Court martial of Breaker Morant

The court-martial of six officers of the Bushveldt Carbineers (BVC), an irregular British force in the Boer War, was based on charges asserting that, between July and September 1901, a Lieutenant Harry Morant had incited the co-accused, Lts Handcock, Witton and others under his command to murder some twenty people, including the Boer commando Visser, a group of eight Boer POWs, Boer civilian adults and children, and the German missionary Heese.

The three main accused were Lieutenants Harry "Breaker" Morant, Peter Handcock and George Witton. Other officers charged were Major Robert Lenehan, Captain Alfred Taylor and Lieutenant Henry Picton.

Morant and Handcock were acquitted of killing Heese, but were sentenced to death on the other two charges and executed within 18 hours of sentencing. Their death warrants were personally signed by Lord Kitchener.

Overview of the charges and the trial
The court martial began at Pietersburg, where two main hearings were held in several stages in relatively relaxed conditions. It began on 16 January 1902; one hearing concerned the shooting of a Boer prisoner named Visser; and the other concerned the so-called the "Eight Boers" case, in which it was alleged that Boer POWs had been summarily shot.

Morant's involvement in the deaths of Visser and the eight Boer POWs has never been in dispute, since he openly declared during the trial that he had ordered them to be summarily executed. But throughout the proceedings (and the previous Enquiry) he staunchly maintained that he had done so because of Captain Percy Hunt's reported standing order to take no prisoners, and because of the provocation occasioned by the killing and post-mortem mutilation of Hunt, his closest friend. He also insisted that he had been certain that those he executed had been members of the party that had killed Hunt and defiled his body and Witton's report make it clear that Morant considered the deaths as just reprisals.

The validity of the court-martial remains the pivotal issue in the Morant case, but the disappearance (or suppression) of the original trial records has prevented a full investigation of this matter for over a century. In their absence, historians have been forced to rely primarily on Witton's memoir, which is very detailed, but must necessarily be considered as a biased view of the case since Witton himself was one of those on trial.

If one accepts Witton's account, it indicates that there are reasonable grounds to question the court's procedural correctness, and to question both the validity of the evidence tendered and the judgments based thereon. Not surprisingly, Witton bitterly denounces the courts martial as "the greatest farces ever enacted outside a theatre ... held purely to conform to the rules of military law".

The earlier stages of the trial were, as noted above, comparatively relaxed affairs by military standards. The accused were not kept under close arrest and were often allowed to move about the fort and the town; on one occasion Witton was even escorted to a cricket match — much to the surprise of the court president, who was also in attendance. Unknown to Witton, the judge had that very day secretly sentenced him to death by firing squad.

But immediately after the hearing of the Visser case, the prosecutor was mysteriously recalled to England and replaced, as were two of the judging panel. In both the Visser and "Eight Boers" matters, none of the accused were informed of either the verdicts or the sentences until well after the trial. There was apparently no attempt to conduct any form of forensic examination of the bodies of the alleged victims, and all the so-called evidence about the killings was verbal testimony, collected long after the events. The vast bulk of this testimony was uncorroborated or hearsay evidence obtained during the preceding Court of Enquiry, much of it apparently gathered from disaffected former Carbineers who, if Witton is to be believed, harboured considerable animosity towards Morant and Handcock.

The last phase, the hearing of the Heese matter, was a stark contrast to the relatively relaxed atmosphere of the earlier phases. Suddenly and without warning, just after the conclusion of the "Eight Boers" matter the accused were placed under close arrest, put in irons, removed from Pietersburg and taken under heavy guard to Pretoria. This final phase was also conducted in camera, whereas (says Witton) the earlier parts of the trial in Pietersburg had been open to the public.

Visser case
The first case was that of the shooting of the Boer commando, Visser, who was captured after the death of Capt. Hunt and executed on Morant's orders for allegedly being in possession of items of Hunt's uniform.

