Stanley's brushes with the law

On 4 December 1889 the Emin Pasha Relief Expedition finally arrived at the coast of East Africa after nearly three years away from civilisation.  The German administration put on a celebratory dinner for the surviving officers but after Emin’s accident, Stanley could not wait get back to English administered Zanzibar.  SS Turquoise had been sent across with Judge Cracknell, presiding judge of the British Consular Court, to welcome Stanley and whisk him away from German influence.

Once the explorer had settled into his accommodation in Stone Town, the well-known Indian merchant Jaffer Tarya Topan paid him a courtesy visit and revealed the interesting news that he was holding a huge quantity of gold for Tippu Tib[1], who was still somewhere in central Africa collecting ivory and slaves.  For all the celebration and congratulation that had greeted the expedition on its way down to the coast, Stanley was well aware that it had been a monumental failure and had already begun to shift blame onto Tippu Tib, alleging that the disasters which befell the expedition were due to the latter’s breach of an agreement signed in February1887.  This was separate to the agreement Tippu Tib and Stanley signed relating to the Governorship of Stanley Falls and only concerned the supply of porters for the EPRE.

Stanley referred to this hastily cobbled together agreement in "IDA" but for very good reasons (I explain them in my book) avoided setting out the terms verbatim, but they were as follows

Art I – Henry Morton Stanley agrees to accept the services of a number of able bodied men in Hamed bin Mahomed’s employ who shall accompany him to the Albert Nyanza in the capacity of armed porters, that is, who shall be effective in the use of a gun for defence and shall be capable of carrying a load not exceeding sixty five pounds in weight from the Congo River to the Lake and back at the following rates and following conditions. Art II – Each man shall be armed with a gun at Hamed’s expense and further be provided with one hundred bullets. Art III – Each man will be at the disposition of Mr Stanley for carrying any load not exceeding sixty five pounds or for the defence of the caravan as circumstances may require. Art IV – His service begins on the date of leaving the Congo River with the expedition for the Alberta Nyanza and terminates on the return of any portion of the expedition to the Congo. Art V – The Time occupied by the journey from the Congo to the Albert Nyanza and back to the Congo shall not exceed six months; or if longer no increase of pay shall be due. Art VI – For the service above each man shall receive Thirty dollars together with food during the time of hi employment. Art VII – All of these men, if loaded with ivory at the Albert Nyanza, shall deposit the said ivory at the Congo and within the district of Stanley Falls as the officer in charge shall direct and his receipt for the safe arrival of the same on the Congo shall be sufficient voucher for the discharge of their part of this agreement. Art VIII – If circumstances shall warrant a re-engagement of these men or any number of them for a repetition of this duty, then the above articles shall stand for a second contract upon the same terms and conditions. Art IX – Powder and caps shall be supplied by Mr Stanley. Art X – For every round journey thus made Sheikh Hamed shall be entitled to a bonus of one thousand dollars. The agreement was signed by Stanley and Tippu Tib on 24 February 1887 in the presence of  two witnesses.

No mention is made of how Stanley would pay Tippu Tib or the men, but it was understood that they would be paid from Emin's ivory once they had carried it back to Stanley Falls and although the agreement was personal to them and was negotiated without the knowledge of the EPRE Committee, he issued legal proceedings in its name - again, without the committee's knowledge - on 19 December 1889.  Stanley alleged

1. "That the said TT failed wholly to perform his part of that contract in that he did not supply a single able-bodied porter to me in pursuance of the agreement.
2. “That the said Expedition had to bear great hardships and privations in consequence of the said breaches of contract and had also sustained great pecuniary losses which to the best of my knowledge, information and belief I estimate at £10,000.
3. “That so far as I know the said Tippoo Tib broke his contract as aforesaid wilfully and perversely and had no justifying cause whatever for so doing.  And I further say that in the matter of the said agreement the said TT acted in a fraudulent and perfidious manner and thus seriously jeopardised the lives of the members of the Expedition and was mainly the cause of the deaths of 150 of them.”

