"Sept. 27, 1882.
"I wrote to you about ten days ago, stating my intention of engaging competent English counsel for Arabi Pasha and the other chief Egyptian prisoners in case they should be brought to trial, and of going myself to Cairo to procure evidence for them and watch the proceedings; and I begged you to give me early notice of any decision that might be come to regarding them.
"Your reply, through Mr. Hamilton, though giving me no assurance that English counsel would be allowed seemed to suggest that my proposal would be considered; and I accordingly retained, provisionally, a barrister of eminence to act for the prisoners, should it be decided they should be thus defended. In view also of the legal necessity of gaining the prisoners' consent to the arrangement, I wrote, under cover to Sir Edward Malet, to Arabi Pasha, begging his authorization of my thus defending him, a letter to which I have as yet received no answer; nor have I received any further communication from yourself or from Lord Granville, to whom you informed me the matter would be referred.
"Now, however, I see it reported in the 'Times,' from Cairo, that a Military Court to try all offenders will be named no later than to-morrow, the paragraph being as follows:
"'The Military Court to try all offenders will be named tomorrow. The Khedive, Sherif, and Riaz all insist strongly on the absolute necessity of the capital punishment of the prime offenders, an opinion from which there are few, if any, dissentients. Sherif, whose gentleness of character is well known, said to me to-day: "It is not because I have a feeling of spite against any of them, but because it is absolutely necessary for the security of all who wish to live in the country. An English expedition is an excellent thing, but neither you nor we want it repeated every twelve months."'[30]
"If this statement is true it would seem to confirm my worst suspicions as to the foregone decision of the Khedive's advisers to take the prisoners' lives, and to justify all my arguments as to the improbability of their obtaining a fair trial. I therefore venture once more to urge a proper legal defence being granted them, such as I have suggested; and, in any case, to beg that you will relieve me of further doubt and, if it must be so, responsibility in the matter, by stating clearly whether English counsel will be allowed or refused in the case of Arabi Pasha and the chief prisoners, and whether proper facilities can be promised me in Egypt of communicating with the prisoners, and obtaining them competent interpretation.
"In the present state of official feeling at Cairo, it would be manifestly impossible for me, and those I have proposed to take with me, to work effectually for the prisoners without special diplomatic protection and even assistance.
"The urgency of the case must be my excuse with you for begging an immediate answer."
This last letter, however, never reached its destination. Gladstone had left London, and Horace Seymour, his secretary in charge of his correspondence, under cover to whom I had sent it, handed it on, whether by order or not I do not know, to the Foreign Office. "Mr. Gladstone," he explained, "is out of Town, so upon receipt of your letter yesterday I sent the further communication which you addressed to him straight to the Foreign Office.... I did so because he had placed your former letter in Lord Granville's hands, as Hamilton informed you, and also because I gathered from your note that this would meet your wish and save time. I understand that you will shortly receive an official reply from Lord Granville conveying to you the view of the Government on the matters to which you refer." Gladstone therefore, had shifted his responsibility of saying "yes" or "no" on to Granville, and Granville being of course also out of town it was left for the Foreign Office clerks to deal with according to their ways. In spite of Seymour's promise that the view of the Government would shortly be conveyed to me, all the answer I received was one signed "Julian Pauncefote," stating that Mr. Gladstone had referred my two letters of the 19th and 27th to Lord Granville, and that Lord Granville regretted that he did not feel justified in entering into correspondence with me on the subject. It was thus that Gladstone, who had made up his mind that Arabi should be executed no less than had the Foreign Office, finally evaded the responsibility with which I had sought to bind him. I give the incident in detail as an illustration of official craft no less than as one of historical importance.
This "Pauncefote" reply decided us to waste no more time. In consultation with Button and with Lord De la Warr, who had come to London and had been working to get an answer from Lord Granville on independent lines, and who now offered to share with me the costs of the trial if we could secure one (a promise which I may note Lord De la Warr failed to redeem), it was agreed that we should telegraph at once to Broadley at Tunis to hold himself in readiness to proceed to Egypt, and that in the meanwhile we should send out to Cairo by that very night's mail the first briefless barrister we could lay our hands on as Broadley's junior till his arrival, and be on the spot to act as circumstances should suggest. Lord Granville had not agreed, nor had he at that time the least intention of agreeing, to the appearance of English counsel on behalf of the prisoners. But the "Times," as we have seen, had already committed the Government to a statement that Arabi was not to be executed without its consent, and that he was to be defended by efficient counsel; and this they had not the face publicly to disavow. And now Button's influence was so great with Chenery that he was confident he could again force Lord Granville's hand in the matter of English counsel through the insistence of the "Times" on a fair trial.
All that day, therefore, we searched the Inns of Court, which were almost empty, it being holiday time, and it was only at the last moment that we were fortunate enough to light upon the man we wanted. This was Mark Napier, than whom we could not have found a better agent for our purpose, a resourceful and determined fighter with a good knowledge of the law and one difficult to rebuff. He had the immense advantage, too, through his being the son of a former British Ambassador, of understanding the common usages and ways of diplomacy as also of speaking French fluently, a very necessary qualification at Cairo. Having agreed to go he received our short instructions, which were that he was to go straight to Malet and say that he had arrived as Arabi's counsel, and insist on seeing his client. This was all he could hope at present to achieve, and if he could do this he would do much. If Malet should refuse he was to protest and take advantage of every opening given him to emphasize the refusal. Above all he was to keep us constantly informed by telegram of what was going on, while we on our side would fight the battle no less energetically at the Foreign Office and in the Press. Mark, as I have said, had the great advantage of having had a diplomatic training and so could not be imposed upon by the prestige and mystery with which diplomacy is invested for outsiders, and which gives it so much of its strength. We could not possibly have lit upon a better man. He started, as proposed, that night by the Brindisi mail, taking with him a cipher code and two or three letters of introduction. That, with a hand-bag, was all his luggage.
