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Volume 22, Number 1 (1997) reprinted by permission Oklahoma City University Law Review BREAKER MORANT DREW L. KERSHEN* Lieutenant Harry Morant followed his adventurer's instinct when he enlisted in South Australia for the Second Contingent of Australian forces in South Africa. He had emigrated to Australia from England following quarrels with his father. While in Australia, he had established himself as a preeminent breaker of horses and a published poet. He transferred to the Bushveldt Carabineers on April 1, 1900--April Fool's Day. Field General Lord Kitchener, the commander-in-chief of British and colonial forces, had created the Bushveldt Carabineers as a special unit within the British army in South Africa. The Carabineers were to use the commando tactics the Boer guerrillas used--fighting in enemy held territory, employing hitand-run tactics, engaging in surprise attacks or ambushes, and living off the land. According to all reports, the Carabineers were highly effective in combatting the Boer--too effective. When Lieutenants Morant, Handcock, and Witton executed Boer prisoners and a German missionary, Lord Kitchener ordered their arrest. When the Preliminary Court of Inquiry found sufficient evidence to support the charges, Kitchener convened a Field General Court-Martial in Pietersburg, Transvaal, South Africa in February 1902. Breaker Morant is the beautifully scripted and photographed film of the court-martial of these three Australian officers by a British Court-Martial. The South Australian Film Corporation released this film in 1979 to critical acclaim and sharp controversy.1 No dispute exists that the basic events depicted in the film are historically accurate. Lieutenants Harry Morant, Peter Handcock, and George Witton were tried by court-martial on three capital counts. Counts One and Two charged all three with the murder of Boers taken as prisoners of war. One, named Visser, was captured in a raid wearing British khaki. Six others, their names unknown, were taken into custody under a white flag of surrender. Count Three charged Lieutenants Morant and Handcock with the murder of a German missionary, the Reverend H.C.V. Hess, who had witnessed the six Boers surrender. The Court-Martial found all three guilty and sentenced them to death. Kitchener commuted Witton's sentence to penal servitude for life. Morant and Handcock died by firing squad on the morning of February 27, 1902. Controversy centers on the legal process and legal standards by which the British Army Court reached its verdicts. "Breaker Morant" presents in gripping fashion questions about the role of legal process and the rule of law. Viewing the movie with this perspective, we see the CourtMartial as a sham--a legal process in form only because the higher-ups of Whitehall, Australia, and Pretoria have already predetermined the outcome. Whitehall needs convictions and executions to foreclose Germany from entering the war under the guise of protecting South African civilian populations from the unorthodox military tactics and civilian internment programs of the British forces. Australia needs the convictions and executions to show that it, as a newly independent nation, is a mature, modern state worthy of joining the community of nations because it too expects civilized standards of decency from its citizen-soldiers. Pretoria needs convictions and executions to unite the British and the Boers in a peace conference that hopefully can bring the indecisive war to an end. With the outcome set in the councils of power, the British Army Court subverts the legal process itself. Kitchener orders the Court-Martial in the field, Pietersburg, to distance it from his headquarters, Pretoria. Command influence for conviction permeates the Court-Martial. The experienced prosecutor has six weeks to prepare; the inexperienced defense counsel gets two days. The presiding officer consistently rules for the prosecution and against defense on motions and objections. Prosecution witnesses swear to tell the truth but testify falsely. Higher authorities conveniently and fortuitously transfer defense witnesses to new posts in India. Rigged procedures give predictable results: guilty as charged on all counts. We should be outraged at rigged procedures in criminal trials, whether civilian or military. When persons face imprisonment and death, due process through fair procedures to determine the guilt or innocence of those accused must be our utmost priority. If a trial does not provide fair procedures, we properly sense injustice regardless of the outcome. If a trial does not diligently distinguish guilt from innocence, we correctly feel injustice because we have no confidence that those deserving punishment have been found. Courts-Martial especially have struggled to be fair and just. By their actions, the British High Command undermined fairness and justice and promoted cynicism. With these causes, the effect followed: the British Army Court begot the perception that its proceedings were a lie. Legal process as sham is not a new theme in Australia or the United States, particularly after the Vietnam experiences of both nations. We no longer have confidence in governments and their institutions. Stripped of authority and legitimacy, we expect governments to be corrupt and