STATE LANDS AND CONCESSIONS
[Sidenote: The State’s Heavy Task.]
It would seem reasonable that practical colonial government should
begin the pursuit of its objects by a policy so flexible that
it might readily conform to the altering conditions upon which
it operates. The exceptional nature of the task imposed upon
the Government of the Congo Free State, its varied and numerous
difficulties, and the uncertainty of the radical principles imposed
upon it, left its administrators no choice of colonial precedent to
follow, no governmental model to adopt. It stood alone, in a unique
enterprise not devoid of new hazards, pitfalls, and strange terrors.
It had been regarded at first as an adventure, then as a serious
experiment. A civil community was to be created of savage hordes;
to maintain itself by its own people led on to civilisation by a
few Europeans with a courage and zeal the equatorial sun should not
subdue. The vast field it occupied and the untamed characteristics
of its large population, the early philanthropic aims of its royal
patron, and a general desire to carry out the principles enunciated
at the Berlin Conference, all contributed to invest the Congo State
Government with a special character, and to saddle it with original
duties supposedly beyond its powers to perform. Thus, in the
midst of an unexplored and barbarous land, with everything before
it unknown, with all behind it seemingly unsuited for employment
here, ways and means and a state system of government had to be
adopted not only for internal regulation and development, but also
to maintain the integrity of its relations with the rival Powers
which surrounded it. The natural problems of the sovereignty of
an unknown land and savage people were difficult enough; but when
these had been intensified and their practical solution hindered by
the fine theories and high ideals of the Berlin Conference, there
appeared reason for the belief that a West African Don Quixote had
been charged to assault a windmill. Colonial traditions appeared to
the men on the spot to be inapplicable to the Congo. There was no
tax-burdened home government to rely upon for support. Nor were the
African forests or the palaces and mansions of Europe crowded with
philanthropists desirous of dedicating their fortunes to the welfare
of the Bantu race in the distant Congo. In popular parlance, the King
and his Congo were left to subsist on fine sentiments and a jug of
water. If in these circumstances a colonial policy of self-support
was adopted and carried out with an economic skill which in its
results excites foreign envy and covetousness to-day, it should
not be attributed to wrong motive, but to that of stern necessity.
Concerning this formative period of early Congolese policy the recent
exposition of Baron Descamps may be aptly quoted:
The problem had to be solved without bringing into conflict
certain elements which are difficult to assimilate, namely, the
exigencies of commercial freedom as recognised by the conventions,
the civilisation of the natives and their material and moral
improvement, the exigencies of the life and progress of the State
itself considered as the organic principle of the new political
society, and finally the exigencies or rather conditions relating
to the personal union of the Free State with Belgium.
In the accomplishment of this complex task, the State was
first inspired with the principle of a scrupulous respect for
international engagements. This principle was never lost sight of,
even at the critical periods of its life following on the Berlin
Conference, when a _régime_ of complete exemption from import
duties weighed heavily upon its economic existence.
The State was also filled with the determination to faithfully
respect the declaration of permanent neutrality which it made
a short time after the Berlin Conference. As we have remarked
elsewhere, this was an honourable action towards the Powers who
were thus reassured concerning the policy and pacific autonomy of
the new State. It was also an act of prudence which protected the
Congo State from the solicitations of other States interested in
influencing its political life.[36]
[Illustration: Children of the Settlement School at Boma Praying.]
[Sidenote: The State’s Policy.]
The policy of the new State was to be “fruitful activity” in peace
and order as soon as the Arab wars had ceased and the slave trade had
been superseded by an agricultural and industrial _régime_. With a
neutralised State this seemed to be a permanent function commendable
alike to its people, its Government, and its international associates
and sponsors. Whether we regard the moral concomitant of an era of
fruitful activity or only the material essentials of a community
so employed, the bald reality called for men and money for its
accomplishment. Of white men there were few in a region where a
tropical sun, and other climatic disadvantages, counted heavily
against their labour. The Negro alone appeared to thrive in
conditions more suited to his physical characteristics. The problem
of creating a State of the Negro population involved social and
material questions of vast import to those who had undertaken to
develop and govern this unknown and savage land. Should the Negro be
taught the nobility of labour—informed of the glorious edifices to
civilisation it had reared and what benefits its pursuit would shower
upon him if he would but follow the white man’s precept and example
in the sphere of honest toil?
The trade in black men had been suppressed by the courageous white
men of Belgium. Trade in the material resources of the country
was now but a phenomenon of the law of self-preservation and the
principle of self-support. It is in the adoption of practical
measures to develop that trade for the greatest good of the greatest
number that the Belgians have shown an executive skill which gives
the character of indolent farce to the droning administration of
certain other African colonies, particularly British Lagos, which
derives sixty-five per cent. of its supporting revenue from traffic
in alcoholic liquor,[37] as compared with five per cent. derived from
the same source by the Congo Free State.
If the Government of the Congo Free State had to deal with a white
population capable of co-operation as independent political units
in the State’s development, it may easily be conceived that measures
perhaps more in consonance with certain European theories might have
been devised. The candour of this suggestion in no wise detracts
from the fitness and happy efficacy of the measures by which the
Government of the Congo State has achieved one of the greatest
colonising successes of modern times.
It is the co-operative principle—so utterly lacking in the
uncivilised native Congolese—which often inspires those governmental
speculations in new countries whereby it is sought to solve the
problem of sustaining the State upon its own undeveloped resources.
