III. Opinions of Messrs. Van Maldeghem and de Paepe, Van Berchem,
Barboux, and Nys.
_Translations of Extracts from Annex I._
Page 142.
In conformity with Articles II and XIII of the Berlin Act, it (the Congo
State) has assured to all flags, without distinction of nationality,
free access to all its interior waters and full and entire freedom of
navigation. The railway, which has been constructed to obviate the
innavigability of the lower river, is open to the traffic of all nations
in conformity with Article XVI.
In conformity with Article III, there is no differential treatment
either of ships or goods, and no tax is levied on foreigners which is
not equally borne by nationals.
In conformity with Article IV, no transit due has been imposed.
In conformity with Article VI, freedom of conscience and the free
exercise of worship are guaranteed to natives, to foreigners, and to the
missions of all creeds.
In conformity with Article VII, the State has adhered to the Convention
of the Universal Postal Union.
Availing itself of the power conferred by Article X, the Congo State has
declared itself perpetually neutral, and in no circumstance has failed
in the duties imposed by neutrality.
In conformity with Article XII, it has endeavoured, in case of any
international difference, to have recourse to mediation and arbitration,
and has never declined to accept such procedure.
In conformity with the Declaration of the 2nd July, 1890, the import and
export duties levied do not exceed the limits fixed by the Agreements of
the 8th April, 1892, and the 10th March, 1902, between the State, France
and Portugal.
Article I of the Act of Berlin lays down that “the trade of all nations
shall enjoy complete freedom in the Conventional basin of the Congo,”
and, by Article V, “no monopoly or favour of any kind in matters of
trade” shall be granted there. These provisions, like the rest, have
been respected by the Congo State in the letter and in the spirit.
Page 144.
Freedom of trade is complete in the Congo, and is restricted neither by
monopoly nor privilege. Every one is free to sell or buy every sort of
produce in which it is lawful to trade. The law protects this freedom by
forbidding any interference with the freedom of business transactions;
it punishes “any one who has employed violence or threats with a view to
compel the natives, whether on the roads in the interior, or in the
markets, to part with their goods to particular persons or at particular
prices;”[6] it punishes “those who, by violence, abuse, or threats,
shall have interfered with the freedom of trade, with a view either to
stop trade caravans on the public roads or to obstruct the freedom of
traffic whether by land or water.”[7]
It is asserted that the principle of the freedom of trade is infringed
by the appropriation by the State of vacant and ownerless lands within
its boundaries. When by the Decree of the 1st July, 1885, the State
declared that “no one has the right to occupy vacant lands without a
title; vacant lands are to be considered as belonging to the State,”[8]
it did so in reliance on a legal principle which is universally
admitted, its action in this matter was not, as has been said, the first
step in a deliberate policy of exclusiveness. That principle was
inscribed in the Codes of all civilized countries; it has been
sanctioned by all Colonial legislative systems.
Page 152.
If it were true that, by declaring all ownerless lands to be Government
property, the Congo State had expropriated the natives, all these
various legislative systems could be attacked on the same ground. It is
generally admitted that the native has no real title to the ownership of
the vast stretches of country which from time immemorial he has allowed
to lie fallow, or to the forests which he has never turned to profit.
But the law of the Congo State is careful to maintain the natives in the
enjoyment of the lands they occupy and, as a matter of fact, not only
are they not disturbed in this enjoyment, but they are actually
extending the lands they cultivate and their plantations as their needs
grow. The State has been at much pains to prevent the natives from being
robbed.
“No one has the right to dispossess natives of the lands which they
occupy (Ordinance of the 1st July, 1885, Article 2).
“The lands occupied by the native population under the authority of
their Chiefs, shall continue to be governed by the local customs and
usages (Decree of the 14th September, 1886, Article 2).
“All Acts or Agreements which would tend to drive the natives from the
territories they occupy, or to deprive them directly or indirectly of
their liberty or means of livelihood, are prohibited (Decree of the 14th
September, 1886, Article 2).
“In cases where the lands which form the subject of application are
occupied in part by natives, the Governor-General, or his Delegate,
shall intervene in order, if possible, to effect an arrangement with
them, securing to the applicant the lands so occupied, either by cession
or by lease, but the State is not to be put to any expense in the matter
(Decree of the 9th April, 1893, Article 5).
“When native villages are inclosed in lands which have either been
disposed of or leased, the natives may, so long as the land has not been
officially measured, take into cultivation, without the consent of
either the owner or the lessor, the vacant lands surrounding their
villages (Decree of the 9th April, 1893, Article 6).
“The members of the Land Commission shall examine with special care the
question whether the lands applied for ought not to be reserved either
for the public use or with a view to allow of the extension of
cultivation by the natives (Decree of the 2nd February, 1898, Article
2).”
Page 156.
If it is inexact to say that the natives have been robbed of immemorial
rights, it is equally so to assert that the policy of the State has
aimed at the exclusion of private trading in order to assure greater
advantages for its own commercial enterprises.
Such a statement can only be the result of a misapprehension of the
various phases through which the Congo trade has passed since 1885. At
that time private enterprise was centred in the Lower Congo only. The
Government, far from wishing to close the Upper Congo, declared its
access free to all. The Decree of the 30th April, 1887, led, on the
contrary, to various commercial firms establishing themselves above
Stanley Pool, owing to the facilities it afforded for settling on the
domain lands.