Topan valued Tippu Tib's gold at £10,600 which presumably accounts for Stanley's rounded estimate of loss, as he intended to use it to satisfy the judgment he was confident Cracknell would grant. In the meantime, it was essential that the gold did not vanish and render any judgment valueless so Stanley asked for a freezing order and swore an affidavit in support of his application. After obtaining the Sultan’s consent which was required when suing a native Zanzibari, the first “without notice” hearing took place on 26 December. 

“Without notice” injunctive relief, as distinguished from a straightforward damages claim for breach of contract, was an important aspect of the equitable jurisdiction of the English courts, but it was a remedy which was – and is -  capable of giving rise to great injustice, because even when granted as an interim measure to “hold the balance” temporarily between litigating parties, it can undercut the issues in litigation before the evidence is fully explored and examined at trial.  For this reason, modern practice requires very significant safeguards to be in place before a “without notice” order is made on the application of one side to a dispute.  In Zanzibar in the 1890’s, neither Stanley nor Cracknell saw any particular reason to be cautious.

The judge was well known for his robust way of dealing with local Arab slave traders and he did not enquire too deeply into his judicial powers to grant such relief because in 1889 an order of this type was beyond the reach even of an Equity jurisdiction[2].  It would not be until 1975 that English Courts would recognise the freezing order jurisdiction, although in America such orders were sometimes made on the basis of mercantile custom and usage.  It seems likely that Stanley, who apparently spent time in this youth in an attorney’s office in the USA, may have been familiar with this type of remedy.

At the hearing both Stanley and Bonny gave evidence and answered questions from the judge, but there remained some very fundamental problems, the main one being that evidence to support the claim amounted to nothing more than bare assertion, and everything Stanley told the judge would be subsequently be undermined by the book he was about to publish[3].

Despite the proceedings being held behind closed doors, news of the order got out and even before Tippu Tib learned of the litigation, it had started to ruffle a few feathers in the Arab community. Emin Pasha was quite indignant to find his name at the front of legal proceedings against a respected trader with whom he personally had no quarrel.  He distributed leaflets in Bagamoyo to disassociate himself from the dispute, which gave Stanley yet another opportunity to mock the man he had just rescued. 

The Times duly reported that “An unprecedented incident has occurred in Zanzibar to-night, which has left even the solemn Arab world agape.  At sunset a body of men paraded the streets scattering broadcast copies of a proclamation printed in European and Arabic characters and signed by Emin Pasha.  It is addressed to the whole Arab population and contains a vehement and absolute disclaimer of the Pasha being concerned in any way whatever with Mr Stanley and the English in the civil action brought by the former against Tippoo Tib in the British Consular Court.

The proclamation at once gives the measure of Emin’s resentment against Mr Stanley and his respect for the power of Tippoo Tib; but the Pasha has overshot the mark, and only amused the populace, his name never having been mentioned in connexion with Mr Stanley’s action” - which, self evidently given the title of the action, was wrong.

Even Cracknell knew that it was contrary to the Rule of Law for the dispute to be finally decided even before notice of the claim had been brought to Tippu Tib’s attention and he confined himself to granting an interim injunction against Tarya Topan to prevent him from dealing with Tib’s gold until such time as the breach of contract claim could be finally determined.  He then adjourned the action until Tippu Tib could answer it.

Stanley would not have been unhappy – he was a consummate publicist and made sure  all the journalists who had descended on Zanzibar to cover the expedition were fully briefed on his claim, with the result that news of the proceedings and  freezing order the litigation was already round the world before Tippu Tib was even aware he had been sued. 

On 31 December 1889 The Times was at it again, trumpeting British superiority over both Germans and Arabs in East Africa by reporting “Civilization is marching apace in Africa; English Law has at length reached the heart of the continent; the “Bismarck of Central Africa,” as Tippoo Tib has been called, has been indicted before a British Court. It is a pity that either the Emin Pasha Relief Expedition or the Congo Free State has ever felt compelled to solicit this man’s favour…There is not the slightest doubt that much of the disaster which befell the expedition was, directly or indirectly, due to Tippoo Tib, who, intentionally or unintentionally broke the contract he made with Mr Stanley.”  How could it possibly have known, other than by Stanley misrepresenting his claim?