As to myself, De la Warr, who knew the temper of the Foreign Office and their personal rage against me, was very insistent that I should not go to Cairo and to this I assented. At Cairo I should have been only watched by spies, possibly arrested and sent home, while here I could continue far more effectively the Press campaign which, of course, could only really win our battle. Button that very night managed a new master-stroke in the "Times." De la Warr had succeeded in getting from Granville an assurance that all reasonable opportunities would be given by the Khedive for the defence. This assurance was of course illusory as far as a really fair trial went, as the only legal assistance procurable at the time by the prisoners at Cairo was that of the various Levantine lawyers who practised in the international Courts, and these could be no better depended upon than were the terror-stricken native lawyers themselves to serve their clients honestly by telling the whole truth, though a defence of this perfunctory kind would be sufficient to serve our Government's purpose of being able, without risk of a conflict with English popular opinion, to ratify the intended sentences of death. It was intended to have the trial in the Egyptian Court over in a couple of days, and having proved "rebellion," to proceed at once to execution; and English counsel would, no doubt, have been ruled out of the proceedings as a preposterous intervention of foreigners with no legal status in the country.
Granville's words to De la Warr had been no more than this: "I have no reason to doubt that the Khedive, with whom the proper authority rests, will give all reasonable opportunities for Arabi's defence which may not involve any extraordinary or unnecessary delay, and it devolves on the prisoners and their friends to take such measures as they may think fit on their own responsibility." This Button cleverly reproduced next morning in the "Times" as follows: "Lord Granville has written that every reasonable facility will be afforded the prisoners in Egypt and their friends for obtaining counsel for their defence. Mr. Broadley has therefore been telegraphed to to go at once to Cairo." It is clear from Lord Granville's angry expostulation with Lord De la Warr (see Blue Book) how little intention he had of having his words thus interpreted. But, once published in the "Times," he could not with any decency back out of the position; and thus by a very simple device we again forced his hand and this time on a point which, in the event, gained for us the whole battle.[31]
Nevertheless, we were very nearly being tricked out of our fair trial after all, and a singularly ugly circumstance of the position in our eyes was the sudden reappearance, just then at Cairo, of Colvin, the man of all others most interested, after the Khedive, in preventing publicity. The Foreign Office object clearly now was to hurry on the trial, so as to get it over before Broadley should have time to arrive, for Tunis was and still is without any direct communication with Egypt, and it was probable that ten days would elapse before he could be there. Of Napier's sending they had no knowledge. Orders, therefore, were at once given as a first step that Arabi should be transferred from the safe keeping of the British Army to the ill-custody of the Khedivial police, where communication with the outside world would be effectually barred for him without the English Government incurring thereby any odium. This was done on the 4th of October, two days before Napier's arrival; and the trial was fixed for the 14th, while Broadley did not succeed in reaching Cairo till the 18th. Nothing but Napier's unexpected appearance at the English Agency disarranged the concerted plan.
A further step taken to hasten the end and make an English defence difficult was to select the French criminal military code for use in the court martial, a form which under an unscrupulous government gives great advantages to the prosecution. According to it a full interrogatory of prisoner and witnesses is permitted before these have seen counsel and they are thus easily intimidated, if they take a courageous attitude, from repeating their evidence at the trial. Thus both Arabi and others of his fellow prisoners were during the interval between the interrogatory and the day fixed for trial secretly visited by a number of the Khedive's eunuchs, who brutally assaulted and ill-treated them in their cells with a view of "breaking their spirit." Lastly, the Egyptian Government were permitted to declare that no counsel should be allowed to plead except in Arabic, thus excluding those we were sending to the prisoners' help. These particulars were telegraphed me by Napier soon after his arrival and made us anxious.
All that the English Government had done in some measure to protect the prisoners from the Khedive's unregulated violence was to appoint two Englishmen who had a knowledge of Arabic to be present at the proceedings. These by a great stroke of good fortune were both honest and humane men, and, as it happened, old friends of my own, Sir Charles Wilson, whom I had travelled with in 1881 from Aleppo to Smyrna (not to be confounded with Sir C. Rivers Wilson), and Ardern Beaman, whom I had known at Damascus, and who now was Malet's official interpreter at the Agency. Both these men had been favourably impressed by Arabi's dignified bearing during the days of his detention as English prisoner of war, and now willingly gave Napier what little private help they could.
With Malet himself Napier succeeded at least so far as to get his status and that of the solicitor Eve, whom he had fortunately found at Cairo, recognized as legal representatives of Arabi's friends, though he could not obtain from him any definite promise or more than a vague assurance that English counsel would be allowed to represent Arabi himself. His applications to see his client were constantly put off by Malet by referring him to Riaz Pasha, the Khedivial Minister of the Interior, who as constantly refused, and in the meanwhile the trial was being pushed forward with all haste, so that it was clear to Napier that he was being played with and that the trial would be over before the question of the admissibility of English counsel had been plainly decided.