Firstly, a little history. The Umpire’s original posts on this subject were The Past is a Foreign Country (June 2006), Private Farr Again (also June 2006) and Private Farr is Pardoned (August 2006). I read those in reverse order, and my eye was caught by a point in the earliest one:
It is fashionable these days to disdain our forebearers; our ancestors whose world was unimaginably different from our own. Here is another press letter I had published earlier this year in which I sought to stress that well-known saying of LP Hartley in The Go Between which I have adopted as the title for this post.
Trevor Harvey is right to infer that we should not attempt to pass judgment on events in our distant past such as the execution of Pvte Harry Farr for cowardice during the First World War. Already the case has taken up valuable judicial resources, as indeed have other recent reviews of long ago cases such as Derek Bentley, Ruth Ellis and James Hanratty. In all of these cases judicial proceedings only came about because of the accident that each of the deceased had living relatives. We should not expend public resources on cases which turn on that happenstance.
Debating whether the likes of Pvte Farr suffered shell-shock is a matter of interest for medical historians but we should hesitate long and hard before presupposing to pass judgment on events as far removed as the Great War. It is fashionable to dismiss the generals of the day as ‘donkeys’ and to rail against the supposed brutality of shooting for deserters. But it should also be recalled that of all the armies which were involved in the war from the outset, only the British did not suffer a severe collapse of morale at any point as well, of course, as emerging victorious.
The logical conclusion of what you say here is that injustices from the past should not be pursued, nor should judicial resources be wasted, even given the 'accident' of living relatives. We would live in a very sorry society indeed if injustices such as unsolved murders were simply abandoned once they were considered past their 'sell-by date'. The existence or otherwise of living relatives is in one sense irrelevant to the moral proposition you put forward; on the other hand such relatives are surely entitled to have their feelings and hurt considered. "Of all the armies which were involved in the war from the outset, only the British did not suffer a severe collapse of morale at any point" Are you suggesting that what maintained the morale of the British troops was the knowledge that they faced execution if they displayed cowardice? To me, the Home Secretary made exactly the right decision in making no judgement whatever over individual cases, but accepting the likelihood that some executions were unjustified.
The total number of murders that have been committed is obviously very great indeed. Judicial resources in the present day, as ever, are scarce and very expensive. We cannot possibly investigate every supposed past injustice. Where the convicted person and everyone else involved in the case are dead, and all the surrounding circumstances have vanished, that has to be a very strong reason - albeit not necessarily decisive - against re-opening cases. I appreciate that where there happen to be living descendants, they may feel strongly about the stain on their family history - but there are many present-day people behind bars and facing trial who should have first call on the resources of the state. The fact that some cases in the past involved defendants who have living relatives is the only reason that they are now being investigated; it does not seem to me compelling that that should be so. It might be that wrongly convicted men remain convicted because they lack living relatives; I am not sure that in the grand scheme of things the existence of (say) a great-grand niece should have anything to do whether the state chooses to reopen one old case as opposed to another - or rather, as opposed to not opening old cases at all.
The Umpire responded to my comments with a fourth post Mutiny Again where he answered my points thus:
And in response to my query as to the suggestion of a link between morale and executions:
No, not at all. The point related not to the case of Pvte Farr specifically, but to the general context of popular perception of the incompetence and injustice of the First World War as a whole. You may have seen numerous posts I wrote on the Great War last year attempting to set something in the balance against the idea that the Generals were all callous butchers. One of the authors whom I drew upon, Gordon Corrigan, has investigated some of the executions in detail and concluded that it was by no means clear that any injustice had occurred (bearing in mind, among other things, that the death penalty was still in force and still used in those days for civilian murders). And of course a lot of soldiers were sentenced to death but the penalty was not in fact carried out, which goes against the idea that a load of commoners and Irish were being topped as a lesson to the rest. Certainly I was not suggesting that the British army survived due to the threat of execution (the French army had rather more of those and did indeed collapse as an offensive force). Rather I was pointing out that it cannot have been led as badly as the likes of Oh What a Lovely War or Blackadder IV might have one believe.