to abuse their powers. We do not trust legal institutions to determine correctly and truthfully the events involved. We are attuned to peeling away the surface to locate the conspiracies hidden below. Our mistrust is so widespread that we find it hard to believe that anything other than a conspiracy by the powerful against the weak could explain the outcome of the Court-Martial portrayed in Breaker Morant. If, before the Vietnam era, we were too trusting of governments and the legal process, might we not fear that we are now too cynical? Even if the outcome were preordained and the legal process were corrupted, is it too facile to view Lieutenants Morant, Handcock, and Witton simply as pawns in an international chess game? If they are merely scapegoats of the empire, we risk looking right past the charges that they shot prisoners of war and a civilian witness--that they committed war crimes. If we take the historical events of this Court-Martial seriously, then we must also take seriously the guilt or innocence of these three men. Lieutenants Morant, Handcock, and Witton may well have been scapegoats of the empire, but this conclusion cannot exonerate us from facing forthrightly the charges brought against them. Morant was a poet who, even as he faced execution at sunrise, wrote lines of rhyme. "You know how we poets crave immortality," Morant told Major J. F. Thomas, the defense attorney, as he handed him his final poems with a request that they be published. Growing up, his family preferred Sunday morning readings of Bunyan's Pilgrim's Progress to church. Morant particularly liked Byron, and had committed Byron's poetry to memory, reciting it often. With a fine voice, Morant also sang at parlor gatherings for the enrichment and entertainment of the guests. He was a cultivated man of artistic sensibility. While he had gone to Australia after quarrels with his father, he had recently returned to England to repair their relationship and pursue domesticity. His commanding officer and best friend, Captain Simon Hunt, had a sister in England to whom he became engaged before joining the Carabineers. Intelligence reported eight exhausted commandos at an isolated farmhouse on the veldt. Convinced they would have the advantage of surprise, Captain Hunt led a contingent of the Carabineers in an attack upon the farmhouse. Intelligence was wrong. Surprise became ambush; victory, defeat. The Carabineers retreated, abandoning Captain Hunt on the battlefield. At base camp, after Morant learned of the debacle, he scornfully confronted Intelligence Officer Taylor who coldly replied, "I say avenge Captain Hunt." Morant's vengeance turned to fury when he found Captain Hunt's body. Morant was sickened and enraged not by Hunt's death, but by the manner of his death. Hunt's body was mutilated. Morant pushed his troops in pursuit of the fleeing Boers, overtaking them by surprise at a watering hole. In the ensuing skirmish, several Boers were killed, most escaped, and one was captured. The captured Boer, Visser, wore Captain Hunt's khaki uniform. Morant screamed, "this man killed Captain Hunt," and ordered his immediate execution. The frightened Boer denied his involvement in Hunt's death and, terror stricken, begged for his life. When confronted by Witton, who urged that they take the captured man as a prisoner, Morant stuck to his vengeful resolve. Handcock sealed the Boer's fate by rousing a firing squad with the command to the troops, "He'll never get to heaven if he doesn't die." Eight soldiers, excluding Witton and several others who lacked the stomach for vengeful fury, obeyed. Visser, the captured Boer died--executed on the Transvaal veldt. Morant had not executed prisoners prior to Captain Hunt's mutilation. At the Court-Martial, when challenged to explain the rule under which Visser was shot, Morant passionately responded that it was customary in war to kill the enemy. Morant admitted disdainfully that the execution did not look like the Court-Martial, but he reminded the Court that war is not a Court-Martial and soldiers do and are expected to use their British Enfield Caliber 303 rifles to kill the enemy. Seething, Morant answered, "We caught them and we shot them under Rule 303." Rule 303 is in the same chapter of the "Code of Human Conduct" as the rule that allows cattle posses to hang rustlers, white vigilantes to hang Black rapists, Black militants to ring Black collaborators with burning tires, and revolutionary crowds to guillotine counterrevolutionaries. The chapter title is "Summary Executions." The procedural rules for "Summary Executions" are that a charismatic leader or an unreasoning mob, despite limited evidence and protestations of innocence, identifies someone as clearly guilty and as clearly heinous--as someone deserving of the irrevocable punishment of death. This chapter, including Morant's "Rule 303," favors results over process, ends over means, and swift certainty over equivocating doubt. "Rule 303" and its related rules have a patina of higher justice promptly, albeit terribly, executed. We should not be fooled. Human beings should be respectfully suspicious of their motivations. Righteous vengeance is no justification for the immediate execution of another human being. Human beings should be diligently alert to human errors and human frailties. Certitude and passionate