Part 15 (1/2)

The climate in Pretoria in January is almost tropical, and the sufferings of many of the older and less robust men under such circ.u.mstances were very considerable. On the eleventh day of incarceration the majority of the prisoners were let out on bail of 2,000 each; in the cases of two or three bail of 4,000 each was required; but bail was refused to Colonel Rhodes, Messrs. Phillips, Farrar, Hammond (the signatories to the letter), and J.P. FitzPatrick, the secretary of the Reform Committee. These five continued to occupy the undesirable premises for four weeks more, at the end of which time, owing to the serious effect upon their health which imprisonment under these conditions had produced, and owing to the repeated representations within the Transvaal and from the British Government as well, an alteration was made under somewhat novel conditions.

It was notified to the public that the Government had graciously consented to admit the prisoners to bail. The terms, however, were not at the time publicly announced. First and foremost it was required of them that they should deposit 10,000 in sovereigns each as security that they would not break the conditions of their altered imprisonment. They were to reside in a cottage in Pretoria under strong guard, and they were to pay the whole of the costs of their detention, including the salary and living expenses of the officer and guard placed over them. The cost, including interest upon the money deposited, was upwards of 1,000 a month.

The preliminary examination into the charges against the Reformers began on February 3, and lasted about a month. It resulted in the committal for trial, on the charge of high treason, of all those arrested. The Imperial Government having decided to send a representative to watch the trial on behalf of the British, American and Belgian subjects, Mr. J. Rose Innes, Q.C., the leader of the Bar in Cape Colony, attended on their behalf. It was intimated to the Transvaal Government that Mr. Innes would represent the Imperial Government; but objection was made to this on the grounds that he had been admitted to the Pretoria Bar during the British administration, and had failed to comply with a subsequent rule of Court which required some sort of registration; and permission was refused to him to address the Court. The objection was maintained, and Mr. Innes was obliged to limit his partic.i.p.ation in the affair to sitting at the counsels' table and consulting and advising with the Pretoria barristers employed to defend the prisoners.

The examination was, as Dr. Coster the State Attorney announced, of the nature of a fis.h.i.+ng examination, and he claimed to be permitted to conduct it in a manner which, he alleged, is popular in Holland, but which is entirely unknown in the Transvaal, and certainly does not obtain in any British possession. The chief feature of this system appears to be a total disregard of the rules applying to evidence. A few instances will suffice. One of the first witnesses called was Judge Ameshof, who with Chief-Justice Kotze and Mr. k.o.c.k formed the Government Commission appointed to meet the deputation from the Reform Committee on January 1. Judge Ameshof was duly sworn, and was asked to identify a list of the members of the Reform Committee. He did so. He stated that it was the list supplied to the Government Commission at the meeting of January 1 by the deputation of the Reform Committee, and he regarded it therefore as authentic. The deputation had stated to the Commission that it was so.

This was the first revelation of the tactics about to be pursued by the Government, in using information which had been given under privilege and in good faith by the prisoners themselves, when negotiating with the Government prior to any question of arrest being raised. Mr. Wessels, counsel for the accused, rose to obtain from Judge Ameshof the official account of the meeting, desiring to prove this very important negotiation by means of witnesses on the Government side. He got no further however than saying to the witness, 'You said you were a member of the Government Commission?' when Judge Ameshof replied, 'Yes, but if you are going to ask me about anything that took place at that meeting, I cannot answer, because the meeting was a privileged one.' Mr. Wessels did not lose his opportunity, 'You have stated,' he said, 'that you are a Judge of the High Court?' The witness signified a.s.sent. 'And you mean to tell me,' Mr. Wessels continued, 'that you feel yourself free to divulge so much as it suits the Government to reveal, but that as soon as I wish to prove something to my clients' advantage the interview becomes privileged?' The witness did not answer, and Mr. Wessels appealed to the Court. Judicial Commissioner Zeiler, however, upheld the witness's contention. Mr. Wessels urged in reply that if it was a privileged interview he objected to any evidence whatever being given in connection with it, and protested vehemently against the admission of the list of members just sworn to. The objection was overruled, and it was thus laid down that the interview was privileged as far as the Government was concerned, but not in so far as it could benefit the Reformers.

