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BEFORE THE LORD CHIEF JUSTICE
THE trial of Dr. Jameson and his five confederates who had
been held to answer at the higher court before the Lord Chief Justice and the
Associate Justices, began on Monday, July 20. In the interval since their
committal the public mind had been engrossed with the events of the season and
the progress with the war in South Africa. Hostilities had broken out suddenly
in the Filibusi district, seventy-five miles southeast of Buluwayo on the 25th
of March, and before the natives were finally subdued over 400 white settlers
had been massacred; men and women living on lands remote from towns and villages
were surprised and cruelly murdered and their dwellings burned; many were forced
to flee for safety and seek refuge at Buluwayo and elsewhere. All this served to
lessen the general admiration that had been felt for Dr. Jameson, and forced the
public to some just perception of the case, which they were at last beginning to
regard in its true light.
The trial in the higher court differed in every way from that of the lower; it was far more formal and ceremonious, although, but for the coming and going of spectators and witnesses during the sessions, the proceedings in the Bow street court had been conducted in the most admirable manner. The rule as to admission was even more strictly enforced in the higher court, which was termed the Queen's Bench division, and there was no admission ex-[-271-]cept by ticket, which it was even more difficult than ever to secure. The trial was conducted in what is known as the High Court of Justice. The court room, itself, was small, and plainly furnished. The chair in which the Lord Chief Justice sat occupied the center of the bench, with those of the Associate Justices to the right and left; before them was a desk strewn with papers which were frequently consulted. Behind the chair of the Lord Chief Justice against the panelled wall, were the arms of Great Britain carved in high relief, and to the right and left of this, reaching to the floor a long and somewhat faded plush curtain. Below the bench was a table which was heaped with books, maps and legal documents at which sat the clerk of the court and his assistants. The seats on the main floor were arranged in tiers; those in front, at the right, were occupied by the Attorney-General, the Solicitor-General, Mr. H. Sutton, Mr. Charles Mathews; Mr. H. Avory representing the Treasury. To the left were the counsel for the defendants, Sir Edward Clarke, Sir F. Lockwood, who has since died, Mr. Carson, Mr. Lyttleton, Mr. C. F. Gill, Mr. Roskill and others. Behind these, two benches extended the entire width of the court room which were crowded with young solicitors and barristers, a limited number of whom were permitted to hear the proceedings each day. Still behind these were the seats for the representatives of the press, who had been furnished with no conveniences of any sort for writing their reports. Their blocks of paper were balanced awkwardly on their knees, and they had great difficulty in sharpening their lead pencils; the stenographers fared better, being supplied with small desks attached to the back of the bench in front of them, in a convenient corner. The last two rows of benches, with a small gallery opposite the bench, and what is called a "form" - a bench without a back-constituted the accommodations furnished the public.
[-272-] Dr. Jameson, Col. White and Major Willoughby had spent the month that had elapsed since their committal fishing in Norway: all were tanned a ruddy brown, and Dr. Jameson seemed much improved in health and spirits. They were dressed in the extreme of the London fashion, and came into the court room apparently fresh from the hands of their valets.
There was no door marked "For Prisoners;" they entered unattended, quietly and almost unobserved, and took the front seat which had been reserved for them. There had been an announcement that no women would be permitted to sit upon the bench as they had been allowed to do in the lower court, the little gallery and the two rear benches having been set apart for them. One, however, was bold enough to defy even the Lord Chief Justice, and, wearing a becoming gown of gray, she sat placidly waving her fan, only partially hidden by a pillar. As before, there were among the spectators many distinguished personages - men and women of high rank and well known in fashionable society, one or two of whom had been somewhat prominently identified with Dr. Jameson since the beginning of the preliminary proceedings.
Prior to the arrival of the counsel, a number of clerks appeared with heavy bags of books and documents, while others went about placing upon the desks slips of paper, and all this as solemnly as if they had been distributing prayer books in church. At eleven o'clock a black-robed official cried "Silence!" the whispering ceased, and every one rose-counsel, barristers, defendants and spectators. Then the Lord Chief Justice entered with Justice Hawkins and Justice Pollock; each wore a gown of brilliant scarlet with cuffs and collar of black moiré, with white linen bands at the throat, and plain wigs, unlike those worn by the barristers. The Lord Chief Justice bowed to the bar, then to the jury upon the left hand and took his seat, after [-273-] which the court and the audience were also seated. The jury appeared to be a sufficiently intelligent body of men, although two of the twelve seemed' rather young to judge the merits of so important a case. Two were of the pronounced Semitic cast of countenance, three at least appeared to be Irishmen, while the remainder were probably English clerks or tradesmen. The witness box here, was a space enclosed in a railing on a level with the bench, facing the jury.
The entrance of the three justices in their robes of office, the grave decorum of the bar, also in their wigs and gowns, made a very picturesque spectacle. Lord Russell of Killowen, the Lord Chief Justice, was a man of imposing appearance, of dignified carriage and of very commanding presence. His features were irregular and massive, with a prominent nose, straight lips and keen, piercing eyes, and he bore a marked resemblance to the Stuart portraits of Washington. He is an Irishman and a Roman Catholic. Justice Hawkins was a round-faced rosy man with what seemed to be a somewhat grim sense of humor. Justice Pollock was his direct opposite, and was thin and slender with an angular face deeply seamed with wrinkles. When he laughed he closed his eyes and compressed his lips, and then in a twinkling assumed his ordinary expression. While Lord Russell unbent occasionally and laughed heartily and naturally, he was ordinarily very reserved. Nothing escaped his close attention and it became at once evident that he would permit no trifling with his official dignity. His voice was mellow, though rather low, and his enunciation was pleasing and perfectly distinct. His comments as the case progressed were more frequent and emphatic than those of Sir John .Bridge, in the lower court, and his questions were put in a manner which implied that the briefest and most straightforward reply was the part of wisdom.