Once the order was granted, Stanley left Zanzibar to return to Europe, stopping in Egypt to write his account of the expedition "In Darkest Africa" at breakneck speed.  It would be the publishing sensation of 1890 and he dealt with his litigation with Tippu Tib in terms which left no reader in doubt as to where the justice of his claims lay.  The trouble is, what Stanley wrote in the book ran contrary to what he had recently told Judge Cracknell in private, and if and when the matter came back before the court, he faced the prospect of an awkward cross-examination.

When Tippu Tib learned about the order, he was incandescent with anger and set off back for Zanzibar to deal with the problem.  His return was delayed when he fell dangerously ill with dysentery at Tabora, but he recovered thanks to Church Missionaries and by the end of September 1891was able to brief his lawyer who filed a lengthy written statement with a counterclaim.  It threw MacKinnon's local agent, who was keeping an eye on the litigation, into a flat panic and he called for reinforcements in the form of a London lawyer to be sent out to deal with the matter, but MacKinnon was more anxious not to turn Tippu Tib into an enemy and wanted the claim settled.  Eventually the matter had to come to a resolution but Stanley remained out of the jurisdiction and instead of dealing with the substance of dispute, his local lawyer simply withdrew the claim.  Judge Cracknell noted

“Merwanji applies to withdraw the case on condition that defendant withdraws all claims against them (the plaintiffs).

Cumrudin on behalf of Tippoo Tib consents.

Application granted.”

By then the application had served its purpose and Stanley did not need to trouble himself fighting a battle he had no chance of winning.  His claim would have failed not just because of the questionable jurisdiction around the making of the order, nor because of the technical problems of suing in the name of an entity which had no legal standing on an agreement to which it was not a party, but rather more fundamentally because the evidence did not support the claims he had made.  Stanley’s mismanagement, rather than Tippu Tib’s actions had been the cause of all the failures of the EPRE.

Stanley lied in his affidavit and Judge Cracknell would surely have noticed inconsistencies between that and his oral evidence in the private hearing,  but by withdrawing the claim before trial, he also avoided having to deal with another inconvenient fact -  that he had been in contempt of court by briefing the press and writing about the dispute in his book[4].

Behind the Story

In 1944 Sir John Gray's article about the case was published in Tanganyika Notes and Records  as “Stanley versus Tipoo Tib”, but it is not easy to track down.  I did so through a French website www.gallica.bnf.fr .

When he accessed the court file  he found Stanley's original affidavit, the notes of Judge Cracknall of the evidence given by Stanley and another member of the expedition William Bonny, and some of the documentary evidence relied upon, including a letter from one of the missionaries who tended to Tippu Tib and was obviously concerned about the injustice Stanley had perpetrated on him.  One assumes the file would also have contained the claim form or its equivalent and the actual terms of the freezing order made by Cracknell, but Gray does not refer to them.  I have also tried to track down the original file but even with the assistance of a local researcher, I could not find it in the Zanzibar achives.

Gray’s article  is extremely revealing but it is of course not the whole story, because in 1944 in East Africa, he did not have access to a lot of the material which is available to us today.  He focussed on the differences between Stanley affidavit and oral evidence and the published accounts of the expedition which were available to him, being principally Stanley’s own book “In Darkest Africa”, Barttelot’s “Life of Edmund Musgrave Barttelot”, Jameson’s "Story of the Rear Column”, Parke’s “My personal Experiences in Equatorial Africa”, and Brode’s biography of Tippoo Tib.

