Henry Wellington Wack
The Story of the Congo Free State
New York & London : Putnam 1905

Chapter VI : The State and International Law (Part 1, pp.64-82)

In view of the confused controversy that has prevailed between the friends and the enemies of the Congo Free State, concerning it's legal foundation and it's existence de facto before the Conference of the Powers which recognised it's 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 it's 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 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 Comite d'Etudes du Haut-Congo, of which King Leopold was honorary president and Colonel Strauch president.
The conception of the State was that of the King persona;;y; the character of it's governmental manifestations was surcharged with his personality; it's 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 Comite d'Etudes 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 regime 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 it's 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 it's 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 it's cumulative effect, not for it's 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, 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 & Wallace, 8-11, the Court said :

There are several degrees of what is called de facto government. Such a government in it's 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. It's distinguishing characteristics are : That it's 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 it's admission into the general society of nations, may depend, or may be made to depend, at the will of those other States, upomn it's internal constitution or form of government, or the choice it may make of it's rulers. But whatever be it's internal constitution, or form of government, or whoever may be it's 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 it's 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 it's recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm it's internal sovereignty. The existence of a State de facto is sufficient, in this respect, to establish it's 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 it's action to it's own citizens, and to the limits of it's 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 it's 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. These obligations related only to their economic regime 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 Comite d'Etudes 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 having the same origin or commencement of existence; and it's difference from all other States consists in it's 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. (Wheaton's International Law)

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 it's 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 land 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 it's 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 it's civil or it's 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.
The foundation of the Congo Free State really began with the organised movement and structures of the Comite d'Etudes 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 at 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.

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