The Visser case was now over. Not the slightest hint was given that we had been found guilty, and a sentence passed; I was never informed as to the finding of the court regarding this case, but three years later I read in a newspaper summary of the evidence that I had been found guilty of manslaughter and cashiered. The case had barely concluded when Captain Burns-Begg, who had acted as prosecutor, was ordered to England. It seemed as though he was required at the War Office to give particulars personally of the trial and of the disclosures that had been made there. Major Bolton now took the place of Captain Burns-Begg; Major Ousely, D.S.O., and Captain Marshall were also relieved as members of the court, and their places were filled by Captains Matcham and Brown.
The reconstituted court started from Pretoria for Pietersburg on the 31st January.
When we entrained it was evident our social status had undergone a decided change. The accommodation provided was the same for the return trip as when going down, but this time we were not permitted to enter a carriage. After considerable delay a small, dirty, covered-in truck was attached to the train, into which we were crowded, with our escorts, servants, and baggage. It was a sweltering day in January, and the effect it had upon us is more easily imagined than described.
When nearing Warm Baths Station the train pulled up; it was reported that a party of Boers were crossing the line. A member of the court came to our little sheep-truck, and for the second time during our trial we were ordered to stand to arms. Morant prayed, as I am sure he never prayed in his life before, that we might get into action. The members of the court did not reciprocate his feelings, but did their best to avoid action, and kept the train at a standstill for over an hour while they carefully examined the surrounding country through their field-glasses, giving the Boers ample time to get out of sight. Then, moving on slowly from block-house to block-house, we safely passed the point of danger.
We arrived at Pietersburg on 1st February, and the court assembled again on the 3rd to adjudicate on what was called the eight Boers case. Morant, Handcock, and myself were arraigned on the charge of shooting or instigating others to shoot these. The main facts, as adduced by the evidence for the prosecution, were not disputed. At the close of the evidence for the prosecution, Major Thomas, the prisoners' counsel, made the following protest:—"I submit the charge of inciting to murder has not been proved. The prisoners are alleged to be accessories before the crime of murder. They are not charged with being conspirators, and I submit that the alleged charge of murder against the principals has not been established, and, if so, there can be no accessories. I submit that the proper way to have brought this case before the court should have been in the form of a charge for conspira-
The court ruled that the case must proceed. Major Thomas then said that he did not propose to put the prisoners in the box, as the main facts were not disputed, but statements would be handed in, and the evidence he would call would be confined to three things—orders received, the customs of the war, and the practices adopted in other irregular corps against the enemy when breaking the customs of war.
This is the statement made by Lieutenant H. H. Morant:-
"I do not feel called upon, nor am I advised by my counsel, that it is necessary for me to enter the witness-box in this case. In the case of Visser I gave the fullest explanation of my position and my instructions regarding the Boers captured in the Spelonken district. I was distinctly and repeatedly told by my late friend and commanding officer, Capt. Hunt, on our arrival at Spelonken, which happened a few days after the train-wrecking occurrence, that no Boer prisoners were in future to be taken. I have already shown in Visser's case, and can bring further evidence in this case, to prove that Capt. Hunt gave these orders not only to me, but to others under his command, that is, 'that no prisoners were to be taken,' and he reprimanded me for not carrying out this order.
"Capt. Hunt had been my most intimate friend in South Africa. We were engaged to two sisters in England. He joined the B.V.C. in order to be in the same regiment as myself, and he practically asked Major Lenehan that we might be together in the same squadron. Capt. Hunt had Imperial service in the 10th Hussars, and some colonial service in French's Scouts, and I had implicit confidence in him and regarded his orders as authoritative and bonb fide. Until Capt. Hunt's body was found stripped and mutilated I shot no prisoners, though I maintain it is generally known that Boers who had been concerned in misdoings and outrages, such as the nomadic Dutchmen of the Spelonken, had been executed summarily by many Irregular Corps who have done good work in South Africa. After Capt. Hunt's death and the brutal treatment of him, alive or dead, I resolved as his successor and survivor to carry out the orders he had impressed upon me, orders which other officers have in other places and in other corps carried out, with the provocation we had received. The Boers had left my friend's body, the body of an Englishman and officer, lying stripped, disfigured, and not buried—thrown into a drain like a pariah dog. Moreover, I had heard so much about the deeds of these particular Boers that I have charged with murder, reports which connect them with train wreckings and maraudings. I also know they belonged to the same gang that had maltreated and dishonoured the body of my friend and brother officer. I considered I was quite justified in not treating such men with the amenity usually accorded to prisoners of war, and I am quite satisfied that they fully deserved the summary execution they received. In ordering these Boers to be shot, I did so fully believing that, in view of what Capt. Hunt had so distinctly ordered me, and what I myself knew bad been done elsewhere, I was practically right and justified by the rules of guerilla warfare.
