Next day the court adjourned to Pretoria to take the evidence of Colonel Hamilton, military secretary to Lord Kitchener. My escort (or "tug-boat," as these individuals were termed in nautical phraseology by Lieutenant Morant) was a newly-commissioned lieutenant in the Pietersburg Light Horse.
Fully armed and equipped, we proceeded by rail to Pretoria. Quarters were provided for all the prisoners at the Mounted Infantry Depot, about a mile from the town. The following day the court, which was constituted as at Pietersburg, assembled at the Artillery Barracks to take the evidence of Colonel Hamilton; all the prisoners were present, and when this officer appeared every eye was upon him. He was stern and hard-featured, and looked just then very gaunt and hollow-eyed, as though a whole world of care rested on his shoulders. He was apparently far more anxious than those whose fate depended on the evidence he was to give. The following is his evidence:—
Examined by the Court:—Lieut. Morant, in his evidence, states that the late Capt. Hunt told him that he had received orders from you that no prisoners were to be taken alive. Is this true?
Ans,: Absolutely untrue.
Examined by Counsel for Prisoners:—
Do you remember Captain Hunt taking two polo ponies early in July last up to Lord Kitchener's quarters;' at which time you came in, and had a conversation with Capt. Hunt?
Ans.: No. I have no recollection whatever. I have never spoken to Capt. Hunt with reference to his duties in the Northern Transvaal.
The Counsel for the Prisoners then made the following ad-dress:—As regards the evidence of Colonel Hamilton, just called, I wish to state that the defence do not regard his evidence, one way or the other, as having any real bearing on the defence; in fact, I submit to the court that it is really illegal evidence. It really amounts to this: A certain conversation is stated to have taken place between Colonel Hamilton and the deceased, Capt. Hunt, which conversation was mentioned by Capt. Flunt to Lieut. Morant, apparently in a confidential or private way. This, having been obtained by the court from the prisoner Morant, is then sought to be contradicted by the evidence of Colonel Hamilton, which, I submit, is quite contrary to the laws of evidence. It really does not matter much, from the point of view of the defence, where Capt. Hunt got his instructions. The fact is clear from the evidence that Capt. Hunt did tell his subordinates, not once, but many times, that prisoners were not to be taken. This fact is admitted by witnesses for the prosecution. The chief value of these instructions, as given by Capt. Hunt, is that they go to show that he, being a man of some standing, and a personal friend of Lieut. Morant, they were entitled to weight, and go to remove any question of malicious intent.
Now, the four prisoners are jointly charged with the crime of murder-not as principals, but as accessories before the fact. The principals, or actual perpetrators of the alleged murders, are four troopers named Si Ike, Thomson, Botha, and Honey, according to the indictment. As a matter of fact, the evidence for the prosecution shows that there were ten, and that they formed a firing party, which under orders shot Visser, the man alleged to be murdered. It is charged that the prisoners committed this offence, by wilfully, feloniously, and with malice aforethought, inciting, instigating, and commanding these four persons to kill and murder one Visser, and that the persons mentioned accordingly did kill and murder him. This should be borne clearly in mind all through the case, that these prisoners did not actually commit the murder, nor are they charged with such, but with instigating others to do it. Now, under the law, it is clear that he who instigates or procures another to commit a felony is himself liable to the same punishment as the actual felon. But persons charged with being accessories to the crime cannot be convicted as such unless the guilt of the principals be first established. Nobody can be an accessory to a crime which is not proven. Under the old Common Law of England it was absolutely necessary that before an accessory could be found guilty there should be an actual verdict of guilty against the principal, so that if the principal managed to evade justice the accessory escaped also. But under existing English law, I believe the accessory may now be tried and convicted, although the principal is not before the court, and has not been convicted but, I take it, it would be only in very special circumstances that this would be done, where it is absolutely impossible to obtain the principal, in order to bring him to justice. It seems proper that if we suppose one man instigates another to murder a third, and the murder takes place, and the actual murderer flies the country before trial, if the fact of the murder is clear and beyond all doubt, the accessory should not escape. But in this case all the alleged principals are easily obtainable, yet we find that not one of them is before the court, except that inferentially it is averred in the charge-sheet that they actually murdered Visser. If that is so, and they are murderers, why are not these four actual perpetrators charged before the court? However, be that as it may, this must be very clear to the court, that this court cannot convict the four prisoners of inciting, instigating, or commanding the four troopers to commit the murder, which murder it is alleged these four troopers actually committed, unless they are satisfied that the troopers are malicious and felonious murderers. The court must, therefore, I submit, clearly in its mind say these four troopers are murderers, who may now or at some future time be brought before a court of justice and tried for their lives as murderers. That is the extraordinary position in which the court finds itself, because these four troopers have merely been inferentially set down as murderers. They must be convinced on these two points:-
(1) That they are murderers.
