Part 29

Whereas although the restoring of order has been occasionally vaguely mentioned it is clearly shown by the evidence of all the witnesses, and even by the reports addressed by the accused to the Director of the Company, and by his letters to the officers of the district, that, in committing these acts of hostility against the natives, he only had in view the interest of his Company’s trade, and more especially the increase in the amount of rubber collected;

Whereas, even if there could be any doubt as to the nature of the previous expedition against the Gwakas, no doubt can exist in this respect in connection with the facts which are the subject of the prosecution;

Whereas, in any case, it is a well-established fact that at the time these acts took place order had in no way been disturbed, either at Liboké or among the Banga; that it does not appear that the victims of these actions had committed any other fault than that of failing to furnish the Company with the amount of labour required by it;

On the other hand, seeing that the sole fact of not having paid the taxes, even if they had been legally due (which they were not in this case, because no law had yet authorized their collection), could not justify such sanguinary measures;

In the present instance it is still less possible to speak of war-like acts, because to attack peaceable people and to fire upon single and inoffensive individuals is certainly not making war;

Whereas it is proved by the evidence of the witnesses, and by the statements of the accused himself, that on no occasion during these events did the natives attack or commit any sort of hostile act;

Whereas there was not one killed or wounded among the soldiers or among the Company employés;

Whereas, therefore, it would be absurd to call it war; and killing under such circumstances constitutes a crime which no law or necessity authorizes, and which is punishable by the Penal Code, whether it be committed by a private person or by a representative of authority;

Whereas, on the other hand, the accused cannot plead in extenuation the principle of official subordination, in view of the fact that such a plea is only valid in the case of representatives of authority who carry out the orders of an official superior, and then only so far as the authority of that superior extends;

Whereas the accused was not a representative of authority and he did not owe official obedience to any one; it was in no way part of his duty as an agent of a Company to co-operate in measures of repression; he was, therefore, fully entitled to refuse to execute the orders which might be given him to this effect, and, if he executed them, it was at his own risk;

Whereas, moreover, it is a principle of law that even obedience to one’s official superior does not constitute a valid plea, when the illegality of the order is obvious;

Further, whereas there is no truth in the statement that the accused, as he affirms, only obeyed the orders of the Chiefs of the police station;

Whereas the truth, on the contrary, is that the latter were, in point of fact, under his orders;

Whereas a mere non-commissioned officer like Nagant; a mere military assistant (corporal) like Jamart, could not have any authority over the accused, who occupied the high position of a District Superintendent of the Société Anversoise du Commerce au Congo, and had under his orders a large staff of white men and natives;

Whereas all the witnesses were unanimous in stating that in all the expeditions which he made with the Chiefs of the police station, it was he who commanded, gave orders to, and punished, not only his own men, but even the soldiers of the State; whereas, especially in the case of the expedition against the Banga, it is evident that corporal Jamart, quite young and but recently arrived in Africa, knowing neither the language nor the country, and, besides, so ill that he nearly always had to be carried, and remained several days’ journey to the rear, was simply a lay figure made use of by the accused in the belief that by Jamart’s presence he would be able to cover his own illegal actions and to involve the State in his own responsibility;

Whereas it is therefore useless for the accused to plead good faith in having acted in accord with the representatives of authority;

Whereas he knew that he ought not to kill, and that he was even less justified in so doing in the interests of trade;

He knew that it is not tolerated by the laws of the State;

He knew, also, that several of his predecessors and colleagues in the same region and belonging to the same Company had received very severe sentences from the Court for similar offences;

He thought he would be cleverer than the others in trying to cover his responsibility by making use of State employés;

But if this precaution turns out to be ineffectual--if he realizes too late that criminal responsibility cannot be so easily eluded--he has no right to describe himself as the victim of an error;

Whereas, if he was mistaken, it was not with regard to the morality of the actions which he committed, but with regard to the value of the ruse which he made use of to cover them;

Whereas, however, the accused insists upon the request which he had already made in First Instance--to wit, that the Tribunal should order a supplementary inquiry, in order to have incorporated in the “dossier” the political Reports sent by the higher administrative authorities of the region to the Local Government--which would show that the said authorities had known and approved of the actions of which he is accused, and even of previous and subsequent expeditions which he had made with the troops of the State; whereas the local Government, questioned by the examining Magistrate, declared that, as a matter of principle, it did not think it possible to produce these documents, and, moreover, the said documents contained nothing that could refer to the facts mentioned by the accused;

Whereas the defence contests these declarations in law and in fact;

Whereas the right of the judicial authority to demand, and even to search for in any public or private place, any document which might lead to a conviction or an acquittal, cannot be denied in principle;