[-274-] The first proceeding in this second phase of the case, which had been essentially dramatic throughout, was that of the Master of the Rolls who read from his lists the official title of the cause: "The Queen versus Jameson and others." In an effort to quash the indictment Sir Edward Clarke took exception to its wording - the jury not having yet been sworn in. His objection was based upon the interpretation of the Enlistment Acts, and an argument ensued which prompted the Lord Chief Justice to decide that, as the question disputed appeared to be somewhat complicated, time was necessary for its sufficient consideration; the court accordingly adjourned. As the jury was ready and waiting, this unforeseen delay was very disappointing.
The burning heat of Monday held through Tuesday when the court re-convened, and, if possible, was intensified; the distinguished justices and barristers sweltered and perspired in their stuffy wigs and gowns.
The Lord Chief justice spoke for half an hour in tones that were nearly inaudible, delivering a decision of which the substance was that he had found it impossible to accept Sir Edward Clarke's motion to quash the indictment. While he spoke, the most profound silence prevailed; and every one listened with the deepest attention. It is hardly probable that Sir Edward Clarke had built much hope upon the expedient that he had employed, and if he and his clients were disappointed they concealed their feeling. The decision of the bench being delivered, the jury was sworn in-a formality that had been postponed twenty-four hours, to no purpose, by Sir Edward Clarke's motion. The twelve men were not what in the United States are called professional jurors, it being possible that such a class does exist in Great Britain. Several were noticeably reluctant to serve. One man - a Mr. Spinnett - complained [-275-] that he had done jury service in the Temple within a fortnight.
The Chief Justice was not disposed to accept this as an excuse, but he finally relented.
A man named Gordon promptly informed the court that he "was a friend of one of the defendants," and he, also, was excused.
Another, apparently taking it for granted that his sanity would be questioned, confessed that he was a theosophist, and was surprised that this did not disqualify him from duty. The requisite number was at length secured and sworn, taking their places, four men in each seat arranged in three tiers, one above the other.
The case for the Crown was opened with a speech by the Attorney-General which was, in substance, a review of the relations of England and the Transvaal, agreed upon in conventions and affirmed in treaties; the authority of the Protectorate was explained with that of the Chartered Company, extending over British Bechuanaland, Mashonaland, Matabeleland and Cape Colony. He repeated his charge that every detail of the raid "had been secretly and carefully thought out by men in prominent and reputable positions." The disputed Foreign Enlistments Act of 1870 had been in force ever since British Bechuanaland had been annexed in 1885, and was in every mile of territory acquired by Cape Colony or the Chartered Company which became a possession of the crown. Sir Edward Clarke objected, now and then, with a good deal of spirit, questioning a fact or a figure in the lengthy review, but failed either to annoy or disconcert the distinguished speaker. Once Sir Edward Clarke, assuming that he had caught his antagonist napping, asked him if he really meant to say that "Pitsani was a part of the Queen's dominions."
"I do not say so, was the reply.
[-276-] At this, the Lord Chief Justice wished to know if there were two places, Pitsani, and Pitsani-Potlugo, and was informed by the Attorney-General that there were. They had been obtained from a native chief, Montsioa, in securing right of way for a railroad which was being constructed through the territory. The land was ceded to the Chartered Company and, therefore, became a part of the Queen's Dominions.
Harry Lambert, a clerk in the colonial office, then testified as to the official position and responsibility of the defendants in South Africa.
Major Panzera, the engineer, who had testified at Bow street as to the topography of Bechuanaland, corroborated a statement that Pitsani-Potlugo had been ceded to the Chartered Company by Montsioa and that it was, as had been stated, within the Queen's dominions.
Comparatively little evidence was re-heard in the higher court, the proceedings at Bow street including the evidence, having been printed and copies furnished the justices, jurors and counsel. The last of the evidence was submitted on Thursday and Friday; the post-master of Mafeking, Henry Hamilton Flowers, described the cutting of the telegraph wires, and said that, in addition to this, the instruments were taken from the office at Pitsani and the wires, which had been in perfect working order Dec. 29th, having been connected by a switch.
Trooper Lawler of the Matabeleland mounted police who went with the troop from Buluwayo to Pitsani, Dec. 29, testified that the wires at Malmani had been cut, and that he had passed a trooper of the Bechuanaland police with an axe in his hand. They were in laager Jan. 3.
"We had better have that translated," said the Lord Chief Justice, turning toward the witness who, thus advised, explained that the term "laager" meant "the formation of troops for rest." Wednesday morning he had seen [-277-] a man in civilian's dress, not attached to the troops, talking to Col. White but he could not recall the conversation. When urged, he finally admitted that he had heard the man tell Col. White that the road was clear to Dornkoop and that there was a force of Boers there.
Lawler was asked if he remembered anything else and replied:
"Yes," he said, "there were men at the mines who were anxious to join us, and Ccl. White had replied that he could mount sixty men.
In the midst of the brief cross-examination the Lord Chief Justice asked,
"Could you say whether he was an Englishman ?"
The witness hesitated, and then replied,
"I do not think he was Dutch, my Lord."
The remainder of the cross-examination pertained to letters and messages delivered to Dr. Jameson.
Rowland, the bicyclist, repeated his story and. he mentioned the message from the Reform Committee which he had delivered to Dr. Jameson.