I commented:It's almost impossible to know where to begin in responding to this. But I'll offer the following as a starting point: If we don't examine alleged wrongs from the past, we won't learn from them. And if we determine that a wrong has been committed, and it is a wrong that can (at least in part) be righted, aren't we failing in our moral responsibility if we chose not to do so? The greater the wrong, surely the more important that wrong is corrected, if it is within our power to do so? For example, it matters not one jot in 2008 that John Smith was given a parking ticket in 1942, but surely that does not mean that victims of the Holocaust (or their descendants, through the 'accident' of being alive) should be denied justice? Injustices that involve the state taking an innocent life are not casual matters that should simply be cast aside; indeed, it is the mark of a civilised society that it does not do so. Even within the timescale you appear to contemplate, relatives not only suffer the 'accident' of still being alive, but may well have been alive at the time of the event you focus on. It is entirely conceivable that siblings (siblings, not great-grand nieces) of executed soldiers from the Great War may still be alive; where do you place their rights? There is a complex balance to be struck, but I doubt if your rationality would justify the wasting of international military resources (particularly given the current situation) on searching for the corpse of Keith Bennett on Saddleworth Moor. He died 44 years ago; nothing we do now will bring him back, Myra Hindley is long since dead, and there is no prospect of an insane Ian Brady ever being released from Ashworth. So what about Winnie Johnson? Is it no more than an inconvenience that she is 'accidentally' still alive? And does our obligation (society's obligation) to find Keith Bennett's body disappear at the point that his mother dies? Rather the opposite; to the extent that we would have failed Mrs Johnson in her lifetime, our obligation would be all the greater. Is Winnie Johnson the only person to be considered anyway? What obligation do we have (for example) to the jurors who had to listen to those appalling tapes? Or to their children, who saw a parent irretrievably scarred by what they had heard? It's true I know, there are terrible cases involving children who are still living, children we have some hope of saving. But I very much doubt if your humanity would allow you to tell Winnie Johnson that there are more important priorities than finding her son, let alone that you believe the use of public resources in that search to be wrong. Moral judgements are absolute, however much we recognise that attitudes have changed with the passage of time. If homophobia is wrong now (and we both agree it is) it was wrong fifty years ago. How much more so the loss of an innocent life at the hands of the state.
And the Umpire responded with a final post Alleged Past Injustices Again:
Regular commentator Stephen of It's a rough trade, politics and I have had a disagreement on the pardoning of WWI soldiers shot for cowardice or desertion. I have done a few posts and comments on the subject, but given the vehemence of Stephen’s disagreement (unusual, as he has already observed), I thought I would attempt to set out my position in slightly greater length. Also some of the comments I have made have been rather sloppy, and this post therefore constitutes a tidying-up effort.
Of course in principle righting historical wrongs seems a worthy cause, but matters are not that simple.
The first question which might arise is whether we should be investigating past injustices when the victims and the convicted person are long since dead and the circumstances under which the offending arose have long since vanished. None of the officers who charged, prosecuted, convicted and executed soldiers are still alive, and the events took place over ninety years ago in a Europe that has changed out of all recognition as has the British army.
Two obvious points flow from that: first, it would be an expensive use of scarce judicial and other public resources to investigate any of the more than 300 executions. It is my belief that those resources should concentrate on resolving present-day crimes; the judicial system is straining to cope as it is. It is not unusual for a person charged with murder to be remanded in custody for a year or more awaiting trial. Many people currently serving life imprisonment think they have a case to be reviewed; their cases should logically have priority.
Secondly, with no witnesses left alive and all records nearly a century old, the chances of us being able to be confident in reviewing past cases has to be correspondingly low. That has to be a factor to be taken into account when deciding how to distribute the inevitably overworked resources of the judicial system.
At this point I should counter a red herring that Stephen raised in a comment. He writes impassionately, and unarguably, that we retain a duty to find the body of Keith Bennett on Saddleworth Moor, a victim of the Moors murderers. I agree. But that is not raking over the past to satisfy our changed morals and ideas; it is solving an unsolved case. It bears no relation to reinvestigating and judging what our forefathers did when they thought they were doing the right thing by the actions of the time. Of course if a dead child of a living parent has not been found we should continue the search.
There is a further distinction of importance. Some past convictions we would now denounce as we disagree that they involved a crime at all; homosexuality between consenting adults being a quintessential example. I would have no problem for a retrospective pardon in those cases. But the Shot at Dawn campaign concerned men who were tried for cowardice in the face of the enemy or desertion or similar offences; these remain crimes to this day. The objection has to be either to the conviction of individual defendants or the imposition of the death penalty, not to the crime itself with which they were charged. I accept that the state could declare that all those executed should have had a different punishment, although by abolishing the death penalty in toto it has implicitly already done this. But the fact of the death penalty is not sufficient to conclude there was particular injustice in the shot at dawn cases, since that was the standard punishment for murder and some other civilian crimes in Britain at the time.