Another case was that of Mr. Schumacher, a witness who testified, inter alia, that he did not know what the objects of a certain Development Syndicate were. His evidence showed that he had not been informed upon this point. He was very hard pressed by the State Attorney, but he adhered to his first answer. Dr. Coster then altered his tactics and asked, 'Had you no opinions on the subject? Did you not guess at all?' The witness replied that he might have thought and conjectured at various times, but that he had nothing in the nature of information or knowledge on the point. This did not satisfy Dr. Coster, who then pressed the question, 'Well, what did you think? What were your thoughts?' The witness objected to state what his thoughts were, as they could have no bearing on the fact, and might be absolutely wide of the mark. He could only repeat that he had no knowledge. The witness appealed to the Bench for protection. Mr. Wessels urged that it was an unheard-of proceeding to compel a witness to state what he thought and to use it as evidence. The objections were again overruled, and the witness was ordered by the Court to answer. His reply afforded no satisfaction to the Government, being to the effect that he could not then remember what his thoughts were at various times. On the application of the State Attorney the Judicial Commissioner sent him to gaol for twelve hours for contempt of court.

Mr. Wessels strenuously objected to the decision and applied to the Court to stay imprisonment to enable him to appeal to a judge in chambers, but even this was refused. Mr. Wessels in the course of his address received a reprimand from the Bench for stating that he now recognized the force of the State Attorney's contention that the law of evidence as obtaining in South Africa was not sufficiently wide; for, he added, he thought it would suit the purpose of the Government better if they reverted to an older system under which racks and thumbscrews were popular.

The witness was sent to gaol. Some hours later an appeal was heard by Judge de Korte in chambers, and the decision of the Judicial Commissioner was reversed, but the prisoner had already completed seven hours' imprisonment in a dirty cell. Judge de Korte stated that he had reversed the decision after consultation with Chief Justice Kotze, and it was felt that something at least had been achieved by Mr. Schumacher, and the rights of a witness would be recognized. But the end is not always in sight in dealing with the Transvaal Government. The State Attorney in turn appealed from the single judge's decision to the full Bench. Judge Morice, a Scotchman, many years a judge of the High Court, supported the decision of Judge de Korte. The Chief Justice, who had advised Judge de Korte in his decision however in a most extraordinary judgment now reversed it, and in this view he was supported by Judge Ameshof-himself a witness in the case against the Reformers.

Thus the majority judgment of the High Court against the Reformers on this principle of evidence happened to be formulated by the two judges who had been appointed to negotiate with the Reformers' deputation on behalf of the Government.

The impossibility of obtaining justice in the Courts of the Transvaal under the then conditions was thus brought home to the prisoners. An appeal from the decision of the Lower Court on Judge Ameshof's interpretation of privilege, which had been seriously discussed, was then abandoned as being worse than useless, and calculated only to provoke more extreme measures against the prisoners by placing the Bench in a ridiculous position. It could not be expected that the Chief Justice, who was himself a member of the Government Commission which Judge Ameshof had claimed to be privileged, would take any other view than that favouring the policy and convenience of the Government which he showed himself so ready to befriend.

In the Schumacher appeal case before the full Court, Dr. Coster had made no secret that he intended to disregard the rules and precedents governing the treatment of witnesses, and even claimed that he should receive no opposition from the prisoners' counsel, since he was only 'fis.h.i.+ng' for evidence and not actually acc.u.mulating it against the prisoners, and had no intention of using the evidence given at this examination. Mr. Wessels asked him whether he would pledge himself to this effect, and what, for instance, would be done in case a witness who had been heard at the preliminary examination should die before the main trial came off. The reply was, that in such a case of course the Government would be bound to use some of the evidence, but would use it with discretion and not unfairly. This undertaking provoked smiles even in court. The wisdom and fairness of Mr. Wessels' contention were fully justified when the trial actually did take place, for the whole of the evidence of the preliminary examination was handed in for the guidance of the judge in determining his sentences against the accused. It may be added that each witness was called upon to sign the notes of his evidence as taken down in Dutch. When required, the official reporter read a free translation of the notes to the witness before they were signed.

At the conclusion of the examination all the prisoners were committed on the same charge-that of high treason-no distinction whatever being made in the references to them from the Bench. By this time Mr. Hammond, who had been ill, was released on bail of 20,000 in order to go to the seaside.

Application was made on behalf of Colonel Rhodes, Messrs. Phillips, Farrar, and FitzPatrick for release on bail, upon the grounds that no distinction whatever had been made between them and the other prisoners who had already been released, but this was refused after the point had been reserved for consideration by the State Attorney in consultation with the Chief Justice, and the four men returned to their former conditions of imprisonment. Mr. Chamberlain continued to make representations on behalf of these men, and at one time it appeared as though the restrictions would be removed, Dr. Coster having pledged himself to accept bail, and having actually drawn out the bail-bonds and submitted them to the solicitors of the accused for approval, and every arrangement having been completed-even to the finding of the additional security. They were however at the last moment curtly informed that bail would not be allowed. On this being reported to Mr. Chamberlain, he at once replied to the effect that he could not believe that a Government would revoke a promise made on their behalf by the State Attorney. Dr. Leyds, on behalf of his Government, stated that the matter was in the hands of the State Attorney alone and did not concern the Executive, and that on inquiry he found that no such promise had been made and no undertaking given. The incident is more or less trivial, but again shows the readiness with which the Boer Government repudiate a promise when it is to their convenience to do so. Dr. Coster on his side admitted with expressions of regret that there had been a breach of undertaking, and stated that it had been done by order of the Executive Council.

