LAW AND THEATER
“BREAKER MORANT” PART II (TRIAL IRREGULARITIES)
This is the second in what has turned out to be my three-part analysis of Kenneth G. Ross’ play “Breaker Morant.” In Part I, I outlined the historical background of the trial and execution of Harry “Breaker” Morant and Peter Handcock during the Second Boer War. It has taken me a little longer to finish my analysis of “Breaker Morant” than I first anticipated. There are three reasons for this. First, the fallout from the grand Labor Day weekend move has taken a little longer to sort out than I anticipated. Second, it’s been a little busier than usual at the law firm, and since that’s the paying gig, it takes priority. And third, there is a lot to discuss in this play. The more I read it, the more stuff I found, and the more research I had to do.
As such, I am going to break up the analysis into a couple of sections. This post will focus on the irregularities in the trial. Part III will focus on the international treaties dealing with the treatment of prisoners of war and my final review of the play.
This analysis has been a bit of a challenge for me, for a number of reasons. First, it deals with matters of military law, which is beyond my experience. Second, it deals with foreign military law, which is even further beyond my experience. Finally, it deals with foreign military law from over a century ago, which just adds to the fun.
I am very indebted, therefore, to James Unkles and his web site, Breaker Morant: Justice Denied. He has much more experience than I do with these kinds of issues, and has done a great deal of research on the Morant case. His web site is a treasure trove of information. You really should check it out.
Synopsis of the Play (*Spoilers Alert*)
The play focuses on the trials of Morant, Handcock and Witton. They have been charged with three separate offenses: (1) the execution of a Boer prisoner named Visser, for allegedly wearing British khaki (allegedly in accordance with orders from Lord Kitchener’s headquarters); (2) the execution of 8 unnamed Boer prisoners (allegedly in accordance with orders given by Capt. Hunt and Capt. Taylor); and (3) the murder of Reverend Hesse, a German national, by Lieutenants Morant and Handcock. It begins with the first meeting of the defendants with Major Thomas, their counsel, the day before the first court martial begins. In the play, Maj. Thomas is described as relatively young and inexperienced, with a “fresh boyish face, preferably not older than thirty.” In the real case, Maj. Thomas was in his early forties at the time of the trials.
Over the course of the play, Maj. Thomas becomes convinced that his clients are innocent, and he does everything he can think of to gain their acquittal. Unfortunately, Lord Kitchener and his aide, Col. Hamilton, have already decided that this case must end in convictions. Morant, Handcock, and Witton are caught up in the great game of politics, and must be sacrificed. The play ends with Maj. Thomas reading Morant’s last poem aloud while Morant and Handcock are led to the firing squad, and with Morant’s defiant last words: “Shoot straight, you bastards, and don’t make a mess of it!”
From a legal standpoint, the play raises a number of issues. There are a number of irregularities in the proceedings of the three courts martial. In addition, there is one big question underlying the entire play: How can the “Rules of War” apply to a guerilla war such as the Boer War?
There are a number of irregularities in the way these trials are handled in the play (and in the real trial, as well). Under normal circumstances, any one of these might have been grounds for a successful appeal. As it so happens, the circumstances surrounding the trial of the Bushveldt Carbineers were anything but normal. Here are some of the irregularities I found in my reading of the play:
Prisoners Held In Isolation
First and foremost, the three prisoners in the play were held in isolation for approximately three months before the trial begins. They were denied contact with legal counsel until the day before the first court martial began. They were not allowed to see a chaplain. They were not allowed to write to their families back in Australia. They were not allowed to contact the Australian government. As I understand the historical case, the first news that anyone in Australia had that there was any trouble with the Bushveldt Carbineers was when news of Morant’s and Handcock’s execution was released to the public.
The fact that the defendants were denied access to legal counsel until the day before the court martial began is particularly troubling. As Commander Unkles points out, had Maj. Thomas been given adequate time to develop his defense, the outcome might have been different. At the very least, it would lessen the appearance that this whole thing was a kangaroo court (pardon the expression).
Unavailability Of Key Witnesses
Compounding the Defense’s difficulties, during the three months that Morant and his fellows were held incommunicado, several key witnesses were transferred out of the country. Several returned to England, and one, Colonel Hall, was sent to India. In addition, Lord Kitchener makes himself unavailable to testify, or to hear Maj. Thomas’ last appeal for clemency.
All of this adds to the audience’s impression that the trial is a sham. The British authorities, up to and including Lord Kitchener, the senior British commander in South Africa, have conspired to hamstring the defense from the outset, for political reasons. Morant and Thomas discuss this at one point early in the play:
Lt. Morant: Look, Major! We were never meant to be a conventional fighting corps. We lived off the land, we fought the Boers as they had been fighting us, we asked no quarter and we gave none. Those were our orders. Now this whole thing has become political.
