Part 29
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._
The Court of Appeal at Boma, sitting for the consideration of Criminal Cases, has pronounced the following Judgment:--
_Public Hearing of March 15, 1904._
(No. on the list 395.)
The Public Prosecutor _versus_--
(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;