CHAPTER TWENTY-FOUR
Courts and Contexts: Men and Mindsets
JOHANNESBURG
— 1909 —
You cannot judge a man until you know his whole story.
Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?
All trials, regardless of how well they are focused on the alleged crime and the letter of the law, are set within historical contexts. The pursuit of justice, even when manifestly free of fear or favour, takes place in courts which are themselves part of the theatre of everyday life. Legal processes play themselves out before judges and juries who, no matter how impartial by way of ethical disposition or professional training, are themselves the partial products of the past and the issues of the day. These invisible links between the pursuit of justice, time elapsed and the present are as problematic as they are enduring. Although such deep-seated difficulties never render the exercise of justice futile, they complicate legal processes in countless subtle ways.
In Jack McLoughlin’s case, 14 years separated the shooting at the Red Lion Beer Hall, in 1895, and his trial, in Johannesburg, in 1909. The way in which an intervening decade-and-a-half was to be reconciled with the administration of justice was an issue that could not be avoided. The judge at his trial was aware of the importance of the issue and attempted to ensure that the jury, too, understood what was at stake:
The lapse of time placed both parties at the greatest disadvantage – the Crown in collecting evidence for the prosecution, and the accused in collecting the evidence necessary for himself. The disadvantages told more heavily against the accused, as the Crown could search far and wide for evidence, and the accused had no one to help him. After the lapse of all those years, it was very difficult for him, assuming he had a defence, to collect evidence. The jury should therefore carefully examine every bit of evidence and be satisfied with it before they accepted it or allowed it to influence their minds.1
‘Reasonable doubt’, he cautioned, had to be founded on circumstances and evidence and could not be ‘merely a sentimental doubt or pity for the man who was brought back for trial after all those years’. The judge’s instruction may, however, not have gone far enough. It was a case where the complexities arising from the interval separating the alleged crime and trial were without precedent – and, even today, probably remain without meaningful parallel. There were other, hidden, considerations about context, time and place that the judge was perhaps not at liberty to raise directly but that nevertheless flowed directly from the pivotal issue that he had identified. McLoughlin’s counsel, too, would have been well advised to explore these questions more thoroughly during the course of the trial itself. In order to appreciate what these veiled issues might have been, it is necessary to examine the face of the rapidly mutating state that the defendant faced.
By the time of McLoughlin’s trial in 1909, the area beyond the Vaal River, centred on the economic heartland of the Witwatersrand, had seen four different political dispensations in 10 years and was destined for a fifth. The shootings had occurred in the South African Republic, which had tried to have McLoughlin extradited so that he might stand trial in 1895. In 1900 the Boer republic was conquered by imperial forces and, for a time, administered under martial law. In 1902, as the newly conquered state moved towards civilian rule, a few more desultory enquiries were made as to McLoughlin’s whereabouts in New Zealand.
Military rule was followed by an authoritarian British administration. It was part-appointed, part-elected under the centralising and modernising leadership of Sir (then Lord) Alfred Milner. His highly regulated reconstruction regime lasted five years, from 1900 to 1905. Then, as Britain prepared to hand power back to an elected ‘responsible government’ under General Botha’s Het Volk, in 1906, another unsuccessful attempt was made to extradite McLoughlin. His extradition was eventually only effected in 1909. By that time, the Transvaal Colony was being prepared to be folded into a fifth constitutional dispensation. In 1910, the Transvaal became a province in the newly constituted Union of South Africa. Seen against that backdrop it is easier to appreciate why a colony that was about to become a province, in an extended state with a new jurisdiction, was so keen to have the longstanding matter of Rex vs McLoughlin disposed of expeditiously.
