MR. JUSTICE BARRY ACTING ADMINISTRATOR.—ARRIVAL OF MAJOR
LANYON.—PRINCIPAL EVENTS OF HIS ADMINISTRATION.—ANNEXATION BILL PASSED
CAPE HOUSE OF ASSEMBLY.—CRIMINAL PROSECUTION OF THE EDITOR OF THE
“INDEPENDENT.”—ATTORNEY GENERAL SHIPPARD’S ARGUMENT AND
ORATORY.—ACQUITTAL OF ACCUSED.—GREAT REJOICINGS.—ACTION AGAINST
“INDEPENDENT.”—APOLOGY.
After the conclusion of the Southey _régime_, Mr. J. D. Barry, the
recorder of the province, held the reins of government for a time,
pending the arrival of Major Lanyon, an officer who had distinguished
himself on Sir Garnet Wolseley’s staff in Ashantee.
The posts of lieutenant governor and colonial secretary were abolished,
and Major Lanyon as administrator, with Mr. Francis Villiers as private
secretary, conducted the affairs of the government. The principal
matters of interest during his day in Griqualand West were the passing
of the annexation bill through the Cape house of assembly, the
disturbances of the natives, necessitating the expedition to Phokwane,
the quelling of the Griqua revolt, the trial of the editor of the
_Independent_ and the passing of Mr. Geo. Bottomley’s bill amending the
liquor ordinance.
There can be no doubt that the restless character of the diggers of the
diamond fields which culminated in the rising on April 12th, 1875, had a
good deal to do with the desire of the home government to get rid of the
bother, annoyance and responsibility of governing so small, and at the
same time so troublesome, a crown colony as Griqualand West. With that
object a bill, of course at the instigation of the imperial authorities,
was brought before the Cape assembly in June 1877, when a select
committee was appointed, of which Mr. Richard Southey, formerly
lieutenant governor of this territory, was appointed chairman, which had
“instructions to restrict its inquiry to the number and description of
the population, the extent and value of land, and the cultivation and
other resources, the revenue and expenditure and general financial
condition of the province.”
Major W. O. Lanyon, C. M. G., the administrator, went to Capetown and
gave evidence before this committee; and although of course wishing to
promote the desires of the imperial government, his answers to all the
questions asked him evidently tended to make good what was generally
understood to be his opinion, viz. that annexation was a doubtful
measure at best, and that a province with mines of undisputed richness,
whose only debts were £90,000 to the Free State, £16,000 to the imperial
government for the expense of troops sent up there to quell the
disturbances in 1875, and about £16,000 to the Standard Bank, was quite
justified in retaining its own individuality. However, as will be seen
in the sequel “Molteno (premier of the Cape Colony at the time)
incorporated the major.”[61] The bill to annex Griqualand West to the
Cape Colony passed the Cape assembly during the same session and
received the queen’s assent in the following year, but became, so far as
the inhabitants of the diamond fields were concerned, almost forgotten
until the visit of Messrs. Sprigg and Upington in October, 1879, when
Mr. J. Rose Innes, C. M. G., was acting administrator.
[Illustration:
ANNEXATION.—MELANCHOLY END OF GRIQUALAND WEST. MOLTENO TO ENCORPORATE
THE MAJOR.
]
“Affairs of State” did not run altogether smoothly in Griqualand West.
When Major Lanyon returned he found that the late Mr. Advocate Davison,
member for Barkly, had resigned his seat in the Griqualand West council
and left for England, and there were but three elected members in
council when he introduced his annexation motion, to which he desired to
gain their assent. Mr. Advocate Halkett, the senior member for
Kimberley, and Mr. R. W. Murray, the member for Hay, contended that
before such a vastly important change was made as the annexation of the
province to the Cape Colony, which involved the destruction of its
constitution and government, there ought to be a full council to discuss
the submitted resolution, and they therefore demanded that the seat for
Barkly should be filled up. This the administrator refused to do, or
rather implied that he had contemplated doing so, but had neglected it.
