Court martial of Breaker Morant

The letter

On 4 October 1901, a letter signed by 15 members of the Bushveldt Carbineers (BVC) garrison at Fort Edward was secretly dispatched to Col. F.H. Hall, the British Army Officer Commanding at Pietersburg. Written by BVC Trooper Robert Mitchell Cochrane, a former Justice of the Peace from Western Australia, the letter accused members of the Fort Edward garrison of six "disgraceful incidents":

1. The shooting of six surrendered Afrikaner men and boys and the theft of their money and livestock at Valdezia on 2 July 1901. The orders had been given by Captains Alfred Taylor and James Huntley Robertson, and relayed by Sgt. Maj. K.C.B. Morrison to Sgt. D.C. Oldham. The actual killing was alleged to have been carried out by Sgt. Oldham and BVC Troopers Eden, Arnold, Brown, Heath, and Dale.

2. The shooting of BVC Trooper B.J. van Buuren by BVC Lt. Peter Handcock on 4 July 1901. Trooper van Buuren, an Afrikaner, had "disapproved" of the killings at Valdezia, and had informed the victims' wives and children, who were imprisoned at Fort Edward, of what had happened.

3. The revenge killing of Floris Visser, a wounded prisoner of war, near the Koedoes River on 11 August 1901. Visser had been captured by a BVC patrol let by Lieut. Harry Morant two days before his death. After Visser had been exhaustively interrogated and conveyed for 15 miles by the patrol, Lt. Morant had ordered his men to form a firing squad and shoot him. The squad consisted of BVC Troopers A.J. Petrie, J.J. Gill, Wild, and T.J. Botha. A coup de grace was delivered by BVC Lt. Harry Picton. The slaying of Floris Visser was in retaliation for the combat death of Morant's close friend, BVC Captain Percy Frederik Hunt, at Duivelskloof on 6 August 1901.

4. The shooting, ordered by Capt. Taylor and Lt. Morant, of four surrendered Afrikaners and four Dutch schoolteachers, who had been captured at the Elim Hospital in Valdezia, on the morning of 23 August 1901. The firing squad consisted of BVC Lt. George Witton, Sgt. D.C. Oldham, and Troopers J.T. Arnold, Edward Brown, T. Dale, and A. Heath. Although Trooper Cochrane's letter made no mention of the fact, three Native South African witnesses were also shot dead.

The ambush and fatal shooting of the Reverend Carl August Daniel Heese of the Berlin Missionary Society near Bandolierkop on the afternoon of 23 August 1901. Rev. Heese had spiritually counseled the Dutch and Afrikaner victims that morning and had angrily protested to Lt. Morant at Fort Edward upon learning of their deaths. Trooper Cochrane alleged that the killer of Rev. Heese was BVC Lt. Peter Handcock. Although Cochrane made no mention of the fact, Rev. Heese's driver, a member of the Southern Ndebele people, was also killed.

5. The orders, given by BVC Lt. Charles H.G. Hannam, to open fire on a wagon train containing Afrikaner women and children who were coming in to surrender at Fort Edward, on 5 September 1901. The ensuing gunfire led to the deaths of two boys, aged 5- and 13-years, and the wounding of a 9-year-old girl.

6. The shooting of Roelf van Staden and his sons Roelf and Christiaan, near Fort Edward on 7 September 1901. All were coming in to surrender in the hope of gaining medical treatment for teenaged Christiaan, who was suffering from recurring bouts of fever. Instead, they were met at the Sweetwaters Farm near Fort Edward by a party consisting of Lts. Morant and Handcock, joined by BVC Sgt. Maj. Hammet, Corp. MacMahon, and Troopers Hodds, Botha, and Thompson. Roelf van Staden and both his sons were then shot, allegedly after being forced to dig their own graves.

The letter then accused the Field Commander of the BVC, Major Robert Lenahan, of being "privy these misdeamenours. It is for this reason that we have taken the liberty of addressing this communication direct to you." After listing numerous civilian witnesses who could confirm their allegations, Trooper Cochrane concluded, "Sir, many of us are Australians who have fought throughout nearly the whole war while others are Africaners who have 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 Imperial officers in order that the truth be elicited and justice done. Also we beg that all witnesses may be kept in camp at Pietersburg till the inquiry is finished. So deeply do we deplore the opprobrium which must be inseparably attached to 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."

