GRACE BLANKS
EQUALITY OF SACRIFICE: NEW ZEALANDERS AND
MILITARY PUNISHMENT 1914-1945.
LAWS 528: SPECIAL TOPIC: NEW ZEALAND LEGAL HISTORY
FACULTY OF LAW
2012
2
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
CONTENTS
DEDICATION. ............................................................................................................................ 3
I
INTRODUCTION........................................................................................................ 4
II
MILITARY DISCIPLINE .......................................................................................... 6
III
THE APPLICATION OF MILITARY LAW ........................................................... 8
A
New Zealanders and Military Discipline.................................................................. 12
B
Field Punishment -‘A means of inflicting unnecessary torture’ ............................ 15
C
For the Sake of Example – death by firing squad ................................................... 17
D
They turned their rifles on their own ....................................................................... 20
1
Private Frank Hughes ................................................................................ 20
2
Trooper John Sweeney ............................................................................... 21
3
Private John Braithwaite ........................................................................... 22
4
Private John King ....................................................................................... 24
5
Private Victor Spencer ............................................................................... 25
E
‘Shell Shock’ ............................................................................................................... 26
F
Progress? ..................................................................................................................... 28
IV
MILITARY CONSCRIPTION IN NEW ZEALAND ............................................ 32
G Conscientious Objectors – World War I.................................................................. 37
6
‘The Fourteen’ ............................................................................................ 40
7
Wanganui Detention Barracks .................................................................. 44
8
Enduring intolerance .................................................................................. 45
H Conscientious Objectors – World War II ................................................................ 47
9
Unsympathetic Appeal Boards .................................................................. 48
10
Detention Camps......................................................................................... 50
11
An international comparison ..................................................................... 53
V
THE SUPPRESSION OF ANTI-WAR DISSENT .................................................. 53
I
World War I – New Zealand’s first encounter with subversive antimilitarism ... 53
J
World War II - the official tentacles tightened around anti-war dissent .............. 56
K New Zealand’s Shame ................................................................................................ 59
VI
CONCLUSION........................................................................................................... 60
VII
BIBLIOGRAPHY ...................................................................................................... 62
3
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
For all the New Zealanders who lay down their lives in the name of peace and freedom,
and also those for whom the burden was too great to bear.
They shall grow not old, as we that are left grow old:
Age shall not weary them, nor the years condemn.
At the going down of the sun and in the morning,
We will remember them.
-
Laurence Binyon.
4
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
I Introduction
The phrase ‘never such innocence again’ captures the poignancy of the indelible imprint
that World War I and World War II left on New Zealand and the world.1 During 19141918, 28 of the 3080 sentenced to death in Britain’s armies were New Zealanders.
Approximately 2745 New Zealand troops were court-martialled in the First World War
and 2683 during the Second World War. Sanctions of wide-ranging severity were meted
out for various offences both at home and abroad and although the death penalty and
Field Punishment No. 1 were abolished before the outbreak of World War II, it was by no
means the end of military punishment for either volunteer or conscripted soldiers.
Furthermore, in the quest to protect peace and freedom in New Zealand there was no
anticipating the Draconian means by which the government would attempt to suppress
opposition to the war, even amongst civilians.
A century ago, New Zealand was a very different place. Proud to live in the “social
laboratory of the world”2 the majority of New Zealanders still considered themselves to
be British and their patriotism knew no bounds. Upon the declaration of the First World
War New Zealand dutifully followed the ‘motherland’ into battle, as it did again in World
War II. Though becoming increasingly modernized and organized, New Zealand in the
early part of the twentieth century was cripplingly nervous about its isolation and small
1
Catherine Corns and John Hughes-Wilson, Blindfold and Alone: British Military Executions in the Great
War (Cassell & Co, London, 2001) at 19.
2
Paul Baker, King and Country Call: New Zealanders, Conscription and the Great War (Auckland
University Press, Auckland, 1988) at 10.
5
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
population.3 It was believed to be extremely vulnerable to both economic depression and
invasion. In such a position it is hardly surprising that New Zealanders were so intolerant
of those who were outspoken in their controversial beliefs – conscientious objectors and
pacifists. The general public was whole-heartedly committed to the war effort and over
time became progressively more vehement in its demand for ‘equality of sacrifice’. Those
who would not fight were both misunderstood and abused. This craving for equality is a
recurring thread throughout the history of military punishment in New Zealand and
underpins the prejudiced attitude towards, and treatment of, misbehaving soldiers,
conscientious objectors and pacifists alike.
This paper focuses not only on the punishment of soldiers, who willingly killed and
risked being killed themselves, but also on the punishment of conscientious objectors
who, despite their protestations, were deemed to be soldiers and punished accordingly for
their refusal to obey orders. Additionally, it canvasses the war-time oppression of war
resistors and pacifists in New Zealand who suffered for their belief that no one should kill
at all. This paper recognizes that there was more to punishment than formal infliction of
suffering or the withholding of privileges - it also included public condemnation, attacks
from the press and retributive ‘justice’ from a government that simply could not
understand, let alone tolerate, anti-war dissent.
By explaining the effect of war on the national psyche, and drawing comparisons with
other dominions, this paper critiques the efficacy and equity of New Zealand’s
disciplinary policies and the introduction of military conscription. It highlights the perils
of allowing the executive and the judiciary unlimited power to stifle protest. It explores
3
At 11.
6
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
the parallels between concepts of military punishment, such as making an example of one
man in order to maintain the sanctity of the entire unit, and the political thought behind
war regulations within New Zealand. Finally, it concludes that although requiring
equality of sacrifice from all citizens (soldiers and civilians) was popular politically, the
extent to which the government restricted personal freedoms during war-time was both
unwarranted and dangerous.
II Military Discipline
In war hatred becomes a duty, love ridiculous: to win the war by the denial of every
spiritual faculty of man is thought to be the only possible course.4
Virtually every society in the world exercises some form of punishment,5 which is
inflicted for a variety of purposes including deterrence, education, retribution,
denunciation, elimination, incapacitation and correction. Punishment in the military is
termed ‘discipline’ and is the means by which law, order and control are maintained
among armed forces.6 Without discipline, an army cannot function. Without discipline, an
army is an unregulated mob. Control is the crucial element that differentiates military law
from that which governs civilians7 and a key tenet of military law is that commands must
4
John. W. Graham, Conscription and Conscience: A History 1916-1919 (George Allen & Unwin, London,
1922) at 31.
5
Nigel Walker, Why Punish? (Oxford University Press, USA, 1991).
6
Ian McGibbon (ed), Oxford Companion to New Zealand Military History (Oxford University Press,
Auckland, 2000) at 146.
7
Corns and Hughes-Wilson, above n 1, at 39.
7
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
be obeyed at all times so as to remove the obstacle of indecision.8 Military law can be
distinguished from civilian law in several respects.
Firstly, there is no presumption of innocence – the onus is always on the soldier to
explain his offending behaviour, not on the army to establish guilt. Corns and HughesWilson in “Blindfold and Alone” give the example of a guardsman dropping his rifle in
public. Even by today’s standards, this is unacceptable and the soldier in question would
be required to proffer an adequate excuse, such as “the rifle sling broke, sir”, if he had
any hope of getting away with it.9 The emphasis is on the fact that he dropped his rifle
when he should not have done so. During World War I, guilt was generally presumed – if
the soldier hadn’t committed an offence, why had he been charged?10
Secondly, while civilian law focuses on salient facts and objectivity, military law
involves many offences that are entirely subjective and which demonstrate purely
military ethics, such as cowardice.11
The Army Act 1881 defines cowardice as an
‘‘unsoldierlike’ regard for personal safety in the presence of the enemy’, 12 a crime that no
civilian would ever be punished for.
Thirdly, in the army the same offence can be punished more or less severely depending
on the surrounding context. In fact, the Army Act contains a whole collection of offences
8
McGibbon, above n 6 at 146 and Corns and Hughes-Wilson above n 1, at 39.
Corns and Hughes-Wilson, above n 1, at 88.
10
At 87.
11
At 49.
12
Army Act 1881 (UK) s4.
9
8
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
come under the heading ‘offences punishable more severely on active service than at
other times’.13 This reflects the tacit acceptance that the requisite standards in war, as
opposed to peace time, are significantly higher. Hence why striking superior on the front
line can be punished by execution but away from the fighting the perpetrator may receive
Field Punishment or imprisonment.14
Finally, unlike in civil procedures, during World War One there were no concessions
made for human error or individual frailty. As Corns and Hughes-Wilson point out, the
only defence was ‘mental abnormality’ and the army did not recruit the mentally
abnormal.15 These legal double standards, among others, are justified by the exigencies of
war and the truth generally acknowledged that soldiers inhabit a completely different
sphere. A soldier’s raison d’etre is to fight and society requires that he be held to a
different behavioural standard while he slaughters and destroys for his country.16
III The Application of Military Law
Military discipline in New Zealand was imported from Britain and so soldiers were
subject to the Army Act 1881 and manifold regulations. Formal discipline was
supplemented by informal influences such as ‘mateship’ - most men were loath to let
down their friends - as well as the awareness that one’s deeds could become well known
in one’s hometown. Christopher Pugsley comments in “On the Fringe of Hell” that early
13
Corns and Hughes-Wilson, above n 1, at 46-47.
Army Act 1881, (UK) s8.
15
Corns and Hughes-Wilson, above n 1, at 51.
16
At 50.
14
9
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
in the Great War the worst punishment imaginable was being sent home in disgrace.
However, he remarks that this was less of a threat once men had seen actual fighting as
the chance to return to New Zealand came to be viewed as a blessing, whatever the
circumstances.17
Many soldiers only ever experienced military law at a basic ground level through
informal, ferocious physical punishment from their immediate superiors. While officers
were not allowed to abuse their men, dealing out a few blows for a minor disciplinary
breach was infinitely preferable, for all involved, than laying a formal charge. 18 It is
important to remember that at this time in history corporal punishment was the norm for
soldiers, criminals and children alike and was accepted, even expected, by the men.
The vast majority of breaches of discipline involved alcohol or brief absences from
camp. Commanding officers dispensed summary punishments for more serious
infringements, particularly those that threatened military order, such as striking an
officer.19 Men could receive a fine, lose pay and privileges, and be confined to barracks,
be assigned extra (usually unpleasant) duties or suffer Field Punishment of up to 28 days
duration.20 Field Punishment No.1 (to be discussed in more detail below) came in two
forms: the offender was either tied to a post or endured ‘crucifixion’ across a wagon
wheel, bound in irons. It was designed to administer a ‘short, sharp shock’ through public
17
Christopher Pugsley, On the Fringe of Hell: New Zealanders and Military Discipline in the First World
War (Hodder & Staunton Ltd, Hong Kong, 1991) at 27.
18
Corns and Hughes-Wilson, above n 1, at 85.
19
McGibbon, above n 6, at 146.
20
Ibid.
10
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
humiliation and as a deterrent, it was extraordinarily successful. Although those awarded
such punishment could dispute it and elect to be tried by court martial, few chose this
option as the power of a court martial was well-known and intimidating.21 The vast
majority of disciplinary breaches were dealt with within the unit. Commanding officers
had very wide discretion under the Army Act to maintain standards and most were
reluctant to publicly advertise the failures of the unit and, by implication, the army. 22
Accordingly, only the most conspicuous and grave offences were ‘court martial’
offences.23
The four classes of court martial, Regimental Court Martial, District Court Martial,
General Court Martial and Field General Court Martial, varied in terms of the number
and rank of officers comprising the board and the punishments they were authorised to
award. Powers were outlined in sections 45-68 of the Army Act 1914.24 The Regimental
Court Martial has been likened to a “board of inquiry”.25 It was not used on the Western
Front, only ‘at home’ in England and like the District Court Martial it comprised three
officers and could only impose limited punishments. The General Court Martial, on the
other hand, required five officers of at least captain rank.26 All three were employed by
the army to administer justice during times of peace. For the purpose of this paper, the
21
Corns and Hughes-Wilson, above n 1, at 86.