(2) That the prisoners now before the court incited them to commit that murder.
If the court is not satisfied that they are men who should suffer death, the charge against the prisoners, as accessories, must fall to the ground.
Now, has the prosecution attempted to show that the murder was committed by these troopers? I submit the contrary. Two were brought as witnesses by the prosecution. They were not even warned to be careful lest they should incriminate themselves, and, really, I submit to the court that the assumption that these troopers are murderers is simply monstrous, and cannot by any possible means be substantiated. Clearly, they only obeyed the orders of a superior officer, and formed a firing party for the execution of Visser after their officers had held a summary court-martial and convicted him. There is not the slightest evidence that these troopers were in any way a party to the shooting of Visser, except that they obeyed their orders as soldiers. They are, therefore, not murderers. How can they be called such? If they are not murderers, there can be no accessories to the alleged crime. Even if the court-martial was improperly constructed, its proceedings informal, or its decision illegal, how could these four troopers, against none of whom there is any suggestion of crime, be regarded as murderers, simply because they fired the shots which killed Visser. The guilt of the four prisoners depends entirely upon the guilt of the four troopers. The troopers have been stigmatised as murderers, so as to found the charge against the four prisoners. If it was desired by the prosecution to shift home a malicious and unwarrantable act, resulting in the death of this man, it seems to me that the four prisoners should be charged with conspiring together to bring about the death of Visser by unlawful means. It should have been made a conspiracy amongst themselves, and the troopers should have been left out of it. Instead of which these men are called murderers.
Suppose these four troopers were now on trial and said they simply obeyed their orders, the court could not have convicted them, and I say that the charge, if any, against the prisoners should be a conspiracy amongst themselves to do an illegal act. Yet another difficulty arises when we come to deal with the prisoners individually. Lieutenant Morant, no doubt, is primarily responsible, being senior officer at the time when the trial took place, and the court has to be satisfied in his case, as in that of the others, that he deliberately and feloniously ordered the men to commit murder. There is no doubt that Captain Hunt did give certain very definite orders to Lieutenant Morant, and on his death Mr. Morant took over command. There is no doubt that his conduct was largely influenced by the treatment of the body of his friend, showing circumstances of barbarity, even if the injuries inflicted upon Captain Hunt, as clearly shown by Mr. Reuter's testimony, were done after death, although the medical evidence goes to show they were committed before death. There is no doubt that this did prompt him with the spirit of retaliation against the Boers who had done this thing. In war retaliation is justifiable, revenge is justifiable. Rules applicable in times of peace are quite inapplicable in times of war. In the Manual of Military Law it is stated, "Retaliation is military vengeance;" it takes place when an outrage committed on one side is avenged by a similar act on the other. I am free to admit that this maltreatment of his friend did exercise an influence over him when he came to deal with this man Visser, and it is natural he should be so influenced. He pursues these Boers, which ends in the capture of Visser, whom he finds wearing clothing the property of the late Captain Hunt. I go so far as saying that under the circumstances Mr. Morant would have been perfectly justified in shooting Visser straight away. The fact of wearing British uniform is altogether against the customs of war, and I know that this man Visser was present when Captain Hunt was killed from the evidence. At the request apparently, of Mr. Picton, it was decided to give Visser a court-martial—such a court-martial as is frequently held in the field, under the circumstances in which this was held. Informal, no doubt; how can we expect formality in the field, in the immediate vicinity of the enemy, and when Visser himself admitted that the Boers had promised to recapture him? All this is provided for in the Manual of Military Law. We claim that substantial justice was done, and I submit that there is nothing whatever to satisfy the court that Mr. Morant ordered a wilful or felonious murder. On the contrary, under the Rules of War, I consider that he was quite justified in confirming the sentence. The evidence of Captain Taylor shows that these men were the offshoots of commandoes and mere outlaws, who went about looting from Kaffirs, and, what I say now I wish to apply to all the prisoners. They were dealing in that particular district with a party of irresponsible outlaws, under no recognised control, sending in threats of torture, &c. In July, 1901, trains were wickedly wrecked, and numbers of men wounded. Such men forfeit all rights to be treated as prisoners of war. When irregulars are sent out to deal with an enemy of this kind, marauders and train wreckers, the officers should be allowed a wide discretion in dealing with them. If they err technically, or even make serious mistakes, they must be upheld. We cannot afford, in dealing with people of this description, to go into nice points of sentiment. I submit the irregular troops, sent out to deal with the people in this particular district, were entitled to deal with them as outlaws. I do not ask for proclamations to say we must do these sort of things, but we must take it for granted that we must do so. Departures from the usual customs of war have, in many instances, been visited by the troops by methods which they merit. No one denies that chivalric actions have been done by the Boers, but I say also that there are districts where that sort of thing does not occur at all, and notably in the particular district in which Visser was caught.
