SUMMARY, RETROSPECT, AND PROPHECY
The rise and progress of the Congo Free State marks a unique page in
modern history. The boldness of the State’s conception, the apparent
hopelessness of its early conditions in a region unspeakably savage
and barbarous, its gradual evolution under the magic touch of a
master hand; the horrifying vicissitudes of its bloody redemption
from the accursed slave-raider, and finally its admission into the
society of independent nations, constitute a set of circumstances
unparelleled in the history of the world. The span of its life from
a wilderness to a self-supporting and prosperous State is about
twenty-five years. Its rapid evolution was at first watched with
sneers and derision. During the last ten years it has been the
object of the hostile vigilance of those whose early regard had been
scorn. Young as it is, a considerable literature already exists
descriptive of the infant State. This literature, however, is very
unsatisfactory, being for the most part bitterly partisan, either
perceiving no good point at all in King Leopold’s rule, or regarding
that rule as a perfect thing in which no improvement is possible.
Neither attitude is just. And this may be said not only of the Congo
Free State and its irresolute and disappointing African neighbours,
but of States whose civilisation is the pride of our own times.
There have been error and crime on the Congo as there have been error
and crime on the Thames and the Hudson. Savages left the banks of
the Thames nearly eighteen hundred years ago. The white man came
and refined their cruelties in a thousand ways now practised by
civilisation behind the curtain and the padded door.
The aboriginal black cannibal still occupies the banks of the Congo.
But his nature, so recently in its savage state, is manifesting
great change. He is on his knees in the mission chapel; the song of
the White Fathers and the Sisters of Mercy inspires in him the rude
awakening of new emotions. His own voice abandons the war-cry and
makes its fervid, untaught plea to the white man’s God.
On the Congo, religion is perforce a plain, sincere, and a comforting
thing. It is taught by a small, earnest band of men and women whom
the epithets of the flaccid, arm-chair colonising hero will not
disturb. These rugged Christian teachers pursue their lowly, patient
work to please God—not Liverpool. On the Congo, the gospel knows
nothing of the elaborations of insincerity, sophistry, and cant. It
finds the soul of the black man in a patient and a practical way by
instructing his body in the habits of honest toil, of cleanliness and
decency, and by developing an intelligence to supersede his savage
instinct.
The results of only twenty years’ guidance in this direction are
manifest to-day. They have placed the Negro in the midst of the
uncovered wealth of a vast and fertile country; of waterways teeming
with traffic; of a magnificent forest stored with rubber; timber of
great variety, ivory, oil, and fruit; of promising fields of coffee,
cotton, cocoa, tea, and sugar; deposits of gold, copper, coal, and
iron. This short era of civilisation has created in the Congo over
four hundred commercial houses doing a thriving business with Europe;
built railways over mountain routes where only Belgian engineers
and Belgian capital had the courage and the skill to venture. In
the midst of it all the black man’s hands and acquired energy have
provided him with new value to himself and to the State. He is at
the plough, on the cart and the railway, on the wharf and upon the
road and the farm, in the shop and factory, learning the uses of the
white man’s implements of labour, and imitating his enlightened ways.
Industry and order, Christianity, civilisation, and material progress
have succeeded tribal wars, cannibalism, and the horrible atrocities
of the slave chase. This has been achieved by the brawny men of
Belgium in less than twenty years.
The smug men of the study, untravelled in regions wilder than
Westminster, St. Albans, or Liverpool, are as incompetent to judge
of civilisation in Congoland as are the Manyema of the lack of it
on Park Lane, in London. Their beautiful theories of civilising the
African Negro with illuminated manuscripts, florid dissertations
on the Berlin Act, and freedom of (alcoholic) commerce, constitute
a pyramid of fustian with but a single thought starring its
apex—Empire.
While the English campaign against the Congo Administration was
confined to nebulous libels, proceeding for the greater part from
wrangling missionaries and aggressive traders, it was the policy of
that Administration, conscious of its own rectitude, to ignore the
attacks made upon it. In light of subsequent events, the wisdom of
that course appears open to question. Did not one of England’s poets
observe that a lie seven times repeated without being challenged
acquires the force of truth? Some of the fiction concocted by enemies
of the Congo Free State has been so industriously reiterated by
so many different agents of English traders that, collectively,
the British Government could no longer refuse to give ear to their
vapourings. Whether the British Government did so willingly or
unwillingly is another story. What has been the outcome of that
Government’s acquiescence in the demands of the slanderers of the
Congo Free State the world now knows. Mr. Roger Casement was sent
to the Free State, where he traversed ground carefully mapped out
for him, and interviewed natives specially instructed in their parts
by the persons whose agitation had occasioned his mission. The
result was precisely what might have been expected, and that without
impeachment of Mr. Casement’s integrity—an inaccurate and partial
report. That report, magnified, distorted, garbled, has afforded
material for the enemies of the Congo Free State upon which they have
not yet ceased to work. The refutation of all its more important
pronouncements will probably not disconcert Mr. Casement’s believers
in the least, as they are immune to the logic of facts. Nevertheless,
the Sovereign of the Congo Free State, in order that the world may
not accept as a thing against which no defence can be made the
judgment passed upon his rule by the cliques banded together to
embarrass or overthrow it, in July, 1904, resolved to send a special
commission to the Congo to inquire into the atrocities alleged to
have been committed.
The Committee of Inquiry appointed by King Leopold consists of
the following members: (1) M. Janssens, Advocate-General of the
Supreme Court of Belgium, president; (2) Baron Nisco, Judge of the
Court of Appeal at Boma, and (3) Dr. De Schumacher. M. Janssens,
who as Advocate-General holds the second highest judicial office
in Belgium, is a Belgian; Baron Nisco is an Italian, and Dr.
Schumacher is a Swiss. Assisting these three heads of the mission
are MM. De Neyn and Grégoire and Professor Dupont, all of whom
are Belgians. These gentlemen constitute a Court of Inquiry, and
their instructions are to investigate closely every detail of Congo
administration, and to examine on oath every person who may be
able to give evidence of a nature valuable to the commission. The
testimony of missionaries and traders is now being taken, and the
committee will see to it that they obtain the evidence of the heads
of British and American, as well as of Belgian, French, German, and
Italian missions. The investigations are being held in many parts
of the State. The committee is to travel throughout the country
into all the districts covered by Mr. Casement in his recent tour
of inspection, besides visiting many places Mr. Casement never
saw. In brief, the committee is to hold inquiry wherever evidence
can be obtained. Where native witnesses give evidence of a nature
prejudicial to white men, the committee will see that such witnesses
are protected from the possibility of suffering at the hands of
officials against whom they may bear witness. The Government of the
Congo holds itself responsible for the safety and well-being of such
witnesses. On this latter point King Leopold has expressed himself
in the strongest possible terms. Inquiries are to be held publicly,
open to all. The committee has the right to compel witnesses to
appear before it. A general instruction to the committee asks for a
report laying bare absolutely the condition of the rule in the Congo
to-day, and enjoins it to devote all its efforts to a full and entire
revelation of the truth. The duration of the stay of the Committee
of Inquiry in Congoland is limited only by the exigencies of its
task. The committee sailed from Southampton, in the Belgian SS.
_Philippeville_, on September 16, 1904, and arrived at Boma early in
October.
Such are the constitution, powers, and purpose of the Committee of
Inquiry now at work in the Congo Free State. It is almost unnecessary
to record that the committee has already been denounced by the
enemies of the State on every conceivable ground. “A farcical
commission” and “a bogus inquiry” are two of the descriptions which
have been applied to it. That indefatigable meddler, Mr. H. R. Fox
Bourne, who writes contemptuously of Stanley and his work, objected
to Dr. Schumacher’s presence on the committee on the ground that
he is a brother of King Leopold’s private secretary. On its being
pointed out that Dr. Schumacher is nothing of the kind, Mr. Fox
Bourne retracts his assertion, and substitutes another equally
unfounded. Upon this second statement being questioned, Mr. Fox
Bourne withdraws that also, and falls back upon his complaint
that the members of the Committee of Inquiry will be paid for
their labours. Such contentions are simply fatuous. Does not the
Aborigines’ Protection Society pay Mr. Fox Bourne for his labours?
During the few years in which the Belgians have been criticised for
their progressive rule in the Congo, the Belgian people have heartily
co-operated with their King in his long and arduous work. There has
been, however, a small but active section in the Belgian Chamber
spasmodically opposed to the Congo, and to any other expansion
of territory, influence, or market, on the part of Belgium. This
set of politicians, acting in suspicious harmony with the foreign
enemies of the Congo State, have been exploited by the latter as
representing the attitude of the Belgian people. To carry out this
deception, certain foreign papers, peculiarly interested in the
affairs of Liverpool merchants with African schemes, publish the
speeches of this disloyal minority, and suppress the addresses of
Baron de Favereau, Minister of Foreign Affairs, Count de Smet de
Naeyer, Minister of Finance and Public Works, and other Belgian
statesmen. In a masterly arraignment of those members of the Chamber
who have been hostile to Belgium in this respect, these gentlemen,
by their speeches in Parliament, inspired the organisation, in July,
1903, of a federation composed of religious, commercial, industrial,
social, and scientific societies throughout Belgium. This large and
representative body is known as The Federation for the Defence of
Belgian Interests Abroad. Its short address, presented to President
Roosevelt in October, 1904, has already been referred to. In a
speech made at a meeting of the societies allied to the Federation,
General Baron Wahis, President of the Brussels African Club, and
Governor-General of the Congo Free State, eloquently contrasted the
condition of the Central African tribes twenty years ago with their
improved state to-day. Baron Wahis and Vice-Governor-General Fuchs
are men on the spot. Their long experience on the Congo invests their
statements with authority. In the address referred to, Baron Wahis
narrated the following graphic picture of Congolese conditions two
decades ago.