At 87.
23
At 89.
24
Ibid.
25
Corns and Hughes-Wilson, above n 1, at 90.
26
Ibid.
22
11
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
most significant court martial was the Field General Court Martial, the object of which
was explained in the Army Act:27
(1) The object of this section is to provide for the speedy trial of offences
committed abroad or to try such offences by an ordinary court martial on
active service where it is not practicable with due regard to the interests of
discipline and of the service. A field general court martial can try any offence
committed on active service….
The explicit intention was that the Field General Court Martial was an ‘emergency
court when the army was detached or engaged on active service overseas’.28 The
wording of the Act made it clear that it was an exceptional measure necessitated by
the vicissitudes of war. Corns and Hughes-Wilson note that the modern press has
robustly criticized the operations of the Field General Court Martial, calling it a
‘hasty and illegal tribunal’ or a ‘paramilitary kangaroo court’ but they emphasize
that in fact it was legally constituted, prudently designed, judicial tool – an
absolutely essential mechanism of military law.29 Its procedure was carefully
controlled to obviate abuse, for example, heavy penalties (particularly death) had to
be decided unanimously30 and the most junior officer was required to give his
27
Manual of Military Law, (The War Office, 1914) at 430.
Corns and Hughes-Wilson, above n 1, at 91.
29
At 92.
30
Ibid.
28
12
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
opinion first to ensure he had not been influenced by superiors.31 Further, the
rulings had to be confirmed by a higher legal authority.32
Other common objections leveled at the Field General Court Martial include assertions
that trials were biased or unfair, that they were far too brief and that the officers lacked
the requisite legal expertise to conduct them. With hindsight, these claims may appear
valid but it is important to judge the trials by the standards of their time. The better part of
them seems to have been carried out in conformity with the law and it is especially telling
that there is not a single proven example of a soldier wrongly convicted. 33 Irrespective of
modern abhorrence to the severity of punishment during World War I, records reveal
very few cases of disputed guilt.
A New Zealanders and Military Discipline
During the First World War, approximately 2745 New Zealanders were courtmartialled and 2683 during the Second World War.34 It has been suggested that the
New Zealand Expeditionary Force was ill-disciplined,35 a theory that Christopher
Pugsley went to some length to dispel through comparison with Australia and
Canada. It is certainly noteworthy that Australia chose not to adhere strictly to
British military standards and so its disciplinary regime was rather different.
31
Pugsley, above n 17, at 41.
Corns and Hughes-Wilson, above n 1, at 92.
33
Corns and Hughes-Wilson, above n 1, at 93.
34
McGibbon, above n 6, at 146.
35
Nicholas Boyack, Behind the Lines (Allen & Unwin, 1989).
32
13
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Pugsley contends that in fact ‘New Zealanders were a well-trained professional
body who caused problems when they individually hit town on leave…”36
At times, the discipline imported from Britain was at odds with the innate sense of
democracy so dear to the hearts of New Zealand soldier, who never forgot that he
was a volunteer and demanded to be treated as a man.37 This helps to explain the
frequent ‘mutinies’ of New Zealand troops, which were not really mutinies at all,
just men demanding that their officers listen to and be held accountable for their
grievances. Such incidents were rare in the British Army, where the men were more
accustomed to accepting what they got.38
During training or leave in Egypt between 1917 and 1919 there were 93 courts
martial involving New Zealanders, nearly all of which were for drunkenness or
being caught out of bounds at brothels.39 The standard penalties were Field
Punishment and imprisonment. Desertion was uncommon but resulted in seven
years’ imprisonment to be served in New Zealand.40
At Gallipoli, those who broke the rules were usually awarded Field Punishment No.
2 under which they would be forced to do all the ‘dirty jobs’ while others were
36
Pugsley, above n 17, at 56.
Pugsley, above n 17, at 16.
38
At 17.
39
At 56.
40
Courts martial, NZEF Egypt, NZ National Archives, WA1 9/5/9.
37
14
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
allowed to rest.41 One Private SC Adams received 14 days Field Punishment for
excessive swearing,42 while others were punished for taking more than their fair
share of the rum. There was very little formal disciplinary action among New
Zealand soldiers serving at Gallipoli and only seven of the 8556 were courtmartialled.43
Once they arrived in Europe, Major General Andrew Russell was determined that
his soldiers would meet the standard demanded of the British Expeditionary
Forces:44
A very much higher standard of discipline is now required. Every officer will in future be
held responsible for the actions of those under their commands. Disciplinary action will be
taken in every case where there is a breach of Divisional or other orders.
Alcohol was much more readily available than it had been in Egypt and the army
struggled to keep the men fully occupied during the night. “Saturday 29…Nearly all
battalions got boozed and there was general hell to pay in and around town…I got tight,
so they say”.45 Coupled with Russell’s strict discipline it is hardly surprising that courts
martial increased. The level of punishment varied from unit to unit and though there were
plenty of convictions, many of them were suspended and most prison sentences were
commuted to field punishment.46 The incentive for this was that imprisoning men
41
Pugsley, above n 17, at 39.
Smart Diary, 27 June 1915, quoted in Christopher Pugsley, Gallipoli: The New Zealand Story (Hodder &
Stoughton, 1984) at 266.
43
Pugsley, above n 17, at 39.
44
2 Bn Auck Regt RO No. 45, 24 April 1916, NZ National Archives WA72 /2.
45
W.K Wilson Diaries, 1915-1919, p 3.5, Wilson family.
46
Pugsley, above n 17, at 63.
42
15
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
diminished the strength of the army but Field Punishment No 1 merely took men out of
action for a few hours per day.47 Once the Battle of the Somme began in September 1916,
disciplinary problems became all but non-existent as the men were too busy fighting to
cause trouble. This became somewhat of an enduring pattern throughout the war, lending
credence to the phrase ‘idle hands are the devil’s workshop’.
B Field Punishment -‘A means of inflicting unnecessary torture’
This was how field punishment has been described by one Lieutenant Colonel
Murray.48 It was the standard form of punishment employed by British armies
during World War I for offences committed on active service. As aforementioned,
it carried a dual purpose: to humiliate and to deter. A soldier undergoing Field
Punishment No. 2 could be kept in irons but was not tied down. He forfeited all
privileges and pay for the duration of the penalty, was assigned all fatigues
possible, was put on the bottom of the roster for leave and had to sleep on the floor
without blankets.49 Field Punishment No. 1 was supposed to be a more severe
option and so in addition to the above the offender was clapped in irons and tied to
a fixed object where he could be seen by other soldiers. It was intended that he
would be treated as though he was ‘under a sentence of imprisonment with hard
labour’.50 A Commanding Officer could award 28 days field punishment as a
47
At 92.
Lt Col Murray, NZ A/ADMS dated 28 November 1916, NZ National Archives WA 23/4/9 [Box WA
23/3/2].
49
Pugsley, above n 17, at 92.
50
Manual of Military Law, above n 27, at 721.
48
16
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
maximum, whereas a court martial could award three months.51 The punishment
was carried out at New Zealand field punishment camps that were run by Military
Police and which followed the army around France.52
The Military Manual stipulated that ‘…field punishment shall be inflicted in such a
manner as is calculated not to cause injury or to leave any permanent mark on the
offender…’53 and it was stressed that a man may only undergo Field Punishment
No. 1 for two hours a day and not for more than 21 days. Nevertheless, field
punishment staff and military police interpreted the rules to suit themselves and
their job was to ensure deterrence.54 Naturally, the system was open to abuse.
Conscientious objector Archibald Baxter gave a vivid account of such abuse at the
‘Mud huts’ Field Punishment camp in his autobiography “We Will Not Cease”:55
He was an expert at the job, and he knew how to pull and strain at the ropes til they cut into
the flesh and completely stopped the circulation. When I was taken off my hands were
always back with congested blood. My hands were taken round the pole, tied together and
pulled well up it, straining and cramping the muscles and forcing them into an unnatural
position. Most knots will slacken a little after time. His never did. The slope of the post
brought me into a hanging position, causing a large part of my weight to come on my arms,
and I could get no proper grip with my feet on the ground, as it was worn away round the
pole and my toes were consequently much lower than my heels. I was strained so tightly
against the post that I was unable to move body or limbs a fraction of an inch.
51
Pugsley, above n 17, at 92.
At 93.
53
Manual of Military Law, above n 27, at 721.
54
Pugsley, above n 17, at 93-94.
55
Archibald Baxter, We Will Not Cease, (Cape Catley Press, 1980) at 105.
52
17
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Rumours that a British soldier had died during Field Punishment No. 1 in 1916 and
the resulting distaste expressed by the press and the British Parliament inspired a
survey of the British armies as to whether or not the punishment should be
abolished, revealing strong differences of opinion.56 The outcome was a decision
that Field Punishment No. 1 would be retained, as it had proved effective as a
deterrent, provided that it was inflicted properly and in compliance with the
instructions and diagram provided by the Manual of Military Law. 57 Needless to
say, the abuses continued and Pugsley blames the Military Police and their
dedication to breaking the spirit of ‘incorrigibles’ for this.58 He argues that it is an
example of failure in command because those responsible for applying checks and
balances on the system were intentionally blind to the injustices.59 “I dislike the
business so much that I never come near, if I can help it, when I know it’s going
on”.60
C For the Sake of Example – death by firing squad
For as long as there have been armed forces, the death penalty has been applied by the
military to enforce discipline. For the New Zealand public of 1914-1918 capital
punishment, like corporal punishment, was totally acceptable and was utilized in the civil
56
Pugsley, above n 17, at 94.
At 96.
58
At 103.
59
Ibid.
60
Archibald Baxter, above n 55, at 111.
57
18
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
context to punish criminals.61 Society therefore expected that a soldier on active service
whose misbehaviour threatened the lives of others and the security of the unit was ‘liable
to suffer death’.62 Britain’s Army Act 1881 established that several offences, including
mutiny, cowardice, treachery and desertion, could be punishable by death.63 By virtue of
the Defence Act 1886, New Zealand soldiers on active service became subject to this law,
which was further confirmed by the Defence Act 1909 and the Expeditionary Forces Act
1915.64 In comparison, Australia applied the death penalty differently, limiting the
number of offences punishable by death to four and requiring that any death sentence be
confirmed by the Governor-General.65 Significantly, two of the New Zealand servicemen
executed for desertion during the First World War were actually Australians and had they
been serving in the Australian Imperial Force and not the First New Zealand
Expeditionary Force, they would instead have been awarded a sentence of life
imprisonment.
Execution by firing squad, also referred to as ‘fusillading’ was symbolically significant.
Customarily carried out at first light, the offender was killed by a group of his peers,
indicating that his actions were condemned by the whole unit. Once a Field General
Court Martial had passed a death sentence, it had to be confirmed first by the accused’s
commanding officer, then by the brigade commander, then the Assistant Adjutant for
discipline and finally by the commander-in-chief, Sir Douglas Haig or Sir John French,
61
Pugsley, above n 17, at 42.
Manual of Military Law, above n 27, at 378-379 and 381-382.
63
McGibbon, above n 6, at 134.
64
At 135.
65
Ibid.
