The following is the summing-up by the Judge Advocate.
In the case now under consideration the prisoners practically admit having committed the offence with which they stand charged, but maintain that they had justification for the course they pursued, and that there was palliation for their action owing to the fact, as alleged by them, that similar occurrences have taken place during the course of this war, and have been ignored or condoned,
I would point out that two wrongs do not make a right, and that the commission of a wrongful act can scarcely be urged as a justification for the repetition of that act.
I would point out that war is not a relation of man to man, but of State to State, and of itself implies no private hostility between the individuals by whom it is carried on.
The object of war is the redress by force of a national injury. Wars are the highest trials of right, and it is scarcely seemly that they should degenerate into a medium of personal revenge. Retaliation is military vengeance. It takes place when an outrage committed on one side is avenged by the commission of a similar act on the other.
Retaliation is the extreme right of war, and should be resorted to only in the last necessity, and then only by someone in authority. The first principle of war is that armed forces, so long as they resist, may be destroyed by all legitimate means.
The right of killing an armed man exists only so long as he resists; as soon as he submits he is entitled to be treated as a prisoner of war. Quarter should never be refused to men who surrender, unless they have been guilty of some such violation of the customs of war as would of itself expose them to the penalty of death, and even when so guilty they should be put on their trial before being executed, as it is seldom justifiable for a combatant to take the law into his own hands against an unresisting foe.
Where an act complained of is itself unlawful, bona fides or honesty of purpose is no excuse; how far a subordinate could plead the specific commands of a superior, such commands being not obviously improper or contrary to law, as justifying an injury inflicted, is doubtful.
The rule is that a person is responsible for the natural consequence of his acts.
If several persons go out with a common intent to execute some criminal purpose, each is responsible for every offence committed by any one of them in furtherance of that purpose. A person is in all cases fully responsible for any offence which is committed by another by his instigation.
If a person has unlawfully caused death by conduct which was intended to cause death or grievous bodily harm to some person, whatever the intention of the offender may have been, he is guilty of murder. If a person is proved to have killed another, the law presumes prima facie that he is guilty of murder.
It will be on the accused to prove such facts as may reduce the offence to manslaughter, or excuse him from all criminal responsibility. It may be taken generally that in all cases where a killing cannot be justified, if it is not murder it is manslaughter; again, the offence is manslaughter if the act from which death results was committed under
the influence of passion arising from extreme provocation, but it must be clearly established in cases when provocation is put forward as an excuse that at the time the crime was committed the offender was so completely under the influence of passion arising from the provocation that he was at that moment deprived of the power of self-control, and with this view it will be necessary to consider carefully--(l) The manner in which the crime was committed, whether deliberately and with premeditation, and also (2) the length of the interval between the provocation and the killing, so as to establish the fact that the alleged provocation was a justification of the crime.
I must further draw the attention of the court to the fact that much irrelevant evidence has been allowed to be produced, which will require careful sifting before they can arrive at a just finding.
The conclusion of this case was similar to the first, our military service being again taken. No intimation was given as to the nature of the verdict or the sentence.
This concluded the charges against me, and I was not required to attend subsequent sittings of the court; my guard was now more relaxed than hitherto. Often I went about the garrison unattended, and in the company of an unarmed non-commissioned officer frequently visited friends in the town.
On the afternoon following the conclusion of the "eight Boers" case I attended a cricket match, which took place on the town cricket-ground, mingling with, among others, the president and members of the court, who had only the previous day, though I was not then aware of it, passed upon me the extreme penalty of the law, "To suffer death by being shot." With the exception of a surprised kind of stare from the haughty president, my presence there was unheeded. Incidents such as these tended to convince me that the penalty hanging over me could not be a very serious one. We were often provided with horses, and permitted to take riding exercise in the morning before breakfast.