Arrests

In response to the letter written by Trooper Cochrane, Col. Hall summoned all Fort Edward officers and non-commissioned officers to Pietersburg on 21 October 1901. All were met by a party of mounted infantry five miles outside Pietersburg on the morning of 23 October 1901 and "brought into town like criminals". Lt. Morant was arrested after returning from leave in Pretoria, where he had gone to settle the affairs of his deceased friend Captain Hunt.

Indictments

Although the trial transcripts, like almost all others dating from between 1850 and 1914, were later destroyed by the British civil service, it is known that a Court of Inquiry, the British military's equivalent to a grand jury, was convened on 16 October 1901. The President of the Court was Col. H.M. Carter, who was assisted by Captain E. Evans and Major Wilfred N. Bolton, the Provost Marshal of Pietersburg. The first session of the Court took place on 6 November 1901 and continued for four weeks. Deliberations continued for further two weeks, at which time it became clear that the indictments would be as follows:

1. In what became known as "The Six Boers Case", Captains Robertson and Taylor, as well as Sgt. Maj. Morrison, were charged with committing the offense of murder while on active service.

2. In relation to what was dubbed "The Van Buuren Incident", Lieut. Handcock was charged with murder and Maj. Lenahan was charged with, "When on active service by culpable neglect failing to make a report which it was his duty to make."

3. In relation to "The Visser Incident", Lts. Morant, Handcock, Witton, and Picton were charged with "While on active service committing the offense of murder".

4. In relation to what was incorrectly dubbed "The Eight Boers Case", Lieuts. Morant, Handcock, and Witton were charged with, "While on active service committing the offense of murder".

In relation to the slaying of Rev Heese, Lts. Morant and Handcock were charged with, "While on active service committing the offense of murder".

5. No charges were filed for the three children who had been shot by the Bushveldt Carbineers near Fort Edward.

6. In relation to what became known as "The Three Boers Case", Lts. Morant and Handcock were charged with, "While on active service committing the offense of murder".

In a confidential report to the War Office, Col. J. St. Claire wrote, "I agree generally with the views expressed by the Court of Inquiry in the opinions of the several cases. The idea that no prisoners were to be taken in the Spelonken area appears to have been started by the late Captain Hunt & after his death continued by orders given personally by Captain Taylor.

"The statement that Captain Hunt's body had been maltreated is in no way corroborated & the reprisals undertaken by Lt Morant on this idea were utterly unjustifiable.

"Lieut Morant seems to have been the primary mover in carrying out these orders, & Lieut Handcock willingly lent himself out as the principle executioner of them.

"Lieut Morant acquiesced in the illegal execution of the wounded Boer Visser & took a personal part in the massacre of the 8 surrendered Boers on 23 August.

"The two N.C.O.s acted under orders but were not justified in obeying illegal commands. After the murder of Van Buuren the officers seem to have exercised a reign of terror in the District, which hindered their men from reporting their illegal acts & even prevented their objecting to assist in the crime."

Courts martial

The first court martial opened on 16 January 1901, with Lieut.-Col. H.C. Denny presiding over a panel of six judges. Maj. James Francis Thomas, a Solicitor from Tenterfield, New South Wales, had been retained to defend Maj. Lenahan. The night before, however, he agreed to represent all six defendants. A Captain Burns-Begg appeared for the prosecution.

The Visser trial

The "Visser Incident" was the first case to go to trial. The accused all entered pleas of Not Guilty.

Among the witnesses for the prosecution was Lt. Morant's former orderly and interpreter, BVC Trooper Theunis J. Botha, who testified that Visser, who had been promised that his life would be spared, was cooperative during two days of interrogation and that all his information was later found to have been true. Despite this, Lt. Morant ordered him shot.

When he took the stand, Lt. Morant testified that he only followed orders to take no prisoners as relayed to the late Captain Hunt by Col. Hubert Hamilton. He also alleged that Floris Visser had been captured wearing a British Army jacket and that Captain Hunt's body had been mutilated.

The President of the Court then asked whether Visser's "trial" had been constituted like the court-martial, and whether the "judges" had observed the King's Regulations.

Lt. Morant's reply, as recorded by Witton, is legendary: "Was it like this? 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!"