action are no comfort when doubt and deliberation are the better paths. Beneath the patina of justice is the hardened heart, beating to atavistic instincts that divide the world into them and us. They deserve death inflicted by us. Wars, even just wars, unleash these atavistic instincts, because war necessarily divides human beings into them and us, enemies and compatriots. By unleashing these instincts, wars have the power to change men, even cultivated men with artistic sensibilities like Harry Morant, into unfeeling killers free from moral and legal constraints about the taking of human life. Psychological bonds of friendship quickly become an avenging fury that warps the golden rule into its antithesis: "Do unto others as they have done unto you." Count Three, the killing of the German missionary Reverend Hess, especially makes us confront the scope of Rule 303. As a civilian missionary, Reverend Hess was a noncombatant, not an enemy Boer. Reverend Hess, against Morant's express orders, spoke with the six captured Boers. Morant, enraged at the disobedience, acted to end Hess's perceived collaboration with the enemy. Moreover, Morant acted because he was convinced that Hess had led Captain Hunt into the ambush at the farmhouse where Hunt died. Morant silently ordered, and certainly ratified, Handcock's response to Hess's insubordination: "Anything can happen on the way to Leydsdorp." Handcock followed Reverend Hess and, exercising "Rule 303," killed him. As applied by Morant and Handcock, "Rule 303" authorized the killing of civilian sympathizers, known and presumed, of the enemy. As ironic as it may seen, when the power of war and friendship combine to unleash vengeful fury, it is precisely then that the rules of war, as legal imperatives, are most needed to restrain our emotions, to deter our precipitous actions, and to remind us of the importance of legal procedures. Without rules of war, war degenerates completely into a world of base instincts--them versus us, kill or be killed. Without rules of war, war degenerates completely into a world where justice becomes so contorted that it means nothing more than what emerges from the barrel of a gun. Major J. F. Thomas, the defense counsel, countered with questions that challenged the members of the Court-Martial to look past the rules in the book to see the realities of this war at this time. Rhetorically, Major Thomas asked the court what these printed rules had to do with the fear and anger, the blood and death, that daily faced the Bushveldt Carabineers. Should it not be expected that when one side departs from the formal rules of war that the other side will also depart from those formal rules? How can the members of the Court-Martial justly judge the accused men unless they themselves had faced the same pressures and provocations that Lieutenants Morant, Handcock, and Witton had faced? Major Thomas argued that these printed rules of war were clear and understandable only from the calm and security of Pietersburg, but that they should not be applied to soldiers in war. Soldiers in the stress of combat duty should not be held accountable to unrealistic standards. These were not men, Major Thomas reminded the court, who possessed intrinsically barbarous natures. They were normal men in abnormal circumstances, made further aberrant by the tactics of guerrilla warfare itself. While Major Thomas did not expect "proclamations of condonation," he argued for sympathetic understanding that placed their actions beyond judgment by the court. Major Thomas also argued that the rules of war must change as the conditions of warfare change. The existence of the Bushveldt Carabineers as a unit was a response to the unorthodox tactics of the Boers. The Carabineers of necessity had to adopt irregular methods to engage the Boers and were therefore used to breaking the traditional rules of warfare in order to fulfill their mission. While the rules of war prohibited using prisoners as shields from attack, prosecution witnesses admitted under cross-examination that placing railway cars filled with Boer prisoners as the lead car for British trains stopped the bombing of rail lines. Major Thomas forced Captain Donald Robertson, a prosecution witness, to admit that he too had continued to use this tactic because "though irregular, it was effective." With his arguments, Major Thomas tapped into inherent tensions between law and society. Laws must sensibly reflect the society they are meant to serve. Laws that set unrealistic standards either are ignored or are perceived as moralistic posturings. These laws become symbolic laws only. Moreover, those who apply the law must be willing to apply the law to themselves, and be willing to be judged by the same standards applied to others. If legislators, prosecutors, judges, or administrators enforce laws that they would not apply to themselves, they are properly subject to accusations of hypocrisy for applying double-standards. Handcock expressed his feelings that symbolic laws were being hypocritically applied when he taunted Witton's scruples, "Don't talk to me about right and wrong." Yet we should pause to consider whether Major Thomas's argument proves too much. Is Major Thomas arguing that there can be no rules and no fair condemnation when times and conditions are too far beyond the ordinary