Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 8, 1908

Consul General Smith to the Assistant Secretary of State.

American Consulate General,
Boma, April 9, 1908.

Sir: I have the honor to send you herewith a report in duplicate on the land legislation in the Kongo in its relation to the commercial policy of the State.

In the report which I had the honor to send you on November 20 last I referred to the Government of the Kongo Free State as being essentially a commercial organization and not, in the true sense of the term, an administrative one. The conditions existing in that part of the country which I visited all went to prove the truth of the conclusion reached. The extent to which the State has succeeded in its efforts to create for itself a vast monopoly of all the natural resources of the territory placed under its control by the signatory powers to the Berlin act, and without regard for the material well-being of the natives or the rights of other powers to carry on a free and unrestricted commerce with the inhabitants of such territory, can perhaps best be appreciated by an explanation of the manner in which the entire country is at present divided among a few large concessionary or proprietary companies, in which the State holds in most cases a direct interest or is exploited en régie by the State itself, and a brief review of the principal decrees which have brought about the conditions as they exist at present, conditions which I do not hesitate to say are essentially opposed to every intelligent conception of what a humane and civilizing administration of a colony peopled by a subject race should aim at creating. As has been well said by my colleague, Mr. Armstrong, the British vice consul at Leopoldville, in a report to his Government on the result of his observations in the Lake Leopold II district:

I saw nothing which led me to view the occupation of this country in the light of an administration. The undertakings of the Government are solely commercial, with a sufficient administrative power to insure the safety of its personnel and the success of its enterprise. The natives have no time or opportunity to raise or to discuss questions which in normal conditions require the presence and careful consideration of administrators, and therefore the State appears to treat them as negligible quantities.

I have, etc.,

Jas. A. Smith,
Consul General.

[Inclosure.]

Land Legislation in the Kongo and Its Relation to the Commercial Policy of the Administration.

The history of the legislation in reference to the lands comprised within the territory of the State dates back to 1885. On the 1st of July of that year an ordinance issued by the administrator general declared that no one had the right without title to occupy the vacant lands, nor to dispossess the natives of the land occupied by them; the vacant lands were considered as belonging to the State. This ordinance was followed by the royal decrees of September 14, 1886, which declared that the territory occupied by the natives, under the authority of their chiefs, would continue to be governed in accordance with local usages and customs, and by that of June 8, 1888, establishing the rights of the natives to continue to exploit for their own benefit the mines situated upon land occupied by them. Although the text of the above ordinance and decrees did not define what was to be considered as vacant land, nor that occupied by the natives, a liberal interpretation appears to have been given the provisions contained therein, with the result that the natives suffered practically no curtailment of their rights over their lands and the products thereof. Capital was attracted to the country and Europeans were allowed to take possession of unoccupied lands without previous authorization, becoming full proprietors of the same to the extent of 10 hectares (25 acres) by the small payment of approximately $20. The policy of the State at that period seemed to aim at the encouragement of free and unrestricted trade with the natives; it limited the extent of land sold or leased to individuals or companies in such manner that competition would result and the native derive a material benefit therefrom.

In 1891, however, the State decided to exploit its own territory—that is, the vacant lands which it had declared in 1885 were the property of the State. A royal decree of the 21st of September of that year, which was not made public, charged the commissioners of certain districts to take urgent and necessary measures to “conserver à la disposition de l’État” the products of its domain, notably rubber and ivory. This decree would doubtless have been valueless to the State from a pecuniary standpoint without its inevitable consequence—the forced labor of the native to gather the products of the territory. The almost immediate result was the issuance of three circulars by the commissioners of certain districts, as follows: That of the commissioner of the district of Ubangi-Uele (Bangala, 15th December, 1891), which forbade the natives to hunt the elephant unless the ivory was brought to the State; that of the commissioner of the Equator district (Basankusu, 8th May, 1892), prohibiting the natives from gathering rubber unless they delivered the same to the State; and finally that of the commander of an expedition to the upper Ubangi River (Yakusu, 14th February, 1892), forbidding the natives to sell or divert to their own profit any part of the ivory or rubber, products of the domain. This circular further provided that any trader who bought of the natives these products, of which the State only authorized the gathering on condition that they were delivered to itself, would render himself liable as a receiver of stolen goods and be denounced as such before the judicial authorities. No sooner did these circulars appear than the trading companies already established in the Kongo protested against this flagrant violation of the Berlin act, the State responding by invoking the principle of its proprietorship over the vacant lands and its absolute right to dispose of the products of its own domain as it saw fit. In substance, this contention is the main line of defense put forward by the State to-day as a justification of its commercial policy. The result, however, of the protest of the trading companies was the withdrawal of the circulars and the issuance of the decree of October 30, 1892, which practically divided the State into three grand zones. In the first the State reserved to itself the exclusive right to exploit the rubber. By the decree of December 5, 1892, it was declared that this portion was to constitute the Domaine Privé of the State and be exploited en régie. In reality it formed only a part of the Domaine Privé. The ordinance of July 1, 1885, already alluded to, having declared that all the vacant lands were to be considered as belonging to the State, the portion thus set aside for exclusive exploitation can properly be described as the “Domaine Privé stricto sensu.” This is the definition given by Prof. Cattier, professor of the University at Brussels, in his work “Droit et Administration de l’État Indépendant du Congo.” To avoid confusion, and understand the manner in which the territory of the State is at present partitioned, it is necessary to have this definition in mind.