Let us see in what position these peoples were before the formation
of the State, and what is their position now.
In the Lower Congo, close to the sea, there was one locality
which already possessed some importance, viz., Boma. Before the
first expedition of the State landed at Boma there were at that
point some commercial houses. For a long period they derived
their profits from the sale of slaves; later, they obtained their
chief profits from the sale of alcohol, and, accessorily, of
the products of the soil. The traders carried on a more or less
prosperous business according to their strength and courage.
They made expeditions into the interior, and frequently burnt
native villages for not bringing in at fixed periods the expected
quantities of palm nuts and other products. Their staff of
labourers was composed of slaves upon whom they inflicted torments
for the least infraction of their orders. These punishments had
no limit. It is related, and the fact is not open to doubt, that
during the time of which I am speaking there were once found in
the waters of Boma the corpses of thirty blacks attached to one
chain. The chain bore the name of “Olivarès,” but it was alleged,
and probably with good reason, that the perpetrator was not
Olivarès, that the chain had been stolen from him. The name of the
person really guilty of this horrible crime was mentioned, and it
was represented as the consequence of a mutiny by the staff of a
factory. That was the kind of administration to which the blacks
were subjected, under the eyes of Europe it may be said, seeing
that ships of war had easy access to Boma.
Higher up, in the present district of the Cataracts, the population
was in part subject to the Negro king of San Salvador. Read the
book of Mr. Bentley, an educated English missionary, who has been
in Africa thirty years, and who saw the administration under
which the natives lived when he arrived there. He expresses his
admiration for the enormous progress which has been made, so far
as the protection of the blacks goes, since they came under the
government of the Congo State. Why are not the statements of this
sterling man, so eminently competent in all questions relating to
the protection of the blacks, quoted?...
But whatever may be said to the contrary, the system adopted by
the Government of the Independent State is more equitable than any
other system whatever, and imposes upon the natives a minimum of
taxes. Each man’s tribute is very small. In certain regions where
the rubber is abundant, he can gather in one day the tax that is
required of him for a month. Besides the work thus performed by the
natives being remunerated, their households find themselves in
possession of some supplementary resources. The desire to add to
their well-being increases each day.
Let us hope that the policy established by the Congo State in this
respect will not be changed. The strong black races which cover
many parts of its territory will acquire the habit of regular
work, in place of their primitive idleness. There will result from
this what has resulted in countries long civilised. The countries
in which people know how to work are strong, and in the van of
progress. Such a future seems to me reserved for the Congo State if
it perseveres in its present course.
The story of the Congo Free State offers great opportunity for
speculation and for prophecy. Taking a broad view of the opinion
prevalent in Europe and the United States, the conclusion that Great
Britain seeks to acquire important territory in Central Africa is
inevitable. This theory of the anti-Congo campaign is strenuously
denied by all unofficial persons engaged in that campaign. And
yet there are unmistakable signs that of the many theories so
industriously exploited, British acquisition of the _keystone of
African territorial possession_ seems to be most in line with the
history of British methods of expansion. The Free State is one-third
the size of the United States. It lies squarely across the heart of
Africa, with an outlet to the sea on the West Coast which brings it
many miles and many days nearer European markets. It separates the
British African Empire,—the Soudan and the Nile country adjoining the
Free State on the north, from the Cape and the Boer war territorial
acquisitions on the south. It is as if the Louisiana Purchase, owned
by a small country, say Portugal, divided the United States. One
might dwell long and interestingly upon the political possibilities
of such a rich country and its great waterways separating the
energies of the east and the west in our country’s social, political,
and strategic solidarity. The British and the Germans appreciate
the vast possibilities of the great African Continent. While the
former expands its territory by costly wars, the latter, by adapting
its methods to suit the native populations, encompasses the African
market. While the former persists in imposing its ancient, crude,
and ineffectual methods of colonial development, the latter, more
modern, more direct, more flexible, is gaining trade and influence
which might belong to intelligent British rule. The palsied arm and
the obsolete method of regeneration, prevalent in the territories
devastated by the Boer war, illustrate the incompetency of the
present generation of British colonisers. Their failures are
multiplying. It is the old story of worship of the Past, confusion in
the Present, misconception of the Future.
[Illustration: Father Kisouru of the New Antwerp Mission (Bangala).]
[Illustration: The Sultan Djabbir.]
The growth of the Congo Free State has from the first been skilfully
directed by clever men of thought and action. Now that the
transformation is complete, and what but three short decades ago
was the very heart of savagery has become a valuable commercial and
political asset, the forcible ejectment from the African Continent
of the authors of all this good is openly discussed! Such is the
reward which it is proposed should be meted out to the gallant,
self-sacrificing little nation which has replaced the horrors
of barbarism by the blessings of civilisation, and incidentally
discovered vast material wealth. After disposing of the Belgian
African possession, that international pigmy, Portugal, occupying
Delagoa Bay to the obvious chagrin of Britain, will be served with
the long-expected writ of ejectment. These little fellows in Africa
will have but one choice of leaving—by the door or by the window.
Will the world tolerate such iniquity?—an iniquity of the baser sort,
veiled with specious pretence. Much depends upon the attitude of the
American people—youngest of the great nations, herself too recently
emerged from the trials and tribulations which beset every newly
created State not to discriminate between greed and hypocritical
pretence on the one hand and conscientious well-doing on the other.
APPENDIX
APPENDIX
TREATY OF VIVI
M. August Sparhawk, agent of the International Expedition of the
Upper Congo, acting in the name and for the account of the _Comité
d’Études_, of the Lower Congo, and Vivi Mavungu, Vivi Mku, Ngusu
Mpanda, Benzane Congo, Kapita, have come together the 13th of June,
1880, at the station Vivi, in order to discuss and to decide upon
certain measures of common interest.
After full examination they have arrived at the dispositions and
engagements which are embodied in the present treaty, to wit:
ARTICLE I.—The aforesaid chiefs of the district of Vivi recognise
that it is highly desirable that the _Comité d’Études_ of the Congo
should create and develop in their states establishments calculated
to foster commerce and trade, and to assure to the country and its
inhabitants the advantages which are the consequence thereof.
With this object they cede and abandon, in full property, to the
_Comité d’Études_ the territory comprised within the following
limits: To the west and north and east the left banks of the river
Lulu, and to the south the districts of Kolu and Congo.
ART. II.—The chiefs of the district of Vivi solemnly declare that
these territories form an integral part of their states, and that
they are able freely to dispose of them.
ART. III.—The cession of the territories specified in the last
paragraph of Article I is consented to in consideration of a present
represented by the following articles and goods to each one: A
uniform coat, a cap, a coral necklace, a knife; and a monthly gift
to Vivi Mavungu of two pieces of cloth; to Vivi Mku of one piece of
cloth; to Ngusu Mpanda, one piece of cloth; to Benzane Congo, one
piece of cloth; to Kapita, one piece of cloth.
ART. IV.—The cession of the territory includes the abandonment by
them and the transfer to the _Comité d’Études_ of all sovereign
rights.
ART. V.—The _Comité d’Études_ engages itself expressly to leave
to the natives the free enjoyment of the lands which they now
cultivate to supply their needs. It promises to protect them and
to defend their persons and their property against aggressions and
encroachments, from whatsoever side, which shall attack their
individual liberty or shall seek to take away from them the fruit of
their labours.
ART. VI.—The chiefs of the district of Vivi grant, besides, to the
_Comité d’Études_—
(1) The cession of all the routes of communication now open or to be
opened throughout the whole extent of their states. If the _Comité_
deems it proper it shall have the right to establish and levy for its
own profit tolls upon said routes, to defray the expenses incurred in
their construction. The routes thus opened shall embrace, besides the
routes properly so-called, a breadth of twenty metres right and left
therefrom. This breadth constitutes part of the cession, and shall
be, like the route itself, the property of the _Comité d’Études_.
(2) The right of trading freely with the natives who form part of
their states.
(3) The right of cultivating unoccupied lands; to open up the
forests; to cut trees; to gather india rubber, copal, wax, honey,
and, generally, all the natural productions which are found there;
to fish in the rivers and streams and water-courses, and to work the
mines.
It is understood that the _Comité_ can exercise the several rights
mentioned in the third paragraph throughout the whole extent of the
states of the chiefs of Vivi.
ART. VII.—The chiefs of the district of Vivi undertake to unite their
forces to those of the _Comité_ to repel attacks which may be made by
intruders, no matter of what colour.
The chiefs, not knowing how to sign, have put their marks, in the
presence of the witnesses hereafter designated and who have signed.