"I call for those dispatches," said the Solicitor-General who was conducting the examination, turning to Sir Edward Clarke, who remained silent.
The dispatches not being forthcoming, the witness gave the substance of them - at the Queen Battery (the mine) there was an obstacle; in the second dispatch something had been said of 2,000 men who were to be sent out from Johannesburg to meet Dr. Jameson's forces. He could not remember from whom the dispatches had come; there was also one in which it was stated that Johannesburg remained quiet. He gave Dr. Jameson a translation of the dispatches that had been given by the Boers which stated that Commanders Malen, Crouje, Trichard and Erasmus would join Potgeiter at Krugersdorp in the afternoon. There were other men with Dr. Jameson at the time these [-278-] dispatches were delivered and they were surprised that no rioting had taken place in Johannesburg. Rowland informed them that the Beer police had been withdrawn, the residents armed, the shops barricaded, the town having been well policed by the Reform Committee. It was arranged that if the messenger returned in safety they were to bring out the 2,000 men which, while it was thought that they would not be needed, "would make a bit of a show." On their return Rowland and Cellier, his companion, had been arrested, as he had stated before. The young man, even in the presence of the Lord Chief justice retained his perfect self-confidence, and fidgetted without ceasing, as he had done before, folding and unfolding his arms, and swaying back and forth against the railing in front of him. Sir Edward Clarke read from the printed evidence that "there was very great alarm in Johannesburg about the women and children."
The Lord Chief Justice who followed the evidence with close attention, read after him the printed copy upon the desk under his hand, and reminded Sir Edward that the exact words, as printed, were "much alarm," a correction which was accepted.
The only incident of note throughout the re-examination was furnished by Tossel, the Chief Detective of the South African Republic. He again took the oath after the Dutch custom, holding up the index and middle fingers of the right hand.
There was some indication that the evidence might be discredited which Tossel had formerly given, to the effect that the Boer police had been withdrawn because a collision was feared with the towns-people in Johannesburg; that the order was as good there as in other places, there being only a few desperadoes, such as may be found in other town's. lie was then asked if his name was May or Tossel. This question was unexpected and the man was [-279-] much embarrassed; he turned to the Lord Chief Justice and asked appealingly:
"My Lord, must I answer that question ?" His lordship replied:
Tossel then admitted that he was an Englishman and told a somewhat remarkable story. He said that his real name was May, and that he had enlisted when he went to Cape Town in 1881, but was dissuaded by his brother from remaining in the service, and secured a substitute to whom he paid £10; they exchanged names, the substitute being known as "May," and he as "Tossel." May, the substitute, got into trouble and had some difficulty with an officer named Major Bowen. Hearing this, the real May went to Major Bowen, who acknowledged that he had never seen him before and did not know him.
"Have you ever been tried?" asked Sir Edward Clarke, in a somewhat tantalizing tone.
"No sir; not till now," replied Tossel with a great deal of asperity.
At this unexpected retort, by which the learned counsel for the defense was rather-taken aback, there was a good deal of laughter in which the Lord Chief Justice and his two associates joined very heartily.
Tossel then continued his story and gave an account of his connection with the Johannesburg police in 1895. When he had finished, the Lord Chief Justice asked that "the mystery of the change of names be cleared up, which no doubt was done satisfactorily, as nothing further was heard of it.
Lieut. Eloff repeated the evidence he had given concerning the fighting at the mine. He spoke somewhat brokenly, but intelligibly, though in so low a tone that the Lord Chief Justice had to say repeatedly, though with no impatience, "Speak up! speak up," and finally asked the [-280-] witness "to face the jury." Eloff's manly bearing again made an excellent impression.
The famous dispatch boxes were once more brought into the court and were again identified, and, after a little, Sir Thomas Sanderson of the Foreign Office produced the original of two conventions with the Transvaal, showing that friendly relations existed between England and the South African Republic, "no license having been issued by the Queen, previous to Dr. Jameson's expedition. The signature of President Kruger, Dr. Jameson and his officers were again identified by Fleischack and the incriminating letters to "Dear Bobby" were read - those enjoining secrecy and deprecating the fact that one Foley had been talking too much, "not intentionally but idiotically;" that some one "had been blabbing,'' and that the almost certain date of the expedition had been fixed for December 29th.
This practically closed the case for the prosecution, although it was announced that there was still a mass of documentary evidence which would have to be submitted, since it was to furnish the gist of the plan for the defense which was, that the Foreign Enlistments Act violated by the raiders had no force in Pitsani, or Pitsani-Potlugo, where their operations had been largely carried on, and which had been ceded the Chartered Company by Montsioa. Friday was devoted to this reading, and order in council, followed order in council, dull, technical and a little bewildering to all but the justices and the counsel, but necessary and important as evidence. Though singly and collectively they set forth the authority of the Crown there, as elsewhere, in South Africa, Sir Edward Clarke perseveringly endeavored to prove the contrary. A portion of the documents had been worded rather ambiguously and, in emergencies were consequently confusing and misleading. Availing himself of the privilege of the [-281-] doubt wherever it was possible, the counsel for the defense continued to assert that the act was not in force either at Mafeking or Pitsani-Potlugo, and that such an act could be legalized only by direct legislation within British territory itself.
The Lord Chief Justice replied to this in his coldest, most judicial and sardonic manner, that "indictments under the common law were not impossible when there had been a lawless effort to embroil England with friendly states."
