"Wessels took over the command of Kritzinger's commando when the latter was wounded.
"As regards the proclamation, the only name mentioned in it is that of Kritzinger, and the proclamation is signed by him. The names of any of the other commandants are not mentioned in it at all.
"As regards the witnesses for the prosecution, there are three who have been deported, and therefore could not be obtained."
Address by the Counsel for the Defence.
(Advocate H.G. Gardiner.)
"Mr. President and Members of the Military Court:—
"We are now reaching the end of a great trial, the great trial of a great man. Of all the trials that have been held before Military Courts in this country, this, I may fairly say, is most important.
"No officer of higher or even equal rank to him, who was once Chief Commandant in this Colony, has yet been tried, and on this trial much will depend. It is a case the result of which may have great and far-reaching influence. It may influence greatly the Boer commandoes in the field. On the verdict now given in his case the attitude of other leaders will greatly depend. I do not urge this upon you that you should acquit the prisoner. I do not ask you to consider the consequences of the verdict you may bring in. I know that you will bring in whatever verdict you think right regardless of all consequences, but I do bring these facts before you as a reason why you should carefully consider the evidence.
"The charge in this case is the charge of murder, the greatest crime that can be brought against a man. It is a crime of which a man cannot be technically guilty. You must have the most convincing evidence before you, and the clearest proof. It is a crime where intent must be clearly proved; where intent is essential. A merchant whose agent enters into a contract may be held responsible to carry out that contract, but a merchant whose clerk commits a crime cannot be held responsible for that crime. It would, sir, be intolerable if a leader of a column should be held responsible for every act committed by the men under his command. We are glad to know, sir, that in the history of this war British troops have behaved in an exemplary manner, but there have been occasions when they have done things not in accordance with the laws and usages of war, and it would be unfair to hold a general responsible for such acts of isolated individuals. On the question of intent and what constitutes responsibility for a crime, I would refer to Manual of Military Law, pages 112 and 113, paragraph 17:—'If the offence charged involves some special intent, it must be shown that the assistant was cognizant of the intention of the person whom he assisted; thus, on a charge of wounding with intent to murder, it must be shown that the assistant not only assisted the principal offender in what he did, but also knew what his intention was, before the former can be convicted on the full charge.' Then again, paragraph 18. After referring to persons going out with common intent it says that a person is not responsible for any offence 'committed by any member of the party, which is unconnected with a common purpose, unless he personally instigates or assists in its commission.' And to give an example, sir, of common intent, the purpose for which a commander and his men go on commando is to kill and destroy the enemy, not that of killing prisoners and non-combatants, or prisoners without a trial, and if a subordinate without orders from his superior commits a crime, that superior cannot be held responsible for it unless he has consented to it or knew of it. I would also refer to paragraph 20:—'Mere knowledge that a person is about to commit an offence, and even conduct influenced by such knowledge, will not make a person responsible for that offence, unless he does something actively to encourage its commission.' And last of all I would refer to Army Act, section 6, page 322:—'Every person subject to Military Law who commits any of the following offences, that is to say (f):—Does violence to any person bringing provisions or supplies to the forces, or commits any offence against the property of persons or any inhabitant or resident in the country in which he is serving,' but says nothing about the responsibility of a superior officer.