Communications between Mr. Chamberlain and the Pretoria Government were of great frequency during this period. The phantom of Mr. Kruger's visit to England was chased with great a.s.siduity. The wily old President seized on Mr. Chamberlain's suggestions as an excellent pretext for delay to enable him to spread his nets, and he used the time to great advantage. But this was not the worst! Mr. Chamberlain's new diplomacy and his stupid or treacherous advisers led him into blunders; as when, for instance, he tried to bounce without the intention of making good his implied threats; and when he sent his 4th of February despatch (publis.h.i.+ng it in London before it reached Pretoria), strongly and ably reviewing the position, but spoiling all by a proposal which, whilst it had not been suggested to or discussed by the Rand people, and would not have been acceptable to them in lieu of what they had demanded, was also an interference in the internal affairs of the Transvaal. It gave the Pretoria Government an opportunity, which they did not miss, of severely snubbing Mr. Chamberlain. When the latter in turn peremptorily refused their demands, he was informed that the cancellation of the London Convention would not be pressed 'at present,' but might remain in abeyance.

Throughout the period prior to the main trial, President Kruger continued to use with great effect 'the wishes and intentions of his burghers.' When bail was first refused to the leaders this course was justified on the grounds that the burghers were strongly against it, and that the President could not act against their wishes. When at a later stage a pet.i.tion was presented by a number of burghers more or less in touch with the Uitlander community, who felt that the treatment of the leaders was having a bad effect, counter pet.i.tions came in within a day or two urging the Government on no account to extend the privilege of bail to these men. Oddly enough, these pet.i.tions were got up and signed by relatives and near connexions of the President himself.

During this period another pet.i.tion was presented which is surely without parallel in a civilized state; but it ill.u.s.trates admirably the Boer idea of right and liberty. Fifty burghers in the district of Standerton addressed the Government, pointing out the undesirability of allowing a 'certain Advocate Wessels to defend the Jameson rebels,' and praying that the Government would put him over the border, 'which is the slightest punishment that can be inflicted upon him.' The receipt of this pet.i.tion was announced in the Government organ, the Press, on March 25.

At about this time another incident occurred which excited considerable feeling. Commandant Henning Pretorius, one of the most prominent Boer officials, having paid a visit to his native district in the Cape Colony shortly after the Jameson raid, purchased from the owner of a farm at Cookhouse Drift the beam from which the five Boers had been hanged at Slagter's Nek for rebellion in the year 1816. Reference has already been made in the first chapter to this deplorable affair. The beam (which had been built into the house) was brought up by the purchaser to Pretoria. He states, and no doubt truly, that he obtained the historical relic for the purpose of adding it to the National Museum; but it must be added that the time was not well chosen unless the intention was to rouse feeling. The Volksstem, the Hollander-Boer organ, in an extremely violent article, described in detail the Slagter's Nek executions, and called upon the burghers to avenge on the persons of the Reformers their murdered countrymen; and it is a fact vouched for by persons by no means friendly to the Uitlander that certain Boers approached President Kruger, intimating to him that the beam had arrived, that it would not be necessary to bother about a trial, but that the four men should be hanged out of hand from the same scaffold which had served for their compatriots. It is but right to say that President Kruger's reply was a severe reprimand, and a reminder that they were not a barbarous people, but should comply with the law. The matter having been brought to the notice of Mr. Chamberlain, strong representations were made upon the subject, to which the Transvaal Government replied (forgetful apparently of the fact that the President had frequently urged his inability to control his burghers) that the Transvaal was a civilized State, that the burghers were law-abiding and peaceful people, and that their Government was at all times able to control them. It was interesting to see the argument of the burghers getting out of hand, which was used with such effect in the case of Dr. Jameson and quoted by Sir Hercules Robinson, recoil upon the head of its originator.

A final effort was made by the people of Johannesburg to obtain the release on bail of the four prisoners. A pet.i.tion bearing the signatures of 20,000 persons was presented; the gentlemen bearing the pet.i.tion were informed that it could not be received; that they must call again. Having called again and again, the pet.i.tion was at last accepted and placed before the Government; but no reply was ever vouchsafed. The treatment of this memorial is in sharp contrast with that accorded to the one presented by a score or so of the President's relatives and supporters-objecting to the release.

