Morant & Co.

Rising Sun*
01-16-2011, 10:41 AM
This is a somewhat biased article, but it is probably nearer the truth than the cinematic and popular myths surrounding Morant & Co. http://www.theage.com.au/opinion/society-and-culture/the-trial-of-breaker-morant-was-no-injustice--he-was-guilty-20091019-h4wo.html

heimwehr danzig
01-16-2011, 11:44 AM
Hi Rising Sun*,
Thanks for the article; interesting yes, biased certainly!
It intrigues me because having watched the excellent movie with Edward Woodward as the Breaker, I was pretty sympathetic and I was under the impression that Down Under Morant is seen as a folk hero and victim of British injustice.
I was amused by the comment under the article you attached where somebody had said all the good bits make him an Aussie, all the bad bits make him a Pom!

skorzeny57
01-16-2011, 12:40 PM
Hi Skorzeny, I guess that in Italy the Boer war is relativly unknown, even in the UK it is something of a forgotten war. I guess it's a bit like the Italian colonial campaigns in that respect.

Hi heimwehr danzig,
i can't say anything about my compatriots, but the Boer wars are quite unknown to me... It's just a fault on my part. I promise i'll put this defect right... Talking about the Italian colonial wars, here's another dark page of our history... It just was a tragicomic attempt to emulate the ancient glories and the splendours of the European Colonial Powers...
Best regards.

Iron Yeoman
01-16-2011, 04:58 PM
Hi heimwehr danzig,
i can't say anything about my compatriots, but the Boer wars are quite unknown to me... It's just a fault on my part. I promise i'll put this defect right... Talking about the Italian colonial wars, here's another dark page of our history... It just was a tragicomic attempt to emulate the ancient glories and the splendours of the European Colonial Powers...
Best regards.

The Boer Wars are actually very interesting, it's where the term 'commando' came into widespread use. It was the last time a British unit carried colours in battle - the battle of Laing's Nek 1898. And as a direct consequence of the Boer War the territorial force was created.

heimwehr danzig
01-16-2011, 05:03 PM
I realise I'm going off my own topic, but why did the Boer wars bring the T.A. into existance?
Also, since I'm already off topic, in Thomas Packenham's Boer War book her relates a joke told by a veteran regarding the Boer commander Christian De Wet
Q. Why do Boojers go to bed with their boots on?
A. To keep De Wet from defeat
Even after 100+ years, that is still really funny!

Iron Yeoman
01-16-2011, 05:25 PM
http://en.wikipedia.org/wiki/Territorial_and_Reserve_Forces_Act_1907

heimwehr danzig
01-16-2011, 06:02 PM
Very interesting, Thanks

Rising Sun*
01-17-2011, 06:51 AM
It intrigues me because having watched the excellent movie with Edward Woodward as the Breaker, I was pretty sympathetic and I was under the impression that Down Under Morant is seen as a folk hero and victim of British injustice.

That's the popular view, largely informed by the film and some books in similar vein.

It's similar to Ned Kelly being a folk hero in the popular mind rather than a robber who murdered three policemen.

It depends upon whether one wants to look at the myth or the reality.

james unkles
01-17-2011, 08:18 AM
I was most interested in this forum regarding Morant. I have spent 2 years researching the case and last year petitioned the British Crown to pardon Morant, Handcock and Witton. In October, the government refused the petition I lodged. My case for pardons has involved detailed analysis of the case, the arrest, trial and sentencing of these men. This is not the forum in which to detail the defects in the manner in which these men were tried, except to state that the grounds are compelling and were stated as such by the Australian Parliament's Petitions committee at a public hearing in March 2010. Without detailed analysis, most writers on this subject draw assumptions and 'dress' them up as historical fact, often relying on issues that were portrayed in the film made in 1980.

My web site, breakermorant.com contains extensive material about the case for pardons, including evidence that I uncovered in 2010 proving that orders to shoot prisoners were issued by two named British officers who were not held accountable for these orders. Detractors have always said that such orders did not exist, I have proven otherwise and the evidence corroborates what these men and their defence counsel said.

The shame and illegality of such orders fell onto Morant, Handcock and Witton who had sworn to obey all orders. I had hoped for a fair and transparent process of review of the case for pardons, instead I was confronted with much of what happened in 1902, a secret process removed from public scrutiny. I am pleased to say that the case is now being prepared for judicial appeal, something that was denied to these men in 1902, their right to appeal to the King denied by Lord Kitchener, as was their attempt to contact their relatives and the Australian government for assistance. If guilty of anything, (and I don't concede they were), death sentences were not justified. This case will continue to attract controversy until the all the evidence (for and against conviction) is tested before a court, divorced from the bias of government and political agendas that are as strong today as they were in 1902 when Kitchener was trying to appease the German government over the death of Reverend Heese. This case always demanded review by a process divorced from government. At long last this will occur whether the outcome will overturn the convictions and sentences will have to be seen. What this will achieve is accountability and admission (that the British government fears) that such orders did exist, were illegal and attributed to Morant, Handcock and Witton instead of the real culprits, British officers who drew their direction in fighting the Boer from Lord Kitchener. History is littered with injustices and perseverance is the key to achieving justice. This is one of those cases of injustice.

I look forward to your views

Iron Yeoman
01-17-2011, 08:38 AM
Out of interest, had they been guilty, hypothetically, and bearing in mind the laws of the time would you object to their execution? Naturally in our more 'enlightened' times few of us approve of the death penalty. I'm just interested if your opinion would differ if you were a disinsterested party. I just want to re-affirm that I am in no way apportioning blame or innocence.

james unkles
01-17-2011, 10:12 AM
I suggest in order to consider your question, one needs to remember that the courts martial that convicted these men also made very compelling recommendations for mercy noting the accused's good service records, their ignorance of military law, customs, their obedience to orders and in Morant's case, the extreme provocation at the torture and death of Captain Hunt (his superior and friend) at the hands of Boers. The recommendation for Morant reflected the court's belief on the evidence that Hunt had been tortured and killed by Boers. They classified this act as extreme provocation

Curious that Kitchener only spared Witton and confirmed the sentences of death of Morant and Handcock. Kitchener then had Morant and Handcock shot with a few hours of being sentenced thus denying the accused their right to appeal to the King.

My opinion matters little, what matters is were they tried and sentenced in accordance with the laws of 1902? I say no, they were not. This case is about accountability of the British officers who gave orders to shoot prisoners and a trial according to due process, a trait of civilised countries of the time (1902).

Regards

Rising Sun*
01-17-2011, 10:21 AM
I was most interested in this forum regarding Morant. I have spent 2 years researching the case and last year petitioned the British Crown to pardon Morant, Handcock and Witton. In October, the government refused the petition I lodged. My case for pardons has involved detailed analysis of the case, the arrest, trial and sentencing of these men. This is not the forum in which to detail the defects in the manner in which these men were tried, except to state that the grounds are compelling and were stated as such by the Australian Parliament's Petitions committee at a public hearing in March 2010. Without detailed analysis, most writers on this subject draw assumptions and 'dress' them up as historical fact, often relying on issues that were portrayed in the film made in 1980.

My view is expressed in my earlier post at #3: "the only realistic case for pardon is based upon, quite clear, inadequacies in the conduct of their trials". As a solicitor in continuous general practice since 1978, and from my recollection of the inadequacies in the trial and the defendants' representation*, I agree that it's perfectly legitimate to pursue a pardon on that basis. However, achieving a pardon on the basis of deficiencies in their trials is a very different thing to exculpating Morant and Co of the crimes of which they were accused from a historical, as distinct from legal, perspective. And which criminal acts, in general, they admitted.

*The deficiencies in the defendant’s representation do not reflect adversely upon the professional skills of their counsel, who as a rural conveyancer could hardly be expected to have the skills to run and appear in a capital trial.

I’m rusty on this, but I think that there was no necessity for a defendant at the time (or during WWI some years later) to be represented by anyone with legal qualifications in a British court-martial, but merely by an officer who appeared as the ‘prisoner’s friend’.

The nature and purpose of courts-martial at the time should also be noted as being rather different to modern courts-martial. They were often in the nature of ‘drumhead courts-martial’ convened in the field to dispense summary military justice (which is to justice as martial music is to music) for the expedient purpose of maintaining military discipline, free of many of the concepts and procedures applicable to civilian criminal trials which aspire to higher standards of proof and process. Morant & Co’s trial fits into that category of a drumhead court-martial where military management overrode personal justice and justice was seen to be done, but not done. As my father used to say of CO’s hearings he conducted: “March the guilty bastard in, sergeant, and we’ll give him a fair hearing before imposing the sentence.”


My web site, breakermorant.com contains extensive material about the case for pardons, including evidence that I uncovered in 2010 proving that orders to shoot prisoners were issued by two named British officers who were not held accountable for these orders. Detractors have always said that such orders did not exist, I have proven otherwise and the evidence corroborates what these men and their defence counsel said.

If such orders existed, don’t we still have to grapple with the Nuremberg defence at a moral and, quite separately, legal level?

In doing so, don’t we also have to put the 1945 Nuremberg defence into the context of social, political and military standards applying at the time of Morant and Co’s actions, when the concept of a British soldier disobeying a superior’s order because the subordinate considered it illegal wasn’t exactly entrenched in contemporary military, social or legal thinking? And, despite modern instruction to Australian troops, still doesn’t sit too well with the obedience to orders mentality which is the whole purpose of military training from the day you march in to basic training.

Another view of Morant & Co and their actions, which seems rather objective, is here: http://www.awm.gov.au/journal/j34/boer.asp

Rising Sun*
01-17-2011, 10:59 AM
Two views.

http://www.watoday.com.au/opinion/politics/uk-right-to-reject-breaker-morant-review-20101214-18we0.html

http://www.nationaltimes.com.au/opinion/politics/justice-has-been-denied-the-breaker-for-too-long-20101217-1902t.html

The latter link contains this statement by James Unkles "In 1901-02, the arrest, investigation, trial and sentencing of Morant, Handcock and Witton was conducted by the British in secrecy without any notice to the Australian government or their relatives."

This illustrates to me the confusion which some Australians ignore about Morant & Co. They may have been Australians, although Morant wasn't, but they were serving with British irregular forces, being the Bushveldt Carbineers, under British military authority.

Why should Britain consult Australia about dealing with its own troops, any more than America should consult Australia about an Australian born person serving in its military, or Australia should consult Britain about dealing with a British born soldier in the Australian military?

james unkles
01-17-2011, 11:46 AM
Thanks for the response. The case for pardons is based on a number of factors. The Nuremberg and indeed principles of war as per UN conventions were not applicable in 1902. Although modern day international law (post Nuremberg) provide clear direction to military commander about military members following illegal orders, the same could not be said of the state of military law that existed in 1901. The Hague Convention of 1899, that contained provisions about the treatment of prisoners did not apply to the Boer War. At the time of the shootings by Morant, Handcock and Witton, the Boer republics were not signatories to the Hague convention.

In an authoritative study of crimes committed by the British Army during the Boer war, Miller, an associate professor of history stated:

‘[I]Britain altered its notions of acceptable conduct in war by joining the Geneva Convention in 1865 and submitting to further changes in international law agreed to at Brussels in 1874 and the Hague in 1899. (Stephen M. Miller, Duty or Crime? Defining Acceptable Behaviour in the British Army in South Africa, 1899–1902, Journal of British Studies 49 (April 2010): 314 - 315)

[I]The Hague Convention, which Britain signed just two months before the outbreak of hostilities with the Transvaal and the Orange Free State, is particularly relevant to evaluating British conduct in the South African War, even though the South African republics were not participants. The invitation list put together by the Great Powers at Russia’s prompting omitted their inclusion over fear of British objections. Since the laws that emerged from the Hague talks were only binding between signatories of the convention, Britain did not legally have to abide by them in the war'.[

The situation was complicated by the employment of paid volunteers (like Morant et al) who were not skilled in military tactics, rules and customs of war, the legality and jthe jurisdiction of the Hague convention. Colonial officers, including the accused signed attestation documents pledging loyal service to the King and obedience to their superiors. The existence of attestation documents is another piece of new primary evidence not previously considered. The lack of understanding of military law and customs that existed in 1901 by Morant, Handcock and Witton is aptly summarised by the officers who sat in judgment.

The trial officers were present during all the proceedings and were best equipped to judge the evidence before them. The recommendations for mercy included the following reference to Morant:

‘The difficult position in which he was suddenly placed, with no previous military experience and no one of experience to consult, and

Want of previous military experience and complete ignorance of military law and military procedure

Similar recommendations were made for Witton and Handcock. These findings are significant and call into question opinions that illegal orders should have been disobeyed by the accused and whether they held a bona fide belief that the orders issued were in fact legal. Military law at the time was particularly harsh of professional soldiers and colonial volunteers) who disobeyed orders of their superior officer, maximum penalty death.

Other points, Morant was an Australian, an immigrant from England. In 1901, Australian colonies/States were open to anyone, particularly from the mother country. Remember Australia did not have sophisicated residency / immigration laws and procedures of the modern day. Morant had been working in Australia since the early 1860s.

The secrecy of the trials ect was an attempt to exclude Australian interference and contradicted an earlier assurance given by Kitchener to the Aust PM that the arrest and trial of Australians would be notified. The denial of the accused's appeal rights as per the military and common law of 1902 was disgraceful and the executions carried out to prevent appeal to the Crown. George Witton refers to this in his book and counsel, Major Thomas protested the treatment of his clients in his writings between 1902 and as late as 1930.

The Manual of Military Law 1898 contained various provisions about the rights of an accused. Frankly, even by the standards of 1902, one's day's notice of trial and to consult Major Thoams (who represented 6 accused) was a disgrace and caused the accused to suffer a significant injustice, particularly as Thomas was not an experienced trial advocate (military or civilian) and the prosecution had almost three months to prepare its case.

