The Transvaal from Within: A Private Record of Public Affairs

by Percy Fitzpatrick

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 'fishing' for evidence and not actually accumulating 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 assiduity. 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 (publishing 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 petition 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 petitions 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 petitions were got up and signed by relatives and near connexions of the President himself.

During this period another petition was presented which is surely without parallel in a civilized state; but it illustrates 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 petition 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 petition bearing the signatures of 20,000 persons was presented; the gentlemen bearing the petition were informed that it could not be received; that they must call again. Having called again and again, the petition 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 Korté and Morice. Mr. De Korté was then threatened with suspension owing to pecuniary embarrassments, 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 attitude, 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.