or charitable purposes, as well as religious.15 Note that only the idea was imported, for the association denied that it was the creation of Belgian or other municipal law.16

The International African Association was, potentially at least, such an "ideal juristic person" when it proposed to found scientific and relief stations in Africa. Later, when the International Association of the Congo took its place, there appears the idea of a corporation, having at first commercial and finally political aims. Its character as an inchoate, or as a potential, corporation is of prime importance in connection with the question of recognition. Had it been a corporation organized under the municipal law of any state, its territories might have "belonged" to that state. Recognition gave it a locus standi, absolutely necessary owing to the unique and anomalous circumstances of its origin. The association by no test of international law was a state de facto. It was an association without legal standing. To have had a charter under Belgian law would have defeated the very ends of the association. The powers gave to the inchoate organization what otherwise it could not have had. In lieu of de facto existence, it was called into being de jure by the powers, which recognized it in 1884-85. They made it, or, more correctly, they agreed to consider it, a legal entity a person, not in municipal law (for such it was not), but in international law. It does not greatly stretch the meaning of the term to call it an international legal fiction. Therefore, when the representatives of the powers welcomed at Berlin the appearance of the new State, there was what M. Rolin-Jacquemyns called, by no mere figure of speech, an international investiture." 17

II. Whether led by the belief that Leopold was doing his work for the benefit of England,18 or in order to check the growing colonial power of France, Lord Granville found himself the center of attack when he signed the Anglo-Portuguese treaty of February 26, 1884.

15 Savigny, Traité du Droit Romain, II, 237. Cf. Cuq, Les Institutions juridiques des Romains, II, 794.

16 Note the apparent exception of the Comité d'Études described above. 17 Rev. de Droit Int., 1889, p. 170.

18 Keltie, The Partition of Africa, 1st ed., 143, who quotes an unnamed source for the statement.

The date may be taken as the terminus a quo of the really political significance of the Congo project. This treaty recognized the hithertʊ shadowy title of Portugal to that part of the African west coast through which the Congo River debouches, between 5° 12′ and 8° south latitude. This volte-face on the part of Great Britain, which had previously denied Portugal's claims, was denounced by the British press and in Parliament. Leopold appealed to Granville to wait before acting, in order to inquire into the validity of the treaties between Stanley and the native chiefs.19 More important still were the protests of the continental powers. France declared that she would not be bound by the treaty (March 13). Germany served a like notice (April 18).20 The Anglo-Portuguese treaty, therefore, allowed France and Germany to make common cause against the power which would have deprived Leopold of an outlet from his territories. While Great Britain and Portugal had agreed upon a joint commission for the Congo River, Germany and France came forward with a proposition for an international commission for the river, such as had been considered some time before by the Institute of International Law. These two Powers were drawn into an entente by which Leopold would surely be the gainer. On the 23d of April France had a further and tangible interest in favoring the International Association of the Congo. By an interchange of notes between Strauch, the president of the association, and Ferry, the French Minister for Foreign Affairs, the association engaged (1) never to cede its possessions to any power, and (2) to give France the right of preference (droit de préférence) in case the association were ever forced to alienate them (réaliser ses possessions). As a quid pro quo, France agreed to respect the stations and free territories [sic] of the association, and to put no obstacle upon the exercise of its rights (de ne pas mettre obstacle a l'exercise de ses droits)." 21

66

19 Boulger, The Congo State, 42.

20 Cattier, op. cit., 25, makes the unsupported assertion that Holland and the United States also protested.

21 Van Ortroy, Conventions internationales concernant l'Afrique, 98. See also Supplement to this JOURNAL. This right of preference in favor of France gave rise to many complications. France announced her right by a circular to the powers (April 23-24, 1884), and, so far as known, none protested. The Congo Associa

It was by no mere coincidence that just at this juncture the United States recognized the flag of the International African Association, carried by the Congo Association, as "that of a friendly government." Leopold, acting through Mr. Henry S. Sanford, a former minister of the United States to Belgium and member of the old Comité d'Études, managed to obtain from Secretary Frelinghuysen that which Ferry was unwilling to concede, for the French note stopped short of recognition. It was then an open secret in Europe that Leopold had unsuccessfully requested more than one government to recognize the association. The action of the United States came as a distinct surprise, especially in England. The importance of the action of the United States has, however, been overestimated. The movement of forces had already started, the result of which was to give Leopold's work an international status. It was valuable to Leopold in making a precedent, but it does not appear that it materially changed the position of the association. Frelinghuysen signed and the Senate ratified quickly and perhaps without knowledge of the motives which lay back of the request for recognition. The phraseology of this correspondence between Sanford and Frelinghuysen is noteworthy. The association declared that by treaties "with the legitimate sovereigns" there had been ceded to it "territory for the use and benefit of free states, established and being established, * * to which cession the said free states [sic]

