6

defining the ways to be followed and the methods to be used in order definitely to plant the standard of civilization upon the soil of central Africa." Leopold declared that he had no selfish or ulterior aim, and, although it has been charged that at this early date, when there was no exact geographical knowledge of central Africa, he had colonial aspirations for Belgium, there seems to be no conclusive evidence to prove the assertion. This conference resulted in the organization known as L'Association Internationale pour l'Exploration et la Civilisation de l'Afrique Centrale," or, shortly, L'Association Internationale Africaine. It had at the outset three objects: First, to explore scientifically the unknown parts of Africa; second, to facilitate the opening of roads by which civilization might be introduced into central Africa; and, third, to find means of sup pressing the negro slave trade in Africa. The methods for the attainment of these objects were (1) an organization "upon one common international plan" for the exploration of Africa from ocean to ocean and from the Zambesi to the Soudan, and (2) the establishment of scientific and relief stations within this territory. Both of the objects were, therefore, scientific and humanitarian. The methods were to be international, i. e., distinctly nonpolitical. An important and perhaps significant action was the adoption of a flag to cover the proposed expeditions and the stations to be established. At the time this flag was to have a status, if possible, like that of the Red Cross. An international commission was instituted which held a meeting in June, 1877, to formulate further plans. In addition to various national committees of the association there was to be an executive committee, resident at Brussels, under the immediate direction of Leopold, to which the several national committees were to send funds for the prosecution of the work. After the session of June, 1877, the International Commission seems to have done nothing. The various national committees had little or no vitality at any time. What activity Leopold's interest aroused outside of Belgium took the form of national or private expeditions. The Belgian committee, however, energized by Leopold, sent an expedition to Tan

7

Keltie, The Partition of Africa (1st ed.), 119.

7 E. Banning, Africa and the Brussels Conference, London, 1877, 155.

ganyika, which had few results, geographical or otherwise. It served, however, to give continuity to the organization and to perpetuate the name of the association. Even that would probably have remained a doubtful asset had not Henry M. Stanley returned from Africa in January, 1878, with exuberant accounts of the commercial value of the Congo basin. When Stanley landed at Marseilles two agents of Leopold sounded him upon undertaking an expedition to the regions which he had just quitted. In the year following a new organization was formed at Brussels by certain of the members of the former executive committee, to whom were added several financiers. This new group, under the name of the Comité d'Études du Haut Congo, while apparently distinct from the earlier one, was really identical with it in management. It entered into an agreement with Stanley, the exact terms of which have never been made clear. Stanley left Europe for the Congo upon an expedition financed by the new association, which soon changed its name to "L'Association Internationale du Congo." Under all these names the directing authority was King Leopold. Although somewhat disguised, the purpose of the supporters of the Stanley expedition was commercial. With the commercial idea was the embryo, very soon 8 It is true that the Comité d'Études was organized as a "société en participation November 28, 1878, with a capital of one million francs. This sum was soon exhausted in the prosecution of the Stanley expedition, and thereafter the necessary funds were supplied by Leopold. The first appearance of the International Association of the Congo is variously stated. Wauters (L'État Independant du Congo, 23) says that the comité changed its name at the end of 1883; Chapeaux (Le Congo, 322), that the comité "took the title" of International Association of the Congo in 1882, as does Vermeersch (La Question Congolaise, 12). Boulger (The Congo State, 26) gives no date, but states that the comité soon" changed its name. Cattier (op. cit., 19), on the other hand, definitely states that the comité ceased to exist during Stanley's expedition. Leopold's motives for assuming a new name for his work Cattier conjectures to have been based upon the apparent utility "of introducing the word international" and of renewing the appearance of internationality with which the earlier African association had been invested. As late as 1884 treaties with the chiefs were still being made in the name of the old International African Association. "Au fond, le nom ne faisait rien. Il designait toujours le même pensée, le même volunté creatrice (Vermeersch, op. cit., 12.)" But when the will became political, the adjective "international" was reassumed. The Belgian Constitution then barred the way to accession of territory.

developed, of political power. The president of the International Association of the Congo (under which title Leopold's undertaking was known until the close of the Berlin Conference) thus directed Stanley at the outset of his work:

It would be wise to extend the influence of the stations [to be established in the Congo basin] to the chiefs and tribes dwelling near them, of whom a republican confederation of free negroes might be formed, such confederation to be independent, except that the King, to whom its conception was due, reserves the right to appoint the president, who should reside in Europe.

To this it was added that Leopold's purpose was to create, "not a Belgian colony, but a powerful negro state." Stanley replied that he understood that there was no intention of founding a Belgian colony, but that the alternative would be far more difficult. “It would be madness for me to attempt it except in so far as one course might follow another in the natural sequence of things.' Between 1879 and 1883 Stanley established several stations on the Congo and had negotiated more than three hundred treaties with the native chiefs.

