Attendu que le prévenu soutient subsidiairement qu’en tout cas il aurait agi, ainsi qu’en d’autres circonstances, d’après les ordres de ses supérieurs, et notamment du Chef de Zone M. Caudron;

Attendu que, quoique ces ordres ne soient pas bien établis, les procédés employés par le Chef de Zone Caudron pour obtenir du caoutchouc des indigènes, et le fait que le prévenu avait été placé à Bussa-Baya clandestinement, et qu’on avait armé ce poste de huit fusils Albini sans permission, permet tout ou moins de supposer, dans l’intérêt du prévenu, que réellement il n’a fait que suivre les instructions de ses Chefs;

Que cependant, pour les raisons déjà exposées, ces ordres ne pourraient en aucun cas justifier ou excuser le prévenu;

Qu’on ne pourrait pas même le considérer comme un instrument passif et inconscient entre les mains de ses Chefs, puisque, quoique noir, il a une certaine culture d’esprit et appartient à un pays déjà en partie civilisé;

Qu’il devait bien savoir que tuer est un crime;

Qu’il a agit d’ailleurs aussi, dans son intérêt particulier, puisqu’il était payé en proportion du caoutchouc qu’il percevait;

Que cependant il est juste de lui faire application des circonstances atténuantes dans la mesure la plus large possible, en tenant compte du milieu où il se trouvait et des exemples qu’il recevait de ces Chefs; qu’il faut reconnaître que bien difficilement un noir aurait pu se soustraire à l’influence des exemples;

Que le Tribunal d’Appel, par conséquent, exprime le vœu que la libération conditionnelle vienne, aussitôt qu’il sera possible, tempérer pour ce prévenu la rigueur de la peine que, par application de la loi, il est forcé de confirmer;

Par ces motifs et ceux non contraires du premier juge;

Vu les Articles 78 du Décret du 27 Avril, 1889; 3, 4, 11, 98, 101 bis, et 101 (4) du Code Pénal, 2 et 9 du Décret du 10 Mars, 1892, et l’Arrêté du 30 Avril, 1901, déclare l’appel du prévenu Caudron non recevable;

Et statuant sur l’appel du Ministère Public;

Émendant le Jugement dont appel relativement au prévenu Caudron, en ce qui concerne la peine prononcée, le condamne, du chef de meurtres avec préméditation; de coups et blessures, de détentions arbitraires, et de contraventions aux dispositions sur les armes à feu, avec circonstances atténuantes, à cinq ans de servitude pénale;

Confirme pour le surplus le Jugement dont appel même en ce qui concerne l’autre prévenu, Jones, Silvanus;

Dit que les frais d’appel resteront à charge de l’État.

Ainsi jugé et prononcé en audience publique, où siégeaient—M. Giacomo Nisco, Président; MM. Albert Sweerts et Michel Cuciniello, Juges; M. Fernand Waleffe, Ministre Public; M. Paul Hodüm, Greffier.

Le Président,
(Signé) G. NISCO.

Les Juges,
(Signé) Sweerts.
M. Cuciniello.

Le Greffier,
P. Hodüm.

(Translation.)

Judgment in Appeal respecting the Cases of M. Caudron and S. Jones.

Public Hearing of March 15, 1904.

(No. on the list 395.)

The Public Prosecutor versus—

(2.) Jones, Silvanus, a native of Lagos, clerk in the service of the said Company:

The charges against the first-named were that, at the end of 1902, and at the beginning of 1903, when he was Superintendent of the Melo Commercial Zone, in the service of the Société Anversoise du Commerce au Congo:

1. He caused the village of Liboké to be attacked at night by the servants of the Society, armed with Albini rifles, thus directly bringing about the death of a certain number of natives of the said village of Liboké;

2. That he went about the country with a force composed of sixty State soldiers and of twenty servants of the Société Anversoise du Commerce au Congo, armed with Albinis, and caused the natives of the villages of Magugu, Teriba, Mandingia, Muibembetti and Kakoré to be attacked by this force, divided into small detachments, thus directly bringing about the death of a great number of natives of the said villages;

3. That he, at Muibembetti, deliberately wounded the woman Menniegbiré by discharging a shot-gun into her breast;

4. That he arbitrarily detained at Mimbo for nearly a month about twenty prisoners taken during his expeditions in the villages of Magugu, Teriba, Mandingia, Muibembetti, and Kakoré;