It is, moreover, not as if the 306 executions* were the only occasions in which the judicial and/or military system of 1910s might have produced a different result to what would obtain in comparable circumstances under today’s mores. I am sure many died in industrial accidents, for example, that would have resulted in severe punishment of their employers nowadays.** None of these potential injustices have been investigated nor is there any suggestion that they should. I remain unpersuaded about the reasons why we should choose the shot at dawn campaign and ignore the rest - particularly those found guilty of transgressions during wartime but received lesser penalties. Their reputations would have been stained just as would those executed. The mere fact that approximately 3,000 death sentences were passed but only about 10% carried out indicates that the story is more complex than brutal officers ruthlessly and cruelly executing the innocent merely as an example to the rest.
World War II provides examples of other potential injustices, such as those whose farms were confiscated for failing to meet production targets. Had that been wrongly done, it would have been a wrong with direct economic as well as other consequences for persons still alive today.
Des Browne, the Defence Secretary who pardoned the executed, reasoned thus:
"I believe a group pardon, approved by Parliament, is the best way to deal with this. After 90 years, the evidence just doesn't exist to assess all the cases individually.
"I do not want to second guess the decisions made by commanders in the field, who were doing their best to apply the rules and standards of the time. "But the circumstances were terrible, and I believe it is better to acknowledge that injustices were clearly done in some cases, even if we cannot say which - and to acknowledge that all these men were victims of war."
But 'second guessing the decisions made by commanders in the field, who were doing their best to apply the rules and standards of the time' is indeed the very thing Mr Browne has done. And in so doing he has brushed aside one potential injustice and replaced it with another - a slur on the officers who dutifully and in good faith conducted courts martial in the way they thought best, and a pardon for some soldiers who may not have been deserving. It is not clear that all of the executed were in fact innocent; in an army of millions it would be astonishing if there were in fact no deserters or cowards whatsoever.
The report from which the above quotation is taken also includes the following, with which I agree:
Correlli Barnett, a military historian, said last night that the mass posthumous pardon was "pointless" after all these years. "These were decisions taken in the heat of a war when the commanders' primary duty was to keep the Army together and to keep it fighting. They were therefore decisions taken from a different moral perspective," he said.
"For the people of this generation to come along and second-guess decisions taken then is wrong.
"It was done in a particular historical setting and in a particular moral and social climate. It's pointless to give these pardons. What's the use of a posthumous pardon?"
Those who were shot for cowardice or desertion were by and large treated fairly, according to the standards of the time, he added.
Indeed, as I pointed out before, Gordon Corrigan's investigations show that it is not at all clear that there was a litany of injustices committed, to the extent that surviving records enable us to judge. Even if we did find procedural faults with the courts martial, that is not the same as finding that the executed were in fact innocent. This is the point which is key to the misunderstanding and misinformation put about by the press in the wake of the quashing of the conviction of Derek Bentley some time ago. He was not, contrary to the screaming headlines, declared 'innocent'. All that was found was that there were defects in the trial judge's summing up: a common enough occurrence that routinely leads to convictions being quashed and new trials ordered. If Bentley was alive today that is precisely what would have happened - a retrial.
The point about Bentley is made in this article by Francis Bennion, with which I agree. Its conclusion is apposite for this post as well:
Our generation needs to be reminded of that pregnant saying of L P Hartley's in The Go-Between. The past is a foreign country: they do things differently there. Or to put it even more succinctly: you can't change history, and you shouldn't even try.
We can - and should, indeed must - learn from history; we can in so doing debate whether things were done right or wrong in the past. But official rewriting is another matter. Niall Ferguson is a professional historian of a similar view:
Retrospectively pardoning First World War deserters, then, is as empty a gesture as retrospectively condemning Second World War conscripts. Harry Farr and Günter Grass were simply two tiny cogs in the monstrous mincing machines of total war. That is why the real question children should ask of veterans is not "What did you do in the war, daddy?" but "What did the war do to you?"
* From the Ferguson article: 266 British and colonial soldiers were shot for desertion, 18 for cowardice, seven for quitting their posts and two for casting away their arms: 293 in all. The other executions were for offences of a different nature, such as murder.
** Ferguson again: "If you are against the death penalty in principle, you may well ask why a few hundred Tommies have been singled out to be pardoned. Many of the crimes for which young men were hanged in the 18th century, for example, were mere petty thefts. Today, most such young offenders would face nothing more painful than a caution or an anti-social behaviour order. Shouldn't we pardon the hanged sheep-stealers while we are about it?" Of course if it was purely the death penalty that was the objection, then a pardon would be inappropriate; a lesser sentence would be formally passed, for all the good it would do.
Coda: From Wikipedia: It seems I was misinformed to an extent:
The pardon was enacted in the Armed Forces Act 2006 which came into effect on 8 November 2006. However section 359(4) of the Act states that the pardon "does not affect any conviction or sentence." Since the nature of a pardon is normally to quash a conviction or to commute a sentence, Gerald Howarth MP asked during parliamentary debate: "we are entitled to ask what it does do." It would appear to be a symbolic pardon only, and some members of Parliament had called for the convictions to be quashed, although the pardon has still been welcomed by relatives of executed soldiers.