62
19
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
who were the only men on the Western Front with the legal authority to ultimately
confirm a death sentence.66 Once confirmed, the ruling was announced, most often in
front of the accused’s unit on parade.67 More often than not, the penalty of death was
commuted to a prison sentence or lengthy field punishment but not everyone was so
fortunate. 346 British and Imperial soldiers were shot at dawn and five of them served in
the First New Zealand Expeditionary Force. It seems, despite the gut reaction of a
modern reader, that this final sanction was used with surprising scarcity by the British
Armies. The German Army, in contrast, killed over 15,000 of its own soldiers during
World War One and World War Two. The Italians shot 750 of their own men and the
French actually lost count.68
‘Blindfold and Alone’ describes the ‘grisly’ but strictly regulated procedure for carrying
out a death sentence in France during World War I.69 The night before his execution, the
accused would write last letters, speak with a chaplain and was sometimes offered
alcohol or drugs to make the waiting easier. At first light he was tied to a post and a firing
party of twelve men, usually six standing and six kneeling, fired a volley. 70 Sometimes,
but not always, blank cartridges were randomly allocated in order to diffuse the sense of
responsibility amongst the understandably traumatised executioners. If the accused was
still alive following the volley, the officer in charge delivered a ‘coup de grâce’ shot at
point blank range. Regardless of what he was executed for, the accused’s body was
66
Corns and Hughes-Wilson, above n 1, at 99.
At 100.
68
Corns and Hughes-Wilson, above n 1, at 103.
69
At 100.
70
Ibid.
67
20
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
always buried alongside regular soldiers in Commonwealth War Graves Commission
cemeteries.71
D They turned their rifles on their own
1
Private Frank Hughes
Private Hughes was the first New Zealander to face the firing squad in August 1916.72
Within five days of arriving in France he had his pay docked for being absent from
parade. He later received 28 days’ field punishment for a combination of offences
including drunkenness and causing disturbances after ‘lights out’. He went absent again
shortly after his 28 days were up and was awarded a year’s hard labour, but two days
after this sentence was confirmed he deserted again. 73 A possible reason for the harsh
penalty he ultimately received is that he went absent on his way to the trenches and as
mentioned above, military law tends to be enforced more strictly the closer one is to the
front line. The authors of “Shot at Dawn” comment that it is unsurprising his death
sentence was confirmed, given his disciplinary record in the relatively short time he had
served.74 He had an alcohol problem but so did many servicemen,75 and it was not viewed
as an excuse for failing the army.76
I was suffering from the after effects of drink…the men of my platoon did not seem pleased
to see me back again….I was lightheaded and wandered out of the trench. I knocked around
town until I was arrested.
71
Ibid.
Julian Putkowski and Julian Sykes, Shot at Dawn: Executions in World War I by Authority of the British
Army Act (Pen and Sword, Barnsley, 1998) at 105.
73
Ibid.
74
Ibid.
75
Pugsley, above n 17, at 104.
76
FGCM 24/2008 Pte F Hughes, 12 August 1916, NZ National Archives AD22/30/73.
72
21
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
The court didn’t think it was possible to drunkenly ‘wander off’ from the front line
trenches without being noticed. It is true that he was unwelcome in his platoon and it
seems he was not strong enough to survive as a loner within it.77 Hughes was trouble
from the start and remained determined to break the rules. ‘His platoon commander gives
his fighting value as nil’.78 The padre who attended him on the eve of his death lamented
‘can’t do anything with him….He told me that I was a bastard ….but it’s not right, they
shouldn’t shoot a man. A volunteer is a volunteer” (as opposed to a conscript).79 A
witness to the execution recalls Hughes’ demand ‘Don’t put the bandage over my eyes – I
want to see them shoot’.80 Somewhat characteristically, Hughes was unwilling to spare
the firing party the ordeal of having to look him in the eyes as they shot him. He was
buried next to the orchard in which he was killed and another soldier remarked that the
local civilians were greatly affected by the event ‘…his grave will always be tended…by
these sympathetic strangers for whom he came to fight’.81
2 Trooper John Sweeney
Sweeney was in fact an Australian, originally from Tasmania but he served in the Otago
Infantry Regiment in Gallipoli.82 He had mining experience and so worked as a tunneller
under the front line which was very hard work and extremely tough on the nerves: 83
To listen in one of these claustrophobic tunnels to the steady pick, pick of enemy tunnellers
about to break through or blow a charge had a most demoralizing effect on nerves.
77
Pugsley, above n 17, at 105.
Pugsley, above n 17, at 105.
79
At 108.
80
T.E.Y Seddon, The Seddons (Collins, 1968) at 242-243.
81
Boyack, above n 35, at 169.
82
Putkowski and Sykes, above n 72, at 116.
83
Humphrey Kempe, “Participation” (The Hawthorn Press, Melbourne, 1973) at 39.
78
22
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
He was hospitalized in Cairo before going to Europe and he never actually went into the
trenches in France, instead going missing for several months from July to September
1916.84 He was found guilty of desertion and sentenced to death, despite Lieutenant
Colonel Charters’ belief that anyone who had tunnelled in Gallipoli could not be a
coward and that Sweeney was just a brave soldier whose nerves were destroyed.85 These
mitigating circumstances were not taken into account and it appears that Sweeney’s death
sentence, like Hughes’ was intended to provide an example to counter the growing
problem of absenteeism in the ranks.86 He was buried in Dartmoor Cemetery, with 58
New Zealand soldiers who were killed in the Battle of the Somme.87 Tragically,
Sweeney’s father committed suicide just before the New Zealand executions were
announced publicly, seven years after the war had ended.88 Perhaps the shame of
Sweeney’s death, and the fact that another of his sons had been killed in action, was
simply too much to bear.
3 Private John Braithwaite
Originally a journalist from Dunedin, Braithwaite was the fifth to be wounded and the
third to die in his family of six sons.89 He was one of three British soldiers to be executed
for mutiny during World War I.90 A very impulsive character, Braithwaite was convicted
84
Court Martial File 8/1340 Pte J.J Sweeney, NZ National Archives, AD 22/30/72.
Ibid.
86
Putkowski and Sykes, above n 72, at 129.
87
At 131.
88
Ar 117.
89
At 127.
90
Pugsley, above n 17, at 139.
85
23
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
three times by New Zealand Field General Courts Martial. He ‘let duty and soldiering go
to hell’91 after he lost his stripe for being absent without leave in 1916.
It was while he was a prisoner in Blargies that the almost laughably petty disturbance
occurred that led to the charge of ‘mutiny’. An Australian soldier, Private Little, created a
ruckus over the lack of hot water for his bath and the officer that attempted to detain him
was overpowered by a swarm of Australian and New Zealand soldiers.92 Despite his
claims that he was actually attempting to defuse the situation,93 Braithwaite was
identified as the ringleader and charged, along with three Australians, with mutiny. 94 Due
to the Australian modification to the legislation the others had their sentences commuted
to two years’ imprisonment with hard labour.95 Braithwaite’s death sentence was
confirmed notwithstanding his impassioned plea in mitigation:96
I am not a born soldier…I have made a serious mess of things, and where I came to win
honour and glory, I have won shame, dishonour and everlasting disgrace…In spirit I am
innocent, but if you have any doubt, give me the benefit of it, that, I believe is the good
English way…I came to fight what we call in NZ ‘home’, meaning the old country but
incidentally my fighting will be done…behind bars in a French Prison.
It was not until years after his death that New Zealand authorities became aware of
the details of Braithwaite’s trial. They were considered far too explosive for the
Braithwaite statement, Trial 19 July 1916, Judge Advocate General’s Files, Microfilm, Braithwaite.
Pugsley, above n 17, at 141.
93
Transcript, General Court Martial, 11 October 1916, 24/1521 Private J Braithwaite, 2 Otago, Judge
Advocate General’s Files.
94
Pugsley, above n 17, at 141.
95
Ibid.
96
Transcript, General Court Martial, 11 October 1916, 24/1521 Private J Braithwaite, 2 Otago, Judge
Advocate General’s Files.
91
92
24
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
current climate ‘no one is to see these proceedings except yourself- it would do a
great deal of harm if the details of this case were made known.’97
4 Private John King
Another Australian-born soldier, King’s military record consists of an interesting
mix of illness, crime and punishment. At various times he suffered from influenza,
dysentery, muscular rheumatism and a crushed finger. There are indications that he
was most likely an alcoholic and many of his offences were drink related. Often
‘crimed’ and accustomed to field punishment, he was still considered to be a
valuable team member because he was prepared to work diligently when it
mattered.98 King was found guilty of desertion and escaping confinement in 1917
but evidence of his good work ethic helped to achieve a suspension of sentence of a
year’s imprisonment.99 He celebrated by deserting again within five days and this
time the court martial awarded a penalty of death.100 He said ‘I went away under the
influence of liquor and was drinking all the time’101 but drunkenness was not a
defence and this remains true today. King was buried at Trois Arbes Cemetery and
his execution was noted in the diaries of other soldiers, one of which mentions that
he was a ’waster’102 who had lost the respect of his platoon, much like Hughes had
in 1916.
97
Major General Richardson to Colonel Andrew, 8 February 1920, covering Braithwaite papers, Judge
Advocate General’s Files. See also Armageddon 174-175.
98
Pugsley, above n 17, at 206
99
At 209.
100
Putkowski and Sykes, above n 72, at 185.
101
Proceedings of Court Martial, dated 16 May 1917, 6/1598 Pte J. King, NZ National Archives AD1
22/30/75.
102
Signaller Felix Rooney Diary, 20 August 1917, quoted in Christchurch Star article by Bob Cotton,
1987.
25
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
5 Private Victor Spencer
Victor Spencer received treatment at 2 NZ Field Ambulance for shell shock in 1915
after being blown up by a German trench mortar.103 Upon discharge he went absent
and received a remarkably heavy prison sentence of 18 months, given his
circumstances.104 He served half of it before being released, after which he went
missing again and was recaptured by military police four months later. Being
innately suspicious of offenders’ claims of shell shock the court found there was no
evidence to support Spencer’s statement that ‘my nerve has been completely
destroyed’.105 Although medical evidence could have been sought, it was not and
surprisingly, Spencer’s youth and long service were not considered as mitigating
factors.106 There has been speculation that Spencer deserted because he wanted to
serve in the Maori battalion and also that he was of simple intelligence, although
this seems unlikely as before he enlisted he worked as an engineer.107 Major James
Hargest, a New Zealand officer, tried unsuccessfully to prevent the ‘monstrous’
sentence and following the execution a ‘wave of revulsion spread through the dead
man’s battalion’.108 Chaplain Parata reported that Spencer went forward to meet
death with courage in February 1918. He was 20 years old.
103
Pugsley, above n 17, at 261.
Putkowski and Sykes, above n 72, at 236.
105
8/2733 Pte V.M Spencer, 1 Battalion Otago Regiment, Court martial Transcript, NZ National Archives
AD1 22/30/74.
106
Pugsley, above n 17, at 263.
107
Putkowski and Sykes, above n 72, at 236.
108
Ibid.
104
26
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
E ‘Shell shock’
Many of the men condemned to death during the First World War are now believed to
have been suffering from ‘Shell shock’ what is now known as Combat Stress Reaction or
Post Traumatic Stress Disorder. Before the war, such invisible afflictions were unheard of
and no matter what, servicemen were expected to be fierce and fearless. Psychological
breakdown was interpreted as an indicator of cowardice.109 Back then no one could have
imagined the horrific realities of trench warfare, the swathes of casualties or the havoc
wrought by technological advances in weaponry. Men were not designed to withstand
such psychological pressure, especially when compounded with enormous personal
discomfort caused by lice, malnutrition, exposure to the elements and disease. 110 Private
S. Bagnall described the experience of being shelled during World War II:111
I could feel the exact spot in the small of my defenceless back where the pointed nose of the
shell would pierce skin and gristle and bone and explode the charge that would make me feel
as if I had a splitting headache all over for about a fiftieth of a second before I was spread
minutely all over the earth and hung up in the trees. I held my breath and tried to press deeper
into the earth and tensed every muscle as though by sheer will power I could abate the force
of that disintegrating shock, cheat death, defy God, pleading “Oh God, have mercy on me
please, don’t let me die. Please, please, don’t let me die…”
Further, a New Zealand soldier commented during World War I:112
109
McGibbon, above n 6, at 489.