Indeed, throughout the entire reading of these documents, with copies of which he also had been supplied, Lord Russell displayed the most extraordinary knowledge of the case, even in its minutest and apparently most unimportant details; correcting the counsel when they read carelessly or not quite accurately, now reminding them that "Mafeking was in British Bechuanaland, but that Pitsani-Potlugo was outside it, farther north ;" now informing Sir Robert Finlay, the Solicitor-General, that, "the original charter of the British South African Company, granted Oct. 29, 1889, included all operations in British Bechuanaland."
Sir Edward Clarke rose once to observe that "the charter excluded the authority of the Crown within the limits of the Company's foreign jurisdiction act."
He was informed by the court, and rather sternly, "that full power was reserved by the Secretary of State" and when the learned counsel for the defense attempted to point out certain apparent inconsistencies in the wording of the charter, the Lord Chief Justice turned toward him and asked in a tone still more rebuking:
"You don't suggest that the company assumed sovereign rights ?"
At this Sir Edward replied earnestly and apologetically:
"O no, My Lord !"
[-282-] It was agreed that the speech for the defense by Sir Edward Clarke should be postponed until Monday the following week, July 27th; that body being quite worn out, several of them noticeably drowsy with the heat and fatigue of listening to the long and intricate discussion, interlarded with technical quotations from charters, orders in council and proclamations.
On Monday, therefore, at eleven o'clock the audience and the court re-assembled in anticipation of the great forensic effort, which it was certain that Sir Edward Clarke would make.
The six defendants were late in arriving, and Dr. Jameson did not appear until several minutes after the court had convened. He then came hurrying in, flushed and disturbed, but much more cheerful than he had appeared to be at any time during the trial; he doubtless felt that the long strain was almost over, and that the verdict would be a relief from the protracted suspense which he had endured.
Sir Edward Clarke rose and addressed the jury without any preamble. His voice was pleasing in the extreme, his manner easy and graceful and he showed himself to be a master of finished rhetoric ; his gestures were few, though effective, and he possessed the faculty of holding the attention of his hearers to a degree that surpassed the Attorney-General. Sir Richard Webster, on the other hand, was less polished in point of delivery; he occasionally fell into a negligent attitude; he spoke rapidly and not always with perfect enunciation, which made it difficult to hear all that he said. At the same time, whatever he may have lacked in manner was more than atoned for, intellectually; he proved himself a logician of logicians, and, in the simplest and most direct language, without a superfluous word, in his masterly review of the case with its mass of evidence, that of the witnesses, of the heaped-up [-283-] documents, of the significant maps dated Oct. 8, 1895, he dealt the defense blow after blow, demolishing their arguments one after another.
Sir Edward Clarke gave notice that he was there to represent "four gentlemen of honor, of repute, unquestioned loyalty, and of high character, now charged with a criminal offense. He said that he made no appeal for sympathy, for that would be unworthy of his clients. He turned to Dr. Jameson who, he said with much feeling, had desired to accept the entire responsibility for the acts that had led to the present proceedings. He then endeavored to prove that the condition of affairs in Johannesburg, the safety of women and children being involved, had inspired Jameson to go to their defense. The Boer police had been withdrawn, and the witness, Tossel, had shown that there were dangerous desperadoes in the town. He dwelt with some emphasis on the surprise that Dr. Jameson had manifested when he learned from Rowland, the bicyclist, that there had been no disturbance in Johannesburg; he asserted he had gone on a peaceful mission, and secrecy was necessary because it was known that the Boers would send them back if their intention to intervene were suspected; the expedition had failed, life had been sacrificed, complications had arisen through an error of the heart rather than of the reason. What would have been said had there been dire need of such a rescue-and that the women and children had been sent away certainly pointed to this-and the men had failed to respond? He then reverted to the old contention-British jurisdiction in the disputed territory, the prerogatives of the Chartered Company, the authority of the Imperial government and the provisions of the vexed and vexing Foreign Enlistment Act, all of which was once more presented at some length. Dr. Jameson believed that he was going to the aid of his friends, but Sir Edward failed to explain [-284-] away the cold facts of Maxim guns, Lee-Metford rifles, abundance of ammunition, pre-arranged stores, and careful and accurate maps that ante-dated the raid by more than two months. He said, in conclusion, and not without effect:
"I believe that when a soldier has been convicted of a military offense and condemned to die, and when the firing party has been told off, some of the rifles are loaded with blank cartridges so that each man may comfort himself with the thought that 'perhaps it was not I who put an end to my comrade's life.' A jury has no such resource. Your verdict must be the verdict of each and all of you, and on each the responsibility rests, and I have put before you such a view of the motives, the conduct and the acts of the defendants, that when the question is put to you you will be able to say in all honor and conscience that you do not believe them guilty."
The speech occupied something over two hours. Sir Frank Lockwood followed with a special appeal for Major Coventry and Sir John Willoughby. Its leading points were a corroboration of Sir Edward Clarke's argument which was frequently complimented. He spoke less than half an hour and concluded thus:
"My learned friend well pointed out to you what would have been the reproach these gentlemen would have rendered themselves liable to had they not set out to take the part which they were bound, as men of honor, to take on behalf of those to whom they were attached by the ties of honor and kinship. I have done all I can for them, and am conscious it is not much; but this further I can do-and that is, to claim on these general grounds that they have a verdict from your hands. They await it with anxiety, perhaps with apprehension. It is a matter of vast and vital importance to them and to those who hold them in high regard. I do not seek to minimize in any way [-285-] your verdict when I say that even should it be an adverse one, and their liberty become forfeit, they have this consciousness; that they have acted as they have always acted, as brave and honorable men."