"I was Senior Officer of the B.V.C. in the Spelonken, and for the ordering of the shooting of these Boers I take full and entire responsibility. I admit having sent in an 'edited' report, but I did so for reasons which have actuated higher military authorities than myself. I have been told that I was never myself after the death of Capt. Hunt, and I admit that his death preyed upon my mind when I thought of the brutal treatment he had received. This treatment of Capt. Hunt's body, coupled with the train wreckings which had occurred, made me resolve to act on orders and do as other officers have done under less trying circumstances than myself.
"The alleged conversation between myself and Sergeant Wrench is absolutely untrue; No such conversation ever occurred. It is an entire fabrication."
Statement made by Lieutenant P. J. Handcock:--
"I am Veterinary Lieutenant. I have had a very poor education. I never cared much about being an officer; all I know is about horses, though I like to fight. Capt. Robinson said it was right to shoot traitors. Capt. Hunt told us when he came out that no Boers were to be taken. I had often heard that Boers were to be shot if they sniped or wore khaki or smashed up trains. I do not know what the rule under such things is, but we all thought that Capt. Hunt knew the correct thing. I did not much believe in Capt. Robinson, and when he ordered the man to be shot I told Capt. Hunt all about it. When he came to Spelonken, Capt. Hunt did not say it was wrong; he said we were not to take prisoners any more, so I thought he was doing his orders. I did what I was told to do, and I cannot say any more. No conversation ever took place between Sergeant Wrench and Lieutenant Morant in my presence, as stated by Sergeant Wrench in court."
Statement by Lieutenant Witton:—
"I had received my commission as a Lieutenant about six weeks before the 23rd August. I was told what the orders about Boers were as received from Captain Hunt, and I took it they were correct; I did whatever I was told, and raised no question one way or the other, as it is customary to obey orders.
"Capt. Hunt and Lieut. Morant were great friends, and I supposed that all orders were correct that Capt. Hunt gave. He was greatly relied upon by all when he came to reform matters at Spelonken, after Captain Robinson left.
"On the 23rd August one of the Boers rushed at me to seize my carbine, and I shot at him to keep him off."
Lieutenant Picton gave evidence that he was moving out with a patrol towards Scinde, when Captain Hunt gave him instructions not to bring back any prisoners. He got some prisoners on this patrol and brought them back to Fort Edward, and was reprimanded for doing so. One of the prisoners was a man named Venter. He was sent to the Burgher Camp, and was one of those who escaped from there and went on commando with Beyers. "He was shot during the attack on Pietersburg, and I recognised him."
Captain Taylor was called to give evidence for the defence, and stated that he remembered one time when Lieutenant Morant brought in prisoners; he was asked by Captain Hunt why he brougnt them in; Capt. Hunt said they should have been shot.
This witness was cross-examined by the Prosecutor as follows:—"Were you not Officer Commanding of the Spelonken ?" He replied: "Yes; of the district."
The exact words used by Captain Hunt when reprimanding Morant were tersely related by another witness:—"What the hell do you mean by bringing these men in? We have neither room nor rations for them here."
Numerous witnesses were called to prove that Captain Hunt had given distinct orders that no prisoners were to be taken, and others to prove what had been done to their knowledge in other corps. The Judge Advocate twice protested that the evidence that was being produced was extremely irrelevant, and the rule was that nothing should be admitted as evidence that did not tend immediately to prove or disprove the charge in criminal proceedings.
One witness, an Intelligence Agent, gave evidence that he had seen a Boer summarily dealt with, who had been captured fully dressed in khaki.
Another witness gave evidence that in his column it was published in orders that Boers captured wearing khaki were to be summarily dealt with.
Cable messages also appeared in the Australian press, dated November, 1901, that Lord Kitchener had issued orders that all Boers who were captured wearing the khaki uniform of British troops should be shot.
It was also stated in another cablegram received a short time before this that a number of Boers wearing khaki belonging to the commando of Commandant Smutz had been captured by Colonel Gor-ringe, and had been shot.
The ordinary regulations provide that in time of peace any person found wearing a military uniform of the British forces, when not entitled to do so, may be fined £10, while for the same offence in time of war the death penalty can be exacted.
In the face of this Major Bolton went into the witness-box, where he said that he had "no knowledge" of a proclamation that Boers taken in khaki were to be shot.
This was the time Lord Kitchener should have been put in the box, and the facts of the case and all necessary information obtained direct from him in the interests of justice and the Empire generally.