Corns and Hughes-Wilson, above n 1, at 72.
111
S. Bagnall, The Attack (Hamish Hamilton, 1947) cited in John Ellis, The Sharp End of War (London:
BCA, 1980).
112
W.K Wilson, Diaries 1915-1919, at 47, Wilson Family.
110
27
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
No wonder men’s nerves are ruined for life…The shell that shook us up, blew the two
observers in their post to atoms…They could not have been more chewed up if a train had
run over them. It was an awful sight to look at and an even worse one to dig them up.
Indeed many men were so close to breaking point that they prayed to be wounded in
action seriously enough to be evacuated home to New Zealand. Self-inflicted wounds
became more common as soldiers became so desperate to escape that future punishment
was no longer a deterrent.113 The British High Command were suspicious of ‘shell shock’
believing that to acknowledge it as a mitigating factor in the enforcement of discipline
would be to pander to shirkers attempting to evade their duties. ‘We have found in certain
units the condition became fashionable, if not catching’,114 ‘we have seen too many dirty
sneaks go down under the term ‘shell shock’ to feel any great sympathy for the
condition’.115 Medical Officers were conscious that if they declared one man unfit for
duty, scores more would be encouraged to feign symptoms. Their job was to keep as
many soldiers in the field as possible.116 A reactionary policy developed, dictating that a
soldier would only be evacuated if he possessed ‘obvious lesions’ as corroborative
evidence to show his shell shock was had a direct result of being wounded in battle.117
Ten per cent of repatriated soldiers, 1370 men in all, were sent back to New Zealand
suffering from shell shock.
113
Pugsley, above n 17, at 74.
Charles S Myers, Shell Shock in France (Cambridge, Cambridge University Press, 1940) at 95.
115
Ibid.
116
Corns and Hughes-Wilson, above n 1, at 310.
117
At 309-310.
114
28
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
The Second World War saw increased recognition that psychological casualties could
develop independent of physical injury, prompting the establishment of rest centres and
welfare programs aimed at boosting morale and providing a much needed opportunity for
senses to recover.118 It was understood that even the best soldiers would ‘burn out’ under
prolonged psychological pressure and 7000 members of the Second New Zealand
Expeditionary Force did so. This growing understanding of the nature and effects of
‘shell shock’ and changing public attitudes towards the affliction has fostered the
assumption that executed soldiers were treated unfairly during World War I, but there is
very little evidence to support this suggestion.119
F Progress?
Though military executions were uncontroversial during the First World War, public
consternation about them became evident afterwards. This unease was further fuelled by
what appeared to be a lack of transparency due to the ‘hundred year rule’, which
stipulated that the trials would be kept confidential in order to protect the interests and
feelings of the deceased’s’ relatives.120 This reflects the strong social stigma that was
attached to association with a man killed for ‘unsoldierlike’ cowardice or desertion. 121 In
the 1980s a vigorous campaign to have the men posthumously pardoned was gathering
momentum in Britain and inspired a like debate in New Zealand. One of the driving
forces behind the campaign was the publication of books such as Anthony Babington’s
118
McGibbon, above n 6, at 490.
Corns and Hughes-Wilson, above n 1, at 451.
120
At 441.
121
At 440.
119
29
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
“For the Sake of Example”, and in particular, “Shot at Dawn” by Julian Putkowski and
Julian Sykes, which was the first time the names of the executed men were released
publicly.122 In Britain in 1992, Labour MP Andrew MacKinley sponsored a Private
Member’s Bill to:123
Provide for the granting of pardons to soldiers of the British Empire forces executed during
the Great War of 1914 to 1919 following convictions for offences of cowardice, desertion, or
attempted desertion, disobedience, quitting post, violence, sleeping at post, throwing away
arms or striking a superior officer…
Though the Bill was unsuccessful, a review of the capital courts martial was
conducted and the findings presented in 1998 by Minister for the Armed Forces, Dr
John Reid. He explained that a ‘blanket pardon’ was unfeasible and that no new
evidence had emerged to challenge the verdicts.124 He dismissed the idea of any
pardons and lamented the loss of life generally, both those who died fighting and
those who were executed.
Initially, the New Zealand government also resisted the pressure from campaigners,
pointing out that the executions were valid applications of the law at the time and
that aspersions should not be cast on the trials based on modern morals and
opinions.125 It concurred with the British government that there was no new
evidence upon which to base a re-evaluation of individual cases. In delivering the
findings of his review in 1999 and refusing pardons, Sir Edward Somers gave a
very similar speech regarding First New Zealand Expeditionary Force death
122
At 442.
(11 July 1995) 263 GBPD HC 748.
124
(July 1998) 315-317 GBPD HC.
125
McGibbon, above n 6, at 135.
123
30
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
sentences as Dr John Reid had given in the UK a year earlier. Essentially, he stated
that the war had been difficult for all who participated in it and recommended that
Parliament issue a statement conveying that all the men were brave. 126 Despite this,
in 2005 Labour passed the Pardon for Soldiers of the Great War Act 2000,
posthumously pardoning Hughes, Sweeney, Braithwaite, King and Spencer. The
purpose of the Act was ‘to remove so far as practicable, the dishonour that the
execution of those five soldiers brought to those soldiers and their families’127 and
in 2005 Prime Minister Helen Clark and Defence Minister Mark Burton presented
the soldiers’ families with medals.128
During the First World War, 28 New Zealand soldiers were sentenced to death and
in the end five of them were executed. None of them were explicitly charged with
cowardice but it was an assumed element of desertion, the charge that saw Hughes,
Sweeney, King and Spencer shot by their fellow soldiers.129 Arguably, Spencer was
suffering from ‘shell shock’ but as the condition was misunderstood and distrusted,
courts martial seemed to anticipate the plea and disregard it.130
As a general rule, the punishments dispensed during World War I were much more
ferocious than those awarded during World War II. 131 Lessons were learnt from the
Great War and by the time the Second New Zealand Expeditionary Force left our
shores there had been several amendments to disciplinary policy. The rules for field
126
Ibid.
Pardon for Soldiers of the Great War Act 2000, s4(b).
128
New Zealand Government, “World War I pardoned soldier recognized” (press release, 31 August 2005).
129
Pugsley, above n 17, at 276.
130
At 277.
131
McGibbon, above n 6, at 146.
127
31
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
punishment were changed in 1924 and Field Punishment No. 1 was abolished. New
Zealanders continued to regard capital punishment as an essential sanction, a
compelling deterrent to ensure the integrity of the unit. In both the civil and military
spheres, New Zealand was content to ‘sacrifice the individual for the good of the
whole’,132 at least until 1930 when capital punishment was vitiated as a penalty for
cowardice and desertion. Moreover, in 1940 New Zealand followed Australia’s
example and altered the status of New Zealand troops under the Army Act,
requiring that any death penalties could not be carried out without the agreement of
the Governor General, which in practice abolished the sanction altogether. This
meant that only five New Zealand servicemen were sentenced to death during the
Second World War. All had committed murder, which was still punishable by death
in New Zealand and under the Army Act. Nevertheless, all of their sentences were
commuted to life imprisonment.133 At long last, in 1989, the last remaining offence
punishable by death, treason, was removed from the Crimes Act and the Armed
Forces Defence Act.134 New Zealanders could no longer be killed for their crimes.
The overarching aim of military law has always been to aid the armed forces in the
work they do for the good of all civilians. Any differences between civil and
military law are justified by the urgencies and constraints of combat.135 Looking
back, we acknowledge that disciplinary problems were inevitable in such an
environment and we understand that there is a limit to what men can endure 132
Pugsley, above n 17, at 296.
Pugsley, above n 17, at 300.
134
At 301.
135
Corns and Hughes-Wilson, above n 1, at 450.
133
32
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
something that was not widely recognized at the time. It is entirely possible that
executions of their fellows failed to deter soldiers who were desensitized to death,
having seen far too much of it, and no longer feared the fatal sanction.
IV Military Conscription in New Zealand
Then England called. Our pulses beat more rapidly; the temperature of our spirits rose to
a war fever. Even the sun’s rays appeared less benignant, seemed to call for the shedding
of blood. Delusion blew in on every breeze. People became afraid of shadows. Every
German was a possible spy. The herd instinct, the origin of our patriotism, and in itself a
glorious endowment, overcame the quiet reason of times of peace.136
Manipulating the civilian law in order to compel men to risk their lives in battle has
always been a vexed issue for legislators. Historical accounts have tended to focus on
opposition to military conscription in New Zealand but contrary to popular belief, the
bulk of New Zealanders whole heartedly supported it, especially as voluntary enlistment
began to decline.137
Compulsory Military Training for boys between the ages of 11 and 21 years (although the
minimum age was later raised to 14) was introduced in 1909 following an alarming
German “naval scare”.138 The general preoccupation with defence in New Zealand and
anxiety about threats to national security meant that only a vocal minority protested the
measure, which was an early indication that the government was prepared to
compulsorily control the citizenry if necessary.139 Significantly, New Zealand, unlike
136
Graham, above n 4, at 32.
David Grant and Bob Kerr (illustrated by), Field Punishment No 1: Archibald Baxter, Mark Briggs and
New Zealand's Anti-militarist Tradition (Steele Roberts & Associates, New Zealand, 2008) at 33.
138
Defence Act 1909.
139
Grant, Field Punishment, above n 137, at 14.
137
33
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Australia, did not allow exemption from service based on conscientious objection in the
Defence Act 1909.140 Defence Minister James Allen said “The subject of the
conscientious objector is so surrounded with difficulties that I cannot conceive of any
legislation that would cover the matter.”141
There is no doubt that the declaration of war on 5 August 1914 was ecstatically greeted
by New Zealanders and this was evinced by the number of parades and celebrations.
14,000 keen and naïve young men volunteered within a week to defend the old country
and for adventure.142 For a while, there were more than enough volunteers to fill defence
quotas and so the implementation of conscription would have made no sense. A year after
the outbreak of World War I New Zealand had more than 23,000 men serving but still
large number of eligible men had not enlisted.143 A gradual and widespread belief was
developing that ‘war should not be left to those who want to fight’, 144 especially amongst
wives, daughters and sweethearts left behind. The public began to view military service
as an obligation, a civic duty, as opposed to a choice to volunteer.145 A 1915 letter to the
editor of the Herald was ‘sickened by the sight of the hundreds of able-bodied young men
lounging around the streets of Auckland…when their nation is engaged in a life of death
struggle…every true British girl has supreme contempt for such shirkers’.146 The negative
term ‘shirkers’ came to be used by the patriotic to express such ‘supreme contempt’ for
140
McGibbon, above n 6, at 115.
(10 October 1912) 161 NZPD 92-93.
142
Grant, Field Punishment, above n 137, at 15.
143
At 17.
144
Observer (New Zealand, 6 March 1915) at 3.
145
Paul Baker, above n 2, at 21.
146
Observer (New Zealand, 17 April 1915) at 3.
141
34
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
the men who were eligible to enlist but had not done so. Various newspaper castigated
shirkers as ‘parasites’, ‘cowards’, and ‘traitors’.
