The story of the Congo Free State

by Henry Wellington Wack

In this connection Sir Edward Malet, the British Plenipotentiary at the Conference, clearly pointed out that “freedom of commerce unchecked by reasonable control would degenerate into licence.” Reasonable control is only another name for State law and police regulation. The Congo Government maintains that, subject to its internal laws and regulations which affect its own and foreign subjects alike, the subjects of every nation are free to enter its territory in pursuit of legitimate trade. Apropos of this phase of the subject Baron Descamps says:

The power of the State in this connection is incontestable. That power is derived directly from the primary right and duty to maintain public order everywhere and under all circumstances. Nobody can deny the State the right of taking steps, for example, for the preservation of public safety. Government cannot be carried on without a judicial and administrative police system, and a State could not renounce that prerogative without laying itself open to a charge of incapacity in its primary and essential functions. Hence, such a renunciation could not be argued from mere presumptions or inductions.[9]

The Free-Trade Policy.

Amongst the innovations attempted by the Berlin Act was that which sought, by Article IV., to abolish all import and transit dues. Little serious account appears to have been taken—so far as the Act reveals—of the practical necessity for erecting and sustaining works of public utility to commerce, and the equity of imposing proper charges on the wares upon which the benefits of such works were bestowed. The absolute prohibition of import duties created great difficulties for the Free State which, but for the personal munificence of its Sovereign, would have wrecked a liberal undertaking, handicapped and fettered by the fanciful legislation of the Berlin Conference,—“Merchandise imported into those regions shall remain free from import and transit dues.” Fortunately the legislators of the Berlin Conference were not to become the practical governors of the Congo Free

A Temporary Experiment.

State, else they might have realised that the gravest body may enact farce and commit folly. It was the experiment of a new principle in colonial administrative economy which they aimed at, but there is a vast difference in substance between a mirage and a mountain. That there were misgivings in the mind of some members of the Conference as to the logic of driving traders into the Congo, on the one hand, utterly untaxed for the support of the Government and the security it afforded, while on the other the State was charged with the creation of public works and the maintenance of law and order without revenue, is manifested by that final clause of Article IV., which provides that “the Powers reserve to themselves to determine, after the lapse of twenty years, whether this freedom of import shall be retained or not.” In this case the Powers did not wait twenty years to revise their principle of free trade. Five years were sufficient to reveal its inapplicability to a new country, and the Second Brussels Conference, assembled in 1890, made of the free-trade clause of 1885 a clause allowing on merchandise other than spirituous liquors an impost not exceeding ten per cent. “It would never do,” said Baron de Courcel, at the Conference, “to renew the colonial experience gained in the sixteenth century, when colonies were brought to ruin by those who pretended to fix in Europe, from a purely metropolitan point of view, their financial and administrative system.” The experiment of prohibiting import duties proved, as already indicated, a serious hindrance to the economic life of the new State. That the experiment would not, however, be persisted in by the Powers, had been foreshadowed by the suggestion of Baron Lambermont at the Conference when he said: “It is experience which will then inspire the interested Powers with the most favourable resolutions for the development and commercial progress in their possessions.” There were, therefore, after all, men of practical political foresight at the Conference, whose assent to so radical a policy of free trade was accorded for the purpose of the moment only, and while the great question of civilising Central African tribes dominated their early aims even to the disadvantage of the correlated questions of commerce. Article III. of the General Act, therefore, provided that: “Wares of whatever origin, imported into these regions, under whatsoever flag, by sea or river, or overland, shall be subject to no other taxes than such as may be levied as fair compensation for expenditure in the interest of trade, and which for this reason must be equally borne by the subjects themselves and by foreigners of all nationalities.” The reasons actuating the Berlin Conference not to fix the rate of such taxation as it provided for at the Brussels Conference, are clearly indicated on page 85 of the protocols to the General Act, from which the following declaration is quoted:

The rate of the taxes of compensation is not fixed in any definite manner. The support of foreign capital ought to be placed, with commercial freedom, amongst the most useful aids to the spirit of enterprise, whether it has reference to the execution of works of public interest or whether it has in view the development of the cultivation of the natural products of the African soil. But capital only goes, in general, to places where the risks are sufficiently covered by the chances of profit. The Commission has therefore thought that there would result more disadvantages than advantages from binding too strictly, by restrictions arranged in advance, the liberty of action of public powers or of concessions. If abuses should arise, if the taxes threatened to attain an excessive rate, the cure would be found in the interest of the authorities or of the contractors, seeing that commerce, as experience has more than once proved, would turn away from establishments the access to, or use of which, had been rendered too burdensome.

That contribution by traders to the maintenance of the State under a system of taxation and police regulation is not incompatible with commercial freedom was forcibly reiterated at the Conference by Count de Launay and, of course, by other members who at all dwelt upon a principle so well established. Treating this question with much erudition, Baron Descamps cites the French law of March 2, 1791, relating to patents, which, he says, “gave the most emphatic assent of modern times to the principle of commercial freedom. The very clause proclaiming freedom of commerce provided for licence dues! Thus: ‘Everybody shall be free to carry on any business he chooses; [sic] but he must first obtain, and pay for, a licence, and submit to any regulations of police that may be made.’”[10]

The Open Door and Chaos.

Obviously the “freedom of commerce” intended by the General Act of the Berlin Conference is not the open door with the key thrown away and chaos prevailing behind it. The State is mistress of her domain. She is alone responsible for its civil order and the just regulation of its life, whether social, commercial, or political. Her attitude upon all fundamental rules of civilised government has two facets: the one toward her subjects, the other toward the society of nations which surrounds her. She must conduct her affairs with due regard for those broad principles of national morality which civilised communities recognise as a lofty standard of social and political life. Until she prove herself incompetent in this respect, her territory cannot become the subject of international partition or regulation on pretexts of humanitarianism or on any other, nor is it in the justice of nations or of men to undermine the force of her authority or to enfeeble the integrity of her Statehood by any agency whatsoever.