The Native code () was a diverse and fluctuating set of arbitrary laws and regulations which created in practice an inferior legal status for natives of French colonies from 1881 until 1944–1947.
The Native code was introduced by decree, in various forms and degrees of severity, to Algeria and Cochinchina in 1881, New Caledonia and Senegal in 1887, Annam–Tonkin and Polynesia in 1897, Cambodia in 1898, Mayotte and Madagascar in 1901, French West Africa in 1904, French Equatorial Africa in 1910, French Somaliland in 1912, and the Mandates of Togo and Cameroon in 1923 and 1924.
Under the term are often grouped other oppressive measures that were applied to the native population of the French empire, such as forced labor, requisitions, capitation (head tax), etc..
Introduction in Algeria
The Native code () was created first to solve specific problems of administering Algeria during the early-to-mid-19th century. In 1685, the French royal Code Noir decreed the treatment of subject peoples, but it was in Algeria during the 1830s and 1840s that the French government began actively to rule large subject populations. It quickly realised that it was impractical in areas without a French population, and French experiences with large groups of subject people had also convinced many that both direct rule and eventual assimilation were undesirable.
In 1830, Algeria became the first modern French colony. The treaty in which the Dey of Algiers capitulated to France stipulated that France undertook not to infringe the freedom of people or their religion. The term was already in use in 1830 to describe locals who, whether Jewish or Muslim, were not considered French prior to the royal decree of 24 February 1834. However, they still did not have full citizenship.
A royal ordinance of 1845 created three types of administration in Algeria. In areas that Europeans comprised a substantial part of the population, the elected mayors and councils for self-governing "full exercise" communes (). In the "mixed" communes, where Muslims were a large majority, government was exercised by officials, most of whom were appointed but some elected. The governments included representatives of the (great chieftains) and a French administrator. The indigenous communes (), remote areas that were not adequately pacified, remained under the , direct rule by the military.
The first native code was implemented by the Algerian of 14 July 1865, under Napoleon III, which changed the situation by allowing Algerian Jews and Muslims full citizenship on request. Its first article stipulated: "Indigenous Muslims are French; however, they continue to be governed by Muslim law. They may be admitted to serve in the army or navy. They may be called to civil functions and jobs in Algeria. Upon request, they may be permitted to enjoy the rights of a French citizen; in this case, they are governed by the political and civil laws of France."
That was intended to promote assimilation, but as few people were willing to abandon their religious values, it had the opposite effect. By 1870, fewer than 200 requests had been registered by Muslims and 152 by Jewish Algerians. The 1865 decree was then modified by the 1870 Crémieux decrees, which granted full French nationality to Algerian Jews, followed in 1889 by ("foreigners"). The opposition was keen to give the same right to Muslims, but the French settlers did not want to equip the natives with rights equal to their own, primarily for demographic reasons. Moreover, it was at Algeria's request for an 1889 Act restoring the , French citizenship being awarded to anyone born in France, not being applied to Muslims.
In 1881, the Code de l'Indigénat formalised de facto discrimination by creating specific penalties for and by organising the seizure or appropriation of their lands.
The Franco-Algerian philosopher Sidi Mohammed Barkat described the legal limbo: "Not really inclusion nor in fact exclusion, but the indefinite hanging on for some future inclusion". He argued that the legal limbo allowed the French to treat the colonised as a less-than-human mass, but still subject to a humanising mission. They would become fully human only when they had cast off all the features that the French would use to define them as part of the mass of the .For more on the contemporary effects see Barkat. Also see Mona Chollet, dans l'ornière du droit colonial, 22 November 2005, Website of Section de Toulon de la LDH
In practical terms, by continuing the fiction that the "indigenous is French", the Code de l'Indigénat enabled French authorities to subject a large alien population to their rule by legal separation and a practice of indirect institutions to supplement a tiny French governing force.
Expanding empire: 1887–1904 While the grew from circumstances of the colonial rule of North Africa, it was in sub-Saharan Africa and Indochina that the code became formalised. As French rule expanded during the "Scramble for Africa", the government found itself nominal ruler of some 50 million people with only a tiny retinue of French officials. The Berlin Conference specified that territory seized must be ruled actively, or other powers were welcome to seize it. The was the method by which France ruled all its territories in Africa, Guiana, New Caledonia and Madagascar without having to extend the rights of Frenchmen to the people who lived there.
The protectorates (Tunisia and Morocco for example) were not affected by the regime.