[Seal.] AUG. SPARHAWK.
[Seal.] JOHN KICKBRIGHT.
[Seal.] FRANK MAHONEY.
[Seal.] GEOFFREY.
TREATY OF MANYANGA
During the _palabre_ held at Manyanga the 12th of August, 1882, it is
agreed between the members hereinafter designated of the Expedition
of the Upper Congo:
Dr. Edward Pechuel Loesche, chief of the Expedition;
Capt. Edmund Hanssens, chief of the division of Leopold-Manyanga;
Lieut. Arthur Niles, chief of Manyanga;
First Lieut. Orban, deputy chief of Manyanga;
Edward Ceris, assistant of Pechuel, representing the _Comité_ of the
Upper Congo;
and the chiefs hereafter named of Manyanga—
Makito, of Kintamba;
Nkosi, of Kintamba;
Filankuni, of Kintamba;
Maluka, of Kintamba;
Kuakala, of Kintamba;
Mankatula, of Kintamba-Kimbuku;
Luamba, of Kintamba;
In the name of their subjects.
ARTICLE I.—Hereafter the territory of Manyanga, heretofore belonging
to the chiefs before cited, situated north and south of the river,
and bounded on the west by the stream Luseto, and by the stream
Msua Mungua on the east, shall be the sole property of the _Comité
d’Études_ of the Upper Congo.
ART. II.—The chiefs and their subjects, their villages, their
plantations, their domestic animals, and fishing apparatus shall be
placed under the protection of the Expedition.
ART. III.—In all political affairs of the populations of the district
protected and acquired, their quarrels, differences, elections of
chiefs, shall be submitted to the decision of the member of the
Expedition who shall be present at the station.
If the people of Manyanga shall be attacked by neighbouring tribes,
the Expedition shall defend their women and children and their
property by all the means in their power. If the Expedition shall
be attacked by another tribe, the men shall be bound to defend the
station.
ART. IV.—In consequence of the rights acquired and protection
afforded, no stranger whatsoever can build or open a road or carry on
commerce in the territory of Manyanga.
ART. V.—At the request of the chief of the station, the chief of
the district shall put at his disposition the necessary number of
labourers, men or women, for the work of the station and the service
of the caravans.
ART. VI.—Besides the sum stipulated, which has been remitted in goods
to the assembled chiefs in payment for their territories, and for
which they have given a receipt, the chiefs shall receive monthly
presents on condition that they remain true friends and voluntarily
perform the services asked of them.
ART. VII.—The first chief of Manyanga, Makito, residing at Kintamba,
receives the flag of the Expedition, which he will raise in his
village in sign of the protection exercised by the Expedition.
[Here follow the crosses and signatures.]
TREATY OF LEOPOLDVILLE
29th of April, 1883.
We, the undersigned, chiefs of the district of N’Kamo, of Kuiswangi,
of Kimpe, and of all the districts extending from the river Congo
to Leopoldville and to Ntamo, up to the river Lutess and the
mountains of Sama Sankori, have resolved to put ourselves, as well
as our heirs and descendants, under the protection and patronage of
the _Comité d’Études_ of the Upper Congo, and to give power to its
representative at Miamo to regulate all disputes and conflicts that
may arise between us and foreigners of whatsoever colour, residing
out of the district or territory of N’Kamo, in order to prevent
strangers, animated by wicked intentions or ignorant of our customs,
from exciting embarrassments or endangering the peace and security
and independence which we now enjoy.
By the present act we also resolve to adopt the flag of the _Comité
d’Études_ of the Upper Congo, as a sign for each and all of us that
we are under its sole protection.
We also solemnly and truly declare that this is the only contract we
have ever made, and that we will never make any contract with any
European or African without the concurrence and agreement of the
_Comité d’Études_ of the Upper Congo.
To the above resolution we freely put our marks.
NGALIEMA, his X mark.
MAKARI, his X mark.
NUMBI, his X mark.
MANWALE, his X mark.
NYASKO, his X mark.
TREATY WITH THE KING OF NIADI
STEPHANIEVILLE
Between, on the one side, Captain John Grant Elliott, commissioner
and representative of the _Comité d’Études_ of the Upper Congo,
and, on the other hand, M’Wuln M’Boomga, King of Niadi, in his
own name, and in that of his heirs and successors, the following
contract has been made and signed in the presence of the witnesses
whose signatures are below given:
ARTICLE I.—The party first named engages himself to make to the
second party named above an immediate payment of 60 yards of
_savelist_, 20 pieces of superior stuffs, 8 pieces of ratteen stuff,
and a keg of powder. He, moreover, engages to make to the above-named
party of the second part, his heirs and successors, a monthly
payment, which shall commence in four months, with arrears from the
date of this contract, of four pieces of stuffs, and to continue
always this payment, if, in compensation therefor, the party of the
second part, in his name and in that of his heirs and successors,
makes an absolute and immediate sale of a certain portion of
territory sketched further on, described in Art. II., the territory
selected by the first-named party, and over which the flag of the
_Comité d’Études_ of the Upper Congo, that is to say, a blue flag
with a yellow star in the centre, has been raised.
ART. II.—The country ceded by the above-named article is described
below, and accepted by the contracting parties, Captain John Grant
Elliott and the King.
1. Six miles towards the west, from the junction of the Niadi and the
Ludema, and following the banks of the Niadi (Niari).
2. Ten miles from the same confluence, towards the south, and
following the banks of the Ludema.
3. Ten miles towards the east, from the confluence above named, and
following the course of the Niadi (Niari).
4. Ten miles towards the south, from the same confluence, and
following the Ludema.
5. Ten miles to the north of the Niadi (Niari), on each side from
that point of the Niadi opposite the mouth of the Ludema, running
back five miles towards the north.
GRANT ELLIOTT,
WULN M’BOOMGA.
Witnesses:
VON SHAUMANN,
LEGAT,
DESTRAIN.
OTHER TREATIES, DISTRICTS CEDED, AND STATIONS CREATED BY THE
INTERNATIONAL ASSOCIATION OF THE CONGO, AND WHICH FORM THE CHIEF
PLACES OF THE STATES POSSESSED BY THIS ASSOCIATION ON THE CONGO AND
ON THE NIADI KWILU IN THE YEAR 1883.
Stations: Vivi, Isanghila, Manyanga, Lutete, Leopoldville, Msuata,
Bolobo, Rudolfstadt, Baudoinville, Franktown, Stanley Niadi,
Stephanieville, Anvers, Gideemba, Lukolela, Equateur, Philippeville,
Bulangungu, Mboka, Mkula, Grantville, Massabe.
Treaties and Districts ceded: Vivi, Yellala, Sala Kidougo, Ganghila,
Sadika Banzi, Ingha, N’Sanda, Kionzo, N’Bambi M’bongo, Talaballa,
Issanghila, Ndambi M’bongo, M’Kelo, Fua na Sondy, Konimovo M’Bongo,
Yanga, Kamsalou, M’binda, Sakali Boadi, Tchouma Ranga, Tombukile,
Ngoma, N’Zadi, Tchincala, Banza ngombi, Manyanga, Bandanga, Banza,
M’bou, Sello, Loufountchou, Kimbanda, Ngombi, Leopoldville, Kimpoko,
Kinshassa, Kintambou, Souvoulou, M’bala, Woutimi (south), Woutimi
(north), Msuata, Bolobo, Matchibouga, Tchissanga, Kitabi, Zientu,
Mengo, Franktown, Goudou, Ganda, Fouindoukifout, Makouba Banga,
Sitambe, Bieba, Moyby, Matalila, N’Zombo, Ganda Kobombo, Mabuka,
Chinnifor, Mudenda, Nyange, Lubu, Zoa, N’Gewlla Chunikonbo, M’Gwella,
Sangha, Charli, Mikasse, Moulangas, Mackanga, Ludema, Ungoonga,
Buconzo, Matenda, Tanga Dibiconga, Licarnga, Bumianga, Chibanda
N’Kuni, Kingi, Anversland, Buda, Towha, Gideemba, Sushwangi.
IN THE SENATE OF THE UNITED STATES
_March 26, 1884—Ordered to be printed_
Mr. Morgan, from the Committee on Foreign Relations, submitted the
following
REPORT
(To accompany S. Res. 68 and Mis. Doc. 59)
The Committee on Foreign Relations, to whom were referred Senate
Mis. Doc. No. 59 and Senate Joint Resolution 68, relating to the
occupation of the Congo Country, in Africa, have had the same under
consideration, and report a substitute for the same, and recommend
its passage.
The President, in his annual message to this Congress, expresses the
sentiment of the people of the United States on the subject of our
future relations with the inhabitants of the valley of the Congo, in
Africa.
Our attitude towards that country is exceptional, and our interest in
its people is greatly enhanced by the fact that more than one-tenth
of our population is descended from the negro races in Africa.
The people of the United States, with but little assistance from
the Government, have established a free republic in Liberia, with
a constitution modelled after our own, and under the control of
the negro race. Its area is 14,300 square miles; its population is
about 1,200,000 souls; its commerce is valuable; its government is
successful, and its people are prosperous.