From 1902 to 1910 the Transvaal and more especially the Witwatersrand were in a state of political, economic and social turbulence. A series of internally sanctioned or externally imposed white authorities sought to transform a formerly independent, newly conquered Boer republic with an un-enfranchised black majority into a colony. An industrialising self-governing colony, producing most of the gold needed to underwrite global trade, then had to be incorporated into a larger dominion. That dominion in turn lay within a British Empire controlled by men and women of European descent. Questions about authority, legitimacy and loyalty were the order of the day. Rulers had to wrestle with the problem once posed by Jean-Jacques Rousseau – how to transform strength into right and obedience into duty. Rapid change and ongoing political contestation were exacerbated by underlying economic uncertainties.
When the Rand gold mines re-opened after the South African War, the industry was at once confronted by a challenge from black mineworkers. Africans refused to provide un- or semi-skilled labour at newly reduced wage rates in anything like the numbers considered necessary for continued economic expansion. The resulting impasse was resolved in 1904, when, amidst some opposition, imperial authorities used their global reach to sanction the importation of indentured miners from the Far East. Thousands of Chinese labourers worked at low wages to underwrite the reconstruction of the mining industry. The last of the contracted workers were sent back to China in 1910. But, even so, the depression lasting from 1906 to 1908 exacerbated the anxieties of a white ‘labour aristocracy’ of unionised English miners who feared their replacement by the cheaper labour of urbanising Afrikaners or African migrant workers.2
On 1 May 1907, white miners on the east Rand struck when the management demanded that they supervise the work of three rather than two semi-skilled drillers on each shift. The Transvaal Miners’ Association approved the stoppage and, within days, a ‘general strike’ spread across the length of the Witwatersrand. It was the first in a series of increasingly violent confrontations that took place between mineworkers and the state in 1907, 1913, 1922 and 1946. The government supported the mine owners and on each occasion – led by General JC Smuts, acting in differing capacities – used either departing imperial troops or the new Union Defence Force to defeat the workers.
The 1907 strike pre-dated McLoughlin’s trial, at which he was said to be ‘a miner’ and his principal victim, Stevenson, a ‘riveter’, by less than 36 months. It was not the best of circumstances in which to be cast as a mineworker. The strike had, on more than one occasion, seen white workers use dynamite to advance their cause and the government was forced to call on the imperial garrison to secure the property and lives of non-strikers. A house occupied by three English miners who refused to support the strike was demolished and one man killed when an explosion tore apart premises belonging to a shift boss on 14 June. Two weeks later, on 2 July, an unexploded charge was discovered at the house of an Afrikaner ‘scab’ in Johannesburg, and two weeks after that an explosion at Kilfoil’s Hotel in Boksburg killed two men under circumstances that again pointed directly to white miners.3
White working-class radicalism did not abate readily. On the contrary, several leaders within the labour movement openly advocated the merits of socialism and the need for a more focused parliamentary programme in an expanded state. The constitution and name of the consolidated labour movement – the South African Labour Party – was formally adopted, in November 1909, just three weeks before McLoughlin’s trial.4
Wanted for the murder of a police informer and known for his use of dynamite, McLoughlin found himself back at a juncture where the distinction between the actions of criminals and those of white working-class activists was once more being conflated. Indeed, the political climate was not entirely dissimilar to that which had prevailed between 1888 and 1892. Back then, diggers were being transformed into white workers and antagonism towards the mine owners was sufficiently pronounced for them to utilise dynamite in their struggle. A deteriorating political environment then had assisted him to operate as something akin to a ‘social bandit’. Structural change in the mining industry always blurred criminal and political actions. As a member of the ‘dangerous classes’ posing a radical threat to those who governed the society and owned its gold mines, McLoughlin embodied some of the same problematic proletarian values that capitalists and the state abhorred.
