In view of the confused controversy that has prevailed between the friends and the enemies of the Congo Free State, concerning its legal foundation and its existence de facto before the Conference of the Powers which recognised its statehood at Berlin (November 15, 1884-February 26, 1885), it seems pertinent at this point to examine the issue at some length.
For unknown centuries Central Africa had been peopled with many millions of savage, semi-savage, and barbarian black men, hidden from all civilising influence. Their social condition varied. Many were cannibals, some were living in a rude state of primitive tribal order, others were at incessant war with hostile tribes, all were living in the gloom of an interminable night of barbaric existence. Their only touch with the human family had been through the slave trade, of which they were the object and the victims. The white man knew of their lot in this respect many years before he listened attentively to an appeal for deliverance from the Arab marauders who enslaved them. The natural law of human solidarity had not as yet inspired civilised nations with an energetic movement to ameliorate the condition of the savage black in Mid-Africa. Indeed, Stanley’s explorations had not gone to completion save for the enlightened and philanthropic moral and material support of Leopold II. When Great Britain declined to provide Stanley with the means to further his brave work, the King of the Belgians, having several years before openly associated himself with sentiments seeking the organisation of a consistent civilising movement in Central Africa, sent for this intrepid explorer and fortified his hopes and plans from his private purse. It was with the highest motives, from an elevated point of view, that his Majesty considered the situation of these cannibal tribes. His solicitude for the Belgians, their economic needs, their legitimate and necessary expansion, gave point to his consideration of a distant land, where great natural wealth lay unrevealed and unused, for the good of the native and his benefactor. A wild life abounded in those parts which by civilisation might be regenerated and brought into the sphere of human usefulness. Here opportunity seemed to throw wide her arms for the Prince with the courage to dare an undertaking which the great Powers and the small had so far deftly avoided. “I will pierce barbaric darkness; I will secure to Central Africa the blessing of civilised government. And I will, if necessary, undertake this great task alone.” So spake his Majesty, when, as Duke of Brabant, he electrified Europe with what Europe, in her narrowed conservatism, regarded as the utopian utterances of an impractical and effervescing youth. Europe smiled and shrugged her shoulders at the temerity of him who essayed to analyse the heart of Africa and prescribe its panacea.
If this great task had fallen upon a man of ordinary natural powers and acquired means, that part of Darkest Africa which now defies the organised conspiracy of the despoiler would interest nobody save the slave-trader who terrorised the land and polluted the sea with the black man’s blood. To his Majesty’s great initiative in 1876, and to his prescience of mind, his generous hand, and astonishing industry in the cause which inspired him are due those two decades of progress which some regard as a triumph of Colonial civilisation; while others, from motives which need not be examined with a lens, stigmatise it as the curse of Central Africa.
Point of view and interest are important elements in all controversy. Where so much has been charged and refuted, a judicial attitude is sometimes maintained with difficulty. But against the assertion that the Congo Free State is a creation of the General Act of the Berlin Conference, may be arrayed a body of well-settled law which only an unreasoning enemy or a paid advocate would have the hardihood to dispute.
Long before the Berlin Conference had been conceived, acts of government had been effecting organisation and order in the territory now known as the “Independent State of the Congo.” Legislation, one of the later signs of established government, had occurred in the territory acquired by the Comité d’Études du Haut-Congo, of which King Leopold was honorary president and Colonel Strauch president.
Taking Merchandise to the ss. “Leopoldville.”