realms of law and society? Is Major Thomas arguing that precedents set in this war--the unorthodox Boer tactics and the forced relocation of Boer women and children into concentration camps--permits each side to excuse additional barbaric conduct? Should we accept the justification offered by Morant for the killing of the German missionary? "This is a new war in a new century, George." Morant explained to Witton, "Some of the enemy are women, some children . . . and some just happen to be missionaries." We do not have to believe that there exists a divine being dispensing eternal rules and perfect justice in order to defend the proposition that law and morality still matter, even in times as uncivilized as warfare. Even in warfare, human beings cling to principles that they individually consider transcendent. For example, Handcock insisted that the British Army Court respect his promise to two Boer women that they could testify through affidavits that he had entertained them in their homes on the afternoon that Reverend Hess was killed. Handcock believed he had an obligation to protect their reputations. In response, Lieutenant Colonel Denny, the presiding officer, expressed his embarrassment that Handcock, an officer in forces under British command, would be intimate with married women--one whose husband was a Boer prisoner of war and the other whose husband was still a Boer commando. Denny believed it was "moderately disgraceful" for Army officers to undermine marriage vows. We, like Handcock and Denny, may have trouble distinguishing the important rules of law and morality from the conventional, but difficulty is no excuse for ignoring the task. Even if we do not abide by the standards of conduct that we ourselves set for the conduct of warfare, should we not agree with Captain Robertson's weak response, as he was forced to admit his own violations of the rules of war, that "there has to be a limit." Are not those limits reached when Morant seemingly justifies the massacre of women, children, and civilians because "this is a new war in a new century." Has not our century taught us that as difficult as it may be we must not allow soldiers to kill noncombatants? We should not allow it in Argentina, Bosnia, Cambodia, Chechnya, El Salvador, Sudan, Ruwanda, or Vietnam. Nor should we allow it in South Africa--now, or in 1902. When Major Thomas reminded the court that his clients did not possess an intrinsically barbarous nature, he was also unintentionally admitting that his clients had a civilized nature. As men with civilized natures, his clients thus were capable of knowing and acting upon standards of right and wrong. Hence, far from letting Handcock's taunts about talk of right and wrong silence us, we must continue to talk. We must continue to converse about right and wrong in order to discover our moral and legal feelings, in order to articulate right and wrong in moral and legal codes, and in order to shape our consciences and our conduct in accordance with our conversation. As appealing as Major Thomas's arguments are about how unique the Boer War was and about how abnormal the conditions were, we must reject the conclusion that his client's actions are beyond judgment if we are to retain our belief in a common humanity. Our belief in a common humanity demands that we hold that gratuitous killing of other human beings--no matter how trying the circumstances or unclear the rules--deserves condemnation. We should not permit war crimes by enshrining our human weaknesses as our guide. We should be better than our baser instincts. Lieutenants Morant, Handcock, and Witton claimed the defense based on the orders and the conduct of their preceding commanding officers. As for orders, Captain Simon Hunt, before his death, had told his subordinate officers that Boer prisoners caught wearing British khaki were to be shot (Count One). Later, Captain Hunt informed them that, upon further instructions from Pretoria, the gentlemen's rules of war about taking prisoners were over. The Carabineers were to take no prisoners (Count Two). Moreover, Captain Hunt and Captain Robertson, Hunt's predecessor, had in fact executed Boer prisoners in accordance with these orders. Precedent had thereby been established concerning the standard operating procedures for the Bushveldt Carabineers. Major Charles Bolton, the prosecutor, and Lieutenant Colonel Denny, the presiding officer, did not directly deny that Courts-Martial recognized a defense of acting on orders. Rather, they insisted that no such orders had been issued. Denny expressed disbelief that Field General Lord Kitchener, the most senior and venerated officer in the British military, could have issued orders of such barbarity as to kill all prisoners. Furthermore, Denny understood that the order to shoot Boers caught wearing British khaki only applied if they were caught in circumstances indicating an intent to deceive. To these expressions of disbelief, Major J. F. Thomas, the defense attorney, forthrightly replied, "I don't know." He demanded that the Court issue a subpoena to Lord Kitchener to appear. Thomas determined to present the best evidence of whether such orders had been issued and, if so, the content of those orders. As so often happens, Lord Kitchener (conveniently) was unable to attend. He sent instead his senior aide, Colonel