I could continue but will comment on the reference to the Aust war memorial entries about the accused. The AWM does not support a call for an open and independent judicial inquiry. Its position is final and it relies on the writings of a few historians who have claimed 'ownership' of what they say is the 'truth' of the Boer war and the actions of troops like Morant. Organisations like the AWM attempt to hold the high ground and resent any attempt to challenge their version of their research. I say this, the Morant case will continue to attract challenges to those who claim the British got it right and justice was served. The supporters of the British case said evidence to shoot prisoners did not exist. In 2010, I produced such evidence and yet the British government refuses to convene an inquiry to consider all evidence about the case, for and against pardons and the quashing of the convictions. Perhaps it fears public exposure and independent review by someone not of government agends or bias. This case will not be settled until such an inquiry is convened, a request that Major Thomas asked for immediately following the executions.

skorzeny57
01-17-2011, 12:30 PM
Hi Iron Yeoman,
thank for the information and for the link you posted. Like i wrote before, i know almost nothing about that history period, in that part of the world... I'll get myself some books about the topic. For example, i didn't know where and when the term "commando" came into use... :confused:
Kind regards to all of you.

heimwehr danzig
01-17-2011, 03:47 PM
Hello Mr Unkles,
I can't believe that you of all people have replied to my thread!:D It was reading about the refusal of your pardon request that made me start the thread. Then on your website I saw that their trial began on 16th January, the same day as I posted the above question...small world!
I wondered about your opinion on the killing of Rev Hesse; I have heard that Morant, Handcock & Witton were sacrificed to prevent German intervention, even though they were acquitted of his murder. The argument being, I suppose, that the British could not admit to their troops killing a German citizen, but they would be executed for another crime anyway, so the Germans need not become involved.
Alternatively I have also heard that the Reverend may have been killed by the Boers because they were suspicious of a man who could cross the lines with impunity.
Do you have a view on who killed him?
Kind regards,

james unkles
01-17-2011, 05:32 PM
Hello and thnaks for your contribution. Theories abound about British motives to execute these men and keep the trials from the Australian government. Many writers assert that when found not guilty of killing Heese, their fate was sealed because Kitchener did not worry about Boers, his concern was about the missionary of German descent. As as I am concerned they were acquitted, were not treated in accordance with military law of 1902 and denied appeal rights.

There is not of reading out there about the Boer war, this one is excellent, William Woolmore The Bushveldt Carbineers and the Pietersburgh Light Horse

Woolmore, an authority of the Boer war and the Bushveldt Carbineers reviewed much of the evidence and concluded that the identity of the person/s responsible for the shooting could not be conclusively proved. In his analysis, Woolmore quoted from an eye witness account given by a native called Silas who claimed to have seen the man who shot Heese. His testimony was recorded in writing. His description of the culprit did not fit the build and rank of Handcock and therefore called into doubt the prosecution case. Woolmore also quoted from a written comment made by the Military chaplain, Reverend Joshua Brough who attended the courts martial. Brough stated, ‘In the matter of the shooting of the missionary, the court without hesitation found him (Handcock) not guilty and never, I should think, has a feebler charge been brought before a court'. There are theories that Heese was shot by Boers, we don't know for suer, what we do know is that these men were acquitted.

Enjoy your reading

Rising Sun*
01-18-2011, 08:54 AM
james unkles

Thanks for your detailed reply.

You’ve studied this in much more and much better detail than was available to me when I looked into it in an ancient period when one had to go a place unknown to most of the modern generation, which was called a library, and pursue footnotes by looking at typed cards and so on to find referenced books, so I’ll defer to you on matters on which I have no knowledge. Plus my memory on detail is pretty much non-existent at this distant remove.


The secrecy of the trials ect was an attempt to exclude Australian interference and contradicted an earlier assurance given by Kitchener to the Aust PM that the arrest and trial of Australians would be notified.

How was this assurance given?

Its seems to be of little standing by a British military commander in the field to the first Australian PM

To be binding in any sense, it should have been at a government to government level. Even then, as Churchill showed much later in WWII with his attempted diversion to Burma of the elements of the 2nd AIF returning to Australia, the British government tended to see Australia as a dominion which should dance to Britain’s tune. The British attitude in the first year after Australian Federation, when Morant was tried, was likely to be even less concerned with Australia’s views. A question which arises is whether Australia’s government was deficient in not establishing the terms of service of Australian nationals in the Boer War.

How was the legal situation affected by Australia’s Federation on 1 January 1901, so that troops like Morant who had embarked as members of regiments raised by Australian colonies became, nominally, members of a national dominion force?

Should that have affected his status in the British irregular force of the Bushveldt Carbineers, or did it render him (especially as he was British born and Australian citizenship did not emerge until about 1948) fully subject to the British military legal system?

If he was subject to the British military legal system, what difference would it have made if Kitchener had informed the Australian PM or government of the arrest and trial of Morant and Co, given that Australia had no standing in that military legal system? Obviously there was potential for submissions at inter-government levels, but how would that have overridden the jurisdiction and process of the British court-martial which, if it operated as a proper legal system under the separation of powers doctrine, was not subject to political control?


The trial officers were present during all the proceedings and were best equipped to judge the evidence before them. The recommendations for mercy included the following reference to Morant:

‘The difficult position in which he was suddenly placed, with no previous military experience and no one of experience to consult, and

Want of previous military experience and complete ignorance of military law and military procedure

Hadn't Morant served as an NCO in a South Australian unit in the Boer War before joining the Carbineers? I can't recall whether he was a corporal or sergeant, but he wouldn't get to either rank "with no previous military experience".


The denial of the accused's appeal rights as per the military and common law of 1902 was disgraceful and the executions carried out to prevent appeal to the Crown.

Could you expand on this?

Morant and Co don’t seem to have been dealt with any worse than a lot of British troops who were executed in WWI, and for lesser offences, in the sense of deserters etc not having murdered anyone as Morant and Co did.


The Manual of Military Law 1898 contained various provisions about the rights of an accused.

I, or at least Google, didn’t have any success finding a copy online. Could you post the relevant provisions?


Frankly, even by the standards of 1902, one's day's notice of trial and to consult Major Thoams (who represented 6 accused) was a disgrace and caused the accused to suffer a significant injustice, particularly as Thomas was not an experienced trial advocate (military or civilian) and the prosecution had almost three months to prepare its case.

I agree that there was probably a conflict of interest in representing all six defendants, unless they were united in their instructions and none of them would be better off pursuing their own defence separately. Then again, the conflict of interest rules were vastly more liberal, particularly for a country conveyancer who could then (and I think may still be able to – I can’t be bothered checking the current professional conduct rules) happily act for vendor and purchaser and do other things which would have a modern ethics committee, not to mention the Family Court, doing cartwheels on a conflict of interest question.

I mentioned in my last post that my recollection is that there was no entitlement to representation by a lawyer, but only by a prisoner’s friend who did not need to be legally qualified. Do you know of anything in the British military regulations at the time which entitled the defendants to more than they got in the way of representation and notice?


The supporters of the British case said evidence to shoot prisoners did not exist. In 2010, I produced such evidence and yet the British government refuses to convene an inquiry to consider all evidence about the case, for and against pardons and the quashing of the convictions. Perhaps it fears public exposure and independent review by someone not of government agends or bias. This case will not be settled until such an inquiry is convened, a request that Major Thomas asked for immediately following the executions.

But even if there is overwhelming evidence that orders to shoot prisoners existed, where does that leave Morant and Co?

We come back to the Nuremberg defence, which I raised in the sense of “we were only following orders”. If Kitchener and anyone else is to be condemned for issuing such orders, doesn’t it follow that Morant and Co should be condemned for following them?

If nobody is to be condemned for issuing or following such orders, is that morally acceptable by the standards of the time?

If so, why should anyone be upset about Morant and Co being executed after a rather better trial process than they gave to the people they summarily murdered?

If not morally acceptable, then why pardon them?

james unkles
01-18-2011, 04:43 PM
Wow, lots of interesting questions, thanks
1.Colonial troops. Morant did serve as an NCO before the BVC. Remember, colonial troops had some limited experience in State militia. Woolmore's book gives detail. It is a big call to compare militia to professional troops / officers trained at Sandhurst with military experience in Europe. Remember, Britohs troops had a history of conflict with France et al going back centuries. Aussie colonial troops had never been outside of their country let alone engaged in armed conflict. I doubt they were learned in the customs of war. Aussies were recruited for one reason, because most could live off the land, ride and shoot and beat the the Boers at their own game - guerilla war. It is tempting to judge troops like Morant against the sort of training in armed conflict and rules of engagement againsty standards of WW1 and 2 and even today. Conclusion, we are stuck with the assessment made by the courts martial in the recoomendations for mercy. The courts memebrs heard all the evidence, we weren't there, the officers assessed that Morant et al were not professionals and had limited experience and no understanding of mil law and customs. I trust their assessment rather than those made by commentators in 2011 (including myself).

To illustrate the feelings of the time and the gerat 'adventure' that most colonials thought about supporting the mother country, the contracts (attestation documents) that men like Morant and Handcock signed stated: (from Handcock's contract):

' I agree to serve in the































Manual of Military Law

james unkles
01-18-2011, 06:06 PM
Wow, lots of interesting questions, thanks

1.Colonial troops. Morant did serve as an NCO before the BVC. Remember, colonial troops had some limited experience in State militia. Woolmore's book gives detail. It is a big call to compare militia to professional troops / officers trained at Sandhurst with military experience in Europe. Remember, British troops had a history of conflict with France et al going back centuries. Aussie colonial troops had never been outside of their country let alone engaged in armed conflict. I doubt they were learned in the customs of war. Aussies were recruited for one reason, because most could live off the land, ride and shoot and beat the the Boers at their own game - guerilla war. It is tempting to judge troops like Morant against the sort of training in armed conflict and rules of engagement against standards of WW1 and 2 and even today. Conclusion, we are stuck with the assessment made by the courts martial in the recoomendations for mercy. The courts members heard all the evidence, we weren't there, the officers assessed that Morant et al were not professionals and had limited experience and no understanding of mil law and customs. I trust their assessment rather than those made by commentators in 2011 (including myself).

To illustrate the feelings of the time and the great 'adventure' that most colonials thought about supporting the mother country, the contracts (attestation documents) that men like Morant and Handcock signed stated: (from Handcock's contract):

' I agree to serve in the Bushveldt Mounted Rifles for a period of 6 months, or until the cassation of histilities, and I hereby promise to obey the orders of my superior offiicers and be loyal to His Majesty King Edward V11, his heirs and successors and I decalre that I can both ride and shoot dated 28 Feb 1901.'

These men weren't viewed in the same tradition of English regulars, particularly officers. Colonial, including those from NZ, Canada and even volunteers from America were recruited to supplement English troops who were confronted with a war that was very different to fiughting war in contintental Europe.

Manual Of Mil Law 1898 You won't find this book on line, you might be lucky on ebay but it is an edition difficult to locate. The copy I have is in pristine condition and for its time it reflected Britain's commitment to militay law and customs. For the time, Britain had a proud commitment to mil law and procedures. The MNL has over 800 pages and the provisions and procedures on arrest, trial and sentencing are exacting with the force of legislation.

Legal Representation

A few provisions - Court of Inquiry:

• ‘every person subject to military law when so charged may be taken into custody’;
• Military custody means , putting the offender under arrest or putting him in confinement’;
• The charge made against every person taken into military custody shall without unnecessary delay be investigated by the proper military authority and as soon as may be, either proceedings shall be taken for punishing the offence or such person shall be discharged from custody (section 45
Army Act 1979

Right of accused. ‘Whenever any inquiry affects the character of an officer or soldier, full opportunity must be afforded to the officer or soldier of being present throughout the inquiry and of making any statement he may wish to make and of cross examining any witness whose evidence in his opinion affects his character and producing any witness in his defence of his character Rules of Procedure 1899, Part 11, Para 125 (D)

Superior Orders

The Nuremberg prinicples did not apply in 1901. Some provisions existed in the MML on treatement of prisoners. I assert the Hague Convention did not apply, Boer republics were not signatories. I assert these men were like many other volunteers, sworn to obey orders, believed the orders given were legal and issued by British officers, their understanding of mil law and customs was minimal, (as asserted by the recommendations for mercy),. The most glaring aspect of this case was if the orders of Captains Taylor and Hunt were illegal, why were theese men held accountable while Taylor was allowed to resign his commission and was not prosecuted for several murders as recommended by the JAG? Witton's sentence of death was commuted for a number of reason, including that he was follwoing the orders of Morant and was under his influence to obey. In my analysis, the same could be said of Morant who had at one point reprimanded by Capt Hunt, (his friend and superior) for bringing in prisoners. When Hunt is killed by Boers, Morant swears revenge and obedience to orders of his superiors. Why shouln't Morant receive the same mercy as that shown to Witton?

Morant gave evidence about his belief that he and his subordinates were following orders issued to the BVC by Lord Kitchener:

‘I alone was responsible. You can’t blame the young un’s, they did as I told them. They just carried out orders and that they had to do. They obeyed orders and thought they were obeying Lord Kitchener’s

Witton also gave evidence at the trials and claimed that he and Lieutenant Picton had initially refused to obey Morant’s order to execute the prisoner Visser. In response to the charge of murdering eight Boer prisoners, Witton again stated that he had refused to follow Morant’s order to execute the prisoners even though Morant had stated he was justified in following superior orders that had been conveyed to him.

Assertions of Lieutenant Witton

Witton’s book provides valuable material that suggests the accused in good faith in following what they believed were lawful orders to take no prisoners.

Witton’s assertions are critical in determining whether Morant, Handcock and Witton acted in a manner that respected the orders that they believed had been given and were not seasoned and experienced career soldiers educated in the details of military tactics and laws of war. They were volunteers from the colonies of Australia without the experience of European wars. Accordingly, their culpability should have been considered in light of their service under the command of experienced English regular soldiers including Major Lenehan, Captain Hunt, Colonel Hall and Lord Kitchener.

Morant also claimed provocation for his action against Visser and his resolve to follow the order that he and others had received. In part he stated,

‘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 guerrilla warfare’. I was Senior Officer of the B.V.C. in the Spelonken, and for the ordering of the shooting of these Boers I take full and entire responsibility 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 is very probative of his state of mind (page 107)of Witton's book;

Witton’s statement also provides insight into the motives of the accused. He stated. ‘I was told what the orders about Boers were as received from Captain Hunt, and I took it they were correct; I did whatever I was told, and raised no question one way or the other, as it is customary to obey orders. Capt. Hunt and Lieut. Morant were great friends and I supposed that all orders were correct that Capt. Hunt gave. He was greatly relied upon by all when he came to reform matters at Spelonken, after Captain Robinson left.’ (page 108);

Witton also claimed in his statement that Morant and Lieutenant Picton had been reprimanded by Hunt in bringing in prisoners. Witton also quoted another witness about Hunt’s words to Morant, "What the hell do you mean by bringing these men in? We have neither room nor rations for them here. (page 108);

Witton quoted evidence of Major Lenehan. ‘Mr Handcock had a very strong sense of duty, and anything he was ordered to do he would do without the slightest question, no matter what it might be.’ (page 111);

Superior Orders – Justification for murder?

