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.
_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.
_Boma, March 21, 1904._
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.
No. 4.
_Sir C. Phipps to the Marquess of Lansdowne._--(_Received May 16._)
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.
Relativement à l’appréciation contre laquelle s’élève cette dépêche
“that the interests of humanity have been used in this country as a
pretext to conceal designs for the abolition of the Congo State,” l’on
voudra bien se souvenir qu’un membre de la Chambre des Communes
déclarait qu’il préfèrerait “voir la vallée du Congo passer à une
Puissance étrangère,” et que des pamphlets indiquaient comme “absolute
and immediate necessities,” “Disruption of the Congo Free State,”
“Partition of the Congo Free State among the Powers,” et suggéraient
même les bases d’un tel partage, tandis que des organes de la presse
Anglaise envisageaient soit l’alternative “advocated by the more
thorough-going critics of the present Administration, namely, the
disruption of the Congo Free State,” soit l’alternative de “the
partition of the Congo territory among the Great Powers whose
possessions in Africa border those of the Congo State,” ou déclaraient
“what Europe ought to do, under the leadership of Great Britain, is
summarily to sweep the Congo Free State out of existence.” La Note de
l’État du Congo du 17 Septembre a relevé ces suggestions, dont nous
n’indiquons ici que la tendance et qui toutes avaient pour objet de
spolier le Roi-Souverain, de le déposséder de l’État qui était sa
création personnelle--suggestions qui se concilient bien mal avec le
respect du droit et des Traités, et avec les motifs d’ordre purement
humanitaire et philanthropique dont se disent exclusivement animés les
adversaires de l’État dans la campagne passionnée qu’ils mènent contre
lui.
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.
With regard to the opinion to which this despatch takes exception, “that
the interests of humanity have been used in this country as a pretext to
conceal designs for the abolition of the Congo State,” it will be well
to remember that a Member of the House of Commons declared that he would
prefer “to see the Valley of the Congo pass into the hands of a foreign
Power,” and that some pamphlets described the “Disruption of the Congo
Free State,” the “Partition of the Congo Free State among the Powers,”
as absolute and immediate necessities, and even went so far as to
suggest the bases of such a partition, while the organs of the English
press contemplated one of two alternatives, either that “advocated by
the more thorough-going critics of the present Administration, namely,
the disruption of the Congo Free State,” or “the partition of the Congo
territory among the Great Powers whose possessions in Africa border
those of the Congo Free State,” or declared that “what Europe ought to
do, under the leadership of Great Britain, is summarily to sweep the
Congo Free State out of existence.” The Congo State Note of the 17th
September has called attention to these suggestions, of which we merely
point out the tenour in this instance, and which all aimed at despoiling
the Sovereign King, and at dispossessing him of the State which was his
own creation--suggestions which are entirely incompatible with respect
for rights and Treaties, and with the motives of a purely humanitarian
and philanthropic nature by which the enemies of the State allege
themselves to be exclusively animated in the passionate campaign which
they are conducting against it.
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._
No. 5.
_The Marquess of Lansdowne to Sir C. Phipps._
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.
I request you, in presenting this Memorandum, to take the opportunity of
stating that His Majesty’s Government much regret that, in M. de
Cuvelier’s Memorandum of the 14th May, a more definite reply is not
returned to the inquiries which they deemed it necessary to make before
considering whether they could furnish the full text of Mr. Casement’s
Report. My despatch explained that the names in the Report had been
suppressed, not from any want of confidence in the Central Government of
the Congo State, but from apprehension that the information, if made
generally public, would place it in the power of persons charged with
abuses to procure the suppression or repudiation of evidence, or to
punish those who had given it. His Majesty’s Government asked,
therefore, whether the Congo Government would accept full responsibility
for the use which would be made of the information, and would
communicate the measures they were prepared to adopt and enforce in
order to protect the witnesses who gave evidence to Mr. Casement from
the possibility of exposure to acts of intimidation or retaliation. It
was clearly incumbent upon His Majesty’s Government to provide as far as
possible for the safety of those at any rate whose statements to a
British officer were made with no knowledge that they would be cited by
name as responsible for charges upon which public proceedings would be
based. They entertained therefore no doubt that the Congo Government
would appreciate their motives, and would willingly undertake, in
furtherance of the object which both Governments have in view, to meet,
so far as lay in their power, the requirements of the case. The
Memorandum handed to you by M. de Cuvelier, after dwelling upon the
necessity of full information for the purpose of investigation, merely
declares that the Government of the Congo are ready to give an assurance
that proceedings will be taken against all who attempt to suborn
witnesses, but that they cannot prejudice or prevent legal measures
instituted in defence of their honour or reputation by those who may
have been falsely accused.
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.