There can be little doubt that this principle, now well recognised
in the industrial world and constantly adopted and expanded in the
United States and Great Britain by enlightened labour leaders and
great corporations, unconsciously influenced the Belgian statesmen
who framed the land and taxation laws of the Congo Free State. The
civilisation of Central Africa was, and forsooth, still is, an
immense task, and the State’s early attitude of welcoming _quasi_
private enterprise to co-operate with it in the development of lands
which indolent native races had ravaged—first for their own immediate
wants, later at the behest of adventurers and despoiling traders,
whose coin was alcohol and shoddy tinsel—was not only justified
in a Government seeking rational progress, but it followed the
soundest principles of what the higher socialism terms community of
interest. If more modern in theory, the Congo State has in practice
often followed the most experienced of old-world colonisers—the
Dutch and the British. Where practicable under like conditions “it
imitates these experienced colonisers, without, however, following
them blindly” or attaining at once what it has taken them several
generations to accomplish. “Neither does it persist in methods
which have been recognised as erroneous, but it alters and corrects
them where possible.” Being like all governments, old or new, in
savage lands or civilised, unable to reform its domestic policies at
command, it seeks the betterment of its system with that gradation
of movement which shall not disorganise and disrupt the structure of
its statehood. Those who avowedly speak for the Congo Free State say
that “its policy is essentially a work of _methodical experiment and
practical adaptation_. Even when colonial science is more advanced
than it is to-day, that policy will retain its _raison d’être_ and
its merits.”
Having considered those early causes which evolved a State land
policy largely founded on the principles of co-operation and
self-support, it is pertinent, at this point, to examine the theory
of the State land system which has met with the criticism of
commercial interests in Great Britain.
[Sidenote: The State’s Land System.]
The origin of the land system of the Congo Free State may be said
to have assumed legal form by the official order of Sir Francis de
Winton, who, it will be recalled, was appointed Governor-General of
the State when Henry M. Stanley returned to Europe. The order is
dated Vivi, July 1, 1885.
A Decree of the Sovereign will presently request all non-natives
who now possess, by any right whatever, land situated within
the territory of the Congo Free State, to make an official
declaration, describing the land in question, and submitting their
titles to be examined and approved by the Government. The object
of the said Decree will be to secure, in the prescribed form,
the acknowledgment of acquired rights, and to make the regular
organisation of land property in the said State possible in the
near future.
In the meantime, with a view to avoiding disputes and abuses, the
Governor-General, duly authorised by the Sovereign, orders as
follows:
ARTICLE 1. Dating from the publication of the present proclamation,
no contract or agreement with the natives for the occupation
of portions of the land will be acknowledged or protected by
the Government, unless the said contract or agreement has been
made in the presence of a public official, commissioned by the
Governor-General, and according to the rules laid down by him in
each particular case.
ARTICLE 2. No one has right to occupy without title any vacant
land, nor to dispossess the natives from their land; all vacant
land must be considered as belonging to the State.
[Sidenote: State Protects Lands of Natives.]
This order provided for the official recognition of title to land
appropriated by foreigners before July 1, 1885; land occupied up
to the same date by natives, and land which, having been neither
occupied by natives nor appropriated by foreigners, was declared to
be the property of the State. Particular emphasis was given to the
clause protecting the native in his occupation of land whereon his
industry had created improvement, where he lived in the peaceful
pursuits common to his tribe.
[Illustration: Mission of the White Fathers, Tanganyika.]
As the appropriation by the State of vacant lands in the Congo
has inspired many of the specious arguments which have lately
emanated from England alone and more particularly from the _claque_
of the Congo Reform Association in Liverpool, it may be opportune
to consider first what the Belgians have said in justification of
a course which every student of political history knows has been
followed by all civilised States.
In his essay, _New Africa_, Baron Descamps briefly analyses the
theory of the State’s unquestionable property in all vacant lands
within its territory:
Territory is that part of the globe over which a State exercises
its sovereign rights; it is the material basis of sovereign
influence.
The mere fact of the acquisition of a political sovereignty over
a certain territory does not in itself confer on the Sovereign—at
least according to modern law—the ownership of all property over
which private individuals have acquired rights. But the recognition
of these same rights, the fixing of just titles of acquisition, the
regulation of the legal system relating to property and especially
of the condition of vacant land, all that constitutes an essential
attribute of sovereignty, in conformity with the necessities of
public order and the general welfare of society.
As a sovereign and independent State, the Congo State has been, and
continues to be, invested with that prerogative.
In appropriating vacant and ownerless land, the State has made
lawful use of an indisputable and perfectly legal right, sanctioned
by international custom and acknowledged by the law of nations.
When regularly in possession of vacant land, is it expedient for
the State to appropriate certain portions for public uses; to
transfer other portions gratuitously or for a consideration, with
full rights of ownership or with the right of using them only, to
private individuals; to preserve other parts for revenue purposes,
by means either of direct administration or of tenure, with a view
to employing the revenue according to the needs or convenience of
the State? That is a question of internal administration which may
be discussed theoretically, as we have already observed, but which
must be left, in practice, to the sovereign decision of the State.
[Sidenote: Early European Settlers.]
Before the Congo State was founded, a few European traders and
missionaries in the Lower Congo were occupying certain undefined
lands under agreements—more or less precarious in term and
effect—with native chiefs. These occupations partook largely of the
temporary nature of the native occupations on the banks of the river.
As these occupations ceased and the land was abandoned, it reverted
to the State, precisely as it reverts, under certain conditions, in
other States and colonies throughout the world.