5. That at Mimbo he directly caused the death of a prisoner, having previously given instructions to the armed sentries under his orders to kill any prisoner who might attempt to escape;

6. That at the station of Binga-État, he gave an order to the sentries to kill a Mogwande Chief, an order which was executed by the soldier Kamassi;

7. That he established, or allowed to be established, at Bussu-Baya, and at Dengeseke, commercial factories where workmen were installed, armed with Albinis and cartridges, forming part of the armament of the factories of Mimbo and Binga, these arms and ammunition having been moved without authority, and having been used in committing the breaches of law, for which Silvanus Jones, chief of the factory of Bussu-Baya, and Bangi, his servant, are being prosecuted;

8. That, at the post of Mimbo, he handed over to his Headman (“Capita”) Kassango 100 Albini cartridges belonging to the State, and, at the post of Binga, handed over 200 cartridges to Houart, head of that factory; which proceedings constituted a fraudulent abstraction of cartridges, the property of the State; and, in the second place, a breach of the Regulations in regard to fire-arms, offences covered by Articles 1, 2, 3, 4, 11, 18, 19 of the Penal Code, 101 bis, 101 (4) of the Penal Code, Decree of 27th March, 1900; 2 and 9 of the Decree of 10th March, 1892, and the Order of 30th August, 1901, respecting fire-arms.

The charges against the second were that, at the end of 1902, he sent workmen of the Société Anversoise du Commerce au Congo, armed with Albinis, into the neighbourhood of the factory of Bussu-Baya, with instructions to kill the natives, and thus directly caused the death of a woman of Bassango, who was killed by a rifle-shot by his servant Bangi—offences covered by Articles 1 and 9 of the Decree of 10th March, 1892, and by the Order of 30th April, 1901, respecting fire-arms, and 1 and 2 of the Penal Code;

In view of the terms of the indictment against the above-named persons, and the verdict of the Court of First Instance of the Lower Congo, dated the 12th January, 1904, condemning the first-named to twenty years’ penal servitude and to seven-eighths of the costs of the action, and the second to ten years’ penal servitude and to one-eighth of the costs of the action;

Whereas appeals against the said verdict were made by the Public Prosecutor and by the accused Caudron, according to declarations received at the office of the Registrar of Court of Appeal on the 12th February, 1904;

Whereas the said appeals were notified to the Public Prosecutor and to the accused on the same day;

Whereas a summons was served on the accused on the 22nd February, 1904;

Whereas Judge Albert Sweerts has reported on the case;

Whereas the case has been heard before the Court of Appeal;

Whereas the Procureur d’État has addressed the Court for the prosecution;

Whereas the statements and defence of the accused have been heard, being presented on behalf of Caudron by M. de Neutor, the defending Counsel accepted by the Court;

Whereas the Court of Appeal has received the appeal of the accused Caudron, and the appeal of the Public Prosecutor relating to the latter, and to the other accused, Silvanus Jones;

Whereas, nevertheless, the appeal of the Public Prosecutor reopens the whole case even in the interest of those served with the notice of appeal.

With regard to the accused Caudron;

Whereas it is proved by the evidence of the witnesses and by the documents included in the “dossier”: (1) that, on the night of the 15th to 16th October, 1902, at the station of Akula in the district of the Melo, the accused Caudron, District Superintendent of the Société Anversoise du Commerce au Congo, with a view to punish the inhabitants of the village of Liboké for not furnishing the forced labour required of them, gave orders to five of his workmen, armed with Albinis, to go to the said village and fire on the inhabitants, orders which the workmen executed, killing the Chief and several inhabitants of the village;

(2) That in the course of the months of January, February, and March 1903, in order to force the natives of the region of the Banga to furnish a greater supply of rubber, he conducted an expedition into the said region with twenty of his workmen, armed with Albinis, and accompanied by a non-commissioned officer and fifty soldiers of the State; that in the course of this expedition he dispatched the workmen, armed with Albinis, and the soldiers, in small detachments, into the localities of Magugu, Teriba, Bongu, Muibembetti and Kakoré, with instructions to fire upon any natives they might meet—instructions which the workmen and soldiers carried out, thereby causing the death of a large number of natives;

Whereas the accused acknowledges the general truth of these facts, but pleads in extenuation that he acted in accordance with the authorization, and even by the order, of the authorities, represented, in the case of the Liboké incident, by M. Nagant, and, in the case of the expedition against the Banga, by M. Jamart, both Heads of the police-station at Binga;