In a volatile political climate which, although still far from revolutionary, was nevertheless tense and unstable, the state’s prosecutors would have been hard-pressed to frame a lesser charge than murder for the Red Lion shootings. In McLoughlin’s lifetime Johannesburg had passed through several moments of political uncertainty. In 1895, Joseph Chamberlain, various regional imperialists, and certain mine owners used the Jameson Raid as a top-down capitalist initiative to encourage criminal and white working-class unrest against a republican government. By 1909, having captured the state, essentially the same constellation of forces was deeply opposed to a challenge from below by white working-class radicals informed by socialist ideals and willing to engage in criminal acts. Change itself was not at issue, it was a constant. What mattered was the nature of the state and who controlled and directed the processes of change in the emerging country. Many citizens, including most of those on jury duty at McLoughlin’s trial, sensed that the rules of the game had somehow changed and that a double standard was being applied. Accelerated economic change complicated the way in which crime and punishment were reconciled and the jurymen in the McLoughlin trial found it impossible to articulate their misgivings with any accuracy.
If the laymen in the jury found it difficult to give clear expression to reservations predicated on changed contexts, the learned judge would have had less trouble and could perhaps have aspired to greater precision. He would certainly have appreciated the altered circumstances and advent of a new order. Indeed, as we will see shortly, his appointment to the Transvaal bench had been predicated, in large part, on his having just such an understanding. But, that said, there may have been other considerations in the case that he might have been unaware of without the aid of skilful counsel for the defence.
The judge may not have appreciated fully how the shooting of Stevenson had been informed by ‘Irish’ notions of opposition to British or imperial rule as played out in nineteenth-century Lancashire’s criminal, immigrant and working-class cultures. Nor may he have understood exactly how those ideas had been imported and incorporated into working-class culture on the Witwatersrand after 1886.5 Throughout the trial the judge, like counsel for the defence, remained strangely unconcerned about questions of culture, ethnic identity and how they might inform the premeditated decision to shoot Stevenson. Likewise, without suitably led evidence, the judge would have found it difficult to appreciate the ways in which a code of masculinity manifested itself in criminal and working-class cultures in what was, in 1895, still in many ways a frontier-like setting.
Alfred Milner, who took over from the military in 1900, was aware that a centralised, imposed British administration would eventually have to make way for more inclusive, elected and representative government. Milner constructed the Transvaal’s new courts and ‘Law Department’ – the ministry of justice – with an eye to the future. He raided the nearest English-speaking enclave for its finest administrative, legal and political talent. As he explained to Prime Minister WP Schreiner of the Cape Colony, in a letter in early 1901:
… if I could I would plunder the Cape even further … I don’t know of anything which can help soften the rigour of the necessary period of autocratic government so much as to get men of unquestioned ability and integrity and South African experience and sympathies into important administrative and judicial posts.6
The written and unwritten rules governing politics and society had changed considerably by 1909, but they were still being implemented by judges acknowledged to be without peer in pre-Union South Africa, by men whose views fell within the parameters set for constructing a society more in keeping with an industrialising capitalist economy and the larger imperial project. Milner’s insistence on a taut administration, however, extended beyond a careful construction of the new bench.
Knowing that the Transvaal towns and countryside required different degrees and types of control, Milner established a bifurcated police force. The South African Constabulary (1900–1908) patrolled the rural areas while the new Transvaal Town Police was given responsibility for serving the Crown prosecution and maintaining law and order along the Witwatersrand.7 Both forces, however, had to be constituted from a standing start. The result was that they lacked sufficient experienced or professionally trained personnel and struggled to operate consistently at the highest levels of proficiency. By 1909, the reputation of the slightly longer-lived Transvaal Town Police force was at an all-time low and the hard-pushed state sorely in need of a few high-profile successes.8
McLoughlin’s trial came onto the roll at a moment when the government, judiciary and police were interacting more closely than at any other time in the recent history of the former Boer republics. After 14 years the accused, who faced charges that would have been difficult to defend himself against in 1895, found himself in the wrong place and at the wrong time. History, most certainly, was not on his side.
* * *
Delays occasioned by the imperial authorities had denied McLoughlin the opportunity of defending himself within the same cultural, legal or political environment in which the shootings had taken place. The jurors at his trial – supposedly drawn from his peers – were not drawn from a cohort that would have easily understood the compelling code of honour and masculinity that had informed his behaviour back in 1895. And the judge at his trial was the product of a colonial border town. He was a man who may have been familiar with the background to military conflict between blacks and whites, but he bore little knowledge of the patterns of underworld or working-class behaviour in a frontier mining settlement.