The MML (1899) stated:

‘If the command were obviously illegal, the inferior would be justified in questioning, or even in refusing to execute it, as for instance if he were ordered to fire on a peaceable and unoffending bystander

The Law – 1902
The law on the issue of superior orders was uncertain and drew its rationale from the provisions of the MML concerning obedience to lawful commands.

Chapter 3 of the MML stated the law concerning section 9 of the Army Act concerning wilful disobedience. The Section differentiated between two offences, one serious and the other of less consequence. The essential ingredients of the serious offence was, ‘the disobedience show a wilful defiance of authority and should be disobedience of a lawful command given personally and given in the execution of his office by a superior officer’.

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.

james unkles
01-18-2011, 06:09 PM
Prisoners Rights in preparation of defence
In addition to the rules of procedure that applied to the rights of an accused before an Inquiry, further rules of procedure provided for the rights of an accused to prepare his defence for court martial.

These rules were:

Rule 13. a prisoner for whose trial by court martial has been ordered to assemble shall be afforded proper opportunity of preparing his defence and shall be allowed free communication with his witnesses and any friend or legal adviser with whom he may wish to consult.’

Rule 14 (A). the prisoner before he is arraigned should be informed by an officer of every charge on which he to be tried and also that on his giving the names of any witnesses whom he desires to call in his defence, reasonable steps shall be taken for procuring their attendance. Rule 14 (D) If it appears to the court that the prisoner is liable to be prejudiced by any non compliance with this rule, the court should take steps and if necessary adjourn to avoid the prisoner being so prejudiced
(Rules of Procedure 1899, Part 1, para 13 and 14, p. 583 MNL)

Procedural Rule 33 stated:

‘The prisoner is to have proper opportunity to prepare his defence and liberty to communicate with his witnesses and legal adviser or other friend. The object of the rule is to give the prisoner full opportunity to prepare his defence but not to enable him to postpone his trial’

Legal Representation: The accused were presented for trial having had limited contact with defence counsel, Major Thomas who had been tasked with an oppressive assignment of representing six officers charged with serious offences. Major Thomas who had been requested by one accused, Major Lenehan to assist him was unprepared for such a task. At the outbreak of war, Thomas went to South Africa as Officer Commanding A Squadron, New South Wales Citizens Bushmen.

Thomas took on the job as defence counsel. The conspiracy theorists have speculated that Thomas was chosen in an attempt to compromise any possibility that the accused would be acquitted. Denton has added to the speculation:

‘Given that there must have been some number of able legal men amongst the several thousand Australians who fought in the Boer War, the selection of Thomas as the Defending Officer at the infamous court martial is a little puzzling. He had no court room experience let alone practical knowledge of the specialised detail of military legal procedure but his work was obviously very able' K. Denton, Closed File, The true story behind the execution of Breaker Morant and Peter Handcock, 1983, p.4

Thomas was not an experienced lawyer. In Australia he had established a legal practice in Tenterfield and became a community leader. His presence in the Boer war was as a mounted infantry officer, not a lawyer. According to Denton, ‘In Tenterfield the sort of law that needed practising was pretty straightforward, wills, conveyancing, bills of sale, nothing dramatic or outstanding'

Although Thomas did the best he could, the accused were placed at a distinct disadvantage. Having endured a long period of solitary confinement they were then presented with legal counsel not of their own choosing and of limited advocacy experience. Unlike the prosecution attorneys, Thomas was not a full time career military lawyer and had not had any courts martial or advocacy experience. There was not strict adherence to military law and even by the standards of trial of the day, the accused were not treated fairly and accorded every reasonable opportunity to prepare a defence.

George Witton. I recommend you read Witton's book, Scapegoats of the Empire, 1907, he makes many references to way he and Morant/Handcock were treated from their time of arrest until trial. He complains of denial of rights to prepare a defence and of being presedt during the inquiry, to cross examine witnesses and located other witnesses. Woolmore referred to several claims made by Witton, including:

‘The sentences were decided upon the evidence taken at the court of inquiry at which no one was given an opportunity of making a defence, or even of denying the slanderous and lying statements made by prejudiced and unprincipled men. Morant and Handcock were sentenced to death long before the court sat to take evidence for the murder, or supposed complicity in the murder of the said German missionary’ W.Woolmore, The Bushveldt Carbineers and the Pietersburg Light Horse, 2002, p14

james unkles
01-18-2011, 06:14 PM
Witton made many claims, including:

• On 23 October 1901, he and other officers including Handcock were taken into custody by officers under the instruction of LTCOL Hall; (page 71)

• He was prevented from communication with anyone, all correspondence had to be sent through LTCOL Hall. Witton told if he attempted to escape he would be shot, (page 71);

• Two weeks after he attended a court of inquiry and became aware of the charges against him and made a statement about the allegations of murdering prisoner Visser and a German missionary, Heese, (page 72 - 73);

• He felt he was adjudged guilty until he proved he was innocent, (page 73);

• Statements were made on behalf of witnesses without their knowledge, consisted of hearsay, witnesses were bullied, harassed and threatened with arrest if they did not agree with the statements prepared for them, (page 73);

• Handcock was staggered about the charges he faced and was ‘completely ignorant of military law and proceedings’ and asked the president of the inquiry for advice, (page 76);

• The Bushveldt Carbineers Regiment was disbanded Prospective prosecution witnesses were given discharges and paid one pound per day detention allowance to remain in Pietersburg. ‘The remainder were discharged and sent out of the district as though purposely to obstruct the course of justice and when certain men, most important witnesses for the defence were asked for, the authorities at first refused to make any inquiries as to their whereabouts and stated that the expense of securing their return would have to be borne by the defence. This was acquiesced in, and later on the authorities declared that they were unable to trace the men asked for’ (page 78);

• ‘On 15 January, just twelve weeks from the date of my arrest, I was served with the charge sheets.’ (page 78);

• Witton was ordered to appear at a court martial on the morning of 16 January 1902 and learnt that a Major Thomas would act as legal counsel for all the accused charged including Morant and Handcock and had only a few minutes to consult with Major Thomas before the first trial began, (page 79);

Conclusion. Despite their rights as per the MML, these men were given second rate consideration of their rights. Being served with charges and consulting Major Thoams one day prior to the first court martial is an appalling insult to the principle of fairness, noting the prosecution had almost 3 months to prepare its case

Aust Federation Britain failure to inform the Aust government about this matter was no accident. Woolmore at chapter 21 of his book sets out many facts concerning this assertion of Secrecy. So annoyed was the Aust governmengt about not being consulted, amendments were made to the Defence Act, 1903 to remove Australians from capital punishment provisions of the British Army Act. Many Australians don't know that in WW1 350 soldiers were executed for dessertion. No Australians who served with British forces were executed, despite about 119 being arrested.

There is not doubt Australia resented the trial and execution of two of its citizens and the result was expressed in exempting Austyralian from capital punishment when convicted under British military law. Tne failure to inform the Aust government certainly prevented any plea from Australia to the King to show mercy to Handcock and Morant, noting the recommendations for mercy of the courts martial. A plea from the Aust government via the Gov General, would have been entirely appropriate. Remember, the right of any citizen to petition the King had been a part of common law for centuries. In addition, any country could express a representation to another country about any matter, including commutation of a sentence. This is not an issue of over riding or usurping the court martial jurisdiction. It is the right of a citizen or his government to ask for mercy to be exercised.

The MML stated the following to clarify what is a lawful command:

• ‘A command not contrary to ordinary civil law and one justified by military law’;

• ‘In any case of doubt the military knowledge of and experience of officers will enable them to decide on the lawfulness or otherwise of the command’;

• ‘If the command were obviously illegal, the inferior would be justified in questioning or even refusing to execute it, as for instance if he were ordered to fire on a peaceable and unoffending bystander. But as long as the orders of the superior are not obviously and decidedly in opposition to the law of the land or to the well known and established customs of the army, so long must they meet prompt, immediate, and unhesitatingly obedience’
MML P 23

I have made detailed submission to the British Government about this issue of obedience to orders. The situation with Morant et al is far from clear and must be examined and assessed by a judicial inquiry. I even question whether in the circumstances of the Boer war and the nature of the conflict, (an insurgency), whether the orders were in fact illegal or whether Morant et al had the necessary criminal intent to shoot innocent civilians or believed they followed orders in good faith. Clearly, the courts martial made a reasoned judgement having made recommendations for mercy that noted the accused's obedience to orders, their loyal service and ingnorance of mil law and customs.

More to follow, cheers

Jim Unkles

Rising Sun*
01-18-2011, 11:45 PM
Jim Unkles

Thanks for your most informative reply.

The information about the legislation governing the court martial; the events surrounding access to representation and preparation for trial; proscution intimindation of witnesses; and the removal of witnesses certainly supports the case that the convictions were unsafe. If an appellate court accepted those facts the result should have been an acquittal or order for retrial. Was it possible to appeal the court martial decision? Could the trial have been reviewed by a British civil court?

On the Defence Act removing Australians from British death sentences, I've just read Peter Stanley's (former Principal Historian at the AWM) recent book 'Bad Characters'http://www.murdochbooks.com.au/bad-characters-9781741964806.htm which gives a lot of detail about Australian soldiers avoiding execution in WWI and British resentment about it.

You mention the contract Morant and Co signed. What was their status under that contract? Did it, in law, render them subject to British military authority and military justice? Or did they need to take an oath or undergo some other formality to become members of the British military? Were they just contracted irregulars under British command but not members of the British military forces, in a similar way that, for example, indigenous people in Burma, the Philippines, Papua New Guinea, and Timor were in relation to Allied troops commanding them in WWII? If Morant and Co were analogous to the latter, then it could be argued that they were not subject to military justice and the court martial had no jurisdiction, in which case the convictions cannot stand.

james unkles
01-19-2011, 04:55 AM
Hello, the attestation documents for volunteers rendered them subject to military law as per the MNL and the Army Act, similar to reservists who serve in modern Defence forces.

The appeal process is complicated and I am working on this at the moment. I expect to have appeal documents completed very soon. The key to this case is to get it away from government, the executive, (bias and political agendas) and have all the evidence assessed by an independent authority, the judiciary. I understand why the Brit government does not want to have this case reviewed by the judiciary, embarassment about the trial mistakes that were made and orders to shoot prisoners, an embarassment in today's wars of war crimes in Iraq and Afghanistan etc. The greatest embarassment, the execution of 2 colonials for the murders ordered by Britrish officers who were not held culpable!! The Brits want it to go away, that's not going to happen as long as I am involved in the case!

Cheers

Regards

Justice
01-28-2011, 08:39 PM
I have spent 2 years researching the case and last year petitioned the British Crown to pardon Morant, Handcock and Witton.

My web site, breakermorant.com contains extensive material about the case for pardons, including evidence that I uncovered in 2010 proving that orders to shoot prisoners were issued by two named British officers who were not held accountable for these orders. Detractors have always said that such orders did not exist, I have proven otherwise and the evidence corroborates what these men and their defence counsel said. ...when Kitchener was trying to appease the German government over the death of Reverend Heese.

I look forward to your views

James,

You claim to be the first person to prove the existence of orders.

It is strange that it took you two years to find information about the allegation of orders when it was in fact mentioned in the first two documents about the case (see pages 78 to 89 of Arthur Davey's authoritative book "Breaker Morant and the Bushveldt Carbineers" published in 1987 by the Van Riebeeck Society in Cape Town).

15 members of the Bushveldt Carbineers that included Australians and New Zealanders indicated that Morant and Handcock forged Colonel Hall's name to create a false impression that orders came from British Headquarters. You make no mention of this.

There was no obligation to follow illegal orders.

A pardon for Morant and Handcock is just as worthy as a pardon for those who executed the Holocaust.

Justice
01-28-2011, 08:56 PM
... in Morant's case, the extreme provocation at the torture and death of Captain Hunt (his superior and friend) at the hands of Boers. The recommendation for Morant reflected the court's belief on the evidence that Hunt had been tortured and killed by Boers. They classified this act as extreme provocation

Curious that Kitchener only spared Witton and confirmed the sentences of death of Morant and Handcock. Kitchener then had Morant and Handcock shot with a few hours of being sentenced thus denying the accused their right to appeal to the King.


The allegation that the Boers tortured and murdered Captain Hunt is a furphy. Your credibility suffers when you rely on false information to support your case.

James, should any court base a decision on evidence that has since been found to be false?

You are incorrect in claiming Kitchener "only spared Witton"... Lt Picton also received a relatively minor punishment in line with the Courts finding on their relative culpability.

Question: What percentage of people who were executed by the British during the Boer War were given the opportunity to appeal to the King or Queen about their death sentence?

Justice
01-28-2011, 09:10 PM
Rising Sun, mate I think you have summed up the entire case extremely well. Morally it was and always will be wrong to shoot civilians and children. It is madness from anyone to suggest otherwise.

The officers did not dispute the fact that they murdered unarmed civilians, I believe even children as young as 11 or 12 were amongst the victims. Morally the case is indefensible.

When Warren Buffet, who at the time was the richest man in the world, wanted to buy a private jet he phoned a friend who owned an airline and asked him how he could justify buying a private jet. His answer was "you cannot justify it, you rationalise it!"

In the Morant case one has to rationalise why it was acceptable to shoot unarmed people and children in their care.

Cpl Ben Roberts-Smith became the 98th recipient of the Australian VC, that is what positive military actions actions look like. Significantly different!

