Thanks [1]
Introduction
1. In 1885, the central African Congo Free State (CFS) was established as an independent state under the personal reign of Leopold II, King of the Belgians (1835-1909). The so-called “King of Colonialism” convinced the international community he was involved in humanitarian and philanthropic work although he earned infamy due to the atrocities committed in the Congo basin [2]. Anglo-Saxon and Belgian humanitarian lawyers, authors and journalists exposed those crimes to the public putting pressure on Belgium’s Parliament to undertake action against the King [3]. It lead to the annexation of CFS by Belgium.
2. Since Jean Stenger’s Belgique et Congo : l’élaboration de la Charte coloniale, the annexation project has received little attention [4]. Recently, Vincent Viaene explored parliamentary documents and a wide variety of sources to reconstruct the discussion of la reprise du Congo [5]. In his research, he mentions the renowned Brussels attorneys-at-law Edmond Picard (1834-1926) [6] and the Conférence du Jeune Barreau de Bruxelles (Brussels Young Bar Association) as breeding ground for Belgium’s colonial party [7]. In legal history, these actors are connected to one particular legal periodical : the Journal des tribunaux which reported on important political and legal issues such as the colonial question. Scrutinizing the articles brings a unique insight on the way lawyers thought about it [8].
3. At the end of the nineteenth and early twentieth century, Belgium counted about twenty legal titles of which the generalist – i.e. not focusing on a particular legal branch or court – Journal des tribunaux (JT) took the lead from its renowned predecessor La Belgique judiciaire [9]. Its pre-Second World War editors-in-chief Edmond Picard and Léon Hennebicq (1871-1940) [10] propagated a strong Belgian State with its own colonial empire and hailed King Leopold II’s work overseas. Secondly, the Journal’s collaborators were involved in more specialist colonial titles. Thirdly, when in 1960 the Congo gained its independency, the Journal des tribunaux simultaneously celebrated its 75th anniversary [11]. For this occasion a longer issue was published with overview articles on how the periodical can be used as a means to reconstruct the evolution of certain legal branches [12]. Brussels attorney Delfosse wrote a specific contribution on colonial law and how “la mentalité de nos compatriotes, et plus spécialement de nos confrères, à l’égard de ce qui fut jadis et sera demain” [13]. Delfosse turned the pages of all volumes published between 1881 and 1960 and summarized chronologically the most significant contributions on the Congo question. However, he did not contextualize the Journal des tribunaux as an instrument of its editors, using it as a vector to disseminate their opinion. Vector needs to be seen in its etymological sense, namely : a carrier. Journals carry out the messages from authors and editors [14].
4. On which aspects of the Belgian colony did the Journal des tribunaux focus ? What was reported and by whom ? As some articles were anonymously it is not always known who stood for which idea, but researchers assume that all published articles have been approved by Picard or his successor and hence were in support of their ideology. We will distinguish two phases between 1885 and 1908. The first one is the economic phase, in which the Journal des Tribunaux showed almost no interest in the subject whatsoever and nothing seemed to be wrong in the Congo. The second phase starts around the turn of the century, when a possible annexation of the CFS has been negotiated and became an urgent matter after the 1904 Casement Report. This article will show that Belgium’s legal world initially lacked any interest in what happened in the Congo basin. Only when an almost compulsory annexation of the CFS by Belgium seemed to dissolve international pressure, the Parliament rushed to legislative actions. How did the Journal des tribunaux report on this matter and what insights does it give on legal periodicals as a vector of editorial ideas ?
Journal des tribunaux as a vector for colonialism
5. Ever since Belgium gained its independence, the Brussels Bar Association was a meeting point of active minds, who were convinced that law had a guiding role to play to emancipate the people [15]. The most dynamic amongst them all was Edmond Picard. As a member of the Brussels Bar, he was closely involved in the Conférence du Jeune Barreau [16]. In addition, he headed scholarly publications such as the Pandectes belges (1878-1933), a full-fledged encyclopaedia on legal matters and a full bibliography of all legal publications in Belgium [17]. He gained respect from his peers by his most renowned publication : the Journal des tribunaux, which appeared for the first time on December 15, 1881 and exists until today [18]. Its manifesto embodied the philosophy of Picard : bring law to the people. It was conceived as a journal, meant for the public to be bought and read, hence it was distributed all over the country and available in kiosks as most newspapers. Despite the fact the Journal was rather expensive – 25 francs for one-year subscription – and the lower classes did not know how to read, let alone being interested what happened in the court rooms, Picard considered his publication a great success. Important is that the Journal des tribunaux was founded by members of the same group of L’Art moderne (1881-1914) a new leading artistic journal, which shared with Edmond Picard and Octave Maus (1856-1919) [19] common editors [20]. Despite its intention to be an a-political periodical – the editorial board united people from all political parties – the Journal des tribunaux soon positioned itself close to the Belgian Socialist Party (BSP) [21]. At that time, the BSP urged for the emancipation of the working class, bringing the colonial question to the background [22]. Émile Vandervelde’s intervention in 1895 was symptomatic when he stated : “Let us wait to treat negroes as white men until in our country white men are no longer treated as negroes” [23]. Generally, the Congo question stood low on the priority list of Belgian politicians. The BSP was openly anti-colonial contrary to Edmond Picard, at that time socialist senator, who took a particular stand when it came to the most delicate problem of the Congo Free State. Picard admired King Leopold II and his colonial project : he travelled to the Congo to witness the situation over there [24]. In general, he considered the Congo Free State as an exemplary colony [25]. His pupil Léon Hennebicq had the same opinion.