(This incident came under my notice while we were being tried at Pietersburg. A small patrol of the Pietersburg Light Horse, mostly raw recruits, went out scouting. When approaching a farm house they saw several men walking about dressed in a similar fashion to themselves; they rode up, dismounted, and entered into conversation. They were greatly astonished when they were covered by the rifles of the others, and ordered to hand over their arms and ammunition. Upon this being done, they were requested to hand over their uniforms; when they were stripped they were allowed to return in a nude state to Pietersburg. The party into whose hands they had fallen were a party of Irish-Americans fighting with the Boers.)
Major R. W. Lenehan, late of the Bushveldt Carbineers, gave evidence that Lieutenant Handcock was a veterinary officer, and that he had not wished him to go to Speionken, but upon representation being made he allowed him to go. Mr. Handcock had a very strong sense of duty, and anything he was ordered to do he would do without the slightest question, no matter what it might be.
Major Thomas, the prisoners' counsel, then handed in his address, as follows, which was read and attached to proceedings:--
The main facts, as adduced by the evidence for the prosecution, are not denied by the defence. The long statement, alleged to have been made by Lieutenant Morant to the witness Wrench is denied, and the court must form its own opinion, from the attitude of Wrench, as to whether or not he has not drawn considerably upon a rather vindictive imagination for his glibly-told story. But even if true, this does not affect the real issue. Apart from any question of law, such as was raised at the conclusion of the evidence for the prosecution, and which this court perhaps can scarcely deal with, the prisoners' defence is that, no matter in what way the charge against them has been, or might have been framed, the action they respectively took in the summary execution of these eight Boers was justifiable, or, at any rate, not criminal. That which would be a crime, a felony, or a malicious act in time of peace may be quite justifiable in time of war, and doubly so in guerilla warfare, waged against men who cannot be regarded as lawful belligerents, but only as lawless bands of marauders, who carry on desultory hostilities, combined with train wreckings and other uncivilised practices. Upon such an enemy I maintain our troops are justified in making the severest reprisals, and are entitled to regard them, not as lawful belligerents at all, but as outlaws.
But having regard to the immensely wide area over which the present war in South Africa has for more than two years extended, the nature of the country, and the peculiar class of people who keep the fighting going, it happens that, whilst in one part of the theatre of war the enemy's methods may be such that we cannot take great exception to them, how ever senseless and infatuated the prolongation of the strife may seem to us, yet in other parts of the country quite a different kind of operations are in vogue, operations of such a nature that they must be treated as uncivilised and often barbarous. In one district we may meet a large organised body of Boers fighting under a recognised and honourable commandant, whilst in another district we find ourselves pitted against roving bands under no recognised leader. It was against the latter class, and especially during the months of July, August, and September last, that the small Spelonken detachment of the Bushveldt Carbineers, to which the prisoners belonged, were sent out to operate under special orders. A small body, about 100 strong, they had to work over a vast area of difficult country, where, in small patrols and parties they had literally to hunt down the shifting bands of the enemy, in kloofs and almost inaccessible places, taking their lives in their hands. And sufficient evidence has come out during these cases to show how excellently their work was done. Practically they cleared the Spelonken district of Boers, many of whom found harbour there after their exploits against trains on the Pietersburg line. Even the prosecution admit that these Boers were of a bad class, and that this was the character of some, if not of all, of the eight men alleged to have been murdered.
We have shown that train wreckers were in the district at this particular period, and we have put in an official return of their doings in this respect, starting from 4th July last. On that date a trainwrecking occurred, in which an officer and a number of men were killed—the officer being a friend of the late Captain Hunt. Closely following upon this, Captain Hunt was sent to take charge of the Spelonken detachment, and it is abundantly proved that his orders were "No prisoners" after this-no quarter. He impressed this upon his officers and non-commissioned officers, and reprimanded them for non-observance of his orders. He had been in the regular army, and his instructions, coming as he did to institute a new order of things at Spelonken, were entitled to weight from irregular subordinates. It was quite evident that they were guided by him, but it was not until Hunt himself was killed, with rather brutal surrounding circumstances, that his directions were fulfilled. After this his successor. Lieutenant Mo-rant, as he says, resolved to carry out previous orders. Up to this Morant had been particularly lenient towards prisoners, and there is no proof (but the very opposite) of his being of a malicious or cruel nature. It is true that after Hunt's death he changed a good deal, and adopted the sternest measures against the enemy. In civil life, and if trying a civil offence, under civil and peaceful conditions, it might be said that he became revengeful, but in time of war revenge and retaliation are allowable. It would be cant and hypocrisy to maintain otherwise. War makes men's natures both callous and, on occasions, revengeful. What is the object of war? Simply to kill and disable as many men of the opposite side as possible. In pursuing these objects, soldiers are not to be judged by the rules of citizen life, and often, as soldiers, they do things, which, calmly regarded afterwards or in time of peace, appear, and are, unchristian and even brutal.