Whereas this right, which is given to the judicial authority by law, can only be curtailed also by law; whereas neither the Congo legislation, nor the legislation on which it is founded, fixes any limitation in favour of the Public Departments;

Whereas if an exception be made in the case of diplomatic representatives, that is on account of the fiction of the extra-territoriality of their residence; whereas there is no place of asylum;

Whereas, however, it is the duty of the judicial authority to proceed in such matters with the greatest circumspection, and only if the documents demanded are of obvious use to the prosecution or the defence;

Whereas, in the present instance, the defence thinks that it can deduce from these documents the approval, and, in any case, the toleration of the authorities in connection with these actions;

Whereas, as has been set forth above, even the definite order, and, therefore, still less the toleration of the authorities, could not be held to justify acts contrary to the law;

Whereas this principle has already, for a long time past, and on several occasions, been affirmed by the Tribunals of the State;

Whereas, consequently, in no case could the accused find in the documents, the production of which he demands, justification for the actions with which he is charged;

Whereas the utmost he could do would be to adduce the toleration of the authorities as an extenuating circumstance;

Whereas, in this connection, it may be fittingly observed that the documents of the “dossier” itself, and the evidence of witnesses, go to prove the existence of a certain toleration on the part of the authorities;

Whereas, indeed, the presence and the co-operation of the heads of the police station of Binga, at the time of the Qiboke affair, and of the expedition against the Banga, have been admitted by the Tribunal. Whereas the evidence of the witnesses also goes to prove that the accused, accompanied by agents and soldiers of the State, had, previously and subsequently, conducted other punitive expeditions against the natives;

Whereas this is sufficient ground at least for presuming the toleration of the higher authorities of the district, and for admitting this toleration as an extenuating circumstance in favour of the accused;

Whereas, consequently, all supplementary inquiry on this subject, even if it might serve to prove the responsibility of other persons, could be of no service to the accused;

On the third count:

Whereas it is proved by the evidence of witnesses, and admitted by the men accused, that at Muibembetti, in the course of an expedition against the Banga, the accused in question, having lost his temper owing to a delay on the part of the carriers, fired upon them with his shot-gun loaded with small shot; one of the two discharges wounded a native woman in the back; and the wound was slight and did not cause her to be incapacitated from work;

On the fourth count:

Whereas the accused admits having caused to be detained at the factory of Mimbo some twenty natives who had been taken prisoners in the course of the expedition against the Banga, and that their detention had no other object than to force their villages to collect rubber; whereas he alleges in his defence that these people had been arrested with the authorization and assistance of Jamart, the Chief of the police station; whereas they were awaiting at Mimbo the instructions of the Commander of the police forces; whereas he maintains that this act was perfectly legal because the Government had, since the month of April 1901, authorized the Société Anversoise du Commerce au Congo to exact rubber as a tax from the people, and had decreed the penalty of detention in the case of refusal;

Whereas, in fact, the Public Prosecutor declared in the course of a trial before the Court of First Instance that he was authorized to state that a letter was in existence from the Governor-General to the Commissioner of the district of Nouvelle-Anvers, granting to the Société Anversoise du Commerce au Congo the right to exact rubber as a tax; whereas this letter adds that the Commander of the police force may, in case of refusal, put in force the penalty of detention; that he may delegate that right to an agent of the Société Anversoise du Commerce au Congo, but that it will always rest with him to decide if the detention is to be confirmed or not;

Whereas it is quite evident that taxes could not be established, or detention in case of non-payment decreed, by a mere letter;

And whereas the right of imposing taxes on the people, and of fixing penalties can only belong to the King Sovereign, or to those to whom he has legally delegated his authority for that purpose;

And whereas the Judicature would fail in its duty and its mission if it recognized in any other authority those powers which are reserved to the sovereign authority;

And whereas a law duly decreed and published would therefore have been necessary;

And whereas such a law has only appeared quite recently, a very long time after the acts which form the subject of the prosecution, and it requires, moreover, in order to render the penalty of detention applicable, conditions which do not exist in this case;

Whereas, consequently, the letter of the Governor-General being unable to run counter to the Penal Code could not justify the violation of individual liberty;

And whereas it is quite possible that the accused may have been mistaken on this point, but the fact of acting in good faith cannot be taken as a justification for a breach of the law;

Whereas it is just, however, to take this into consideration in order to give the accused, on this head, the benefit of extenuating circumstances to the greatest extent possible;

On the fifth count:

Whereas it is established and admitted by the men accused that one of the prisoners detained at Mimbo, having attempted to escape during the night, was killed with an Albini rifle by the sentry on guard;

And whereas the accused maintains that he had absolutely nothing to do with this act;

Whereas, although it is established by the evidence of the witnesses that the accused had always given his men orders to fire on prisoners who tried to escape, it is not, however, proved that the sentry who fired was one of the men placed directly under his orders;