6. In 1900, editor-in-chief Picard handed over his series to a new team of young colleagues headed by his intern Léon Hennebicq, who in several ways resembled his predecessor. They shared a common interest in arts, culture, law and politics. Both were Belgian patriots, involved in the Belgian Workers Party and shared a common interest in maritime and colonial law. Hennebicq defended a national expansion. He believed Belgium, based on its history, its industrial power and intellectual influence, deserved a prominent place in the “concert of nations”. As president of the Ligue maritime belge and the Institut international de commerce, Hennebicq advocated a large penetration of Belgium on the world markets. Further, he was involved in colonial periodicals such as Le mouvement maritime (1901-1904) which merged in 1905 with La Belgique coloniale (1895-1904) [26] in La Belgique maritime et coloniale (1905-1921). Further, he worked for Le Matin, a paper defending Leopold’s policy in Africa, and the Mouvement géographique (1884-1922). All journals participated in the polemical discussion whether Belgium should have a colonial empire and thus annex the Congo. The connections between these journals are revealed in articles copied and published in the Journal des tribunaux [27]. Before the First World War, the Congo question drove a wedge between the Journal’s most important collaborators : editor-in-chief Léon Hennebicq and later Minister of Colonies Henri Jaspar (1870-1939) [28].
7. In 1907 and for at first sight no obvious reason, the editorial board of the Journal des tribunaux was reshuffled [29]. Almost thirty years later, Hennebicq offered a glimpse on that tumultuous period. He stated : “Toutefois, dès 1906, la campagne anti-congolaise inspirée par les enfants perdus que l’Angleterre lance dans les marches de son impérialisme réussit à diviser notre rédaction” [30]. In an anonymous article, one reads the story about two colleague-attorneys, one is a ‘congophile’, the other one is ‘congophobe’. During a political rally the first one propagated the Congo annexation, the latter interrupted rather violently and he took his allies outside where he talked to them. He seemed to have stirred up the mob who chased the congophile forcing him to flee to the nearest railway station. There he met his adversary again who allowed the mob to punch his colleague. He understood, he was a most popular politician [31]. This story was about Hennebicq who strongly supported the annexation of Congo and Henri Jaspar, “chef de file des antiléopoldiens […] qui conduisais déjà la résistance des coloniaux et des maritimes” [32].
1885-1900 : From loan to law
Investing in the Congo Free State
8. Even before his ascension to the throne in 1865, Leopold II dreamt of acquiring colonial territories for economic reasons and he drew parallels with Dutch and British colonial history [33]. In 1876 he hosted a geographic conference in Brussels and founded the philanthropic International African Association (Association internationale africaine), which he presided. He commissioned the renowned explorer Henry Morton Stanley (1841-1904) to explore the Congo basin. Together with the explorer’s help, King Leopold II claimed a large area along the Congo River where he – officially – intended to combat slavery and open the country to legitimate and peaceful commerce.