The accused entered pleas of 'Not guilty'. Prosecution witnesses were then called and they testified about the deaths of Hunt and Visser. Under cross-examination, several testified that Hunt had given them orders to take no prisoners and had reprimanded them for bringing them in.

Morant then testified that they fought "regular guerilla warfare" and that Hunt acted on orders "from Pretoria" to take no prisoners while clearing the district of the Boer commandos. Hunt, he said, told him that military secretary Colonel Hamilton had given him the orders "at Lord Kitchener's private house" and that all the detachment knew the order. After Hunt's death he had assumed command, and had decided to carry out the orders, and believed them to be lawful, even though he had previously disregarded them. He testified that he shot no prisoner before Visser and that the facts of the case had been reported to Captain Taylor and Colonel Hall.

When asked by the President whether his court had been constituted like the court-martial, and whether he had observed certain of the King's Regulations, Morant responded defiantly. His reply, as recorded by Witton, is legendary:

"Was it like this?" fiercely answered Morant. "No; it was not quite so handsome. As to rules and regulations, we had no Red Book, and knew nothing about them. We were out fighting the Boers, not sitting comfortably behind barb-wire entanglements; we got them and shot them under Rule 303," referring to the .303 calibre Lee-Enfield rifles the Carbineers carried.

Morant made "a plucky defence", openly admitting the charges and taking all responsibility on himself, pleading "custom of war and orders from headquarters". But his temper appears to have got the better of him and Witton says Morant made "disclosures which he believed would in all probability 'stagger humanity'". He vowed to have Kitchener put in the witness box and cross-examined about the no-prisoners policy. Witton's remarks about his friend's boast are striking:

"The folly of this was apparent to everyone, as Lord Kitchener held Morant's life in his hands; but Morant would not be restrained, and was prepared to suffer."

Witton describes in detail how defense counsel Major James Francis Thomas argued that the accused were being wrongly tried as accessories before the fact without the principals in the alleged crime — the troopers who shot Visser — being first found, tried and convicted, as required by common law, but the court rejected this argument.

The President made his summing up and the case was adjourned while the court considered the verdict. No announcement was made about any verdict or sentence at the time, and Witton says that some three years later he discovered that he had secretly been found guilty of manslaughter and cashiered.

"Eight Boers" case
The trial recommenced on 31 January 1902 with the cases of the eight Boers allegedly shot after surrendering. No hint had been given to the men about the guilty verdict in the Visser case. The case had barely commenced before the prosecutor, Captain Burns-Begg, and two of the court members, Maj. Ousley DSO and Captain Marshall, were replaced by other officers: Major Bolton took over as prosecutor and Captains Matcham and Brown took the place of Ousley and Marshall. Witton acknowledged in his account that he had shot a Boer who had tried to grab Witton's carbine.

They were also charged with the murder of Trooper Van Beuren, a Boer member of the Carbineers suspected of being a spy, whom Handcock stated had been killed by Boers while they were out on patrol.

Heese case
The final charge concerned the alleged murder of the German missionary, Reverend (Predikant) Heese, who had witnessed the massacre of the eight Boers the day before. Heese and a young black boy with him were both shot dead, leaving no witnesses to the previous day's event.

After the conclusion of the "Eight Boers" hearing, the prisoners were placed in irons, taken to Pretoria by rail under heavy guard and tried on the third main count. It opened on 17 February, with the prosecution alleging that Heese had been shot by or at the behest of Morant after leaving Fort Edward — even though there were no eyewitnesses to the killing and no hard evidence to link Morant to Heese's death.

The entire case was based on the testimony of one trooper, and there is good reason to suspect that Heese may in fact have been killed by a Boer sniper, since he was shot once, from the front, apparently while driving his wagon. Witton reports that it was several days before rumours of Heese's death reached Fort Edward and that it was a further two days before Heese's body was located by a trooper sent to search for it — on Morant's own orders.

Morant's supposed motivation for murdering Heese was that he feared Heese was going to report the killing of Boer prisoners he had just witnessed, or because Morant suspected him of being a spy. In hindsight, it is equally likely that Heese may have been killed by Boers who suspected him of being a British spy.

