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long and vigorously waged controversy only incidental attention was given to the question of the extent to which the administration of the Congo State had evaded the liberal intentions of the framers of the general act of Berlin.33 To summarize by anticipation the conclusion to which the evidence leads, the Congo State, not to say King Leopold personally, managed, in spite of the "open door" provisions of the Berlin act, practically to monopolize the trade of the whole region beyond the small district of the Lower Congo. The foundation of the system of exclusion was the land régime. Next in importance was the method of "taxation" employed, the exaction of forced labor from the blacks. Other factors, which aided in attaining the same result, were the taxation of the trading companies, the control of navigation, the lack of currency, and the military policy of the State.
It should be noted that the discussion of these points lies almost entirely outside of the field of controversy. The monopolization of the land and the labor exacted from the natives were established in the laws of the Congo State and were defended by its officials as policies which were both necessary and good in themselves. In regard to these two most important factors in the trade situation," the only point open to argument is the extent to which the forced labor exceeded the legal maximum. The authorities chiefly relied upon, in addition to the Bulletin Officiel, are largely Belgian." But the reports of the British consuls have been found useful for their detailed statements and because in them attention is directed relatively more to the effects upon trade and less to the "atrocities." The works of H. R. Fox Bourne, secretary of the Aborigines Protective Society, and of E. D. Morel, secretary of the (British) Congo Reform Association, have also been used; both authors quote their sources and in the great number of cases in which these have been checked they have been found accurate.
THE LAND RÉGIME
ASSUMPTION OF STATE CONTROL OF SOIL AND PRODUCTS.
During the early years of King Leopold's rule in the Congo, the policy followed was liberal. It is said that the monopolistic plans later followed were first suggested in 1890.35 The legal foundation, however, had already been laid, and one of the defenses advanced by the Congo State was that the system rested on decrees to which no exception was taken at the time when they were promulgated.
On July 1, 1885, a month before the formal proclamation of the existence of the Independent State of the Congo, King Leopold's administrator general for the Congo issued an ordinance for the registration of all existing land titles claimed by non-natives. It was provided by this measure that thereafter no titles obtained from natives would be recognized unless "made with the intervention of the public
23 It is perhaps advisable to say "liberal intentions" rather than "liberal rules," and to speak of “evasion" rather than of "violation," because it can not be denied that in their careful elaboration of the treaty the framers omitted certain points which should have been specified; and from the strictly juristic point of view the case presented by the defenders of the Congo State had some very strong points.
24 Prof. Félicien Cattier, of the University of Brussels; Auguste-Jules Wauters, editor of Le Mouvement Géographique; Emile Vandervelde, member of the Belgian Parliament; Arthur Vermeersch, Jesuit missionary; and the Commission of Inquiry, which was composed of one Belgian, one Italian in the employ o. the Congo State, and one Swiss.
Cattier: Etude, etc., p. 61
officer appointed by the administrator general and according to rules which he will lay down in each particular case." Likewise, settlement "vacant land" was prohibited, "vacant lands being considered as appertaining to the State." A decree by Leopold, September 14, 1886, confirmed the rights of the natives to their lands and reaffirmed the power of the administrator general to control the acquisition of land by whites.37 ["The lands occupied by native populations under the authority of their chiefs shall continue to be administered according to local customs and usages."] In 1887 a decree of April 30 and an ordinance of June 30 provided for the occupation of lands above Stanley Pool, but at the same time an initial step was taken in the direction of restriction. The decree of April 30 imposed a penalty on all who cut trees on lands not legally assigned to them, or who did mining or quarrying thereon.38 In 1886 the mineral wealth of the lands registered for private acquisition was reserved to the State." and in 1889 the hunting of elephants was forbidden throughout the State except under conditions and on the payment of fees to be established by the governor general. Elephants killed contrary to this decree were subject to confiscation, and anyone receiving any of the ivory or other spoils was guilty of receiving stolen goods. The decree of the previous year in regard to minerals, like the land decrees of 1885-86, had made reservation of the customary rights of the natives; but this decree declaring ivory State property, specifically repealed all "usages and customs having the force of law" to the contrary, dealing with rubber, gum copal, and other vegetable prod ucts. The next decree" applied only to those parts of the State lands in which the natives had "not yet exploited" these resources, but it was officially determined a few months later that the natives had exploited rubber before 1885 only in two small districts. Elsewhere, where no native exploitation had occurred, and "notably in the islands. situated in the zone between Bolobo and the mouth of the Aruwimi, and in the forests which extend in this zone along the river and its affluents," these vegetable products could thereafter be gathered only under special concessions. At this time, however, the State was still professing that it had no intention of competing in trade with individuals, and the criticism of its actions led to a decree of July 9, 1890: "to regulate the collection of ivory in the State so as to favor