If the prisoners have been mistaken in their views as to what they were entitled to do, then it must be assumed that they erred in judgment; they may be even open to censure, but not charged with committing murder.
I claim from this court that the prisoners shall not be stigmatised as inciters to murder, because, acting on a responsibility which was naturally their own, they did carry out what I submit is only martial judgment. Lieutenant Picton undoubtedly gave the order to fire to the firing party, and in doing so simply obeyed his orders. Witton and Handcock simply, on being summoned to the court-martial, coincided with the views of their superior officer; further than this they took no place in the proceedings. They cannot be charged with inciting and instigating, even if they concurred in the verdict; the verdict was of no effect until confirmed by Mr. Morant.
I submit to the court that this charge is improperly made, or, if it is ostensibly correctly made, then it must fall to the ground, for the simple reason that this court cannot, I submit, say that the crime of murder against the troopers is proved to the court's satisfaction, and if that is not proved, then nobody can be found guilty of being accessory.
The Prosecutor replies:-
The defence has made a good deal of the fact that the court must hold the four troopers guilty of murder before they can hold the four prisoners now before them guilty of accessories. That is perfect nonsense. The Manual of Military Law says that where a person has been guilty of killing another the law presumes the killer to be guilty of murder (page 125), and on that the court must necessarily rest content, in so far as the guilt or innocence of the troopers is concerned. This is borne out by the statute law of England, which enables an accessory to be tried before, after, or with a principal felon, irrespective of the guilt or innocence of the latter.
The defence also raises the question, on the indictment, whether or not I have succeeded in proving that the prisoners each and all incited and commanded the troopers under their command to kill Visser. As regards that, I have no doubt the Judge Advocate will direct you that where a common criminal intent is proved to be shared by several persons, any criminal action by any one of these persons in furtherance of that criminal intent, may be visited on any one of them, and could any clearer proof of common intent be submitted than the prisoners' own description of what took place at the so-called court-martial. I thought that the prisoners would rely mainly on the alleged orders of Captain Hunt, and on this so-called court-martial for their defence. To the first contention I would point out, a complete answer is returned by the Manual of Military Law, which says that an officer is responsible for the carrying out of even lawful commands which result in injury, and is a fortiori responsible for the carrying out of obviously illegal and improper commands from superiors. As regards the so-called court-martial, the court cannot hold that it was a court-martial in any sense of the word. It was anything that the court pleases except a tribunal, martial or otherwise. It was a consultation, a conspiracy, a measure to mature a criminal purpose, but it was not a court. And even if it were, and even if the court were fully and properly constituted, still, according to the Manual of Military Law, the members of such court would be liable to be hanged if they had illegally carried out a sentence of death.
But these defences have really hardly been urged by the defence at all seriously. Counsel for the defence appears to rely mainly on the technical objection to the indictment raised first of all, on the nature of the warfare waged against the Bushveldt Carbineers, and on the fact that Visser was shot in retaliation for Captain Hunt's death. Now, the latter point is the strongest possible point in the case for the prosecution. It proves conclusively the malice of the prisoners. Captain Hunt, so far as they knew and had reason to suppose, was killed in fair fight, and there was even then nothing whatever to connect Visser with his death, and yet every one of the prisoners, as well as the counsel for the defence, admits that the real reason for shooting Visser was because Hunt had been killed. Could proof of malice conceivably be clearer? Counsel for the defence urges that retaliation is recognised as legitimate by the Manual of Military Law. That is a mere twisting of words, and I think it is hardly necessary for me to urge on a body of military men the danger of acknowledging the right of subaltern officers to avenge their private grievances on prisoners of war who happen to fall into their hands. Retaliation has a perfectly definite meaning in military law, and means the deliberate and authoritative taking of measures of reprisal, as answer to some action on the part of the enemy contrary to the customs of war, but it certainly does not mean that subordinate officers are entitled to shoot prisoners who fall into their hands because an officer of their regiment has been killed. There is not a grain of evidence to connect Visser with Hunt's death, nor to show that Hunt was not killed in fair fight.
As to Major Thomas' (counsel for defence) argument, based on the state of the country, could anything be more preposterous than to say that minor officers are entitled to make war on principles of barbarity approved only by themselves? If they do so they must abide by the consequences.