Justice
01-28-2011, 09:25 PM
I wondered about your opinion on the killing of Rev Hesse; I have heard that Morant, Handcock & Witton were sacrificed to prevent German intervention, even though they were acquitted of his murder. The argument being, I suppose, that the British could not admit to their troops killing a German citizen, but they would be executed for another crime anyway, so the Germans need not become involved.
Alternatively I have also heard that the Reverend may have been killed by the Boers because they were suspicious of a man who could cross the lines with impunity.
Do you have a view on who killed him?
Kind regards,

Hi,

The best source for the truth about the murder of Reverend Heese is a letter from George Witton to Major J.F. Thomas dated 21 October 1929. It was kept secret until 1970. The State Library in NSW could get you a copy, email them at dds@sl.nsw.gov.au

Regards,

Justice
01-28-2011, 10:43 PM
I even question whether in the circumstances of the Boer war and the nature of the conflict, (an insurgency), whether the orders were in fact illegal or whether Morant et al had the necessary criminal intent to shoot innocent civilians or believed they followed orders in good faith. Clearly, the courts martial made a reasoned judgement having made recommendations for mercy that noted the accused's obedience to orders, their loyal service and ingnorance of mil law and customs.

More to follow, cheers

Jim Unkles

Jim on your own blog you have indicated differently in August 2010, you stated: "I agree with you, yes, an illegal order, the point I have made since I took this case on, an illegal order instituted by Kitchener and carried on by his subordinates and obeyed by colonial volunteers who knew little, if anything about military law and customary law."

james unkles
02-04-2011, 10:11 PM
Thanks, perhaps I haven't expressed myself correctly. This case needs a judicial inqury to review the laws of war of 1902 and decide whether the orders not to take prisoners (illegal in 2011) was in fact an illegal order in 1902, noting that the Boer republics were not signatories to the Hague convention of 1899 and therefore did not enjoy the protection of international law provided for in the convention. Even if the orders given by Hunt and Taylor were deemed to be illegal, there is reasonable doubt that Morant, Handcock and Witton obeyed the orders knowing that to do so was illegal and exposed them to criminal liability. In this regard, the trials made significant recommendations for mercy, noting that the men were completely ignorant of military law and customs. This issue of criminal liability is in doubt and is deserving of review, (noting that the appeal of Thmoas and his clients) was denied by Kitchener. Justice demands that the matter be reviewed.

james unkles
02-04-2011, 10:26 PM
The killing of Hunt is only relevant in the sense that Morant believed he had been tortured and killed by Boers. Whether this is fact is immaterial, what is relevant is what was in the mind of Morant. Witton discussed this in his book. The courts martial officers also heard all the evidence and were in an ideal place to make a finding. Whether you agree is not relevant. The officers stated that Morant acted under extreme provocation at the the murder of Hunt, end of story. Yopu may be correct, Hunt could have been mutiliated by local witch doctors, but the court martial determined otherwise. I am not relying on false information, just repeating and using the finding of the courts martial that confirmed that Morant's actions were comitteed under extreme duress, when the defence of provocation was recognised in military law.

Whether you agree or not, the fact remains the officers who tried these men were best placed to make determinations. They heard the evidence. On the matter of appeal, the fact also remains that appeal and petition to the King was permitted and was entrenched in English military and common law that had existed for decades, a proud tradition of British law. The arrest, investigation, trial and sentencing of these men was done in secret and a cruel decision was made to ensure that their relatives and the Australian government were not informed, thus preventing any interference by way of protest / appeal to the King.

Frankly, the percentage question you posed is just that a question. I am concerned only with this case, the rights of the convicted and whether due process was followed. From Thomas and Witton we know that appeal was not permitted!

Re Lt Picton, he was also tried, but not sentenced to death, hence recommendations for mercy and kitcheners' confirmation of the sentence was not relevant. I am not sure why you have discussed the Picton case.

Cheers

Justice
02-05-2011, 02:23 AM
Thanks, perhaps I haven't expressed myself correctly.

When you say that it is illegal one moment and claim that it was legal the next, then it does not look like problems with expression it seems like flip flopping. Do you think the order was legal or don't you? You've stated both!


This case needs a judicial inqury to review the laws of war of 1902 and decide whether the orders not to take prisoners (illegal in 2011) was in fact an illegal order in 1902, noting that the Boer republics were not signatories to the Hague convention of 1899 and therefore did not enjoy the protection of international law provided for in the convention.

Do I understand you correctly you think that it was legal to murder civilians because the government of one of the countries did not sign a piece of paper?

Was the Hague Convention of 1899 not trying to set a standard of conduct by the signatories?


Even if the orders given by Hunt and Taylor were deemed to be illegal, there is reasonable doubt that Morant, Handcock and Witton obeyed the orders knowing that to do so was illegal and exposed them to criminal liability. In this regard, the trials made significant recommendations for mercy, noting that the men were completely ignorant of military law and customs.

Are you saying that these Officers thought that shooting unarmed civilians was legal?

Justice
02-05-2011, 04:24 AM
The killing of Hunt is only relevant in the sense that Morant believed he had been tortured and killed by Boers. Whether this is fact is immaterial, what is relevant is what was in the mind of Morant. Witton discussed this in his book. The courts martial officers also heard all the evidence and were in an ideal place to make a finding. Whether you agree is not relevant. The officers stated that Morant acted under extreme provocation at the the murder of Hunt, end of story. Yopu may be correct, Hunt could have been mutiliated by local witch doctors, but the court martial determined otherwise. I am not relying on false information, just repeating and using the finding of the courts martial that confirmed that Morant's actions were comitteed under extreme duress, when the defence of provocation was recognised in military law.

Whether you agree or not, the fact remains the officers who tried these men were best placed to make determinations. They heard the evidence. On the matter of appeal, the fact also remains that appeal and petition to the King was permitted and was entrenched in English military and common law that had existed for decades, a proud tradition of British law. The arrest, investigation, trial and sentencing of these men was done in secret and a cruel decision was made to ensure that their relatives and the Australian government were not informed, thus preventing any interference by way of protest / appeal to the King.

Frankly, the percentage question you posed is just that a question. I am concerned only with this case, the rights of the convicted and whether due process was followed. From Thomas and Witton we know that appeal was not permitted!

Re Lt Picton, he was also tried, but not sentenced to death, hence recommendations for mercy and kitcheners' confirmation of the sentence was not relevant. I am not sure why you have discussed the Picton case.

Cheers

The fact that 0% of those who were executed during the Boer War were given the right to appeal to the King or Queen is very relevant since it indicates the norms of the time.

James, the question you prefered to evade is therefore an important one.

The claims you make are at odds with the findings of Col St Clair and Pemberton. Their's is in fact the second last word by the Court, Kitcheners decision being the last. This means that your facts are wrong about the Courts finding about Captain Hunts death. Since the facts would hardly make great propaganda I understand why opportunistic people would use false information and hope no one points out the facts.

The authoritative book on the Breaker Morant case is Arthur Davey’s book “Breaker Morant and the Bushveldt Carbineers” published in 1987 by the Van Riebeeck Society in Cape Town.

On pages 139 to 141 Arthur Davey quotes the following Legal Opinions of Colonel St Clair (Deputy Judge Advocate General) and Colonel Pemberton (Deputy Judge Advocate).

What follows, the letter to the Attorney General regarding the findings of the Courts Martial, is the same information available to Kitchener when he had to decide on the fate of the officers (See Davey page 114) .

When you read this it seems quite clear why Kitchener decided to have Morant and Handcock shot.
Why he did not have Witton shot seems to be the real question…


“A.G.
The procedure in these trials was by trying the prisoners jointly on each charge of murder and conducting each trial to its conclusion, including the sentence.
It resulted from this mode of procedure that Lieut. Morant has been convicted three different times of murder and sentenced three times to death.
Lieuts. Picton, Handcock and Witton have been convicted of manslaughter and sentenced to cashiering, Lieut. Handcock has been also twice convicted of murder and sentenced to death twice.
Lieut. Witton has been also convicted of murder and sentenced to death.
From the above it appears that the responsibility of these illegal acts were in the following order:
1. Morant 2. Handcock 3. Witton 4. Picton.
According to rules of procedure 48 and 62 the trial on the separate charge sheets should have proceeded up to and including the findings – but that one sentence should have been awarded each prisoner for all the offences of which he was convicted.
This irregularity has not in my opinion inflicted any injustice on Lieut. Morant but I am not prepared to say that it has not done so in the other 3 cases. A heap of irrelevant evidence was admitted by the Court on the part of the defence despite the rule of the Judge Advocate who I consider was justified in protesting.
Signed by Col. St Clair on 20 Feb 1902

Colonel Pemberton Remarks:
Lts Morant, Handcock, Picton and Witton BVC.
I consider that Lieut Morant was properly convicted.

Murder of Visser
1. The so-called Court [Conducted by Morant] was not a court at all; it may be more justly called a consultation between 4 officers which ended in a party of subordinates being ordered to commit murder.
2. The provocation theory will not hold water. [Emphasis provided] Visser was captured on the evening of 9 August – he was not shot until the next day; had he been shot at once there might have been a slight presumption that his execution was ordered on the spur of the moment – but the evidence discloses a totally different state of affairs – Visser was not executed until the next day. Lieut. Morant himself admits that the death of Capt. Hunt gave bias to his mind. A stronger case of implied malice aforethought has rarely been represented before any tribunal – I fail to understand on what grounds the other 3 prisoners were found guilty of manslaughter only – I disagree with their finding; from the evidence adduced I consider the 4 officers are jointly and severally responsible for the death of Visser and guilty of murder. I do not think it proved that Visser was wearing British uniform.

Signed by A.R. Pemberton, Col
Col J. St Clair wrote “I agree.” and signed his name.

8 Boers

I consider that the above officers were rightly found guilty of the charge preferred against them. The evidence shows that they “took the law into their own hands” an illegal proceeding for which they should take the consequences. The plea of justification falls to the ground.
Signed by A.R. Pemberton, Col

Col J. St Clair wrote “I agree.” and signed his name.

3 Boers

Lts Morant and Handcock
I consider the prs [prisoners] were rightly convicted. Lieut. Morant evidently constituted himself the avenger of Capt. Hunt and should take the consequences.

Signed by A.R. Pemberton, Col
Col J. St Clair wrote “I agree” and signed his name.

Major Lenehan late Comm. Of Bushveldt Carabineers

Convicted of
Neglecting to make a report of the illegal shooting of a comrade [Tpr Van Buuren] by one of his men [Lieut Handcock] which fact had been brought to his notice by his officers.
Sentenced to be reprimanded.
I am of the opinion that the evidence justified the finding. The prosecution was embarrassed by the absence of Lt. Col. Hall, lately commdg at Pietersburg to whom reports had been made from the Spelonken.
The action of Major Lenehan in this matter was probably caused by his anxiety to keep the scandals in his corps from becoming public and may possibly be looked on as a grave error of judgement."



My conclusion after reading the last verdict by members of the Courts Martial given to Kicthener for his final decision:
1. The provocation theory was rejected by the most qualified legal minds with complete knowledge of the facts following the Court Martial. This formed part of the legal process. The finding above is therefore the second last word on the case, the last being that of Kicthener.
2. The Court did not believe Captain Hunt was tortured and murdered by the Boers.
3. They thought that the death sentences were appropriate.
4. The Court found that Tpr Van Buuren was shot by Lt Handcock. Those who claim to seek “justice” would do well to ask for Handcock to be charged with the murder of Trooper Van Buuren (BVC), his own comrade.
Could there be any question about Lieutenant Handcock not knowing that it was illegal to shoot his own comrades?

james unkles
02-05-2011, 08:06 PM
Your reference to norms is exactly what has always concerned me about what amateur/professional historians have done, trivalised or ignored the laws and procedures of trial and sentencing that applied in 1902. These men had a right of appeal, it was denied. The findings of Col Pemberton / AG were reviewable, and appeal was denied, as serious miscarriage justice in 1902 as in the present!

St Clair made very direct conclusions about orders to shoot prisoners, somnething that many so called experts and historians denied ever existed. Even Davey, who knew of the existence of St Clair's written findings, failed to acknowledge or realise its legal significance. The British Command at the time of the trials and since have failed to accept the culpability of Hunt, Taylor and other British officers who wroked directly for Kitchener. If justice meant anything, then their culpability needs to be acknowledged and an admission made that Kitchener was the architect of brutal rules of engagement that caused so much death and destruction to Boers, both civilians and fighters.

If you are so determined to support the convictions and sentences of Mrant et al, then open your mind to the methods that were used to fight a war that the British was loosing, a determined insurgency, the likes of which the British military had not encountered in wars fought in Europe.

Your conclusion are in error:The court was satisfied that Morant believed Hunt had been tortured and killed, hence its recommendation for mercy.

Handcock was never tried or convicted of Van Burren's killing. If there was evidence why wasn't he charged? Speculation about this and Heese shooting is meaningless when it comes to assessing the case for pardons.

The law as it existed in 1902, including the status of the Hague convention was not clear and the issue needs to be settled by a judicial inquiry. This case will not disappear and doubts about the legitimacy of the convictions and sentences will persist. I am pleading for a judicial inquiry for the benefit of all descendants of the Boers who were kiled and those related to Morant, Handcock and Witton. We need an inquiry independent of government, transparent and open to the public.

I sense that British governments have feared this case for decades and consistently refuse to subject the case to judicial review. Instead it relies on internal advice of its own public servants, hardly a robust and open process to do justcie to a case where doubts linger, particularly on the issue of ordes issued to shoot prisoners. Perhaps it is this issue that the Britiosh government fears, to open for debate before a judicial inquiry, a process that would invite criticism and scrutiny of the revered military reputation of Lord Kitchener and his British subordinates who devised methods of warfare that were contrary to customary law.

Perhaps, you could use your energy and join me in the call for an inquiry to answer this and many other questions, after all, what have we to fear, surely not the truth? If these men were lawfully arrested, tried, convicted and sentenced, then let an independent process examine the issues and make a decision. We can then all move on.

I expect to have some more news about this matter very soon. Will post on this site and www.breakermorant.com

Regards

Jim Unkles

james unkles
02-05-2011, 08:17 PM
What I think is not the issue, I have referred to the findings of the courts martial on recommendations for mercy. The court officers heard and assessed the evidence, not you or me. Yes, they convicted the accused, but made significant findings and expressed them in recommendations for mercy. Kitchener failed to act on those findings and denied the men and their counsel the right of appeal. The case for pardons is about that denial and failure to act on the recommendations made.

The Hague convention and the rights of prisoners did not apply to the Boer war and the courts martial found that these men were completely ignorant of military law and customs. This finding hardly comes as a surprise. Colonials were recruited for their bush skills, to hunt an elusive and resourceful enemy. Colonials were not full time, British educated soldiers, experienced in war and the laws and customs of war. They signed contracts, (attestation forms) that stated they would obey all orders of their superiors and be loyal to the King and that's exactly what they did.