What Gray did not have access to were the original papers of Barttelot, Jameson, Parke, the other men on the EPRE as well as those of Stanley himself.  He could not know therefore that Parke’s book was ghost written and considerably more favourable to Stanley than Parke’s private writing, nor that two other officers on the expedition – Mounteney Jephson and Stairs – wrote extensive diaries of the expedition (they were not published until 1969 and 1998 respectively) which prove conclusively that Stanley was a compulsive liar, with Mounteney Jephson writing of him that “…a more impatient, a more ungentle, a more untruthful man than Stanley could exist.  He is most violent in his words and actions, the slightest little thing is sufficient to work him into a frenzy of rage, his sense of honourable is of the haziest description and he is certainly a most untruthful character…” [AMJ dairy entry 26 February 1888] 

Gray also would not have had access to any of the archive newspapers from 1889 and 1890 which show how the litigation was being reported as far afield as The Horsham Times in Australia; The Los Angeles Herald in California; The Tamworth Herald in England and as well as The Times in London, so he was not aware that the evidence heard in private was being leaked to the press - “Mr WB Cracknell, Judge of the Consular Court here, yesterday heard the evidence of Mr Stanley and Mr Bonny in the case of the Emin Pasha Relief Expedition versus Tippoo Tib.  The evidence showed that the latter broke his contract with the expedition with a view to obtaining all the stores and ammunition belonging to it…” [The Times 30 Dec 1889] 

In short, the damning conclusions reached by Gray in 1944  as to Stanley’s relationship with “truth” are pale and timid compared with those that can now be drawn from a substantially wider body of available evidence.

And finally, he could not possibly have known that it would not be until 1975 that the unusual order granted by Judge Cracknell on 27 December 1889 would become a standard part of a commercial litigator’s armoury .  It is now recognised as being a draconian remedy with the potential for great injustice and stringent rules are in place precisely to avoid it being abused in the way Stanley had done with the assistance of his friendly judge.

 

To understand the historic background to the Mareva jurisdiction I drew on the important text book “Commercial Injunctions” [Seventh edition 2020]  by Steven Gee KC who I must also thank for kindly pointing me towards obscure references and reading matter.   I have also drawn on the thesis “The Evolution, Utility and Effectiveness of the Mareva Jurisdiction in English Law: A Critical Appraisal” by Joshua S A Sendall [September 2015] to which I was directed by Andrew Spink KC.

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VIZETELLY -V- MUDIE'S SELECT LIBRARY LTD - the defence of Innocent Dissemination

1888 was a year of upheaval in European history.  It was the “Year of Three Kaisers”, when a father and son died in quick succession, precipitating an aggressively ambitious young grandson onto the throne. 

That March, Kaiser Wilhelm I, who had ruled over Prussia for 27 years, died at the good age of 91 having depleted all his energy overseeing the unification of Germany.  It had been an incredible undertaking and occupied his full attention for many years, during which events on the continent of Africa barely registered, leaving the stage free for Britain and France to jostle for influence in the northern part of the continent.  Britain was already well established in southern Africa thanks to the efforts of Cecil Rhodes and others but in 1888,  tropical Africa still seemed up for grabs. 

There was a new generation of Germans who wanted to see their country step up onto the world stage and mark out territory for its own benefit before the English and the French (and King Leopold of the Belgians) carved up the entire continent between them, but Wilhelm’s son Frederick III was too ill to be able to interest himself in African adventures and died less than 100 days after his father.  He was succeeded by his 29 year old son Wilhelm II, who was hugely ambitious and driven and absolutely determined that Germany should make up for lost time on the international stage.

He had also seen that there was advantage in Emin’s peril and like many of his people, had been frustrated by German’s failure to capitalise on it in 1886.  In 1887, the explorer and carpetbagger Dr Carl Peters concluded an agreement with the Sultan of Zanzibar which gave Germany control over the East African coast and its customs offices and it gave a trmendous shot in the arm to the nation's ambitions. 

As the months rolled by with no news from Stanley, Germany now decided the time was right to launch its own initiative to rescue Emin and subscriptions poured in.  Unfortunately infighting between the two chosen leaders Dr Peters and Wissmann eventually put paid to that project, but the consequence was that as Stanley and Emin were marching down to Bagamoyo in the final stages of the British expedition, Wissmann and Peters were on their own manoeuvres in East Africa and on 29 November 1889 Wissmann met up with the EPRE near Mpwapwa.