Maj. Thomas: Perhaps.
Lt. Morant: I might have spent the last sixteen years in the Australian bush, but that doesn’t mean I can’t smell politics when it’s farting in my face.
Outcomes Of Courts Martial Withheld
The three defendants were tried in three separate courts martial, for three separate crimes: (1) the execution of Visser; (2) the execution of the 8 unnamed Boer prisoners; and (3) Morant and Handcock were charged with the murder of Rev. Hesse. Morant and Handcock are acquitted of murdering Rev. Hesse, after Handcock eventually admits that at the time of the shooting he was (ahem) “visiting” two local women.
The three men are convicted of the other two charges. Although the exact timing of events in the play is a little unclear, it appears that the prisoners are not notified of the verdicts in the first two courts martial until only a couple of days before the executions of Morant and Handcock are scheduled to take place. This makes it functionally impossible for Maj. Thomas to make a timely appeal, either to the Australian authorities or to the Crown. In addition, Lord Kitchener takes this opportunity to leave his headquarters on his personal train. Maj. Thomas is unable to make a last minute plea for clemency. Ian Hamilton, Kitchener’s Chief of Staff, tells Thomas to forget about the whole affair:
Maj. Thomas: Well, you’ve won, haven’t you?
Col. Hamilton: Oh, I wouldn’t look at it like that. You’ve been working too hard these past months. You’re going back to Australia, in case you didn’t know. Why, in six months you will have forgotten this whole business.
Maj. Thomas: You hope.
Col. Hamilton: Oh, you will. One year, two maybe – you see the thing’s too messy to make good dinner conversation.
One gets the impression that Kitchener, and by extension the British government back in London, wants to clean up this whole affair as quickly as possible, regardless of the consequences for the men involved. Morant and Handcock are sacrificed for political expediency. Everything is done to speed the process along, at the expense of actually administering justice.
One final irregularity deals with the concept of condonation. This is not something that I’m familiar with, so once again, I turn to Commander Unkles’ site. As I understand it, a soldier faced with court martial is relieved of all duties. He or she is not expected to perform any military activities. If, notwithstanding this, he or she does answer a call to arms, while still awaiting court martial, this is grounds for a pardon. This was a recognized part of British military justice at the time of the Boer War.
On January 22 and 23, 1902, Boer commandoes attacked Pietersburg. During these attacks, Morant, Handcock, and Witton were released from their cells, given rifles, and participated in the defense of the fort. After the attacks were driven off, the three men surrendered their weapons and returned to their cells. A few days later, on January 31, 1902, as the men were being transported by train, the men were again ordered to stand to and given rifles, as there was a report of Boers on the railroad tracks ahead. There was no fighting in this second incident, and again the men surrendered their weapons.
According to Commander Unkles, these actions should have been grounds for pardon for the three men. In the historical case, Maj. Thomas didn’t raise the issue of condonation. In the play, he tries, but the tactic is almost immediately shot down by the President of the court:
Maj. Thomas: Were you not, along with Lieutenants Handcock and Witton, called upon to help defend this Garrison last night? You, yourself, being placed in charge of a wing… the way you acted last night was superb….
President: The matter you are putting to the Court has no bearing on the charges of the defendants.
Maj. Thomas: But I believe….
President: Major Thomas, we all had a trying night last night….
Lt. Witton: Some more than others….
President: The defendants were called upon to do their duty, no more.
Maj. Thomas: But Mr. President, I believe the characters of the defendants are very much on trial here. The Duke of Wellington stated “the performance of a duty of honor and trust after knowledge of a military offense ought to convey a pardon.” Surely….
President: What has a statement by the Duke of Wellington to do with the law – I will tolerate no further mention of last night’s events in this Court.
Maj. Thomas: Do you mean to say….
Lt. Morant: Forget it, Major, you’re wasting your time.
An audience unfamiliar with British military justice at the time of the Boer War might simply gloss over this exchange. But the President’s comment is telling.
What does a statement by the Duke of Wellington have to do with the law? In this case, quite a lot.
The process making a plea in bar on the grounds of condonation was spelled out in the 1899 Manual of Military Law. In short, the actions of Morant, Handcock, and Witton in defending Pietersburg during the action of 23 January 1902 should have been taken into consideration. Instead, in its rush to dispense with the Bushveldt Carbineers affair, the Court ignores any mitigating factors.
Tune in next week (I promise!) for the thrilling conclusion to my analysis of “Breaker Morant.” We will be focusing on the rules of warfare governing the treatment of prisoners of war, and whether Morant was justified in ordering the executions of Boer prisoners.