The issue I have always had with this case is many historians, writers, commentators apply current standard to judge what these men would have known. I prefer to work from:

what the laws and customs were in 1902;
the findings of the recommendations of mercy. These findings reflect the judgement of officers who were present and assessed the evidence and made findings of fact.

Conclusion: Lee's see what a judicial inquiry decides. I will be content with an outcome, (for or against pardons) decided by a process independent of the bias and agendas of the British government.

Justice
02-05-2011, 10:44 PM
What I think is not the issue, I have referred to the findings of the courts martial on recommendations for mercy. The court officers heard and assessed the evidence, not you or me. Yes, they convicted the accused, but made significant findings and expressed them in recommendations for mercy. Kitchener failed to act on those findings and denied the men and their counsel the right of appeal. The case for pardons is about that denial and failure to act on the recommendations made.

The Hague convention and the rights of prisoners did not apply to the Boer war and the courts martial found that these men were completely ignorant of military law and customs. This finding hardly comes as a surprise. Colonials were recruited for their bush skills, to hunt an elusive and resourceful enemy. Colonials were not full time, British educated soldiers, experienced in war and the laws and customs of war. They signed contracts, (attestation forms) that stated they would obey all orders of their superiors and be loyal to the King and that's exactly what they did.

The issue I have always had with this case is many historians, writers, commentators apply current standard to judge what these men would have known. I prefer to work from:

what the laws and customs were in 1902; the findings of the recommendations of mercy.

These findings reflect the judgement of officers who were present and assessed the evidence and made findings of fact.

James Unkles,

So you do think it was legal to murder civilians? You have confused me with where you stand, is it yes or no?

The Hague convention is also hardly a document that would allow the shooting of civillians, not all the people murdered were prisoners. None of them were proven to be soldiers.

My view is the same as that of the Courts Martial in 1902, it was illegal to murder civilians. The Courts Martial would have found the officers guilty of a lesser crime i.e. manslaughter if they had felt there was reason to do so. The Judge Advocate indicated the Court erred to find three of the officers guilty of manslaughter. Pemberton indicated they were all guilty of murder.

The Judge Advocates gave their verdict to the Attorney General, this led to Kitchener's decision to confirm the death sentences in two cases. You are erring by referring to decisions earlier in the process.

The problem I have always have with people who seek glory in dubious but popular cases is that they care neither for truth nor for justice.

This case has been referred to the King and the British Government Ad Nauseam and the outcome has always been the same. The men were guilty.

I suggest you research the case a bit, when you do you will also realise like Kit Denton did that Morant and Handcock received a fair trial and deserved their punishment.

These guys did not only shoot Boer civilians they also tried to kill some of their own men and succeeded in one instance.

If you accept what St Clair wrote before the Court Martial began then I don’t understand why you disagree with the final finding by the same man? The purpose of the Court Martial and the Administrative process was to get to the truth and make an appropriate finding.

By writing “The provocation theory will not hold water” Colonel Pemberton made the final legal opinion lucid to all, but you.

The finding of the Court was that the officers were guilty of crimes, for which their was no justification and deserved their punishment, it also found that Major Lenehan covered up the murder of one of his own men by Lieutenant Peter Handcock.

Justice
02-05-2011, 11:44 PM
Your reference to norms is exactly what has always concerned me about what amateur/professional historians have done, trivalised or ignored the laws and procedures of trial and sentencing that applied in 1902. These men had a right of appeal, it was denied. The findings of Col Pemberton / AG were reviewable, and appeal was denied, as serious miscarriage justice in 1902 as in the present!


James Unkles,

So you are implying that the norms were irrelevant and that 100% of executions during the Boer war were wrong, since no one was given the right to appeal?

If all the executions were wrong and you are seeking justice, then why are you only interested in a single case?

Are you aware that a Court of Appeal was not created in England until 1908?


St Clair made very direct conclusions about orders to shoot prisoners, somnething that many so called experts and historians denied ever existed. Even Davey, who knew of the existence of St Clair's written findings, failed to acknowledge or realise its legal significance. The British Command at the time of the trials and since have failed to accept the culpability of Hunt, Taylor and other British officers who wroked directly for Kitchener. If justice meant anything, then their culpability needs to be acknowledged and an admission made that Kitchener was the architect of brutal rules of engagement that caused so much death and destruction to Boers, both civilians and fighters.

1. St Clair wrote what he did during the Court of Inquiry... he was speculating about what the Courts Martial would find. The finding of the Courts Martial refer to Morant as the person who instigated the murders. So called experts would do well to get their head around the case both from a legal and historical side. James you are asking that an opinion BEFORE THE COURTS MARTIAL take precedence to the finding of the Court in Feb 1902? That seems disingenious.
2. Since Hunt was dead it would probably have been unlikely for him to face consequences when his conveniently alleged "orders" never actually led to a single death while he was alive.
3. Taylor resigned and after three months was no longer subject to Military Law, he was tried under Martial Law. Morant and Handcock refused to point him out as a source of "orders", this set him free.
4. The Judge Advocates formed part of the Court and had the final legal say while Kitchener had the final administrative decision.
5. Arthur Davey adressed the significance of the orders in his book, perhaps you should even consider reading the book before criticising it. The book contains a letter from Barrister-at-Law Mr Morris Alexander who clearly shows that orders had to be legal. If he were alive today he too would question the "good sense and justice" of those who seek a pardon for murderers. Ironically Mr Alexanders letter was in responce to a letter titled "Concerning Jews". Little did he know the signifigance between the Boer War and what was to follow 40 years later.


If you are so determined to support the convictions and sentences of Mrant et al, then open your mind to the methods that were used to fight a war that the British was loosing, a determined insurgency, the likes of which the British military had not encountered in wars fought in Europe.


I fail to see how a pardon for a War Criminal could assist in undoing the methods/ wrongs of the same offending side?


Your conclusion are in error:The court was satisfied that Morant believed Hunt had been tortured and killed, hence its recommendation for mercy.

Handcock was never tried or convicted of Van Burren's killing. If there was evidence why wasn't he charged? Speculation about this and Heese shooting is meaningless when it comes to assessing the case for pardons.

The law as it existed in 1902, including the status of the Hague convention was not clear and the issue needs to be settled by a judicial inquiry.

The Judge Avocates wrote the final findings of the Courts Martial to the Attorney General, I have not made an error, you clearly don't understand how the administration of military justice worked in 1902.
The Judge Advocate reviewed the finding of the Court Martial. You are clinging to something that was outdated by 20 Feb 1902.

The Judge Advocate wrote: "The provocation theory will not hold water."

The right of civilians not to be maltreated and murdered has been accepted since the execution of Peter Von Hagenbach.

http://en.wikipedia.org/wiki/Peter_von_Hagenbach

The Red Cross also differ with your rather crazy view that murder was lawful.

http://www.icrc.org/eng/resources/documents/misc/57jq2x.htm



Handcock was never tried or convicted of Van Burren's killing. If there was evidence why wasn't he charged? Speculation about this and Heese shooting is meaningless when it comes to assessing the case for pardons.


So you are saying we should pardon these guys despite the fact that they were guilty of not only the murders they were executed for... but they were also guilty of other murders but these should conveniently be ignored. If we ignore the fact that these guys murdered people then they are actually great guys? huh?

I would prefer the question be asked why Handcock was not charged for the murder...

Handcock withrew his confession in which he admitted to the murder.


I am pleading for a judicial inquiry for the benefit of all descendants of the Boers who were kiled and those related to Morant, Handcock and Witton. We need an inquiry independent of government, transparent and open to the public.

I sense that British governments have feared this case for decades and consistently refuse to subject the case to judicial review. Instead it relies on internal advice of its own public servants, hardly a robust and open process to do justcie to a case where doubts linger, particularly on the issue of ordes issued to shoot prisoners. Perhaps it is this issue that the Britiosh government fears, to open for debate before a judicial inquiry, a process that would invite criticism and scrutiny of the revered military reputation of Lord Kitchener and his British subordinates who devised methods of warfare that were contrary to customary law.

Perhaps, you could use your energy and join me in the call for an inquiry to answer this and many other questions, after all, what have we to fear, surely not the truth? If these men were lawfully arrested, tried, convicted and sentenced, then let an independent process examine the issues and make a decision. We can then all move on.


Are you pleading for the investigation of the culprits in the murders of Heese and Van Buuren, and also willing to look at the attempts on the lives of other witnesses? How about the killing of the Natives?

I don't fear the truth.

Since I don't change my opinion as often as you do... I believe these guys were guilty in 1902 and a court will find the same outcome.

For what reason would various Government administrations over more than 100 years need to hide an incorrect administrative decision? Some people believe the moon is made from cheese, others tell people it is, ignorant people may believe it.

Good luck with your smear campaign against the British and the Boers.

Just remember to hide the fact that the people who complained about Morants War Crimes included Australians and that the investigating officer was also Australian.

Justice
02-07-2011, 04:10 AM
Handcock was never tried or convicted of Van Burren's killing. If there was evidence why wasn't he charged? Speculation about this and Heese shooting is meaningless when it comes to assessing the case for pardons.

The law as it existed in 1902, including the status of the Hague convention was not clear and the issue needs to be settled by a judicial inquiry.

Personally, like Rising Sun, I believe the innocence or guilt of a person is central to the question as to the outcome of a legal process. I find it strange that you seem to want to ignore the matter of who was responsible for the murders of Heese, Van Buuren, who tried to shoot their comrades, who killed natives?

The question about the status of the Hague Convention is lucid:

"One of the purposes for which the First Hague Peace Conference of 1899 was convened was "the revision of the declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, and not yet ratified" (Russian circular note of 30 December 1898). The Conference of 1899 succeeded in adopting a Convention on land warfare to which Regulations are annexed. The Convention and the Regulations were revised at the Second International Peace Conference in 1907. The two versions of the Convention and the Regulations differ only slightly from each other. Seventeen of the states which ratified the 1899 Convention did not ratify the 1907 version (Argentina, Bulgaria, Chile, Columbia, Ecuador, Greece, Italy, Korea, Montenegro, Paraguay, Persia, Peru, Serbia, Spain, Turkey, Uruguay, Venezuela). These states or their successor states remain formally bound by the 1899 Convention in their relations with the other parties thereto. As between the parties to the 1907 Convention, this Convention has replaced the 1899 Convention (see Article 4 of the 1907 Convention). The provisions of the two Conventions on land warfare, like most of the substantive provisions of the Hague Conventions of 1899 and 1907, are considered as embodying rules of customary international law. As such they are also binding on states which are not formally parties to them."

It seems the facts don't quite support your claims.

Morant also signed a document stating that he would... "be subject to the Queen’s rules and regulations, the rules and articles of war, and to all such other rules, regulations and discipline of whatever nature or kind to which Her Majesty’s Army is for the time being subject, and to all laws, rules and regulations in force within the Province of South Australia under the Defence Act 1895; and also to all rules and regulations re: general orders and for any general officer commanding Her Majesty’s forces in South Africa in which way we may severally for the time being be serving.”

Maybe Morants first language was Spanish and he did not understand what he signed?

Rising Sun*
02-07-2011, 08:19 AM
Even if the orders given by Hunt and Taylor were deemed to be illegal, there is reasonable doubt that Morant, Handcock and Witton obeyed the orders knowing that to do so was illegal and exposed them to criminal liability.

To what extent did 'reasonable doubt' apply to whether or not they obeyed orders knowing that to do so was illegal and exposed them to criminal liability?

The usual position with murder is whether or not there is reasonable doubt that the accused met the elements of the charge. Obeying orders, at least in the civil criminal context, would be relevant only if a defence of duress was raised, which is close to but not entirely impossible.

If you have them, I'd be interested to see the verbatim charges against Morant etc. This might help to clarify the discussion by separating the fact of the murders they committed from the offences with which they were charged, if those offences were other than murder.

Justice
02-07-2011, 05:12 PM
To what extent did 'reasonable doubt' apply to whether or not they obeyed orders knowing that to do so was illegal and exposed them to criminal liability?

The usual position with murder is whether or not there is reasonable doubt that the accused met the elements of the charge. Obeying orders, at least in the civil criminal context, would be relevant only if a defence of duress was raised, which is close to but not entirely impossible.

If you have them, I'd be interested to see the verbatim charges against Morant etc. This might help to clarify the discussion by separating the fact of the murders they committed from the offences with which they were charged, if those offences were other than murder.

Hi Rising Sun,

I have only the shortened version at my disposal, I am not sure whether a complete version exists, the Court Martial Transcripts have been destroyed.

Someone claiming "reasonable doubt" existed does not understand the legal process of 1902 or the discretion of the Military Commander during a time of War in the administrative process in 1902 or is less than honest... The Courts Martial had the discretion to find the officers guilty of a lesser charge (i.e. manslaughter) if any doubt existed. They did this in the first charge, although the Judge Advocate believed the Court made a mistake and should have found all four guilty of murder (see Pemberton's opinion in an earlier post of mine). The case could hardly be any clearer.

The charges indicate that not all victims were prisoners, see charge three and four... They were found guilty on charge three. While they were found not guilty on charge four despite Handcock being placed at the scene by one witness, Van Heerden... In the 21 October 1929 letter (kept secret till 1970) Witton wrote to Major Thomas that Handcock had confessed to him about killing Heese... Witton described it as "a most cold blooded affair".

The Court of Inquiry investigated six murder charges involving the murder of twenty two people. The Court Martials prosecuted four of these charges involving the murder of a total of thirteen people, convictions were made on three charges for the deaths of twelve people.

In shortened form, the charges were:
"(i) As to Visser,
Morant, Handcock, Picton and Witton.
Each charged that they did incite instigate and command
Trooper Silke and others to kill and murder Visser, an
unarmed prisoner of war.
(ii) As to the Eight Boers
Morant, Handcock and Witton.
Each charged that they did incite instigate and command
Sergeant Major Hammett and others to kill and murder
eight men, names unknown, unarmed prisoners of war.
(iii) As to the Three Boers
Morant and Handcock.
Each charged that they did incite instigate and command
Trooper Thomson and others to kill and murder two men
and one boy, names unknown.
(iv) As to the Reverend Heese
Handcock: Charged that he did kill and murder one C.A.D.
Hesse (sic), a missionary."

