I apologize for the lack of new posts recently. The Neophyte Lawyer has been off the grid for a little while. As I used to tell my students, “Sometimes the ‘Real World’ gets in the way.” I’ve had to spend some time at the paying gig of actually practicing law (and I’ll discuss recent developments there in upcoming posts). I’ve also had to deal with the deluge of spam comments on the blog (I deleted approximately 250 this morning). If anyone has any tips for reducing spam, I’d be greatly appreciative.


I also came across some real comments to a couple of posts in the “Law and Theater” section that needed responses. To those who made comments (Melissa and Bob), I apologize for the delay in getting back to you.


Anyway, I wanted to wish all of you a Happy New Year, and let you know that new posts are on the way. There have been some major changes in the Utah Rules of Civil Procedure that merit at least one post. I’ve been working on settling my first cases, which has been exciting (and educational). And I owe folks the analysis of “Savages,” as well as the other plays that are on my to-do list. Rest assured, there will be more posts as we enter 2012!


The Neophyte Lawyer

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The next project for my “Law and Theater” discussion is Anne Nelson’s 2007 play “Savages” (not to be confused with Christopher Hampton’s play of the same name). In a sense, this is a continuation of my previous discussion of “Breaker Morant” by Kenneth G. Ross (found here, here, and here, for those who might have missed it the first time around). Both of these plays deal with the same themes (the treatment of prisoners during a guerilla war), both are set at approximately the same time (early 1902), and both are based on historical events. “Savages” is set during the Philippine-American War, and deals with the actions of USMC Major Littleton Waller Tazewell Waller on the island of Samar.


As always with the “Law and Theater” series, this entry will outline the basic historical facts of the case. Next week, I will review the play itself and discuss the various legal issues it raises.


The Philippine-American War (1899-1902)


In the aftermath of the Spanish-American War of 1898, the United States annexed the Philippine Islands from Spain. In return, the United States paid Spain $20 million.


Many Filipinos were less than thrilled with this transaction, however. In 1896, Filipinos, led by Andrés Bonifacio and Emilio Aguinaldo, began a revolution against the Spanish authorities. Aguinaldo eventually became the supreme leader of this movement. Afer the Battle of Manila Bay, Aguinaldo’s forces assisted Admiral George Dewey and General Wesley Merritt against the Spanish. On January 1, 1899, Aguinaldo was named President of what was later known as the First Philippine Republic.


On December 21, 1898, President William McKinley issued the Proclamation of Benevolent Assimilation, announcing the annexation of the Philippines. This proclamation was released by U.S. authorities in the Philippines on January 4, 1899. The next day, Aguinaldo issued two statements denouncing the annexation. On the evening of February 4, 1899, the first shots in the Battle of Manila were fired, thus igniting the conflict.


The Balangiga Massacre (September 28, 1901)


By 1901, the war had evolved into a guerilla conflict. On August 11, 1901, a company of the U.S. 9th Infantry Regiment arrived in Balangiga, the third largest town on the southern coast of Samar. The soldiers were to close the port and prevent its use by Filipino forces on Samar. Initially, relations between the soldiers and the villagers were cordial. But by late September, tensions were on the rise.


Early on the morning of September 28, 1901, approximately 500 villagers attacked the garrison. They took the soldiers almost completely by surprise. In the ensuing battle, 36 soldiers were killed, another 22 were wounded, 4 were missing in action. 8 others later dies of their wounds. Only 4 men of Company C were unwounded. The Filipinos lost 28 killed and 22 wounded in the action.


Newspapers in the United States quickly dubbed this the “Balangiga Massacre,” and made comparisons with Custer’s Last Stand. The military governor of the Philippines, Major General Adna R. Chaffee, was given orders to immediately pacify Samar. Chaffee, in turn, passed the duty on to Brigadier General Jacob H. Smith. According to his entry on Wikipedia (the Internet’s only true source of information….), General Smith had the following exchange with Major Waller:


General Smith:            I want no prisoners. I wish you to kill and burn, the more you kill and burn the better it will please me. I want all persons killed who are capable of bearing arms in actual hostilities against the United States.