*

of right succeed." Free entry of goods into these territories was guaranteed, as well as the right of foreigners to carry on trade there. The United States, sympathizing with and approving "the humane and benevolent purposes of the International Association of the Congo, administering as it does the interests of the Free States there established," recognized the flag as that of a friendly government. tion ratified the right after its full recognition by France (February 5, 1885). As no exception was made it was feared that France would oppose its right as against Belgium in case the latter State desired to annex the Congo. The question was left open by an interchange of notes between France and the Congo in 1887. By the Franco-Belgian treaty of 1895 the right was confirmed. Although annexation did not then take place, the treaty served to interpret the right: that it would not take priority over Belgium, but that as to other powers both the Congo and Belgium admitted its force.

A few days before the exchange of these notes Bismarck suggested to Ferry that France join Germany in calling a conference of the powers in order to solve the difficulties to which the rival claims to the center of the continent had given rise. To this Ferry consented. In June Bismarck stated in the Reichstag that the enterprise of Leopold had for its object the establishment of an independent state, and, further, that the German Government was favorable to that project. Three days later Granville announced that the Portuguese treaty had been abandoned.22 The plan of Bismarck, as tentatively put forth, took definite form in September, when France and Germany decided to recognize the association as independent. After outlining the program of the proposed conference, to which Great Britain had by this time agreed, Bismarck stated that Germany would take a friendly attitude with respect to the "Belgian enterprise on the Congo, as a consequence of the desire of his Government to assure to its nationals freedom of commerce over the whole extent of the "future state of the Congo.".

At the time, therefore, when the program of the Berlin African conference had been formulated, it appears that (1) France, Germany, and Great Britain acted upon the assumption that the International Association of the Congo was not a state in esse, but a possible state in futuro; and (2) that within a few days of the conference at Berlin no power had recognized the association, except the United States, whose recognition, so unique in form and substance, was a sort of collateral incident.

The purpose of Bismarck in calling the conference was to have the powers come to an understanding concerning the Congo basin, in order that this core of the African continent should not be fought over by the rival claimants to territory. France, Great Britain, Germany, and Portugal looked, as colonial powers, toward the center of the continent. With the basin of the Congo unappropriated except by the group of private individuals supported by Leopold, acting privately, a scramble, unseemly if not belligerent, might have engaged those states whose colonial aspirations were leading them thither. To recognize the International Association of the Congo 22 Wauters, L'État Independant du Congo, 30.

as a legal person, having sovereign power over this region, was Bismarck's method of eliminating a dangerous contest for possession.23 To subject the area to a régime of commercial freedom was to effect what afterwards came to be known as the "open door." To safeguard this freedom, he further proposed that the territories be neutralized. The invitations said nothing about the International Association. The powers were asked into a conference to come to an agreement upon the questions (1) of freedom of commerce in the basin and at the mouth of the Congo, (2) of applying to the Congo and Niger rivers the principles governing the Danube and other international rivers, and (3) of defining the formalities to be observed in order that new occupations on the coast of Africa might be considered effective. These invitations were sent to the various governments of Europe, whether colonial powers in Africa or not. The United States was also asked to send representatives. Many reasons have been given for this inclusion. The conference was said to be commercial and not political in scope; the United States had already recognized the association and had therefore a friendly interest in the matter. No sufficient reason is to be seen why the United States accepted the invitation, as it had nothing to gain by taking part in the conference. Its representatives, however, rendered Leopold valuable services, for assisting the principal delegate, Mr. Kasson, then minister to Germany, were Henry M. Stanley ("nominally as a geographical expert, but in reality there to look after the interests of his patron, the King of the Belgians ")24, and Mr. Henry S. Sanford, who had already been conspicuous in behalf of Leopold's enterprise.

The representatives of the powers met at Berlin November 15, 1884. On the 8th Germany and the Congo Association signed a convention of friendship and limits. The terms of this document are significant as compared with those used by the United States in the preceding April. Although the flag was recognized as that

23 And to check English influence over Portuguese Africa.

24 Keltie, The Partition of Africa, 1st ed., 207. The General Act of Berlin, signed by the American delegates, was not submitted to the Senate for ratification by President Cleveland.