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

Chapter VI : The State and International Law (Part 2, pp.64-82)

At this juncture the Committee changed it's name to the International Congo Association and redoubled it's actovities. 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.
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 it's administrative acts in, and domination 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 Government of the United States followed the American view of the law on the subject.
Baron Deschamps' 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 it's progressive work had extended a civilising influence to those regions of the Congo Basin where the Arab slave trade had not retained it's 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 20, 1884, the American Senate, on Mr. Morgan's remarkable report, 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 efficiently 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 Oresident of the United States, on being duly informed of this organisation, and of their peaceful 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 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".
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 it's sympathy and the support of it's 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 it was concerned, the new State ought to take it's 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; 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 1994, 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 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 this 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 it's 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 the reservation, that the King, to whom it's conception and creation would be due, should nominate it's president who was to reside in Europe ... A confederacy thus formed might of it's 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." (F. Cattier, Droit et Administration de l'Etat Independant du Congo, 1898, p.17) 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.
It was it which was, according to the Committee on Foreign Relations in 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 the 22nd 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 fir 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 it's 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 it's form of government may have been - prompt admission of it's 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.
It is contended by the advocates of the Congo Free State that the form of it's 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 monarcht; 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 Deschamps, 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, it's 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.

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