That the Congo State dealt equitably with foreigners who had
seriously squatted upon lands in the basin, is plainly indicated in
its next decree, dated 22 August, 1885:
Considering that it is necessary to take steps to recognise the
rights of non-natives who acquired property situated in the Congo
Free State before the publication of the present Decree:
On proposal of Our Council of General Administrators,
We have decreed and do decree as follows:
ARTICLE 1. Non-natives who have rights to substantiate on land
situated in the Congo Free State, may have them registered by
presenting a request for registration in the form prescribed by the
following regulations:
This request must be presented in duplicate, before April 1, 1886,
to the public officer, who will have to record the deeds of land.
Our Governor-General has the power to authorise the admission,
after this date, of demands for registration, which for some
exceptional reason could not be presented within the prescribed
time.
* * * * *
ARTICLE 8. The manner in which requests for registration will be
controlled shall be settled by Our Governor-General.
When a non-native shall have duly proved his rights over a portion
of land, the Recorder of Deeds shall give him a registration
certificate which shall constitute a legal title of occupation
until such time as the land system has been definitely settled in
the Congo Free State.
Under this decree, practically every land claim presented was
admitted by the Government. Further decrees provided for the
compulsory measurement of land held by private owners; the
Torrens Act system of transferring the title to land was adopted;
rules of survey and its certification were prescribed; deeds
were registered at the office of a Registrar, and generally the
complete and practical machinery of an efficient Land Department
was established for the benefit of natives and foreigners alike.
As the State progressed in its organisation it defined its earlier
improvisations with greater precision, provided laws in regulation
of native “occupations,” private lands and the lands of the State.
Its respect for the equities in property of those who had hazarded
life in that wild region extended also to a scrupulous care for the
native whose lands it guarded from invasion and trespass. By decree
dated September 14, 1886, the State provided that “Lands occupied
by native populations under the authority of their chiefs shall
continue to be governed by local customs and uses,” thus insuring
aboriginal tranquillity in the presence of a scheme of civilisation
which the administrators of the State wisely refrained from imposing
with disturbing rigour. The savage black man at first instinctively
shrinks from the civilised white, and the Belgians, with knowledge of
this almost universal timidity of the African races, offered him a
mild measure of civilising rule as distinguished from the bluff and
peremptory subjugation which has always characterised the decimating
colonial methods of its burly neighbour in the Uganda and Soudan
countries. By the same decree the Government of the Congo State
provided that:
All acts or agreements which might tend to expel the natives from
the territories occupied by them or to deprive them directly or
indirectly of their freedom or means of subsistence, are forbidden.
Where natives occupy, or have moved upon, lands which it is sought to
lease from the State, provision has been made by the decree of April
9, 1893, that:
When native villages are enclosed in the land acquired or let,
the natives may, as long as the official measurements have not
been made, carry on agricultural pursuits without the consent of
landlord or tenant, on the vacant lands surrounding their villages.
All disputes which may arise in the matter between the natives
and the grantee or tenant, shall be finally settled by the
Governor-General or his delegate.
A decree of February 2, 1898, appointed a Land Commission charged
to consider whether certain lands, as to which claims may have
been made, “shall be reserved either on grounds of public utility
or with a view of promoting their cultivation by the natives.”
Reference has already been made to the bounty paid by the State to
natives who cultivate coffee and cocoa plants. Even in the mining
laws of the Congo the State has continued its solicitude for the
native and decreed that he shall not be disturbed in the pursuit of
those rude industries which tend to elevate his moral nature and
provide him with means of self-support. By a decree dated June 8,
1888, the native is exempted from the prohibition, under a previous
decree (July 1, 1885), of working a mine without a concession from
the State. Under this exemption natives are expressly authorized to
“continue to work mines for their own account on lands occupied by
them.” Indeed in all cases where local tribal customs do not directly
conflict with civilising tendencies, the rule of the State has been
to observe them in all their integrity. To facilitate this policy in
its intercourse with natives, the State has dealt with the aboriginal
population largely through the chiefs of the native tribes. This
means of linking the black man to the State which is striving to
civilise him by the gradual substitution of the white man’s methods
for those of the savage, has been attended with much success and
inspired confidence where instinctive distrust might have long
prevailed. Amongst the local customs which are safeguarded by the
State are what are known as _coutumes de rations_, a form of royalty
to which the natives are entitled on the produce of certain land.
So far has the State concerned itself in perpetuating this form of
support to the tribes where the custom prevails that, by an order of
the Governor-General dated November 8, 1886, it has provided that:
The issue of registration certificates does not exempt the
interested parties from observing, in their dealings with the
natives, existing local customs, especially those relative to
royalties known as _coutumes de rations_, although these royalties
may not be mentioned in the certificates, among the encumbrances
affecting the property.
If, in consequence of the non-payment of the rations or _coutumes_,
usual in such cases, disputes occur between the landed proprietor
and the natives, the certificate of registration may be cancelled
by the Courts on the application of the curator of land titles.
[Illustration: The Mission, Moanda.]
From the foregoing and many similar decrees intended to secure the
property and other rights of the natives, it will be observed that
the administrators of the State consistently undertook to carry
out all that was implied in King Leopold’s early declaration of
his aims in Central Africa. If in the execution of the Congo State
laws there has sometimes been laxity, error, and perhaps individual
cases of perversion, the fact remains that the law is sound and the
land system in respect of native possessions an equitable scheme
devised in the interest of their general welfare and protection.