The conception of the State was that of the King personally; the character of its governmental manifestations was surcharged with his personality; its being was crystallised by his own touch and modelling. It is error to confound the recognition of the State by the Berlin Conference as the act which created the State. Recognition presupposes existence, and in the case of the Congo Free State there had been, for a considerable time before the adoption of the General Act of the Berlin Conference, a government de facto in the territories under the dominion of the Comité d’Études du Haut-Congo. Indeed, before the Berlin Conference had adopted the General Act, the State was qualified to announce, and did notify the Conference, that it had been recognised by all the Powers except one, which, however, soon thereafter followed the example of the other signatories. It was as a State, standing on an equality with the other Powers, that the Congo Free State attended the Berlin Conference and, under Article 37, adhered to an Act which did not deal with the sovereignty of States at all, but confined itself to a consideration of an economic régime applicable throughout the Congo Basin, including the territories therein of Great Britain, France, Germany, Portugal, and the Congo Free State. Events anterior to its introduction to the Conference as a friendly State by Prince Bismarck do not depend for their quality upon the form of that introduction. They are not destroyed by the peculiarity of phrase or the spontaneous honour which accompanied its entrance into the society of nations. That which does not exist cannot be the object of recognition. Even without the facts of the recognition by the United States of the State’s flag (April 22, 1884) as that of a friendly Government seven months before the Berlin Conference convened, and its recognition by Germany seven days before the opening of the Conference (November 8, 1884), the State contends that it was a State in esse, a Government de facto, fully organised and qualified to maintain itself as such within the territory it had acquired by cession from the native tribal chiefs and by prior occupation.
An examination of competent authorities on this important phase of Congolese civilisation convinces us that the idle contention which questions the State’s independence of the Powers signatory of the General Act of Berlin has been brought forth merely for its cumulative effect, not for its inherent power to sustain itself.
The subject may be approached by two questions: What is a State? What is a Government?
“A State ... implies the union of a number of individuals in a fixed territory, and under one central authority. Austria-Hungary is a State, but, as Prince Gortchakoff once sarcastically remarked, ‘It is a Government, and not a nation.’”
The Constitution of the United States defines the term State as combining the idea of people, territory, and government. Defining the difference between a government in law and a government in fact, Montague Bernard says, in Neutrality of Great Britain during American Civil War: “A de jure government is one which, in the opinion of the person using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them, although the possession may be wrongful or precarious.”
In Tharington v. Smith, 8 Wallace, 8-11, the Court said:
There are several degrees of what is called de facto government. Such a government in its highest degree assumes a character very closely resembling that of a lawful government.... There is another species of de facto government, and it is one which may be perhaps aptly called a government of paramount force. Its distinguishing characteristics are: That its existence is maintained by active military power, within the territories ... etc.
In Wheaton’s Elements of International Law, the latest edition of the leading authority on the subject, the author maintains that:
The recognition of any State by other States, and its admission into the general society of nations, may depend, or may be made to depend, at the will of those other States, upon its internal constitution or form of government, or the choice it may make of its rulers. But whatever be its internal constitution, or form of government, or whoever may be its rulers, or even if it be distracted with anarchy, through a violent contest for the government between different parties among the people, the State still subsists in contemplation of law, until its sovereignty is extinguished by the final dissolution of the social tie, or by some other cause which puts an end to the being of the State.
... The internal sovereignty of a State does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. The existence of the State de facto is sufficient, in this respect, to establish its sovereignty de jure. It is a State because it exists.
Thus the internal sovereignty of the United States of America was complete from the time they declared themselves “free, sovereign and independent States,” on the 4th of July, 1776.... The treaty of peace of 1782 contained a recognition of their independence, not a grant of it.
The external sovereignty of any State, on the other hand, may require recognition by other States in order to render it perfect and complete. So long, indeed, as the new State confines its action to its own citizens, and to the limits of its own territory, it may well dispense with such recognition.
The principles thus indicated would appear to distinguish with marked certitude the vast difference between the State’s existence and its recognition. The latter was a political consequence of the former. At the Berlin Conference no question was raised concerning a fact so patent, nor did the signatories distinguish between the five Powers in possession of the Congo Basin in framing the clauses of the Berlin Act imposing the same obligations on all these Governments. Those obligations related only to their economic régime in Central Africa. The articles of the Act concerning the Congo Basin, which applied to the Independent State of the Congo, were also binding upon Great Britain, France, Germany, and Portugal. This sign of equality is inconsistent with the notion that the Congo Free State is the vassal territory of the Powers signatory of the General Act of Berlin.