The necessity for a negro colony in Liberia was suggested by the
fact that slaves found in vessels captured for violations of the
slave-trade laws and treaties were required to be returned to Africa
when that was practicable, and it was impossible, and it would have
been useless and cruel, to send them back to the localities where
they were first enslaved. Humanity prompted certain private citizens
of the United States to organise the American Colonisation Society
in aid of the return of captured slaves to Africa and to find a
congenial asylum and home for negroes who were emancipated in the
United States.
Henry Clay was, for many years, president of this association,
and assisted it with the influence of his great name and broad
philanthropy.
The success of the Liberian colony has demonstrated the usefulness
of that system of dealing with a social question which is, to the
people of the United States, of the highest importance. It has also
established a recognised precedent in favour of the right of untitled
individuals to found states in the interests of civilisation in
barbarous countries, through the consent of the local authorities,
and it has given confidence to those who look to the justice of the
nations for a restoration of the emancipated Africans to their own
country, if they choose to return to it.
This great duty has, so far, been left entirely to the efforts of
citizens of the United States, and it has been supported almost
exclusively by their personal contributions. The governments of
the world have been slow even to recognise the state thus founded
by the courage and means of private citizens, but it is now firmly
established in the family of nations and is everywhere recognised as
a free and independent nation.
This pleasing history of progress, attended with peace and prosperity
in Liberia, has given rise to a feeling of earnest interest amongst
the people of the United States in the questions which arise from the
recent discovery by their countryman, H. M. Stanley, of the great
river which drains equatorial Africa. They rejoice in the revelation
that this natural highway affords navigation for steamers extending
more than half the distance across the continent, and opens to
civilisation the valley of the Congo, with its 900,000 square miles
of fertile territory and its 50,000,000 of people, who are soon to
become most useful factors in the increase of the productions of the
earth and in swelling the volume of commerce.
The movements of the International African Association which, with
a statement of its purposes, are referred to in the letter of the
Secretary of State, appended to this report, are in the direction of
the civilisation of the negro population of Africa, by opening up
their country to free commercial relations with foreign countries.
As a necessary incident of this praiseworthy work, which is intended,
in the broadest sense, for the equal advantage of all foreign
nations seeking trade and commerce in the Congo country, the African
International Association has acquired, by purchase from the native
chiefs, the right of occupancy of several places for their stations
and depots. The property so acquired is claimed only for the
association, which is composed of persons from various countries, and
it could not, therefore, be placed under the shelter of any single
foreign flag.
From the time when the people of Christian countries began to export
slaves from Africa, the custom grew up of locating “barracoons” or
slave depots along the African coasts and rivers, and they were each
placed under the shelter of the flag of the country to which the
slave merchants belonged. In this way certain settlements were made
along the shores of the Congo River as far inland as Yellalla Falls,
and were claimed and held under the protection of the respective
flags of the countries from which these traders came.
This was, generally, a mere personal adventure, and had no relation
to any governmental authority of those countries over the barracoons.
When this traffic took the shape of legitimate commerce with the
natives, these places were called factories, and they gradually
assumed certain powers of self-government as their necessities
required. Each factory was independent of the control of all others,
and established for itself such regulations, having really the
effect of laws, as were necessary to protect life and property. To
this day those settlements are held in the same way, and while the
governments, whose flags are thus displayed over them, claim no
sovereignty there, they do not recognise the rights of their people
at such places as entitling them to protection, and they require
their flags to be respected.
In some instances the native chiefs sold the lands on which the
factories were situated, with the privileges of trade to foreign
companies, and these in turn sold them to persons of still other
nationalities.
The African International Association established its stations, and
opened roads leading from one to another around the falls of the
Congo in the same way that the older factories had been established,
with the additional fact in their favour that their settlements were
always preceded by an open agreement with the local government in the
form of a treaty. A flag was as necessary for the purposes of their
settlement and as an indication of their right and to designate the
places under their control, as it was to the slave-traders, whose
only advantage is that they have been in possession a long time for
the purposes of nefarious traffic in slaves, while the Association
has been in possession only a short time for the benign purposes of
introducing civilisation into that country.
Having no foreign flag that they could justly claim, they adopted a
flag and displayed it, a golden star in a field of blue, the symbol
of hope to a strong but ignorant people, and of prosperity through
peace. The native people instinctively regarded that as the first
banner they had seen that promised them goodwill and security, and
they readily yielded to it their confidence.
There is no historical record to be found of such a rapid and general
assembling of separate and independent rulers under a banner that
was raised by the hands of strangers, as that which took place
amongst the chiefs and people of the Free States of the Congo.
Within five years from the time the banner of this Association
was first displayed on the Congo, its agents have made nearly one
hundred treaties with the chiefs of the different tribes in the Congo
country. In each of these treaties there are valuable commercial
agreements and regulations touching law and order and certain
delegations of limited powers, all of which are intended for the
better government of the country.
The powers are not ceded to a new and usurping sovereignty seeking to
destroy existing governments, but are delegated to a common agent for
the common welfare. In the language of the first treaty, concluded
at Vivi June 13, 1880, and which is the plan after which nearly one
hundred subsequent treaties have been modelled:
“The aforesaid chiefs of the district of Vivi recognise that it is
highly desirable that the _Comité d’Études_ of the Congo should
create and develop in their states establishments calculated to
foster commerce and trade, and to assure to the country and its
inhabitants the advantages which are the consequence thereof.
“With this object in view they cede and abandon, in full property
(fee-simple) to the _Comité d’Études_, the territory comprised within
the following limits,” etc.
A copy of this treaty is appended to the report of the committee.
If these local governments had the right to make these concessions,
so much sovereign power as they confer upon the African International
Association is entitled to recognition by other nations as justifying
its claim to existence as a government _de jure_. Or, if there
is still a question as to its sovereignty, affecting either its
territorial extent or the subjects as to which it may legislate,
there is still enough of concert amongst the native tribes, in
placing themselves in treaty relations with this Association, to
warrant other nations in recognising its existence as a government
_de facto_. In either case, it is our duty so to recognise it,
because its purposes, as avowed in those treaties, are peaceful, and
commend themselves strongly to the sympathies of our people.
The golden star of the banner of the International Association
represents hospitality to the people and commerce of all nations
in the Free States of the Congo; civilisation, order, peace, and
security to the persons and property of those who visit the Congo
country, as well as to its inhabitants; and if, in the promotion of
these good purposes, it lawfully represents powers ceded or delegated
to the Association by the local governments necessary to make them
effectual, it does not thereby offend against humanity nor unlawfully
usurp authority in derogation of the rights of any nation upon the
earth.
Powers asserted in good faith, and with a reasonable show of ability
to maintain them, even by rebels, within a state that denounces their
assertion as treasonable, are often recognised as being lawful, as
well in the interests of humanity, as to give to the alleged rebels
an opportunity to make good their pretensions by arms.
The history of our recent civil war discloses the recognition of
the belligerent rights of the Confederate States by all nations,
including the United States, which wholly denied the lawfulness of
the acts of secession which led to hostilities and denounced them as
treasonable.
If the flag of the Confederate States could protect its armed
citizens against the penalties of piracy while destroying the ships
and commerce of the United States, it would be difficult to state a
reason why the flag of the International African Association should
not protect its ships from capture and condemnation while carrying on
peaceful commerce on the Congo. It would be still more difficult for
any Christian nation to assign a reason founded in the principles of
international law why it should refuse to recognise this flag. The
Congo River has been for centuries, and is now, the common resort of
the ships and flags of all countries, and it requires a total change
of the political conditions in that country to destroy this right,
and either to declare the waters and shores of the Congo as being
neutral territory or as being under the sovereignty of any one or
more of the foreign nations.
These reasons, and others which appear in the papers appended to this
report, are a just and sufficient foundation for the declaration
by the United States which individualises the flag of the African
International Association as a national flag, entitled to our
recognition and respect.
The precedents in our own history to justify our recognition of
states while in the process of early development are numerous and
conclusive. They are cited in the papers appended to this report, and
are sustained by many other references which show that in Europe,
Asia, and Africa civil power, exerted by commercial associations,
and by religious orders, and by propagandas of civilisation, and by
groups of Hospitallers, has owned large war fleets and raised armies,
fought great battles, levied taxes, and performed every function of
government. They did all this without claiming to possess sovereign
power as organised nations; and they submitted themselves to the
authority of the state after they had prepared the country where they
ruled for that final act of establishment of sovereign power, and
then they ceased to exist.
It is not necessary to go further in order to find a justification
of the action suggested in the message of the President, and of the
resolution which the Committee on Foreign Relations recommend as a
proper means of carrying into effect this policy concerning the Free
States of the Congo.
It is, however, proper to make some examination of the alleged claim
of Portugal to the sovereignty of the mouth of the Congo, and of
the riparian country as far into the interior as the first falls of
Yellalla.
Portugal’s pretensions to this sovereignty are completely refuted by
the fact that it has not been heretofore acknowledged by the five
great powers whose flags have been flying for more than a century in
the country now claimed by that Government. On the contrary, these
powers have constantly refused to make any such concession on all
occasions since 1786, and some of them previous to that time.