The finding of the Court was:

"Army Order No. 506, 28 Feb. 1902 (extract)

1. - DISCIPLINE -
The following extracts from the proceedings of General Courts-Martial held at Pietersburg, Transvaal, between the 16th January, 1902, and 19th February, 1902, for the trial of the under mentioned prisoners are published for information:

1. H. H. Morant, P. J. Handcock, G. R. Witton and H. Picton, of the Bushveldt Carabiniers, were charged with -
Charge: When on active service, committing the offence of murder.
Finding: The Court find the prisoner Morant guilty of murder, but find the prisoners Handcock, Witton and Picton guilty of manslaughter.

2. H. H. Morant, P. J. Handcock, and G. R. Witton, of the Bushveldt Carabiniers, were charged with:
Charge: When on active service committing the offence of murder.
Finding: The Court find the prisoners guilty of the charge.

3. H. H. Morant and P. J. Handcock, of the Bushveldt Carabiniers, were charged with:
Charge: When on active service committing the offence of murder.
Finding: The Court find the prisoners guilty of the charge.
Sentence: The Court sentence the prisoners Morant, Handcock, and Witton to suffer death by being shot, and the prisoner Picton to be cashiered.

Confirmation: The General Commanding-in-Chief has confirmed the sentence in the case of the prisoners Morant, Handcock, and Picton, but has commuted the sentence awarded the prisoner Witton to one of penal servitude for life.

The sentences awarded the prisoners Morant and Handcock have been carried out.

4. Major R. W. Lenehan, Bushveldt Carabiniers, was charged with:
Charge: When on active service by culpable neglect omitting to make a report which it was his duty to make.
Finding: The Court find the prisoner guilty of the charge.
Sentence: The Court sentence the prisoner to be Reprimanded. The finding and sentence have been confirmed by the General Commanding-in-Chief.

By Order,
W. F. Kelly, Major-General, Adjutant-General"

Rising Sun*
02-07-2011, 07:07 PM
Hi Rising Sun,

I have only the shortened version at my disposal, I am not sure whether a complete version exists, the Court Martial Transcripts have been destroyed.

The charges indicate that not all victims were prisoners, see charge three...

The Court of Inquiry investigated six murder charges involving the murder of twenty two people. The Court Martials prosecuted four of these charges involving the murder of a total of thirteen people, convictions were made on three charges for the deaths of twelve people.

In shortened form, the charges were:
"(i) As to Visser,
Morant, Handcock, Picton and Witton.
Each charged that they did incite instigate and command
Trooper Silke and others to kill and murder Visser, an
unarmed prisoner of war.
(ii) As to the Eight Boers
Morant, Handcock and Witton.
Each charged that they did incite instigate and command
Sergeant Major Hammett and others to kill and murder
eight men, names unknown, unarmed prisoners of war.
(iii) As to the Three Boers
Morant and Handcock.
Each charged that they did incite instigate and command
Trooper Thomson and others to kill and murder two men
and one boy, names unknown.
(iv) As to the Reverend Heese
Handcock: Charged that he did kill and murder one C.A.D.
Hesse (sic), a missionary."

The finding of the Court was:

"Army Order No. 506, 28 Feb. 1902 (extract)

1. - DISCIPLINE -
The following extracts from the proceedings of General Courts-Martial held at Pietersburg, Transvaal, between the 16th January, 1902, and 19th February, 1902, for the trial of the under mentioned prisoners are published for information:

1. H. H. Morant, P. J. Handcock, G. R. Witton and H. Picton, of the Bushveldt Carabiniers, were charged with -
Charge: When on active service, committing the offence of murder.
Finding: The Court find the prisoner Morant guilty of murder, but find the prisoners Handcock, Witton and Picton guilty of manslaughter.

2. H. H. Morant, P. J. Handcock, and G. R. Witton, of the Bushveldt Carabiniers, were charged with:
Charge: When on active service committing the offence of murder.
Finding: The Court find the prisoners guilty of the charge.

3. H. H. Morant and P. J. Handcock, of the Bushveldt Carabiniers, were charged with:
Charge: When on active service committing the offence of murder.
Finding: The Court find the prisoners guilty of the charge.
Sentence: The Court sentence the prisoners Morant, Handcock, and Witton to suffer death by being shot, and the prisoner Picton to be cashiered.

Confirmation: The General Commanding-in-Chief has confirmed the sentence in the case of the prisoners Morant, Handcock, and Picton, but has commuted the sentence awarded the prisoner Witton to one of penal servitude for life.

The sentences awarded the prisoners Morant and Handcock have been carried out.

4. Major R. W. Lenehan, Bushveldt Carabiniers, was charged with:
Charge: When on active service by culpable neglect omitting to make a report which it was his duty to make.
Finding: The Court find the prisoner guilty of the charge.
Sentence: The Court sentence the prisoner to be Reprimanded. The finding and sentence have been confirmed by the General Commanding-in-Chief.

By Order,
W. F. Kelly, Major-General, Adjutant-General"

Thanks for that.

If the Army Order accurately extracts the findings of the court-martial, then the findings, being murder, don't agree with the charges, being to 'incite instigate and command [others] to kill and murder'.

I do not see how a defendant can be charged with inciting, instigating and commanding others to murder, which for practical purposes amounts to an offence of incitement to murder, and then be found guilty of murder. They are entirely different charges and the elements of the offences are entirely different.

The English common law position on incitement to 2006 is stated concisely by the Crown Prosecution Service as:
Incitement occurs when a person seeks to persuade another to commit a criminal offence. A person is guilty of incitement to commit an offence or offences if:
a. s/he incites another to do or cause to be done an act or acts which, if done, will involve the commission of an offence or offences by the other; and
b. s/he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence(s) (R v Claydon [2006] 1 Cr. App. R. 20)
It is not a defence to a charge of incitement that the other person, for whatever reason, does not commit the offence, or commits a different offence to that incited.
The prosecution must show that the person accused of incitement intended or believed that the person incited would, if acted as incited to do so, do so with the mens rea appropriate to the offence. http://www.cps.gov.uk/legal/h_to_k/inchoate_offences/#P20_588

Assuming that the law at the time of Morant’s trial was substantially similar (I don’t have access to relevant sources to determine this), to gain a conviction on incitement to murder the prosecution would have to have proved that Morant etc intended or believed the soldiers who carried out the murders had the necessary mens rea (For those readers unfamiliar with the term, mens rea is Latin for ‘guilty mind’ or, in practical terms, intent to commit a criminal act. It is a necessary element in most crimes and certainly in murder and incitement to murder.) Given what the court-martial said about Morant etc’s ignorance of the law, how could the prosecution have proved beyond reasonable doubt that Morant etc had that belief?

As the acts were carried out, if the prosecution proved the soldiers had the necessary mens rea, this means that the prosecution proved those soldiers were guilty of murder. So why weren’t they charged?

If the answer is that the soldiers were only carrying out orders, it follows that the same should have applied to Morant etc if it can be demonstrated that such orders were given, which Jim Unkles maintains is the case.

If the answer is that it wasn’t murder because the soldiers didn’t have the necessary mens rea, then there were no murders. It follows that Morant etc couldn’t be convicted of murder but only of incitement to murder as at common law there is no requirement for the act to be carried out. Yet they were convicted of murder?

If Morant etc were charged only with incitement to murder, and if the applicable law was as I have outlined it, then it was impossible for them to be properly convicted of murder unless the court-martial had power to make a finding of murder in the alternative, which would be a travesty.

From a legal perspective, it doesn’t hang together.

While I maintain my position that the killings were morally wrong, the more detail I get on the legal process the more I am inclined to the view that Morant etc were not tried and convicted according to law, which makes their executions wrong.

Rising Sun*
02-07-2011, 07:12 PM
Someone claiming "reasonable doubt" existed does not understand the legal process of 1902 or the discretion of the Military Commander during a time of War in the administrative process in 1902 or is less than honest... The Courts Martial had the discretion to find the officers guilty of a lesser charge (i.e. manslaughter) if any doubt existed. They did this in the first charge, although the Judge Advocate believed the Court made a mistake and should have found all four guilty of murder (see Pemberton's opinion in an earlier post of mine). The case could hardly be any clearer.

I missed that edit as I was writing my last post when it was posted.

The alternative verdict of manslaughter was, I assume, an alternative only to a charge of murder, not incitement to murder.

As outlined in my last post, I can't see how a murder verdict could have been brought in on a charge of incitement to murder.

Rising Sun*
02-07-2011, 07:18 PM
Anyone know what the penalty was for incitement to murder as charged against Morant etc?

I'm betting it wasn't the death penalty.

Justice
02-07-2011, 08:00 PM
Anyone know what the penalty was for incitement to murder as charged against Morant etc?

I'm betting it wasn't the death penalty.


Hi Rising Sun,

The complexity of the case is remarkable and it is easy to fall into a trap, we should all remember that the law in Courts Martial during a War in 1902 was different to the rights of civilians in modern day.

The "Green Book" stated that a person could be executed at a Court Martial in the field... but the decision by the members (there had to be at least three) had to be unanimous. It clearly stated that the punishment for executing a person at a Court Martial where a member disagrees would be “death by hanging”. Picton and Witton both disagreed with the execution, this may be what saved their bacon.

The troopers weren’t charged because they believed (rightly) that they would be dealt with if they did not execute the command. Some refused and they are the real heroes in my book. After you read the depositions of the British and Australian Troopers you feel strongly that justice was done. Morant and Handcock were guilty as hell.

One of the challenges was that murders were “grouped” (i.e. "8 Boers" and "3 Boers"…) in stead of individually.

The officers were guilty of both taking part in the murders by shooting people (Witton wrote about how he shot a prisoner in his book…) AND they incited others to murder…

Like I said above, the charges were shortened by someone else many years ago, I don’t know if the complete charges as they were brought against the men will be found.

Still I believe murder is wrong, shooting people and especially children is reprehensible and not something to be proud of.

By the standards of 1902 the officers received justice, they received legal counsel when it was not a right, the prosecutor was not the best legal mind and was chosen on lowest cost in stead of a barrister… Morant called the court martial in the field that he claimed to hold for Visser “less handsome” than his own…

Even in Wittons book evidence is found that the officers were offered immunity from prosecution if they told the court someone of higher rank (like Major Lenehan) gave the orders and identified them. Why did the defence not use the opportunity and point the finger at Taylor who I believe was also wrong? I believe too few were charged in this case.

Major Lenehan, Captain Robertson, and Captain Taylor all superiors of Morant and Handcock gave evidence at the trial and denied the existence of orders. Even Major Bolton and Col Hamilton, Kitcheners Staff officer appeared as witness and denied such orders existed.

No proof of orders was presented to the Court, how could the Court come do a different conclusion? Claiming a deceased officer gave you an order and that you only followed it after his death does seem like a convenient but flimsy excuse. What would you have done if you were a member of the Court?

Knowing the military it would be strange for the chain of command to be ignored and for a junior officer to receive orders from the C-in-C.

I believe Morant was simply trying to evade his punishment. He was a wrangler.

The purpose of a court martial was to achieve military justice speedily, I believe it was achieved.

Justice
02-07-2011, 09:11 PM
Anyone know what the penalty was for incitement to murder as charged against Morant etc?

I'm betting it wasn't the death penalty.

At the time the death penalty was given for (what in 2011 would be viewed as extremely minor offences...).

Many Boers were executed for wearing Khaki and other petty crimes. Some where actually tried and executed for “offences”… like “train wrecking”… said “train wrecking” wasn’t even a crime since it was similar to attacking a military convoy! The practice of “train wrecking” was even suggested by the British Military Handbook at the time!

A British Trooper was executed for poisoning horses. Execution for desertion was common.

One Boer was executed after being tried in absentia on the farm next to his own, while they knew full well where he was... He was told of both his Court Martial and the outcome... 8 minutes before being shot. Later it was proved that the witnesses lied and that the man was innocent. His execution was confirmed by Kitchener after the fact.

There were many cases much more deserving of a review than that of Morant.

It is easy to be lured into believing a mixture of what is acceptable today and what was acceptable in 1902.

james unkles
02-08-2011, 09:57 PM
the war was fought in condition like Afghanistan, confusing to determine who was a civilian by day and a fighter by night, no discernable uniform and the Boers were not signatories to conventions on war fare and treatment of prisoners. The reason I have mentioned the Hague convention is because the British government has claimed the convention did apply and there fore the Boers were treated by Morant et al contrary to its provisions. I do not agree, the convention did not apply to the Boer war.

As to the St Clair document, I do not agree with all of his review, but agree with his conclusion not to take prisoners (a fact that has been denied by so many commentators for decades). The other issue is the significance of the recommendations for mercy and Kitchenre's not to follwo them except for Witton.

Conclusion, let's get a review done by judicial inquiry, and decide these issues. Heaven forbid!, we may find the truth at alst after decades of debate and controversy, after all what is there to be lost, if not the truth!!

Regards

Jim Unkles

Justice
02-08-2011, 10:55 PM
the war was fought in condition like Afghanistan, confusing to determine who was a civilian by day and a fighter by night, no discernable uniform and the Boers were not signatories to conventions on war fare and treatment of prisoners. The reason I have mentioned the Hague convention is because the Bristihs government has claimed the conmvention did applied and there fore tyhe Boers were treated by Morant et al contrary to its provisions. I do not agree and the claim the convention did not to the Boer republics.

As to the St Clair document, I do not agree with all of his review, but agree with his conclusion not to take prisoners (a fact that has been denied by so many commentators for decades). The other issue is the significance of the recommendations for mercy and Kitchenre's not to follwo them except for Witton.

Conclusion, let's get a review done by judicial inquiry, and decide these issues. Heaven forbid!, we may find the truth at alst after decades of debate and controversy, after all what is there to be lost, if not the truth!!

Regards

Jim Unkles

James Unkles,

You seem to be setting the moral bar extremely low for officers.:shock: It actually concerns me very much that you would consider that view for more than a minute.

If you look at charge three it shows that those 3 weren't prisoners.:o They were civilians.:o

I find it scary that someone would firstly suggest that shooting prisoners would be correct. At least three were civilians, none were found guilty of any crime at all. All were unarmed.:shock:

I found the following here:
http://www.icrc.org/eng/resources/documents/misc/57jq2x.htm

It seems it was not acceptable to murder people for any reason for 515 years before Morant decided to have men and children shot. Maybe he missed the memo?