9. To develop the Congo Free State there was an urgent need for infrastructure such as bridges, tunnels and railroads. Therefore, tribes saw their land expropriated without further ado. Moreover, to justify the claims over land, Edmond van Eetvelde (1852-1925) [34], secretary of State at the Internal Affairs Department of the Congo Free State, gave Picard and his intern Félicien Cattier (1869-1946) [35] ten questions to advise King Leopold II on the rights of the Private Domain. Both attorneys published in 1892 the results of their work [36]. They stipulated that sovereignty of a State not automatically led to the property of unoccupied territories (terres vacantes). However, they continued, each State had the right to regulate property rights. Remarkably, the Journal des tribunaux reported on this questionnaire only ten years later when the annexation of the CFS became an imminent matter [37]. King Leopold II provided his private resources to fund this endeavour, which became a large financial burden on his shoulders. The authorization to issue a lottery loan in 1888, the subscription of Belgium to the capital of the Congo Railway Company in 1889. On July 3rd, 1890, a first agreement between Belgium and the CFS on a loan of 25 million francs spread over a ten-year term gave the former the right to annex the latter six months after the term had expired. The Chamber of Representatives approved the agreement, which actually resulted from King Leopold’s will sent a year earlier to Prime Minister and close friend of the monarch Auguste Beernaert (1829-1912) [38]. Five years later, surfaced the news that the CFS – allegedly – went almost bankrupt and immediate annexation seemed the only possibility to save all Belgian investments. Major Albert Thys (1849-1915) [39] director of the Société anonyme belge pour le commerce du Haut-Congo, tried to convince Belgian businessmen that the annexation of the Congo would be an excellent matter for the country was at its highest economical level and desperately in need of resources and larger markets [40]. However, at that moment the proposal to annex the Congo encountered such hostility at the Belgian public opinion because a lot of money already went lost [41]. The presented draft of the cession project was almost immediately subordinated [42]. The Parliament only allowed an extra loan of 6,850,000 francs under the same conditions of the 1890 act. Thus in 1901, Belgian government had the free choice whether it would engage in an annexation project.
10. Because of its economic importance, Journal des tribunaux hardly focused on the colonial topic. The signing of the 1885 Berlin Treaty was not mentioned at all and if reports on Congo were published, they remained hidden in the section Droit international (International law) or État étranger (foreign state). These topics contained the most important decrees, some case law, reprints of specialised colonial periodicals or book reviews [43]. However, an increase of attention can be seen from 1885 onwards when for the first time regularly the lemma “Congo” in the Journal’s indexes appears. The first contribution discusses Gustave Oppelt’s (1817-1888) [44] book Léopold II, roi des belges, chef de l’État indépendent du Congo, an hagiography about King Leopold’s work in Congo [45].
Congo as a legal question
11. During the last decade of the nineteenth century, the Journal des tribunaux and the Brussels Young Bar Association slowly turned their focus to the Congo question. A few reasons might have caused this. The aforementioned loan to develop the Congo approached its deadline, and a potential annexation urged Belgian lawyers to think about the legal implications of such annexation on both international and national level. However, at that same moment, French legal scholars posited that Belgium had no legal ground to annex the Congo. In 1894, the Bordeaux professor Frantz Despagnet (1857-1906) [46] wrote : “les Belges veulent le Congo. Mais la France ne doit pas autoriser cette annexion, car elle serait de nature à compromettre la neutralité de la Belgique”. A year later, Paul Fauchille (1858-1926) [47] declared the annexation of Congo to Belgium not compatible with the country’s perpetual neutrality [48]. In 1884, France had entered into a convention with the Association internationale africaine – the official predecessor of the CFS – whereby its sovereignty rights were recognized, but in case the sovereignty should lapse, the territory should go to France. Thus, France had a pre-emptive right if King Leopold and the Congo Free State were not able to fulfill their international engagements. As the annexation acted directly against CFS’s and Belgium’s perpetual neutrality, the right was about to be claimed.
12. Secondly, in 1893, the first article of Belgium’s Constitution was amended with a colonial clause, which initiated a small group of young attorneys to establish within the Brussels Young Bar Association a cercle d’études on colonial matters [49]. The Journal des tribunaux reported on their meetings during which colonial law and the legal implications between the metropolis and the colony were discussed. It wanted to transplant “the best principles of our legislation” in the indigenous law. Characteristics such as race, psychology, climate and civilisation were taken into account [50]. A few weeks later, the “Société étant favorable à la politique d’expansion colonial” [51] – abbreviated as Société d’études coloniales [52] – was founded by the young Brussels attorney Victor Pourbaix (1867-1906), who became the secretary of this association [53]. Its first president was August Courvreur (1827-1894), who had been attending the 1876 Brussels geographic conference and who was known as a propagator of the Leopoldian Congo [54]. He died unexpectedly in 1894 and was succeeded by Auguste Beernaert (1829-1912) who had just resigned as Belgian Prime Minister [55]. All members of the Société supported King Leopold II and his colonial policy.
13. Initially, the Society was divided in three sections : a scientific one (Section scientifique), an economic one (Section économique) and a legal one (Section juridique). A few weeks later a section of political and moral sciences was added. Those were not strictly divided, as members of one section could participate in reunions of an other. Alphonse Rivier (1835-1898) [56], professor at Brussels Free University (Université Libre de Bruxelles) and one of Belgium’s most renowned scholars on international public law, headed the legal component [57]. Each section dealt with questions raised during the colonial adventure and the results would be mentioned during a general assembly. These goals and the programme of the study group were published in the Bulletin de la Société d’études coloniales [58]. Even though the Société d’études coloniales had its own periodical, the Journal des tribunaux reported on the legal meetings.