Most New Zealanders agreed that all men should fight but they hoped that conscription
would not be necessary. A volunteer regime was infinitely preferable, as conscription
would imply that their men had been forced to fight, were unpatriotic and less manly than
their Australian and Canadian counterparts.147 Neither of these other dominions
introduced conscription and Australia, New Zealand’s primary war effort competitor, had
a higher rate of volunteering.148 However, as the stream of New Zealand volunteers began
to slow, few people were completely opposed to conscription and most accepted that
State’s right to use it. As David Grant points out in “Field Punishment No. 1” part of
citizenship is a duty to defend one’s country and if a man refuses to do so, the state can
compel him to or remove his citizenship privileges.149 This, of course, is exactly what
ultimately happened in New Zealand.
Many factors contributed to the drop in levels of volunteers- the sight of returning
wounded and ghastly tales from Gallipoli provided a massive disincentive. Many men did
not pass the medical test and others were frustrated with the long wait to be deployed.150
The government’s ‘moral suasion’ campaign, which involved advertising slogans like “A
question you will have to answer someday: Father! What did YOU do to help when
147
Grant, Field Punishment, above n 137, at 18.
Baker, above n 2, at 31.
149
Grant, Field Punishment, above n 137, at 18.
150
At 18-19.
148
35
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Britain fought for freedom in 1915? What will your answer be?”151 was proving
ineffective. The public was beginning to see that voluntarism would not provide equality
of sacrifice or much needed reinforcements.152
The government resisted conscription as long as it could, mainly due to fear of
opposition from pacifists, civil libertarians and Labourites. The Maoriland Worker
threatened ‘upheavals…to shake the foundations of the social structure’153 at a time when
the government was paranoid about social divide. Before the war, Labour was deeply
divided but the anti-conscription issue helped to unite the party. Their opposition was
driven by the widening gap between rich and poor in New Zealand and agitation about
inequality and war time profiteering.154 They argued that if conscription was to be
introduced, it should be accompanied by ‘conscription of wealth’, namely the
confiscation of money from the wealthy in order to raise the level of military pay and
pensions (for the men who Labour asserted were fighting to protect the property interests
of the wealthy in the first place).155
The National Register of December 1915 was what finally established that conscription
was inevitable. The government surveyed eligible men about whether or not they would
enlist and the outcome of the exercise was that there were perceived to be at least 10,000
“Moral Suasion: a recruiting tram in Christchurch in 1915”, Photograph, Alexander Turnbull Library,
Paul Baker, King and Country Call: New Zealanders, Conscription and the Great War (Auckland
University Press, Auckland, 1988) at 41.
152
Baker, above n 2, at 46.
153
The Maoriland Worker (New Zealand, 1 September 1915) at 4.
154
H.E. Holland, Armageddon or Calvary: The Conscientious Objectors of New Zealand and “The Process
of Their Conversion, (The Maoriland Worker Printing and Publishing Company, Wellington, 1919) at 9.
155
Grant, Field Punishment, above n 137, at 29.
151
36
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
able-bodied men avoiding doing their duty, not to mention the 24,000 who objected to
any type of voluntary service.156 The reverberating calls for conscription were intensified
and became a positive roar for ‘equality of sacrifice’. Even Prime Minister Massey
considered it grossly unfair that some families had sent all their sons and others none.157
Defence Minister James Allen stated, “there can be no doubt about it that the bulk of
opinion in this country is in favour of compulsion, and has been for some time.”158
By virtue of the Expeditionary Forces Act 1915, the government was already legally
entitled to enforce CMT and possibly military service within New Zealand but forcing
men to fight overseas required additional legislation.159 Thus, the Military Service Act
was introduced in November 1916 with 47 clauses (compared to the British Bill which
only had eight).160 The government’s biggest dilemma was deciding how to deal with
those who resisted conscription. The drafters were tasked with providing for a system of
conscription and its application with much stricter exemptions than had been seen in
Britain.161 Parliament’s overall conservative nature meant that any conscientious
objection clause would be extremely narrow, or else non-existent.162 The end result was a
156
Baker, above n 2, at 58.
Grant, Field Punishment, above n 137, at 21.
158
Letter from James Allen (New Zealand Defence Minister) to Sir Alexander Godley (British General)
regarding conscription (4 January 1916) Allen Papers M1/15.
159
Expeditionary Force Act 1915, s3(1).
160
Baker, above n 2, at 86.
161
Ibid.
157
162
Jane Haidee Hubbard, “The politics of conscription 1910-1916: a comparison between New Zealand,
Britain and Australia” (M.A Dissertation, Victoria University of Wellington, 2005) at 28.
37
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
very limited religious exemption which basically only applied to Quakers and
Christadelphians, applying to men who since August 14 had:163
‘continuously been a member of a religious body the tenets and doctrines of which….declare
the bearing of arms and the performance of combatant service to be contrary to divine
revelation’.
There was no concession for conscientious objection on non-religious grounds and Paul
Baker in “King and Country Call” acknowledged that this was completely consistent with
public attitudes towards such objectors.164
G
Conscientious Objectors – World War I
How to deal with conscientious objectors who refused to fight was overwhelmingly the
most contentious aspect of the Military Service Bill. There was very little tolerance for
objectors, either in government or amongst the public. The general opinion was that if
they were unwilling to fight they should be punished and many believed that if they were
forced to experience war first-hand they would realise how ridiculous their stance was
and give in.165 Military conscription was considered a success for delivering ‘equality of
sacrifice’ and ensuring adequate reinforcements to help Britain win the war.
Unsympathetic Military Service Boards assessed the ‘genuineness’ of those who sought
exemption. ‘The inflexible patriotism of Board members was mystified, frustrated and
163
Military Service Act, s18(1)(e).
Baker, above n 2, at 175.
165
Grant, Field Punishment, above n 137, at 38.
164
38
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
incensed by the equally inflexible fundamentalism of most religious appellants.’166 The
Defence Department advised that those who held ‘genuine’ objections but were ineligible
for exemption under the Act should be offered non-combatant service. 170 men went
overseas following this recommendation but the rest were imprisoned along with ‘nongenuine’ resistors.167 These objectors fell into four broad categories: Religious, Socialist,
Maori or Irish. The Maori were primarily from the Waikato, still resentful of land
confiscations and believing the war was not theirs to fight. Similarly, the Irish refused to
fight for the British as their own country was in rebellion and they considered Britain an
enemy. Socialists thought that the real problem was not Germany but capitalism, and that
the working class was being made to fight to protect the interests of the rich. The
religious objectors primarily belonged to fundamentalist sects who literally interpreted
the commandment “Thou shall not kill”. Those belonging to more mainstream churches
objected on an individual pacifist basis as their churches zealously supported the war
effort and accordingly, conscription.168
Conscripts who were ineligible for exemption yet still refused to serve in the army faced
a vigorous, well-planned punishment regime. As Harry Holland wrote soon after the First
World War:169
It did not matter that he had never taken the oath, that he had never passed a medical test, that
he had positively refused to be a soldier. He was held to have taken the oath; he was
categorised as a soldier; he was labelled ‘deserter’, and treated accordingly. Employers were
166
Baker, above n 2, at 175.
McGibbon, above n 6, at 116.
168
Grant, Field Punishment, above n 137, at 37.
169
Holland, above n 154, at 20.
167
39
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
forbidden to give him work; his own mother was liable to jail with three years’ hard labour if
she gave him shelter; his own friends were liable to fine and imprisonment if, knowing his
whereabouts, they failed to inform the authorities.
Objectors were initially detained for a short period of time and then imprisoned for
a month, designed to break the will of the less determined. Those with more
gumption had to front a Trentham Court Martial and were usually sentenced to up
to two years of hard labour if they still refused to enlist. Baker has commented on
the counterproductive nature of this punishment, as prisoners of more than a year
became militarily ineligible.170 Labour MP Paddy Webb was court-martialled and
sentenced to two years hard labour for refusing to wear a uniform after he was
called up. He lost his seat in Parliament and also his civil rights for a decade after
the war.171 With the exception of some objectors at the Wanganui Detention
Barracks, discussed below, the majority were treated well and were model
prisoners. Though not nearly as bad as the prisons in Britain,172conditions were
harsh, the work backbreaking and those who stuck to their beliefs once their
sentence was complete faced further imprisonment. Soon the prisons were
overflowing and all but the most troublesome objectors were detained in prison
camps instead.173 By 1918, 188 men were doing hard labour174 and Defence
Minister Allen could see no objective reason why such ‘shirkers’ should remain in
New Zealand.175 The ever present maxim ‘equality of sacrifice’ dictated that
although prison was unpleasant, it wasn’t as bad as fighting in the trenches and
170
Baker, above n 2, at 176-177.
Grant, Field Punishment, above n 137, at 35.
172
See David Boulton, Objection Overruled (Macgibbon & Kee Ltd, London, 1967).
173
Baker, above n 2, at 178.
174
McGibbon, above n 6, at 116.
175
Grant, Field Punishment, above n 137, at 39.
171
40
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
objectors should be sent to the front. Imprisoning them was expensive, and Allen
feared it was not having the desired deterrent effect. Consequently, the Defence
Department decided that once their prison sentences expired, the more ‘deviant’
conscientious objectors would be transported to France, despite their lack of
military training. There they would be deemed soldiers, subject to the same military
law and punishment as were servicemen who failed to obey orders.176
6
‘The Fourteen’
This policy was abruptly implemented on 14 July 1917 when the commanding
officer of Trentham Military Camp took advantage of spare room on a troopship
ready to sail from Wellington. In a seemingly arbitrary decision, fourteen men
including Archibald Baxter and the unofficial ringleader of the objectors Mark
Briggs were suddenly dispatched to Britain.177 Their case has been extensively
discussed, most notably in Baxter’s autobiography We Will Not Cease, Harry
Holland’s Armageddon or Calvary and more recently, in David Grant and Bob
Kerr’s Field Punishment No.1: Archibald Baxter, Mark Briggs and New Zealand’s
Anti-militarist Tradition. Nonetheless, a brief overview is warranted in order to
examine the application of military law to intransigents who simply would not be
soldiers.
The men were secretly put aboard the Waitemata ship and transported under guard
in its ‘clink’. Baxter believes the men were chosen not because they were badly
176
Tate to Camp Commandants, regarding treatment of conscientious objectors (11 June 1917) Defence
Department Archives AD10/407.
177
Grant, Field Punishment, above n 137, at 40.
41
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
behaved but because of their obscurity ‘…being thought unlikely ever to make our
protest heard either personally, or through relatives’.178 Indeed, only because one of
the men managed to smuggle a note on shore before the ship sailed did the news
become public. Refusing to don uniform, the men were hauled on deck, stripped
naked and forcibly dressed in front of volunteer soldiers. During the voyage several
of them became ill and they very rarely saw daylight. At Sling Camp in England,
they turned down gardening work and were punished with 26 days detention,
always in handcuffs. Later punishments for refusal to obey orders included physical
and verbal abuse, solitary confinement, forced dressing and a bread and water diet.
Three of the fourteen objectors soon succumbed. The remainder were threatened
with court martial before being sent to France, where Brigadier George Richardson
commanded that they be split up and if they still persevered in their beliefs, be
awarded field punishment and sent into the trenches. In an attempt to break his
spirit, Baxter was shown a list of New Zealanders who had allegedly been executed
for defiance (this is incorrect, as only five were executed, and for desertion and
mutiny).179 In any event, Baxter refused to accept that he was in the army and
acknowledge military law. For several of the other men, however, continued
imprisonment and intimidation was too much and they submitted. One of them, an
Irishman, even became a soldier as he was only opposed to fighting for Britain, not
war itself. Three more men surrendered and became stretcher bearers after a stint at
No 10 military prison in Dunkirk under hideous conditions. The remaining four,
among them Briggs and Baxter, were sentenced to Field Punishment No 1 for their
178
179
Baxter, above n 55, at 35.
Baxter, above n 55, at 99.