Emin could barely contain his joy to be among his own people again and was touched by all the attention he seemed to have attracted, writing in his diary “At noon we were joined by Freiherr von Gravenreuth, Lieutenant Langheld, Herr Weidmann, Messrs. Mariano, Vizetelly, and Stevens: splendid people. Seven letters from Wissmann, with seven cases of delicacies, cigars, etc. He intends to come to meet us. The officers and the two correspondents (New York Herald and New York World) vie with one another in affability. One Herr Gasch, of Zanzibar, has sent me German illustrated papers. What have I done to deserve all this? In the evening a big dinner alfresco!"[1]

The next day he reported that they had not moved off “…because Stanley is waiting for his caravan which indeed is far inferior to the German one… Telegram of welcome received from Col Even Smith (the English Consul General in Zanzibar) in Aden dated 24 November 1889.  Wissman has even sent cattle for us.  The day passed quickly and in the evening we got together chatting over a bottle of wine.  Gravnereuth is a splendid, entertaining companion who speaks good English.  All the Germans are pleasant people.”

It must have been quite a night, because Vizetelly became so drunk he had to be carried to his tent and detained there by Nelson for his own safety.  The next day he was due to despatch his report to the New York Herald, but was in no fit state to do so.  Luckily Stanley had written a full report and allowed Vizetelly to bid for it, as Emin explained in his diary    

“Vizetelly sent three couriers to the coast today each carrying a thick letter.  However, since he has not yet sobered up, he did not write them and the solution to the problem is – as Parke told me – simply that Stanley had already done so and released it to the highest bidder after Vizetelly (ie Gordon Bennett) made him an offer for them – Parke is right, by the way."[2]

Nothing further would have come of the incident had not Emin been murdered in 1892.  His cousin Georg Schweitzer decided to memorialise Emin by publishing his diaries and the book “Emin Pascha: Eine Darstellung Seines Lebens und Wirkens mit Benutzung Seiner Tagebucher, Breife und Wissenschlaftlichen Aufzeichnungen” was published in Berlin in 1898.  It is an interesting account, and as well some fascinating new information, it contains a handful of photos, including one of Emin as a child with his sister and mother and another of his African daughter Farida. 

A book as intersting as this was destined to be published in England,  but when the news came to Vizetelly’s attention, he was furious.  Although Emin had been writing the diary for his own private benefit, an allegation that the reporter had been too drunk to file his own copy and had to beg Stanley to sell him his version, was plainly defamatory. 

Vizetelly wrote the publishers of the English version putting them on notice that he would sue them for publishing the libel and they got cold feet, withdrawing all copies from sale before pulping and republishing the book without the offending passage in it.  They also paid for a notice to be Gazetted (a legal way of bringing something to public attention) to confirm that the original book had been withdrawn because of an admitted libel. 

Unfortunately a few copies escaped the recall, including two that were purchased by Mudie’s Select Library which they continued to lend out to the public in ignorance of the Gazetting.  It cannot have helped that the Vizetelly family contained a number of well known journalists and publishers committed to free speech and the rights of authors, and held something of a grudge against lending libraries in general and Mudie's in particular for depriving authors of royalty income.

Vizetelly sued Mudie's and not being able to prove that the allegation was true, the lending library raised a defence of innocent dissemination.  Mudie's argued that it was not a publisher in the normal sense, merely lending out the book without having had any editorial input, and could not posibly have known that the book contained an allegation defamatory of Mr Vizetelly.  

The case went up to the  Court of Appeal which confirmed that although there was a legitimante defence to a libel action based on innocent dissemination, it could not apply in the circumstances of this case because Mudie's were deemed to have had notice of the defamatory material by virtue of the Gazetting.  The authority has renewed relevance in an age of on-line publications and social media.

My research revealed an interesting aspect of the case that has not previously been revealed.  Vizetelly's employers obviously wanted to know if the story was true and asked Stanley for assistance.  Stanley pointed them in the direction of his young subordinate Nelson, the man who had carried Vizetelli to bed and sent a telegram to Nelson to warn him that he would be required to give a statement, but that he should not dwell too much on the detail.   It seems to have been more important to Stanley that fellow journalist Vizetelly should not lose his case and job, than that the truth should be exposed in court.