(1.) CAUDRON, PHILLIP CHARLES FRANÇOIS, born at Anderlecht, Belgium,
Superintendent of the Melo Commercial Zone, in the service of the
Société Anversoise du Commerce au Congo; and
(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 the appeal of the accused Caudron is inadmissible, the appellant
not having deposited the costs in advance, in conformity with Article 78
of the Decree of the 27th April, 1889;
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;
On the first and second counts:
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 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;