Henry Wellington Wack
The Story of the Congo Free State
New York & London : Putnam 1905

Chapter XXVIII : State Lands and Concessions (pp.308-339 )

It would seem reasonable that practical colonial government should begin the pursuit of it's 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 Gevernment of the Congo Free State, it's varied and numerous difficulties, and the uncertainty of the radical principles imposed upon it, left it's 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 ab adventure, then as a serious experiment. A civil community was to be created of savage hordes; to maintain itself by it's 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 it's large population, the early philanthropic aims of it's 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 it's powers to form. 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 it's 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 it's results excites foreign envy and covetousness today, 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 Deschamps 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 it's life following on the Berlin Conference, when a regime of complete exemption from import duties weighed heavily upon it's 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 it's political life. (Report to the Belgian Senate, July 25, 1893)

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 regime. With a neutralised State this seemed to be a permanent function commendable alike to it's people, it's Government, and it's 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 it's accomplishment. Of white men there were few in a region where the 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 it's 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 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 it's supporting revenue from traffic in alcoholic liquor, 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 cooperation 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 cooperative 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 it's 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 cooperate with it in the development of lands which indolent native races have 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 it's domestic policies at command, it seeks the betterment of it's system with that gradation of movement which shall not disorganise and disrupt the structure of it's statehood. Those who avowedly speak for the Congo Free State say that "it's policy is essentially a work of methodical experiment and practical adaptation. Even when colonial science is more advanced than it is today, that policy will retain it's raison d'etre and it's merits."
Having considered those early causes which evolved a State land policy largely founded on the principles of cooperation 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.
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 whatsoever, 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 acknowledgement 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 I. 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 the 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.

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.
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 it's territory :

Territory is that part of the globe over which a State exercises it's 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.

Before the Congo State was founded, a few European traders and missionaries in the Lower Congo were occupying certain undefined lands under aggreements - 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 lands were 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 it's 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 lands 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 it's 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 it's organisation it defined it's earlier improvisations with greater precision, provided laws in regulation of native "occupations", private lands and the lands of the State. It's 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 the 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 tranquility 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 it's 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 matters 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 it's 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 custom 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 it's 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 as 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 certification does not exempt the interested parties from observing, in their dealings with the natives, existing local customs, especially those relative to royalties known as the 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.

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 it's savage population, it's unexplored territory of a million square miles, it's early lack of organised governmental forces, the necessary newness and the rudeness of it's 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.
Having provided laws securing to natives the lands occupied by them, and regulated the land titles of foreigners, the State declared as it's own all occupied 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 it's 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 preemption, 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 it's citizens is inconceivable.

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