Major Waller:              I would like to know the limit of age to respect, sir?

General Smith:                        Ten years.”

Major Waller:              Persons of ten years and older are those designated as being capable of bearing arms?

General Smith:                        Yes.


Major Littleton Waller


Littleton Waller Tazewell Waller in 1905, after his promotion to Colonel. From Wikipedia

Major Waller joined the Marines as a Second Lieutenant in 1880. He had seen sea duty with the European Squadron aboard the U.S.S. Lancaster, and had participated in a landing operation during the British naval bombardment of Alexandria in 1882.


During the Spanish-American War, her served as the commander of the Marine detachment on board the U.S.S. Indiana, and was present during the naval Battle of Santiago. After the battle was over, Captain Waller was ordered to launch the Indiana’s whaleboats and rescue as many Spanish sailors as possible. For his actions, Waller was later awarded the Specially Meritorious Service Medal.


In 1900, Waller, now promoted to Major, was ordered to China to take part in the multinational effort to relieve Peking during the Boxer Rebellion. Waller and his marines saw action at Tientsin and Peking. For his actions in China, he received a brevet promotion to Lieutenant Colonel (and later received the Marine Corps Brevet Medal when it was created in 1921).


The Samar Campaign


Major Waller and a Marine battalion of 315 men arrived on Samar on October 22, 1901. After some success pacifying the southern part of the island, General Smith ordered Waller to scout a potential telegraph line from the east to west coasts of the island. This route led through uninhabited jungle. On December 28, 1901, Waller set out with 60 Marines, 2 Filipino scouts, and 33 Filipino porters. Facing terrible conditions and poor supply lines, Waller and his men were soon in dire straights. Many of the men were sick, and the command was running out of food. On January 3, 1902, Waller divided his command. He and 14 men went for help at Basey, on the west coast of Samar. The remainder of the command, under Captain David D. Porter, remained in the jungle. Captain Porter later further divided this group, taking 7 marines and 6 porters back to Lanang, on the east coast. The remainder of the men were left under the command of Lieutenant A.S. Williams.


Waller reached Basey on January 6. Porter reached Lanang on January 11. Both men then set out to rescue Williams. Waller and Porter linked up on January 16. Williams and his ragged band were rescued on January 18. By this time, 10 Marines had died, 1 had gone insane, and the porters had mutinied. When the command reached Lanang, 11 porters were arrested.


After an investigation, Waller ordered the execution of the porters, without trial, for treason, theft, disobedience, and general mutiny. He reported the executions to General Smith, who passed the report to General Chaffee.


Waller’s Court Martial


General Chaffee ordered an investigation, and Waller was court martialed. The trial began on March 17, 1902.


Waller’s defense was not that he was following General Smith’s orders to leave Samar a “howling wilderness.” Instead, he used General Order Number 100, authorizing excessive force, to justify his actions. The prosecution then called General Smith as a rebuttal witness. Smith attempted to throw Waller under the bus, stating under oath that he had not issued any special orders to Waller.


Waller called three other officers to verify his version of Smith’s stories. He also provided copies of every order Smith had given him. He also testified that Smith had ordered him to execute every Filipino over the age of 10.


The court voted 11-2 to acquit Waller. As a result of Waller’s testimony, General Smith was court martialed. Smith was convicted, and his sentence was “to be admonished by the reviewing authority.” Secretary of War Elihu Root recommended that Smith be retired. President Theodore Roosevelt accepted this recommendation. Smith retired from the Army and suffered no additional punishment.




Next week, I will examine the legal issues brought up in the play itself. This will include a more detailed discussion of General Order Number 100, and its application during the Philippine-American War.