In delivery, in rhetorical finish, the Attorney-General, who closed the argument for the defense, was surpassed at every point by his chief opponent; but in the greater essential of the summing up of evidence, and the comprehensive interpretation of the law, the fluent and brilliant oratory of Sir Edward Clarke seemed the merest child's play. Throughout the long trial, unavoidably delayed through four months by frequent remands, the Attorney- General had given the counsel for the defense every assistance that lay in his power; everything in the nature of documentary evidence that he required had been promptly and generously supplied by the representatives of the Crown, who could not be blamed if the defense were not armed and equipped at every point. But each line of argument that Sir Edward Clarke sought to present, every fact that he brought forward, every extenuating circumstance that he proffered as an excuse for his clients, was swept aside by the relentless logic of the prosecution. The Attorney-General resorted to no tricks of oratory; he made no appeal to sympathy, but based his plea solidly upon the facts as they had been reviewed from day to day. It affected the emotions as little as a mathematical problem, but it commended itself irresistibly to the intelligence and the reason of his hearers.
Lacking Sir Edward Clarke's magnetism, nevertheless he commanded an undivided attention from the first word he uttered, and maintained it without effort to the last. He said by way of preface, addressing the jury!
"Everything has been urged in behalf of the defendants that could be urged before you to-day, and it would be impertinence in me to comment on the speeches made to [-286-] you. You are qualified to appreciate their force and weight. I confess it was a little difficult to reconcile, however, some of the epithets of Sir Edward Clarke with the stern facts proved in evidence in this court. We are told that the expedition-into the doings of which we have to inquire-was unselfish, patriotic and humanitarian. It is not denied that Mafeking is a part of her Majesty's do- minions, and that it has been since 1895, and made lawful by proclamation. It is not denied that for fifteen years before that the Foreign Enlistment Act was the law of Cape Colony. It was, therefore, an unlawful act for the defendants to take part in an unlawful expedition, as they must have known that was against Cape Colony law. When Bechuanaland was united to the Cape the fullest validity was given to the orders."
And thus the summing up proceeded; the jurisdiction of protectorates was defined, and he quoted, as he took pains to explain, a learned writer who had declared that "Protectorates are, at the start, a vague notion, so far as they involve sovereign powers, but they harden into sovereignty." Every step of the raid was reviewed, from its first deliberate inception to its inglorious finish, and the theory that it was a peaceful expedition, undertaken for the relief of imperiled women and children, was clearly disproved in the secrecy that was maintained, the stores previously provided, the equipments, the drilling of troops, the orders for the disposition of scouts and pickets; he scorned the belief that the women and children of Johannesburg were in any manner of danger. In regard to the Boers he said: -
"With reference to the action of Dr. Jameson at Pitsani, there is no word about desperadoes in the letter from Johannesburg. It is the well-armed Boers who are supposed to be imperiling the women and children there. There has been, at times, strong feeling excited between [-287-] Great Britain and the Boers; but I submit to you that these defendants did not believe that the Boers, armed or unarmed, would be a danger to the women and children of Johannesburg. The latter was perfectly inconsistent with the view now put forward. If the fear was that the desperadoes of Johannesburg were going to fight, one of the most obvious means of preventing that would have been to let it be known that such an expedition was approaching; but the wires were cut, not to prevent the desperadoes from getting warning, but to prevent the Boers from getting warning. There are two or three incidents that confirm what I have suggested. One of the first remonstrances against the expedition was that of the commandant of the Marigo district, to which Dr. Jameson replied that he was going to assist the residents of the Rand in their demand for justice. Do you think if he was going to protect Johannesburg against the desperadoes that he would have said so? From whom, and from whom alone, could they demand that justice but from the government of the Transvaal? Again, before a shot was fired, when warned on behalf of Her Majesty's government against this violation of Transvaal territory, and ordered back, the leader and organizer of the expedition has an opportunity of stating that he is only going to protect life and property and keep the peace at Johannesburg, and his reply to the bearer of the message is: "Tell your superior that his orders will be attended to." It is impossible to suppose that such an answer would have been sent by Dr. Jameson, if the case had been as my learned friends suggest. So with regard to the answer to the message from Sir Jacobus de Wet. The afternoon before he shelled the Queen battery he knew that there was no fighting in Johannesburg, and if the suggestion of Sir Edward Clarke was right his duty was clear. He should have admitted: 'I have made a mistake' and [-288-] marched back. It might be humiliating, but it would have shown that the story, as told in this court was the true one. But, instead, he fires upon the Boers' entrenchments before any shots were fired from there."
The jury were then reminded of the stores provided, of which Dr. Jameson was cognizant, of the perfect understanding between him, Major White, Col. Willoughby, Major Coventry and Col. Grey, and the Attorney-General said finally:
"My duty is to ask you to come to the conclusion that they are guilty. It is my duty to point out what the consequences will be. If you feel that there is something other than the causes, reason's and objects which I have indicated to you, which are at the bottom of the expedition, and, if you reconcile them as being inconsistent with the Foreign Enlistment Act, then I join with my learned friend in saying it is your duty to acquit these men. The responsibility of making out the charges rests with the Crown. I caution you against adopting any excuses for the illegal action put forward for the defendants. I think it is not difficult to anticipate the terrible consequences that may be brought about and involved in an action of this kind. Here are men holding the highest positions in this country, taking part in and employing men of the Chartered Company in this expedition, and I believe no man can exaggerate the evils that may happen. If, however, you can find any excuses consistent with the defendants not having broken the law, you must give them the benefit of it in the interests of peace and justice, but if you only draw the inferences I am bound to point out to you, you will not mistake for one single moment what is your duty."
