On the 15th of February, 1901, I went to Poortje. I camped there for the night. On the 16th I went to Driefontein, the farm of du Toit. That was Sat.u.r.day. From there I went on Sunday to the farm Tweefontein, Minnaar's. I have not had a man named Van Aswegen with me at Minnaar's. I know a Van Aswegen; he is a sergeant in Smit's commando. He was not at Minnaar's when I got there. I do not know where he was. On the 12th of February, 1901, I saw Van Aswegen on a farm, the name of which is unknown to me. The owner's name is Burger. There Smit and his men left me. I next saw Van Aswegen on a farm in the Richmond district, the owner of which is Meiring. I stopped at Minnaar's for the day, held service, and left there in the afternoon. I know nothing of the shooting of a native there. No shooting of a native was reported to me. Van Aswegen certainly had no orders from me. He was not under my control, he was under the control of Smit. n.o.body belonging to my commando had any orders from me with reference to shooting natives.

3rd Charge:--

The Court does not think it necessary to take the prisoner's evidence on this charge.

4th Charge:--

I crossed the Orange River into the Orange River Colony on or about the 15th of August last. It is brought back to my memory inasmuch as Commandant Cachet was killed on the 15th of August in the district of Venterstad in the Cape Colony. I did not take any natives prisoner prior to crossing the river. Commandant Wessels was with me before I got to the river, about five or six miles from the river he left me and crossed. I crossed the Orange River on the Bethulie side. Wessels crossed the river on the Norval's Pont side.

I did not see him cross the river. After crossing I went to the first farm. No one was at home there, and I off-saddled. The name of the farm is unknown to me. It was a farm that had been burnt.

When I arrived at that farm there was no other commando there.

Before I crossed the river I heard rifle-fire, but after I had off-saddled for a little while I heard cannon-fire. The firing came from the west, from the direction which Wessels had crossed the river. The cannon-firing also came from the same direction.

I mounted a horse and rode up a kopje to see if I could see anything that might be taking place. The kopje was about 1,000 to 1,200 yards from my laager. I was riding a chestnut horse. I went to the kopje alone, but a man by the name of Michael Coetzee, whom I intend to call as a witness, was on the kopje on duty as a sentinel. I remained there a considerable time. I saw cannon-firing on a little ridge on the Colony side of the river. I heard rifle-fire while I was on the kopje. I returned to the laager. The firing was in the direction of the laager. When I got back to the laager Commandant Wessels was there, off-saddled. After I arrived at the camp I spoke to him about the firing I had heard. I knew that some of the farmer's cattle were being brought in for the purpose of slaughtering, and I asked Wessels why they fired so many shots at the animals, and he replied that a couple of Kaffirs had been shot. I was chaffing Wessels when I asked him why they fired so many shots at the animals. When I was on the kopje I certainly did not know that Wessels had taken natives prisoner. I did not see these natives after they had been shot. I do not know the boy Jan Louw. I did not speak to him that day, nor to any other native. The Wessels in question is the Commandant Louis Wessels, who pa.s.sed into the Colony from the Orange River Colony, and I met him three or four days before I crossed. The day after our meeting we had a skirmish with the British. Wessels and I got separated. The following day we met again on the farm of Van der Keever. He was not under my command in the Colony, nor in the Orange River Colony.

I had about between seventy and eighty men when I crossed the river, and Wessels had between thirty and forty men. I had a few natives shot in the Orange River Colony prior to my crossing into the Colony in the first instance. These were tried by Captain Scheepers, Captain Fouche, and Captain Smit and myself, also Judge Hugo. The papers were sent to a.s.sistant Chief Commandant Fourie, and the sentences were approved of by him. That was the only case of natives having been shot by me.

_Prosecutor's Address._

(Captain L. Daine.)

"As regards the first charge, the natives Jafta and Solomon and the scouts McCabe and Maasdorp were captured by Wessels, who was in charge of Kritzinger's scouts. He took them to Grootplaats. McCabe proves that Wessels then went towards Voetpad, three miles off, and returned some time afterwards, gave an order to his men, and the two natives were led off to execution. Boltman's statements that Kritzinger gave a message for British column commanders, informing them that armed natives would be shot, are fully corroborated by what McCabe was told by members of Kritzinger's commando, and clearly shows Kritzinger's intentions and instructions. Kritzinger states that he cannot remember whether he gave the message or not.

"The witnesses for the defence all state that there were no prisoners with the commando at Grootplaats, yet the accuracy with which they describe different horses, and the date of seeing Van Aswegen, _i.e._, 13th February, 1901, is little short of marvellous. Kritzinger states that he mounted a horse and rode to the kopje, which was about 1,000 to 1,200 yards from the laager, and that he was riding a chestnut horse, while the witnesses for the defence state that he was riding a dark bay horse with a star when he rode to the kopje.

