The story of the Congo Free State

by Henry Wellington Wack

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]

Missionary Necropolis, Luluabourg.

British Concessions in Canada.

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.