42
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
continued defiance. Though Baxter was not physically fit enough to undergo the
punishment, the doctor passed him anyway, explaining ‘You’re such a damn fool
you deserve all you get’.180 This paper has already expounded on the abuses of
Field Punishment suffered by Baxter and his ilk, but their misery was compounded
by the scanty No 1 or No 2 Punishment diet. Additionally, while soldiers were
given a reprieve from Field Punishment No 1 when the weather was particularly
bad, the objectors were not and Baxter recalls being tied up in a blizzard with below
zero temperatures for hours. He may have died if a superior officer hadn’t come by
and demanded they be released. Baxter’s song James, a poet, later described his
fathers’ ordeal:181
When I was only semen in a gland
Or less than that, my father hung
From a torture post at Mud Farm
Because he would not kill. The guards
Fried sausages, and as the snow came darkly
I feared a death by cold in the cold groin
And plotted revolution. His black and swollen thumbs
Explained the brotherhood of man…
Sir Alexander Godley, realizing Field Punishment would not deter them, sent the
men into the trenches with orders that they be treated with a certain amount of
180
181
At 103.
James K. Baxter, Pig Island Letters (Oxford University Press, London, 1966) at 10.
43
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
savagery. The men still believed they could be given death sentences and Baxter
wrote home:182
As far as military service goes, I am of the same mind as ever. It is impossible for me to serve
in the army. I would a thousand times rather be put to death…I will never in my sane senses
surrender.
Every day Baxter and another man were made to walk to the front line, only to do
nothing once there but remain under guard. Briggs wouldn’t walk and one day was
dragged along the duck walk, suffering a gigantic flesh wound ‘big enough to put
your fist into’ in the process. When he still refused to walk he was almost drowned
in shell holes filled with water, with Provost Sergeant Booth taunting “You’ve not
got your Paddy Webbs and your Bob Semples to look after you now.”183 At one
point, Baxter was offered a hut to himself but was tipped off by other soldiers that
this was a plot get him ‘accidentally’ killed. Not long afterwards, he heard there
were orders that he was not to be fed. Baxter was sure that if he died now, the army
would say he had been killed in action or died of disease. Eventually, half delirious,
he was left behind while his unit was on the move. He was found later by British
soldiers, unconscious and near naked, having defiantly removed his uniform one
last time. Eventually transferred to a mental hospital, he was declared ‘insane’ and
returned to New Zealand. Only he and Briggs had managed to hold out to the end.
182
183
Baxter, above n 55, at 117.
Baxter, above n 55, at 128.
44
7
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Wanganui Detention Barracks
The brutality experienced by the transported conscientious objectors had a parallel,
to a lesser extent, in New Zealand. In 1918 the Wanganui Detention Barracks were
established for the specific purpose of ‘reforming’ conscientious objectors. Such
attempts had proved unsuccessful in civil prisons. Major Osburne–Lilly, the
Director in charge of Personal Services for the Defence Department, stipulated that
rigid discipline would be required. However, under the command of Lieutenant JL
Crampton, the objectors at the barracks suffered what seems to be gratuitous
violence. Crampton had been accused of rape and assault of a Samoan woman
while commanding the military police in Samoa, and although the assault charge
was upheld he was not cashiered out of the army but retained his position, being
moved to New Zealand instead.184
It appears that Crampton wanted to prove himself at Wanganui Barracks and show
that he could reform conscientious objectors, though others had failed. He
employed whatever violence he thought necessary to transform the objectors into
soldiers. The ‘slaughter yard’ was where prisoners who refused to undertake pack
drill were kicked, punched and in one case, dragged by a rope around the neck back
and forth across the yard. Reportedly, some were pushed into walls so violently that
their faces were like ‘raw steak’.185
184
185
Grant, Field Punishment, above n 137, at 110.
Holland, above n 154, at 127.
45
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
In May, Truth magazine published a letter describing the beatings and quoting
Crampton as saying ‘Ah, the sight of blood does my eyes good’. 186 Osburne-Lilly
had seen no evidence to support the allegations when he paid a surprise visit to the
camp. Too afraid of retribution, the objectors protested only about the porridge.187
He ordered that mail be censored to prevent the spread of such ‘lies’188 but the
stories spread anyway and a public outcry ensued.189 Allen ordered a Magisterial
Inquiry which found that most of the accusations were valid and that Crampton was
aware he was on shaky ground, legally. The Wanganui Barracks were closed and
the objectors returned to prison. The storm of protest over Crampton’s behaviour
did not die away, however, and many thought he should be brought to account for
his actions. In response, Crampton belligerently demanded a court martial. His
counsel was paid for by the New Zealand Returned Servicemen’s Association. He
was found not guilty on eleven charges of ill-treating a soldier and the court was
persuaded that military precedent justified force on ‘misbehaving soldiers’. He was
honourably discharged from the army.190
8 Enduring intolerance
By the end of the First World War, conscientious objectors had been brutalized for
their beliefs both at home in New Zealand and abroad. The oppressive discipline
186
Grant, Field Punishment, above n 137, at 110.
Osburne-Lilly (Defence Department) to Hewitt (Magistrate), regarding Wanganui Detention Barracks
(14 August 1918) Defence Department Archives 1/10/566.
188
Tate to Gibbon (27 June 1918), cited in Baker, above n 2, at 195.
189
Holland, above n 154, at126- 130.
190
Grant, Field Punishment, above n 137, at 110.
187
46
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
and punishment reflected the theory that objectors could be ‘reformed’. The
Defence Department and government expressed ambivalence towards the reported
violence, so desirous were they to suppress existing conscientious objectors and
deter others from taking up a similar stance.191 They continued to stubbornly protest
that they had no knowledge about the treatment foisted upon the Fourteen
transported to Europe, at least no more about them than about any other ‘soldier’.192
Notwithstanding this, no further objectors were deported.
By popular demand, the imprisoned conscientious objectors were not released until
the last soldiers were repatriated in November 1920. It seemed glaringly unfair to a
still contemptuous public that they should be freed before men who had fought for
their country made it home. Unfortunately, the end of the war was not the end of
punishment for objectors as many citizens took it upon themselves to make their
lives difficult. Objectors were reviled ‘shirkers’ who did not deserve citizenship
privileges. For example, the Rotorua Returned Servicemen’s’ Association
campaigned to have staff at Rotorua Hospital who had been objectors forced to
wear an armband to distinguish themselves and that they be ineligible for
promotion.193 Objectors were ostracized socially and lambasted by the press. Many
were fired from their jobs and some were physically and verbally abused in the
street. As a result, some conscientious objectors turned recluse and hardly left their
homes.194
191
Baker, above n 2, at 190.
At 191.
193
Baker, above n 2, at 201.
194
Grant, Field Punishment, above n 137, at 97.
192
47
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
The Military Service Act required equal treatment of ‘genuine’ and ‘defiant’
objectors and the Department had grown more and more frustrated by this as the
war progressed.195 Once the war was over, a distinction between types of objectors
became important for a completely different reason. On the 5 December 1918 the
Expeditionary Forces Amendment Bill was introduced (voted against only by Harry
Holland and Peter Fraser),196 providing that all military defaulters and objectors,
except ‘bona fide’ religious objectors, would lose their civil rights for the next
decade.197 In addition, they were barred from employment in the public service.
Grant discusses how this posed a very dangerous civil rights issue, creating a
worrying precedent for future governments wanting to silence and punish those
who oppose it.198 It was a form of punishment that only New Zealand exercised and
in this respect, New Zealand was much more oppressive than Britain. 199 In essence,
offenders were punished twice for the same ‘crime’. In 1922, J.W Graham
remarked ‘The whole New Zealand story is a profound disappointment for those
who have hoped much from democracy and from women’s suffrage’.200
H Conscientious Objectors – World War II
195
Baker, above n 2, at 190.
Grant, Field Punishment, above n 137,at 100.
197
Baker, above n 2, at 201.
198
Grant, Field Punishment, above n 137, at 100.
199
Graham, above n 4, at 364.
200
At 365.
196
48
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
In 1939, when hostilities broke out in Europe, New Zealanders without hesitation
answered the call of king and country just as they had in 1914. The government decided
in 1940 that conscription would be imposed and once again the predominant concern was
equality of sacrifice. Provisions for exemption based on conscience in the 1940
regulations were wider in scope than those in the First World War. Initially, Peter Fraser
affirmed that only long term members of pacifist religious groups would be considered
for exemption.201 However, extended pressure from the Bishop of Wellington and his
delegation prompted the government to allow individuals to seek exemption by
convincing appeal boards that they believed absolutely that war was wrong.
9 Unsympathetic Appeal Boards
In New Zealand, Armed Forces Appeal Boards were set up to assess the ‘genuineness’ of
such conscience cases.
The tribunal members were all public figures and so their
integrity was assumed but the questions they asked appellants were often irrelevant and
unfair. David Grant gives the example of an appellant who was told that because he
drinks tea, he was “using the Navy” as they protected cargo ships importing such
products.202 A Timaru gardener was told that pruning flowers is harming life and so it
made no sense for him to object to fighting. Appellants were frequently asked “what
would you do if a German/Japanese attacked your mother?” in an attempt to provoke
emotive responses. Young men were told they didn’t know what they were talking about
and older men were chastised for not knowing better. Most appellants felt that the
proceedings were completely unjust and it seems that the more outspoken an appellant
201
David Grant, Out in the cold: Pacifists and conscientious objectors in New Zealand during World War
II (Reed Methuen, Auckland,1986) at 177.
202
Grant, Out in the Cold, above n 201, at 123.
49
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
was the less likely it was that his appeal would be allowed. “They had nothing to do with
conscientious objection. All those who opposed the war were simply locked up.”203
In many ways it is unsurprising that the Appeal Board hearings were unpleasant ordeals.
Members of the Board were from a different generation, conservative and upstanding
members of society. Many had served during the First World War and were convinced
that objectors were failing as citizens.
By 1945, 3,000 men has appealed against their conscription on conscience grounds and
only nineteen per cent were allowed. They remained in the community, the only
restriction on them being that their income was capped at the rate of an army private.
Pursuant to 1941 national service regulations, employers were not allowed to fire genuine
objectors but this proved very difficult to enforce.204 Impressively, the government
resisted pressure from the public to sack objectors from the public service. Teachers were
not so lucky. School boards could not sack teachers purely because they were objectors
but they could on grounds of “immorality” or “misbehaviour”. The Dominion stressed
that teachers should be completely loyal because they had a large amount of influence
over the nation’s children.205 The Auckland Education Board forced its teachers to make
another oath of allegiance and urged the Education Minister to deal with teachers whose
loyalty was questionable.206
203
At 124.
Grant, Out in the Cold, above n 201, at 137.
205
Dominion, (New Zealand, 22 August 1941).
206
Dominion, (New Zealand, 3 September 1941).
204
50
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
10 Detention Camps
Those whose appeals were rejected by the Boards faced an agonizing choice – to
continue their resistance or accept conscription and join the army. 400 men chose to enlist
and the remaining 800 were declared military defaulters and were shut away in detention
camps and prisons around New Zealand, to await whatever punishment the government
thought fit.207 During World War I, objectors had been court-martialled, detained in
civilian prisons and re-sentenced if they still refused to fight once said sentences had
expired. Walter Nash, who had reluctantly abandoned his pacifist beliefs and accepted
that the war was necessary, advocated a more “humane” system of punishment.208 In
1941, as acting Prime Minister, he announced that defaulters would labour in work camps
that were a fairer and cheaper alternative to prison. Grant points out, however, that
regardless of how liberal the camp concept seemed to be, conscientious objectors were
still detained for the duration of the war – an indefinite sentence.209
The work at the camps was mundane and repetitive. The rules and routine were harsh, in
many cases even more so than prison. Unlike prison, only immediate family members
were able to visit the defaulters and censorship was particularly strict. Just like the
military police who ran prison camps in France in World War I, camp supervisors in New
Zealand had unlimited discretion to invent disciplinary reactions to bad behaviour or noncooperation by inmates. The most basic sanction was the removal of privileges such as
tobacco, family visits or mail and games.210 Other recalcitrant detainees could be
207
Grant, Out in the Cold, above n 201, at 143.