It has been contended by technicians of the law of nations who are in the service of those who seek to disrupt the Congo Free State, that a State cannot accrue out of a private association, such, for instance, as the International African Association or the Comité d’Études du Haut-Congo. But just as events are constantly spoiling theories, so had the flag of the Belgians confounded that contention by demonstrating in a practical manner that a State did exist, and that all the elements of a State government were present in the neighbourhood of Stanley Pool long before the Berlin Conference.
The identity of a State consists in its having the same origin or commencement of existence; and its difference from all other States consists in its having a different origin or commencement of existence.... The habitual obedience of the members of any political society to a superior authority must have once existed in order to constitute a sovereign State.[1]
American writers on the subject are of opinion that the North American Indian in his aboriginal state was not a political unit of the United States at the time when the Union declared its independence. In Johnson v. McIntosh, 8 Wheaton, p. 543, Chief-Justice Marshall described their status in the following language:
The Indian inhabitants of the United States are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others independent of territorial sovereignty.
To this may be added the apposite declaration of Mr. Fish, Secretary of State, to Mr. Hackett, June 12, 1873:
Aboriginal inhabitants in a savage state have not such a title to the land where they dwell or roam as entitle them to confer it upon persons from another country.
The Congo State law to which the foregoing declaration applies will be discussed in the chapter on the State Lands and Concessions. The citation is offered here merely for its general bearing upon the doctrine put forth by certain writers who contend that barbarous races living in primitive conditions upon lands over which civilised government has not been established, attain to the organic level of political units or citizenship upon the recognition of the government which dominates them with either its civil or its military power. That doctrine, it seems to us, is untenable. There is, on the other hand, no doubt that savage races can, by the symbols and the operating functions of government, humanely enforced according to the conditions with which it must cope, be brought to the knowledge of, and obedience to, an orderly civil community. The instruments of civilisation must vary with the various character of the life upon which they are to operate effectively. Yet there are strabismic monitors of African civilisation who, representing no high moral standard in themselves, have laid down a rule of conduct for the Congo Free State which disregards that principle. It has been this narrow view of a liberal civilising scheme that has caused so much mischievous mewling in Great Britain concerning alleged misrule in Central Africa.
State Post at Yankomi, near Basoko, Surrounded by Palisade (Aruwimi).
The foundation of the Congo Free State really began with the organised movement and structures of the Comité d’Études du Haut-Congo on November 25, 1878. The expedition of Stanley on August 14, 1879, was an earnest of the Committee’s intention to establish the institutions of a permanent local government with all practicable speed.
The Belgian post of Vivi was the first monument fixed in the wake of Stanley. On February 21, 1880, Isanghila was established, and on May 1, 1881, Manyanga was occupied. In the following December the expedition arrived at Stanley Pool, and reconstructed the steamboat En Avant, which, having been dismantled, had been carried in small sections through the forest to this point above the cataracts. In a short time this pioneer craft bore Stanley up the Congo River to accomplish the dream of Leopold II.
Many stations were established, steamers began running between them, treaties were concluded with the chiefs of independent native tribes to protect the territory so occupied against the claims of subsequent explorers; administrative and police services were required, and all the effective essentials of a central authority and an actual government were then and there established.
At this juncture the Committee changed its name to the International Congo Association and redoubled its activities. The Niadi Kwilu Basin was explored; that important factor in late Congo prosperity, the Upper Kassai, was brought under the influence of Belgian regeneration, and the Lunda country and districts beyond were taken within the Government’s sphere.