The challenges facing Jack McLoughlin were therefore not confined to the administrative and legal complexities arising from the need to collect and present evidence after the lapse of so many years. They extended into the underlying mindsets and differing worldviews of the judge and the members of the jury. And, even if judge and jury were more au fait with the original settings in which the shootings had taken place than might reasonably be expected of them, the state was asking much more of them. The state was in search not only of a punishment that fitted the original crime committed 14 years earlier, in 1895. That state, the former republican state, was long since gone. What the new state, increasingly locked into the realities of empire, was also looking for was an outcome that somehow also addressed the turbulent contemporary environment on the Witwatersrand. In 1909, that included an economic climate in which certain members of the white working class were manifesting radical opposition that did not always eschew the use of violence.
It is impossible to know to what extent these subliminal factors had a role to play in the thinking of those who determined McLoughlin’s fate, but it is unlikely that they could have been avoided entirely. The pursuit of justice, through the law, seeks not only to control contemporary behaviour, but to help construct a future – better – society. The past, the present and the future are linked along a seamless spectrum. All trials are set in the history of the period in which they take place, but those where a great lapse in time separates the crime from the hearing obviously demand more attention to ‘historical moment’ than do others.
Moreover, in the case of Jack McLoughlin, neither judge nor jury ever explicitly addressed the fact that the principal responsibility for the delay between the time that the crimes took place and the trial did not lie solely with the defendant, a fugitive from justice. His whereabouts were known within months of the shootings. It was the imperial authorities who at first declined to have him extradited, and who, at a later date, agreed not only to his extradition, but wished to have his trial concluded before the advent of the Union. It is within this troubling context, then, that McLoughlin’s re-entry to the unsettled Witwatersrand has to be considered.
* * *
Mynott and De Beer were relieved to unshackle their prisoner for the last time and see him safely behind bars in Johannesburg. But there was no rest for them; the state’s legal machinery was re-activated the following morning. An identity parade, on 27 July, was the first of five. The last was held on 30 November, hours before the trial commenced.9
Greying and rotund, Jack McLoughlin knew what was at stake in the parades at a time when personal identification trumped any forensic evidence. He defended his interests as best he could. Between 18 and 20 men were lined up in the police courtyard, including several resembling him in age and height, at the prisoner’s insistence. Those assembled stood close together, hands behind backs, so that there was no easy, tell-tale, way of picking him out. Witnesses who had been separated so as to avoid any possibility of collusion either before, or even after the parade, were asked to identify the accused.
Over nine weeks close on two score men and women were called upon, in different combinations, and at varying times, to help identify the man behind the death and mayhem in and around the Red Lion that night in 1895. With the exception of two or three who remained terrified out of their wits by the suspect – including Max/‘Murch’ Goldberg, who had just missed taking a bullet to the head outside the Princess Bar – the majority of witnesses had little difficulty identifying the one-armed man.10
If the unending identity parades did not persuade McLoughlin about the gravity of the situation he was facing, they should have. The seriousness of the state’s intention had been underscored earlier when the Crown – at its own expense – had appointed a criminal attorney, Lewis Levy, to arrange for the defence of the accused on a pro Deo basis. Levy found and instructed a bright young advocate to lead the case for the defence.
