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;