Part 30
And whereas the murder, therefore, could not be imputed to the accused;
On the sixth count:
Whereas the accused admits that upon his return from the expedition against the Banga, a native Chief was killed in the prison of the police station of Banga by the soldiers of that station;
Whereas he admits that on two occasions, when he was in the company of Jamart, the soldiers came to ask for instructions relating to this prisoner, who was making a disturbance; and he also admits that he was actually present in the prison when the prisoner was killed; whereas, however, he affirms that neither he, nor Jamart, gave any order to the soldiers, and that he went to the prison solely to induce the prisoner to remain quiet;
Whereas all the witnesses interrogated on this point in the course of the preliminary inquiry, and at the hearing of the case, did, in a manner the most precise, and consistent in the most minute details, affirm that the accused twice gave the order to kill; first to Sergeant Tangua, who had come for instructions; and on the second occasion to the same sergeant and to the soldier Rixassi when they returned to get the order confirmed; and that it was the accused himself, who, in the prison, after the sergeant had fired upon the prisoner and missed him, handed the gun to the soldier Rixassi, who killed him;
Whereas the latter detail was also given by the witness Houart, confined in the prison at Boma, when the other witnesses were still in the Upper Congo; and it is, therefore, impossible that it was invented;
Whereas these two circumstances, absolutely established by other evidence as well as that of native witnesses, that the accused was in the prison and that he handed the gun to the man who fired, confirm in the most positive manner the fact that it was he who gave the order to fire, an order which the soldiers who were returning from the expedition, on which they had always looked upon the accused as their Commandant, could not hesitate to execute;
Whereas it is, moreover, amply evident that they certainly would not have killed without instructions, even in the presence of the accused;
On the seventh count:
Whereas the facts cited in the prosecution are established, and admitted by the accused, and constitute breaches of the Regulations as to fire-arms;
On the eighth count:
Whereas, as the first Judge declared, it is merely a question in this case of a simple exchange of ammunition between the troops of the State, and the Company’s armed men; and whereas a simple exchange cannot constitute a fraudulent abstraction, or (when it is only a question of cartridges, and not of the weapon itself) a contravention of the Regulations as to fire-arms;
Whereas, for the reasons given above, the accused must be declared guilty of murders with premeditation, as the moral author, through abuse of authority, of the deeds he is charged with on the first, second, and sixth counts; of blows and wounds on the third count; of arbitrary detention on the fourth count; of contraventions of the Regulations as to fire-arms on the seventh count; and he should be acquitted on the remainder of the counts;
Whereas there are reasons for granting extenuating circumstances to the accused, not only on account of the considerations submitted on the first, second, and fourth counts, but also on account of his good previous character during his long stay in Africa, and the great difficulties under which he must have laboured, as he had to do his duty in the midst of a population entirely hostile to all idea of work, and which only respects the law of force, and knows no other argument than terror;
Whereas it must be recognized that it must be very difficult to act within the law in a country still absolutely barbarous and savage, more especially when the laws to be obeyed in that country are the same as those which govern the most civilized peoples;
Whereas, to conclude, it is just to bear in mind that, although the acts are in themselves very grave, they lose a part of their gravity when they are considered in connection with the surroundings, in which, according to immemorial custom, human life has no value, and pillage, murder, and cannibalism were, until the other day, of ordinary occurrence.
