The film, Breaker Morant, which appeared in 1980, dramatised a series of courts martial in South Africa during the closing stages of the Boer War. In these trials, Australian and British soldiers were accused of killing Boer prisoners and were found guilty of twelve murders. Three of the main perpetrators, all lieutenants, Harry 'Breaker' Morant, Peter Handcock and George Witton were sentenced to death. Morant and Handcock were subsequently executed by firing squad while Witton’s sentence was commuted to life imprisonment. 

The film suggested that the courts martial were flawed and that there had been a miscarriage of justice. It portrays upper-class British officers denying the defendants and their Australian lawyer a fair go. The Commander-in-Chief of Imperial Forces in South Africa, Lord Kitchener, it implies, was determined to obtain convictions and had let his wishes be known. The accused never stood a chance. 

The film was highly successful. It received critical acclaim, made money, won awards and established the career of its director, Bruce Beresford. With the well-spoken, square-jawed Edward Woodward as Morant and the equally credible Jack Thompson as defence counsel, the production was convincing. It was based on a play of the same name by Kenneth G Ross that had appeared in 1978. Books on the subject carried broadly the same conclusion: the accused were victims of an injustice.
 

Morant, the icon, was launched.

After nearly thirty years, memories of the film and its anti-heroes were fading when, in 2009, James Unkles, a Navy Reserve lawyer, and Nick Bleszynski, a journalist and author of a book on the Morant case, petitioned the Australian Parliament and the British Crown to pardon Morant, Handcock and Witton.

Australia had had no official involvement in the case and the government left it to the British authorities to respond. They very politely told the petitioners to get lost. The case had been re-examined a few years earlier, said a statement from the office of Liam Fox, the then Defence Secretary, no transcripts of the proceedings could be found and no new evidence had been presented by the petitioners. Sorry.

Here in Australia letters to the editor said they would, wouldn't they.

Unkles did not give up. Late in 2011, he met the then Attorney General, Robert McClelland, who apparently agreed to write again to the British Government. But only after departmental staff had done some homework on the case. McClelland was replaced by Nicola Roxon and when she received the departmental briefing, she announced that she would not be taking this any further. Her language was uncompromising: 'I consider that seeking a pardon for these men could be rightly perceived as glossing over very grave criminal acts'.

In September 2012, Unkles recruited the American lawyer Dan Mori to the cause. Mori, who is now resident in Australia, had represented David Hicks while Hicks was in Guantanamo Bay. Mori will now apparently work with Unkles to obtain a pardon. As far as they are concerned, the matter is not over.  

Unfortunately for them, the film version just does not fit what we know about the circumstances. The further one looks into it, the less sense it makes and the more improbable the popular version seems.

We had better start this story at the beginning: Britain went to war with two small republics in southern Africa in October 1899. Her objective was to add the republican territories (which happened to contain the largest gold deposits ever discovered on the planet) to her great Empire. 

The white people who controlled the republics called themselves 'Boers' (farmers). They treasured their independence and were prepared to defend it. Britain soon discovered that victory in this war would be far more difficult than had been anticipated and she sought support from all corners of her Empire. All the Australian colonies responded and sent troops – the Commonwealth did not yet exist. It would come into existence during this war.
 

Harry Morant volunteered in South Australia in December 1899. A man with a smart English accent, Morant was a bush poet of publishable quality and he signed his poems as 'The Breaker'. He was a capable horseman, and most people assume that that is what he had in mind when using this moniker. But perhaps there is more to it than that. By the time he signed up, he had worked his way around the outback from Queensland through New South Wales to South Australia, breaking horses, breaking hearts, breaking jaws and breaking loan commitments.
 

In South Africa, Morant served his tour of duty of one year and then returned, not to Australia, but to southern England whence he had emigrated some years before volunteering. There he associated with a man called Hunt who had also fought in the Boer War. Percy Hunt and Harry Morant were received as veterans, honourable soldiers of the Empire. Before long, they were apparently engaged to two sisters. Morant had achieved respectability in English eyes, a respectability he seems to have lacked up to this point. Hunt had been his conduit into polite society and they were now the best of friends.  It looked as if Morant had done with Australia for good. However, he and Hunt had not done with southern Africa.

After early setbacks, Britain poured in more men and resources, turned the tide of the war and conquered the capitals of the two republics. The war, it seemed, was over.  But the Boers were working off a different script. The two cities were mere pinpricks in their wide land. They were mainly farmers and it was the rest of the country that mattered to them. As long as they controlled the hinterland they could continue their resistance indefinitely and the British would find the country ungovernable. They refused to surrender and resorted to guerrilla warfare. When Pretoria fell, the war was not even half way through.