Whereas, in the case of the Liboké incident, all the witnesses questioned on this point before the Court of First Instance and before the Court of Appeal denied categorically that M. Nagant was at Akula when the attack against that village took place, and that consequently he could not have authorized by his presence the order given by the accused Caudron, as the latter maintains;

Whereas the “dossier” contains, however, certified copies of two letters addressed by M. Collet, Manager of the station of Akula, to M. Nagant, the first dated the 12th October, 1902, asking him to take action against the village of Liboké, and the second dated the 16th October—that is, the day after the attack—thanking him for his action, and informing him that the natives had come in in the morning to the station and had undertaken to accomplish their allotted tasks with regularity; and the authenticity of these letters is denied by the prosecution, who maintain that they were forged subsequently in the interest of the accused;

Whereas, however, the three facts: that they have been included in the “dossier” by the Magistrate in charge of the case; that they were found in the office of the police-station, and that they were admitted by M. Collet in the course of the preliminary inquiry, do not allow of their being considered as forgeries and consequently rejected;

Whereas, since a doubt exists, the version most favourable to the accused must be accepted—that is to say, that the Chief of the police station, Nagant, was at Akula when the attack on the village of Liboké took place, and that he was aware of, and authorized that attack;

Whereas, consequently, any supplementary examination relative to the said circumstances would be absolutely useless in the interest of the defence;

Whereas, in the case of the expedition against the Banga, the presence in that expedition of the Chief of Police, Jamart, with fifty soldiers of the State is not denied, and it is, moreover, proved that the accused acted throughout on that occasion in perfect accord with the former; whereas it remains, therefore, to be determined whether the presence and the authorization of these representatives of authority may be taken as justifying the action of the accused;

Whereas it is a principle, expressly recognized by the codes on which our legislation is based, that, in order to exclude the idea of an offence, it is not enough that the action may have been ordered by the Executive authorities, but it is necessary also that it should be prescribed by the law;

Whereas there is no doubt in the present instance that it is a case of offences against common law, that is to say, of manslaughter committed for a private purpose with the object of forcing the natives to supply labour or produce;

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;

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;

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;

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;

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;

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 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;

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

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.

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 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;

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.

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 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.

Q. Did you know when you were sent for to come to Boma that you were going to be tried for committing certain outrages on the natives?—A. No.

Q. Were you brought down to Boma under a military escort?—A. No; I came down alone; but when I arrived at Boma I was met by a guard of soldiers, and was taken to the prison, where I remained five days, and was then let out.

Q. Did you know that you were going to be tried for various outrages committed on the natives?—A. No; I was under the impression that I had been called as a witness against that man.

[Jones pointed to a man who was writing at a desk in the gaoler’s office, who, I was told, was M. Caudron.]

Q. You knew absolutely nothing about your being kept in Boma to be tried for serious offences you were accused of having committed?—A. I knew absolutely nothing.

Q. Would you have employed an advocate to defend you had you known that you were going to be tried for such serious offences against the laws of the country?—A. Most certainly I would. I brought down with me 3,500 fr., and the Judge has got 3,000 fr. of that sum, which I wish you to mind for me. I think you have the receipt.

[Note.—The receipt was handed to Mr. Nightingale by a Lagos man named Shanu a few days ago.]

Q. You know, I suppose, that you have been sentenced to ten years’ penal servitude?—A. Yes; I was sentenced to ten years by the first Judge, but the second Judge reduced it to two and a-half years; and they say that if I behave properly that I may get my liberty in six months.

[Note.—Jones has misunderstood his sentence. The sentence of ten years passed in the Court of First Instance was upheld in the Appeal Court.]

Q. What work have they given you to do here?—A. I am employed on the carpentering work of this building (pointing to a stone house that is in course of construction).

Q. You declare you are perfectly innocent of the charges brought against you, and for which you have been condemned to ten years’ penal servitude?—A. Yes, Sir; I am innocent.

Q. You wish me to hold the 3,000 fr. for you?—A. Yes; if you please, Sir.

(Signed) A. NIGHTINGALE.

Inclosure 3 in No. 3.

Note.

JONES, SILVANUS, originaire de Lagos, clerc au service de la Société Commerciale Anversoise, prévenu d’avoir, à la fin de l’année 1902, envoyé des travailleurs de la Société Anversoise du Commerce au Congo, armés de fusils Albini, dans les environs de la factorerie de Bussu-Baya et avoir ainsi été la cause directe de la mort d’une femme de Bassanga, tuée d’un coup d’Albini, par son domestique Bangi—infractions prévues par les Articles 1 et 9 du Décret de 10 Mars, 1892, et l’Arrêté du 30 Avril, 1901, sur les armes à feu et 1 et 2 du Code Pénal.