What was the point of all that then?
I'm going to do my best to pick off the main points here as far as I am able in some sort of rational sequence. The first two are interlinked. Should we be pursuing cases from so long ago in our distant past, and is it right that doing so is dependent on the existence of living relatives?
It depends of course what you mean by our distant past. What is distant to a youthful Umpire is by no means so distant to those of us who are of more advanced years. However, neither the cases of Private Farr nor Derek Bentley were pursued by distant relatives "(say) a great-grand niece" several generations hence; Private Farr's case was at the behest of his daughter Gertrude, who was born two years before the start of the Great War. Derek Bentley's sister Iris was the one who campaigned to have his conviction overturned (assisted by her daughter), although of course she died shortly before it was. In both these cases it seems wrong to complain about the 'accident' that the relatives are still alive, as if it were some unfortunate inconvenience. Given that those executed are unable to argue their cause further, it is neither surprising nor wrong that relatives who feel that there has been an injustice should do so on their behalf. If Derek Bentley had been imprisoned, he would almost certainly have been alive (aged 65) at the time his conviction was quashed in 1998. But of course if he had been jailed he would long since have been released anyway.
In another post, Harry Partch and the unheralded victories in the Great War the Umpire asks why the only names etched into the public conscience are those of the defeats, or stalemates, or seemingly pyrrhic victories for the allies: the likes of Loos, Verdun, Gallipoli, the Somme, Passchendale and Ypres. His conclusion: I suspect, however, that the main reason is that the Second World War, just two decades later, began more or less as a reprise of the First. That he needs to ponder the question at all shows that he views the Great War as 'history' and of course it is for the young. But those names were etched into the public conscience well before the start of the Second World War and the evidence for that is easy to find; the War Memorials that seem to permeate Britain were almost without exception erected at the conclusion of the Great War, and it is out of respect for those who gave their lives that rather than celebrating victory we choose to remember where so many died. The names etched into the public conscience from the Second World War are even more grim. Auschwitz, Bergen-Belsen, Buchenwald, Hiroshima, Nagasaki.There is an issue of proportionality to all this. In time, historians will mark little more than our success in winning the First World War, and possibly even the Second, but it is to be hoped not; more important surely to remember the Holocaust and man's terrible capacity for evil. Regardless of the outcome of Private Farr's case, it is likely that his death would have ceased to be an issue before too long since all those directly affected would indeed be dead; but they're not, and it isn't mere history to them.
Is it appropriate to pardon people long dead merely on the basis that they received what is now regarded as an excessive sentence, but wasn't at the time? It can be. A pardon isn't a way of saying that someone was innocent of the crime that they were charged with; sometimes they clearly weren't. A pardon is an expression of forgiveness which provides a sense of closure to those such as Gertrude Harris who felt her father was wronged.
The case of Timothy Evans is probably relevant. Hanged for a murder he didn't commit, but initially denied even a pardon since whereas no jury would have found Evans guilty in the light of what later became known there was no certainty of Evans' innocence (R A Butler). Correlli Barnett would presumably not even have considered whether there was certainty or not, given the pointless nature of a posthumous pardon anyway. Thankfully Roy Jenkins was of a different mind. But a pardon doesn't quash a conviction and Timothy Evans remains convicted of the murder of his daughter. Mary Westlake (his half-sister) has campaigned to get that conviction quashed, but her court case ended when the judges, while acknowledging that Evans was entirely innocent, took the same line as the Umpire and said that the cost and resources of quashing the conviction could not be justified. Personally, I'd have thought it better justice if the judges concerned had just got on and quashed the conviction there and then given all the circumstances.
Derek Bentley's conviction was quashed of course, and since his execution has precluded any possibility of a retrial I think it's important to remember that a man is innocent until proved guilty. Francis Bennion's article however raises interesting points well outside the scope of this discussion, so maybe I'll address those elsewhere in the fullness of time.
If there's a shortage of judicial resources I would prefer to look first at the call on those resources made by the wealthy. I'd far rather see a court quashing the conviction of Timothy Evans than preoccupying itself deciding whether Michael Douglas and Catherine Zeta Jones had been hard done by because their wedding pics had ended up in the wrong celebrity mag. And that brings us back to the collective pardon for those executed in the Great War. Des Browne agreed entirely with the Umpire that judicial resources were better devoted to other matters. Parliament agreed with him. History has not been rewritten, but we have forgiven the men who were executed. That's the point.