Whereas, on the contrary the proceedings seem to show that the man in question was a workman of the post of Mimbo, and that he had been placed as a sentry by the Manager of that factory;

And whereas the murder, therefore, could not be imputed to the accused;

On the sixth count:

Whereas the accused admits that upon his return from the expedition against the Banga, a native Chief was killed in the prison of the police station of Banga by the soldiers of that station;

Whereas he admits that on two occasions, when he was in the company of Jamart, the soldiers came to ask for instructions relating to this prisoner, who was making a disturbance; and he also admits that he was actually present in the prison when the prisoner was killed; whereas, however, he affirms that neither he, nor Jamart, gave any order to the soldiers, and that he went to the prison solely to induce the prisoner to remain quiet;

Whereas all the witnesses interrogated on this point in the course of the preliminary inquiry, and at the hearing of the case, did, in a manner the most precise, and consistent in the most minute details, affirm that the accused twice gave the order to kill; first to Sergeant Tangua, who had come for instructions; and on the second occasion to the same sergeant and to the soldier Rixassi when they returned to get the order confirmed; and that it was the accused himself, who, in the prison, after the sergeant had fired upon the prisoner and missed him, handed the gun to the soldier Rixassi, who killed him;

Whereas the latter detail was also given by the witness Houart, confined in the prison at Boma, when the other witnesses were still in the Upper Congo; and it is, therefore, impossible that it was invented;

Whereas these two circumstances, absolutely established by other evidence as well as that of native witnesses, that the accused was in the prison and that he handed the gun to the man who fired, confirm in the most positive manner the fact that it was he who gave the order to fire, an order which the soldiers who were returning from the expedition, on which they had always looked upon the accused as their Commandant, could not hesitate to execute;

Whereas it is, moreover, amply evident that they certainly would not have killed without instructions, even in the presence of the accused;

On the seventh count:

Whereas the facts cited in the prosecution are established, and admitted by the accused, and constitute breaches of the Regulations as to fire-arms;

On the eighth count:

Whereas, as the first Judge declared, it is merely a question in this case of a simple exchange of ammunition between the troops of the State, and the Company’s armed men; and whereas a simple exchange cannot constitute a fraudulent abstraction, or (when it is only a question of cartridges, and not of the weapon itself) a contravention of the Regulations as to fire-arms;

Whereas, for the reasons given above, the accused must be declared guilty of murders with premeditation, as the moral author, through abuse of authority, of the deeds he is charged with on the first, second, and sixth counts; of blows and wounds on the third count; of arbitrary detention on the fourth count; of contraventions of the Regulations as to fire-arms on the seventh count; and he should be acquitted on the remainder of the counts;

Whereas there are reasons for granting extenuating circumstances to the accused, not only on account of the considerations submitted on the first, second, and fourth counts, but also on account of his good previous character during his long stay in Africa, and the great difficulties under which he must have laboured, as he had to do his duty in the midst of a population entirely hostile to all idea of work, and which only respects the law of force, and knows no other argument than terror;

Whereas it must be recognized that it must be very difficult to act within the law in a country still absolutely barbarous and savage, more especially when the laws to be obeyed in that country are the same as those which govern the most civilized peoples;

Whereas, to conclude, it is just to bear in mind that, although the acts are in themselves very grave, they lose a part of their gravity when they are considered in connection with the surroundings, in which, according to immemorial custom, human life has no value, and pillage, murder, and cannibalism were, until the other day, of ordinary occurrence.

As regards the accused Silvanus Jones:

Whereas it is duly established by the consistent testimony of the witnesses, and even by the contradictory evidence of the accused himself, that, during the month of October 1902, when he was Chief of the post of the Société Anversoise du Commerce au Congo at Bussa-Baya, he ordered the men placed under his orders to proceed to the neighbourhood of the factory, and to kill the natives that they met, to punish them for not having furnished a sufficient quantity of rubber, an order which his servant Bongi executed by killing a woman;

Whereas the accused maintains, as a subsidiary plea, that in any case he acted, as in other circumstances, in accordance with the orders of his superiors, especially with those of the District Chief M. Caudron;

Whereas--although these orders are not well established--the methods adopted by the District Chief Caudron to obtain rubber from the natives, and the fact that the accused had been placed at Bussa-Baya secretly, and that that post had been armed with eight Albini rifles without permission, give colour to the supposition, in favour of the accused, that in point of fact, he did but follow the instructions of his Chiefs;

And whereas, however, for the reasons already given, these orders could in no way justify or exculpate the accused;

And whereas he could not even be regarded as a passive and unconscious instrument in the hands of his Chiefs, because, although a black, he possesses some mental culture and belongs to a country already partly civilized;