The claim of Portugal, based on discovery of the mouth of the Congo
by Diego Cam in 1485, and by his having erected a monument on the
shore to testify to his landing there, only establishes its antiquity
and not its rightfulness under modern interpretations of the laws of
nations.
If the laws of Christian nations give any effect to the discovery
by the subjects of a Christian power, of a country inhabited even
by savages, they also require that discovery shall be followed by
continuous subsequent occupation. If such occupation ceases, it is
justly considered as being abandoned, since the only foundation of
reason or of justice that can support the occupation of an inhabited
country by a foreign power is, that it is better that the savages
should have the advantages of Christian instruction and laws, than
that they should continue in darkness to rule the country in their
own way. If, therefore, the Christian ruler should cease to occupy
the country, it must be considered that he abandons his duty, and,
with it, the sovereignty of the country.
Portugal did not exert continuous or exclusive authority on the
Congo for any great while; her possessions there, as well as those
of the other Christian powers, fluctuated with the supply of slaves,
the capture or purchase of which was the chief inducement to these
settlements. They all followed up the supply of slaves from the
interior of Africa, along the coast, according to its abundance, as
the fishermen visit different localities in search of better fishing
grounds.
In 1786, disputes having arisen between France and Portugal, as to
the sovereignty of the latter over the mouth of the Congo, under the
mediation of the King of Spain, Portugal conceded the point that her
rights in that country were not exclusive. Since that time England
has repeatedly denied, in the most formal and solemn manner, that
Portugal had any sovereignty or suzerainty over the Congo country.
None of the great powers claimed such sovereignty for themselves,
nor have they conceded it to Portugal; their occupancy has not been
such as implied any right to rule the country, but only such as was
necessary to carry on trade. That is equally free to all nations. In
the papers appended to this report, and especially in the valuable
testimony of Earl Mayo, based upon his personal observations in the
Congo country in 1882, we find the most conclusive proof upon all
the points above stated, and unquestionable evidence that Portugal’s
northernmost boundary on the West Coast of Africa, south of the
Equator, for many years past, has been the river Loge.
The attitude of Great Britain towards the pretensions of Portugal
to the sovereignty of the Lower Congo has been that of decided,
frequent, and stern denial, accompanied with distinct orders to her
fleets to repel any advance of Portugal to assert her authority north
of Ambriz. This record, so repeatedly reaffirmed, is by no means
changed by the fact that Great Britain may now be ready to admit
Portugal, in alliance with her, to sovereign rights in the Lower
Congo. Her change of policy cannot change the facts, especially
when Great Britain obtains from Portugal the cession of Wydha in
consideration that she will acknowledge the rights of Portugal to the
sovereignty of the Lower Congo. Great Britain has also made treaties
with fifteen tribes in the Lower Congo country, paying no attention
to Portugal’s claims of sovereignty there.
In like manner France has disregarded these pretensions, and has made
treaties with tribes north of the Congo. De Brazza, an enterprising
explorer, went into that region of Africa as an agent of the African
International Association, and also as an agent of the French
Government, and was supported with money from the French treasury.
He made these treaties in the name of France, and the Chamber of
Deputies has ratified them. In view of these facts it can scarcely be
denied that the native chiefs have the right to make treaties. The
able and exhaustive statements and arguments of Sir Travers Twiss,
the eminent English jurist, and of Professor Arntz, the no less
distinguished Belgian publicist, which are appended to this report,
leave no doubt upon the question of the legal capacity of the African
International Association, in view of the laws of nations, to accept
any powers belonging to these native chiefs and governments which
they may choose to delegate or cede to them.
The practical question to which they give an affirmative answer, for
reasons which appear to be indisputable, is this: Can independent
chiefs of savage tribes cede to private citizens (persons) the whole
or part of their states, with the sovereign rights which pertain to
them, conformably to the traditional customs of the country?
The doctrine advanced in this proposition, and so well sustained by
these writers, accords with that held by the Government of the United
States, that the occupants of a country at the time of its discovery
by other and more powerful nations have the right to make the
treaties for its disposal, and that private persons, when associated
in such country, for self-protection or self-government, may treat
with the inhabitants for any purpose that does not violate the laws
of nations.
The following incidents, mentioned in Bancroft’s _History of the
United States_, show how much we owe, as a people, to the early
recognition of these doctrines:
“MASSACHUSETTS
“One day in March, 1621, Samoset, an Indian, who had learned a
little English of the fishermen at Penobscot, entered the town,
and, passing to the rendezvous, exclaimed in English, ‘Welcome,
Englishmen!’ He was the envoy of Massasoit himself, the greatest
commander of the country, sachem of the tribe possessing the land
north of Narragansett Bay, and between the rivers of Providence and
Taunton. After some little negotiation, in which an Indian who had
been carried to England acted as interpreter, the chieftain came in
person to visit the Pilgrims. With their wives and children they
amounted to no more than fifty. He was received with due ceremonies,
and a treaty of friendship was completed in few and unequivocal
terms. Both parties promised to abstain from mutual injuries, and to
deliver up offenders; the colonists were to receive assistance, if
attacked; to render it, if Massasoit should be attacked unjustly. The
treaty included the confederates of the sachem; it is the oldest act
of diplomacy recorded in New England; it was concluded in a day, and
was sacredly kept for more than half a century.”—(Bancroft’s _History
of the United States_, p. 210.)
“The men of Plymouth exercised self-government without the sanction
of a royal charter, which it was ever impossible for them to
obtain.”—(_Ibid._, p. 213.)
“The attempt to acquire the land on Narragansett Bay was less
deserving of success.... In 1641 a minority of the inhabitants,
wearied with harassing disputes, requested the interference of
the magistrates of Massachusetts, and two sachems near Providence
surrendered the soil to the jurisdiction of that State.”—(_Ibid._, p.
287.)
“PROVIDENCE PLANTATIONS AND RHODE ISLAND
“In June (1636) the law-giver of Rhode Island (Roger Williams),
with five companies, embarked on the stream; a frail Indian canoe
contained the founder of an independent State and its earliest
citizens. Tradition has marked the spring of water near which they
landed. To express unbroken confidence in the mercies of God, he
called the place Providence.... The land which he occupied was within
the territory of the Narragansetts. In March, 1636, an Indian deed
from Canonicus and Miantonomoh made him the undisputed possessor of
an extensive domain; but he ‘always stood for liberty and equality
both in land and government.’ The soil became his ‘own as truly
as any man’s coat upon his back’; and he ‘reserved to himself not
one foot of land, not one tittle of political power, more than he
granted to servants and strangers.’ He gave away his lands and other
estates to them that he thought most in want until he gave away
all.”—(_Ibid._, p. 254.)
“Before the month (March, 1638) was at an end, the influence of Roger
Williams and the name of Henry Vane prevailed with Miantonomoh, the
chief of the Narragansetts, to make them a gift of the beautiful
island of Rhode Island.... A patent from England was necessary for
their security; and in September they obtained it through the now
powerful Henry Vane.”—(_Ibid._, p. 263.)
“CONNECTICUT
“In equal independence a Puritan colony sprang up at New Haven, under
the guidance of John Davenport as its pastor, and of his friend the
excellent Theophilus Eaton.... In April, 1638, the colonists held
their first gathering under a branching oak.... A title to lands was
obtained by a treaty with the natives whom they protected against the
Mohawks.”—(_Ibid._, p. 271.)
“NEW HAMPSHIRE
“At the fall of the leaf in 1635, a band of twelve families, toiling
through thickets of ragged bushes and clambering over crossed trees,
made their way along Indian paths to the green meadows of Concord.
A tract of land six miles square was purchased for the planters of
the squaw sachem and a chief, to whom, according to Indian laws of
property, it belonged.”—(_Ibid._, p. 271.)
“NORTH CAROLINA
“In 1660 or 1661 New England men had found their way into the Cape
Fear River, had purchased of the Indian chief a title to the soil,
and had planted a little colony of herdsmen far to the south of any
English settlement on the continent.”—(_Ibid._, p. 409.)
“It is known that in 1662 the chief of a tribe of Indians granted to
George Durant the neck of land which still bears his name.”—(_Ibid._,
p. 410.)
* * * * *
We owe it as a duty to our African population that we should
endeavour to secure to them the right to freely return to their
fatherland, and as freely to agree with their kindred people upon
any concessions they may choose to make to them as individuals or as
associated colonists, looking to their re-establishment in their own
country. The deportation of their ancestors from Africa in slavery
was contrary to the now accepted canons of the laws of nations, and
now they may return under those laws to their natural inheritance. In
exercising this right they should not be obstructed by a power that
had more to do with their enslavement and expulsion, in bondage, from
their own country than any other, and that never held a claim upon
that country for any purpose of advantage to the people there, but
held it chiefly, if not entirely, for the mere purpose of enslaving
them.
It is stated, with the support of strong testimony, that Portugal is
still protecting the slave trade on the West Coast of Africa under
a thin guise of the voluntary emigration of the negroes to other
countries.
Extracts appended to this report, from Earl Mayo’s _De Rebus
Africanus_, in which he gives an account of his personal examination,
in 1882, of the Portuguese trading posts, supported by the report of
M. du Verge, our United States consul at St. Paul de Loando, show
that slavery still exists in the country claimed by Portugal on
the Congo, and is fostered there and at St. Paul de Loando by the
Portuguese residents.