"Already in the Ordinance for the Government of the Army, published in 1386 by King Richard II of England, limits were established to the conduct of hostilities and — on pain of death — acts of violence against women and unarmed priests, the burning of houses and the desecration of churches were prohibited. Provisions of the same nature were included in the codes issued by Ferdinand of Hungary in 1526, by Emperor Maximilian II in 1570 (humanitari an rules are found in Articles 8 and 9) and by King Gustavus II Adolphus of Sweden in 1621 [4 ] . Article 100 of the Articles of War decreed by Gustavus II Adolphus established that no man should “tyrannise over any Churchman, or aged people, Men or Women, Maydes or Children”."

James Unkles, you seem to suggest it is acceptable to shoot civilians in Afghanistan.:shock:

Lining up people and shooting them because you are unsure of whether they are soldiers OR NOT seems like an extreme and indefensible practice.

The fact is that the Courts Martial found the men guilty of murder. Previously you stated support for the finding of the Court, it seems like you are making another u turn. and only selectively want to accept the view of a person but strangely his view before the Court Martial. That is just poor jurisprudence.

Australia wasn't a signatory to the 1899 convention either, would this mean that the British could shoot Australian prisoners "legally" or morally?

I think not! Just like Morant could not use it either.

Not being a signatory to a document should not make murder of either unarmed prisoners or civilians and especially not children legal.

Justice
02-09-2011, 07:45 AM
Hey everyone,
In 1902, Lt Harry 'Breaker' Morant and Lt Peter Handcock of the mainly Australian Bush-Veldt Carbineers were executed in South Aftica by the British - their crime, shooting Boer p.o.w.'s and a German Missionary. A third officer had his death sentence commuted.


The list is not quite complete, by shooting the three Boers, they also killed civilians and at least two of those executed were not Boers but were Dutch teachers (by the way Holland was host to the 1899 Hague conference...) who had only recently arrived in South Africa after President Paul Kruger went on a recruitment drive for teachers in Europe.

Morant and Handcock also attempted to kill some of their own men who could testify against them, Handcock killed Trooper Van Buuren of the BVC. Van Buuren pointed out Morant and Handcock as murderers. Read the depositions of the Australians who asked for these cases to be investigated in the first letter they wrote:

The letter outlines all the murders...

"Sir, many of us are Australians who have fought nearly throughout the war while others are Africanders who have also fought from Colenso till now. We cannot return home with the stigma of these crimes attached to our names. Therefore we humbly pray that a full and exhaustive inquiry be made by impartial Imperial officers in order that the truth may be elicited and justice be done. Also we beg that all witnesses be kept in camp at Pietersburg till the inquiry is finished. So deeply do we deplore the opprobrium which must be inseperably connected with these crimes that scarcely a man once his time is up can be prevailed to re-enlist in this corps. Trusting for the credit of thinking you will grant the inquiry we seek.
We are, sir.
Your obedient servants"

The Bushveldt Carbineers were disbanded after this and the Pietersburg Light Horse was formed in its place.

Their request was granted an inquiry was held, it led to the Courts Martial and the execution of Morant. Justice was done.

james unkles
02-12-2011, 02:27 AM
The Inquiry you celebrate was a botched attempt to satisfy the provisions of the Manual of Mil law. The process was tainted and according to Witton, denied the accused any form of natural justice. The denial to contact their relatives and the Aust government was a disgrace, a process in secrecy to prevent any assistance or interference from the Aust government. Perhaps the most celebrated aspect of the inquiry was StClair's review of the proceeding, namely his comnclusion that orders to shoot prisoners were issued by British officers including Captain Hunt and Taylor. Of course history tells us what happended, Taylor permitted to resign his commissions and not charged with multiople counts of murder as recommended by St Clair. So much for justice when Morant, Handcock and Witton were agressively prosecuted for the 'sins' of their superiors.

Again, I call for an inquiry to set the record straight and deliver justice after 109 years of controversy. I can understand the British government is embarassed by the St Clair review. An experienced officer and senior lawyer who did his duty and concluded that British officers issued illegal orders. Little did he realise that Lord Kitchener would not follow his recommendations and charge Taylor with muliple counts of murder. Its time the British government admitted to the errors in the trial and sentencing of these men and grant pardons that will acknowledge that the real culprits were British professional soldiers like Taylor, who devised tactics to defeat the guerilla war waged by Boers. One tactic was 'take no prisoners'.

Military history is fuill of instabnces where senior Command and even politicians dictate military actions that are illegal. When transgressions occur of course it is the junior officers, and NCOs who carry the burden for their actions in obedience to orders. A classic example was in Iraq and the events that occurred in Abu Grahib prison where no one above sergenat was prosecuted yet we know liability for the management of the prison and the torture that were illegal and breached US military and international law rested with very senior Pentagon officers and the Defence Sec, Rumsfeild, perhaps even higher. The 'scapegoats' label for Morant et al aptly describes how liability and accountability for ones actions is measured by power, rank and influence to escape culpability. Its time Boers who point the finger at Morant studied what the trial was really about, appeas the German government over the shooting of Heese and create favour with the Boers with whom a peace treaty was being negotiated. The real criminals were officers like Taylor and Kitchener who were architects of war fighting tactics including concentration camps, scorched earth policy and of course take no prisoners.

Regards

Jim Unkles



Regards

Justice
02-12-2011, 07:39 AM
The Inquiry you celebrate was a botched attempt to satisfy the provisions of the Manual of Mil law.

Dear James Unkles,

1. I don't celebrate the murder of innocent men and children by Morant, Handcock, Witton and Picton like you do.
2. In a murder case my bias is towards the victims not the perpetrators; I make no apology for that.
3. I do celebrate the fact that the Australians who fought with honour and dignity asked for an independent investigation into the murders of innocent civilians and children and that this call was heard. Justice was done. The stigma against Australians was lifted and James Unkles is trying to put it back at all cost. Claiming that murder is not illegal is dim-witted. If the troops knew it was wrong and protested then surely the officers being of normal intelligence would also…
4. James Unkles my learned colleague, by the way 1902 Law 101: The Manual of Military Law had no legal standing...


The process was tainted and according to Witton, denied the accused any form of natural justice.

Witton was convicted of cowardly murders.
He had good reason to lie.
British law requires the evidence of a suspect to be independently coroborated, has this been done? Could it even be done without access to the missing Court Martial transcripts?
Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated. How did Morant treat others...
One of the principles of natural justice is... Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.

Justice was done in Morant and Handcock's case.


The denial to contact their relatives and the Aust government was a disgrace, a process in secrecy to prevent any assistance or interference from the Aust government.

That is an unproven allegation by a convicted criminal.

There existed no, zero, zip obligation to consult the Australian Government!
The officers had signed their rights away, they could be treated like any British soldier.
Given your claims of expert knowledge on the subject it is surprising how little you know about the case, James Unkles.

Alleging it was a disgrace is just silly. Very poor form really.


Perhaps the most celebrated aspect of the inquiry was StClair's review of the proceeding, namely his comnclusion that orders to shoot prisoners were issued by British officers including Captain Hunt and Taylor.

The inquiry existed to prove a prima facie case and to draw up charges if applicable... this was done.

Charges were brought against the accused. At the Courts Martial, in most cases they did not deny the murders. Heese being the exeption...

No mention of superior orders is found in the final finding of the Courts Martial, they found the buck stopped with the British officer Morant. Handcock became the first Australian to be executed.

Taylor was a witness at the trial why did Thomas or Morant not grill him?

Morant and Handcock's lack of candor paved the way for Taylor to get off the hook.

Witton wrote that his conviction was "required" since Handcock withdrew his confession... which was still in play at the Inquiry. Connect the dots James Unkles... The confession no doubt made St Clair write what he did... since the confession no longer existed at the Courts Martial Handcock and Morant gave the sadistic Taylor his freedom.


Of course history tells us what happended, Taylor permitted to resign his commissions and not charged with multiople counts of murder as recommended by St Clair. So much for justice when Morant, Handcock and Witton were agressively prosecuted for the 'sins' of their superiors.

Again, I call for an inquiry to set the record straight and deliver justice after 109 years of controversy. I can understand the British government is embarassed by the St Clair review. An experienced officer and senior lawyer who did his duty and concluded that British officers issued illegal orders. Little did he realise that Lord Kitchener would not follow his recommendations and charge Taylor with muliple counts of murder. Its time the British government admitted to the errors in the trial and sentencing of these men and grant pardons that will acknowledge that the real culprits were British professional soldiers like Taylor, who devised tactics to defeat the guerilla war waged by Boers.

St Clair agreed with the final opinion of Pemberton and that became the final finding of the Court, that wipes everything that existed before that including the "findings at the Inquiry", unless St Clair stated so afterwards. He did not.

Morant et al set Taylor free, no prosecutor did.

The prosecutor wanted Taylor to be prosecuted last, no doubt he was waiting for Morant et al to incriminate Taylor as he sure as Hell was not going to do it himself, was he?

James Unkles could you show any deposition from Morant or the other officers that pointed to Taylor?

On what evidence do you suggest Taylor be found guilty? If you can't back this up then you have yet another weak argument.

If the orders came from Kitchener as you have also suggested then surely Taylor should be free from blame too.

If you feel Taylor is guilty in your view then what makes Morant et al so special?


Military history is fuill of instabnces where senior Command and even politicians dictate military actions that are illegal.

Does this mean that your view today is that the orders were "illegal"?

I am still trying to understand your view since you've indicated they are legal and illegal.:confused:


When transgressions occur of course it is the junior officers, and NCOs who carry the burden for their actions in obedience to orders.

That is why I support severe punishment for following illegal orders, it will help juniors to tell dumb or criminal senior officers to p!ss off!:)

In my own military career I have done so, it takes a bit of courage to do the right thing.


A classic example was in Iraq and the events that occurred in Abu Grahib prison where no one above sergenat was prosecuted yet we know liability for the management of the prison and the torture that were illegal and breached US military and international law rested with very senior Pentagon officers and the Defence Sec, Rumsfeild, perhaps even higher.

Yet another furphy by James Unkles.:evil:

Lieutenant Colonel Steven L. Jordan was prosecuted for what happened at Abu Ghraib prison:

http://en.wikipedia.org/wiki/Steven_L._Jordan

James Unkles you will be pleased to know that he escaped prosecution on the most serious charges using a legal technicality.

That gives conspiracy theorists like you their bread buttered on both sides. One the criminal goes free, two you can still blame the government.


The 'scapegoats' label for Morant et al aptly describes how liability and accountability for ones actions is measured by power, rank and influence to escape culpability.

The Courts Martial had the benefit of hearing the evidence and they found the buck stopped with Morant, then Handcock.

Didn't Morant say something to the effect of "we got them and shot them under rule 303!" :shock: It hardly seems to point to Kitchener...

I think the lesson is not to follow illegal orders, especially not from dead superiors.


Its time Boers who point the finger at Morant studied what the trial was really about, appeas the German government over the shooting of Heese and create favour with the Boers with whom a peace treaty was being negotiated.

So you are saying the murder of 12 people including children was not a good enough reason for the Courts Martial. :shock:

James Unkles, maybe you should start investigating the case. The Brits and the Afrikaners (The ancestors of the "Boers") understand it, you don't. The term "Boer" is only used to pick a fight with an Afrikaner.

The involvement of the German Government is yet another James Unkles furphy! :evil:

Heese was a British subject, the Germans did not even inquire into his well being.

No peace treaty was negotiated with the Boers in Feb 1902. Another James Unkles furphy! :evil:

The Brits could have done many other things to please the Boers, like stop murdering them in concentration camps, stop burning down farms, etc.

The Brits shooting an Englishman and an Australian for no reason would not have been high on the priority list of the Boers.

If those guys admitted killing Boers then the Boers probably felt justice was done, much like the honourable Australian soldiers did too.


The real criminals were officers like Taylor and Kitchener who were architects of war fighting tactics including concentration camps, scorched earth policy and of course take no prisoners.

James Unkles, since you expect so much from the prosecution I invite you to produce actual proof that would satisfy a Court and of course your own lofty expectations to prove that Taylor and Kitchener were "the real criminals".:lol:

Pointing to St Clair's outdated opinion is not good enough to convict Taylor and Kitchener. For the same reason it is not enough to set the other criminals free.

james unkles
02-15-2011, 07:33 AM
Hi all, I feel we are going around in circles and I am getting tired. I am content to wait on developments and will then will post a response, too much 'playing' the man and not remaining focused on the topic and its many mysteries.

Suggest some of you locate a copy of the 1898 Man of Mil Law. The reference above that questions its relevance is simply wrong. The MML embodies all military law and procedure (assented to by Parliament), laws for the employment of reserves and colonial volunteers, thr Army Act etc. Enjoy your writings and the topic and I hope to provide updates very soon.

Regards

Jim Unkles

Justice
02-16-2011, 03:57 AM
Hi all, I feel we are going around in circles and I am getting tired.
Suggest some of you locate a copy of the 1898 Man of Mil Law. The reference above that questions its relevance is simply wrong. The MML embodies all military law and procedure (assented to by Parliament), laws for the employment of reserves and colonial volunteers, thr Army Act etc.

Dear James Unkles,

I don't go in circles; I simply stick to the facts.

See footnote 1.

http://www.jstor.org/pss/1949854

It is extremely regrettable that you have chosen to avoid answering the questions posed above about your own recent and public comments.

It is also rather ironic that you have chosen to avoid answering questions given your aggressive public demands for answers from the British and others for the actions of previous governments more than a 100 years ago.;)

james unkles
02-16-2011, 05:19 AM
Thanks, but this debate is becoming repetative. I am not avoiding answering questions, but it is a lot of effort to go over the same ground. I have to be economical in focusing on achieving a review process that will answer questions of fact and evidence. A process independent of bias on all sides and of government agendas. I suppose what matters is answers from the British government and (respectfully) not from contributors to blogs and web sites.

More news eventually.

Regards

Justice
02-16-2011, 06:24 AM
I am not avoiding answering questions...

;)


I have to be economical...

;)


what matters is answers from the British government and (respectfully) not from contributors to blogs and web sites.

More news eventually.

:rolleyes::lol:

james unkles
02-16-2011, 08:16 AM
It is this sort of sarcasm and insult that ensures I will not be contributing to the site.