Ibid.
209
Grant, Out in the Cold, above n 201, at 145.
210
At 178.
208
51
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
sentenced to long periods of solitary confinement at camp if they broke the rules by, for
example, talking back or escaping under the wire to go fishing.211 As of May 1943, an
amendment dictated that men who consistently bucked the system could be sent to prison
for the duration of the war, without an inquiry into their guilt or innocence.212 They were
not allowed legal counsel and many did not even get a hearing. They were incarcerated
based on the recommendation of their camp supervisor and the magistrate accepted this
without question. There were no appeals.
The Christian Pacifist Society vigorously challenged this amendment, arguing that even
actual criminals could not be sentenced indefinitely and that such “…standards of justice
are insane”.213 The government did not listen. For a long time it had been concerned
about disobedience in the camps and in any event, sending the most incorrigible rulebreakers to prison was not in fact deterring others. In 1944, Len Greenberg, controller of
New Zealand’s detention camps, gave orders that solitary confinement on reduced rations
could be inflicted for up to 120 days before the troublemaker was sent to prison. Eight
men from Strathmore camp were sent to Hautu Prison for refusing to work and
reasserting their freedom with a protest manifesto that stated:214
The real nature of these camps is concealed from the general public. They are concentration
camps where a dissentient minority are imprisoned by a totalitarian government for an
indefinite period.
211
At 180.
Ibid.
213
Christian Pacifist Bulletin (New Zealand, 8 September 1942).
214
Cited in Christian Pacifist Bulletin (New Zealand, 19 July 1942).
212
52
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
In 1943, protest surrounding New Zealand’s work camp system for conscientious
objectors was gathering momentum and Justice Minister Rex Mason was keen to release
defaulters who were particularly old or young, and mentally or physically impaired.
Though the War Cabinet commissioned an investigation, it was an unfair inquiry
conducted by men who believed conscientious objection was an unacceptable stance for
any man to take.215 Nevertheless, while Prime Minister Peter Fraser was away, Mason
managed to convince his colleagues to set up Revision Authorities to reassess detainees
and possibly release those judged to be sincere. This move proved hugely unpopular with
the public, National opposition and the Returned Servicemen’s Association, as evidenced
by an article in Truth:216
This is the most indefensible of all the indefensible things this government has done to
pamper these men who deserve nothing but a well-earned detention, plenty of hard work and
a course of strict discipline.
The prevalent concern amongst the general public was that objectors and defaulters
could be released before soldiers were able to return from overseas. Fraser agreed
“…you can’t expect me to have much sympathy for men who have been safely
guarded and well fed here”217 and procrastinated over the implementation of the
Revision Authorities, which in the end did not begin hearings until the war had
already ended.
As it turned out, releasing objectors from their military
imprisonment was uncontroversial. Most wanted nothing more than to slip quietly
back into ordinary civilian life.
215
Grant, Out in the Cold, above n 201, at 230.
Truth (New Zealand, 31 January 1945).
217
Fraser to deputation, 21 June 1945 (Prime Minister’s Departments files, National Archives 83/10/1).
216
53
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
11 An international comparison
Comparatively, British conscientious objectors during World War II had been much
better off. More than half of them were militarily exempted and given noncombatant tasks such as ambulance driving. The Australian Government closely
followed the British example and in the United States, objectors had a right of
appeal if their application for exemption was initially rejected. Work camps in
Canada and the US were much more liberal, often run by the inmates themselves
and by 1944 many inmates had been released in response to labour shortages. New
Zealand objectors were not privy to anything like the same opportunities, rights or
freedoms. Many continued to suffer for their beliefs for decades – one primary
school teacher was not allowed to return to work until 1962 and defaulters
continued to be banned from working in the public service. All military defaulters
were deprived of their civil rights for ten years. The message was straightforward –
the government was not prepared to forgive those who would not fight.
V The Suppression of Anti-war Dissent
They left these shores thinking they were going to fight for freedom, and what freedom
had they left behind?218
I
World War I – New Zealand’s First Encounter with Subversive Antimilitarism
Wars have a tendency to be catalysts, creating pressure under which political, social,
economic and technological developments accelerate. Arguably, the years during which
218
Holland, above n 154, at 25.
54
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
New Zealand was embroiled in world wars altered the country’s historical landscape
more than any peaceful ones. Young New Zealand was eager to prove itself to the
‘motherland’ and New Zealanders were proud to consider themselves British. Until the
First World War, ‘dissent’ in New Zealand was relatively unheard of.219 The state was
“all-embracing”,220 the public completely reliant on the press for information and content
to swallow its anti-German propaganda. As rumours of German atrocities spread, assaults
on German people within New Zealand increased and their businesses were boycotted
and sometimes attacked. Several families were sequestered on Somes Island in
Wellington Harbour simply because they were of German ethnicity. The Anti-German
League, founded by the wife of Chief Justice Sir Robert Stout, enjoyed widespread
popularity and was successful in lobbying for the Alien Enemy Teachers Act 1915, which
resulted in many teachers of Germanic origin being ousted from their jobs.221
Such negative sentiment suited the governmental agenda and much time and effort was
dedicated to suppressing opposition to the war, particularly from Labour, through
extending the 1915 War Regulations. The government’s commitment to the war was
heartfelt and unconditional and it expected nothing less from the citizenry. In response to
Bob Semple’s famous anti-conscription speech to coal miners (for which he received a
twelve month jail sentence), the government enacted regulations extending the definition
of sedition to encompass inciting disaffection, disorder and class hostility, interfering
with recruiting, production and transportation of essential goods and discouraging the
219
Grant, Field Punishment, above n 137, at 10.
Ibid.
221
Grant, Field Punishment, above n 137, at 17.
220
55
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
prosecution of the war to a victorious conclusion”.222 Allen suggested that employers
encourage their employees to enlist, implicitly condoning the sacking of those who did
not.223 Pacifists such as Harry Urquhart and James Chapple received lengthy jail
sentences for making anti-conscription speeches or publishing anti-war material.224 Once
released, Chapple moved his family to America, where there was no conscription. He
vowed not to return until “democracy crushed militarism”. 225 Additional war regulations
introduced during 1916 forbade the Peace Council to hold public meetings and made it
illegal to “incite, encourage, advise or advocate violence, lawlessness and disorder, or
express any seditious intention”.226
In the intervening years between the wars, perspectives on the First World War became
more balanced. Anti-war literature by authors such as Ernest Hemingway, who had
experienced the war first-hand, focused on the carnage of battle and helped to foster the
feeling that such horrors must never be allowed to occur again. In New Zealand,
Compulsory Military Training stopped in 1930, with Defence Minister J.G Cobbe
stating:227
I cannot ignore the strong feeling in favour of world peace and opposition to militarism,
especially CMT, that has grown up, not only in New Zealand but in most civilised countries.
222
At 33.
Baker, above n 2, at 43.
224
Grant, Field Punishment, above n 137, at 27 and 28. Urquhart’s sentence was particularly interesting,
given that his pamphlet ‘Men and Marbles’ was simply a written version of an earlier speech given in the
presence of police officers, who had raised no objection.
225
At 27.
226
Baker, above n 2, at 44-45.
227
Cited in Grant, Out in the Cold, above n 201, at 26.
223
56
J
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
World War II – The Official Tentacles Tightened around Anti-war Dissent
Regrettably, attitudes such as those expressed by Minister Cobbe didn’t even last a
decade. As soon as the threat of World War II lurked on the horizon, New Zealand began
to prove it was anything but civilised. The government was aware that this time around
there was likely to be much more reluctance to fight and much more antimilitarism
amongst the public. Perhaps for this reason, the limitations on personal freedoms became
even more onerous during the Second World War. Pacifists were ‘rare and despised’228
and the government was secure in the knowledge that only a handful of hard-core antimilitarists opposed the conflict. Nevertheless, they posed a thorny problem for the
government – to what extent should civil liberties be interfered with in wartime? Even
before the declaration of war, manifold emergency regulations were passed and a
Depression era statute reappeared, giving the government very wide powers. The
National Opposition anxiously stated that the government was meant to be protecting
rights during times of crisis, not removing them, “in times of grim defence of our
cherished heritage of liberty, freedom and justice, we interfere with the thing we hold
most dear”.229
Reacting to complaints that only one side of the debate was being heard and freedom of
expression unfairly curtailed, Peter Fraser explained that many freedoms “had to go” and
claimed that allowing pacifist dialogue could risk civil war.230 Meanwhile, the NZ
Journalists Association expressed concern about the rise in press censorship that now
228
Baker, above n 2, at 46.
Grant, Out in the Cold, above n 201, at 46.
230
At 239.
229
57
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
covered not only sensitive security material but also domestic political matters231 and the
censor’s powers to scrutinize private mail.232 Fraser was instrumental in discrediting the
Peace and Anti-Conscription Council, which suffered police raids, without warrants, on
the homes of its leaders and the deportation of its President to Australia.233 Two left wing
newspapers, People’s Voice and Tomorrow, were banned outright and had their printing
presses seized, despite the fact that Tomorrow was not overtly anti-war and was merely
acting as a watchdog on civil rights.234
The executive was not the only branch of government wielding very broad power. The
judiciary used its free rein to imprison well-known war critics for as long as possible. The
trial of Reverend Ormond Burton, for example, remains one of the most indefensible in
New Zealand’s legal history.235 Burton in fact spent several periods in prison during the
war as punishment for espousing pacifism. Perhaps the country’s most well-known
pacifist, he was also considered to be the most credible. As a World War I veteran, he had
personal experience with war and along with other pacifists like A.C Barrington, Burton
was a real obstacle to the government’s crackdown on free speech. Once anti-war
meetings were prohibited in public venues, the activists took to the streets and made
speeches in places like Pigeon Park in Wellington. During Burton’s stints in jail, his wife
Nell would continue his work, speaking to crowds at the Basin Reserve on weekends.
Frustrated with the publicity surrounding such arrests, the Wellington City Council
231
Ibid.
Grant, Field Punishment, above n 137, at 121.
233
Grant, Out in the Cold, above n 201, at 76.
234
At 79-80.
235
Grant, Out in the Cold, above n 201, at 12. See also Jeremy Pope, “Mockery of Mercy” (1976) NZLJ
188.
232
58
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
banned public meetings in streets and public places for the duration of the war. Choosing
to ignore this, a weekly roster of speakers developed an intentional policy of
confrontation and every Friday night orators would climb on a soapbox in Pigeon Park
and try to speak. All of them were hauled down by police, usually before they had
managed to even open their mouths. They were arrested, tried and jailed for between
three to twelve months.236 The courts were utterly biased, to the point that at the end of
one of Burton’s trials, Chief Justice Michael Myers directed the jury to find him guilty
and they did so within two minutes.237 When Barrington found himself before the same
judge in 1942, “Sir Michael flung himself into the battle with great determination,
intervening, interrupting, almost pushing aside the prosecutor…and taking over the role
himself.”238
In the same year, Ormond Burton was tried in the Supreme Court, charged with
publishing a pacifist bulletin. Despite the jury’s recommendation to mercy, Justice
Archibald Blair reached outside Emergency Regulations which stipulated that the
maximum sentence was twelve months imprisonment to impose two and a half years. He
claimed jurisdiction under a Crimes Act amendment to impose up to ten years
“reformative detention” and asserted that accordingly, by restricting himself to two and
half years he had indeed been merciful. Comments made during Blair’s summing up
reflect the common view of pacifists held by New Zealanders during the Second World
War:239
236
At 91.