This violation of the slave-trade treaties renders the occupancy by
Portugal of any African territory at the mouth of the Congo dangerous
to all the tribes of the interior, and cannot be sanctioned by the
treaty powers while it is attended with such incidents without an
abandonment of all treaty obligations and duties relating to the
slave trade.
The importance of the Congo River to the continent of Africa as a
channel through which civilisation and all its attendant advantages
will be introduced into a region inhabited by 50,000,000 of people
cannot be too highly estimated.
After Stanley had made his journey of exploration of nearly 7000
miles across the continent of Africa, and had revealed to the world
the extent and importance of this great river Congo, all the great
commercial nations at once began to look earnestly in that direction
for a new and most inviting field of commerce, and with the high and
noble purpose of opening it freely to the equal enjoyment of all
nations alike.
The merchants of Europe and America insist upon this equal and
universal right of free trade with that country, and their Chambers
of Commerce have earnestly pressed upon their respective Governments
the duty and necessity of such international agreements as would
secure these blessings to the people of Africa and of the entire
commercial world.
The enlightened King of the Belgians has supplied the means from his
private purse to inaugurate civilisation in the Congo country under
the authority of its native rulers. He has no thought of extending
the power of his realm over that country, but has engaged in this
movement only as any citizen might.
Its progress is thus further described by an agent of the African
International Association in a letter within the past month:
“BRUSSELS, February 25.
* * * * *
“Our territories are extending now on a very rich coast south and
north of the mouths of the Quillou, a distance of more than 350
kilometres (about 300 miles).
“That coast has given itself to us by unanimous acclamation of the
natives, who hoisted our flag and refused our presents.
“Our territories are going to be divided into three provinces: (1)
Coast and Quillou Madi; (2) Lower Congo, Vivi, Stanley Pool; (3)
Upper Congo.
“Our governmental organisations will then be complete: in Africa, a
head chief and governors administering the country and justice: in
Europe, the association providing for the financial wants of the new
State, and representing the new state and many native sovereigns who
have confederated with us and hoisted our flag.
“This is the present situation and prospects of the enterprise.”
* * * * *
It may be safely asserted that no barbarous people have ever so
readily adopted the fostering care of benevolent enterprise as have
the tribes of the Congo, and never was there a more honest and
practical effort made to increase their knowledge and secure their
welfare.
The people of the Congo country and their benefactors alike deserve
the friendly recognition of the United States in their new national
character.
Your committee, therefore, report a substitute for the resolutions
referred to them by the Senate, and recommend its passage.
(From the _Revue de Droit International_)
THE FREE NAVIGATION OF THE CONGO
BY SIR TRAVERS TWISS
The Congress of Vienna inaugurated a new era in the reciprocal
relations of European states, by laying down the principle that these
relations should be subordinated to the interests of the European
community in case of conflict between the individual interests of
the states and that which is just in an international point of view.
It is a fact, which is apparent to every attentive observer of the
great political evolutions of our century, that it is more and more
perceived that the community of nations create obligations towards
it, and that the empire of this community over the states which
form part of it has several times obtained formal sanction by means
of conferences whose protocols point out to us the considerations
which dominated their counsels. These protocols form declarations
of which all the participants are the sureties. We are proud of
modern civilisation. We congratulate ourselves upon the progress
of international law among civilised nations. We are therefore
justified, it seems to me, in asking of the states which participate
in the European concert of public law, whether it would not be
possible to assert this principle of duty towards the community of
states as a means of solving the question of the Congo, without
awaiting the stern necessity of intervening to put an end to war, or,
at the least, the occasion of offering mediation to avert a recourse
to the sad arbitrament of the sword. The Congo question is in the
condition of a young tropical plant, whose germ has not yet commenced
to develop, but which will perhaps assume suddenly unexpected
proportions.
I have already treated of the free navigation of the Lower Congo,
but I have omitted, or at least only glanced at the idea of an
international protectorate, under the _ægis_ of which a _modus
vivendi_ could be established upon a solid basis of stipulated right,
among the diverse nationalities whose flags float over the factories
of Banana Creek, at the entrance of the Congo, and thus proclaim
the cosmopolitan character of the settlement. Ascending the channel
of the river, Punto da Lenha is reached, where a _pentarchy_, so to
say, of European flags equally affirms the cosmopolitan character of
the port, and gives notification that the individual interests which
prevail there rest under the protection of five states. Formerly, a
common end, the slave trade, was the only bond which united those
diverse nationalities in a kind of commercial fraternity. To-day
there exists between them a law of usage, intended to regulate
their common interests; but this usage leaves much to be desired,
and it does not control the private life of the residents of each
factory, who are free to regulate, according to their own pleasure,
their relations with the natives. In fact, there does not exist
social order, properly so called, among the factories; there is no
collective will among their members, no authority which they are
bound to obey, and one may say, “_Ubi nulla societas, ibi nullum
jus._” The sad truth of this axiom is confirmed by the stories of
frightful cruelties committed upon the natives in the year 1877,
an account of which can be found in the dispatches of the English
consuls to their Government. (_Parliamentary Papers_, Africa, No. 2,
1883.)
M. Moynier, president of the International Committee of the
Red Cross, at Geneva, called the attention of the Institute of
International Law, during its last session at Munich, to the question
of the Congo, and the readers of the _Review_ will remember the
proposition which M. Emile de Laveleye developed thereupon (pp.
254-262), asking, in the interests of humanity, that the waters
of the Congo should be neutralised by European action. M. Moynier
had already treated of this subject at the Institute in Paris, in
September, 1878; but it was not expected at that time that the
majestic course of waters explored by Stanley in 1877 would soon
become the object of dangerous rivalries. The result has proved
that the whites, who have formed many stations upon the Upper Congo
and its affluents, have already run the risk of being engaged in
competitions which may disturb the good feeling between the newcomers
and the natives, to whom European civilisation should bring only
benefits. The arrival at Stanley Pool of a French expedition which
ascended the channel of the river Ogouve, from the affluents of
the Congo, has introduced upon the banks of the Upper Congo the
representative of a European Government, who has taken possession, in
the name of France, of a territory ceded by the native chiefs of the
country.
It is evident from the very nature of things that the question of the
Congo may properly be divided into two parts, for the Lower Congo
is already subjected to an order of things entirely exceptional, in
which five European nations participate. This condition of affairs
was based originally upon a common traffic in slaves, to which has
succeeded a legitimate trade with the natives—a commerce in which the
European nations take part in a perfectly independent manner, each
for itself. In spite of that, there is on the Lower Congo, because
of these nationalities, a certain solidarity of interest which
counsels a common accord upon the subject of the navigation and the
police of the river. But, as I have before said, as far as regards
criminal jurisdiction, the whites of each factory regard themselves
as independent, and not as responsible to any Government whatsoever.
The Upper Congo, on the contrary, bathes the territories of many
native tribes. Their chiefs have granted stations to the agents
of the International Association, which depend upon no European
sovereign, but which are modelled upon certain institutions of
the Middle Ages, to enable the population of barbarous Africa
to participate in the advantages of European civilisation. All
the stations which this Association possesses have been acquired
peaceably by treaties with sovereign chiefs of the country.
It governs them by intelligent men, belonging to all European
nationalities. And, moreover, it has hoisted over these stations a
flag which signifies that they belong to no especial nation, but
that they form part of an International Association founded in
the interests of the natives, and which represents all countries
interested in the progress of humanity. A single European nation has
entered this humanitarian arena, and that is the French Republic,
which, in accepting, as a European State, the cession of territory
made to M. Savorgnan de Brazza, has notified the civilised world that
France has not sought to put private interests in opposition to the
general interests of civilisation, represented in Africa by a flag,
the principal merit of which is precisely that of not being the flag
of any one power. (See Report presented by the Government of the
Republic to the Chamber of Deputies, 20th November, 1882.)
“Neither in the spirit of your Commission [it is there said] nor in
the views of the Government, is there any purpose at this moment
to go upon the banks of the Congo, or upon the neighbouring shores
with military array, but simply to found scientific, hospitable,
and commercial stations, without other military force than may
be strictly necessary for the protection of the establishments
successively created.”
Unfortunately, the appearance of a European national flag upon the
banks of Stanley Pool raised the question whether the agent of
an association which had not the political character of a State,
could, by a cession of the actual Sovereign of the country, acquire
and exercise the sovereignty of a territory situated outside of
Europe. I say _outside of Europe_, because we do not seek to find
the solution of such a problem, as affecting Africa or Asia, in the
existing political condition of affairs in Europe, nor in the fixed
regulations of European society, upon which that condition of things
rests, but in the unwritten law of nations, which should regulate the
relations between free peoples, no matter to what family they belong,
nor what religion they profess. Yet the practice of Europe, while
Christianity was seeking to accomplish the high mission of civilising
the barbarous races on the northern and eastern frontiers, merits
our attention, because of a certain analogy between the condition of
those frontiers in the eleventh century, and the present condition of
Equatorial Africa.