In five years discoveries of great value had been made in Darkest Africa, hundreds of tribes had been peacefully visited, over five hundred treaties of suzerainty had been made with the ruling chiefs, forty stations had been erected and their complement of officers put to the work of administering a definite system of local government, and five steamers on the Upper Congo were regularly communicating the affairs of a Government which now effectively controlled all the territory between the East Coast and Stanley Falls, between Bangala and Luluabourg.[2]
This, then, was the position of the Government in the Congo Basin in 1883, long before the Berlin Conference. The status that Government acquired as a consequence of its administrative acts in, and dominion over, the territory it occupied, has been briefly indicated from the point of view of American authorities on the subject of international law. Before examining the leading European authorities, whose approaches to the subject are peculiar to European experience and learning, it is interesting to observe how consistently the action of the Government of the United States followed the American view of the law on the subject.
Baron A. Descamps’ New Africa, an excellent essay on government civilisation in new countries, embodies a concise statement of what occurred in the fortunes of the infant State early in 1884, when its progressive work had extended a civilising influence to those regions of the Congo Basin where the Arab slave trade had not retained its devastating sway. The writer says:
The practical sympathy speedily accorded to the International Congo Association by the greatest Power of the New World, the United States of America, full of life and vigour and ever inclined to progress, proved that King Leopold’s enterprise had secured public support and official suffrage far beyond the limits of Europe. On April 10, 1884, the American Senate, on Mr. Morgan’s remarkable report,[3] passed a resolution asking the President of the United States to recognise the Association “as the governing power of the Congo.” A few days later, on April 22, 1884, that recognition was an accomplished fact. In officially recalling, at the opening of the Berlin Conference, the nature and cause of this great Act, Mr. Kasson, Chief Plenipotentiary of the United States, pointed out that, following upon Stanley’s explorations, the newly discovered regions “would be exposed to the dangerous rivalries of conflicting nationalities. It was the earnest desire of the Government of the United States that these discoveries should be utilised for the civilisation of the native races, and for the abolition of the slave-trade; and that early action should be taken to avoid international conflicts likely to arise from national rivalry in the acquisition of special privileges in the vast region so suddenly exposed to commercial enterprises.” Referring to the work so effectively performed by the International Congo Association “under high and philanthropic European patronage,” he said that those gallant pioneers of civilisation had “obtained concessions and jurisdiction throughout the basin of the Congo from the native sovereignties which were the sole authorities existing there and exercising dominion over the soil or the people. They immediately proceeded,” added he, “to establish a Government de facto.” Declaring next that the legality of the acts of that Government should be recognised, under penalty of recognising “neither law, order, nor justice in all that region,” he concluded as follows: “The President of the United States, on being duly informed of this organisation, and of their peacefully acquired rights, of their means of protecting persons and property, and of their just purposes towards all foreign nations, recognised the actual government established, and the flag adopted by this Association. Their rights were grounded on the consent of the native inhabitants, in a country actually occupied by them, and whose routes of commerce and travel were under their actual control and administration. He believed that in thus recognising the only dominant flag found in that country he acted in the common interest of civilised nations.”
“In so far,” said the American Plenipotentiary, “as this neutral and peaceful zone shall be expanded, so far he foresees the strengthening of the guarantees of peace, of African civilisation, and of profitable commerce with the whole family of nations.”[4]
Such was the position taken up by the United States of America in regard to the recognition of the newly installed government in Equatorial Africa. Germany was the first European Power to consider this subject of recognition, and to accord to the new enterprise marks of its sympathy and the support of its authority. In acknowledging, by the Convention of November 8, 1884, concluded before the Berlin Conference opened, the flag of the International Congo Association “as that of a friendly State,” the German Government clearly indicated that, so far as it was concerned, the new State ought to take its place from the first among the Powers called to the Conference.
M. Ernest Nys, Professor of International Law of the University of Brussels, Associate Justice of the Court of Appeal (Conseiller à la Cour d’Appel de Bruxelles); member of the Institute of International Law, a distinguished Belgian, and writer on several branches of the law, sets forth with greater detail the precise form of the recognition of the Congo Free State by the Senate of the United States. M. Nys relates:
In his annual message to Congress the President of the United States raised the question of the relations which were henceforth to be established between the Republic and “the inhabitants of the Congo Valley in Africa.” On 26th May, 1884, Mr. Morgan (Alabama) reported to the Senate in the name of the Committee on Foreign Relations.