L’Article 1 du Décret du 10 Mars, 1892 (B.O., 1892, p. 14), interdit l’importation, le trafic, le transport, et la détention d’armes à feu quelconques, ainsi que la poudre, de balles et de cartouches. L’Article 9 du même Décret punit toute infraction à cette disposition d’une amende de 100 fr. à 1,000 fr., et d’une servitude pénale n’excédant pas une année, ou de l’une de ces peines seulement. L’Arrêté du 30 Avril, 1901 (R.M., p. 86), subordonne à certaines formalités les demandes pour la délivrance de permis de port d’armes. L’Article 1 du Code Pénal (L. 11) définit l’homicide et les lésions corporelles volontaires. L’Article 2 définit le meurtre et le punit de la servitude pénale à perpétuité.

(Translation.)

SILVANUS JONES, native of Lagos, clerk in the Service of the Société Commerciale Anversoise, accused of having, at the end of the year 1902, sent some workmen in the employ of the Société Anversoise du Commerce au Congo, armed with Albini rifles, to the neighbourhood of the Bussu-Baya factory and thus been the direct cause of the death of a woman of Bassanga, who was killed by a shot from an Albini fired by his servant Bangi—which offences are covered by Articles 1 and 9 of the Decree of the 10th March, 1892, and the Order of the 30th April, 1901, respecting fire-arms and 1 and 2 of the Penal Code.

Article 1 of the Decree of the 10th March, 1892 (B.O., 1892, p. 14), forbids the importation, trade in, transport and keeping of, any fire-arms whatever, or of powder, bullets, or cartridges. Article 9 of the same Decree punishes every infraction of this provision by a fine of 100 fr. to 1,000 fr. and by a term of penal servitude not exceeding one year, or by one only of those penalties. The Order of the 30th April, 1901 (R.M., p. 86), attaches certain formalities to requests for the delivery of permits to carry arms. Article 1 of the Penal Code (L. 11) defines homicide and wilful bodily injury. Article 2 defines murder and punishes it by penal servitude for life.

My Lord,

Brussels, May 14, 1904.

M. de Cuvelier handed to me this evening a Memorandum, of which I have the honour to inclose copy, which has been drawn up at the Congo Ministry in rejoinder to the points raised in your Lordship’s despatch of the 19th ultimo, on the subject of the administration of the Congo.

I have, &c.
(Signed) CONSTANTINE PHIPPS.

Inclosure in No. 4.

Memorandum.

LA dépêche de Lord Lansdowne du 19 Avril, 1904, dont copie a été remise par Son Excellence Sir Constantine Phipps au Gouvernement du Congo le 27 Avril suivant, appelle quelque considérations.

En réponse aux objections que le Gouvernement de Sa Majesté élève contre la communication du texte intégral du Rapport de Mr. Casement, le Gouvernement de l’État du Congo fait remarquer qu’il a demandé la communication de ce Rapport complet en vue précisément de le transmettre aux autorités judiciaires et administratives compétentes, sans quoi cette communication serait sans objet. Le souci d’une enquête impartiale et les droits de la défense exigent impérieusement que les accusés connaissent, d’une manière précise et dans leurs détails, les faits mis à leur charge, et l’appréhension que les personnes accusées pourraient, de par la connaissance qu’elles auraient de ces détails, influencer ou supprimer des témoignages ne semble pas justifiée par ce seul fait que des indigènes, qui, dans l’affaire Epondo, avaient fourni au Consul des informations mensongères, ont évité par la suite de se représenter devant le Magistrat enquêteur; la fuite de ces témoins s’explique plus naturellement par le sentiment de la faute grave qu’ils avaient commise en trompant sciemment le Consul Anglais. Si le Gouvernement du Congo peut donner, et donne volontiers, l’assurance que tout acte ou toute tentative de subornation de témoins serait poursuivi, il n’est évidemment pas en son pouvoir de préjuger ou d’enrayer les mesures légales que croiraient devoir prendre, dans l’intérêt de leur honneur ou de leur considération, des personnes qui se trouveraient avoir été faussement accusées.