The administration of the Congo Free State should be judged with
due regard to the nature of its savage population, its unexplored
territory of a million square miles, its early lack of organised
governmental forces, the necessary newness and the rudeness of
its civil institutions, and the thousand and one uncatalogued
difficulties which must have beset such ambitious pioneers as that
little band of Belgians which dared venture into an abyss from the
safe walls of which Europe smiled derisively and shouted orders to
the men below.
[Sidenote: State Claims Vacant Lands.]
Having provided laws securing to natives the lands occupied by them,
and regulated the land titles of foreigners, the State declared as
its own all unoccupied lands not subject to the ownership of the
native or the foreigner. This governmental possession of unoccupied
territory is not only sanctioned by the most enlightened laws of the
age, it is the express duty of a State to bring under its care all
territory which, if abandoned, might become the object of dispute,
internecine strife, and sanguinary warfare. The very element of,
and respect for, ownership of lands, chattels, or other objects of
material value, preserves that order which all law seeks to enforce,
for which civil society is organised on foundations of equity and
justice. Was it not the very principle which actuated the Berlin
Conference when, in order to remove the Congo Free State from the
covetous rivalry of the Powers—their disputes and possible wars—it
recognised the occupants of the Congo Basin and neutralised the Congo
State? If, during the twenty years that have elapsed since the Berlin
Conference settled the matter, the Congo Free State had remained
in the position of territory open to the pre-emption, adverse
possession, invasion, and trespass of anybody, the savage European
war of words, of diplomatic missiles, or perhaps of actual arms,
would have been a deadly substitute for the native savagery of the
African black. Civilisation without property vested in the State or
its citizens is inconceivable.
[Sidenote: Various Tenures of Land.]
The categories into which the lands within the borders of the Congo
Free State naturally fall have already been briefly indicated in a
previous chapter. The land system includes, first, a reservation
of land exclusively for the use of the public. Second, lands sold
upon an official scale of prices through a Land Department composed
of five members. Third, concessions of land granted for a certain
term of years, or as freehold, to companies organised to develop
its productivity. Fourth, grants of use extended to those who, by
arrangement with the State, thereby obtain the right to work a
prescribed area for india-rubber. Certain zones of rubber-bearing
territory are not subject to grants of use, the State reserving
therein the exclusive right to work the forests, thereby following
the system in force in the Soudan and in other neighbouring colonies.
Finally, there are leases of three, six, or nine years, of land for
commercial purposes, and leases for twenty to fifty years of lands
for agricultural uses and the establishment of missions, schools, and
churches. The latter possess areas aggregating about six thousand
acres.
The principal concessionary companies, operate over approximately
one-fourth of the State. The lands conceded to such companies are
transmitted under contracts very similar to those employed in the
Soudan,[38] and provide for the improvement of the land by the
erection of buildings, planting rubber vines, coffee, cocoa, breeding
cattle, and collecting rubber in a manner which will not deplete the
growing stock. The Congo State law imposes upon the rubber companies
the duty of planting at least five hundred feet of rubber vines or
trees for every ton of rubber harvested. The forests are safeguarded
in respect of wood and other products, and special inspectors see to
the rigorous enforcement of the law. There appears to be a different
state of things in the rubber-bearing districts of British Lagos,
where reckless destruction of the vines, waste, inattention, and lack
of intelligent organisation have reduced the rubber yield in 1900 to
one-tenth its harvest in 1896, with the decline still continuing.
The same measure of rapid decline is going on in the Gold Coast and
Sierra Leone. “The decrease in the export of rubber from £347,721 in
1896 to £160,315 in 1899 is clearly due to the reckless and unskilful
manner in which rubber was collected.”[39]
This report is corroborated by the statistics of the British Gold
Coast, which in 1899 exported rubber to the value of £555,731, but in
1902 to the value of only £88,602; Lagos, 1896, £347,721, in 1901,
£14,749; Sierra Leone, 1895, £86,940, in 1902, £8,192. Indeed, the
table from which these quotations are made shows that the rubber
exports from eight British colonies have greatly decreased since
1898, despite the increased European value of that product. It would
seem that the care and skill which during these same years caused the
Congo exports to rise from less than a million francs in 1886 to over
fifty-four millions in 1903 were at least worth the emulation of the
Gold Coast, Lagos, and Sierra Leone muddlers hiding defeat behind the
humanitarian pretexts of Liverpool rubber merchants and their agents,
whose conscience is as flexible as their trade product.
Concerning the concessionary scheme which prevails in the French
Congo, and which the Congo Free State Government has so successfully
carried out in its own territory, M. Eugène Etienne, a distinguished
French scholar, Vice-President of the French Chamber of Deputies,
and leader of the French colonial group, has said and written
some pertinent things. The French Congo, lying on the coast west
of the Free State, has been also assailed by the few interested
British merchants and their religious and secular agents and reform
associations for having been forbidden to trespass upon and despoil
Central African territory which has so far escaped the acquisitive
proclivities of John Bull. M. Etienne’s dissertation contains the
following passages as applicable to the Free State as to the French
Congo:
[Sidenote: French and Belgian Systems Compared.]
I stop in the enumeration of the results obtained by the
Independent State of the Congo, and I will not put in the opposite
column the balance sheet which gives little enough to rejoice
over of the progress realised in the neighbouring French colony.
Certainly from the point of view of the exploration of the country,
and the management of the natives, our officials have obtained what
might be called, in a formula borrowed from mechanics, the maximum
of result with the minimum of expense....