On 18th January, 1884, a communication from Mr. Frelinghuysen, Secretary of the State Department, explained to Mr. Morgan how along the Congo the African International Association had created important establishments. On 13th March of the same year a further communication from Mr. Frelinghuysen set forth the opportuneness and the usefulness of recognising the flag of the Association, and added that no principle of international law was opposed to the creation of a State by a philanthropical society.
In his report of 26th March Mr. Morgan recalled the fact that Stanley had concluded at Vivi on 13th June, 1880, the first convention with a native chief, and that since that date nearly a hundred other treaties between tribal chiefs and the agents of the Association had been concluded, in which important commercial arrangements and stipulations relative to law, the maintenance of order, and the delegation of power figured among the provisions. Consequently two hypotheses presented themselves. “If the local rulers,” said Mr. Morgan, “were qualified to make the cession they did, the sovereign power that they conferred on the African International Association might obtain recognition on the part of other nations precisely because that Association thus proves its existence as a Government by law. If,” he added, “there exists any doubt concerning the sovereignty or the territory or the subjects, the understanding among the native tribes who conclude treaties with the Association offers a sufficient guarantee to other peoples for recognising the Association as a Government in fact.”
The Committee on Foreign Relations made a motion in favour of the recognition of the Association. It is permissible to affirm that at this moment a juridical person already existed, which could claim the principal rights of a State, and which found itself prepared to fulfil the duties of one. The first direction of the efforts of the Committee for studying the Upper Congo had been indicated in July, 1879, in the instructions given to Stanley. “It would be wise,” wrote Colonel Strauch, “to extend the influence of the stations over the chiefs and tribes inhabiting the neighbourhood. There might be made out of them a republican confederation of free Negroes, an independent confederation under this reservation, that the King, to whom its conception and creation would be due, should nominate its President who was to reside in Europe.... A confederacy thus formed might of its own authority grant concessions to companies for the construction of works of public utility, or issue loans, as Liberia and Sarawak do, and also itself execute public works. Our enterprise does not tend to the creation of a Belgian Colony but to the establishment of a powerful Negro State.”[5] But the political idea was not slow in taking a precise form. If in Mr. Morgan’s report there is still question of the Free States of the Congo the conclusion did not the less relate, as we have just seen, to the African International Association.
Europeans at Stanleyville, 1902.
It was it which was [sic], according to the Committee on Foreign Relations of the Senate, in law or in fact a “Government” qualified to claim international recognition.
Besides, the solution was very soon effected. The Government of the United States recorded the existence of The International Association of the Congo, managing the interests of the Free States established in that region, and gave orders to all United States officials on sea and on land to recognise the flag of the International Association as the equal of that of a friendly Government.
The following is the text of the declarations which were exchanged on 22d April, 1884:
The International Association of the Congo hereby declares that by Treaties with the legitimate Sovereigns in the basins of the Congo and of the Niadi Kwilu and in adjacent territories upon the Atlantic there has been ceded to it territory for the use and benefit of Free States established and being established under the care and supervision of the said Association in the said basins and adjacent territories to which cession the said Free States of right succeed.
That the said International Association had adopted for itself and for the said Free States, as their standard, the flag of the International African Association, being a blue flag with a golden star in the centre.
That the said Association and the said States have resolved to levy no custom-house duties upon goods or articles of merchandise imported into their territories or brought by the route which has been constructed around the Congo cataracts; this they have done with a view of enabling commerce to penetrate into Equatorial Africa.
That they guarantee to foreigners settling in their territories the right to purchase, sell, or lease lands and buildings situated therein; to establish commercial houses, and to carry on trade upon the sole condition that they shall obey the laws. They pledge themselves, moreover, never to grant to the citizens of one nation any advantages without immediately extending the same to the citizens of all other nations, and to do all in their power to prevent the slave trade.