Le Gouvernement de l’État du Congo regrette que le Gouvernement de Sa Majesté Britannique n’estime pas devoir lui communiquer les autres Rapports Consulaires antérieurs auxquels faisait allusion la dépêche de Lord Lansdowne du 8 Août, 1903. Ainsi que le disaient les notes du 12 Mars dernier, ces rapports présentaient l’intérêt d’avoir été écrits à une date à laquelle de débat actuel n’était pas né.

Une copie de ce Mémorandum sera adressée aux Puissances auxquelles a été transmise la copie de la dépêche de Lord Lansdowne du 19 Avril dernier.

État Indépendant du Congo, Bruxelles,
le 14 Mai, 1904.

(Translation.)

LORD LANSDOWNE’S despatch of the 19th April, 1904, a copy of which was handed to the Congo Government on the 27th April by his Excellency Sir Constantine Phipps, calls for certain remarks.

In reply to the objections raised by His Majesty’s Government against the communication of the entire text of Mr. Casement’s Report, the Government of the Congo State points out that it has asked for the complete Report precisely with a view to transmitting it to the competent judicial and administrative authorities, without which this communication would be purportless. The anxiety to obtain an impartial inquiry and the rights of the defence render it an imperative necessity that the men accused should be informed, in a precise and fully-detailed manner, of the acts laid to their charge; the fear that the persons accused might be able, by means of the knowledge they would have of the details, to influence or suppress evidence, does not appear to be justified by the mere fact that the natives, who, in the Epondo case, had given mendacious information to the Consul, subsequently avoided presenting themselves before the Magistrate presiding over the inquiry; the flight of these witnesses is explained more naturally by the fact that they were conscious of the grave fault they had committed in wittingly deceiving the English Consul. If the Congo Government be permitted to give an assurance, which it does willingly, that any case of suborning witnesses, or any attempt to do so, would form the subject of a prosecution, it is evidently not within its power to prejudice or quash such legal measures as persons who might find themselves wrongfully accused might consider it necessary to take, either in the interests of their honour or their dignity.

The Government of the Congo State regrets that His Majesty’s Government does not deem it necessary to communicate to it the other previous Consular Reports to which Lord Lansdowne’s despatch of the 8th August, 1903, alluded. As was stated in the notes of the 12th March last, these reports possessed the interest of having been written at a date anterior to the inception of the present discussion.

A copy of this Memorandum will be addressed to the Powers to whom copies of Lord Lansdowne’s despatch of the 19th April last was transmitted.

Congo Free State, Brussels,
May 14, 1904.

Sir,

Foreign Office, June 6, 1904.

WITH reference to my despatch of the 19th April, I transmit to you, for communication to the Congo Government, a Memorandum on the remaining points in the “Notes” handed to you on the 13th March which would appear to His Majesty’s Government to call for observation.

His Majesty’s Government cannot accept as adequate or satisfactory an answer which implies that the information which they are asked to supply will be accessible to the very persons whose conduct has been impugned, before any measures have been taken to shield the witnesses from the exercise of improper pressure. They have, of course, never entertained the idea that the Congo Government would connive at any such malpractice as the subornation of witnesses. They have not asked, and have never intended to suggest, that legal remedies should be denied to those against whom unfounded accusations have been publicly brought, nor do they desire that those, if any, who have given such false evidence should be shielded from the proper legal penalty for their offence. What they require is that the Congo Government, in accordance with the recognized principles of civilized administration, will take every means to secure that the witnesses, if their names should be divulged, will suffer no harm in their property or persons from the unlawful violence of those to whose desire for revenge they may be exposed. No argument can be entertained to the effect that acts of violence are improbable or impossible under a system such as that revealed by the Judgment pronounced by the Court of Appeal at Boma in the Caudron Case, and His Majesty’s Government earnestly trust that the Congo Government will recognize the immense service that will be rendered both to the cause of humanity and to the credit of their own officers by promoting unreservedly a full and public investigation by a Tribunal of recognized competence and impartiality into the charges made against their agents and against their system of administration.