In practice: Africa 1887–1946
Punishment The was free to impose summary punishment under any of 34 (later 12) headings of infractions specified by the code, ranging from murder to 'disrespect' of France, its symbols, or functionaries.For this section, see: Punishment could range from fines, to 15 days in prison or immediate execution. The statute stated that all punishments must be signed by the colonial governor, but that was almost always done after the fact. Corporal punishment was outlawed, but still used regularly. Although these powers were periodically reformed, in practice they became arbitrary and frequently used. More than 1,500 infractions reported officially were punished by the in Moyen Congo in 1908–1909 alone.
Taxes and forced labour Along with the punishments were a set of methods for extracting value from colonial subjects. In Africa, they included the corvée (forced labour for specific projects), Prestation (taxes paid in forced labor), Head Tax (often arbitrary monetary taxes, food and property requisitioning, market taxes), and the Blood Tax (forced conscription to the native Tirailleur units). Many major projects in French West Africa in this period were performed by forced labour, including work on roads and mines and in fields of private companies. retrieved at Guinee.net, where example orders from Comandants de Cercle are quoted.
Demands for taxes and forced labour varied according to the local , and in some areas, forced contract labour continued as a staple of the colonial economy, such as if private enterprises could not attract sufficient workers. Detailing forced contracts as long as two years (paid only at the end of contract) in Côte d'Ivoire, Congo Brazzaville and Madagascar for cotton plantations, forestry and public works or for projects of colonial officials. Details the 1926 decree allowing long-term forced labour for the building of a vast irrigation system for a largely unpopulated area that was never used. In the interwar period, the demand for forced labour increased massively. Even the most well-intentioned officials often believed in 'forced modernization' (supposing that 'progress' would result only from coercion), and French-created 'chiefs' also enjoyed tremendous coercive power. That resulted in enrichment for chiefs and the French, and harsh conditions for African labourers.
Plantations, forestry operations and salt mines in Senegal continued to be operated by forced labour, mandated by the local commandant and provided by official chiefs until the 1940s. Forced agricultural production was common in Sub-Saharan Africa from the 19th century until the Second World War, mandated sometimes by the central French government (rubber until 1920, rice during the Second World War), sometimes for profit (the cotton plantations of Compagnie Française d'Afrique Occidentale and Unilever), and sometimes on the personal whim of the local commandant, such as one official's attempt to introduce cotton into the Guinean highlands. Unlike the Congo Free State, infamous for its 19th-century forced rubber cultivation by private fiat, the French government administration was bound legally to provide labour for its rubber concessionaires in French Equatorial Africa and settler-owned cotton plantations in Côte d'Ivoire.
Native governance
In addition, native sub-officials, such as the appointed local chiefs, made use of forced labour, compulsory crops and taxes in kind at their discretion. As the enforcers of the , they were also partly beneficiaries. Still, they themselves were very much subject to French authority when the French chose to exercise it. It was only in 1924 that were exempted from the , and if they showed insubordination or disloyalty, they could still, like all Africans, be imprisoned for as many as ten years for 'political offences' by French officials, subject to a signature of the Minister of Colonies.
Courts
In Africa, were assigned to two separate court systems. After their creation by Governor-General Ernest Roume and Secretary General Martial Merlin in 1904, most legal matters were processed officially by the so-called customary courts. They were courts convened by village or some other French-recognized native authority or were Muslim Sharia courts. While Muslim courts had some real local relevance behind them, the French history of chief-creation was to replace traditional chiefs with Africans who would be dependent upon the French. Consequently, customary courts often served simply to increase the power of official chiefs. What was deemed customary differed from to , with the Commandant relying upon his native subofficials to interpret and formalize oral traditions of which the French had little knowledge.See . As the title indicates, Klein is concerned with the persistence of African slavery under French rule. He argues that customary law and French-appointed chiefs allowed formal slavery to continue in some areas up to the 1920s and the social relationship to survive through independence. Civil cases that came to the attention of the French officials were tried by an administrator-judge in a for which the administrator-judge was an appointed African notable (other than local chief).
Matters deemed especially serious by the French officials or matters for which the colonial power had any interest were handled by a French administrator-judge. All criminal cases were handled by a directed by the (the lowest post held by caucasians) with the assistance of two local notables and two caucasian officials or (in practice) anyone whom the administrator-judge chose. They could be appealed to the , where the administrator-judge was the local and was not bound to heed the advice of even his own appointed assistants.. Beyond that, there was no functioning appeals process though in theory, the colonies' governor had to sign off on all decisions that imposed punishments greater than those allowed for summary sentences. Historians examining the court records have found that governors were asked for approval after the fact and in all but a minuscule number of cases signed off on whatever their commandants decided.Suret-Canale