Part 4

If _bonâ fide_ occupiers ever existed they have become proprietors; occupation, where it can be exercised, is under all legislative codes, one of the methods by which property can be acquired, and in the Congo State titles of ownership deriving from it have been legally registered. If the land has never been legally occupied, it is without an owner, or, rather the State is the owner: the State can allot it to a third party, for whom such allotment is a complete and absolute title. In either case it is hard to see how the fruits of the soil can be reserved for any but the owner on the pretext that the latter is not able to collect the produce of his property.

By a curious contradiction it is observed in the note that, as a consequence of the allotment of lands by the State, the natives “lose their right of collecting the natural fruits,” and, on the other hand, that they retain the right of disposing of these fruits “until unoccupied land is reduced into individual occupation.” It is difficult to understand what is meant by a right which belongs to the natives or not according to the action of a third party. Either they lost their rights on the lands being allotted, and in that case they have lost them entirely and completely, or else they have retained them, and are entitled to retain them, although “the land is reduced into individual occupation.”

Again, what are we to understand by the expressions “_bonâ fide_” occupiers and “individual occupation?” Who is to determine whether the occupier has brought his lands into a state of individual occupation, whether he is able to collect their produce, or whether it is still for the native to do so? In any case, such a question is essentially one to be settled by municipal law.

The note is, moreover, incomplete in another respect. It states that where the land has not yet been worked by those who have a right to it, the option of working should belong to the native. Rights would thus be given to the natives to the prejudice of the Government or of white concessionnaires, but the note does not explain how nor by whom the wrong thus caused would be repaired or made good. Though the system thus advocated cannot be applied in the Congo State, as there are no longer any unappropriated lands there, attention should be called to the statement in the interest of white men established in the conventional basin. If it is right to treat the negro well, it is none the less just not to despoil the white man, who, in the interest of all, must remain the dominant race.

From an economic point of view, it would be very regrettable if, in spite of the rights regularly acquired by white men, the domain lands were, even temporarily, handed over to the natives. Such a course would involve a return to their former condition of abandonment, when the natives left them unproductive, for the collection of rubber, the plantation of coffee, cocoa, tobacco, &c., date from the day when the State itself took the initiative: the export trade was insignificant before the impetus it received from Government enterprise. Such a course would furthermore certainly involve the neglect of rational methods of work, of planting and of replanting--measures which the State and the Concessionary Companies have assumed as an obligation with a view to securing the preservation of the natural riches of the country.

Never in the Congo, so far as we know, have requests to buy natural produce been addressed to the rightful owners. Up to now the only attempts made have been to buy the produce which has been stolen, and the State, as was its duty, has had those guilty of these unlawful attempts prosecuted.

It is not true, as has been asserted, that the policy of the State has killed trade; it has, on the contrary, created the materials which trade deals in and keeps up the supply; it is thanks to the State that, on the Antwerp market--and soon even in the Congo where the possibility of establishing trade depôts is being considered--5,000 tons of rubber collected in the Congo can be annually put on sale to all and sundry without privilege or monopoly, while formerly, in 1887, for instance, the rubber export amounted to hardly 30 tons. It is the State which, after having created, at its own expense, the material of trade, carefully preserves the source of it by means of planting and replanting.

It must not be forgotten either that the Congo State has been obliged to rely on its own resources. It was forced to utilize its domain in the public interest. All the receipts of the domain go into the Treasury, as also the dividends of the shares which the State holds in exchange for Concessions granted. It has only been by fully utilizing its domain lands, and pledging the greater part of their revenues, that it has been able to raise loans, and encourage the construction of railways by guarantees of interest, thus realizing one of the means most advocated by the Brussels Conference for promoting civilization in Central Africa. Nor has it hesitated to mortgage its domain lands with this object.

The Berlin Act is not opposed to such a course, for it never proscribed the rights of property as there is now an _ex post facto_ attempt to make out, an attempt tending, consciously or not, to the ruin of the whole conventional basin of the Congo.