Ian Hamilton, with the instruction, "I think you know what to say." Facing unchallengeable perjured testimony from Colonel Hamilton that no orders had been issued to kill Boer prisoners, Lieutenant Colonel Denny insisted that enough had now been heard of the defense of acting under orders. Determined to make the court face the defense, Major Thomas refused to yield and argued that Colonel Hamilton's testimony was irrelevant. Thomas contended that even if Lord Kitchener had not issued the orders Captain Hunt related and implemented, Lieutenants Morant, Handcock, and Witton were still correct in following orders from their immediate superior officer. Major Thomas asserted that Captain Hunt deserved to be obeyed and the defense stood on that ground. Just as Morant, Handcock, and Witton claimed the defense of following orders based on the orders and conduct of their superiors, so those subordinate to them also claimed the defense to justify their participation in the killings. The Boer scout for the Carabineers falsely denied that he voluntarily, vengefully joined the firing squad for Visser. He joined it, he said, only because he was commanded to do so. Similarly, when Major Thomas challenged Major Bolton, the prosecutor, to prosecute those enlisted soldiers who joined the firing squads, Bolton, without sensing any moral or legal inconsistency, replied that the soldiers were acting under orders. But should we permit this defense based on the conduct and orders of commanding officers in the field? Should we allow Captains Hunt and Robertson to immunize their junior officers? Should we allow Lieutenants Morant, Handcock, and Witton to immunize the soldiers in their units? If the defense is to be allowed, should we insist that unequivocal orders come from the highest authorities? Should we allow the high authorities to immunize their armies from accountability for war crimes? To ask these questions is to make us aware that the defense of following orders is, to a significant degree, an attempt to pass moral and legal responsibility on to others. For the immediate response of those in the highest military command likely will be to claim that they acted under orders from the King, the Prime Minister, the President, the maximum leader of the nation. These maximum leaders in turn will respond that they only acted under orders from the will of the people or the sovereign nation. In this way, all are responsible and none are accountable. The defense of acting on orders is about legal and moral accountability for our actions. By attempting to prove that the orders to kill captured Boers came from Field General Lord Kitchener himself, Lieutenants Morant, Handcock, and Witton were attempting to place legal and moral blame, if any, on the British high command. With blame brought to rest on the high command in Pretoria, no blame remained to rest on them in the Transvaal. However, blame and accountability are not commodities limited by quantity or geographical distribution. They are about our own hearts, our own choices, and our own actions. To place all the blame and accountability on the British high command is to demonize Kitchener, allowing us to take refuge in the claim, "the devil made me do it." Instead of demonizing others, ought we not recognize that we each possess evil in our nature? To place all the blame in Pretoria is to put the Transvaal beyond the boundaries of law and morality. Ought we not resist transforming any place on earth into a legal and moral desert? Yes, in light of the actions of the British high command, those with the most power and the greatest leeway often escape Court-Martial. We must simply hope that they will eventually face the rightful judgment of history. Yes, in light of the circumstances facing the Bushveldt Carabineers, those who serve as members of Courts-Martial may impose sanctions that seem too severe for what humanly could have been expected of the accused. We must simply hope that human judgment, filled with fairness and compassion, will distinguish those fully accountable from those lesser accountable and from those deserving mitigation. These dangers of unjust escape and excessive severity should not, however, prevent us from holding soldiers, of whatever rank, accountable for their actions. No matter how trying the circumstances, no matter how forceful the pressures, no matter how sympathetic we feel about the dilemmas they face, officers do not have to issue commands to kill prisoners and civilian sympathizers. Soldiers can refuse to obey such commands. Lieutenant Witton and other Carabineers did refuse to participate in the execution of the Boers. Witton expressly argued that vengeance, not orders, motivated the killings. Witton insisted that the rules of war be followed by transporting the Boers to British forts as prisoners of war. Witton persisted that the rules of war commanded attention to white flags of surrender when Morant pretended not to see. Witton's actions show Lieutenants Morant and Handcock were making choices too. Soldiers can make choices about the reasonableness and the justness of commands and their commanders. Morant's decision to kill the German missionary had no basis in superior commands. He acted from pique--upon anger at being disobeyed by a civilian sympathetic to the Boers. Hancock could justly be expected to understand