999

How far these treaties conferred sovereign rights upon Stanley's principals must be decided by the peculiar, if not unique, circumstances of the case. Had Stanley been acting, for instance, on behalf of an African company chartered under British law, no one would have contended that the British flag did not cover the territories thus sought to be obtained.10 But Stanley and his associates were not then acting for any company, the creation of Belgian or other municipal law. Had the International Association of the Congo been created by Belgian law, it is probable that Belgium, as against other states, might have acquired imperium over the territories which the association, as such Belgian subject, might have obtained. She could not have done so as a matter of domestic law, for the Belgian Constitution at that time forbade the cession, exchange, or addition of territory save by special law. It may well be that the association

The Congo and the Founding of its Free State,

10 Cf. the treaty between the British South African Company and Umtassa, September 14, 1890, quoted by Westlake, op. cit., 151.

11 Article 68 of the Constitution, as revised in 1893, reads:

"The colonies,

remained “international," i. e., having no legal status in Belgium, for the purpose of avoiding the restrictions of the Constitution. As it was a private association merely, certain jurists have sought to prove that individuals can acquire sovereign rights by cession from the heads of quasi-states who possess these rights.12 The precedents cited for this position, viz, the Puritans in New England, the Quakers in Pennsylvania, the British chartered companies in Africa and Borneo, are not in point. In these cases the individuals or companies acquired dominium; the imperium belonged to the state to which the individuals or companies owed political allegiance, provided, of course, such state ratified, or acquiesced in, the acts of its nationals. Had the African tribes really been members of international society, and hence subjects of international law, the case might have been different. It is idle to hold that sovereignty may be transferred by those who have no conception of it. Stanley's treaties were evidence that the natives had certain moral, if not internationally legal, rights; and the International Association of the Congo recognized that they had.

Did the International Association constitute a state de facto, in the sense that a recognition of its de facto existence would, or should, follow in the ordinary course of diplomatic action? A state must have territory, a numerous population, and be politically organized. It must have independence and permanence.

For all purposes of international law, a state may be defined to be a people permanently occupying a fixed territory, bound together by common laws, habits, and customs, into one body politic, exercising through the medium of an organized government independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace, and of entering into all international relations with the other countries of the globe.1

13

Judged by this standard of Phillimore, it can not be seriously contended that the International Association was a state de facto.

foreign possessions, or protectorates, such as may be acquired by Belgium, are to be ruled by special laws. Belgian troops for the defense of these can only be recruited by voluntary enlistment.” Bull, de la Soc. de Leg. Comp., 1893, 611. 12 Notably, Twiss and Arntz in Rev. de Droit Int., 1883-4.

13 Phillimore, International Law, 3d ed., I, 81.

In 1884 its territorial claims were large; it comprised the territory south of the Congo and drained by that river and its affluents. But up to the time of the Berlin Conference there had been no delimitation of its territories. Its population was numerous, it is true, having been estimated at from eleven to thirty millions. But these were the blacks, subject to their own primitive rule of life, dwelling in more or less settled fashion in tribal organizations, just as they had for centuries. Of the whites there were at this time about two hundred and fifty, nearly all of whom were in the service of the association. How many of the blacks were conscious of the existence of the alleged sovereign authority of the association, there is no evidence. Later events lead one to think that they were few. Some of these were tribes which resisted, more or less successfully, all exercise of that authority. Outside the small spheres of the various stations, no actual control over the natives was at first attempted. The association was not even able at all times to maintain uninterrupted communication among its stations. What organization there was for the purpose of enforcing the sovereign will, or of political administration, was the company of two hundred and fifty whites, one white person for each one hundred thousand or so of blacks. Nor was the association in any wise "self-contained." It was directed from Brussels and sustained out of Leopold's private purse. Even as to the whites there is nothing to show that they were bound by any tie of political allegiance to the association. Each servant or officer was recruited for a certain number of years' service. It has never been contended that any of the Belgians in its service foreswore allegiance to Belgium, substituting therefor an allegiance to the International Association of the Congo.14

If the International Association of the Congo was not a sovereign state de facto in 1884, what, then, was its status? The most striking characteristic of the organization was its artificiality. Leopold was called the founder (fondateur) of the association. Consciously or not, there is imported the idea of an artificial juristic person, the "foundation" of the civil law. The foundation may have scientific

14 Naturalization in the Congo Free State was established in 1892 by a decree of Leopold of December 27 of that year. Lycops, Les Codes Congolais, 161.