He evidently was determined to get his motion carried, while the members
for Kimberley and Hay were equally determined that if he should do so,
it would be by his own casting vote alone; and knowing that they were
masters of the situation, they bowed themselves out with the
announcement that they would not return until all the constituencies
were represented. They kept their word. There was no election for Barkly
and no more sittings of that council, which was shortly afterward
dissolved, and it was not until some months had passed that a new one
was elected. There were three councils in all. The names of the first
members have been before given; the elected members of the second
council, which was elected after the arrival of Major Lanyon, were
Messrs. Tucker and Gilfillan (Kimberley), Davison (Barkly), and Murray
(Hay). A vacancy occurred through Mr. Henry Tucker becoming
disqualified, and the late Mr. Halkett was elected in his place. The
next council, which was elected on Nov. 30th, 1878, consisted of myself
and Mr. Bottomley (Kimberley), Mr. J. Paddon (Barkly), and Mr. J. Orpen
(Hay).
An act of the colonial legislature which is not put into force within
three years of its having been assented to at home becomes a dead
letter, and it was not until this period had nearly expired that the
concluding scene was put on the stage of the little theatre of the
Griqualand West council, under the management of Mr. J. Rose Innes, but
this I will describe later on.
There is no hiding the fact that during Major Lanyon’s administratorship
there was a good deal of hostile feeling shown against him in some
quarters, which was fostered by many who held the opinion that the major
was inclined to be more of a martinet than if he had had the training of
an officer in a regiment other than one of those in which Charles
Lever’s Major Monsoon would have found congenial companionship, and in
politics at least his peculiar idiosyncrasies, as displayed toward
opponents, would have caused the late Dr. Johnson, had he known the
major, to admire his talents as a “good hater,” although at the same
time he would not have found him wanting in that opposite quality which
is said to naturally follow. I have often heard Major Lanyon say:
“Gentlemen, if I have ever erred, it has been the fault of the head, not
of the heart,” and I may here state that the gallant major’s abilities,
which were of no mean order, and his honesty of purpose, always received
due recognition. The want of tact of this administration, and the
unfortunate personal leaning of its chief, were strikingly exemplified
by a case in point, in the prosecution of the editor of the
_Independent_ for an alleged criminal libel published in the issue of
that paper of Nov. 16th, 1876. At that time the trade in diamonds with
roguish natives employed by diggers which unscrupulous persons carried
on, though they must have well known these cheaply acquired gems to have
been stolen, was, as it still is, the plague and disgrace of the
community. Proclamations and ordinances of the severest character were
leveled against it, but without appreciable effect. A few of the lesser
culprits were caught, imprisoned, and in some cases flogged, but still
the illicit trade (before fully described) flourished, and this too
although the laws had been rendered so stringent and complex as to prove
a trap for the innocent but unwary.
Out of the confused state of these laws two _causes célebres_ arose,
which excited much interest among the diggers and showed the continued
lack of common sense displayed by the government in their policy and
modes of procedure. In the first instance an old digger, who had made
himself prominent in the prosecution of diamond thieves and had also
materially assisted in the overthrow and subsequent recall of the
Southey-Currey faction, had in a moment of forgetfulness purchased a
small diamond without having a dealer’s license and without being able
to produce his special permit to the magistrate as by law required.
There was no pretence that the diamond had been stolen or improperly
obtained, but nevertheless the unlucky purchaser of this “precious”
stone was sentenced, if I remember rightly, to twelve months’
imprisonment without the option of a fine. Granting, for the sake of
argument, that the punishment was technically commensurate with the
offense, the ardor exhibited by the authorities in the original pursuit
of a political foe, to the minds of the independent diggers, was
anything but satisfactory. That the man had no license to purchase
diamonds, and that his permit, if he ever had one, had been lost or
mislaid was admitted, but when the prosecution sought to establish the
fact of there having been no permit given by the production of a list
kept in the Kimberley resident magistrate’s office, and manifestly a
most careless one, in which there was no mention of the name of the
accused, his attorney very properly if not conclusively contended that
this evidence was not sufficiently formal upon which to found a
conviction for a technical fault involving extremely severe punishment.