The constitution of landed property in the Congo, regulated by the
decree of 28th March, 1899, and the attribution of vacant lands by
important lots to companies bound by a _cahier des charges_, form a
work carefully thought out and elaborated on the advice of eminent
jurists. It does honour to the Minister of the Colonies who took
the initiative in the matter, my eminent colleague in the Chamber
of Deputies, M. Guillain, as well as to the Councillor of State,
M. Cotelle, who gave his active collaboration as President of the
Commission of Concessions.
[Sidenote: Concessions Justified.]
The justification of the large concessions is to substitute a
regular and methodical exploitation of the products of the soil for
the system of trading which destroys the natural riches, leaving
behind it only the exhausted and mutilated bush. Is it a question
of the collection of caoutchouc [rubber],—the native cuts the
lianas, bleeds the producing shrub to complete exhaustion. Is it a
question of ivory,—the precious product disappears rapidly with the
increase of the price, and the easier destruction of the elephants
by means of arms of precision. Left to himself the native destroys,
and does not concern himself to ask the earth to restore what he
has taken from it. At the most he scratches a little of the soil
round the villages he inhabits in order to carry out thereon some
cultivation of food stuffs. Thus has it already been recorded in
our Congo colony that the caoutchouc lianas have nearly disappeared
from the coast, and from the banks of the rivers. It would be the
same in the end in the regions further removed from the sea, if
wise regulations did not put a stop to it.
Quite different would be the value of the soil if new plantations
replaced those exhausted by successive harvests, and added new
products to those which come without cultivation. Coffee trees and
cocoa trees succeed admirably on the Congo. The soil lends itself
to all tropical cultivations. As to the collection of caoutchouc,
which will long remain one of the principal resources of the
country, it demands management and care. It is for this motive
that, according to one of the clauses of the _cahier des charges_
annexed to the decrees of concession, the concessionaire companies
are bound “to plant and to maintain to the termination of the
concession, by replacing those which shall have disappeared, at
least 500 feet of caoutchouc plants per ton of caoutchouc produced.”
The contract signed between the State as the proprietor of vacant
lands and the concessionaire is the following: The concessionaire
is authorised to establish himself on the lands assigned to
him, he exercises there for a period of 30 years all rights of
possession and exploitation (under reservation of lands allotted
to the natives, and of rights of proprietorship previously
acquired by third parties); but this lease of 30 years is to be
changed into definite proprietorship for all lands which shall
have been improved. How is it to be decided whether the lands may
be considered as improved? The _cahier des charges_ answers this
question with precision. Shall be considered as improved:
1. Lands occupied over at least one-tenth of their surface by
buildings;
2. Lands planted over at least one-twentieth of their surface
with rich cultivation such as cocoa, coffee, caoutchouc, vanilla,
indigo, tobacco, etc.;
3. Lands cultivated over at least one-tenth of their surface with
food cultivation such as rice, millet, manioc, etc.;
4. The pasturage on which shall be maintained during at least five
years beasts for breeding and fattening at the rate of two heads of
large beasts or four heads of small beasts per 10 hectares[40];
5. The parts of forests of a superficies of at least 100 hectares
of a single tenancy in which caoutchouc shall have been regularly
collected for at least five years at the rate of at least 20 feet
of trees or lianas as the average per hectare....
In exchange for these advantages the concessionaire assumes charges
which are not defined with less rigour: Fixed annual rents to be
paid to the colony, share of the profits, 15 per cent. of the
company’s receipts going to the local budget, obligation to float
on the watercourses traversing the concession steamboats of a fixed
model, all without prejudice to the payment of a security....
The British merchants[41] complained of being deprived of the
rights which they had exercised during many years of sending their
contractors to collect the caoutchouc on the lands conceded to the
new companies, a dispossession for which they demanded reparation.
The Court, after having ascertained that the English firms did
not claim any permanent establishment on the domain conceded,
non-suited them, objecting with reason that the State as proprietor
of free lands in the Congo had the right to dispose of them, and
that the long tolerance which the merchants had enjoyed for the
collection of the products of the soil could not constitute an
acquired right in their favour. _Beaten in the French courts, the
Liverpool firms lodged an appeal before a tribunal where they were
certain of being heard. They set in movement the English Chambers
of Commerce, interested the press and public opinion in their
cause, and made the British Foreign Office intervene._
I have always admired the ardour and solicitude with which British
diplomacy takes part and cause for the grievances of British
subjects abroad. The British citizen, as formerly the Roman, is
assured of being protected and defended. I know citizens of other
countries who cannot always say as much. The complaints of the
Liverpool merchants furnished in their way a fine platform for
diplomacy. The Congo with the guarantees stipulated by the Berlin
Conference, should it not be the chosen land, the last refuge of
commercial freedom? To the complaints of merchants established in
the French colony were added those of the English merchants and
consuls resident in the Belgian Congo. It was the placing on trial
of the Independent State in its entirety—of its commercial policy,
of its native policy, which formed the subject of inquiry in the
press and before the British Parliament....
Now in no country of the world has freedom of commerce been
considered as interfering with the rights of property. The
proprietor of the soil alone has the right to dispose of the
products of the land which belongs to him. Do people in England
think that freedom of commerce is violated because the first
passer-by of a rich and extensive manorial domain cannot take the
fruits and vegetables, kill the bucks and the hinds, and lay the
axe to the trees? Why should it be otherwise on the Congo? The
whole question is, whether the State, which in the French Congo
(as in the Independent State) has proclaimed itself the proprietor
of vacant and unowned lands, has this right legitimately. If it
has, it can in one form or another alienate the lands belonging to
it. That this exercise of the law of property may inconvenience
those who formerly enjoyed the products of the soil, I do not deny.