In order, therefore, to appreciate the action of the International
African Association, and to fathom the question whether this action
is without precedent in the action of European peoples, it will be
profitable, in the first place, to study the archives of a period
when Europe was not entirely Christian, and when Christianity made a
propaganda among the native pagan tribes who at that time inhabited
a part of the country which we now call Prussia. This study will
bring to our knowledge the action of an international association
which accomplished the civilisation of a country inhabited by people
who might be called savages, and, at the same time, will furnish a
refutation of the assertion put forth by certain publicists that
States alone can exercise the rights of sovereignty.
M. de Laveleye, before cited, has made allusion to the Teutonic Order
as an institution for the propagation of civilisation, which, in the
Middle Ages, carried civilisation to the populations on the borders
of the Baltic and cemented them to the rest of Europe. The action of
this famous order in regard to the acquisition of the sovereignty of
a barbarous country has an important analogy to the action of the
International African Association.
Thus this order was originally a charitable association of Germans
which the citizens of the free cities of Bremen and Lubeck instituted
at the siege of St. Jean d’Acre, during the Fourth Crusade.
Afterwards, this association constituted itself into an order of
chivalry towards the end of the twelfth century, and, after the
religious enthusiasm to which the Crusades had given birth had ceased
to inflame the nations of Southern Europe, the order established
itself at Culm, in the country which is now called Western Prussia,
where Conrad, Duke of Massovie, of the Polish Dynasty of the Piasts,
ceded to it a territory and assured to it the conquests it might make
over the idolatrous Prussians. The order by gradual steps established
its dominion with Christianity over the whole of Prussia. The city of
Konigsberg, upon the Pregel, was built by it in 1255, and the city of
Marienbourg, upon the Nougat, which became afterwards the capital of
the order, dates its foundation back to the year 1276.[57]
Another order, that of the Chevalier’s Sword-Bearers (_Ensiferri_),
was established in Livonia, where, finding itself too weak to sustain
the attacks of the pagans, it ended by uniting itself to the Teutonic
Order. This union rendered the Teutonic Order so powerful it was able
to establish its authority over the whole of Prussia, Courland,
and Senegal, and from the annalists of that time we learn that in
converting the people to Christianity the Teutonic Order subjected
them to an exceedingly hard yoke. The Teutonic Order maintained
itself in the sovereignty of this country until the middle of the
fifteenth century, when it was subjected to great territorial losses
in a war against Poland, and was compelled to become the vassal of
the King of Poland for East Prussia. It is upon the embers of this
order that the Prussian monarchy was established by the courage of
the descendants of Duke Albert of Brandenbourg, grand master of the
order, the first Duke of Prussia.
It is to be observed that, during all this time that this order was
sovereign, it was not recognised as a State, and that the master of
Livonia was not admitted to a sitting and vote among the States of
the German Empire until after this order had ceased to be sovereign.
The City of Dantzic was, for two centuries, up to 1454, the maritime
capital of the order, and it may be said that the Teutonic Order was
the supreme power during two centuries on the shores of the Eastern
Baltic, without being organised as a State.[58]
On the other hand, in the south of Europe, there was an order of
chivalry whose services to civilisation in defending Christian
countries against the invasions of the Arabs and the Turks are
more famous even than those of the Teutonic Order. I refer to the
sovereign Order of St. John of Jerusalem. This order, originally
founded for the service of the hospital of St. John at Jerusalem,
quitted the holy city at the commencement of the fourteenth century
and established itself in the island of Rhodes to defend the
frontiers of Christianity against the attacks of the Saracens.
Then it had to give up the island of Rhodes to the Turks, and it
established itself in the island of Malta, of which it obtained the
territorial sovereignty as a gift from the Emperor, Charles V., in
1530. Even this order adopted a territorial title, that of the Order
of Chevaliers of Malta, and maintained its sovereignty over this
island until the year 1798. The English having soon after become
masters of the island by conquest from the French, it was proposed by
the Congress of Amiens, the 27th March, 1802, to restore the fortress
of Malta to the Order of St. John, and to put the independence of the
island under the guarantee of the powers uniting in that congress.
This project failed. At the Congress of Vienna, in 1815, the Order of
Malta demanded to be provided with another sovereign establishment
in the Mediterranean suitable for the institution of the order, and
that its independence and neutrality should be guaranteed by all the
powers. The congress would not listen to this demand.
I have cited these two examples to show that according to the law
of usage of Europe, associations which are not organised as states
can, nevertheless, exercise sovereign rights. But it may be said
that these orders of chivalry were privileged orders, and that they
belong to an epoch when Christian civilisation was propagated at
the sword’s point. Putting aside, then, the military epoch of the
civilising propaganda, let us pass to the commercial era inaugurated
by the discoveries of Christopher Columbus and Vasco de Gama. The
theory of publicists which we have to examine is this, that a
private association cannot exercise sovereign rights in a barbarous
country. A learned _collaborateur_ of the _Revue de géographie_, of
Paris, has formulated it in these terms: “It is a principle of law
that states alone can exercise sovereign rights; that no private
company can have them.”[59] It is evident that this proposition is
affirmed by M. Delavand in too absolute a manner, for the facts of
history contradict it. Among the members who formed the great Union
of the United States of North America there were at least four
which owed their origin to private associations, whose territorial
sovereignty had been established before they received any charter
of incorporation from the Crown of England. Everybody knows that
a commercial company acquired by treaties with the natives the
sovereignty of the English Indies. A similar Dutch company acquired
and exercised sovereign rights in the island of Java and in the
Malaccas. Should there be a different rule in Africa from that
which has prevailed in America and Asia? Or should there be, for
the young republics of the nineteenth century, a law of nations
directly opposed to that which prevailed at the foundation of the
independent States on the shores of North America—States whose
federation gave birth to the parent republic of our age? I do not
think so. Doubtless the national law of a country may prohibit its
citizens from accepting the sovereignty of a barbarous country, but
the international question must not be confounded with the question
of national law, in regard to which we may say, “_Extra territorium
jus dicenti impune non paretur._”
Will it be said that these ideas are superannuated; that they do not
belong to our age? I will reply by a very recent example, which has
been the subject of discussion between the Governments of Spain,
the Netherlands, and Great Britain. It is known that certain native
chiefs on the northern coast of the island of Borneo delegated to
a European, a private individual, rights implying the exercise of
territorial sovereignty; that the person to whom the chiefs of the
country had delegated supreme power, under the title of maharaja,
ceded his rights to a private company, and that that company
obtained from the English Crown a charter of incorporation. It may
be said that the history of the propagation of civilisation in the
seventeenth century in America is renewed in Asia and Africa in the
nineteenth century. The English Government regarded this delegation
of sovereign rights by native chiefs, in return for an annual
subsidy, as a sufficient title to enable the company to exercise
these powers, and sustained this proposition before the House of
Commons. In reply to a question in regard to the granting of the
charter of incorporation, Sir Henry James, Attorney General, said:
“The rights which have been accorded the company have become legally
its property, and it would have been an act of confiscation if the
Government of Her Majesty had attempted to deprive it of them.”
And the prime minister, Mr. Gladstone, also affirmed that the charter
had not granted to the company any power to exercise rights implying
sovereignty which it had not already acquired by delegation from
native chiefs. A correspondent of the _Revue de géographie_ of Paris
has specified these rights according to the contents of the act
of delegation.[60] It is not doubtful that in virtue of this act
the company, without being a state, can exercise sovereign rights
over a considerable territory in the northern part of the island of
Borneo. M. E. de Laveleye, before cited, says that Germany, formally
consulted by the British Government in 1882, did not question the
capacity of private individuals or of companies to obtain from
non-civilised Sovereigns the concession of rights implying the
exercise of rights of sovereignty. The Governments of the Netherlands
and of Spain did not deny such power, but they claimed to have
anterior rights over the northern portion of Borneo; and it was in
virtue of those anterior rights that they protested against the
rights claimed by the British North Borneo Company. It is, therefore,
evident that the obstacles which the establishment of stations by
the International Association upon the Upper Congo might meet with
from European powers are not to be found in the fact that they are in
contravention of any law of nations by virtue of which states alone
can exercise sovereign rights, but solely in the fact that Portugal
pretends, by reason of anterior rights, to deny the capacity of the
native chiefs of the country to cede the sovereignty of a part of
their territories without the consent of Portugal.
It appears, in the meantime, that the British Government did not
yield to the pretensions raised by Holland and Spain concerning the
northern part of the island of Borneo, and that the Government of
the French Republic, in spite of the pretensions of Portugal, has
recognised the supremacy of a native king upon the Upper Congo, and
has accepted the cession of his hereditary rights. This treaty,
concluded by M. Savorgnan de Brazza, as the representative of France,
at Neousa, the 30th October, 1880, ceded to France a territory which
was in the possession of certain chiefs, vassals of the King Makoko;
and said chiefs signed the treaty, whilst the King Makoko, in his
capacity as suzerain of these chiefs, ceded to France, by an act
invested with his mark, his rights of supremacy over this territory.
It seems, therefore, that there is no place for a suzerainty of
Portugal over the regions around Stanley Pool, according to the
opinion of the Government of the French Republic, for the Senate and
the Chamber of Deputies authorised the President of the Republic to
ratify the treaty and act above mentioned, and the President has
promulgated a law to give them full effect.