Regards

Rising Sun*
02-16-2011, 08:45 AM
It is this sort of sarcasm and insult that ensures I will not be contributing to the site.

Regards

That's up to you.

You volunteered to engage in this discussion.

You have been selective in the posts to which you choose to respond.

You would strengthen your case in favour of Morant etc if you argued that case against those who question aspects of the Morant case rather than getting in a huff and taking your bat and ball home when posts don't suit you.

james unkles
02-16-2011, 03:30 PM
I must be used to different standards of debate. Its not about posts that suit me or otherwise. I am not interested in those who 'play' the messenger. Of course I am interested in the issues and only the issues. I took this case for specific reasons. I have researched the case and its history and welcome debate as controversy is a cornerstone of the Morant saga. However, standards of review, debate, inquiry etc are not served by by personal attack and the inclusion of sad / happy faces etc. As I said, I need to economical with my time and will contribute with future updates rather than responding to blogs. You may care to listen to feedback rather than being recative and defensive to what I am trying to say.

Regards

Ronnyguitar
02-16-2011, 05:31 PM
James U. take it easy , ;)

I've read the discussion , never heard of this story before , sry, but i think i have some information on my personel database.i'll try to find it and post it this week.

Justice
02-17-2011, 04:09 AM
Suggest some of you locate a copy of the 1898 Man of Mil Law.

It seems James Unkles is the only person fortunate enough to have an 1898 copy of the Manual of Military Law.;)

The Third Edition was dated July, 1894.
The Fourth Edition was dated August, 1899.

It does beg the question of how well James Unkles knows either the historical facts of the case or the laws and practices of the time.

The details of the applicable Manual of Military Law is as follows:

Great Britain. War Office.
Manual of military law.
London : Printed for H.M.S.O. by Harrison and Sons.
1899, reprinted 1902
Military Justice
xxxv, 1024 p. : forms ; 20 cm.; CTRG97-B1436;
UK/89/78; [4th ed.]; War Office.
Fiche: 23,707-23,718

For an electronic copy of the Manual of Military Law have a look here: (I have not verified this particular copy and I suspect this is a later version from 1907):

http://www.archive.org/stream/manualofmilitary00greauoft/manualofmilitary00greauoft_djvu.txt

James Unkles I hope that you will continue to participate in this debate, please feel free to point out errors in my own reasoning (it does happen often as my other half points out regularly :)) and to provide facts that support your view.

Justice
02-18-2011, 05:14 AM
Here are some newspaper articles from the period. I would appreciate your thoughts on these.

The story of a returned Australian:

http://nla.gov.au/nla.news-article26565427

A letter by a returned Australian officer:

http://nla.gov.au/nla.news-article24846614

Justice
02-20-2011, 12:26 AM
Without detailed analysis, most writers on this subject draw assumptions and 'dress' them up as historical fact, often relying on issues that were portrayed in the film made in 1980.

....evidence that I uncovered in 2010 proving that orders to shoot prisoners were issued by two named British officers who were not held accountable for these orders. Detractors have always said that such orders did not exist, I have proven otherwise and the evidence corroborates what these men and their defence counsel said.

I look forward to your views

According to Major Thomas: the men were shot "under Morant's orders".

http://nla.gov.au/nla.news-article19135563

Justice
02-20-2011, 04:50 PM
Here is an example of true heroism by an Australian during the Boer War that earned him a deserved Victoria Cross:

http://www.dailytelegraph.com.au/honouring-the-bravest-of-brave-servicemen/story-fn6ccwsa-1226009064319

I have no doubt that soldiers on both sides would have agreed that this behaviour was worthy of recognition.

This brave behaviour is worlds appart from that by Morant and Handcock which the likes of James Unkles wants to cellebrate.

Justice
02-22-2011, 07:48 AM
The transcript of the public hearing by the House of Representatives Standing Committee on Petitions can be found here:

http://www.aph.gov.au/hansard/reps/commttee/R12891.pdf

Isn't James Unkles description of the Court of Inquiry fascinating?

He claims the Court of Inquiry was worse than the Courts Martial.... yet he prefers an untested note in an opinion, written by Colonel St Clair, following the Inquiry to the outcome of the Courts Martial, written by Colonel Pemperton and agreed to by St Clair, where evidence was subjected to scrutiny by cross examination. Does that make sense to anyone except James Unkles?:confused:

On James Unkles’ website he wrote that the Oct 2010 decision by Dr Liam Fox on behalf of the British Government “IS AN INSULT TO THE AUSTRALIAN HOUSE OF REPRESENTATIVES INQUIRY MARCH 2010”.

Yet the transcripts clearly state that it was NOT an “inquiry”. Can anyone point me to the “inquiry” if it existed or is it just not true? Another furphy?!:evil:

By the way, I agree with Dr Craig Wilcox that James has the facts wrong right up to the end of the public hearing. It was in fact Lord Roberts who ordered the “scorched earth policy” and the concentration camps not Lord Kitchener.

Lord Kitchener is simply a “scapegoat of the conspiracy theorists”.:)

Rising Sun*
02-22-2011, 09:15 AM
Justice

I think you've double posted with your last two posts, although they're not identical.

If so, would you like to delete the less preferred one?

Justice
02-22-2011, 04:48 PM
Justice

I think you've double posted with your last two posts, although they're not identical.

If so, would you like to delete the less preferred one?

Hi Rising Sun*,

Thank you, please delete the first of the two?

I am very happy that someone is reading these:D

Rising Sun*
02-22-2011, 05:57 PM
Hi Rising Sun*,

Thank you, please delete the first of the two?



Done.

You can delete, or edit, posts yourself by clicking on 'Edit post' in the bar under the post and then selecting the delete option.

Justice
02-28-2011, 05:21 PM
Here is a link to an article by Australian historian Dr Craig Wilcox:

http://news.ninemsn.com.au/national/97208/breaker-morant-was-no-digger-hero

Justice
03-02-2011, 11:22 PM
Sometimes comedians just hit the nail on the head…

Have a look at this:

http://www.youtube.com/watch?v=SUOSMufWCsM

JR*
03-14-2016, 09:17 AM
Courts martial these days tend to be pretty well regulated by law. In my own jurisdiction, this involves the association of the Court Martial (a standing, if not often used court) with the civil High Court, governed ultimately by our written Constitution. This was certainly not the case around 1900, when the legal basis for the actions of a court martial was, in most jurisdictions, somewhat unclear as to legal basis and even purpose. Even in, say, the British military jurisdiction, parameters were unclear, practice and procedure and rules of evidence (to say the least) malleable, and mandatory legal qualification for any member of such a court non-existent without even the requirement that the court should have a legal adviser as "amicus curiae".

An example in some contrast with the Morant case, but from the same period, was the court martial procedure put in place in the immediate aftermath of the Easter 1916 Irish Rebellion. This handed out death sentences like snuff at a wake; only 16 of the condemned were actually executed as British politicians realized what a public relations disaster the shootings could develop into in Ireland.

Now, don't get me wrong. One point arguably at least in common with the Morant case was that these guys were (as Mel Brooks put it in "The Producers") "incredibly guilty". Almost all pleaded "not guilty", but made no substantive defense against the various rebellion/insurrection/treason etc. related charges put to them (the dense, second-rate British officers trying them showed little or no understanding that most of the accused here "went out" expecting to be killed, and actually wanting to be martyred). Also, the use of court martial procedure in order to enforce martial law over a community (not just over members of the British military) was generally accepted at the time. Even allowing for all this, however, one would have imagined that, where "not guilty" pleas had been entered, some obligation lay on the court to adduce some proof of guilt. Er ...

Most of the hearings were conducted within a very short period. Legal expertise among members of the court was entirely lacking. The standard of evidence introduced in most cases ranged from ridiculous to non-existent. The one that amused me was that in which the only evidence adduced was testimony from an officer of the Dublin Metropolitan Police (DMP) that the particular subject had spent about a year hanging around public houses (sometimes spending a long time) during which he associated with (unidentified) "Sinn Féiners". Could surely have done better - the accused in this case was an officer of the Irish Republican Brotherhood (IRB) and a prominent advocate for armed rising.

On the basis of this kangaroo court proceeding, 16 men were actually executed. One of these - Willie, brother of Patrick Pearse, a person of no influence in the conspiracy - pleaded guilty, and stated in his defence that he had only acted as aide-de-camp to his brother. This seems only to have persuaded the court, on the "witch in ducking stool" principle, that he was guilty of the high offences of which he was charged. He was shot, along with the others, in reality, for no better reason than being named "Pearse".

What point am I making here ? Well, there is the "flexibility" of the whole procedure, its summary quality, the severe consequences for the accused, and the complete absence of any respect for the principles of natural justice. There is the additional point that these proceedings were subject to the tacit approval of politicians in London, who received prejudicial reports on the accused from the Army in advance. In the Morant case, more attention seems to have been given at least to the appearance of proper procedure, but the outcome still seems to have been determined by obscure political determination. I would ask - where a "system of justice" is so polluted by inconsistency and partiality, is the question of whether somebody should be "pardoned" at this stage, well, realistic or appropriate. My personal view is that Morant, like the 1916 leaders, "incredibly guilty". In a way, the gross inadequacies of the procedure that ended in his execution assists people now in taking an unjustifiably lenient view of his actions. But courts martial of this period were of their time. Their verdicts might range from "morally correct" all the way over to quasi-judicial murder. Either way, arguing about "pardon" now seems like dancing on the head of a lawyer's quibble ... Yours from the Stonebreaker's Yard, JR.

Rising Sun*
03-16-2016, 09:47 AM
Courts martial these days tend to be pretty well regulated by law.

Not in Dublin in 1916.

First, one can dispute on legal and or constitutional grounds the British declaration of 'martial law' in response to the rebellion.

Second, courts martial are, by definition, courts which try offences by members of their own armed forces.

Third, and following from the second point, one can dispute the power of British courts martial in Ireland to judge Irish insurgents and sentence them to death, or anything else.

Fourth, the "courts" which "tried" Pearse et al clearly were not courts martial but "courts" contrived by the occupying power to exercise summary jurisdiction for the sole purpose of suppressing future rebellions and to advance the interests of the British government which wished to continue domination of Ireland. These "courts" had, perversely, more in common with the unregulated viciousness of the Catholic Inquisitions, the best known being the Spanish Inquisitons, than anything enshrined in the supposed virtues of "British justice".

Fifth, the first to fourth points stand in marked contrast to, say, the comparatively generous treatment at the same time by Britain of captured Germans on the other side of the British Isles in a much more violent and nasty war: e.g. the Irish rebels didn't use mustard gas, unlike the British and Germans. If the Irish rebels were enemies of Britain, they should have been treated at least as well as German prisoners of war. They weren't, and Britain was and is shamed by its brutal treatment since Cromwell of the Irish which it had to that point always regarded as an inferior people worthy, at best, of rampant exploitation, starvation and violent oppression and semi-extermination.

There can be no better, or worse, example of the summary "justice" meted out by the British courts martial than the squalid execution of James Connolly, who was so severely wounded that doctors said he would die within a day or two but whom the British, ever concerned with their noble traditions of blind justice and the shining rule of British law, dragged from his hospital bed to put him upon a stretcher so that he could be strapped into a chair and shot by a heroic British firing squad before he succumbed to his mortal wounds and deprived Britain of its enduring glory in executing a dying man is circumstances which demonstrated how little regard Britain really had for decent conduct where the Irish were concerned.



But courts martial of this period were of their time. Their verdicts might range from "morally correct" all the way over to quasi-judicial murder. .

I agree, but so far as the purported "courts martial" following the Easter Rebellion are concerned, I disagree for the reasons outlined above, and other reasons.

Be all that as it may, the unintended result of Britain's ruthless and lawless execution of the Easter rebels was that Britain managed to convert a cause which probably had minority support in Ireland (i.e. the part down south not controlled by the remnants of Cromwell's suppression several centuries before and subsequent efforts in the same line such as transportation to the Australian colonies for often quite minor offences) into a wider and renewed opposition to British rule.

Congratulations, Britain, on another spectacularly damaging "own goal".

JR*
03-16-2016, 12:02 PM
RS* - not totally clear that we are in much disagreement. The point I was trying to make (not very effectively) is that around the turn to the 19th/20th century, courts martial could be pretty "flexible" in what they did, and for what. I do not have any great problem, myself, with the "outcome" of the 1916 trials; like the Morant case. the outcomes were "incredibly" obvious. In fact, given the circumstances, there was sufficient basis for executing many more. That this did not happen was down to political considerations. The executions that were effected were, however, enough to precipitate a political disaster for the British. Again, a political failing. Best regards, JR.

Rising Sun*
03-17-2016, 07:57 AM
RS* - not totally clear that we are in much disagreement. The point I was trying to make (not very effectively) is that around the turn to the 19th/20th century, courts martial could be pretty "flexible" in what they did, and for what.

We're agreed on that.

I was pursuing the point, perhaps not with sufficient clarity that, as often has been observed tritely, courts martial are to law as martial music is to music.

The post-9/11 Military Commissions set up by the US to give the illusion of justice to the persecution of perceived enemies, generally of about private level in conventional military ranks, demonstrate that the same "flexibility" endured into the 21st century.

Oddly enough, the military commissions threw up a USMC lawyer who resolutely pursued the finest traditions of defence counsel http://newtownreviewofbooks.com.au/2015/01/06/michael-mori-company-cowards-bush-howard-injustice-guantanamo-reviewed-kathy-gollan/ in the face of oppressive pressure from above in his military system http://www.cla.asn.au/News/major-mori-fights-for-his/. He is an ornament to the legal profession and happens now to practise in my country in pursuing civil justice with equal vigor. https://www.shine.com.au/meet-the-team/lawyers/dan-mori/


I do not have any great problem, myself, with the "outcome" of the 1916 trials; like the Morant case. the outcomes were "incredibly" obvious. In fact, given the circumstances, there was sufficient basis for executing many more.

Here, we can agree to disagree.

My objections are based on the selectivity of the prosecutions in the context of the times.


That this did not happen was down to political considerations.

And that is the heart of the matter, because they were not disinterested prosecutions according to law but little more than political show trials, in the same way that the US Military Commissions post-9/11 were a political corruption by the executive to bypass the national legal system which would not have tolerated the abuses and denials of rights of the accused by the military at the direction of the executive.