Another portion, the immense territory formed by the basins of the Kongo-Lualaba and upper Lomami Rivers, was provisionally reserved, but a part was later absorbed into the “domaine privé stricto sensu” and remains closed to private traders and the balance conceded to the comité de Katanga. In the third zone, comprising the balance of the vacant lands, the gathering of rubber by private parties was authorized. Apparently this provision opened up a large section of the territory in which private parties could everywhere trade freely with the natives in the products of the soil. By the terms of the decree, however, the authorization to exploit rubber was subjected to the rights already acquired by third parties, or which might be acquired by them in future through purchase or lease of the domainal lands, provision being made that those who thus acquired lands should be granted the right to exploit rubber within a maximum radius of 30 kilometers around their establishments. On the face of it this provision was designed to encourage the founding of numerous trading houses with limited areas of land at their disposal for exploitation. In reality, and as events have proved, it was but a mere artifice which did more credit to the business foresight of the Sovereign than to honesty of purpose. No mention was made in the decree of concessions, and, in an official circular issued under date of December 5, 1898, the governor general was careful to impress upon those interested the distinction necessary to make between the rights of exploitation on purchased or leased lands and those on lands granted in concession. Thus, on the former these rights extended over a maximum of 30 kilometers only, but on the latter they were limited only by the boundaries of such concession, the area of which might be fixed as best suited the purposes of the State. In the section thus set aside for exploitation by private parties was included, notably, the immense Kasai district and the territory to the east of it known as the Kwango district, together with a large part of what is now the domaine de la Couronne. This domaine, which was established later on (1896), reduced the free-trade zone very materially, in that the exploitation of rubber and ivory in the whole of its immense territory is reserved exclusively for the benefit of the Crown. In the Kasai district a number of trading houses (14 in all) acquired small parcels of land and commenced trading with the natives, under, however, a veiled system of coercion which it is unnecessary to detail here. In any case the result was a competition which, although beneficial to the native, did not correspond evidently to the royal intention to monopolize to the fullest extent the trade in every product of commercial value. For this reason the State provoked the consolidation of the various trading houses and organized the well-known Kasai Co., in which it retains a half interest, with exclusive rights of exploitation of the rubber, ivory, etc., in the immense territory comprised within the Kasai and in portions of the Lake Leopold II district. Other immense monopolistic concessions, always with the State receiving a large interest in the enterprise, were granted.

At the present time the entire territory of the State may be, for the sake of a clear understanding of the existing situation, divided into six sections: (1) Domaine public, (2) domaine privé, (3) domaine national, (4) domaine de la Couronne, (5) land acquired by nonnatives (individuals, trading companies, and missions), (6) lands occupied by natives.

1. The domaine public comprises the navigable waterways and their banks to a depth of 10 meters (33 feet) from high-water mark, highways, railways, property affected to the public service, fortresses, etc. No part of this domaine is subject to private ownership.

2. The domaine privé included at the beginning all of the territory within the boundaries of the State. The State at various times has alienated or conceded large areas of its territories to proprietary or concessionary companies for their exclusive exploitation of the products of the soil, and, notably, to the Fondation de la Couronne. In June, 1906, a royal decree provided that all the mines not already conceded and all the lands administered en régie (domaine privé stricto sensu) should constitute the domaine national. The domaine privé at present includes, therefore, only the vacant lands not exploited en régie or which have not been alienated or conceded.

3. The domaine national, in accordance with the June, 1906, decree, comprises all the mines and all the lands exploited en régie and all the mines not already given in concession.

4. The domain de la Couronne is an immense section of territory alienated from the former domaine privé. It is the property of the Fondation de la Couronne.

5. Lands acquired by nonnatives are those which have been at one time or another detached from the domaine privé and sold, rented, or conceded by the State to individuals, companies, or missionary societies.

6. Lands occupied by the natives comprise only those actually occupied by their villages, or are under cultivation or exploited by them. A decree of June 3, 1906, provided that these lands should be delimitated and an area three times the extent of same be granted to the natives for the extension of their cultures. They can not, however, be disposed of to third parties without the express authorization of the governor general. As a matter of fact, the boundaries have, in rare cases only, been fixed, the delimitation, according to the best authorities, having been made of only about 150 villages in all. To the native, therefore, simply remains the right to occupy the land in his village and to cultivate his surrounding gardens. All the rest of the land, and the products of any commercial value thereof, belong to the State, the Fondation de la Couronne, and the proprietary or concessionary companies.