The trial of Major Lenehan was now proceeded with. The charge against him was that, being on active service, he culpably neglected his duty by failing to report the shooting by men of his regiment, the Bushveldt Carbineers, of two men and a "boy." He pleaded "Not guilty." The main evidence in this case was given by Trooper Botha, a Dutchman, who had been Lieutenant Morant's favourite servant, though he was proved to have been at heart a traitor, for as soon as Morant got into trouble he immediately turned round and did him every harm in his power. There are men who could testify to hearing Botha ask Morant's permission to shoot Visser; he was allowed as a volunteer to form one of the firing party that did shoot him, yet at the court-martial he stated in evidence that he had objected to form one of the firing party, which was absolutely untrue.
Some time after the conclusion of the trials Trooper Botha was "accidentally" shot. His death could not be attributed to the condemned officers, as two had taken their departure to another world, the rest for other lands.
This Botha stated "that the three Boers were being brought in by Captain Taylor's Police, and were shot by five of the Carbineers; he reported what had been done to Morant in the presence of Major Le-nehan." The five Carbineers of the patrol were Lieutenants Morant and Handcock, Sergeant-Major Hammett, Corporal McMahon, and Trooper Botha.
Major Lenehan had arrived at Fort Edward on the very day that these three men were shot. I had met him going out as I was on my way to Pietersburg with prisoners. During dinner, at which were present Major Lenehan, Captain Taylor, Lieutenants Morant and Handcock, and Surgeon Leonard, an argument arose regarding the trustworthiness of Dutchmen on British service. Captain Taylor said they were not trustworthy, but Morant maintained the affirmative. In support of his arguments he sent for Botha, and in reply to questions put by Morant, he said he was a good soldier, and had done his duty and shot Boers.
Major Lenehan was further charged with having failed to report that a trooper of the Carbineers, Van Buren, had been shot by Lieutenant Handcock. He pleaded "Not guilty." Ex-Captain Robertson was the principal witness for the prosecution in this case. He said he knew Van Buren, who had been shot; he had been warned that he was not to be trusted, and men refused to go on duty with him. He, Taylor, arid Handcock had a talk over it, and decided he was to be shot. He said that he made a report of this occurrence, and also of the shooting of six men, to Major Lenehan. The report made of Van Buren's death was not a true one; he had concealed the true facts in the interests of the corps.
Major Lenehan, in his defence, said that he had never been informed of the actual manner of Van Buren's death.
The counsel for the defence, Major Thomas, referred to the fact that Major Lenehan had already been, under arrest for three months (similar to that of the other officers), and protested against an officer being kept so long without trial. Robertson was the man who should have reported, and he had done so falsely. He and Taylor were the men who should have been prosecuted, but Robertson had been allowed to resign unconditionally. The verdict and the sentence were not made known.
The next case was then gone on with. Lieutenants Morant and Handcock were charged with instigating the killing of two men and one boy, names unknown.
Sergeant-Major Hammett deposed that he formed one of the patrol which the prisoners accompanied in search of three Boers. It was agreed that when the Boers were discovered, and Morant asked, "Do you know Captain Hunt" they were to be shot. This was done.
In this case Lieutenant Morant again chose to go into the witness-box, and gave evidence on oath. He deposed that he went out to look for the three Dutchmen. He never asked them to surrender; they were Dutchmen with whom we were at war, and belonged to a party which had stripped and mutilated a brother officer, and he had them shot.
Major Bolton was asked if he wished to cross-examine the witness, and upon replying in the affirmative Morant sprang up, and passionately exclaimed, "Look here, Major, you are just the 'Johnnie' I have been waiting to be cross-examined by; cross-examine me as much as you like, but let us have a straight gallop." In the cross-examination Morant's retorts were so straight and so bitter that they resulted in the collapse of the Prosecutor after a very few questions had been asked.
The court then sat to hear the charges against Captain Alfred Taylor, who was accused of murder in inciting Sergeant-Major Mori-son. Sergeant Oldham, and others to kill and murder six men, names unknown.