Within hours of the first identity parade, news that ‘One-armed Mac’ was back in town started filtering back into criminal networks – where, despite the best efforts of first the military and then the Milner administrations, underworld continuities were as much in evidence as was change. By the time the Preliminary Examination was conducted, in late August, before the same Police Magistrate as had presided in Kruger’s day, NJ van den Bergh, many in the underworld were impatient to catch a glimpse of the man who, in his time, had been a frontier legend. As one local journalist cited in a far-off New Zealand newspaper reported:
The usual unsavoury crowd of Police Court frequenters was augmented to such an extent that it was a difficult matter for even officials to get into ‘A’ Court but a noticeable feature was the presence of many disreputable grey-haired persons – people who probably knew Johannesburg in its earlier and less reputable days, and were, in fact, residents during the period when the tragedy occurred.11
The presence in court of familiar faces in search of free entertainment at a moment that fell between the decline of the music halls and the rise of the cinema, may have been another warning sign for the accused. The city’s past was clearly not buried, perhaps not even past. Even more worrying was the strength of the case laid out by the Crown at the Preliminary Examination. The Magistrate, easily convinced, referred the case to the High Court. The trial, set for the first day of December 1909, would be followed no less avidly than the earlier proceedings. As Lewis Levy studied the trial documents he became increasingly concerned about the fate of a stubborn and untutored client who failed to appreciate how carefully the case for the Crown had been constructed or just how damning the evidence for the prosecution was.
With the exception of just one witness who had since died, the Crown Prosecutor, EW Douglass, assisted by Advocate JW Tindall, had assembled virtually every witness of substance who in one way or another had witnessed the events in and around the shootings. Among the witnesses the Crown would call were a fair number of cab drivers, tailors and prostitutes from the Cape Malay community who knew the one-armed man personally, or those who had been friends or family of the unfortunate Hadji Mustaffa.
Principal among the Crown witnesses and crucial to the state’s case was Stevenson’s former lover and Jack McLoughlin’s bête noire, Sarah Fredericks. She was by then using her new married name of Sarah McNeil. But unwilling to rely too heavily on coloured witnesses in a state where race was gaining in importance and the jury was white, the Crown had also tracked down an impressive number of Europeans who either knew the accused or were familiar with the events that had played themselves out at the Red Lion that night. Among the latter were Johannesburg’s corrupt and disgraced former Chief Detective, Robert Ferguson, who had arrested the accused in the Pretoria Station robbery, and his successor, Andrew Trimble, who had been forced to take over the investigation into the shootings at the Red Lion at short notice. Others included Harry Lobb, Stevenson’s one-time public rival for Sarah Fredericks’s favours, Veld Kornet Frederick Kretzmar, who had taken a statement from the dying man that identified McLoughlin as his assassin, and Zarps who could testify to the accused man’s earlier close friendship with the murdered boxer-gangster-informer. Medical evidence was to be provided by Dr John van Niekerk, who had not only treated Stevenson on site before he expired, but had performed the amputation on McLoughlin’s arm in 1890, and Dr C Schultz, who had conducted the post mortems on the victims.
It was clear, from the outset, that Douglass was going to present a formidable, probably incontrovertible, case for the prosecution. Under the circumstances, there was not much point in McLoughlin denying that he had deliberately sought out and shot Stevenson and then, under different circumstances, killed Mustaffa while attempting to make good his escape. Public sensitivities would not allow McLoughlin to reveal the full extent or exact nature of his relationship with Stevenson. He may therefore have been better served by pleading guilty. By underscoring the context and motive for the killing of an erstwhile criminal collaborator and intimate friend who betrayed him by becoming a police informer, he might avoid incurring the ultimate penalty for the shootings.
In order for that to have happened, however, McLoughlin would have had to have had access to excellent legal counsel from the moment he was arrested in Brisbane and even more so once he was back on the Rand. His attorney, Levy, was suitably argumentative and pugnacious but not particularly effective in court; by the time the Preliminary Examination was concluded most of the damage was already done.
McLoughlin may have sensed the weakness of his position, but he was a prisoner of his personality and had, long since, settled on what he thought his best line of defence might be. He was accustomed to brazening things out, taking pride in having shown ‘confidence in myself’ and confronting things head-on, a tactic that left nuance and subtlety at a premium. He denied any involvement in, or personal knowledge of the shootings. He questioned any description that pointed to his having a moustache rather than a beard at the time of the shootings. He also suggested that he may have been confused with some other, unknown, man who had also lost a right arm. It was a line of defence that was as implausible as it was weak. It left Levy with little to work with as the worried attorney looked around for senior counsel to represent his client.
