defence, an arrangement criticized by Belgian jurists1 as inconsistent with the duty imposed on the Public Prosecutor, who is legally not a mere accuser but a protector of innocence.

Whereas English jurisprudence treats crime as normally strictly subject to punishment only by the courts of the place where it is committed, and therefore makes no provision for the trial in England of ordinary 2 crimes committed in the colonies or vice versa, Belgium has applied the principles of continental jurisprudence, and the treatment of crimes committed in Belgium or the Congo, in the Congo or Belgium, is regulated on a basis of quasi-reciprocity by Article XXX of the Charter. Criminal judgements, whether pronounced in Belgium or the Congo, have the force of a final decision in either country, and are executory without further examination. But, though in this regard. the Charter goes further in connexion with criminal decisions than in regard to civil decisions, it does not permit complete assimilation of jurisdictions. On the ground that the protection afforded an accused is more ample in Belgium than in the Congo, it subjects to certain limitations the handing over to the colonial courts of a criminal arrested in Belgium for a crime committed in the colony, and it absolutely forbids the trial by a colonial court of a person arrested in the colony on the accusation of having committed a crime in Belgium. In the former case the trial of the accused normally takes place in Belgium, but in accordance with the colonial law, the punishment being altered to accord with the Belgian rules; but, if it is difficult to secure the necessary evidence in Belgium, the Chambre des mises en accusation may at the request of the accused, or by a unanimous vote taken on the motion of the Public Prosecutor, order his return to the Congo. In the latter case the accused must be

1 Lannoy, op. cit. p. 281.

2 For exceptions see Keith, Responsible Government in the Dominions, i. 136.

3 The actual carrying out of this provision involves many difficulties, on which see Lannoy, L'Organisation coloniale belge, pp. 283-8.

tried in Belgium, though he is entitled, if he desires to avoid the journey home, and Belgium does not demand his return, to be represented at the trial by a special attorney. The refusal to accord him the privilege of being tried by a colonial court under the Belgian law, at least for less serious offences, is clearly open to criticism,1 for it implies a distrust in the competence of the colonial judiciary which is either unjustified or if justified should lead to a drastic revision of the judicial system.

1 Lannoy, op. cit. p. 283

CHAPTER XIX

THE PEACE SETTLEMENT AND THE BERLIN

ACT

It is now possible to express a definite opinion on the question which must be raised at any final settlement of the European War, the moral right of Belgium to retain the Congo territory. There has, as was natural, been some tendency since the war to look back upon the past in the light afforded by the treason of Mr. Casement, whose share in revealing the atrocities on the Congo is exaggerated out of reason, and to assume that the case against the Congo State was largely fictitious and pro-German in character,1 a view which has the support of the decided sympathy for Germany manifested by Mr. E. D. Morel, who figured so prominently in the British movement to secure the reform of the administration of the Congo. But no admiration for Belgium or for the undoubted ability of Leopold II can be allowed to obscure the facts of the government of the Congo territory by the State. It was founded with the avowed humane and benevolent object of civilizing the natives of the Congo and affording to European nations the benefits of entire freedom of trade in an area of some 900,000 square miles of territory. Within seven years of its institution it had devised a legal system under which the natives, deprived of the right to collect the natural products of the soil, were forced to labour on the specious plea of taxation for the State or companies in which it was interested, while independent traders, especially non-Belgian, were effectively

1 R. Williams (United Empire, 1917, pp. 451, 452) treats the agitation as largely promoted by Germany in consequence of his success in obtaining the arrangement with Portugal for the construction of the Lobito Bay railway.

excluded from the territory and forbidden the means of acquiring land or carrying on trade.

It has not been possible for Belgium to efface immediately lor wholly the evils of the past régime. Hampered by the tradition of the past in the minds of the servants of the State whom it took over, and by the difficulty of finance caused by the abolition of the former system of exploitation, Belgium has yet much to do before her colonial administration can be regarded as a model,' and, while the national spirit of her officials is natural and in itself laudable, it must not be forgotten that it accords somewhat badly with the international basis of the existence of the State. Belgian jurists naturally enough lay stress on the fact that the State is not a creation of the Berlin Act, but this is a mere technicality. The recognition which was accorded to the State was given not to Belgium or the King of the Belgians, but to an association claiming to be international, and offering to all comers alike absolute equality of treatment. The British refusal of recognition of the assumption of sovereignty by Belgium until satisfied that the terms of the Berlin Act would be respected is sufficient proof that the Belgian claim has never been, and could never be, admitted by British jurists.

If, however, the Belgian Congo is not more than a fairly well governed colony, and if a lasting injury has been inflicted on the trade of all other nations by the monopoly so long conceded to Belgian trade, the effects of which cannot easily, if ever, be undone, it remains true that no other Power can advance a superior claim to the right to control the territory. France has, indeed, by her right of pre-emption always had a special interest in the future of the territory, and by an unhappy imitation of the Congolese policy for a time ruined the prospects of her own Congolese possession, and inflicted injustice on British trade which can never be entirely remedied. But, while the assent of

1 Cf. Sir H. Johnston, Journ. Soc. Comp. Leg. xviii. 37, whose praise seems exaggerated.

2 Cf. remarkable examples in Cd. 6606, pp. 50-71.

the Powers to the original grant of the right of pre-emption may be inferred from their silence in 1884-51 or their formal recognition as in the case of Germany, the treaty of November 4, 1911, with Germany expressly provided that the right of pre-emption could not be acted upon without discussion between the whole of the Powers signatory of the Berlin Act. The determination of the treaty of 1911 by the war relieves France from its obligation under it, but the episode certainly has not strengthened the claim of France to be regarded as having a special right in regard to the Congo. The United Kingdom, which with all its defects has nevertheless governed its African possessions with more success than any other Power, could on that ground prefer superior claims to consideration in the event of any proposal to alter Belgian sovereignty, and France has sufficient territory in Africa, especially with the losses on the Congo of 1911 made good, to dispense with any additions at the expense of an ally.

Apologists of Germany may still be found to maintain that it would be politic at least to concede a portion of the Congo territory to that Power as a means of securing the peace of Europe by satisfying her natural desire for colonial possessions. On any theory such a course could be justified only by the assumption that German native administration could be rated as high as that of the Belgian Congo, and on behalf of this plea has been invoked the doctrine that, while there have been cases of grave misgovernment in German territories in Africa, these have been punished by the German Government, and that her rule is at least equal to, if not superior to, that of Belgium. It is, however, impossible to accept this doctrine: there is abundant evidence that the policy of Germany, carried out with far more

1 It should, however, be noted that Lord Kimberley in a dispatch of August 14, 1894 (C. 9054, p. 17), denies that the right is binding on the Powers, without express assent, and suggests-as is true-that it is not quite compatible with the position of the territory. He insinuates doubt also as to the validity of the transmission of the right to the Congo State territory.