36 See p. 93: B. O., 1885, p. 30.
27 B. O., 1885, p. 138.
38 B. O., 1857, pp. 71, 129, 133.
39 Decree of June 8, 1886; B. O., 1886, p. 99.
40 Decree of July 25, 1889; B. Q., 1889, p. 169. See p. 104.
4 Decree of Oct. 17, 1889; B. O., 1889, p. 218.
M. Beernaert, prime minister of Belgium, made statements on this subject in 1891 and 1892 before the Belgian Chamber of Deputies. In the former year, after referring to charges that the Congo was "only one vast factory," he said that it had happened and would happen that in exploring new regions the officers purchased certain quantities of ivory in behalf of the State. It could not be otherwise, since friendly rela tions must be established with natives who did not understand that a journey would be undertaken with any other aim than trading. On May 14, 1892, he referred to ivory sold in Antwerp "very recently" and said that it came from territories where private commerce had never penetrated, and therefore its marketing by the State could result in no prejudice to the interests of commercial companies. The native chiefs had also been placing themselves under the protection of the State and engaging to pay tribute in kind, notably in ivory. (Annales Parlementaires de la Chambre des Représentants. Ses. Ord. de 1890-91, p. 1352; 1892 p. 1295.) There is some doubt as to the accuracy of the figures given by M. Beernaert. In 1891 he said that the unimportance of the State's dealings in ivory could be seen from the fact that the total miscellaneous revenues of the Congo State in 1890 had been only 119,000 francs; but by the statement of May, 1892, it appears that ivory collected in 1890 had been sold very recently. He stated further that the Congo State had exported only 32 metric tons of ivory during 1891 out of a total exportation from the Congo of 165 tons. To convey an accurate idea in regard to the question at issue he should have excluded transit trade and the product of the Lower Congo and have said that from the Upper Congo the State exported 32 tons and private traders less than 90. At the official valuation of that year, 32 tons of ivory were worth 640,000 franes. It is said that sales of Congo ivory in Antwerp alone had amounted to 3,000,000 francs by November of 1892 (Bourne, H. R. Fox; Civilisation in Congoland, 1903, p. 137.)
free competition," "the Government surrenders absolutely to private individuals the collection of ivory in the State Domaine throughout all those territories situated beyond Stanley Pool, which are directly accessible to steamers in the Congo or its affluents, to a depth of 50 kilometers from the banks." In the remainder of the Domaine, the State and individuals were allowed to trade concurrently. Individuals, however, were required to pay a droit de patente of 2 francs per kilogram in the "free" areas and of 4 francs per kilogram elsewhere in addition to the 2-franc export duty."
The next important decree seriously restricted this liberty of purchasing not only ivory but also rubber on important affluents of the Congo. In September, 1891, Leopold issued a secret decree" that the commissioners of the Aruwimi-Welle and Ubangi districts and the chiefs of the Upper Ubangi expedition "will take the urgent and necessary measures to conserve for the disposal of the State the products of its Domaine, notably the ivory and the rubber." 45 This was followed some months later by various local orders applying and extending the decree. These decrees are not published in the Bulletin Officiel, and the various authors differ slightly as to their exact dates and scope, but it is certain that a large area in the northern part of the State was closed to trade, and lively protests were the result. Not only did the trading companies protest, but Baron Lambermont and Emile Banning," as well as the ministry at that time in office in Belgium, protested in the name of the treaty of Berlin. About the same time the governor general, Camille Janssen, resigned rather than enforce the new policy. Leopold, however, justified his action by the favorable answer of nine eminent jurists, five Belgian and four foreign, to a series of questions; particularly whether the theory that vacant lands belonged to the State was contrary to the principle of commercial freedom inscribed in the general act of the conference of Berlin, and whether, since the international servitudes are interpreted restrictively, the principle of commercial liberty could limit. the rights of the State Domaine.18
ESTABLISHMENT OF RESTRICTED AREAS.
The next decree, October 30, 1892, may be considered to have established definitely the system of State exploitation. Later modifications tended rather toward an intensification of the monopolistic system than the reverse. The decree began with the statement that
B. O., 1890, p. 80. This decree followed the compromise suggested by the Société du Haut Congo that, if the Government would keep the pledge given by Col. Strauch some years previously and cease buying ivory as soon as private traders established themselves in a district, the corporation would pay a tax of 2,000 francs per ton. (Le Mouvement Céographique, 1892, vol. 9, p. 68.1
44 This decree was never published in the Bulletin Officiel. The Bulletin Officiel publishes only "those acts which it is of interest to make public." B. O., 1886, p. 22.
Vandervelde: Op. cit., 1911, p. 38; Le Mouvement Géographique, 1892, vol. 9, p. 76.
Vandervelde: Op. cit., p. 39; Bourne: Op. cit., p. 136; Wauters: Op. cit., p. 402; Le Mouvement Géographique, 1892, vol. 9, pp. 61, 62; Cattier: Droit, ete., p. 169.