It will not escape the notice of the Powers that the English note, by suggesting a reference to the Court at The Hague, tends to bring into consideration as cases for arbitration questions of sovereignty and internal administration as questions for arbitration which, according to prevailing doctrines, are excluded from arbitral decisions. As far as the present case is concerned, it must be assumed that the suggestion of referring the matter to the Court at The Hague has a general meaning, if it is true that, in the opinion of the English Chambers of Commerce, “the principles and practice introduced into the administration of the affairs of the French Congo, the Congo Free State, and other areas in the conventional basin of the Congo being [_sic_] in direct opposition to the Articles of the Act of Berlin, 1885.” The Government of the Congo State have never ceased advocating arbitration as a mode of settling questions which are of an international nature, and can thus be suitably treated, as, for instance, the divergencies of opinion which have arisen in connexion with the lease of the territories of the Bahr-el-Ghazal.

The Government of the Congo State, after careful examination of the English note, remain convinced that, in view of its vagueness, and the complete lack of evidence, which is implicitly admitted, there is no tribunal in the world, supposing there were one possessing competent jurisdiction, which could, far from pronouncing a condemnation, take any decision other than to refuse action on mere supposition.

If the Congo State is attacked, England may admit that she, more than any other nation, has been the object of attacks and accusations of every kind, and the list would be long of the campaigns which have at various times, and even quite recently, been directed against her colonial administration. She has certainly not escaped criticism in regard to her numerous and bloody wars against native populations, nor the reproach of oppressing natives and invading their liberty. Has she not been blamed in regard to the long insurrections in Sierra Leone; to the disturbed state of Nigeria, where quite recently, according to the English newspapers, military measures of repression cost, on one single occasion, the lives of 700 natives, of most of their Chiefs, and of the Sultan; and to the conflict in Somaliland, which is being carried on at the cost of many lives, without, however, exciting expressions of regret in the House of Commons, except on the score of the heavy expense?

Seeing that these attacks have left England indifferent, it is somewhat surprising to find her now attaching such importance to those made on the Congo State.

There is, however, reason to think that the natives of the Congo State prefer the Government of a small and pacific nation, whose aims remain as peaceful as its creation which was founded on Treaties concluded with the natives.

(Signed) CHR. DE CUVELIER.

_Brussels, September 17, 1903._

Annexes.[5]

I. “Bulletin Officiel de l’État Indépendant du Congo,” Juin 1903.

II. Judgments delivered by the Tribunals of French Congo.

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.

Article 6 of that Decree provided:--

“Non-natives who desire to found commercial or agricultural establishments in the districts above Stanley Pool, or in others to be eventually designated by the Governor-General of the Congo, shall be at liberty to take possession with this view of an area, the maximum size of which shall be fixed by the Governor-General; provided that they fulfil such conditions as he shall lay down, they shall enjoy a preferential right to the eventual acquisition of property in such lands at a price which shall be fixed by him beforehand.”

And Article 7 added:--

“The non-natives who, in the same regions, shall desire to occupy lands, of which the area shall exceed the maximum referred to in the preceding Article, may occupy them provisionally on such conditions as the Governor-General shall determine. He shall further decide whether the preferential right alluded to in the preceding Article shall be given to them in regard to this larger extent of land.”[9]

“With a view to assist commercial enterprise in the regions of the interior, the Government even exempted from export duty--the only customs duties which they could at that time levy--all native produce coming from the territories above Stanley Pool.

“From the 1st January, 1888,” so ran Article 1 of the Ordinance of the 19th October, 1887, “and till further orders, native produce coming from the State territories on the left bank of Stanley Pool and above that lake shall be exempted from export duty.”[10]

Later, by the Decree of the 17th October, 1889,[11] the Government announced that applications might be presented for concessions to work rubber and other vegetable produce in the State forests of the Upper Congo where such produce was not already worked by the native population.

By the Decree of the 9th July, 1890, the collection of ivory within the State domains was entirely given up to private persons throughout such parts of the Congo as were at that time visited by the steamers.

These Regulations were applicable to all foreign enterprise, without distinction of nationality; they show that there was no such policy of ostracism in regard to private enterprise such as is now attributed to the State.

It has not been the fault of the Government that nationals of all countries have not profited by this liberal system. They continued, however, to confine themselves, with few exceptions, to the Lower Congo. The Companies which decided to extend their operations in the central districts of the Congo found every facility for the establishment of agencies, and acquired the favourable position which they now enjoy.