_There are countries where hunting is not forbidden, and the game
belongs to the killer. A day arrives when the proprietor reserves
his rights. He forbids hunting, he institutes suits. It is very
disagreeable for those who used to traverse his land freely. But
it does not follow that they have the right to an indemnity. Still
that is the strange suit that England wishes to bring before the
European Areopagus. The Congo has protected its hunting grounds;
the poachers exclaim against the injustice and claim damages!_[42]
[Illustration: Missionary Necropolis, Luluabourg.]
[Sidenote: British Concessions in Canada.]
[Sidenote: Crown Lands in British Colonies.]
Has the State been right in considering itself the legitimate
proprietor of vacant and unowned lands in the Congo? If any
doubt existed on the subject, the luminous opinion given to
our concessionaires by Maître Henri Barboux should suffice to
remove it. After having recalled that in all countries, at all
periods, the exercise of the right of sovereignty implied the
appropriation for the profit of the State of conquered lands,
the eminent advocate shows how England has made use of that
prerogative; in Lower Canada where a single Governor granted
1,425,000 acres to sixty persons; in Upper Canada where in 1825 out
of 17,000,000 measured acres, an extent almost equal to Ireland,
15,000,000 had been given in concession; in Australia where the
distribution of lands to colonists in gratuitous concessions or
by sale was never considered “as in contempt of the rights of
the primitive inhabitants of the country, nor as contrary to the
largest principles of commercial freedom.” In India, Ceylon, at
Hong-Kong, in Africa (Cape Colony, Natal, Bechuanaland), in the
Fiji Islands, Great Britain has always admitted that “the whole
country falls to the Crown, and that the Crown can attribute to
individuals portions of the country, while reserving as its own
domain all which is not given in concession” (Creasy, _The Imperial
and Colonial Constitutions of the Britannic Empire_, p. 66).
Holland applies the same rules. In Germany the Imperial ordinance
of 26th November, 1895, ordains in these terms: “Under reserve of
the rights of property or other real rights that individuals or
juridical persons, native chiefs or communities, can invoke, as
well as of the rights of occupation of third persons resulting from
contracts passed with the Imperial Government, _all the land of
German East Africa is vacant land of the Crown. The proprietorship
of it belongs to the Empire._”
These very same principles have been applied by the European
nations which have shared amongst themselves the Conventional Basin
of the Congo. The reservation of the rights acquired by third
persons, the reservation of the rights of natives are stipulated
for in our contracts of concession with a precision which leaves
nothing to be desired. “The society having the concession cannot
exercise the rights of enjoyment and exploitation which are
accorded to it except outside villages occupied by natives, and
the lands reserved to them for purposes of cultivation, pasturage,
or as forest. The perimeters of these lands if it is a question of
natives with a fixed residence, or the successive perimeters to
be occupied or reserved if it is one of natives with a changeable
residence, shall be fixed by the decisions of the Governor of
the Colony, who shall equally determine the lands over which the
natives shall preserve the rights of hunting and fishing. The
lands and rights thus reserved shall not be ceded by the natives
either to the concessionaire or to third parties except with the
authority of the Governor of the Colony.” (Art. 10 of the decree
of 28th March, 1879, on concessions.) These stipulations are the
most liberal that could be carried out in a country where native
proprietorship is not regularly constituted, where the land
surrounding the villages is alone cultivated, where the villages
are shifted about with extreme ease, what was field or plantation
one year returning to the state of the bush in the following. _As
to lands really occupied by Europeans, they have always been left
outside the new concessions. What it has not been thought proper to
respect is the pretension which some traders have put forward of
being masters of what they never possessed, of trading in what did
not belong to them...._
Up to the present I have spoken only of the concessions given on
French territory. The Independent State has employed the same
system. In a part of its territory it even inaugurated it. All that
may be said to defend our administration from having violated on
the Congo the principle of commercial liberty is, then, applicable
to the Belgian concessions.
[Sidenote: Grievances of Traders.]
The Private Domain (_Domaine Privé_) of the Congo Free State
embraces approximately one-fourth of the unoccupied lands within
its borders. This is the feature of the State’s general scheme of
physical development which excites its enemies to make many foolhardy
assaults and become voluble with fallacy and hollow argument. It was
created by a decree dated December 5, 1892. All the net revenue
derived from the Private Domain is placed in the State’s treasury and
applied to the payment of the cost of its public improvements and
all its undertakings seeking to improve the condition of the native
population, the facilities for their civilisation and the elevation
of their moral nature.
The revenue from the Private Domain is derived from the State’s
direct exploitation of its lands. Rubber and ivory are its chief
products at the present time. Various kinds of wood abound in its
forests, and cocoa and coffee plantations, experimental farms,
live-stock ranches, agricultural areas, all are being developed under
the direct supervision of State agents.
The question which is periodically enlivened concerning this
governmental scheme for acquiring necessary revenue is: Can the
State, in occupation of its own lands in the Congo Basin, develop
the land by direct cultivation, or _en régie_ (by trustees), for the
benefit of the State budget, which, in its integrity, is devoted to
increase the power of the State to civilise and elevate its native
people? There can be no doubt about the State’s right to develop
territory which for lack of private initiative and capital would
produce nothing for the benefit of the society for which the State
has been created. This right has been recognised not only by the
Powers at the Berlin Conference in reference to Central Africa,
but, in varying aspects, by all civilised countries in reference to
other parts of the globe. Belgian, French, English, Russian, Swiss,
and Italian jurists have considered this question at great length.