He argued moreover that if one magistrate’s list of permits was
produced, those of all other magistrates should be put in evidence also;
that the list in question might be imperfect, and as it was not in the
custody of the buyer, entries might have been confused, altered or
annulled without his knowledge; in short that the rough list of a single
magistrate was not sufficient evidence on which so heavy a punishment
ought to be inflicted on any member of the body politic. A subordinate
official, however, swore “by all his gods” that it was “impossible for a
permit to have been issued to the prisoner without an entry having been
made in his record book,” and upon the strength of that evidence the
accused was accordingly “cast into prison.” But observe the sequel. The
ink was scarcely dry upon the warrant which tore the unhappy culprit
from his wife and family and confined him amidst the vilest criminals,
when lo! a whisper went abroad that his excellency himself had also been
purchasing diamonds without any license and without any record of the
necessary permit. What was the inference? Mindful of the positive manner
in which the keeper of the records had gravely sworn to the
impossibility of any permits having been issued without an entry in the
proper book, the editor of the _Independent_ newspaper, which had taken
up a position of uncompromising hostility toward diamond thieves,
published in the public interest certain queries respecting the
anomalous and unpleasant predicament in which the administrator might be
placed. There was no contention that he had been guilty of any _malum in
se_ or of purchasing other than for his own private use and pleasure,
but merely of _malum prohibitum_. The Draconian severity of the law and
the apparent impropriety of the previous conviction was strikingly shown
forth. The article was very aptly headed: “Where is this to end?” and at
the moment it was a question difficult to answer. The administrator,
nevertheless, very promptly set about his reply, and took active steps
against the bold editor who had dared to “come between the wind and his
nobility.”
It was impossible to conjure up any entry in the record of permits, for
the book had been too carefully and publicly examined by hostile critics
for that; but hey! presto! in a very few hours after the newspaper
article had appeared, a notice said to have been inspired by the
government was publicly issued, in which it was triumphantly stated that
the versatile major was after all in possession of a permit which could
be inspected, etc., etc.
Upon reading this the _cognoscenti_ winked knowingly at each other.
After such an astonishing announcement it would only be thought
reasonable that the administrator, upon finding so striking a
confirmation of the force of the argument of the prisoner’s attorney
that the record was not infallible, would have taken some immediate
steps toward a reconsideration and possible mitigation of a sentence
passed under a harsh law.
No such thing happened, however. On the contrary, elated with the
successful experiment of “breaking a butterfly on the wheel” in the
recent prosecution, he at once caused the outspoken editor to be
arrested for a criminal libel upon “his excellency,” the accused being
temporarily liberated upon the modest bail of £6,000! which was at once
found.
A preliminary examination before the magistrate followed, and the editor
was fully committed for trial. It would perhaps not be judicious to
refer too specifically to the adverse opinions which were entertained by
an independent public with regard to this case. Lawyers have or used to
have a saying that “the greater the truth the greater the libel.”
Suffice it to say that public comments were far from flattering to Major
Lanyon and the members of his executive.
When the day of trial arrived excitement was raised to a very high
pitch. The court was crowded to overflowing, and large numbers of the
diggers were anxiously awaiting the result in the market square in front
of the court-house. The administrator was located during the trial in a
private room which adjoined the court, where a _dejeuner à la
fourchette_ and subsequent refreshments were plenteously dispensed to
some chosen supporters of the existing state of things.
The judge wore his severest frown; the government officials hovered
round the precincts of the court, and with bated breath awaited the
verdict, which was to clear their chief’s character from the calumnious
breath of an audacious critic.
But the imprisoned editor saw no reason for apprehension. Fortunately
for him his case had to be decided not by a military dictator, nor yet
by a single judge or magistrate, but by the sound common sense and fair
play of a jury. Mr. Shippard,[62] the acting attorney general, went
heart and soul into the prosecution.