The man best qualified for the job, FAW Lucas, probably presented himself. Lucas was the son of an architect with Irish Catholic roots, a man originally from Melbourne, where he had married into a family famous for its politically progressive feminist daughters.12 Lucas had done his schooling at Marist Brothers College, Johannesburg, before going on to read law at the South African College in Cape Town. Academically gifted, he won a scholarship to Oxford and completed his training with a studentship at the prestigious Middle Temple where he won a gold medal for the ‘law of evidence’ and ‘criminal procedure’ before eventually returning to the Transvaal and being admitted to the Bar in Johannesburg in 1906. Strongly influenced by the political values of those on the maternal side of the family, Lucas was a radical with a well-developed interest in socialism in the southern hemisphere colonies and closely concerned about the fate of the working classes of all colours. In 1915, as a member of the Transvaal Provincial Council, he oversaw the granting of the vote to white women in municipal elections.13
Lucas’s ethnic roots, legal training, sympathy for the underdog and understanding of Catholicism all appeared to make him ideally suited to championing McLoughlin’s cause. Well-handled counsel for the defence may have been able to stave off the death sentence, even if he could not save the accused from a lengthy prison sentence. Alas, Lucas fell hopelessly short of the asking price. For various reasons, many of which lay beyond his control, the recently married young advocate was badly out of his depth before, during and after the trial. Lucas simply lacked the experience and temperament necessary to mount the type of imaginative and spirited defence that the McLoughlin case demanded.
Like many who shared his political convictions, Lucas was so taken with the purely economic dimensions of the concept of class that he failed to appreciate fully how it helped shape culture and social structures. Not once during the trial did he challenge the description in court documents of his client as being ‘English’. By allowing McLoughlin to be cast as ‘English’ and failing to present him as ‘Irish’ or, at very least, as having been strongly shaped by an Anglo-Irish upbringing in Ancoats, Lucas cut himself off from a line of explanation and questioning that even the newspapers at the time of the shootings had pointed to.14
Lucas’s unwillingness to point to the protruding ethnic edges of his client’s identity was not without cost. It meant his having to abandon any reference to McLoughlin’s romantic albeit warped notions of honour or duelling and his propensity for oath-taking. It also meant that he had to forego exposing the deeper historical roots of Irish oppositional culture to British rule as manifested by the execution of the informer, James Carey, by Patrick O’Donnell in southern African waters, in 1882. Lucas’s silence about his client’s ethnicity effectively denied the possibility of there being a quasi-political element to McLoughlin’s shooting of an informer. It also made it impossible to set the accused man’s behaviour within the context of his former standing within the old ‘Irish Brigade’ where primitive ‘social banditry’ bore testimony of its own as to how closely the ‘criminal’ and ‘political’ sub-cultures had been intertwined.15
If Lucas was reluctant or unable to explore the wider ethno-political dimensions to the execution of a close friend who had turned police informer, he was even less willing to probe the emotional depth and nature of McLoughlin and Stevenson’s relationship prior to the shootings. A decade and a half after Oscar Wilde’s trial, in 1895, it was still not acceptable to explore publicly how codes of Victorian masculinity could – simultaneously – encourage brotherly love and male emotional intimacy, yet forbid any thought that it might entail physical expression.
Counsel for the defence, the prosecutor and judge all proved to be extraordinarily hard of hearing when a policeman, Andries Smorenberg, described McLoughlin and Stevenson’s friendship as ‘intimate’. Nor did they take cognisance of the underlying and transparently emotional content of some of Jack McLoughlin’s testimony when he took the stand. McLoughlin stated openly that he knew that ‘Stevo’ ‘did not care [for him]’ when he turned state’s evidence and that ‘I could not say that I was in love with him after that’. Nor, more pertinently and revealingly still, did they take note when the accused said that he had once received a message from Stevenson to the effect that ‘if only I would make friends again he would not care for anybody else in Johannesburg’.16 The fact that the two men were ‘close’ was permissible and could be publicly stated. But anything that went on to describe their relationship other than as one of close friendship, as caring, probably even loving, was plainly unthinkable.