Morant and Hunt, looking for more adventure, decided to sign up again. They returned to South Africa and joined a regiment called the Bushveldt Carbineers. It contained many Australians and its commanding officer, Major Robert Lenehan, was Australian. But it was locally recruited and had nothing to do with official Australian engagement in the war. Morant, on his return, was not fighting on Australia’s behalf. 

The Bushveldt Carbineers operated out of Pietersberg (now Polokwane) in the far northern Transvaal. Hunt, now Captain Hunt, was placed in charge of a detachment posted to Fort Edward in an area called the Spelonken, about 90 miles north of Pietersberg. Morant, now Lieutenant Morant, served as his deputy.

On 6th August 1901, Hunt led a night attack on a farmhouse where some Boers were gathered. His unit contained seventeen Imperial soldiers and an apparently larger number of local black 'irregulars'. It was a mistake. There were more Boers in the house than Hunt had expected. He and another soldier were killed in the clash.

Morant, who was not present during the skirmish, took charge of the detachment at Fort Edward.  Over the next month, he and the men under his authority carried out the murders for which they were convicted.  Almost all the victims were prisoners-of-war; most had voluntarily laid down their arms.
 

Some of Morant's men were dismayed by the killing of defenceless prisoners. Led by an honourable and courageous Australian, Robert Cochrane from Coolgardie, they managed to get a letter to Lieutenant-Colonel Henry Hall, the regional commander at Pietersburg. The letter confirmed rumours about the killings that were already circulating there. The detachment was recalled and Morant, Handcock, Witton and several others were arrested and locked up. Handcock and Witton were Australian.

A preliminary Court of Enquiry was held and months elapsed while the prosecution prepared for trials. Then, in January 1902, a series of courts martial began, one for each event at which killings were alleged to have occurred. The trials lasted for four weeks and when they were over, Morant, Handcock and Witton had been found guilty of twelve murders and had been sentenced to die. The other accused received lesser sentences or were acquitted.

Historical sources suggest that the accused might have perpetrated many more murders; twice as many, perhaps even three times as many. It looks as if the prosecution concentrated on the cases for which they had the best evidence. And what's the point of continuing when the accused have already been sentenced to die? This discussion is confined to the twelve convictions and just two further murders.

Kitchener commuted Witton's sentence to life imprisonment. Morant and Handcock, on the other hand, were executed by firing squad in Pretoria Central Prison on 27th February 1902.
 

After the war, Witton was released following a petition raised in Australia and South Africa. Back home in Victoria he compiled a passionate book, Scapegoats of the Empire, in which he defended their actions at Fort Edward and attacked the trial proceedings. This book seems to have been the key source for the play, the film and the books that suggest there had been an injustice.
 

That, in outline, is the Morant story.

The petition prepared by Unkles and Bleszynski does not argue that Morant, Handcock and Witton were innocent. It says instead that the trials were procedurally flawed and that that is sufficient to warrant a pardon. It argues, for example, that the accused and their lawyer, Major James Thomas from Tenterfield in New South Wales, were denied adequate opportunity to prepare for their defence, that there were multiple judicial shortcomings in the conduct of the trials and that there were many faults on the part of the Commander-in-Chief after the trials, including his unavailability at Headquarters to hear pleas for clemency.
 

For the purposes of this article, we might concede all the points made in the petition. To claim that there were procedural defects seems a bit tricky, considering that transcripts of the trials have not been found. We do not reliably know what happened during the trials. But we do know that the prosecution made considerable efforts to get it right as might be gathered from the months of preparation and the long duration of the trials. Many courts martial during this war lasted less than a day, a far cry from the weeks devoted to Morant and his co-accused. But let's concede that procedures in trials held at a frontier location under conditions of war might have been less than ideal. Some of the claims about events before and after the trials are also tendentious, but for this purpose, let’s concede them also. It is not the procedures that matter now, it is the substance.
 

And the substance has been found wanting. For example: One of the best known books on the Morant saga is called The Breaker by Kit Denton. It preceded the play and was probably one of the sources used for the play and the film. Denton seems to have realised that there were inadequacies in his research; he did more work and changed his point of view. He published his revised position in a subsequent book called Closed File which appeared some years after the film was released. 
 