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This is Part III of my three-part examination of Kenneth G. Ross’s 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. In Part II, I began my examination of the legal issues raised in the play, focusing on the irregularities in the three courts martial of Morant and his fellow defendants. This post focuses on the legal issues surrounding the execution of prisoners of war during the Boer War.


Treatment of Prisoners of War


A major issue discussed in the play (and in the movie) is the treatment of P.O.W.s in a guerilla war. What were the rules governing P.O.W.s at the time of the Boer War? Ultimately, the three defendants were convicted for executing Boer prisoners. Their main defense was that they were following orders. Is this a viable defense? Were the orders from Lord Kitchener to shoot any Boer prisoners caught wearing British khaki legitimate (if such orders actually existed)? Likewise, were the orders given by Hunt and Taylor to shoot all prisoners legitimate (if such orders actually existed)?


The treatment of prisoners of war at the time of the Morant Court Martial was set out in general terms by two international treaties: (1) The Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864 (the First Geneva Convention); and (2) The Convention with Respect to the Laws and Customs of War on Land (part of the Hague Convention of 1899). Although the United Kingdom, the Orange Free State, and the Transvaal Republic all ratified the First Geneva Convention (in 1865, 1897, and 1896, respectively), only the United Kingdom ratified the Hague Convention (in 1900).


The First Geneva Convention


The First Geneva Convention focuses primarily on the treatment of various categories of non-combatants. These include medical personnel, religious personnel, civilians in the combat zone, and soldiers who are hors de combat due to illness, injury, or captivity. Of particular interest for this discussion is Article 6:


Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for.
Commanders-in-Chief may hand over immediately to the enemy outposts enemy combatants wounded during an engagement, when circumstances allow and subject to the agreement of both parties.
Those who, after their recovery, are recognized as being unfit for further service, shall be repatriated.
The others may likewise be sent back, on condition that they shall not again, for the duration of hostilities, take up arms.
Evacuation parties, and the personnel conducting them, shall be considered as being absolutely neutral.


Although the First Geneva Convention is very short (10 articles, most of which are about the same length as Article 6, if not shorter), the message is clear. All of these categories of non-combatants are to be treated humanely. The implication is that prisoners of war are not subject to summary execution, especially wounded prisoners.


The Hague Convention of 1899


Like the First Geneva Convention, the Hague Convention with Respect to the Laws and Customs of War on Land is relatively short (5 articles). The major provision is found in Article 1, which states that each of the contracting parties “shall issue instructions to their armed forces,” conforming to the “Regulations Respecting the Laws and Customs of War on Land” annexed to the Convention.


Several of the Regulations deal with the issue of P.O.W.s. For example, Chapter II (Articles 4-20) is entitled “On Prisoners of War.” One of the provisions of Article 4 echoes the First Geneva Convention, stating that prisoners of war “must be humanely treated.” Article 7 states, in part, “[t]he Government into whose hands prisoners of war have fallen is bound to maintain them.” Article 21 formally incorporates the First Geneva Convention into the Regulations, stating “[t]he obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention of the 22nd August, 1864, subject to any modifications which may be introduced into it.” Most significantly, Article 23 places certain limitations on the actions that may be taken to “injure the enemy,” including the following prohibitions: (1) killing or wounding “treacherously” individuals belonging to the hostile nation or army; (2) killing or wounding an enemy who, “having laid down arms, or having no longer means of defence, has surrendered at discretion;” and (3) declaring that “no quarter” will be given.


While this would seem to make the case against the three defendants cut and dried, there is one other factor to take into consideration. Article 2 of the Convention (as opposed to the Regulations) states:


The provisions contained in the Regulations mentioned in Article 1 are only binding on the Contracting Powers, in case of war between two or more of them. These provisions shall cease to be binding from the time when, in a war between Contracting Powers, a non-Contracting Power joins one of the belligerents.



Thus, the fact that neither the Orange Free State nor the Transvaal Republic signed the Convention specifically exempted the British forces in South Africa from adhering to the Regulations.


So where does all of this leave us with regard to the Visser and 8 Boer cases?