14. Henceforth, the colonial question drew attention of the Brussels Bar in general as in 1894, out of 700 Brussels attorneys-at-law [59], 129 became member of the aforementioned Société des études coloniales [60]. Further, the JT showed interest when fellow attorneys travelled to Congo Free State [61]. Two consecutive opening speeches at the beginning of the judicial year were dedicated to the colonial question. On October 26, 1895, Brussels attorney René Vauthier (1864-1921), nicknamed the “champion of the colonial cause” [62], opened the new year of before the Conférence du Jeune Barreau de Bruxelles [63]. A year later, Willem Thelen (1870-1958) [64], who had visited the French colonies in North-Africa, speeched before the Vlaamsch Pleitgenootschap der Brusselsche Balie, with a lecture entitled “Eenige zijden van het coloniaal vraagstuk” [65]. Both speeches carried remarkable parallels in them as they connected the colonial question to the social one which at the end of the nineteenth century stirred Belgium. The colonial models from Portugal and especially Spain were bad examples and were considered as nothing more than looting the country. This ‘killing the golden goose’ was no longer a viable solution for colonial empires. Both speeches mentioned a need for investment and denounced all kinds of slavery. Thelen went further than Vauthier and propagated the French protectorates in Algeria and Tunisia as exemplary. In addition, he openly advocated colonization as necessary for all human kind as it made all resources from everywhere available. Thelen asked himself :
if a few places in the world are inhabited by tribes not able to develop their land, or to use the natural resources for the benefit of all, what’s the harm to give civilized people the right to act as a tutor, to establish a colony, and by doing so, giving all human kind the possibility to enjoy the wealth ?
He supported his thesis by giving the examples of the United States and Australia, which, thanks to the Western colonizers, were better places to live. Moreover, the presence of the West, made it possible for indigenous populations to turn their back to ‘the arbitrary tyranny of their leaders and their cruelty’. In other words : European empires brought civilization and prosperity. This message stood in contrast to the international protest, which rose during the last decade of the nineteenth century against the policy of Congo Free State. Also some Belgian lawyers were not keen on the Congo project. Especially the Brussels Conseil supérieur du Congo (Supreme Court of Congo), established in 1889, was questioned :
Voilà donc une juridiction étrangère qui siège et juge dans notre pays ? En vertu de quelle disposition légale ? Un pouvoir judiciaire étranger peut-il agir en Belgique ? [66]
More and more, the Congo question became a legal one and a matter important for all Belgians, who were until that moment not interested in their colony.
1900-1908 : Bringing Congo Free State to the people
1900-1902 : Annexation is a national issue
15. In 1900, the annexation of the Congo to Belgium appeared for the second time on the parliamentary agenda as the 1890 loan approached its end. Again, the Journal des tribunaux found itself at the forefront of the debate and reported on the discussion at the Parliament. Nonetheless, the periodical expressed its astonishment about the large disinterest amongst Belgian civilians and its political leaders towards the Congo question [67] :
Mais ce qui est plus étrange encore, c’est qu’un milieu éclairé, tel que le Barreau, partage l’indifférence générale sur le débat qui va s’ouvrir, et qui cependant présentera un caractère éminemment juridique. Une telle apathie est presque coupable : le Barreau fournit, et on le lui reproche assez, environ un tiers de notre personnel politique [68].
16. Traditionally, lawyers had been the major professional group in the Parliament. If they wanted to remain in their leading position, the Journal des tribunaux instigated them to look beyond elective reasons. The editors appealed to the members of the Brussels bar to take the lead in this political debate and use the Journal des tribunaux as a means to disseminate their opinions. Herein, the editors remained faithful to the periodical’s goal to bring law to the people. In other words, the Journal des tribunaux wanted to inform everyone in Belgium about the Congo problem.