At 92.
238
A.C Barrington, Trials of a Pacifist, (no date, Wellington) at 16.
239
Jeremy Pope, “Mockery of Mercy” (1976) NZLJ 188, at 189.
237
59
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
If the view of the accused…were permitted everyone called in the armed forces would be
brought to the frame of mind where they would lay down their arms and let the Fascists, or
the Nazis, or the Japanese, come in and take the country.
The British people put up with…a lot of cranks – while they kept quiet about it it was all
right, but there always comes a time with these people when mouths have to be shut.
K New Zealand’s Shame
Blair J’s remarks are illustrative of the fact that compared to British society, which was
mature and tolerant enough to cope with an anti-war movement, New Zealanders on the
whole reacted to pacifists emotionally and with hostility. The right to protest was
considered inalienable in relatively liberal Britain, where the approach to pacifists and
objectors was open-minded. Similarly, in Australia no pacifist organization or individual
was ever prosecuted even though there was adequate legislative basis to do so.240 In New
Zealand, however, suppression measures were pursued with unparalleled alacrity. The
government’s right to enact far-reaching control in times of crises was undisputed but
Peter Fraser’s determination that there would be no conspicuous opposition combined
with his hypocrisy about his own antimilitarist history meant he was uncompromisingly
harsh when it came to obstinate minorities. The war regulations were supported by the
press, judiciary, political opposition, lobby groups and the bulk of the population.
Punishing anti-militarists served the dual purpose of eliminating political opposition and
satisfying the ever increasing demand for equality of sacrifice. 241
In the process,
however, it created an alarming precedent should future governments wish to suppress
opposition.
240
241
National Security Act 1939 (Australia).
Grant, Out in the Cold, above n 201, at 85.
60
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
VI Conclusion
One of the greatest casualties of World War One and Two was the outdated military law
enshrined in the Army Act 1881, which provided for the indiscriminate discipline of
soldiers, regardless of whether they were volunteers or conscripts. In the majority of
cases, the soldiers convicted of military offences were guilty as charged and probably still
would be if they were tried today. Five New Zealand soldiers were shot during the First
World War for the sake of example, along with more than three hundred others in the
British armies. Although the deterrent value of the death penalty for men desensitized to
killing has been called into question, the sentences were appropriate in the legal and
political climate of the early twentieth century. As every soldier knows, discipline is the
cornerstone of an army’s success, necessary to ensure its survival.
Soldiers were not alone in being required to make sacrifices for New Zealand’s war
effort. The government dealt with the problematic conscientious objectors by declaring
them soldiers and subject to military law, punishing them accordingly for their refusal to
obey orders. So rife was patriotism that most people simply could not understand, let
alone tolerate, an unwillingness to fight for king and country. New Zealanders were
proud of their war record – the first dominion to promise Britain troops and the first to
introduce conscription, the country had the largest proportion of its population serving in
the armed forces. However, is certainly not with pride that we reflect on the blatant
intolerance of an immature New Zealand, where the expression of any contrary opinion
was met with skepticism at best, aggression at worst.
61
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Similarly misunderstood were war resistors, who campaigned for peace in an atmosphere
of overwhelming support for war and stood their ground against the tide of public
opinion. Civil rights in general, and freedom of expression in particular, took a battering
during World War One and World War Two. Anti-war dissent was swiftly and
mercilessly silenced, often at the expense of legal and constitutional principles
traditionally dear to the hearts of New Zealanders.
The government and Defence
Department proved from the outset that they were prepared to compulsorily control the
citizenry if necessary. The enforced silence of a few was considered a small price to pay
for political expediency.
The war time years irrevocably changed New Zealand more than any other period,
conflict being a formidable catalyst for social, political and economic change. The
egalitarian and insecure nature of the country contributed to equality of sacrifice
becoming nothing short of an obsession. It is in the very nature of war that there are no
true victors, only victims. Sacrifices were made indeed and whether soldier, conscript,
objector or pacifist ‘war devoured them all, hero and coward, shell shocked and rogue
alike’.242
242
Corns and Hughes-Wilson, above n 1, at 461.
62
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
VII Bibliography
PRIMARY SOURCES
Unpublished Sources
Diaries and letters are not listed separately but are contained in the footnotes, as are the
details of archives and papers from the following centres:
Alexander Turnbull Library.
Defence Department Archives.
Judge Advocate General’s Files. Administered by Director of Legal Services, HQ NZ
Defence Forces.
New Zealand National Archives.
Queen Elizabeth II Army Museum, Waiouru.
Legislation
Army Act 1881 (UK).
Defence Act 1886 (UK).
Defence Act 1909.
Expeditionary Forces Act 1915.
Military Service Act 1916.
National Security Act 1939 (Australia).
Pardon for Soldiers of the Great War Act 2000.
Books and chapters in books
Archibald C Barrington, Trials of a pacifist: being two broadcast talks over New Zealand
YC stations (Christian Pacifist Society, Christchurch, 1970).
Archibald Baxter, We Will Not Cease (Cape Catley Ltd, Queen Charlotte Sound, 1980).
James K Baxter, Pig Island Letters (Oxford University Press, London, 1966).
63
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Millicent Baxter, The Memoirs of Millicent Baxter (Cape Catley Ltd, Queen Charlotte
Sound, 1981).
W. J. Foote, The Decision: Behind the Wire in New Zealand (Glen Press, 1983).
New Zealand Labour Party, 1916 sedition trials: Robert Semple, Fred. R. Cooke, James
Thorn, Peter Fraser and Tom Brindle (Maoriland Worker Printing and Pub, Wellington,
1917).
H.E. Holland, Armageddon or Calvary: The Conscientious Objectors of New Zealand
and “The Process of Their Conversion, (The Maoriland Worker Printing and Publishing
Company, Wellington, 1919).
Charles S Myers, Shell Shock in France, 1914-1918: Based on a War Diary (Cambridge
University Press, Cambridge, 1940).
New Zealand Yearly Meeting of the Society of Friends Conscription and you: an appeal
to the people and government of New Zealand (Presbyterian Bookroom, Christchurch,
1947).
T.E.Y Seddon, The Seddons (Collins, 1968).
Parliamentary and government materials
(11 July 1995) 263 GBPD HC 748.
(July 1998) 315-317 GBPD HC.
(10 October 1912) 161 NZPD 92-93.
Mark Briggs’ speeches in legislative council 1936-1950
Manual of Military Law (The War Office, 1914).
New Zealand Government, “World War I pardoned soldiers recognized” (press release,
31 August 2005).
Internet sources
PAPERSPAST < http://paperspast.natlib.govt.nz/cgi-bin/paperspast>.
Radio New Zealand Interviews
64
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Interview with A C Barrington, Conscientious Objector and Pacifist (John Wheeler,
Radio New Zealand, 1979) audio provided by Radio New Zealand Sound Archives).
Interview with Ian Hamilton, Conscientious Objector, (Radio New Zealand, 1975),
audio provided by Radio New Zealand Sound Archives.
Interview with Ormond Burton, Conscientious Objector, (Radio New Zealand, 1960)
audio provided by Radio New Zealand Sound Archives.
SECONDARY SOURCES
Books and chapters of books
Paul Baker, King and Country Call: New Zealanders, Conscription and the Great War
(Auckland University Press, Auckland, 1988).
David Boulton, Objection Overruled (Macgibbon & Kee Ltd, London, 1967).
Nicholas Boyack, Behind the Lines (Allen & Unwin, 1989).
Catherine Corns and John Hughes-Wilson, Blindfold and Alone: British Military
Executions in the Great War (Cassell & Co, London, 2001).
John Ellis, The Sharp End of War (London BCA, 1980).
John. W. Graham, Conscription and Conscience: A History 1916-1919 (George Allen &
Unwin, London, 1922).
David Grant and Bob Kerr (illustrated by), Field Punishment No 1: Archibald Baxter,
Mark Briggs and New Zealand's Anti-militarist Tradition (Steele Roberts & Associates,
New Zealand, 2008).
David Grant, Out in the cold: Pacifists and conscientious objectors in New Zealand
during World War II (Reed Methuen, Auckland,1986).
J Bryant Haigh, Men of Faith and Courage (The Word Publishers, 1980).
Humphrey Kempe, Participation (The Hawthorn Press, Melbourne, 1973).
Michael King, New Zealanders at War (Penguin, Auckland, 2003).
Ian McGibbon (ed), Oxford Companion to New Zealand Military History (Oxford
University Press, Auckland, 2000).
Cyril Pearce, Comrades in Conscience: The Story of an English Community’s Opposition
to the Great War (Francis Boutle Publishers, London, 2001).
65
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Christopher Pugsley, Gallipoli: The New Zealand Story (Hodder & Stoughton, 1984).
Christopher Pugsley, On the Fringe of Hell: New Zealanders and Military Discipline in
the First World War (Hodder & Staunton Ltd, Hong Kong, 1991).
Julian Putkowski and Julian Sykes, Shot at Dawn: Executions in World War One by
Authority of the British Army Act (Pen and Sword, Barnsley,1998).
Nigel Walker, Why Punish? (Oxford University Press, USA, 1991).
Frederick Lloyd Whitfield Wood, The New Zealand People at War: Political and
External Affairs (War History Branch, Department of Internal Affairs, 1958).
Journal Articles
P.S. O’Connor, “The Awkward Ones – dealing with Conscience 1916-18” 8 New
Zealand Journal of History.
Jeremy Pope, “Mockery of Mercy” (1976) NZLJ 188.
Bert Roth, “Hell, No, We Won’t Go” (1970) 10 New Zealand Monthly Review.
Dissertations
John Anderson, “Military Censorship in World War I: Its Use and Abuse in New
Zealand” (M.A Dissertation, Victoria University of Wellington, 1952).
Jane Haidee Hubbard, “The politics of conscription 1910-1916: a comparison between
New Zealand, Britain and Australia” (M.A Dissertation, Victoria University of
Wellington, 2005).
R Clarke, “Not Mad, But Very Ill: The Treatment of New Zealand’s Shellshocked
Soldiers 1914-1939” (MA thesis, University of Auckland, 1991).
J.R. McCreary “A study of social deviation: with special reference to the New Zealand
conscientious objectors and military defaulters of World War II” (M.A Dissertation,
Victoria University of Wellington, 1948).
J.D. Milburn “New Zealand's first experiment with compulsory military training, 19001914” (M.A Dissertation, Victoria University of Wellington, 1954).
Paul Ostreicher “They would not fight: being a survey of the position of conscientious
objectors and military defaulters in New Zealand during World War II” (M.A
Dissertation, Victoria University of Wellington, 1955).
66
Equality of Sacrifice: New Zealanders and Military Punishment 1914-1945
Newspaper and Magazine Articles
Christian Pacifist Bulletin (New Zealand, 9 July 1942).
Christian Pacifist Bulletin (New Zealand, 8 September 1942).
Dominion (New Zealand, 22 August, 1941).
Dominion (New Zealand, 3 August, 1941).
Observer (New Zealand, 6 March 1915).
Observer (New Zealand, 17 April 1915).
The Maoriland Worker (New Zealand, 1 September 1915).
Truth (New Zealand, 31 January 1945).
Internet sources
NZ History Online < http://www.nzhistory.net.nz/>
Te Ara Encyclopaedia of New Zealand < http://www.teara.govt.nz/>
Word length
The text of this paper (excluding abstract, table of contents, footnotes and bibliography)
comprises approximately 13,822 words.