that Morant's command to kill the German missionary carried no authority which needed to be obeyed. Moral blindness explains the actions of Morant and Handcock better than superior compulsion. Precisely when the Transvaal is being transformed into a legal and moral desert is the time when the we must remind soldiers to disobey courageously. We must remind soldiers that they can and will be held accountable for their actions. CourtsMartial provide both the moral reenforcement of encouraging soldiers to virtue and the behavioral sanction of reminding them that no place is beyond the boundaries of law and morality. Courts-Martial must water the saplings of courage and right conduct if they are to survive the harsh environment of war. In his initial contacts with the defendants, Major Thomas revealed little to dispel the high command's expectations. He had tried no Courts-Martial. He had tried, in fact, no cases at all in his practice as a small town solicitor in Australia. When Morant and Witton anxiously inquired what sort of lawyer he was, he informed them that he had handled land transactions and wills. His answer provoked Handcock's mocking response, "Wills might come in handy!" By the following morning when the Court-Martial began, Morant, Handcock, and Witton had no confidence in Thomas. Thomas could not remember information or keep facts straight; he dropped his notes and chased them as they blew around the prison yard; he ruffled through disorganized notes to find his arguments and questions. From all appearances, Morant, Handcock, and Witton would have been better off if they acted as their own attorneys. In the courtroom, Major Thomas immediately surprised everyone. Before Lieutenant Colonel Denny, the presiding officer, could even read the charges, Thomas twice objected. He argued that he should be given an adjournment for additional time to prepare. He argued that the British Army Court was unconstitutional because it lacked jurisdiction to try Australian citizens. It did not matter that Thomas spoke hesitantly; it did not matter that the Court denied both objections; for as he spoke confronting the Court, Thomas began to find his voice. The prosecution called as the first witness Captain Donald Robertson, the commanding officer of the Bushveldt Carabineers before Captain Simon Hunt. Robertson testified that the Australians were undisciplined soldiers, disrespectful of authority, who used unorthodox tactics in dealing with the Boers. Thomas shocked the court, the prosecutor, and his clients when he strongly counterattacked. Through cross-examination, Thomas forced Robertson to admit that the unorthodox tactics were effective and that Robertson himself had adopted them. As Robertson left the stand discredited, Handcock signalled his new-found confidence in his defense attorney by shaking Thomas's hand. The defendants had learned what kind of lawyer he was--Thomas was a zealous advocate. Major Thomas believed that the Court-Martial was a trial--a legal process bound by rules of procedure and evidence. He did not believe that the Court-Martial was or should be treated as a sham organized to endorse a preordained result. Consequently, he insisted on his clients' procedural rights. He argued for time to prepare. He objected to testimony that was irrelevant. He cross-examined vigorously. He demanded that subpoenas be issued for defense witnesses. He challenged the rulings of the court. He fought the command influence permeating the trial. He refused to be intimidated into withdrawing his requests or his line of defense. Major Thomas, in today's common parlance, believed in procedural due process. He believed that a fair and impartial legal process was a necessary, though not sufficient, cause of justice. Major Thomas also believed in substantive justice. He believed that the British Army Court faced four distinct decisions involving the facts and law. If, and only if, the Court straightforwardly addressed these four distinct questions through a fair and impartial legal process would the necessary and sufficient conditions for justice exist. Thus, Major Thomas presented a four-fold defense:
[122] completely. Impliedly, he also argued that following orders minimally mitigated the charge to a criminal homicide less than murder. Thomas knew that by reducing the crime to a lesser homicide than murder his clients would avoid the death penalty.
Aside from his four-fold defense, Major Thomas responded creatively to circumstances with a fifth plea. Before court began one morning, the Boers raided the Piertersburg compound. They were repulsed because of the skill and bravery of Morant, Handcock, and Witton. Thomas immediately confronted the court with the Duke of Wellington's axiom: Extraordinary bravery by a prisoner confronting charges works a pardon for the accused. Thomas persisted in his argument until lieutenant Colonel Denny, the presiding officer, was provoked to exasperation, "What does Duke of Wellington have to do with this trial!" When taken together, these five points presented a sophisticated defense. Major Thomas had fine analytical skills that combined with his zealous advocacy to make him a formidable opponent of the prosecutor and a dedicated defender of his clients. He was the kind of lawyer that criminal defendants deserve in an adversarial system meant to