17. To remove this apathy or disinterest, the Journal organized a conference with Maurice Duvivier on Belgium and its colonial expansion [69], and it published two anonymously written articles on the relation between Belgium and the Congo Free State. Those articles discussed whether Belgium should take the optional right to annex the Congo Free State or not. If the Belgian government decided not to do so, the sum of 25 million francs could only be demanded after a new period of ten years. However, it would generate an interest of 3,5% per semester. After the author briefly sketched the agreements between the Congo Free State (i.e. King Leopold II) and Belgium (i.e. Auguste Beernaert) on the hereditary rights and the loan [70], the legal implications of the 1890 agreement were discussed [71]. The author criticized the indecisiveness of the Belgian Parliament by expressing his hope that a “firm and virile stand [would be taken] to safeguard the future once and for all” [72]. MP Paul de Smet de Naeyer (1843-1913) [73] concluded that Belgium had only one option : annexing the Congo Free State and if it did not, it renounced this right permanently. The author of the article did not agree and argued that three options were possible for the Parliament. Firstly, a plain and simple annexation of the Congo Free State, which implied the debt disappeared. Secondly, not using the right to annex, which results in a full repayment of the loan. Thirdly, both parties could agree on a new contract with possible new terms.
1903-1905 : Annexation becomes an international issue
18. From 1903 onwards, the tone in the Journal des tribunaux became more grim as international protests against King Leopold II and his Congo Free State sounded louder and louder. Especially editor Hennebicq profiled himself as very militant. In the opening statement of the May 31st, 1903 issue, he mentioned two international incidents of which “l’opinion publique de notre pays semble n’en avoir pas encore compris tout l’inquiétante gravité” [74]. Especially the United Kingdom, where the Aborigines Protection Society (APS) raised its voice, took the lead in criticizing King Leopold II and his colonial project. The APS, an international humanitarian organisation, founded in 1837, ensured the health and well-being of and the sovereign, legal and religious rights of the indigenous peoples while also promoting the civilization. In 1889 Henry Richard Fox Bourne (1837-1909) [75] became the secretary of the Society and he was one of the first to denounce publicly the cruel treatment of natives in Congo Free State. The Journal des tribunaux explicitly mentioned his name. The first demand of Great-Britain was the restitution of the Lado enclave [76]. Secondly, the freedom of commerce, guaranteed in the 1885 General Act of Berlin had to be respected. Léon Hennebicq saw in these demands a hidden agenda to ”dismember Congo and divide it amongst Germany, England and France” [77]. He openly critizised international humanitarian law as “paravents qui ne sont dressés que pour cacher les ambitions latentes”. In his opinion, Belgium had become a competitor for the other European Powers which needed to be restrained. Léon Hennebicq continued that annexing the Congo was necessary for Belgium if it wanted to build a large commercial fleet, or if it wanted to strengthen its ambitions in China and the Far East.
19. The Casement Report, published in 1904, set off a discussion in the British House of Commons and public opinion favoured stopping the atrocities. Almost unanimous the House of Commons accused the government of the Congo Free State of infringements against humanity and freedom of commerce. On June 19, 1904 Journal des tribunaux reported on these debates on the other side of the Channel and according to the anonymous author it was clear that it was a campaign orchestrated by commercial intentions.
La campagne menée par les commerçants de Liverpool et accueillie par le gouvernement ne parlait de cette dernière question. Il leur paraissait plus opportune de frapper l’imagination populaire et l’opinion publique par le spectacle d’atrocités prétendues auxquelles la fonction des missionnaires dénonciateurs donnait un caractère d’authenticité apparente. De là la campagne de meetings, le rapport Casement, les votes de la Chambre des Communes [78].
20. According to the Journal des tribunaux, the British outrage was inspired by “des appétits commerciaux de cette nation avide d’activité et de conquête” [79]. Through its vastness and its resources, the Congo was a profitable region and under the cloak of humanity and justice Great Britain tried to regain its position on the ivory and rubber markets. The editors of Journal des tribunaux questioned the Casement report and pointed to some flaws, especially in the Epondo case [80]. According to the editors, the British diplomat seemed to have forgotten about “la propension naturelle du nègre au mensonge, et le travestissement de la vérité par les missionnaires” [81]. This ‘misinformation’ has led to the diplomatic problems for Belgium. A solution was much needed.
21. A first solution seemed to be the immediate annexation of the Congo Free State by Belgium, which made the question if Belgium, as a perpetual neutral state, could annex its overseas territory. Pierre Graux tackled this issue during the opening speech of the 1904 Conférence du Jeune Barreau de Bruxelles and harvested a lot of success [82]. The attorney opened with the remark that internationally, other countries tried to confine Belgium in its colonial adventure by “imposing a new international law” [83]. Foreign scholars argued that Belgium was artificially created during the 1831 London Conference and existed only by the grace of the five European powers which had it imposed perpetual neutrality. Building a colonial empire jeopardized this sovereignty and neutrality, as the odds for conflict increased. In other words, the recognizing powers could annul the London Treaty and make Belgium disappear. Convincingly, Graux tackled these issues and referred to renowned Belgian international lawyers such as Ernest Nys (1851-1920) [84] and Alphonse Rivier (1835-1898) [85], who both stipulated that a declaration of sovereignty is a fact and other powers have no other right but to acknowledge its existence, be it under certain conditions. Hence, Belgium’s perpetual neutrality is a mere condition for recognition of the country in the “concert of nations”. Belgium had as much as other European powers the right to develop and expand overseas. The British on the other hand believed that a small country like Belgium could not cope with a colony.
