The story of the Congo Free State

by Henry Wellington Wack

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.

Simple Facts Briefly Told.

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.”