Toward the end of the trial, the court moved to Pretoria, where Col. Hamilton testified that he had "never spoken to Captain Hunt with reference to his duties in the Northern Transvaal". Though stunned, Maj. Thomas argued that his clients were not guilty because they believed that they "acted under orders". In response, Captain Burns-Begg argued that they were "illegal orders" and said, "The right of killing an armed man exists only so long as he resists; as soon as he submits he is entitled to be treated as a prisoner of war." The Court ruled in the prosecution's favor.

Lt. Morant was found guilty of murder. Lts. Handcock, Witton, and Picton were convicted of the lesser charge of manslaughter.

After observing the trial, Col. A.R. Pemberton wrote to the War Office, "I consider that Lieut. Morant was properly convicted... The so-called Court 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.

"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 this finding: From the evidence adduced I consider the 4 officers are jointly & severally responsible for the death of Visser & guilty of murder. I do not consider it proved that Visser was wearing British uniform."

"Eight Boers" case

The trial recommenced on 31 January 1902 with the four Afrikaners and four Dutch schoolteachers who had surrendered to a party led by Lts. Morant and Handcock at the Elim Hospital on the morning of 23 August 1901.

The case had barely commenced before the prosecution counsel, Captain Burns-Begg, and two of the judges, Maj. Ousley and Capt. Marshall, were replaced.

Documents connected with the case reveal that Maj. R. Whigham and Col. James St. Clair had ordered Major Wilfred N. Bolton to appear for the prosecution, as he was considered less expensive than hiring a barrister. Bolton vainly requested to be excused, writing, "My knowledge of law is insufficient for so intricate a matter."

Meanwhile, Captains Matcham and Brown took the place of Ousley and Marshall.

The deposition of former BVC Corporal Albert van der Westerhuizen, the memoirs of George Witton, and the Transvaal War Museum archives reveal that, after the prisoners were taken, they were marched to a hillside nearby and forced to dig their own mass grave. Then, as planned in advance, Henry Lebeoer and Mr. Schwartz, two local Afrikaners assigned to Capt. Taylor's staff, fire three shots to make it appear that the party was under attack by the Zoutpansberg Commando. All eight prisoners were then shot and buried in the mass grave which they had dug. According to South African historian Charles Leach, only five out of the eight victims were members of the Zoutpansberg Commando.

Witton alleged in his account that he shot a Boer who had lunged at him and attempted to grab his rifle. Other sources allege that the same man was a Dutch Reformed Church Deacon and member of the Zoutpansberg Commando named C.J. Smit.

According to South African historian Dr. C.A.R. Schulenburg, "Morant, Handcock, and Witton were found guilty of the murder of the eight Boers. Morant's defence was again that he was merely carrying out orders from senior officers 'not to bring any more prisoners in.'"

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.

Heese case

The charge concerned the murder of the Lutheran missionary, Reverend Daniel Heese, who had spiritually counseled the eight Afrikaner and Dutch victims at Valdezia

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.

The Three Boers Case

Morant and Handcock stood accused of ordering certain Troopers and a Corporal to shoot Roelf van Staden and both his sons. They were found guilty.

"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.

According to a 2002 book, there was such an order, and 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 was unsuccessful. Some authors have said they 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 while falsely 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:

According to Clode's Military Forces of the Crown (1869):

Conviction and sentencing

Morant and Handcock were sentenced to death and executed by firing squad on the morning of 27 February; less than 18 hours after the verdict. Witton had also been 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.

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.

Despite having left a written confession in their cell, Lts. Morant and Handcock have become folk heroes in modern Australia. Their court-martial and death have been the subject of books, a stage play, and an award-winning Australian New Wave film adaptation by director Bruce Beresford.

Upon its release in 1980, Beresford's film both brought Morant's life story to a worldwide audience and "hoisted the images of the accused officers to the level of Australian icons and martyrs." Many Australians now regard Lts. Morant and Handcock as scapegoats or even as the victims of judicial murder. Attempts continue, which wide publich support, to obtain them a posthumous pardon or even a new trial. In a 1999 interview, Beresford expressed a deep sense of regret that his film is widely viewed as a story "about poor Australians who were framed by the Brits."

According to South African historian Charles Leach, "In the opinion of many South Africans, particularly descendants of victims as well as other involved persons in the far Northern Transvaal, justice was only partially achieved by the trial and the resultant sentences. The feeling still prevails that not all the guilty parties were dealt with - the notorious Captain Taylor being the most obvious one of all."