22. The Journal des tribunaux reported on the possibility suggested by some British MPs to install an international court to condemn the atrocities committed. Belgian lawyers saw this as a wrongful interference in an autonomous and free judiciary. Under the international pressure, King Leopold II appointed a Commission of Inquiry in July 1904. Attorney-General at the Belgian Cassation Court Edmond Janssens (1852-1919) [86] presided this international Commission and was assisted by the Swiss chief justice of the Luzern canton Edmond de Schumacher (1859-1908) [87] and the Italian president ad interim of the Boma Court of Appeal baron Giacomo Nisco (1860-1942) [88]. The Journal des tribunaux hailed the King for choosing absolute impartial members [89] and expected a lot from this commission. Especially its president received high esteem as he would not be influenced by emotions. Together with their assistants, the Commission travelled four and a half months through the Congo, held hearings and took testimonies in different localities. Months later the report was published. The findings did not meet the expectations at all :
Nombreux étaient ceux qui, confiants en d’audacieux démentis, étaient persuadés que la Commission rapporterait de son voyage en terre nègre un certificat de bonne conduite et de moralité pour le jeune État [90].
This was not the case, as even the Commission condemned the Congo Free State for committing atrocities.
23. Yet, the immediate cause for the Journal des tribunaux and Brussels lawyers to undertake action was not the publication of the commission’s report as such nor the parliamentary debate which succeeded from it. A book published by Félicien Cattier drove a wedge between the JT’s editors.
1906-1908 : a colleague stirs the minds
24. In 1906 Félicien Cattier, former intern of Edmond Picard and thus colleague of Léon Hennebicq, published Étude sur la situation de l’État indépendant du Congo, an update of his book Droit et administration du Congo published somewhat ten years earlier [91]. At that time was Cattier an expert on colonial matters as he had served as legal counsellor in Siam (1895) and was secretary-general of the Compagnie internationale d’Orient. Further, Cattier was connected to the Banque d’Outre-Mer where he met Albert Thys (supra), Adolphe-Jules Wauters and Emile Francqui. For quite a while Cattier propagated freedom of work and commerce, respect for indigenous property which brought him into debates with his colleagues. For him the report published by the 1904 Inquiry Commission proved him largely right and for his 1906 book he relied heavily on this report. The book is a merciless long critique on the politics of the Congo Free State. In his conclusion, he stated that the Congo Free State was not a colonizing state nor was it a real state. It was a financial enterprise aiming for profit. The CFS hardly served indigenous interests, nor did it help Belgium’s economy. Only King Leopold II benefitted from his colonial endeavour. Cattier questioned whether the loans given by Belgium during the 1890s helped the civilisatory work of the Congo Free State. Forced labour (le portage) had decimated the Congolese population and signalled the colonial work had failed. Further, Cattier sought whether the colony had improve the material and moral conditions for the indigenous. Due to concessionary businesses, local trade went into free fall since 1885 and poverty rose. Especially children and women were victim of the CFS policy. Nothing was done to educate the local population. The only education children could have was when they enlisted in the army. Women had to work on the fields far away from home, leaving their families behind and sometimes they were faced with forced abortion. Cattier held the CFS responsible for all what went wrong in the Congo basin and there was only way to remedy this : Belgium had to annex its colony. [92] More than the Casement report and the report published by the Inquiry Commission it was Cattier’s book that divided the Brussels bar association in two large camps using the Journal des tribunaux and the Bar Association as their arena [93]. It was Hennebicq who strongly denied what happened in the Congo an kept supporting King Leopold II.