The advocate’s failure to raise questions about McLoughlin’s ethnic identity or the code of masculinity that governed his client’s affection for and behaviour towards Stevenson was partly understandable. Lucas was young and inexperienced – and appearing before a judge, already revered, who would go on and assume the highest legal office in the expanding South African state. Lucas’s head and heart were not in the proceedings. By late 1909, his real interest lay elsewhere – in constitutional issues – and, above all else, in the coming order. A few months earlier he had won an essay competition on ‘Closer Union’ and he had been chosen as one of just eight legal advisers to guide the deliberations for a new constitution. Lucas’s reluctance to underscore the ethnic, social and emotional elements in the decision to execute the police informer increased the risk of his client getting the death sentence. By failing to establish the fuller context of the shootings, he left the way open for the informer’s execution to be seen only as a criminal act – one motivated solely by revenge, a cold and murderous deed.
* * *
With the Crown Prosecutor, EW Douglass, set to make the running and the expertise of Lucas restricted largely to procedural issues or technical questions about the law of evidence, it would be left to the presiding judge to bring some balance to what might otherwise degenerate into a hopelessly lopsided procedure. In particular, an enormous responsibility would devolve upon the judge when it came to instructing the jury in a case of murder where the life of the accused was at stake. Members of the bench and staff in the Law Department were only too aware of the gravity of the charges facing the accused and of the need to avoid any slip-up in a trial taking place just six months before the advent of Union.
With one important exception, cases heard in the Witwatersrand High Court were usually allocated to the bench on a strictly rotational basis. But, with so much local, inter-colonial and imperial reputational capital at stake at a time of profound constitutional change the Law Department needed to be guaranteed a swift and legally persuasive conclusion in the matter of Rex vs McLoughlin. The matter could not be left to chance and the case was allocated only after careful deliberation. The state appointed its pre-eminent jurist, the man Milner had chosen as the first Chief Justice of the Transvaal Colony, a senior judge already spoken of as a possible future Chief Justice in the Union of South Africa, Sir James Rose Innes.
Innes was born into and had also married into the English-speaking elite of the Eastern Cape and qualified as a lawyer before going on to establish a highly successful legal practice in Cape Town in the 1880s. His considerable personal qualities – a capacity for hard work, easy-going manner and inherent sense of fair play, along with his integrity and ability as an analyst and debater – all encouraged him to think about standing for political office. Elected to parliament, he twice served as Attorney General in the cabinet of the Cape Colony where his on-going loyalty to crown and empire were duly recognised with a knighthood.
By inclination Innes was, however, better suited to a life in law than in politics.17 Milner’s offer of the post of Chief Justice in the Transvaal thus presented him with a fine outlet for his talents as a jurist although it also posed the severest challenge to his admirably liberal values and belief in a non-racial future. Industrial Johannesburg was not commercial Cape Town. As a judge, his legal experience and personality may have made him more suited to hearing the administrative and constitutional issues that he had a preference for than to tackling criminal cases in a mining centre with a well-developed and turbulent underworld. Innes had virtually no personal knowledge of industrialising society and, for all his reputation as an endearing and eminently reasonable man, he was singularly unsuited to understanding behaviour that was both overtly criminal in intent and yet informed by low levels of political consciousness.
Innes was, notes one scholar, ‘perceptive if not unusually imaginative’, a man with ‘an extremely high, almost inflexible, code of personal behaviour’, and was almost always ‘reluctant to compromise on political issues even when he perceived that such a compromise might actually further the pursuit of his high-minded goals’.18 A Chief Justice with those traits, well known and rewarded for his service to empire, would find it difficult to think his way into the mental universe of an Irish social bandit or a man with a complex sexual identity.