"As regards the natives mentioned in the first charge, McCabe states that he did not lose sight of them all the time they were together, and as they were not searched in his presence the pa.s.ses could therefore not have been found. They were captured on a farm in British territory.

"As regards the second charge, Van Aswegen was evidently a member of Kritzinger's commando, and the witness, Van der Merwe, remembers seeing him with the commando for three weeks, during which time he and his men were frequently away. Here again, as concerns spies, Van Aswegen had the pa.s.ses in his hand and knew what the boy really was.

"As regards the fourth charge, the natives were captured in the Cape Colony, where Kritzinger was Chief Commandant. The statement that his authority as such ceased the moment he crossed the Orange River is hardly credible. The natives were shot at Biscuitfontein, where Kritzinger was laagered at the time, and their dead bodies were seen by de Klerk there. Jan Louw is very clear as to who the commandant was. He recognized his photo on two occasions, and identified him at once in court. The dark brown horse ridden by Kritzinger to the kopje is probably the black referred to, and his evidence is corroborated by Jan Jonkers, who, however, failed to recognize Kritzinger in court, more through fright than anything else, I think. Both these witnesses state that there was a body of men at Biscuitfontein when they arrived. This is denied by witnesses for the defence. The bodies found by Jan Hans must have been those of Koos and Willem, as the spot is identified as that described by de Klerk.

"It must be remembered that the witnesses Hugo, Matthijsen, Van Wijk and de Klerk are all accomplices, and therefore their evidence must be received with caution, especially after the curiously minute details they give on some points. It is also worthy of note that Matthijsen was not examined on the fourth charge, though he was present with Kritzinger at the time.

"The shooting of these prisoners was absolutely unjustifiable and illegal, and all concerned must be held equally responsible.

"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 att.i.tude 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 const.i.tutes 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 a.s.sistant was cognizant of the intention of the person whom he a.s.sisted; thus, on a charge of wounding with intent to murder, it must be shown that the a.s.sistant not only a.s.sisted the princ.i.p.al 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 a.s.sists 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.

"We may take it therefore that Kritzinger can only be responsible for a murder when he has given either general or special orders, or when he knew of it beforehand, and consented to its being done.

Now, sir, what proof have we of that being so in this case?

"Let us take the first charge--the charge of shooting two natives at Grootplaats. There can be no doubt that these natives were spies. They came into the Boer lines unarmed, ununiformed, and with false pa.s.ses. They carried two pa.s.ses, one representing them as belonging to the 7th Dragoon Guards, and the other to the effect that they were looking for cattle. I think if such a case came before you, you would have no doubts about treating them as spies.

Therefore Kritzinger would not have been guilty of murder had he shot them. I have a far stronger defence, however. The natives were captured by Wessels. Kritzinger knew nothing about them, and when these boys were shot he was not present, as he was at another farm at the time. Wessels left at 10 A.M., Kritzinger arrived there after sunset. How can he then be responsible for the shooting of these natives when he was not at the farm? There is not a bit of proof to show that Kritzinger gave the order about the shooting of these boys. One of the native witnesses says that one of Wessels'

men went in the direction of Voetpad; there is no evidence that he ever reached there. More than that, witnesses belonging to Kritzinger's commando state that they saw nothing of Wessels, and that they knew nothing of the shooting of these boys. At the close of the evidence in chief there was something which looked like implicating Kritzinger, but of that by Van Aswegen there is very little left to-day. At first the evidence _re_ Mijnhardt was taken, but the Court has ruled that this evidence cannot be accepted. Now there is the evidence of Boltman. I do not say that Boltman did not give his evidence fairly, but he must have made a mistake as regards Kritzinger making use of the words he referred to. McCabe says while he was on the farm nothing of the kind occurred. If anything had been said he would have heard it. When McCabe and Maasdorp came back no report was made that Kritzinger had said anything of the kind. But there was a report made, and McCabe bears it out that something was said by another member of the commando. I would submit that Boltman mistook the other member of the commando for Kritzinger. There is no getting over the evidence of McCabe, and he is the person who ought to remember it. As McCabe says, Kritzinger did not arrive until some hours after the boys had been shot.

"I now come to the second charge--the charge of the shooting of the boy John Thomas at Tweefontein. Now, sir, here again the boy was clearly a spy. He carried two pa.s.ses similar to those carried by the boys mentioned in the first charge. He was unarmed. He was not in uniform. He was there to spy the movements of the Boers.

Kritzinger would not have been responsible for the shooting of this boy had he shot him. But here the evidence against him is even weaker than in the first charge. Here there is no suggestion that the boy was shot by any of Kritzinger's men. The evidence shows that the boy was shot by a man serving under Smit. Smit was an officer with an independent command, and, more than that, he had been longer in service than Kritzinger himself, and was not under Kritzinger. Here, too, there is no suggestion, as in the first charge, that any message was taken to Kritzinger by the men who shot this boy, John Thomas. None of Van Aswegen's men were sent to Kritzinger. Van Aswegen himself did not go back. No one from Kritzinger came to Van Aswegen. Van Aswegen was last seen by Kritzinger on the 12th or 13th of February, 1901, and was not seen again by him until a couple of days after the shooting.