25. Some attorneys-at-law, such as Paul Emile Janson (1872-1944) and Henri Jaspar [94], hailed the work of their colleague and called out for an open, moral and public debate on the Congo question [95]. They denounced the theory that violence and abuses were necessary in the Leopoldian colonial expansion and argued that, if Belgium were to inherit the Congo from its King, all must be done to wash away the humanitarian crisis. They hailed the Parliamentary debate on the Congo annexation. Others, such as Hennebicq and René Vauthier [96], opposed strongly these ideas. They loathed Cattier as an anticolonialist and antinationalist who played with fire. Hennebicq considered the book as inappropriate in a time during which the Congo was threatened “par des convoitises étrangères” and Belgium was “sur un pied de guerre vis-à-vis de l’Angleterre qui nous veut prendre notre bien, conformément à sa politique traditionnelle” [97]. England was seen as an important enemy, ready to invade the Congo Free State and violating its independence [98]. According to Hennebicq, Belgium and King Leopold II – thus the Congo Free State – had undeniably done a great job overseas and individual mistakes could happen in such a colonial adventure. In addition, Hennebicq accused Cattier of only taking economic arguments into account and omitting all legal and political aspects of the Congo question. By doing so, he revealed himself as a ‘representative of the commercial societies’ and as ‘anglophile’. In Hennebicq’s opinion it is essential that the legal status is fixed to guarantee the colonial occupation. In other words, a State as a legal person needs to have the necessary rights to position itself amongst other states and in the relation with the indigenous people [99]. Moreover, and still according to Hennebicq, Cattier had made terrible mistakes in his study and negated other colonial powers had adopted similar policies [100]. Despite the fact Cattier urged for an annexation to Belgium, he was not Belgian patriot for his propositions would lead to a de facto annexation to England. From then onwards, the discussion in the Journal des tribunaux escalated. Leading figures such as Alphonse-Jules Wauters defended Cattier, who also responded in an open letter to Hennebicq’s accusations [101]. It resulted in a bitter discussion as Hennebicq responded :
Quant à M. Cattier, je n’ai à répondre qu’une chose, qui est évidente, c’est que je ne suis pas de son avis et que personne, pas même lui, n’a le monopole de la justice et de l’humanité [102].
The debate turned more and more sour, illustrated in an article symptomatically entitled La fiente (bird droppings) where a discussion between two attorneys, Jaspic and Hennebar, was overheard by their colleague who tried to find a middle way. The latter found that nothing is perfect and a colony could not be established without crimes against humanity, although it was time to clean the mess the colonials had made [103]. It is clear that this discussion was between Hennebicq and Jaspar, wherein the former acknowledged that a few bad apples had given the Congo Free State a terrible reputation. Jaspar adhered the idea that there was a abuses and torture was systematically applied in the overseas territory.
26. The editor-in-chief not only aimed for his colleagues, he also attacked the Members of Parliament who he deemed to be ignorant and cowardice. Already after the Casement report, the Journal des tribunaux had stated that “Congo has to be ours tomorrow” but it took two more years before the Parliament debated about it [104]. Only after the report of the Commission d’enquête was announced, the Parliament rushed to annex Congo and undo all harm made. According to the editor-in-chief, the politicians only knew that the Congo was in Africa and there it was hot : “A part ça, nothing”! He continued that a debate conducted in such an environment was doomed because politicians, in his opinion, were only preoccupied with electoral gaining. Since the territory of Congo barely had any influence on the voting ballots, the problem was, along with other international issues at that time, not thoroughly discussed [105]. Hennebicq openly labelled the members of Parliament as a “tohu-bohu d’ignorances”, a bunch of ignorant people. Also the opposition :
Les ennemis de notre expansion, les anticoloniaux, ceux qui ont un programme électoral antidynastique s’en sont donné à cœur joie. Ne dansaient-ils pas sur leur tremplin ? [106]
27. Hennebicq assessed the Brussels Conférence du Jeune Barreau as the best forum to discuss the annexation problem of the Congo, because a lot of attorneys had expertise in the colonial matter. At the end of February 1906, ten members of the Conférence du Jeune Barreau urged for a discussion on “Le problème de l’annexion du Congo” [107]. The association’s statutes stipulated that in case more than ten members asked to convene, an extraordinary general assembly needed to be installed. Throughout the year, it convened several times to work around one particular question : does the annexation of Congo need to go as fast as possible and does another regime need to be installed ? The Assembly would tackle four legal problems : taxes, freedom of commerce, revenues for Belgium and not for Congo and land regime [108]. Alleged infringements against human rights were not discussed. Only once forced labour was mentioned. At the same time of the General Assembly, a Section de droit maritime et de droit colonial (Section of Maritime and Colonial Law) was established at the Brussels Bar Association which had the intention to refute the findings of Cattier and to help the Belgian legislator with the legal problems during the annexation procedure. During the parliamentary debate, two important legal problems emerged : the problem of sovereignty in international law and the regime of colonial territories when Congo would be annexed [109]. René Vauthier discussed it during a meeting of the Section of Maritime and Colonial Law.