The opinions of Messrs. Van Berchem, Van Maldeghem, de Paepe, John
Westlake, K.C., Sir Horace Davey, K.C., de Martens, Barboux, Nys,
Pierantoni, and Azcarate, besides the weight of opinion expressed by
United States authorities which have been consulted, all concede the
State’s right to develop its territory for the benefit of a treasury
devoted to the welfare of its people. Moreover, this scheme of
self-development is not peculiar to the Free State. France, Germany,
Great Britain, and Portugal declared unoccupied land to be the
property of the State. The establishment of that principle at once
implies the adoption of that other by which the State may improve
its own property and turn it from a wilderness into a productive
garden. In addition to innumerable earlier decrees by the Governments
surrounding the Congo Free State, many of which are set out in the
_Bulletin Officiel_ of the Independent State of the Congo for June,
1903, new ordinances, amplifying and extending the early decrees,
have been recently (September 20 and October 23, 1904) put into
operation. Their inclusion herein would unduly extend the text of
this volume. A brief indication of their provisions will be found in
the Appendix under the title: _Features of the Land System in the
African Colonies of Germany, Great Britain, France, and Portugal_.[43]
From the _Neue Hamburgische Börsen Halle_, 20 October, 1904, we
quote the following comment upon the German decree of the same date,
inasmuch as it reveals what, in general, is the European opinion of
the British criticism of the Congo State land system:
The decree brings under the designation of forest products the
products from all woodlands, whether fenced in or not, and even
from isolated plantations, from bush and underbrush, bamboo and
elm trees, and from all liquaceous plants, especially the lumber,
the bark, the sap, the rubber, the leaves, the flowers, and the
fruit. In such part of the territories as have, after effective
occupation, been declared forest reservations by a public notice
of the government, it is strictly forbidden to gather any kind of
forest products, for _such harvesting is made an exclusive right of
the Treasury_.
That decree is interesting in many ways. First, it shows that the
German Colonial Office has decided to systematically protect the
forest domain of the Colony in order to prevent indiscriminate
deforestation, which would rapidly bring disaster upon the country.
But it also reminds one of the violent onslaught made by some
English people, and especially by the Liverpool rubber dealers,
against the Congo Free State.
What England unceasingly argues against the Belgian Congo—_for the
humanitarian movement is only a pretext_—namely, the exploitation
by the Government of such parts of the territory as are not private
property of individuals, is actually made a rule by the [German]
decree just referred to. A previous decree of the Government has
still more closely indicated what parts of the territory are
assigned to the Treasury as forest reservations. Added to the
other Treasury lands of various description they cover _more than
nine-tenths of the Colony_.
The conclusion is that in German East Africa, as well as in the
Congo Free State, the rubber harvest, in which the Liverpool
merchants take such lively interest, is gathered from crown-lands
only, and practically constitutes a State monopoly.
Now, a large part of German East Africa comes under the provisions
of the Berlin Act. And, in order to show the extent to which
British hypocrisy will go, it is enough to recall that for years,
both in British East Africa and in Uganda, which also partly come
under the scope of the Berlin Act, the same government rules have
been enforced, declaring india-rubber a State monopoly not only on
the crown-lands, _but even on private estates_.
What is lawful for one party must be lawful for the other, and we
cannot reproach the Congo Free State for upholding against British
would-be interference such rights of the Crown as other governments
maintain in their own colonies.
This example of vigorous Teutonic candour might be repeated from the
columns of many other European journals, but the desire to avoid
passing from the historical to the controversial in the present work
must limit the use of abundant similar material.
To show that the direct exploitation of domanial forests is made a
legitimate source of revenue in Eastern countries, the instance of
Japan may be cited. That brave little country, so heroically engaged
in fighting for the unmolested right to pursue its brilliant course
of modern progress, directly cultivates and harvests for the benefit
of its treasury a State domain equal to seven times the entire area
of Belgium!
When the ministers of his Majesty, King Leopold, were requested
to indicate the principles upon which the _Domaine Privé_ of the
Congo Free State was developed, they stated that, having in view
the necessity for revenue from the soil, the civilising influence
of labour, and the social, physical, and moral condition of the
African black, they had devised that scheme which would attract the
only existing available labour in the country, the co-operation of
the native, for which co-operation the State not only paid him, but
provided him with liberating and enlightening opportunities for
participating in the growth of African civilisation. In its official
reports the Government of the Congo Free State refers to its aims in
this respect:
The object which the Government aims at, is to succeed in turning
the private domain of the State to profit, exclusively by means
of _voluntary contributions_ [of labour] from the natives, and
inducing them to work through the allurement of an earned and
adequate payment. The rate must be sufficiently remunerative to
stimulate in the natives the desire of obtaining it, and, as a
consequence, to induce them to gather in the products of the domain.
Where the attraction of commercial benefit is not sufficient to
assure the working of the private domain, it is necessary to resort
to the tax in kind; but, even in this case, the work is remunerated
in the same manner as the voluntary contributions. The Government’s
orders in this respect are positive. Properly speaking, the tax
in kind is not a real tax, since the local value of the products
brought in by the natives is given to them in exchange.