protect and cherish fairness and truth. If the British Army Court had cherished fairness and truth, they would have struggled to define the rules of war in the circumstances faced by these defendants. They might have distinguished Counts One and Two (the killing of Boer prisoners) from Count Three (the killing of the German missionary). They should have acquitted Lieutenant Witton while finding Lieutenants Morant and Handcock guilty. They could have considered mitigating circumstances of lesser crimes, lesser punishments, and even pardons. Lacking sufficient attachment to fairness and truth, the British Army Court did none of these. They listened not to Major Thomas; they listened to High Command. Major Thomas, however, was more than a superb defense lawyer, he was a lawyer of integrity. He knew that the most serious charge was Count Three about the killing of the German missionary. He refused to accept Handcock's fairy tale explanation that on the afternoon of the missionary's death he had been hunting on the veldt. Unlike the prosecutor, Thomas refused to tolerate fictitious testimony or to be a party to perjury. Thomas advised Handcock that a failure to testify would be taken as an admission of guilt. Yet Thomas made it clear that if Handcock would not be forthcoming, Thomas would rest the case without Handcock's testimony. Acquittal at the price of integrity and truth had no appeal for Major Thomas. Despite his passion for truth and his intolerance for perjury, Major Thomas did not know that Handcock's alibi testimony was a half-truth. Handcock did not commit perjury when he testified that he visited Boer women on the afternoon of the missionary's death. Major Thomas did not present false evidence when he introduced the Boer women's affidavits that Handcock had entertained them on that day. What Thomas did not know was that these visits were later in the afternoon than the time of the killing. Witton was correct when he complained to Morant and Handcock that they had always told the truth. Witton was not correct that Morant and Handcock had engaged in the same reprehensible trial misconduct as the prosecution. Morant and Handcock had failed to tell the truth not at trial, but to Major Thomas, because they did not share Thomas's faith that when truth and fairness met, justice would prevail. If the prosecuting attorney, Major Bolton, had shared Thomas's integrity, he would have refused to present perjured testimony. He would have done his own investigation, rather than relying so heavily upon the Court of Inquiry's evidence. He would have challenged Handcock's alibi to discover truth rather than reputation. Lacking sufficient attachment to integrity, Major Bolton did none of these. He failed to imitate Major Thomas because he placed his confidence in the court's predisposition to guilt. Broken in spirit, Major Thomas returned to say farewell to his clients. For the failure he felt, he tried to express his feelings only to be interrupted by Morant's response, "Cheer up, it's a good day for a funeral." After the war, Major Thomas returned to his law practice in Tenterfield, New South Wales where he lived as a semi-recluse. Breaker Morant is not the story of Major J. F. Thomas. It is the story of the Court-Martial of Lieutenants Harry Morant, Peter Handcock, and George Witton. What drew me to see this film many times, however, was not the drama of the CourtMartial, but the integrity of Major Thomas, the town solicitor appointed defense attorney. In these days when we have so few heroes, Major Thomas is a hero--much more so than Lieutenants Morant and Handcock, the two main protagonists in the film. Only Thomas kept the faith--for faith it ultimately is--that legal process and the rule of law can find truth and pronounce justice. All others in the film show the corruption of power, the cynicism of winning, and the evasion of responsibility by which human beings have turned legal trials into political shows, crimes into excuses, and others' deaths into the means we use to achieve our own ends. Major Thomas stands apart from corruption, cynicism, and evasion. He stands as a lawyer worthy of emulation. As important, Breaker Morant, does not tell a romanticized story of lawyer as hero. Major Thomas was not a triumphant lawyer who overcame all odds. He did not successfully defend his clients. He suffered the agony of losing clients to the firing squad. He was affected by the trial for the remainder of his life. His reclusive lifestyle after the loss proclaimed his distress, his disappointment, and his sorrow. Major Thomas found no easy solace. He learned only what we must learn: good lawyers must accept integrity as the best reward. Breaker Morant tells Major J. F. Thomas's story only coincidentally to the Court-Martial. Yet, it is Major Thomas who allows me to resolve the movie's themes. Ideally, Breaker Morant would lead us to build monuments to peace. Unfortunately, our human tendency is to build war monuments to Kitchener in Britain and to Morant and Handcock in Australia. By remembering Major Thomas's story, however, we can build monuments to a deserving person who in this Court-Martial determinedly met the highest ideals of his profession. More importantly, we as human beings, especially lawyers, can build monuments of homage by building lives of integrity in emulation of him. |