In testimony whereof, Henry S. Sanford, duly empowered therefor by the said Association, acting for itself and for the said Free States, has hereunto set his hand and affixed his seal this 22nd day of April, 1884, in the City of Washington.
(L. S.) (Signed) H. S. Sanford.
Frederick T. Frelinghuysen, Secretary of State, duly empowered therefor by the President of the United States of America, and pursuant to the advice and consent of the Senate, heretofore given, acknowledges the receipt of the foregoing notification from the International Association of the Congo, and declares that, in harmony with the traditional policy of the United States, which enjoins a proper regard for the commercial interests of their citizens, while at the same time avoiding interference with controversies between other Powers as well as alliances with foreign nations, the Government of the United States announces its sympathy with, and approval of, the humane and benevolent purposes of the International Association of the Congo, administering, as it does, the interests of the Free States there established, and will order the officers of the United States, both on land and sea, to recognise the flag of the International African Association as the flag of a friendly Government.
In testimony whereof, he has hereunto set his hand and affixed his seal this 22nd day of April, A. D. 1884, in the City of Washington.
(L. S.) (Signed) Frederick T. Frelinghuysen.
We observe in the spontaneous recognition accorded the youthful State—whatever its form of government may have been—prompt admission of its qualification as a member of the society of nations. This was before the signatory Powers to the General Act of Berlin had opportunity of indicating that sympathy which they expressed in substantial terms when they followed the example of the United States and Germany, and invited the Congo Government to participate in the Berlin Conference as a friendly State invested with all the attributes of statehood which their recognition implied.
Post Office, Boma.
It is contended by the advocates of the Congo Free State that the form of its government at any time before or after recognition can not in the slightest degree affect the question of the State’s actual existence. It matters not, say the European authorities—Barboux, Picard, Nys, Descamps, Van Berchem, Azcarate, de Martens, and Pierantoni, whether the earlier Government was composed of “federated Negro tribes”; a State ruled by monarchy; territorial and tribal allegiance to an organised central authority; by an autocrat employing civil and military powers, or any other scheme of equitable and civilised domination. The right of the Government to exist cannot be destroyed by latter-day technicalities of law adroitly applied. The point to be noted, says Baron Descamps, is that “the claim to the occupation of vacant territories and to the acquirement by cession of sovereign rights was not inferior to the titles relied upon by European Powers in the course of their colonial expansion.” All this was an element patent in the State’s foundation, obviously understood and admitted by the Powers which, while they assumed that the Congo Basin contained nothing of material or political value to excite their cupidity, they recognised and treated on a basis of equality—so far, at least, as the considerations of the Berlin Conference are concerned.
In the present chapter have been briefly considered the legal and ethical aspects of the birth and baptism of the Congo Free State, its romantic evolution from the enlightened forces put into play by the indomitable personal powers of a Prince of the House of Saxe-Coburg-Gotha. In a succeeding chapter will be observed how the obligations imposed by the General Act of Berlin were discharged by the several Powers which assumed them.[6]
Native Boys, Boma.
[1] Wheaton’s International Law.
[2] L’État Indépendant du Congo, M. Wauters, p. 27.
[3] See Compilation of Reports of Committee on Foreign Relations. United States Senate. Recognition of Congo Free State. March 26, 1884, Washington, Government Printing Office, 1902. Vol. vi., p. 221. The appendices include, among other documents, the notes of Sir Travers Twiss and Mr. Arntz.
[4] Protocoles et Acte Général de la Conférence de Berlin (1884-85), p. 23 ss.
[5] F. Cattier, Droit et Administration de l’État Indépendant du Congo, 1898, p. 17.
[6] For a full report of the Committee on Foreign Relations to the Senate of the United States, March 26, 1884, together with the Treaties of Vivi, Leopoldville, Manyanga, and Stephanieville, see Appendix.