AuthorVan Patten, Jonathan K.

    A political trial offers an instructive window into law and politics. Any trial, of course, has important consequences for the parties. There are some trials, however, that transcend the particulars and serve as "interpretive moments." (1) A trial may have started as a simple dispute between the participants, but, it may also serve to reveal deeper values or conflicts underlying the law and society. (2) Trials that bring forth such revelations may be seen as political trials.

    Not every trial is a political trial. Some may contend that because trials are about power, all trials are inevitably political. (3) The proposition that "the personal is political" makes much the same argument. (4) But no. Not everything is political. Much of the time, a cigar is just a cigar. (5) Every day, there are thousands of cases that resolve matters without bringing forth larger questions. In a political trial, however, issues of politics, (6) abuse of power, (7) revenge, (8) truth, (9) fairness, (10) justice, (11) or injustice (12) are grounded in a specific context that permits consideration of these larger questions. Classifying a matter as a political trial--or not--is not as important as what the trial might teach us about our legal system or about ourselves. Trials are about facts. But trials are also stories, and stories are about meaning. Political trials are moral stories. They are like plays, sometimes comic, (13) sometimes tragic, (14) where we experience the particular and begin to consider the meaning of what has taken place. (15)

    Breaker Morant, (16) an Australian film released in 1980, illustrates how the drama of a trial evokes consideration of larger issues. The trial involved the court-martial (17) of three Australian soldiers, fighting on behalf of the British Empire during the Second Boer War in South Africa. (18) They were charged with the murder of several Boer prisoners and a German missionary. While some trials begin in a simple way and only later come to be viewed as political trials, this one was a political trial from the start. In fact, that was the point.

    During the nineteenth century, the reach of the British Empire had stretched to southern Africa. (19) The commercially oriented Dutch influence had begun to wane in the region, although the farmers who had emigrated there remained. (20) These former Dutch settlers resisted assimilation and were known as Boers. The Boers inhabited a large land area known as the Transvaal that barely supported agriculture in the region. The discovery of substantial diamond deposits in 1867 rekindled British interest in the area. (23) In December 1880, the Boers rebelled against British rule and reforms. (24) The British quashed the rebellion, but an uncertain peace followed. (25) After several military losses during a relatively short war, the British agreed to a peace treaty in March 1881. (26) The British relinquished government of Transvaal to the Boers for internal matters, but retained control over foreign affairs. (27) It is fair to say that the wishes of the indigenous people were not considered. (28)

    The peace achieved in 1881 was shaken in 1886 by the discovery of gold-bearing ore in the Transvaal. British interest in the region increased once again. (30) Escalating hostilities finally led to a Second Boer War in 1899. (31) Again, the British military forces were initially not up to challenges posed by the Boer insurgents. (32) Utilizing excellent marksmanship and more flexible modern tactics, the Boers inflicted heavy losses on the British. (33) During one week in December 1899, the Boers won battles on three different fronts. (34) The only good news for the British that week was the successful escape of Winston Churchill from a Boer prison. (35) The British finally realized that they could not win through sheer superior numbers operating under old-style tactics. (36) Field Marshall Frederick Roberts, along with Field Marshal Flerbert Kitchener, were sent to take over command and to deploy tactics more likely to overcome the Boers' guerilla warfare. (37) Kitchener created a special mounted infantry regiment for this task. (38)

    The Bushveldt Carbineers was a regiment of approximately 350 men. (39) It was essentially a cavalry unit, which allowed for quicker strikes at the Boers. (40) The Carbineers were a rougher sort of soldier, with almost half of them Australians. (41) Far away from the British military headquarters at Pretoria, the Carbineers operated from Fort Edward, a makeshift fort outside of Pietersburg, with little provision for the holding of prisoners. (42) As the Carbineers began to wear down the Boers, a problem developed: What to do with the increasing number of prisoners? It is with this question that the story begins.