From the time of the arrests until just before the trial speculation was rife as to which judge would preside. The Chief Justice and Judge Ameshof could hardly sit (even allowing for the precedents already established by them), since they had both acted on the Government Commission in negotiating with the prisoners, and one of them had already given evidence against the accused. There remained Justices Jorissen, De Korte and Morice. Mr. De Korte was then threatened with suspension owing to pecuniary embarra.s.sments, and would evidently not be allowed to preside. The fifth judge, Mr. Jorissen, had expressed himself so violently against the Reformers that he had himself recognized the impossibility of attaining an impartial att.i.tude, and had refused to sit. The only judge available was therefore Mr. Justice Morice, against whom there was no valid objection whatever. Moreover, in the ordinary routine it so happened that it was his turn to preside at the forthcoming trial; but he was known to hold Liberal views and to be strongly in sympathy with internal reform.

At this time Chief-Justice Kotze undertook several journeys to the Free State and Cape Colony, ostensibly to rid himself of insomnia, but in reality, as results proved, in order to employ a judge for this trial. His choice eventually fell upon Mr. Gregorowski, formerly a judge in the Free State, and at that time State-Attorney to that country.

Mr. Gregorowski was noted on the Bench for the peculiar severity of his sentences on all except Boers. He had moreover expressed openly in Bloemfontein his wish that he might have the trying of 'those Reformers; he would give them what for.' These things were not known at the time of the trial; nor had the fact yet come out that before taking the oath of office he had endeavoured to borrow from at least one of his colleagues a black cap for the forthcoming trial. His att.i.tude at the time is sufficiently indicated by what he wrote shortly after the trial, in defence of his action, 'I came up to put down rebellion. I have done so with a strong hand, and I believe that my judgment will bear good fruit in the future.' The prisoners could not but contrast the action of the Government in employing and appointing, on approval, a judge who had no status whatever in the country, with their action in declining to allow Mr. Rose Innes to appear at the Bar on the pretext of his previous qualification not being in order; and it was felt to be ominous that an independent and upright judge, against whom there could be no objection, should be pa.s.sed over, and another specially imported for the occasion.

The trial was at last fixed to take place on April 27, and the indictments were served upon the accused six days before that date. The following is the list of those who were committed for trial:

Lionel Phillips Colonel F.W. Rhodes George Farrar J.H. Hammond J.P. FitzPatrick S.W. Jameson G. Richards J.L. Williams G. Sandilands F. Spencer R.A. Bettington J.G. Auret E.P. Solomon J.W. Leonard W.H.S. Bell W.E. Hudson D.F. Gilfillan C.H. Mullins E.O. Hutchinson W. van Hulsteyn A. Woolls-Sampson H.C. Hull Alf. Brown C.L. Andersson M. Langermann W. Hosken W. St. John Carr H.F. Strange C. Garland Fred Gray{33} A. Mackie Niven Dr. W.T.F. Davies Dr. R.P. Mitch.e.l.l Dr. Hans Sauer Dr. A.P. Hillier Dr. D.P. Duirs Dr. W. Brodie H.J. King A. Bailey Sir Drummond Dunbar H.E. Becher F. Mosenthal H.A. Rogers C. b.u.t.ters Walter D. Davies H. Bettelheim F.R. Lingham A.L. Lawley W.B. Head V.M. Clement W. G.o.ddard J.J. Lace C.A. Tremeer R.G. Fricker J.M. Buckland J. Donaldson F.H. Hamilton P. du Bois H.B. Marshall S.B. Joel A.R. Goldring J.A. Roger Thomas Mein J.S. Curtis{34} The indictment served on all alike was as follows:

H.J. Coster, State Attorney of the South African Republic, who, on behalf of the State, prosecutes, brings to the notice of the Court:

That they (citing the accused), all and each or one or more of them, are guilty of the crime of High Treason:

Firstly: In that in or about the months of November and December in the year of our Lord one thousand eight hundred and ninety-five, the exact dates being unknown to the State Attorney, they, the said accused, at Johannesburg, Wit.w.a.tersrand Goldfields, South African Republic, being citizens of, or residing in, this Republic, all and each or one or more of them wrongfully, unlawfully, and with a hostile intention to disturb, injure, or bring into danger the independence or safety of this Republic, treated, conspired, agreed with and urged Leander Starr Jameson, an alien, residing without the boundaries of this Republic, to come into the territory of this Republic at the head of and with an armed and hostile troop, and to make a hostile invasion and to march through to Johannesburg aforesaid.