The court adjourned when the Attorney-General had concluded, with the understanding that the following day would see the conclusion of the final act of the Transvaal [-289-] drama, so far as it came within the jurisdiction of that court.
Fortunately, the heat had moderated and Tuesday, July 28th, the closing day of the great trial, dawned cool and cloudless. The interest was intensified, if possible, but there was a general feeling of relief that the end was at hand. The court was to sit at half past ten, and an hour before this the doors of the court room were unlocked and the waiting crowds poured in more eager than ever to get their places. The Lord Chief Justice had hitherto faced the counsel; on this occasion he turned his chair and sat confronting the jury, whom he addressed exclusively, as if there were no other persons present. The closest attention was given when he began to speak, and it was uninterrupted during the six hours which he occupied in his tremendous summing up. The rustling of a dress, the creaking shoes of the newspaper reporters coming and going, or a stifled cough, seemed terribly exaggerated. Fortunately the Lord Chief Justice was neither petulant nor nervous, and these slight sounds did not disturb him.
In his introduction he said that, from the nature of the case, the responsibility of the Judges was greater, even than that of the jury, many grave points of law being involved which it devolved upon them to interpret. It was a criminal case.
"But," he exclaimed with strong emphasis, pausing to be sure that he commanded the entire attention of the twelve men before him, "if the law had been violated, the law shall also be vindicated. In most criminal cases," he continued, "the consequences of the criminal offense usually ends with the facts and with the direct consequences of the acts which constitute the crime. But in offenses of this kind, unhappily that is cot so. The commission of such a crime may entail consequences, the end of which no one can foresee. As in all criminal cases, it is [-290-] for the prosecution to establish the charge by evidence which will bring home to the understanding of the jury the conviction of guilt. If, after considering the evidence and giving weight and effect to the direction of the Judge or Judges who try the point of law, doubt remains in the mind of the jury, it is not a matter of grace on the part of the jury, but it is the right of the persons charged that the jury should give effect to that doubt. But it must not be a doubt conjured up; it must be a doubt such as would effect you in any important concern in life. It must be a doubt which reasonably and naturally and honestly presents itself to your minds."
He then described the men indicated; Leander Starr Jameson, Chief Magistrate in Mashonaland, in September, 1891, Administrator of the British South Africa Company, receiving his commission as resident commissioner for the territories of Ikanning and Montsioa in 1895; Major Willoughby of the Royal Horse Guard, seconded for the service in the British South Africa police in May, 1890; Robert White, a Captain of the Royal Welsh Fusileers, seconded in 1894 for service in the volunteer force of British South Africa, and in September appointed a magistrate for the Salisbury district- a servant of the Crown appointed with the approval of the Queen; Raleigh Grey, the Hon. Frederick White, the Hon. Charles John Coventry, parties with the others "to the preparing in the Queen's dominions of a military expedition against a friendly state, within the meaning of the act of 1870."
In the most solemn manner he reviewed the disaster that had ensued, the loss of twenty lives, the wounding of many men, the political complications that had arisen amounting almost to open hostility with one of the great powers and the end had not yet been reached. The character of the expedition was fully analyzed:
"It was an expedition of trained troops," said his Lord-[-291-]ship, "fully equipped and disciplined, officered by military men all of whom had the honor of holding the Queen's commission. It had ammunition, was accompanied by Maxim guns, ·and other engines of destruction and marched as an army in military order. I think, therefore," he continued, "so far, there is no possible room for doubt, as I have described the character of the expedition. The essential point, and the point to which the able arguments of able counsel have been addressed to you is: was it an expedition prepared in order to proceed against the dominions of a friendly state - that state being called the South African Republic? Again, you can have no doubt that the marching into the Transvaal was an act which violated the peace of that friendly state. Was it a peaceable march into that friendly state? Was it intended that, if the march was resisted it would meet the resistance by force? We know that it did so. Was it so intended? There were scouts with it, an advance guard, and flanking parties, and does not all this show that force was in contemplation and measures were taken to resist force by force? So far, these are matters in which you must form your own judgment; but I have again, as always, with the concurrence of my learned friends, to give you specific directions on the point of law as to what is a military expedition within the meaning of the Act. Take the fact of the case with this definition: I direct you, in point of law, that an expedition is not less an expedition against the dominion of a friendly state if it was not aimed at overthrowing the government, or if it was prompted by philanthropic and humane motives. If the expedition was designed to enter the Transvaal with the intention, either by a show of force, or by action interfering with the Transvaal laws, or the administration of those laws, to substitute for any class in the country others by force or a show of force; or, if it was intended to join with others [-292-] in or outside the South African Republic in overthrowing the government in order to get a change of the laws, it was an expedition against the dominions of a friendly state. If these things were done by the authority of the Queen, or by the authority of any other sovereign power," he exclaimed, raising his voice and striking the desk with his clenched hand, "it would be an act of war, and if done by unauthorized subjects of the Queen it would be an illegal and filibustering raid."
Then, from a great heap of documents many pages in thickness, he read numberless extracts relating to the charter of the South Africa Company. Upon the delicate point of protectorates he said with much earnestness:
"Protectorates vary, unfortunately. There are instances of very ancient protectorates which amount to no more than this: That a powerful state says: 'This state which adjoins me and in whose welfare I am interested is under my wing. * * * .' Such an arrangement leaves the protected state untouched with complete and absolute internal autonomy. Another, and a most common feature of these protectorates, is a prohibition which prevents the so-called protected state from entering into treaties with other states without the authority of the protecting state. That is the case in the relations of Great Britain toward the South African Republic. The Republic is not bound to enter into relations with any other state without the assent of the Queen, but its complete and independent autonomy is in no way interfered with or crippled. The story is too recent, perhaps, to justify us in referring to it as a notorious record; but we know enough of the history of dealings with territories to know that this territory differs essentially from those to which I have been referring."