James Rose Innes’s experience and understanding of radical – criminal-political – Irish opposition to imperialism was indirect and limited. He happened to have been in London at the time of Dublin’s Phoenix Park murders, in 1882. But, like many others, he could find no moral justification for them. Nor could he bring himself to acknowledge the passion that the struggle for independence evoked among Irishmen. Ever the formalist, the feature of the Phoenix Park murders that endured longest in his mind was the ‘most impressive’ scenes in the House of Commons that followed. Likewise, when the sequel played itself out aboard the Melrose Castle in Cape waters and O’Donnell shot Carey, Innes could see it only as a ‘political crime’ carried out in ‘cold blood’. It was a strange juxtaposition. For a liberal constitutionalist serving the empire it was difficult to concede that nationalism might inflame the emotions to the point where they might motivate either planned or spontaneous violence. For Innes, like McLoughlin, self-control was a cardinal virtue.19
Closer to home and more pertinently, the Chief Justice had only recently been reminded of the insidious role that informers played in the policing of the Witwatersrand underworld, the contempt they aroused in those with Irish connections, and the murderous instincts they could unleash.
In May 1908, barely a year before the trial of Jack McLoughlin, Innes had presided in the case of Rex vs JW Barry alias ‘Ginger London’. London, raised in ‘Little Ireland’ in Clerkenwell, had been accused of murdering Meyer Hasenfus, the sidekick of a notorious police informer, Leon Rosenblatt. But given the circumstances of a stabbing that proved fatal, London had been convicted only of manslaughter. In his summing up the Chief Justice was unsparing of the police and the role of informers, claiming that police spies endangered ‘the administration of justice and the good order of society’. Innes was, however, admiring of the Irish-Australian Neil ‘Paddy’ McMahon for conducting his own defence competently in a linked case, though he remained wholly unimpressed by the fact that McMahon had refused to betray his underworld associates. Innes was largely tone deaf to the many and complex links between ethnicity and politics and the ways in which they might help shape criminal acts.20
If Lucas entertained doubts about the wisdom of unpacking the reasons behind the slaying of Stevenson before the trial, so as to prevent the shooting from being seen only as a criminal act that had more to do with ‘honour among thieves’ than with ethnicity or masculinity, they could only have been compounded when he learnt that the case was to be heard by Rose Innes. It was all the more reason for Lucas to confine his main interventions to narrower questions of criminal procedure and the law of evidence. And, if the accused man’s counsel for the defence and the Chief Justice offered Jack McLoughlin little hope of avoiding the death penalty, then the composition of the jury seemed to hold out even less.
In practice, on the Witwatersrand, the legendary ‘twelve men good and true’ consisted of just nine white males. The surviving documents reveal nothing about their status as regards age, class, marital status, occupation or religious belief. From the archival record it is impossible to know how many, if any of them, might have been drawn from a cohort that bore some knowledge of McLoughlin, the Irish Brigade or Johannesburg at a time when it was a frontier-like town and carrying a revolver was almost de rigueur. For the most part they appear to have been uniformly ‘English’ and robustly heterosexual in a gold mining centre long known for its ethnic diversity and masculinity. In keeping with the recently enforced new imperial order nervously making way for another, not one of the jurors bore a name that could be considered as being self-evidently ‘Afrikaner’, ‘Irish’ or ‘Jewish’. Taken on its own – as a list of citizens in good standing and without a criminal record – the jurors may well have felt more at home in Birmingham than in Boksburg. This may, of course, have been a small blessing in disguise since throughout the proceedings it was assumed that McLoughlin was an ‘English’ national and a bachelor.21
McLoughlin went to his trial knowing that justice was an ideal but that its pursuit was driven by men, not God. The real trial, he began to think, perhaps lay in some other place.