"That the boy was shot by Van Aswegen appears clear from the two Minnaars' evidence, who say that the boy was taken out by Van Aswegen, and that was the last they saw of him. Kritzinger did not arrive until Sunday morning with his commando, and everyone says he knows absolutely nothing about the shooting of the native. I would submit that there is absolutely nothing to connect Kritzinger with the shooting of this boy.

"On the 3rd Charge there is no need to say anything. The Court has already indicated that it is unnecessary to proceed further with it.

"I now come to the 4th Charge; the only charge in which Kritzinger was said to have been present at the shooting. In the first two charges, Kritzinger did not appear until hours after the natives had been shot. The only witnesses who say that Kritzinger was present at the shooting of the natives mentioned in this charge are natives. There appear to have been no white men present. Some one said that Schmidt was present, but it appears he did not cross the river. We have only native evidence to this effect, and native evidence is most unreliable, and only one of the witnesses could identify Kritzinger. We are, therefore, driven back to the evidence of Jan Louw. Even if Jan Louw had given his evidence in a way that could not be shaken, it would be dangerous to convict on the evidence of one witness alone. Natives have no idea of dates, time, or distances. They find it difficult to identify prisoners. We have seen that in the case of Jan Jonkers, and that shows how much reliance can be placed on native evidence. Jan Jonkers identifies a man in Court as being Kritzinger who was never near the place. Four months after a man has been killed Jan Hans goes and sees his body.

He identifies him not by the clothes he wears but by his face. Is it possible that after being for four months on the plains of the Orange Free State, exposed to the air and the heat, a man could identify the face of another? And the one native witness is the witness Jan Louw. Even if Jan Louw were a strong witness, his evidence would not have been sufficient to convict, but Jan Louw's evidence falls to the ground under cross-examination. How did Jan Louw identify Kritzinger? He was taken to the office at Norval's Pont. Now, Jan Louw had only seen one commandant in his life. When in that commandant's possession, his life was apparently not worth very much. His companions were shot. When shown any commandant's photo he would naturally identify it with the commandant he knew.

Now, Jan Jonkers explains to us why the photo was identified. He was asked, 'Is that Kritzinger?' and he replied, 'That is Kritzinger.' Now, a native is very likely, in a case like that, to say, 'That is the man.' Then Jan Jonkers, in re-examination, tries to get out of that. He says that he said, 'That is Kritzinger,' and then the man in the office said, 'That is Kritzinger.' The probability is that Jan Louw and Jan Jonkers were asked if it was Kritzinger's photo, and they said, 'Yes.' If the Court saw the photos they could see how much reliance could be placed on the identification. The witnesses were taken into a room where there were several groups of photos, but the biggest photo was that of Kritzinger, and these natives had seen it before. Probably it is the only photo they have seen in their lives. It was the same photo they had seen at Norval's Pont. What would one expect? One would naturally expect them to pick out that photo, and that is what occurred. Well, after that, one can understand why Jan Louw identifies Kritzinger in Court. He has had a photo shown to him in town, and of course he naturally identifies Kritzinger at once. The wonder is that Jan Jonkers did not identify Kritzinger. It only shows what small reliance can be placed on the evidence of natives, and that is the sole evidence on which the 4th Charge is based.

"Now let us see what Kritzinger's story is. It is a consistent story, and it seems what probably happened under the circ.u.mstances.

He crossed without prisoners, and everyone in his commando bears him out. He crossed before Wessels, and laagered there, and afterwards Wessels came up. Jan Louw says that no other commando was there when he arrived, and no other came afterwards. Jan Jonkers says there were about one hundred men when he arrived. The Court will have no doubt that there were two commandoes there.

Kritzinger said that he had seventy or eighty men with him. And then again we have Jan Jonkers. If Jan Jonkers found a commando there, all the evidence goes to show that Jan Jonkers must have been with Wessels, and not with Kritzinger. Wessels captured these men, and therefore must have done the shooting.