The following is a summary of the evidence taken:—
Sergeant-Major Morison, Bushveldt Carbineers, deposed that on 2nd July preceding he paraded his patrol and reported to Captain Robertson. The accused was present, and said he had intelligence that six Boers with two waggons were coming in to surrender, but that he would have no prisoners. The witness asked Captain Robertson if he should take orders from Taylor. Captain Robertson said, "Certainly, as he is commanding officer at Spelonken." Morison asked Taylor to repeat his order, which he did, saying that if the Boers showed the white flag the witness was not to see it. The witness repeated these orders to Sergeant Oldham, and warned six men and a corporal to accompany Oldham as an advance party. Six Boers were shot by the advance guard. These were the only ones met with that day. The patrol went on, and the following day a larger party of Boers with women and children was brought in, Taylor and Picton going to meet them.
Sergeant Oldham stated that the previous witness warned him of six Boers, and told him he was to make them fight, and on no account bring them in alive. The Boers were ambushed. There was a man in front of a waggon holding a white flag, and a great noise in the waggon. Oldham stopped the fire, thinking there might be women and children, but since he found only six men, as described in the orders, they were taken out and shot. He believed the flag was put up after the firing commenced. The Boers were armed and their rifles loaded. A good many prisoners were afterwards taken and sent into Pietersburg. The witness addressed his report of the affair to Captain Taylor by Morison's orders. Captain Robertson complained, and the report was readdressed to him. Neither Taylor nor Robertson were present at the shooting of the Boers.
Trooper Heath corroborated this. He said the Boers were disarmed, lined out on the road, and shot.
Ex-Captain Robertson corroborated, and said that he had told Morison he must take his orders from the accused. Oldham reported, "All correct; they are all shot," and the witness saw the bodies.
Cross-examined, the witness admitted having had to resign and having been refused admission to any other corps. Morison reported that he was threatened with arrest. Morison demanded an inquiry, but broke his arrest and went to Pietersburg. Taylor asked for the patrol, as six armed Boers with two waggons were reported. Morison did not receive instructions from Taylor in the witness's presence. It was usual for patrols to get orders from Taylor.
Major Lenehan deposed to receiving orders to supply fifty officers and men to proceed to Spelonken with Taylor. An inquiry was held in regard to charges in which Robertson and Morison were mixed up. Colonel Hall decided that it was better that Morison should go. This closed the case for the prosecution.
The accused elected to give evidence in his own defence. He said that during July last year he was in charge of natives and intelligence work. He was formerly a lieutenant in Plumer's Scouts, and came down on special service. No part of his instructions authorised him not to take prisoners. He had no military command. His instructions went to the officer commanding the detachment of Bushveldt Carbineers. Colonel Hall's instructions were that a detachment of sixty men were to assist him in the Zoutpansberg. He gave instructions to the officers, telling the number of men required for patrols if any Boers had to be fought or captured. He never in-interfered with noncommissioned officers but once, when Lieutenant Picton placed Morison under arrest, and the witness refused the latter permission to go to Pietersburg, although he nevertheless broke his arrest and went. The witness received intelligence of certain Boers coming in to surrender, but never of the party of six. He never gave Morison any orders, and knew nothing about the six Boers, nor had he asked for a patrol to meet them. That patrol took three days' rations with it. The patrol afterwards brought in parties of Boers of which the witness had been advised. The first intimation he had received of the charge of six Boers having been shot was made yesterday in court.
Davidson, clerk to the accused, deposed to the fact that letters addressed to the latter giving intelligence of the Boers were missing from the office after someone else took the witness' place. The empty file was found at his successor's office.
Otto Schwatz, an intelligence agent, spoke to having reported to Taylor the intention of two parties of Boers to surrender, but said he had never mentioned a party of six. Taylor was angry about the shooting of these Boers.
Further evidence for the defence was taken to show animus on the part of Morison.
Counsel addressed the court, who deliberated, and found the prisoner "Not guilty."