28. In 1907, the Section of Maritime and Colonial Law established a study group : the Commission d’études coloniales (Commission of Colonial Studies) [110]. Léon Hennebicq presided this group of seven attorneys at law [111] who elaborated on a certain number of questions which repeatedly have been asked by the public opinion and the Colonial Commission of the Belgian Parliament. From a comparative point of view and with eleven questions, the policies in French, British, Dutch and German colonies were discussed [112]. The results were publicly presented to peers and published in the Journal des tribunaux [113]. At the end of November 1907, all results would be discussed publicly during a meeting accessible for all Brussels lawyers [114]. The secretary of this sub commission was the young and promising attorney Eugène Soudan (1880-1960) [115]. In 1908, Soudan published and presented La reprise du Congo et le droit international [116]. He discussed Belgium’s and the Congo Free State’s neutrality and sovereignty, taking over most arguments raised by Graux four years earlier. Soudan concluded that Belgium’s neutrality stood not in the way to annex the Congo since it was each state’s right to colonize territories.
29. On August 20, 1908, the Belgian Chamber of Representatives voted to annex the Congo Free State to Belgium as a colony. A few weeks later, the Senate approved the annexation too. This did not silence the Journal des tribunaux, because now the colonial work really took off. René Vauthier presented before the Conférence du Jeune Barreau on the new tasks waiting at the Belgian colony [117]. He defended the ideas he propagated already for years and saw two important remaining tasks : valorising the colony and ameliorate the lives of the indigenous [118]. Also the Section coloniale et de droit maritime changed its course. The colonial law had to be interpreted and now it was time to discuss the relations between indigenous customary law and the European law to have ‘white’ legislation in Congo [119]. Again it adopted a comparative approach in which for this time all indigenous customary law would be put next to each other. Other topics were corporate law and commentary on the colonial law [120].
Conclusion
30. Between 1885 and 1908, the Journal des tribunaux gave quite some attention to the Congo question and in almost every way it reflected the ideas of its editors-in-chief, Edmond Picard and Léon Hennebicq. Both defended Leopold II and Belgium’s colonial adventure. However, in the Journal des tribunaux, it is Hennebicq who publishes radically to annex the Congo Free State, regardless the increase of international protests. Amongst their colleagues at the Brussels Bar, both editors found kindred spirits who were little troubled with what happened overseas. The only legal issue raised was whether Belgium should annex the Congo Free State once the loan of 25 million francs is due. Until 1903-1904, the Congo question remained, at least for the Journal des tribunaux, a national problem, which could not excite the Belgian people, let alone their politicians. That happened only a few years later, with the publication of the Casement report. This lack of interest can be explained by King Leopold’s attitude to keep all governmental intervention out and Belgian politicians agreed as long as the State did not had to carry the financial implications of the colonial endeavour.
31. After the Casement report and especially the Inquiry Commission, the Journal des tribunaux, headed by the zealous Hennebicq, published both adherents and opponents of Belgium’s colonial adventure. Remarkably, the turning point which sparked the discussion on colonial Belgium was the book published in 1906 by Félicien Cattier. Hennebicq reviewed this work as outrageous and considered his colleague at the Brussels Bar and, just like him, former intern of Edmond Picard, as a traitor. This personal attack and the heavy criticism on the Parliamentary debate, positioned the editor-in-chief in the camp of “congophiles” opposed to “congophobes” with influential colleagues as Henri Jaspar. The argument between the two sides can be explained by their personal position at the Brussels Bar and in the national politics. Hennebicq headed the most influential legal periodical in Belgium at that time, whereas Cattier held on his status as an expert in colonial law. Jaspar used the Congo question to profile himself in the political field and positioned him as a herald of the Leopoldian colonization project. The discussion started in 1906 illustrated how divided Belgium lawyers perceived the colonial project.
32. The activity of the Conférence du Jeune Barreau on Belgium’s colonial question is striking and fits into the anti-parliament movement of Hennebicq. More than anyone else, he found the bar the most suitable place to have a profound discussion on Congo’s annexation as he could unite experts, such as René Vauthier or Edmond Picard, on the matter.
33. When it comes to the Congo question, the Journal des tribunaux remains faithful to its initial programme by ‘bringing law to the people’. It wanted to wake up the Belgian public for the Congo question by offering a forum for all opinions. However, its editor-in-chief never hesitated to criticize articles, which did not concur with his personal conviction. In this way, the Journal des tribunaux was not only a vector for colonial law, but mostly for its leading figures. The Journal brought the political debate and the reading of international and colonial law on crucial legal issues such land property (droit foncier), freedom of trade and humanitarian questions at the frontline. If not the Belgian public was informed, at least its elite in the legal world was.
Sebastiaan Vandenbogaerde [121]
Ghent University / Ghent Legal History Institute