    The film opens in the quiet town of Pietersburg, in the Transvaal region of what is now South Africa. (43) The year is 1902, the last year of the Boer War. A military court of inquiry has just completed its investigation of the deaths of several Boer prisoners and a Gennan missionary. Lieutenants Harry Morant, Peter Handcock, and George Witton, of the Bushveldt Carbineers, stand accused of the deaths. When asked for a statement, Lieutenant Morant introduces himself, with both dignity and his customary sense of irony, and briefly describes the events leading to the charges. He then takes full responsibility for what occurred, but points out that he was "acting under orders." (44)

    The first of many flashbacks in the narrative follows:

    A patrol of Bushveldt Carbineers, led by Captain Hunt, stand outside of a rock-faced hut with a wall around it. After observing no sentries or horses, Trooper Botha, a scout of Boer descent, is consulted. He says, "they have returned from the Cape Colony. They are very weak." Captain Hunt and his men proceed towards the hut, believing they have the element of surprise. But they are ambushed by Boer soldiers hiding behind a wall. Hunt is shot, along with others, and the order for a retreat is given. Hunt is left behind, but just before the scene ends, he is seen shooting a Boer soldier.

    Captain Hunt's patrol returns from the ambush to Fort Howard and Sergeant Major Drummonds reports. Lieutenant Handcock calls for "the Breaker," Lieutenant Morant. Handcock asks the patrol what has happened, but no one answers. Morant emerges from an unmarked building and observes the disheveled patrol. He realizes that Captain Hunt is not among them.

    When asked where Captain Hunt is, Botha tells Morant, "there were many men. Captain Hunt was shot." Sergeant Major Drummond remarks, "there was nothing we could do. Bullets whizzing around us like blowflies. Lost five men." Morant tells Lieutenant Witton to "get saddled up." Drummond repeats, "there was nothing we could do," suggesting that the Boers must have known they were coming. Handcock suggests that Botha was the one who warned the Boers of the patrol. Morant approaches Captain Taylor, criticizing his intelligence report, "eight Boers, exhausted. That's what you said. Horses with fever, you said. What do you say now?" As Taylor contemplates his answer, Drummond can be heard, "they were waitin 'for us." Captain Taylor then responds, "I say avenge Captain Hunt." (45)

    The screen goes dark as we are returned to the present in Pietersburg. A military band is heard in the background. (46) We see the defendants emerging from their cells and marching to a small room where the presiding officer awaits them. He informs them that the court of inquiry has concluded that they will face a court-martial, while continuing to be held under close arrest. (47)

    From there, the scene shifts to the elegant military headquarters in Pretoria. Major Charles Bolton arrives by carriage to see Lord Kitchener, then commander of the British forces in South Africa, and his aide, Colonel Hamilton. After a perfunctory greeting, Kitchener quickly moves to the purpose of the meeting:

    [Kitchener]: I have a rather important prosecution I want you to handle.

    [Bolton]: Yes, sir.

    [Hamilton]: Charles, you've heard of the Bushveldt Carbineers?

    [Bolton]: Yes, I have, sir. A special force raised by Lord Kitchener to deal with the Boer guerrillas.

    [Hamilton]: Correct. Colonials, most of them. Australians.

    [Bolton]: I understand they've been quite effective.

    [Hamilton]: Very effective. We've just arrested three of them for shooting Boer prisoners and a German missionary.

    [Kitchener]: I've received, Bolton, a telegraph message from Whitehall. (48) The German government has lodged a serious protest ... about the missionary in particular.

    [Bolton]: Yes.

    [Kitchener]: The Kaiser, as you know, is our late Queen's grandson.

    [Hamilton]: The fact is that Whitehall feels the Germans are looking for an excuse to enter the war. On the Boers' side, of course. We don't want to give them one.

    [Kitchener]: Needless to say, the Germans couldn't give a damn about the Boers. It's the diamonds and gold of South Africa they're interested in.

    [Bolton]: They lack our altruism, sir.

    [Kitchener]: [Hesitating] Quite.

    [Hamilton]: Here's the report of the preliminary inquiry. The evidence against the Australians is overwhelming.

    [Bolton]: Who's handling the defense, sir?

    [Hamilton]: We expect no difficulties there. Selected one of their own chaps, a major from the New South Wales Mounted. (49)

    This exchange is laden with irony and understated British humor. The British entered the Second Boer War with designs on the gold-mining complex located in the districts of Pretoria and Heidelberg of the Transvaal region of the South African Republic. (50) This was the largest such operation, at a time when the countries of the world--especially the British--were dependent upon gold.

    The scene then shifts back to Pietersburg. Witton is in shock that they are being court-martialed. His family believed in the British Empire. He volunteered "to help keep the Empire together." Handcock remarks that he...

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