There is another point to which His Majesty’s Government must call attention. The inquiry promised in the “Notes” is, no doubt, intended to be of a searching and impartial character, and His Majesty’s Government hoped that they would before now have received some indication of the measures designed to carry out this intention. In the peculiar circumstances which have arisen, strict impartiality will hardly be attributed to an investigation conducted as in the Epondo case solely by the officers of the State or by the agents of the Concessionary Companies, nor will the result carry conviction to the degree which seems essential. The matter is one which must be left to the decision of the Congo Government, and it is only because, in the judgment of His Majesty’s Government, the whole question at issue turns in a great measure upon the position and character of those charged with the inquiry that they feel justified in mentioning the point, and in suggesting that a Special Commission should be appointed, composed of Members of well-established reputation, and in part, at least, of persons unconnected with the Congo State, to whom the fullest powers should be intrusted both as regards the collection of evidence and the measures for the protection of witnesses. Were a Commission of this character appointed His Majesty’s Government would be prepared to place at the disposal of the Members, for their own use and guidance, all the information they possess respecting the position of affairs in the Congo, and would give them every assistance, in the confident belief that an independent Commission such as they have suggested would elicit the truth, and effect in a manner commanding general acceptance a settlement of the existing controversy.

You will read this despatch to M. de Cuvelier and give a copy of it to his Excellency. Copies of the despatch and of the inclosed Memorandum will also be forwarded to the Powers who were Parties to the Berlin Act.

I am, &c.

(Signed) LANSDOWNE.

Inclosure in No. 5.

Memorandum.

THE first portion of the “Notes” refers to the desire expressed by the Congo Government for the production of the previous Reports of His Majesty’s Consuls alluded to in the Circular of His Majesty’s Government of the 8th August last. This matter has already been dealt with in the despatch addressed to Sir C. Phipps on the 19th of April.

The next point in the “Notes” is the statement made by Mr. Casement that the population has decreased in certain districts; doubt is expressed as to how, in the course of his rapid visits, he was able to arrive at the figures which he gives, and attention is drawn to alleged discrepancies in those figures. With regard to Mr. Casement’s ability to form an opinion on the subject, it is to be observed that the means at his disposal for doing so were neither greater nor less than those of Mgr. van Ronslé, viz., personal knowledge of what the population had been in former years and what it appeared to him to be at the date of his last visit. The alleged discrepancy in his figures consists in the fact that, having estimated the population of the entire community of the F line of villages at 500, a few lines further on he estimates that of “the several villages whose task it is to keep the wood post victualled” at 240. The explanation is to be found in the fact that in the first instance Mr. Casement alluded to all the villages comprising the Settlement, whereas in the second he referred only to the inhabitants of that portion of the Settlement whose business it was to supply food for the neighbouring wood-cutting post.

The Congo Government admit that Mr. Casement attributes, equally with Mgr. van Ronslé, a large share of the diminution of the population to the sleeping sickness, but attach to another cause, viz., the facility with which the natives are able to migrate, greater weight than appears to His Majesty’s Government to be justifiable, since more than one reference in the Consul’s Report shows that the natives are not allowed to leave their own districts.

On p. 4 of the “Notes” (p. 3, supra) the complaint is made that Mr. Casement’s Report contains, not exact, precise, and proved facts, but statements and declarations by natives. It is difficult, however, to see how the facts dealt with can be proved without hearing the statements and declarations of natives: the grounds of their complaints at all events can be learnt exactly and precisely from them alone.

In the last paragraph of p. 4 (p. 3, supra) an attempt is made to show that because during his journey into the interior of the Congo State, Mr. Casement was not the guest of the authorities, and because during that journey he visited his countrymen, therefore his presence must “inevitably” have been considered by the natives as antagonistic to “established authority.” Mr. Casement was, however, obviously at liberty to move about his Consular district without previous consultation with the authorities, and he was at special pains to impress on the people that he had no authority to set things right. It is clear from his Report, as indeed is borne out by the “Notes,” that he was careful to refer the natives to the Government of the State. As a matter of fact, in many parts of the country the natives did not know who he was, while it is equally certain that the rumour of the “campagne menée contre l’État du Congo” to which allusion is made as having influenced the inhabitants could not possibly have reached them, since it is difficult to imagine that a population who are represented as among the most savage and backward of mankind, and dwelling in the heart of Africa, could be aware of debates in a European assembly, or of the press comments made thereon.

Mr. Casement could not, as asserted, have appeared to all the natives of the Lulongo River in the character attributed to him, and this is shown in a letter the agent of the Lulanga Company at Bokakata addressed to Mr. Ellery, of the Congo Balolo Mission at Ikau, on the 28th August.

Mr. Casement had found women hostages tied up and guarded by two sentries of that Company who told him how it was these women came to be captured and detained, in order to compel their husbands to bring in rubber.

This letter begins by stating that—