"Then there is the question of identifying a horse. Both natives say it was a black horse, and the other evidence shows it was a chestnut horse. It may appear strange that our men remember the horses, but I would certainly trust any Boer, who has to deal with horses all his life, rather than a native. Then Kritzinger says he left the commando and went up to the kopje. Wessels had not arrived yet, and that, sir, is borne out by every one of Kritzinger's witnesses; and, as he says, and all the witnesses say, it was in Kritzinger's absence that Wessels arrived and the shooting was done. Kritzinger says he heard the shots and chaffed Wessels about an ox he supposed they were shooting. But whatever was done in Kritzinger's absence was done entirely without Kritzinger's knowledge, and, sir, by men who belonged to Wessels, because whoever did the shooting it was done by men belonging to the commando who took these natives prisoners. Now, sir, it is unfortunate that the witness who was with Kritzinger on the kopje, and who could also have heard the shots, is not here. I know it is not the fault of the Court that he is not here. It is unfortunate, though, that this man is in St. Helena. But Kritzinger is already corroborated by his other witnesses, and against them is only a single native witness. There is, of course, this story of a conversation between Kritzinger and the boy Jan Louw. Kritzinger is supposed to have said to the boy: 'Did you see those boys? They are to be shot. Put down your billies, and go and be shot also,' and then at once to have changed his mind: 'Never mind, my boy, get the water.' It is an improbable story. Jan Jonkers does not appear to have heard the conversation at all. None of Kritzinger's men appear to know of it, and I submit it was not said by Kritzinger, if said at all. Then on the prosecution's side one native witness is contradicted by all the other witnesses.

"Before I close the case for the defence, I would like to refer to the character of the prisoner. In this case I am well aware that character is not a ground of acquittal. I know, sir, that good men of excellent characters have committed crimes, and I would not for one moment appeal for an acquittal because Kritzinger has behaved so well in other instances, and has shown himself a humane man, and a man of honour. I do not ask for mercy on the ground of Kritzinger's character, we can only ask for a fair and just verdict. But character is of importance when there is any doubt in the case. I ask the Court to bear in mind the character of the accused. Is a man who bears such a character likely to have committed the crimes charged against him? The character of Kritzinger, if we put aside the charges in his case, is an excellent one. The prosecution has brought out in cross-examination a certain proclamation. I am glad it has been brought out, for it goes to show nothing against the character of the accused, but it tells in his favour, for, what do we find? That a draft proclamation was drawn up at a meeting of commandants, at which Kritzinger was chairman. He opposed it by every means in his power, but he was in the minority, and, as president of the gathering, he had to sign it. He then asked for some postponement before that proclamation was circulated, and that was agreed to. He still fought against this proclamation, for he asked that before De Wet approved of it nothing should be done in the way of circulation. He never circulated it himself. If it was circulated, it was done by the other commandants against the agreement. It was not approved of by De Wet, and never became a proclamation. This shows that Kritzinger disapproved of the harsh measures contained in it, that he tried to get it done away with, and that at last he succeeded in getting a refusal from the Chief Commandant of the Free State. It was owing to his efforts that the proclamation did not become a valid one in this Colony, and he cannot be responsible for anything that may have been done against the agreement arrived at by those at the meeting.

"As regards his treatment of natives, he tells you himself that he never had natives shot, except those boys who were duly tried, and whose sentences were duly confirmed, and that will tell in his favour.

"As regards his att.i.tude _re_ the destruction of property, we have the letter to Scheepers, and the Court will bear that in mind in deciding whether he has been guilty of these acts of inhumanity charged against him or not.

"His character has been excellent. Coming back into danger again in order to secure a remount for one of his men whose horse had been shot, he was himself wounded, and ultimately captured. His conduct on that occasion was that of a brave man, as it has been all through the war. If there is a question of doubt I ask the Court to bear in mind the character of the prisoner. All the evidence is riddled with doubt, and you have to weigh this, sir. On the one hand the native was shot in Kritzinger's absence. There is no proof that it was done by his order, or with his consent. The evidence of the natives in the 4th Charge is of the weakest description.

Against that you have his excellent character, and the story corroborated by his own witnesses and corroborated in some respects by the witnesses for the prosecution. I ask you, sir, to weigh that evidence in the balance, and see which side is found wanting.

"Just a word more, and I have done. I know there are some people who say it is unfair to try a man by a Court composed of men who have been fighting against him. Sir, I have no such fear. I know, sir, I feel sure that there is not an officer in South Africa who would not gladly acquit the prisoner of the crimes laid to his charge if he felt he could conscientiously do so. I therefore leave in your hands the fate of a man whose bravery has been shown on many occasions, in many a hard fight, whose honesty and humanity have been, in many instances, conspicuous. More than that, sir, should he be acquitted, when this war is over, he will, I feel sure, be able and ready to do much to restore the good feeling which we all hope will prevail between English and Dutch, I leave his fate in your hands with the conviction that you will bring in the only verdict warranted by the evidence, a verdict of 'Not guilty.'"

This address gives you, reader, the gist of my trial. If you have had the patience to read through it you will be able to have a fair conception of what we had to pa.s.s through in the early days of March, 1902.

CHAPTER VIII.

WHY WE SURRENDERED.

Breathes there the man, with soul so dead, Who never to himself hath said, This is my own, my native land!...

If such there breathe, go, mark him well.