The Government has never neglected an opportunity to remind its
agents, intrusted with the collection of taxes in kind, that their
part is that of an educator: their mission is to impress on the
mind of the natives the taste for work; and the means available
would fail of their aim if compulsion was changed into violence.
What is called the Domain of the Crown is a limited territory defined
by decrees dated March 8, 1896, and December 23, 1901, lying in
the basins of Lake Leopold II. and of the Lukenie River, in the
basin of the Busira-Momboya River, and between certain boundaries
at the confluence of the Lubefu and Sankuru rivers, to the western
summit-line of the Lukenie basin, and including certain contiguous
areas. These lands include six discovered mines which have so far not
been worked. The Domain of the Crown is a corporate body administered
by a committee of three persons appointed by the Sovereign.
The forests of the Congo are the finest in the world. They contain
a great variety of hard and soft wood, fruit-bearing trees, rubber
trees and vines, and gum trees, and constitute an industrial wealth
which is being preserved by enforcing rigorous laws. A decree dated
July 7, 1898, and orders dated November 22, 1898, and March 21, 1902,
regulate timber cutting. Under these, steamboats may take on supplies
of wood fuel on payment of an annual tax measured according to their
tonnage and speed.
[Illustration: Franciscan Sisters at the Mission of St. Gabriel of
the Falls (Oriental Province).]
The mining laws of the State are embodied in the decrees of June 8,
1888, and March 20, 1893. They provide, amongst other things, that
the purchase of land from the State or from individuals does not
“confer the right of working the mineral riches beneath the surface”;
that “mineral riches remain the property of the State”; that “no
person can work a mine except by virtue of a special concession from
the State”; that “the Government fixes by decree the regions where
mining researches are authorised either in favour of all persons
without distinction, or of the persons specified in the decrees.” A
licence fee of 2500 francs and other fees are imposed upon those who,
having discovered mineral-bearing properties, desire to work them.
A mining concession is limited to an area not exceeding 24,000 acres.
Article 4 of the decree of March 25, 1893, provides that:
Whoever shall discover a mine in the regions where he is authorised
to make researches in conformity with Article 3, can obtain a right
of preference for ten years for the concession of this mine, on
condition that he complies with the regulations laid down in the
present Decree.
All mining concessions are limited to a term of ninety-nine years.
On its expiration the State succeeds to the property as it stands. A
system of royalties on the product of the mine is stipulated in all
concessions. Such royalties shall not be less than one dollar a year
on each 2.47 acres. These fixed annual charges may be commuted by
arrangement with the State.
In commenting upon the criticism which British merchants and their
allies have uttered against the entire land system of the Congo Free
State, an eminent Belgian closely identified with those who support
the Congolese policy has said:
It is an easy matter to point out, in an undertaking such as the
Congolese enterprise, the inherent imperfections and difficulties
of the task, and the accidental defects in the instruments which
the State is called upon to employ.
It is, however, very unfair to hide under a bushel the good results
which have been obtained, and the progress which has been realised,
and to expose on a pinnacle a few exceptional and regrettable
facts, to draw a conclusion from particular cases to the detriment
of the general rule, and to condemn wholesale an institution which
draws forth the admiration even of its enemies, and of which a
witness, certainly to be little suspected, has been able to say:
“_In the whole history of Colonial life, there is no example on
record of such a result obtained in such a short period of time._”
We are far from overlooking the important rôle which criticism
plays in a matter which is as yet so little advanced as the art and
science of colonisation, but in order to play this rôle properly,
the critic must remain impartial.
After all, if these severe criticisms have been at times
formulated, there are ample compensations in many authoritative
comments from abroad. For instance, M. de Lanessan, formerly
Minister of the Admiralty in France, says:
“Belgium has shown that, in matters of colonisation, she possesses
more practical and rational ideas than ourselves, and a better
understanding of the methods of modern colonisation.”
As to the condition of the natives, this is the opinion of Sir
Harry Johnston, speaking from experience of that part of the Congo
which was formerly the most backward:
“This portion of the Congo Free State was inhabited by cheerful
natives who repeatedly, and without solicitation on my part,
compared the good times they were now having, to the misery
and terror which preceded them when the Arabs and Manyema had
established themselves in the country as chiefs and slave-traders.”
As this volume is going to press, advices are to hand that M. Gaston
Doumergue, the French Minister for the Colonies, submitted to the
President of the Republic of France—and on October 23, 1904, procured
his signature to—a decree consolidating the Republic’s legislation
concerning French West Africa. This decree reaffirms that “all vacant
lands in the colonies of French West Africa are the property of the
State”; that the property of the State may be alienated, leased,
or developed according to the methods employed in the Free State;
that concessions may be granted; that property held in common by
tribes under their chiefs may not be sold by them without the State’s
consent, etc. In short, the success of the land _régime_ practised by
the Congo Free State having convinced the Germans and the French of
its wisdom, both countries have now conformed their own laws to it.
FOOTNOTES:
[36] Report to the Belgian Senate, July 25, 1893.
[37] For statistics supporting this statement, see page 287.
[38] Sale of Government Land in the Anglo-Egyptian Soudan, _Times_
(London), July 18, 1904.
[39] _Annual Colonial Report_, Lagos, 1899.
[40] Approximately twenty-four and one-half acres.
[41] Two Liverpool firms, Messrs. Hatton & Cookson and John Holt &
Co., have alone figured in the cases brought before the Courts of
Libreville.
[42] Italics by the author.
[43] See Appendix.