Execution of Visser


There are two things that strike me about the execution of Visser. First, Visser was wounded at the time of his capture (he had been shot through both legs). Thus, although the Hague Convention might not apply to this situation, the provisions of Article 6 of the Geneva Convention do apply (everybody signed that one). Visser, as a wounded combatant, should have been “collected and cared for.” This would indicate that Morant’s order to shoot Visser was a violation of the rules of war.


Second, there is Lord Kitchener’s order to shoot all Boer prisoners caught wearing British khaki. Visser was wearing British khaki, a pair of British trousers, to be precise. Technically, therefore, he was in violation of the standing orders, and was subject to execution.


But I see a problem with Lord Kitchener’s orders (assuming, for the sake of argument, that he did actually issue them). As presented, they are somewhat vague. How much khaki merits the firing squad? Let’s take two hypothetical examples. On the one hand, let’s presume that the British capture a Boer commando in full British uniform, from pith helmet to boots. This seems to be what Kitchener’s order was guarding against: Boers masquerading as British soldiers to cause havoc within British installations or behind the lines. On the other hand, let’s presume that the British capture another Boer commando, this time wearing only a pair of British-issue socks. Technically, the Boer is in violation of Kitchener’s orders. But did Kitchener really mean that this Boer should be executed?


Visser falls between these two extremes. He wasn’t in full British uniform, but he was wearing British trousers. Was this because he was trying to impersonate a British soldier, or because he had no other pants to wear, and he preferred not to go into combat in his underwear? And would it be reasonable to expect Morant to have to interpret this order in the heat of battle?


Was Morant justified in ordering the execution of Visser? I’m still not sure. The play does not offer easy answers. And that is, perhaps, a good thing. This matter is not clear cut, even after a century. It would be too easy for the play to give us a simple answer.


Execution of the 8 Boers


It would be easy to say that Morant’s execution of the 8 Boer prisoners was on even shakier ground than his execution of Visser. After all, they had surrendered. They were at the mercy of the Bushveldt Carbineers. And Morant had taken prisoners before, in defiance of Hunt and Taylor’s alleged “no prisoners” orders. If he defied these orders once, wouldn’t it be acceptable to defy them again?


On the other hand, we need to remember that the Regulations of the Hague Convention don’t apply to this conflict. The British are not required to abide by Article 23’s prohibition on “no quarter” orders. If Hunt and Taylor did issue these orders, was it reasonable for Morant to question them?


It seems to me that, again, it comes down to a question of phrasing and interpretation. What, exactly, were the orders given to Morant by Hunt and Taylor? There is a world of difference between these two orders:


“Don’t take any prisoners.”

“Shoot all prisoners.”


From the perspective of a civilian, looking back at events in another part of the world over a century ago, it seems to me that these orders, if they existed, were questionable at best. And Morant’s selective obedience to them doesn’t help his case. But, under the circumstances of guerilla warfare, is it reasonable to expect soldiers to stop and consider all of the niceties of “civilized” war? Ultimately, I’m still torn on this issue.


Neophyte Lawyer’s Review


This is, like “Anatomy of a Murder,” a very meaty play. There are a number of interesting legal questions, and not so many easy answers. It is a very well-written piece, and the courtroom scenes are riveting. This is not a show that will be done very often here in the States, but it is worth taking a look at.


I do wish that the play included the closing argument that Maj. Thomas makes in the movie. It’s a great monologue, and sums up the ambiguities of the case very nicely:




All in all, I give “Breaker Morant” a solid eight Mockingbirds out of ten on my world-famous (on this blog, anyway) “Mockingbird Scale.” If you get a chance to see a production of this play, don’t miss it (and let me know what you think of it). If you have a lot of male actors skilled in various dialects, you might want to give it a look.




NEXT WEEK: While I am on a roll, discussing early 20th century rules of war, I’ll begin an examination of the play “Savages” by Anne Nelson. It’s based on events during the Philippine Insurrection.

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