University of South Dakota School of Law From the SelectedWorks of Jonathan Van Patten 2020 The rT ial of Breaker Morant Jonathan K Van Patten Available at: https://works.bepress.com/jonathan_vanpatten/36/ THE TRIAL OF BREAKER MORANT JONATHAN K. VAN PATTEN† I. INTRODUCTION 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 Copyright © 2020. All rights reserved by Jonathan K. Van Patten and the South Dakota Law Review. † Professor of Law, University of South Dakota School of Law. I thank Alexander Sieg (USD Class of 2018) for his very important contributions to this Article, Derek Nelsen (USD Class of 2009) for his always careful reading of my drafts, and Thad Titze (USD Class of 2020) for his advice and counsel. I also wish to acknowledge the influence of Professor A.J. Slavin, Professor Emeritus, University of Louisville, and formerly Professor of History, University of California at Los Angeles. Professor Slavin kindled my interest in political trials during a course on Reformation England, with an impromptu lecture regarding the meaning of the then ongoing Bobby Seale murder trial. That lecture changed my life. His analysis was fresh, exciting, and full of insight. I wanted to talk like that. He inspired me to think seriously about law school. While in law school, I continued to take his graduate level courses and he shaped me in ways I feel to this day. His insistence on clear thinking and meaningful writing (through WILLIAM STRUNK, JR. & E.B. WHITE, THE ELEMENTS OF STYLE (4th Ed. 1999)) was exactly what I needed to make my law review experience indispensable. Although Professor Slavin and I differed considerably in our political views, we had a common mentor in Eric Voegelin. He did not try to dominate my political thinking, just as his teacher did not with him. A great teacher is a guide, not a tyrant. For me, the writing and political analysis came together in my first publication, Magic, Prophecy, and the Law of Treason in Reformation England, 27 AMERICAN J. OF LEGAL HIST. 1 (1983). This current article is another installment in a series that began unexpectedly on a spring a fternoon in 1970 in a history classroom at UCLA. Thank you, Professor Arthur Joseph Slavin. 1. POLITICAL TRIALS IN HISTORY: FROM ANTIQUITY TO THE PRESENT xv (Ron Christenson ed., 1991). 2. See id. (noting that trials may teach us more about societal issues than what the prosecutors or judges intended). The breaking and entering conviction of Clarence Earl Gideon led to a constitutional landmark for the right to legal counsel. Gideon v. Wainwright, 372 U.S. 335, 336-45 (1963). See ANTHONY LEWIS, GIDEON’S TRUMPET 209 (1964) (providing in-depth discussion on the background of Gideon v. Wainwright). Property owners sued African-American home buyers to enforce a racially restrictive covenant that ultimately resulted in the invalidation of such covenants nationwide. Shelley v. Kraemer, 334 U.S. 1, 4-23 (1948). A slave who had traveled to a free soil state brought a legal action for his freedom. Dred Scott v. Sandford, 60 U.S. 393, 393 (1857). The Supreme Court denied his claim on the ground that, as a slave, he was a not citizen and thus had no standing to sue in federal court. Id. at 393-96. This unfortunate outcome became a significant factor in the movement toward the eventual Civil War. See DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW & POLITICS 5 (1978) (noting the significance of Dred Scott in “the configuration of forces and events that produced the Civil War”). 3. See, e.g., William J. Chambliss, Toward a Radical Criminology, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 230-31 (David Kairys ed. 1982) (“Studies of the lawmaking process discovered that many acts come to be defined as criminal because of the interplay of power and political struggles 2020] THE TRIAL OF BREAKER MORANT 105 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. 