His opinion was, that the legal attitude of Great Britain toward the Transvaal had intensified the crime of the de-[-293-]fendants, the South African Republic having been attacked by the subjects of that sovereign from which it had a right to expect not only friendship but protection. The evidence was then laboriously reviewed with orders in council, charts, letters and cipher telegrams. The fact of secrecy, the cutting of telegraph wires and the fore--thought that had been shown in the management of all the preliminary arrangements were pronounced suspicious.
In criticizing the ostensible motive for the expedition the Lord Chief Justice said scathingly:
"How absurd-how mean - but I am loath to use that word in this place - how absurd," reverting to the first term he had employed, "to make this suggestion of going to the relief of women and children." He said finally:
"I have now to put to you certain definite questions."
At this point Sir Edward Clarke arose and said:
"My Lord, will you hear my objection now?"
He was informed rather sharply by his Lordship that no objection had been taken, and he intended to direct the jury that they might answer the questions and return a general verdict. Sir Edward again endeavored to speak, but Lord Russell again reminded him that he could permit no discussion at that time. He then informed the jury that he had prepared the questions which he requested them to answer, at the same time informing them very clearly that they were at liberty to refuse and that if they declined to answer them, no power could force them to do so against their will. They were also told that a precedent existed for such a course and it was cited.
The questions were:
(1) Were the defendants, or any and which of them, engaged in the preparation of a military expedition to proceed, and with the intention that it should proceed, against a friendly state-the South African Republic?
(2) Did the defendants, or any and which of them, [-294-] assist in the preparation of such an expedition, or aid, abet, counsel or procure such preparation?
(3) Were the defendants, or any and which of them, employed in any capacity in such expedition?
The same questions concerning Pitsani Potlugo were also put, and the jurors were told, that if they decided all were engaged in such an expedition that the answer should be "all," if none, the answer should be "none," and, if not all, those who were participants should be named.
The jury were informed, further, that if they agreed to answer the questions which were read to them, they were to write after each question, either "yes" or "no," according to their decision.
The foreman, a pale, slender man with dark hair and mustache, rose in his place and asked:
"Suppose we do answer them in this way, My Lord, is the alternative a verdict of guilty or not guilty ?"
He was informed that in the case of refusal to answer, a direct verdict of guilty or not guilty must be rendered as an alternative. An officer of the court then took them to a place where they should be "locked up without fire, light, food or drink until they agreed upon a verdict," and they were at once conducted from the court room.
It was twenty-five minutes past four; the defendants also went out, Dr. Jameson with them; he had sat much of the time throughout the day with his face buried in his hands, apparently exhausted, his former depression having returned, as the hours wore on.
A loud buzz of conversation immediately broke forth which continued with animation for an hour; no one but the Lord Chief Justice, the two Associate Justices, the counsel, the defendants and a few of their personal friends left the court room. The suppressed excitement was intense and asserted itself in the nervous manner, the alert-[-295-]ness, the start at every movement about the door, on the part of those who remained waiting. At last there was a faint tinkle of a bell, far off, and every voice was instantly hushed. In a few moments the Lord Chief Justice, Justice Hawkins and Justice Pollock returned, then the defendants, and last the jurors. Several of the jurors were smiling, but their expression was a little anxious, though they appeared relieved that their difficult duty was finished and seemed satisfied with whatever verdict they were prepared to render.
The defendants looked at them steadily, but with some apprehension, Coventry for the first time being pale and anxious. He had at this stage of the trial ceased to find the proceedings amusing and Dr. Jameson, himself, was scarcely more downcast and dejected.
When all were seated, in the midst of death-like silence, the Master of the Rolls asked the foreman:
"Are you agreed upon a verdict?"
The foreman, standing, replied distinctly: "We are," an affirmative which it was shown, presently, was hardly justified. A slip of paper was then handed the Lord Chief Justice with the answers to the three questions which he had put to them. These answers, which he read silently, proved to be in the affirmative, the vital admission being made that "the Queen's sovereignty did extend over Pitsani and Mafeking." The Lord Chief Justice announced firmly that this "constituted a verdict of guilty." The foreman then rose and said with some reluctance:
"My Lord, we have answered your questions categorically, but we wish to add a rider - the jury consider that the state of affairs in Johannesburg presented great provocation."
"That is a verdict of guilty," repeated the Lord Chief Justice sternly, with increased emphasis, disregarding the rider.
[-296-] The foreman, as if he rather liked the word, insisted that "His Lordship's questions had been answered categorically."
While this discussion was going on Sir Edward Clarke rose rather inopportunely and began:
"My Lord, I wish to say-"
Already nettled by the indecision of the jury, the Lord Chief Justice replied with severity:
"I cannot at this moment allow any interposition."
"Surely, My Lord-" Sir Edward persisted; but he was again peremptorily silenced by the Lord Chief Justice, who said:
"At this moment I am addressing the jury, and I cannot allow it." Then he turned to the jurors and said authoritatively:
"Gentlemen, with these findings I direct you to find a verdict of guilty against all these defendants."