It was also alleged that, in two separate incidents, Carbineer soldiers had opened fire on Boer civilians, killing several people including three children and a teenage boy.

"Take no prisoners" order
Major Thomas argued that the killings of Boer commandos were justified because the men were part of an irregular unit which was carrying out the direct orders of a superior officer — i.e. Lord Kitchener's order to "take no prisoners". If Thomas had been able to prove this, the men might well have been exonerated, since it would be almost fifty years before the Nuremberg Trials established the precedent that following orders was not a defence in such cases. But for a commander of Kitchener's lofty position to take the blame for the actions of a few supposed renegade Australians made such an outcome unthinkable for the British. Not surprisingly, Kitchener (through Lt. Col. Hamilton) categorically denied giving any such order, and also denied the existence of a coded telegram from him to Lord Roberts.

But according to Nick Bleszynski, the order was common knowledge among the Bushveldt Carbineers and other regiments well before Morant's arrival at Fort Edward in mid-1901 and it was widely known among the troops that other units of British forces in South Africa had shot Boer prisoners, for example the Canadian Scouts avenging the death of Major "Gat" Howard.

Thomas tried valiantly to mount a solid defence for his clients, but the recent research by Bleszynski and others has also uncovered evidence that the British withheld crucial evidence about the "no prisoners" order, that they transferred important Army witnesses including Hall out of the country before they could testify, and that the court martial procedures were seriously flawed. Eminent Australian-born jurist Geoffrey Robertson QC recently described the trial as "... a particularly pernicious example of using legal proceedings against lower ranks as a means of covering up the guilt of senior officers and of Kitchener himself, who gave or approved their unlawful 'shoot to kill' order".

The claimed order to take no prisoners however is not the same as orders to shoot prisoners captured wearing British uniforms, which was within the rules of war (see Perfidy).

Attack on Pietersburg
While the trial was underway, Boer commandos launched a surprise attack on Pietersburg. Morant and his co-accused were released from their cells and given arms in order to participate in the defence. It is reported that they fought bravely, in the direct line of fire, and assisted in the defeat of the attackers. Although Major Thomas filed a "plea of condonation", which should have earned them clemency because of their roles in the defence, his request was dismissed by the court.

The principle of condonation in military law is traced back to the "Memorandum on Corporal Punishment" issued by the Duke of Wellington on 4 March 1832:
 * "The performance of a duty of honour or of trust, after the knowledge of an offence committed by a soldier, ought to convey a pardon for the offence.

According to Clode's ''Military Forces of the Crown (1869):
 * "The principle of condonation for criminal offences is peculiar to the Military Code, and is of comparatively modern origin [viz., The Duke of Wellington's Memorandum]. Sir Walter Raleigh served the Crown under a special Commission, giving him Supreme Command, with the power of life and death over others, but he was afterwards executed upon his former conviction — the doctrine then laid down being "that the King might use the service of any of his subjects in what employment he pleased, and it should not be any dispensation for former offences". The rule is not so now, as applied to Military offences. "The performance of a duty of honour or of trust, after the knowledge of an offence committed, ought," said the late Duke of Wellington, "to convey a pardon for the offence"...

Conviction and sentencing
Morant and Handcock were sentenced to death, and executed by firing squad less than 18 hours later; Witton was also sentenced to death, but this was commuted to life in prison by Kitchener (he was released by the British House of Commons on 11 August 1904 and died in 1942); Picton was cashiered, and Lenehan was reprimanded and discharged. All charges against the British intelligence officer, Captain Taylor (died 1941) were dismissed however.

Aftermath
The Australian public found out about the case in 1907 when Witton returned to Australia and published his story, Scapegoats of the Empire. The Australian government felt so strongly about this case that it insisted that none of its troops would be tried by the British military during World War I. The official court records have never been found, prompting accusations of a British cover up.

Popular culture
Bruce Beresford, Director Breaker Morant (film), 1980.