6 7 8 9 In a political trial, however, issues of politics, abuse of power, revenge, truth, reflecting economic conditions.”). See also Nadine Taub & Elizabeth M. Schneider, Perspectives on Women’s Subordination and the Role of Law, in THE POLITICS OF LAW, supra, at 118 (“Men dominate both the public sphere and the private sphere. Male control in the public sphere has often been consolidated explicitly by legal means.”); Richard L. Abel, Torts, in THE POLITICS OF LAW, supra, at 187 (“Capitalist tort law exploits and alienates tort victims in ways that parallel the exploitation and alienation of labor by the capitalist mode of production.”); David Rudovsky, The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW, supra, at 243-44: [E]ven fair criminal proscriptions and procedures operate unfairly due to the inequity of our social structures. The quality of counsel, investigative efforts, and other critical aspects of the defense are greatly dependent on the wealth of the defendant. Furthermore, institutional restraints operate to overload public defenders, and the system offers incentives and imposes retributions aimed at discouraging jury trials and not-guilty pleas (including the common court- sanctioned practice of imposing longer sentences for those who are convicted by a jury). While the public perception of fairness is largely molded by widely publicized show trials, over 80 percent of all criminal cases are disposed of by guilty pleas, many of which are questionable both from a legal and social perspective. See also Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. OF LEG. ED. 518, 518 (1986) (describing the legal reasoning used by judges who are presented with a conflict between the law and the way the judge wants a case to come out); Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. REV. L. & SOC. CHANGE 369 (1982-83) (“[T]he legal system is an important public arena through which the state attempts . to legitimize a social order that most people find alienating and inhumane.”); Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591 (1981) (challenging “the falsely complacent sense that [doctrinal] arguments, while grounded in politically controversial purposes, are deduced or derived in a rational and coherent fashion once the purposes are settled”). 4. See Carol Hanisch, The Personal Is Political, WOMEN OF THE WORLD UNITE! (Jan. 2006), http://www.carolhanisch.org/CHwritings/PIP.html (discussing personal involvement in politics). See also NOTES FROM THE SECOND YEAR: WOMEN’S LIBERATION, MAJOR WRITINGS OF THE RADICAL FEMINISTS (Shulamith Firestone & Anne Koedt eds., 1970) (examining personal involvement in politics from feminist perspectives). 5. Often attributed, perhaps erroneously, to Sigmund Freud, this aphorism has come to mean that sometimes there is no hidden or symbolic meaning. See, e.g., Fred R. Shapiro, The Cigar Quote Primer, CIGAR AFICIONADO (Nov/Dec 2007), https://www.cigaraficionado.com/article/the-cigar-quote-primer- 9036 (examining the quote’s usage and meaning). It is what it is. Id. 6. A MAN FOR ALL SEASONS (Columbia Pictures 1966) (the trial of Thomas More); CHRISTENSON, supra note 1, at 40-42 (the Boston Massacre trial); Id. at 95-98 (Eugene V. Debs). The Camden 28 is a documentary film about members of the “Catholic Left” who were arrested in 1971 for attempting to break into and vandalize a draft board in Camden, New Jersey. CAMDEN 28 (First Run Features 2007). Among the defendants was my colleague and friend, Frank Pommersheim. See, e.g., ECC MEDIA, LLC, Camden 28, CAMDEN 28 (2014), http://www.camden28.org/; RON CHRISTENSON, POLITICAL TRIALS: GORDIAN KNOTS IN THE LAW 105-46 (1986) (Ch. 5 – Trials of Dissenters: The Question of Conscience). 7. See, e.g., ARTHUR KOESTLER, DARKNESS AT NOON (1940) (although there was no trial, as is commonly understood, there was an extended interrogation prior to execution that revealed the workings of a totalitarian regime); ALEXANDER SOLZHENITSYN, THE GULAG ARCHIPELAGO 1918-1956: AN EXPERIMENT IN LITERARY INVESTIGATION (Thomas Whitney trans. 1973) (chronicling the incarceration of Alexander Solzhenitsyn, without trial, on account of a disrespectful remark about Stalin). See also ARMANDO VALLADARES, AGAINST ALL HOPE: THE PRISON MEMOIRS OF ARMANDO VALLADARES (Andrew Hurley trans. 1986) (describing abuse of power witnessed in Cuban prisons during Fidel Castro’s rule). 106 SOUTH DAKOTA LAW REVIEW [Vol. 65 fairness,10 justice,11 or injustice12 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 15 begin to consider the meaning of what has taken place.