During this interval the increased nervousness and apprehension of the defendants was very manifest. In this interval, too, was displayed that trait of the English character which is so marked and, in the face of existing social customs and distinctions, so difficult to comprehend. While showing the utmost respect to the high official whom he was addressing, the foreman, an ordinary British householder of ordinary position and intelligence, though perfectly aware of the dissatisfaction of the Lord Chief Justice, replied with great firmness:
"There is one objection to that, My Lord. We have answered your words categorically" - using the term for the third time - "but we do not agree absolutely upon a verdict of guilty or not guilty."
The eyes of the Lord Chief Justice kindled, and his voice which had never once faltered from the beginning to the close of his six hours' speech, trembled with indignation. He said in tones that brooked no denial:
[-297-] "This is a most unhappy state of things, gentlemen. If there are any of you who differ from the rest, you ought to consider the point. These questions, answered as they are, amount to a verdict of guilty, and nothing else. The answers are capable of no other construction. Therefore, I direct you - and I direct my observations particularly to those who may disagree with the rest - that you ought to return in accordance with these findings a verdict against the defendants."
The jury thus unmistakably instructed whispered together a few seconds and the foreman rose and said obediently:
"We are unanimous in returning a verdict of guilty."
It was a critical moment, and for a brief instant, it seemed as though justice would miscarry, and the whole laborious and painful business must be gone over again; but the unyielding will of the Lord Chief Justice prevailed.
His procedure in no way resembled coercion; it was simply a demand for a verdict based upon facts, all of which had been carefully and plainly laid before the jury; the doubtful aspects had been clearly explained and simplified, both by the Attorney-General and by the Lord Chief Justice, himself, in his summing up.
The verdict having been thus rendered with reluctance and delay, Sir Edward Clarke was permitted to give notice that he would make a motion for the arrest of judgment until he could enter a motion for a new trial. This was granted and Monday was fixed as the day of hearing.
The Lord Chief Justice, with the Associate Justices, then retired a second time, sending in a messenger presently for a slip of paper that had been forgotten and left upon his desk. When they returned, the court rising with the usual formality until the Justices were seated, Sir Edward Clarke again asked to be heard, and said that in [-298-] the interval the defendants had decided that the arrest of judgment must not be proceeded with, and .that they were prepared to accept the sentence of the court without demur.
This decision rendered at that moment had the same theatrical effect which Dr. Jameson's avowal of personal responsibility for the raid had produced; an effect which, either studied or involuntary, had seemed conspicuous in the attitude of the chief defendant throughout the proceedings. There was an impulse of subdued applause which in that solemn place seemed a shocking breach of decorum and was instantly silenced.
The defendants were then ordered to stand, and, for the first time, were addressed as "prisoners." While the Lord Chief Justice's remarks were severe, they were not ill-tempered. He spoke with great gravity reminding them of their high social position and the official responsibility which they had betrayed.
Dr. Jameson was then sentenced to fifteen months imprisonment without hard labor; Sir John Willoughby to ten months; Major White, Col. White, Col. Grey and Major Coventry five months each without hard labor.
The men were very pale, quiet and self-possessed, though very serious. The term "prisoners," addressed to them by the Lord Chief Justice for the first time, seemed to have wakened them to a consciousness of their position, men no longer attempting to justify their acts, but, after a fair and honest trial, condemned and held responsible for their defiance of the law.
It is, of course, the merest conjecture, but it seemed almost certain that the decision of the men to accept the sentence of the court had mitigated its severity. As soon as Sir Edward Clarke announced the fact that the motion for an appeal was withdrawn and had sat down, the Lord Chief Justice conferred briefly and inaudibly with [-299-] the Associate Justices and then passed his pen through certain words written upon the slip of paper lying under his hand, after which the sentence was immediately pronounced.
It was followed by a stillness that continued for several seconds after the Lord Chief Justice ceased to speak; then the people breathed again, and the great trial was over.
The men were conducted to the prison without delay. In the eyes of the rabble, and of multitudes who were not rabble, they were heroes to be applauded to the last. As they drove away they were followed by cries of "God bless you - God bless you Dr. Jim," and they were regarded, not as criminals, but as heroes suffering martyrdom for their patriotism.
The Lord Chief Justice was warmly commended by the English press and by the more intelligent and disinterested people of all classes. The sentence and punishment, however, seemed strangely inadequate when the magnitude of their offense and its terrible consequences were borne in mind; a friendly territory had been invaded by an armed force; a people with whom closer relations were the only means of bringing about reforms which Dr. Jameson desired, had been alienated, and hostility aroused which would survive for generations; twenty lives had been lost, the government had been notified that heavy indemnity would be demanded; a native uprising had resulted, in which many lives and much property were destroyed, owing to the distraction of the public mind and the withdrawal of troops from territory where their presence was required. For all this, a sentence of fifteen months without hard labor to the leader, and seven months to his confederates would. have been merely a nominal sentence, even had it been carried into effect. But Captain Coventry, who was deprived of his [-300-] commission - a penalty in which the others shared - was pardoned almost immediately by the Home Office. The others, having been sentenced simply to imprisonment without hard labor, were not required to clean their cells, or wear prison garb; they were permitted to receive their friends by whom they were supplied with many comforts and luxuries, and Dr. Jameson spent much of the time writing and reading. He was unquestionably in ill health, but he had so strenuously expressed his desire to bear the entire burden of responsibility, including whatever penalty that the court might see fit to inflict, that it was a little disappointing, even to his admirers, that he, too, availed himself of the clemency of the Home Office. He was sentenced July 28th, released from Holloway Jail Dec. 2d, having been in prison less than five months, and returned to South Africa. There were apparent grounds for the belief that, for once, influence in high places had interfered with the administration of the law, or that the law itself had been strangely ineffectual.