Lambermont and Banning had been at the Brussels geographic conference of 1876, and Lambermont had represented Belgium at the conference of Berlin in 1884-85, and presided over the conference of Brussels in 1890.
Cattier: Étude, etc., p. 63; Vandervelde: Op. cit., p. 38.
a Cattier: Étude, etc., p. 63. Compare Cattier, Droit, etc., p. 163-171, where the author, one of the jurists referred to above, argues that the general act of the conference of Berlin in prohibiting all monopolies and privileges meant only monopolies and privileges in the international sense of the word, i. e., discriminatory treatment and favors; and that the explanation given in the conference of "privileges and monopolies in commercial matters" was to be interpreted restrictively, leaving the State free to establish monop olies in the civil, political, or administrative spheres. None the less even in this earlier work he condemns the measures taken to execute the decree of September, 1891, because they did not preserve the customary rights of the natives as recognized by such decrees as those of 1885-86.
B. O., 1892, pp. 307-312. Compare Wauters: Op. cit., p. 402; Cattier: Droit, etc., p. 306; Bourne: Op. cit., p. 139.
the exploitation of rubber 50 was abandoned to private individuals in all the vacant lands belonging to the State, under certain conditions and with certain exceptions. The exceptions, however, covered the larger part of the field. The decree divided the State domain into three parts:
(1) Domaine Privé (private domain of the State).-The Domaine Privé 5 was a large region mainly in the northern part of the Congo, which the State was to exploit directly or in any other way it might choose. It included the basins of the Mbomu (Bomu) and Welle, and of the N'Dua (Ubangi) farther than 20 kilometers from the banks of the river; the basins of the Mangolla (Mongala), Itimbiri, Aruwimi, Lopori, and Maringa, etc. (art. 2). If individuals by exception were allowed to gather rubber here, it was only as agents for the State. which alone might dispose of that product.
(2) Reserved area. A large region to the east and southeast, called the reserved area, was withheld for exploitation "when cir cumstances permit." This included the basin of the Congo-Lualaba above Stanley Falls and of the Lomami above 2° 30' south (art. 3)
(3) Free areas.-The southwest part of the Congo, generally speaking, was alone left open to individuals as a free area, subject, of course, to rights previously acquired, and, it may be added, subject also to later withdrawals and concessions. There was provision, further, that the Government might give exclusive rights to individuals within a radius of 30 kilometers of their factories in this area.
In granting this freedom, however, the State levied a new tax. The natives above Stanley Pool were required to pay to the Govern ment not more than a fifth, as should be determined by the governor general, of the rubber they collected; but in lieu of this payment the trader might pay the Government 25 centimes per kilogram " This decree of October 30, 1892, by its own terms was to remain in force only until February, 1901,55 but actually it controlled the situation in half the Congo until 1911 or 1912,58 and the chief change following its technical lapse was that the 14 companies which previously competed more or less on the Kasai River joined in a monopoly in which the State held half the shares.57 Moreover, numerous modifications were made while the decree was in a general way in force, modifications which considerably limited the free area. The most conspicuous among the changes were the addition of the reserved area to the Domaine Privé,58 the formation of the Domaine de la Couronne, and the grants to the concession companies, though the concessions were chiefly in the closed zone.
50 There is uncertainty in regard to ivory. M. Octave Louwers (Lois en vigeur dans l'Etat Indépendant du Congo) gives the decree of July 9, 1890 (see above, p. 92), as still in force in 1905, except for the repeal of the droit de patente by decree of Feb. 19, 1891. Cf. Cattier: Droit, etc., p. 311. Bornhaupt, C. von Die Kongo-Akte und der Freihandel, 1902, p. 97, says, however, that it is generally accepted that secret provisions of the decree of Oct. 30, 1892, extended its terms to ivory and other products. Bourne, op. cit., p. 142, says in the same sense that ivory was separately legislated for. The confusion has probably arisen through the effectiveness of other means used to check private trade. The few traders mentioned incidentally in the British Blue Books are in nearly every case dealers on a small scale in ivory. So called in decree of Dec. 5, 1892.
2 Bornhaupt: Op. cit., p. 97.
The amount was fixed at one-eighth on Dec. 6, 1892. Louwers: Op. cit., p. 648.
Arts. 5, 7, and 8. But this tax was not collected on the left bank of the Ubangi from its junction with the Congo to the mouth of the Welle (art. 9).
56 I. e., the date when Belgium could exercise its option of taking over the Congo under the agreement of July 3, 1899. Cattier: Étude, etc., p. 68.
66 Vandervelde: Op. cit., p. 41
Ibid., p. 87. The 14 companies had each been assigned a small territory of its own, but there was suficient competition to raise the price paid to the natives for rubber.
Cattier: Etude, etc., p. 66.
See p. 95.