Several historians who have examined the case since the film appeared, consider Morant and his compatriots guilty as charged. Craig Wilcox, for example, was commissioned by the Australian War Memorial in Canberra to write the official history of Australia's involvement in that war. His resulting book, Australia's Boer War, appeared in 2002 and is the authoritative source today. Dr Wilcox, researched Morant in some depth and is scathing in his assessment. Arthur Davey, the South African historian who worked at the Transvaal Archives, was probably in the best place to find out what happened. His book, Breaker Morant and the Bushveldt Carbineers, is equally damning. Other academics take similar views. Why?

At their trials, the accused apparently conceded quite forthrightly that they had killed prisoners. According to Witton, Morant famously testified, 'We got 'em and we shot 'em under rule 303'. The reference to 303 was, of course, a reference to the calibre of the British Lee Enfield rifle. If Morant really did say it, he was invoking the rule of the gun. The catchy line is repeated in the play and the film.

Think about it: these men shot prisoners in their custody and boasted about it.
 

The first murder was perhaps the nastiest. It involved the killing of a youth, a teenager, captured after a skirmish in which he was wounded. Because of his injury, he was unable to make his get-away with the party of Boers with whom he was riding. He was the only prisoner taken on this occasion. He had been shot in the ankle, was unable to stand and was undoubtedly in physical distress. Any civilised soldiers would have given medical assistance to this kid. Instead Morant had him shot, not in the emotional aftermath of the fire-fight, inexcusable as that would have been, but the next day - in cold blood. Some of Morant's men were disgusted. Even Witton, according to his book, wanted nothing to do with this.

On another occasion, eight Boers under escort and on their way to Fort Edward to formally surrender were intercepted by a party under Morant. He took charge, dismissed the escort, made the Boers dig their own graves by the roadside and had them shot. Handcock and Witton participated on this occasion. At their trial, they had no choice but to admit this as there were many witnesses, including their own men. Three similar murders followed on another occasion.

The defence offered various justifications. The youth, Josef Visser, was wearing an item of clothing that Morant thought he recognised as once belonging to Hunt. They alleged that when Hunt's corpse was examined the morning after he died, it showed signs of mutilation. They said they had held their own court martial in the veld and had found Visser guilty.
 

If Hunt's body was mutilated, there appears to have been no specific evidence that Visser had anything to do with it. Morant blamed the Boers, Visser was one of them and that was enough. Irrelevant though it is, the allegation that Boers defiled Hunt’s corpse should not be accepted without question. The Boers were devout Christians and mutilating a corpse was out of character. Better evidence is necessary to make the accusation stick and there are other possible explanations. Witton himself raises the spectre of one with a revealing passage in his book. He wrote: It was stated at times during the war by those in authority that the natives were not permitted to take any part in the fighting, but such was not the case.... [W]hen Colonel Grenfell went through the district, he had thousands of these [people], who were fed and paid, attached to his column, and they committed the most hideous atrocities...
 

The northern Transvaal was, is, the land of the fabled Rain Queen, a land of superstition where tribal medicine is practiced - still. Human body parts are highly valued.  Hunt himself had brought the natives. And this is not the only alternative possibility, if mutilation happened at all.

The court did not think that the pleadings, even if they were valid, justified Visser's execution and did not recognise the travesty of a court martial that Morant said he had conducted. This is quite important in the light of the suggestion that there were inadequacies in Morant, Handcock and Witton’s trials. To impose a death sentence, a court had to be properly constituted and presided over by an officer of higher rank than Morant. (A lieutenant-colonel presided over his trials.) A lawyer, a 'judge advocate', had to be present to advise the court on points of law. The proceedings had to be properly recorded. The accused had to be defended by a competent person, preferably a lawyer; Visser, a youth in distress, had no one to speak for him. Visser spoke Dutch; the 'court' spoke English. The death sentence had to be confirmed by the Commander-in-Chief based on the record of proceedings. There was no record and Visser was summarily executed as soon as the ‘trial’ was over. All the requirements mentioned here were met in the trials of Morant and his co-accused but not in Visser’s case. The miscarriage of justice in Visser's supposed field trial would seem to far outweigh the procedural defects claimed for the Morant court cases.

The play and film make much of the extenuating circumstances that supposedly applied at Visser’s murder - Hunt's clothing and alleged mutilation. But they apply only to this one killing. What of the other eleven? 