The more civilised the foe we deal with the more chivalric the methods of warfare, and the brutal element is absent or rarely apparent. But when the civilised rules and customs of war are departed from by one side, reprisals follow from the other, and then the bad, the bitter, the revengeful side of war is seen. If in every war, especially guerilla war, officers and men who committed reprisals were to be brought up and tried as murderers, court-martials might be kept going all the year. Such might be the case in the present war, if all the reprisals, summary executions, slaughters, were dragged before formal courts, argued over by counsel and prosecutor as to points of law, and all the gruesome details exposed to the light of day.
We cannot judge such matters fairly unless we place ourselves amidst the same surroundings, and with the same provocations as obtained with the men whose actions are to be tried. What are our irregular troops for? To ride down, harry, and shoot the enemy, and I submit, if the latter deserve it, to adopt strong retaliatory measures. These irregular combatants of the army are really charged now with the bulk of the fighting, and if they are to be restrained and tied down by strict rules, such as might obtain were they fighting French or German soldiers instead of guerillas, then the sooner they are recalled from the field the better, or, at any rate, let definite instructions be issued for their guidance. Do not let them have indefinite, hazy instructions as to what they may do. Do not let us have officers reprimanded by their seniors for hampering the column with prisoners, and at another time, and another place, haul them up as murderers because they do the opposite. I fear there is a great deal of rather mawkish sentimentality about some of these Boer bands, who do so much to keep this prolonged war going in spite of the marvellously good treatment the British have extended towards their people, wives and children.
I refer again to the class of Boers which had to be combated in the Spelonken in July, August, and September, and I maintain that it was to be presumed, and the actions of other irregular corps elsewhere show, that the Bushveldt Carbineers were not singular in this respect, that if the foe committed outrages, and departed from the customs of war, punitive measures might be adopted. If these officers have overstepped the mark they should be upheld. The Boers brought these measures on themselves, and should take the consequences of their collective acts in the district. We cannot discriminate as to who did this or that; they must all be regarded as involved in, or countenancing nefarious practices which provoked reprisal. Their own countrymen are beginning to become disgusted with the prevailing methods, and in hundreds are joining the British, in hope of stopping the useless fighting which is desolating their country, and keeping all South Africa chafing under martial law. South Africa is a cosmopolitan country, and what affects the British affects large numbers of Germans and other foreigners, who are excluded from their homes or from settling here. For the interests of the foreigner, and even the Dutch themselves, as well as the British our troops are fighting, and on our irregulars falls the brunt of it. Are we to recognise them as, irregulars or as regulars? From irregulars irregularities are to be expected, and cannot be avoided. Let us, if we employ them in guerilla tactics, either definitely instruct them by clear orders and proclamations as to how far they may go, or uphold them if they have not been so instructed and thus fallen into error. If these arguments apply in ordinary cases, they have especial force in the present case, where Lieut. Morant acted under express directions conveyed to him by his deceased superior officer, and if he followed these instructions when he himself took over command, believing that he was justified in following them, then any "criminal intent" is disproved, and if this applies to Lieut. Morant, it applies again with still greater force to his subordinate lieutenants, Handcock and Witton. Lieut. Morant honourably acknowledges in his written statement the responsibilities of his position as senior officer, but that he also takes upon himself the burden of a crime is repudiated and denied.
In conclusion, I would quote the following passages from the Chapter on Customs of War, as comprised in the Manual of Military Law, issued for our guidance by the Army, remembering, however, that no precise rules can be laid down to meet all the varying styles of warfare. Such rules can be but guides as to our actions, and in default of clear orders abrogating these, I submit that they are to be followed as far as applicable.
"The first duty of a citizen is to defend his country, but this defence must be conducted according to the Customs of War." Further, "War must be conducted by persons acting under the control of some recognised Government, having power to put an end to hostilities, in order that the enemy may know the authority to which he may resort when desirous of making peace." Under ordinary circumstances, therefore, persons committing acts of hostility who do not belong to an organised body, authorised by some recognised Government, and do not wear a military uniform, or some conspicuous dress or mark, showing them to be part of an organised military body, incur the risk of being treated as marauders and punished accordingly.
"Persons, other than regular troops in uniform, whose dress shows their character, committing acts of hostility against an enemy, must, if they expect when captured to be treated as prisoners of war, be organised in such a manner, or fight under such circumstances, as to give their opponents due notice that they are open enemies from whom resistance is to be expected."
"Retaliation is military vengeance; it takes place where an outrage committed on one side is avenged by the commission of a similar act on the other."