As regards the accused Silvanus Jones:
Whereas it is duly established by the consistent testimony of the witnesses, and even by the contradictory evidence of the accused himself, that, during the month of October 1902, when he was Chief of the post of the Société Anversoise du Commerce au Congo at Bussa-Baya, he ordered the men placed under his orders to proceed to the neighbourhood of the factory, and to kill the natives that they met, to punish them for not having furnished a sufficient quantity of rubber, an order which his servant Bongi executed by killing a woman;
Whereas the accused maintains, as a subsidiary plea, that in any case he acted, as in other circumstances, in accordance with the orders of his superiors, especially with those of the District Chief M. Caudron;
Whereas--although these orders are not well established--the methods adopted by the District Chief Caudron to obtain rubber from the natives, and the fact that the accused had been placed at Bussa-Baya secretly, and that that post had been armed with eight Albini rifles without permission, give colour to the supposition, in favour of the accused, that in point of fact, he did but follow the instructions of his Chiefs;
And whereas, however, for the reasons already given, these orders could in no way justify or exculpate the accused;
And whereas he could not even be regarded as a passive and unconscious instrument in the hands of his Chiefs, because, although a black, he possesses some mental culture and belongs to a country already partly civilized;
And whereas he must have known perfectly well that to kill is a crime;
And whereas he, moreover, acted in his personal interest because he was paid in proportion to the rubber he collected;
Whereas, however, it is just to concede to him extenuating circumstances to the greatest possible extent, taking into account his surroundings and the example set by his Chief; and whereas it must be admitted that it would have been very difficult for a black man to withstand the influence of example;
And whereas, therefore, the Court of Appeal expresses the hope that the rigour of the penalty, which, according to law, it is compelled to confirm, may, in the case of this prisoner, be modified as soon as possible, by his conditional release;
For these reasons and those, cited by the First Judge, which do not conflict with them;
INDD The Court of Appeal:
Taking into consideration Articles 78 of the Decree of the 27th April, 1889; 3, 4, 11, 98, 101 (_bis_) and 101 (4) of the Penal Code; 2 and 9 of the Decree of the 10th March, 1892, and the Order of the 30th April, 1901;
Declares the appeal of the accused Caudron to be inadmissible;
And, on the appeal of the Public Prosecutor--
Amends the Judgment appealed against with respect to the accused Caudron, in regard to the penalty pronounced, and condemns him on the count of murders with premeditation, of blows and wounds, of arbitrary detention, and contraventions of the Regulations as to fire-arms, with extenuating circumstances, to five years’ penal servitude;
Confirms in other respects the Judgment which was the subject of appeal, also as regards the accused Silvanus Jones;
Ordains that the costs of the appeal shall be borne by the State.
Thus judged and pronounced in public sitting by the Tribunal, composed of M. Giacomo Nisco, President; MM. Albert Sweerts and Michel Cuciniello, Judges; M. Fernand Waleffe, Public Prosecutor; M. Paul Hodüm, Clerk.
The President, (Signed) G. NISCO.
The Judges, (Signed) SWEERTS. M. CUCINIELLO.
The Clerk, P. HODÜM.
Inclosure 2 in No. 3.
_Acting Consul Nightingale’s Interview with Silvanus Jones, a Native of Lagos, under Sentence of Ten Years’ Penal Servitude, in the Prison at Boma, for certain Atrocities committed whilst in the Employ of the S.C.A. (Société Congolaise Anversoise)._
_Q._ HOW long have you been in the employ of the S.C.A.?--_A._ I served five years, and then went home to Lagos, and after staying at home some time I returned to the Congo, and was re-engaged by the same Company. I am now completing the second year of my new contract.
_Q._ In what capacity were you engaged by the S.C.A.?--_A._ As a carpenter.
_Q._ How is it that, being engaged as a carpenter, you were buying rubber?--_A._ There was no more carpentering to be done, and as I had not completed my contract, I was ordered to buy rubber. Formerly I used to buy rubber at the same time as I was doing the carpentering.
_Q._ Have you ever killed, ill-treated the natives, or burnt down their houses?--_A._ On my oath, I never have.
_Q._ Do you understand the nature of an oath?--_A._ Yes; and if there were a Bible here I would swear on it.
_Q._ Can you read and write?--_A._ Only a very little--just my name.
_Q._ Were you aware that people were being shot or otherwise ill-treated, and that their villages were burnt?--_A._ Yes; I heard of such things going on, but I never witnessed anything of the sort except on one occasion at my own station. It was one day (the 9th December, 1902) when I was lying down, and suddenly I heard firing from outside, and a shot came through my house and nearly hit me. When I went outside I found a white agent of the Company, who had ordered his men (soldiers) to fire on a man and woman from about 120 yards’ distance. They were both killed. The woman was pregnant. When I asked the white agent (whose name I cannot remember) why he came and upset the people of my station, he replied, “How dare you speak to me, you black man; don’t you see that I am a white man, and can give what orders I like!”
_Q._ Were you ever ordered to go and punish the natives?--_A._ Yes. On one occasion, especially, I was ordered to send and punish some people who had fled into the bush. So I thought for a time as to what I should do, and at last resolved to send four soldiers into the bush to try and catch the people and bring them to me to see if I could make friends with them. I ordered the soldiers not to shoot any one, and sent my boy (a Bangala) with them to see that no shooting was done. They caught a man and a woman in the bush and took them to Little Basango (about three hours from my station), instead of coming back to me. It was my Bangala boy who shot the woman whilst she was stooping down at the side of the river, and she fell into the water and was carried away. I never saw the woman or her corpse, as it was carried away by the stream. I went down the river (about two and a-half hours’ journey in a canoe going there, and about six hours to come back) to report the affair to the white agent at the post there. It is for this affair, I am given to understand, that I am punished. But really I am not to blame, as I gave strict orders to the soldiers not to shoot any one.
_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.