And whereas he must have known perfectly well that to kill is a crime;

And whereas he, moreover, acted in his personal interest because he was paid in proportion to the rubber he collected;

Whereas, however, it is just to concede to him extenuating circumstances to the greatest possible extent, taking into account his surroundings and the example set by his Chief; and whereas it must be admitted that it would have been very difficult for a black man to withstand the influence of example;

And whereas, therefore, the Court of Appeal expresses the hope that the rigour of the penalty, which, according to law, it is compelled to confirm, may, in the case of this prisoner, be modified as soon as possible, by his conditional release;

For these reasons and those, cited by the First Judge, which do not conflict with them;

INDD The Court of Appeal:

Taking into consideration Articles 78 of the Decree of the 27th April, 1889; 3, 4, 11, 98, 101 (_bis_) and 101 (4) of the Penal Code; 2 and 9 of the Decree of the 10th March, 1892, and the Order of the 30th April, 1901;

Declares the appeal of the accused Caudron to be inadmissible;

And, on the appeal of the Public Prosecutor--

Amends the Judgment appealed against with respect to the accused Caudron, in regard to the penalty pronounced, and condemns him on the count of murders with premeditation, of blows and wounds, of arbitrary detention, and contraventions of the Regulations as to fire-arms, with extenuating circumstances, to five years’ penal servitude;

Confirms in other respects the Judgment which was the subject of appeal, also as regards the accused Silvanus Jones;

Ordains that the costs of the appeal shall be borne by the State.

Thus judged and pronounced in public sitting by the Tribunal, composed of M. Giacomo Nisco, President; MM. Albert Sweerts and Michel Cuciniello, Judges; M. Fernand Waleffe, Public Prosecutor; M. Paul Hodüm, Clerk.

The President, (Signed) G. NISCO.

The Judges, (Signed) SWEERTS. M. CUCINIELLO.

The Clerk, P. HODÜM.

Inclosure 2 in No. 3.

_Acting Consul Nightingale’s Interview with Silvanus Jones, a Native of Lagos, under Sentence of Ten Years’ Penal Servitude, in the Prison at Boma, for certain Atrocities committed whilst in the Employ of the S.C.A. (Société Congolaise Anversoise)._

_Q._ HOW long have you been in the employ of the S.C.A.?--_A._ I served five years, and then went home to Lagos, and after staying at home some time I returned to the Congo, and was re-engaged by the same Company. I am now completing the second year of my new contract.

_Q._ In what capacity were you engaged by the S.C.A.?--_A._ As a carpenter.

_Q._ How is it that, being engaged as a carpenter, you were buying rubber?--_A._ There was no more carpentering to be done, and as I had not completed my contract, I was ordered to buy rubber. Formerly I used to buy rubber at the same time as I was doing the carpentering.

_Q._ Have you ever killed, ill-treated the natives, or burnt down their houses?--_A._ On my oath, I never have.

_Q._ Do you understand the nature of an oath?--_A._ Yes; and if there were a Bible here I would swear on it.

_Q._ Can you read and write?--_A._ Only a very little--just my name.

_Q._ Were you aware that people were being shot or otherwise ill-treated, and that their villages were burnt?--_A._ Yes; I heard of such things going on, but I never witnessed anything of the sort except on one occasion at my own station. It was one day (the 9th December, 1902) when I was lying down, and suddenly I heard firing from outside, and a shot came through my house and nearly hit me. When I went outside I found a white agent of the Company, who had ordered his men (soldiers) to fire on a man and woman from about 120 yards’ distance. They were both killed. The woman was pregnant. When I asked the white agent (whose name I cannot remember) why he came and upset the people of my station, he replied, “How dare you speak to me, you black man; don’t you see that I am a white man, and can give what orders I like!”

_Q._ Were you ever ordered to go and punish the natives?--_A._ Yes. On one occasion, especially, I was ordered to send and punish some people who had fled into the bush. So I thought for a time as to what I should do, and at last resolved to send four soldiers into the bush to try and catch the people and bring them to me to see if I could make friends with them. I ordered the soldiers not to shoot any one, and sent my boy (a Bangala) with them to see that no shooting was done. They caught a man and a woman in the bush and took them to Little Basango (about three hours from my station), instead of coming back to me. It was my Bangala boy who shot the woman whilst she was stooping down at the side of the river, and she fell into the water and was carried away. I never saw the woman or her corpse, as it was carried away by the stream. I went down the river (about two and a-half hours’ journey in a canoe going there, and about six hours to come back) to report the affair to the white agent at the post there. It is for this affair, I am given to understand, that I am punished. But really I am not to blame, as I gave strict orders to the soldiers not to shoot any one.