In a labored and somewhat silly harangue he recounted with much unction
the obsolete and barbarous customs of the old Roman emperors in dealing
with those whom they deemed guilty of seditious libel. As he gathered
courage during the delivery of his diatribe, he overcame the natural
hesitancy of his speech and became even eloquent. It is true that the
act which had been attributed to the major was one which, as it had been
contended for the defence in a previous case, did not amount to a
morally criminal charge, and should not be proved or provable by a mere
loosely kept note-book, or punished by imprisonment without option of a
fine; in fact not that the major was guilty, but that the other man was
morally if not legally innocent; further, it was urged that the whole
matter amounted at the most to a mere technical omission of a purely
formal character, which might inadvertently be committed by any usually
law-abiding citizen.
But the engineer did not like to “be hoist with his own petard,” and the
attorney general, with “Gallio-like” unconcern for anything but his
“Dryasdust” antiquities, snorted forth his anathemas against the
offending editor. He introduced into his remarks a plentiful sprinkling
of Roman archæology and referred with ludicrous solemnity to the old
world restrictions upon the freedom of public criticism. He spoke with
grave gusto of the good old times of the Emperor Zeno, when slanderous
accusations against the “purple” were punishable with death. He must
have forgotten that in Zeno’s time offices of state were openly bought
and sold, and life and death had their price.
Did the honorable attorney general wish to apply the whole theory and
practice of the old Roman criminal law to the affairs of our days of
steam power, telegraphs and independent press? It is difficult to say
how far some men will ride their hobbies.
After he had done with Zeno’s time, however, he was compelled to admit
that capital punishment for the offense under consideration had been
“mercifully commuted to a public flogging,” and seemed to imply that
some punishment of that nature would not be inapplicable to the case of
the editor who had spoken so severely of his patron. In this style he
poured forth the vials of his wrath until the amazed crowd of listening
diggers were agape with astonishment at the righteous (and loudly
expressed) indignation of the prosecuting barrister. The audience might
not unreasonably have expected that the next authority to be quoted by
the excited counsel would be the customs and maxims of that “beauteous,
implacable tyrant,” the lamented Nero.
[Illustration]
An amusing incident occurred when the court rose for luncheon. The
editor was of course a prisoner, the responsibility of his sureties
while he was out on bail having ceased upon his appearing and pleading
to the indictment, but the judge, who, it is only fair to state, treated
him with marked courtesy throughout the trial, permitted him to leave
the court _en parole_, as it were, for luncheon.
With the jury it was quite different. The acting attorney general did
not want to let them mix with the outside crowd who had already
expressed _their_ opinion of the proceedings pretty plainly, and
accordingly at his instigation, or at least with his concurrence, the
hapless jurors were locked up _sans ceremonie_ until after luncheon.
Notwithstanding all the perverse ingenuity of the prosecuting counsel,
he could not persuade the jury to convict the prisoner. After a short
deliberation the jury returned a verdict of “not guilty” which was
received with loud acclamations both inside and outside the court, the
delighted diggers carrying off the liberated editor on their shoulders
to celebrate the victory in the “flowing bowl,” while the major,
accompanied by his sympathizers, made a hurried exit from the back of
the court and went home a “sadder and a wiser man.”
The administrator, however, brought a civil action against the
proprietors of the newspaper for libel, laying his damages at £10,000;
but after considerable skirmishing an apology was accepted, and so ended
a most disagreeable affair to all parties concerned. Many squibs and
cartoons were published at the time, the one which drew the greatest
attention being the accompanying (page 298), where Mr. Shippard and an
editor well known in South Africa, formerly a member of the Cape house
of assembly[63], Mr. R. W. Murray, are represented holding a skipping
rope over which the major tumbles.
NOTE.—Sir Wm. Owen Lanyon, R. C. M. G., who had been suffering for
some time from cancer in the throat, died at the Windsor Hotel, New
York, on April 6th, 1887.
[Illustration]