On the map annexed to this report the various divisions of the territory are very clearly shown. It is, I am assured, as accurate as any similar map which, in the absence of precise delimitations of river basins, etc., can at present be prepared. I have outlined in blue pencil the district in which the Fondation de la Couronne has reserved the exclusive mining privileges.

As has been stated, the domaine privé comprises at present only the lands not exploited by the State, or which have not in one way or another been alienated. These, according to the best authorities, comprise only an infinitesimal portion of the territory of the State. In a recent conversation which Mr. Armstrong, the British vice consul at Leopoldville, had with Dr. Briart, the director of the Société Anonyme Beige (S. A. B.), the latter illustrated by means of a map how much of the Kongo was given over to concessionary companies or formed part of the domaine national exploited by the State, and from this illustration the only part of the country accessible to private individuals was a small strip of country along the north bank of the Kongo River, between, roughly speaking, Nouvelle Anvers and Stanley Falls. Dr. Briart, who has been in the Kongo some 12 or 15 years, then described how he had been driven out of various parts of the Kongo by the Government, where he had been, in most cases, the first to attempt to trade. He was the first trader to visit the Lake Leopold II country, where he carried on operations for some time—Ubangi, Stanley Falls, Kasai, etc.; and having been ordered to leave each of these districts manu militari, he was eventually allotted the Busira and Juapa Rivers, where he is still working. I may mention here that the S. A. B. Co., of which Dr. Briart is director, is part proprietor of the section of territory marked No. 1 on the map. This land was granted outright, and I believe very properly, to the builders of the railroad from Matadi to Leopoldville in return for their enterprise in the construction of the road. Here, at least, the State could not invoke its right to the products of the soil and order off the people who desired to purchase them from the natives.

I have attempted in the foregoing to explain as clearly as possible the system of land legislation in its relation to the State’s commercial policy from the foundation of the State up to the present time. The subject is a somewhat difficult and complicated one, but the decrees cited are, I believe, the most important and those upon which the land regime of the State is based to-day. The principal points to which I would call your special attention are as follows: The Intimate connection between the land legislation and the commercial policy of the State. In a successful attempt to effectually monopolize every product of commercial value, the interpretation given to the decree of July 1, 1885, regarding vacant and occupied lands has resulted in depriving the native of every right to the products of the soil outside of his own village, and under the thin guise of taxation he is forced to deliver these products to the State. Incidentally, it may be said here that even the product of his manioc garden (his daily bread) does not really belong to him. He must furnish it as a tax whenever and wherever the State demands it. (See my report of November 20 regarding kwanga tax at various places.) It seems an absurd proposition to deprive an individual of everything of any value which he possesses and then heavily tax him on what has been taken from him, and yet this is what actually occurs in the Kongo. It is called a tax in labor; in effect it amounts to the enslavement of the greater part of the entire population, male and female. With practically the entire territory of the State given over to concessionary or proprietary companies for exclusive exploitation, the domaine de la Couronne and the domaine national exploited by the State itself, it is clear that under present conditions no opportunity remains for any independent business house to carry on a trade with the natives in the only products of commercial value which the country produces, viz, rubber and ivory. The rights granted to concessionary companies to exploit huge sections of the country mean simply the right to exploit the native. Until such time as the latter is granted the privilege, and without being forced, to freely dispose of the products of the soil to whom and under such conditions as he pleases, no such thing as free trade can exist in the Kongo. This is, I firmly believe, the crucial point in the whole commercial situation. I may add that this privilege must necessarily be accompanied by the right of prospective commercial houses to acquire sufficient land for the establishment of trading centers, stores, warehouses, etc. The privilege of acquiring lands for such purposes has been persistently and systematically refused by the State for many years, evidently because—it being impossible to trace the exact place of origin of the rubber or ivory—the State fears its exclusive monopoly, and that of the concessionary companies in which it is interested, might suffer.

I recently addressed to the governor general here a letter in which I asked a series of questions with the object of ascertaining if it would be possible for an American company to establish itself in various districts of the State for the purpose of carrying on a trade direct with the natives in rubber and ivory, and, if so, if the State would sell sufficient land to permit of the erection of warehouses, stores, etc., in order to enable it to do so. The governor’s reply was a vague one, in which he carefully avoided a direct answer to my questions, citing a lot of decrees, etc., with which I was already familiar. In effect, he told me nothing I did not know before. As regards the purchase of land he simply refers me to the decree of June 3, 1906, “Terres domaniales—Vente et location,” in which it is provided that all sales or leases of land outside the domaine national must take place by public auction, a list of such lands placed on sale or for lease to be published annually by the secretary of state at Brussels. No such list has up to the present time been published, and past experience is sufficient to prove that in every case where it has been desired to secure land for commercial purposes the application has been systematically refused.

Jas. A. Smith, Consul General.

Boma, April 9, 1908.