The defence, if we believe Witton,  argued under three headings: One: The Boers were brigands, train-wreckers and murderers who deserved all they got. Two (with no apparent irony): Other Imperial soldiers had also killed Boer prisoners. Three: They were acting under orders when they executed the Boer prisoners. 

The courts were unimpressed by the arguments under the first two headings. They did not subscribe to the notions that ordinary soldiers were entitled to take the law into their own hands or that two wrongs make a right. And why would they offer such arguments if they were simply following orders? Surely following orders would be enough.

However, the courts were not persuaded that such orders existed. They have nevertheless  been offered as the principal defence for the murders and their existence remains the crucial question: Were Morant, Handcock and Witton acting under orders when they killed prisoners?
 

There are many reasons for doubting that such orders existed. It is here that the broader context becomes germane. Orders from Headquarters were issued in writing and transmitted by telegraph - there were no telephones or radios in those days. If no telegraph line was available, orders were carried by despatch rider or, when that was too dangerous, in convoy. In the bureaucratic British Army, copies were kept at source, at relay points and at destinations. Large numbers of such orders still exist and can be seen in the British Archives today, many in Lord Kitchener's own handwriting. In the Morant trials, no such written orders could be produced by the defence and they could not be found at Pietersberg (the end of the telegraph line) nor at HQ in Pretoria. 

No matter. The accused said that verbal orders had been given to Captain Hunt by Lord Kitchener himself at a time when Hunt was in Pretoria. Hunt could not be cross-examined – he was dead - but, apparently, no prisoners were killed while he was in charge of the detachment at Fort Edward. On the contrary, 21 Boers were delivered alive to the regional command at Pietersberg. If Hunt had received such orders, he disobeyed them.
 

Major Lenehan, the commanding officer of the Bushveldt Carbineers would conceivably have known if Hunt had orders to take no prisoners (which means to take no prisoners alive). HQ would surely have informed him of such orders and Hunt would surely have mentioned such unusual, grave, unwritten orders to his superior officer when he was in Pietersberg before his deployment to Fort Edward. It would have been wise of him to do so. But Lenehan testified at the trials that he had no knowledge of such orders. The defence subpoenaed Colonel Hubert Hamilton, Kitchener's military secretary, who, according to the defence, had been present when Kitchener issued the orders to Hunt. He, too, denied all knowledge of such instructions.

These senior officers - one Australian, one British - testified under oath knowing that the lives of the soldiers on trial depended on what they said. They would not have done so lightly. These were crucial testimonies, especially when taken with Hunt's behaviour. But relevant as they are, they are not the main reason for doubting the existence of the orders. The question is: Why would Kitchener, or any other senior officer, have issued such orders?
 

The killings at Fort Edward occurred late in the conflict when the Boers were progressively losing their guerrilla war. Perhaps twenty thousand remained in the field, scattered across a huge area. Ranged against them were ten times as many Imperial soldiers. The result was not in doubt. It was just a matter of time.

Kitchener was anxious to end the war. It had already lasted years longer than expected and the expense was immensely more than had been anticipated. The government had had to impose war taxes on a reluctant British population and it faced defeat at the next election. Bringing the war to a rapid close was a matter of great political urgency.
 

Kitchener himself had personal reasons to conclude the war expeditiously. He hoped to become the Commander-in-Chief of Imperial Forces in India. The position was vacant and it had been promised to him. It could not remain vacant indefinitely and he feared he might lose it if he could not free himself from South Africa soon. There was no other position he cared to have.

To end the war he could continue the process of attrition until resistance had been thinned to the point of collapse. This sort of thing can take a long time - think of Afghanistan where we are in the tenth year of a guerrilla war. Or he could persuade the Boers to surrender. 

Kitchener understood that it made sense for all concerned to offer the Boers inducements to end the conflict. While he was tough in pursuit of military objectives, he was, at the same time, prepared to offer generous terms in negotiations. He did so in abortive negotiations with the commander-in-chief of the South African Republic, Louis Botha, at Middelberg in early 1901 (before Hunt and Morant arrived at Fort Edward). He again offered generous terms later, in the negotiations that did end the war, in May 1902. On both occasions, his terms were so generous that they were a source of disagreement between him and Alfred Milner, the High Commissioner for South Africa. Milner appealed in vain to London to impose tougher terms.
 

Anxious as he was for the Boers to surrender and willing to be generous if they laid down their arms, why would Kitchener order that they be summarily shot if they did? Would you surrender if you knew it meant certain, immediate death? Of course not. An order to execute prisoners would have been the surest way to prolong the conflict. The result would have been the exact opposite of what Kitchener wanted.