The State can hardly be blamed because, in face of the almost universal inaction on the part of private individuals, it endeavoured to turn its territories to account by working its domain lands, either on its own account or through others. It was, however, the only way to secure the funds necessary for the Budget, the charges in which steadily increased with the extension of the public service, and to give the country the benefit of an economic system by imposing upon the concessionary Companies the obligation to undertake works of public utility.

The Government, further, were careful not to abandon a policy of moderation in the matter. When by the Decree of the 30th October, 1892, they defined regions reserved for working by the domain (those, that is to say, in which it had been ascertained, after inquiry, that the natives had never engaged in the collection of rubber), they still left vast zones at the disposal of the public, and allowed to private persons the exclusive right to work the rubber on the Government properties there. As a matter of fact, the zones in question comprised more than a quarter of the vacant State lands, apart from the whole country below Stanley Pool. Nevertheless, the Companies persisted for some years more in not moving towards these regions; it has only been since 1897 that there have been any signs of general activity. It was then that the numerous factories which are still to be found there were started in the Kassai, Ikelemba, and Lulonga districts, and on the banks of the Congo. But it is to be noted that with one exception none but Belgian Companies decided to put their capital into those enterprises, and to take the consequent risks. Foreigners have held aloof, in spite of the fact that they were at perfect liberty to establish themselves in these regions; even the firms which had been long established in the Lower Congo, and especially the English houses, did not consider the moment favourable for establishing branches in the Upper Congo. The above remark is generally applicable, in so far that, also in the territories for which Concessions have been given, not one of the concessionary Companies has found any foreign interests previously existing; indeed, certain foreigners who were interested in one of the most important of them, the Anglo-Belgian India-Rubber and Exploration Company, which was founded by an English group, have parted with their interests.

The commercial field open to private persons in the Congo never has been and is not limited; trade is free, so far as it is legitimate, throughout the country, and in certain regions the State, far from organizing any excessive working of its domain lands, has even renounced the exercise of its rights of property. To give one instance only the Dutch Company, the value of whose exports was 730,000 fr. in 1887, exported in 1901 goods to the value of more than 3,000,000 fr.

Page 162.

The work of organization has since been going on over the whole country by the more and more effective occupation of the territory; posts and stations have been multiplied, and now number 215; the work of the administrative, judicial, and sanitary authorities has expanded; transport facilities have been introduced; two lines of railways have been laid in the Lower Congo, and there are others either being constructed or proposed in the Upper Congo; seventy-nine steamers and boats have been put on the river and its affluents; 1,500 kilom. of telegraph and telephone lines have been laid; carriage roads have been built, on which the use of automobiles will put an end to the system of carriers (“portage à dos d’homme”); vaccine institutes have been established with a view to putting a stop, through the increased use of lymph, to the ravages of small-pox; water-works have been built in important centres, such as Boma and Matadi; hospitals for blacks and whites have been founded at different posts, as also Red Cross stations and a bacteriological institute; importation of spirituous liquors and trade in them has been prohibited almost everywhere, while the importation of alcoholic drinks made with absinthe, as also trade in them, have been forbidden everywhere; the trade in improved fire-arms and ammunition for them has been absolutely forbidden; cattle have been introduced at all the stations, and model farms have been established; Sanitary Commissions have been instituted whose duty it is to watch over the requirements of the elements of public health.

This general development is necessarily accompanied by an improvement of the conditions in which the native lives, wherever he comes into contact with the European element. Materially, he is better housed, better clad, and better fed; he is replacing his huts by better built and healthier dwelling-places; thanks to existing transport facilities, he is able to obtain the produce necessary to satisfy his new wants; workshops have been opened for him, where he learns handicrafts, such as those of the blacksmith, carpenter, mechanic, and mason; he extends his plantations, and, taking example by the white man, learns rational modes of agriculture; he is always able to obtain medical assistance; he sends his children to the State school-colonies and to the missionary schools. Steps have been taken to safeguard the individual liberty of the blacks, and especially to prevent labour contracts between blacks and non-natives degenerating into disguised slavery. It is on this point that the Decree of the 8th November, 1888, enters into the most minute details concerning the length of the engagement, the form of the contract, and the payment of wages. Recent legislation in French Congo, which has very properly been praised by the English organs, has been dictated by the like solicitude for the natives.