There would have been no point in ordering just a handful of soldiers on the distant periphery of the conflict to shoot prisoners. What could that achieve? Nor would it have made any sense to issue secret orders. If by some perverse logic it was considered that such orders would assist in bringing the war to a close, then everyone, including the Boers, had to know. If there were such orders they would have applied elsewhere, indeed everywhere, and there should be abundant evidence that they existed. There isn't. They have not been found among the official papers at any destination and there is no reference to them in the many books, diaries and letters written at the time. In these sources one finds men sometimes quite critical of their officers. Some express dismay at Kitchener's treatment of civilians, for example. An order as controversial as shooting prisoners would certainly have been mentioned. 

The British took more than 30,000 Boer prisoners in the war. The day after Morant and Handcock were executed in Pretoria, they captured a further 700 in the north-eastern Free State. This important clash was under Kitchener's personal field command. If he wished Boer prisoners to be executed, he could have ordered it then and there. History would have recorded a huge massacre. Nothing of the sort happened.

There are two more stories that I find compelling. The first concerns Pastor Heese (or Hesse). He was a Lutheran missionary who happened to pass by and speak to the eight Boers before they were executed under Morant's orders. He may have seen their bodies after they died. 

Heese continued on to Fort Edward and a day or two later, with his black assistant, set off for Pietersberg in his horse-drawn buggy. They never made it. Their bodies were found on the road with bullet wounds. Handcock was seen to leave on horseback in their direction shortly after they departed. He and Morant were accused of their murders but acquitted for lack of witnesses. 

It has been suggested that Morant and Handcock were scapegoats for the deaths of Heese and his assistant. Britain supposedly wanted convictions to appease Germany for the death of a German missionary. None of this stands up to scrutiny. Heese was not German, nor a Boer. He was a British subject from the Cape Colony. Questions were asked in the British parliament if Germany had said anything about the death of Heese. No, was the reply, Germany had said nothing. In any event, Britain did not care about German opinion any more than she did for Dutch, Belgian, French or Russian opinion. All were critical of the war. Britain had occupied the Boer republics in part to pre-empt Germany from doing so; Germany already possessed territories in east and west Africa and was as interested in colonial expansion as Britain was. Germany was a rival; her opinions did not carry any weight.

But that is all irrelevant because we now know that Handcock and Morant were indeed responsible for these deaths. Safely back in Australia, Witton revealed that Handcock had told him that Morant had sent him after Heese. It is one of the strange contradictions in Witton's account.

If Morant, Handcock and Witton were killing Boers under orders, why would they execute these witnesses, witnesses with high credibility heading towards the seat of the regional command? And, come to think of it, if they were under orders to execute Boer prisoners, why would they have held the travesty of a field court martial of Visser? Surely, orders are orders.

The other story is personal and it concerns my maternal grandfather. He was born in the Cape Colony and living there when war broke out. This meant that he was a British subject. But he was Dutch-speaking - like the majority of whites in the colony - and with ten thousand other Cape Dutchmen he joined the Boers and fought against the English. He was nineteen years old.
 

After nine months on campaign, his luck ran out and he was captured in December 1901. In the following January, the very month in which the Morant trials began, he, too, faced a military court and was convicted of high treason. He, too, was sentenced to death. Fortunately, the wisdom of executing young Cape rebels had been questioned in Westminster and Kitchener had become sensitised to the political implications. He commuted my grandfather's sentence to life imprisonment and he did the same for other captured Cape rebels. If Kitchener was really intent on the execution of captured Boers, where better to start than rubber-stamping death sentences passed in properly constituted courts? Instead, he saved the lives of these many Boer prisoners.
 
I am extremely grateful to Lord Kitchener for this discretionary show of mercy. After the war, my grandfather was released (like Witton), he married my grandmother and the rest is, well, here I am. I am just very pleased that my grandfather was not captured by Morant of the Bushveldt Carbineers.

If one takes the stories offered by Morant and his co-accused to excuse what they did and relates them to the circumstances of the time, nothing fits. If on the other hand, one presumes that the courts did their job with adequate diligence, then everything falls into place. On the basis of what we know, it would be inappropriate to pretend we can improve on the decisions of those courts that sat more than one hundred and ten years ago. Pardoning Morant and his co-accused – confessed mass murderers - would be a serious mistake. Roxon was right.

It is time that we let Morant the icon, the Morant of the myth, fade into the dark obscurity that he richly deserves.