It might reasonably be asked, if there is any difference in principle
between the right of African chiefs, admitting they are sovereigns of
a territory, and the right of Asiatic chiefs to cede their territory
to a private company. France, at least, has recognised the right of
King Makoko, suzerain of the Batakes, to cede to a European State his
rights of sovereignty, and the right of the chiefs subordinate to his
authority to cede the possession of the parts of the territory they
occupied. Why should it be forbidden to a native chief to cede his
territory to an international European company, which, according to
the law of nations, is perfectly capable of accepting and exercising
such a sovereignty?
The _Comité d’Études_ of the Upper Congo—for it is necessary to
distinguish between the association which occupies the Lower Congo
and the association which occupies the Upper Congo—has made, through
Mr. Stanley, with the native chiefs, treaties, which in regard to
their tenor resemble more closely the treaties concluded by the
British Society with the Sultans of Brunei and Sooloo, in the island
of Borneo, than the treaties concluded by the native chiefs of the
Upper Congo with M. Savorgnan de Brazza. Take for example the treaty
which Captain Eliot, agent of Mr. Stanley, concluded with the Chief
Manipembo, the 20th of May of this year. The first three articles
declare that the Chief Manipembo cedes and abandons to the committee
of the Upper Congo, in full property, certain territories in return
for a present the receipt of which is acknowledged, and he solemnly
declares that these territories form an integral part of his State,
and that he can freely dispose of them. It is clearly evident from
the tenor of these articles that the Chief Manipembo recognises no
superior chief. Article IV. of the treaty states that the cession of
territory carries with it the abandonment by the above-named chief,
and the transfer to the committee of all his sovereign rights.
Was this transmission of sovereign rights to the committee of
the Upper Congo illegal according to the law of nations? It is
indisputable that the Chief Manipembo was legally capable of
concluding treaties with European Powers, for the French Republic,
through M. Cordier, on the 12th of March of this year, concluded with
him and with the King of Loango treaties by which all the left bank
of the river Quillou,[61] which empties into the Bay of Loango, is
placed under the protectorate of France.
Concerning the exercise of sovereign rights by the committee of the
Upper Congo, acquired by treaties with native chiefs, if reliance can
be placed upon an article in the _Journal l’Export_, which professes
to have its facts from good authority, the committee has instructed
its representatives, in case of expeditions from any nation seeking
to establish themselves there, to give them gratuitously the
necessary land. The committee wishes especially to create colonies
at the stations of the Congo, and to see developed there a new kind
of free cities. An idea which may throw some light on the future of
the Upper Congo is this: An International Protectorate of the Lower
Congo, under the presidency of Portugal, and a system of free cities
for the Upper Congo.
History teaches us that the march of the caravans which traverse the
sandy deserts of Northern Africa has been rendered possible by the
existence of certain spots where nature has made provision of water
and vegetation where travellers and camels can rest and refresh
themselves. Why should not a philanthropic association be permitted
to imitate this foresight of nature, and to establish, like these
oases, free cities at certain distances upon the banks of the great
river of Equatorial Africa, to facilitate the progress of a humane
civilisation and the development of a beneficent commerce?
The institution of free cities in Germany greatly accelerated the
progress of the arts and civilisation in Europe, and the rapid
development of these cities in the fourteenth century teaches us
that by means of such an organisation a nearly barbarous country can
be erected into a civilised body upon an industrial and commercial
basis. These cities, either through their origin or by virtue of the
charters granted them by sovereign powers, secured to themselves a
free government, which assured to their citizens personal liberty and
the ownership of their property under the protection of their own
magistrates.
The traveller in the free city of Bremen, on arriving at the
marketplace, will see before him a great stone column which is called
the Rolands Saule. This column supports the colossal figure of a
man, holding in his right hand a sword, and crushing under his feet
the head and hand of a man. This is emblematical of the right of
the city to dispose of the lives and labour of its inhabitants. The
present column was erected in 1412, but it replaced a wooden column
which dated back to the period of the First Crusade, and whose origin
is unknown. Other monuments of analogous character to this are found
in many of the cities of Germany, and they are symbols of the right
which the magistrates of these cities had to exercise both civil
and criminal jurisdiction. They bear witness that these cities were
_sui juris_ in regard to the power to make and execute their laws.
Should an institution which contributed so much to attach the North
of Europe to the civilisation of the South, which rooted itself so
firmly upon the shores of the North Sea and the Baltic that its
vitality withstood the strain of wars and civil dissensions for six
centuries,—should that be regarded as an innovation in the usages of
nations when transplanted into Equatorial Africa?
When the Dutch Provinces of Spain revolted against the Spanish Crown,
and the Prince of Orange granted letters of mark to individuals,
to make reprisals against Spain, the Spanish Government refused to
recognise the legality of these letters of mark, upon the pretext
that a republic could not exercise rights of admiralty which belonged
exclusively to crowned heads. This is the origin of the term of
opprobrium, _quex de mer_, which the Spaniards employed to degrade
the Dutch, but which the Dutch adopted as a title of honour. In the
same way as now, it was then attempted to make it appear that under
the law of nations states alone could exercise sovereign rights. But
the facts contradicted this proposition. The suggestion recalls the
fable of the hare and the tortoise. According to the principles of
pure mathematics the tortoise should never be able to catch the hare,
but the problem is simplified enormously when recourse is had to
the proof of the facts. To use a scholastic expression, “Experience
discovers the truth”—_solvitur ambulando_. For example, the right
of the International African Association to hoist a flag upon its
steamboats upon the Lower Congo cannot be denied, while the English
society, in possession of the rights of the Sultans of Brunei and
Sooloo, implying the exercise of rights of sovereignty, has raised
its flag, and the British admiralty has been authorised to recognise
it.
To return to the objection of certain publicists that a State alone
can exercise sovereign rights. The free cities of ancient Rome and
of the empire of Germany (to distinguish it from the present empire)
were not subjects of the Emperor, but vassals of the empire, and when
the free city of Strasbourg capitulated, in the year 1681, the King
of France received it under his royal protection, and it preserved
all its privileges and its magistrates with civil and criminal
jurisdiction, as a free republic, with a territorial zone, under the
protection of France, until the French Revolution.
What are the obstacles which delay the establishment of a system
of free cities on the banks of the Upper Congo, and which prevent
the powers whose subjects have establishments on the Lower Congo
from coming to an agreement as to an international protectorate of
the river? There is a European power which arrogates to itself, in
virtue of a discovery of the mouth of the river Congo in the year
1484, the sovereignty of all territory watered by this river and its
affluents. I do not speak of the pretensions of this power over all
the territory of the west coast of Africa, between 5°, 12´, and 8°
south latitude—pretensions which have been contested by France, by
Holland, and even by England since the slave trade was abolished by
conventions between the British and Portuguese Governments. So long
as the slave trade existed, everybody hunted Negroes in common in
the regions of the Congo. Since the slave trade was abolished the
maritime powers of Europe have treated the pretensions of Portugal
with courtesy, but not one has admitted them.
I affirm, with all the respect due to the country of Prince Henry
the Navigator, that this is the condition of things upon the Congo,
although the Portuguese Government, in a circular dispatch, written
in reply to a resolution of the Institute of International Law, has
asserted that its rights are not disputed.
In support of this assertion of the Portuguese Government the author
of the dispatch cites an incident of the last Franco-German war.
During the war a French corvette captured a German merchant vessel,
the _Hero_, lying at anchor in Banana Creek, inside the mouths of
the Congo. The circular dispatch states that the German Government
requested the Portuguese Government to demand the rendition of the
prize, as captured in Portuguese waters; but it does not say that the
Portuguese Government took any steps before the French prize courts,
or that the French Government acceded thereto. The statement of facts
stops there. Then, the dispatch says that “the news soon reached
Europe that the French governor of Gaboon, the port into which the
captor had carried his prize, had set at liberty the crew, and caused
the German ship to be taken back to Banana Creek, where it remained
at anchor till the close of the war.”
The author of the dispatch appears to me the victim of the paralogism
described by the phrase _post hoc, propter hoc_, for he attempts to
draw from these facts the “irresistible conclusion” that the Governor
of Gaboon recognised the waters of Banana Creek as Portuguese waters.
It appears, on the contrary, that the ship was set at liberty by
the Governor of Gaboon, _motu suo proprio_, and in no manner on
account of any demand of the Portuguese Government; and the only
legitimate conclusion from the premises is this: The Governor of
Gaboon recognised that the capture of the ship had been effected in
territorial waters, where, whether they belonged to a native King
or to a European power, France had not the right as a belligerent
power to capture the enemy’s ships.[62] The Governor of Gaboon
conducted himself loyally without waiting special instructions from
his Government. This fact, which the author of the dispatch cites as
a proof of Portuguese sovereignty over the territories of the west
coast of Africa, between 5°, 12´, and 8°, south latitude, comprising
the mouths of the Congo, has absolutely no significance as an
argument.
Another event which the dispatch of the Portuguese Government recalls
is that of the 1st of May, 1877, which had previously acquired
considerable notoriety by the publication of the correspondence
between the Portuguese Government and the Government of her Britannic
Majesty. Several old slave-traders, established at Punta da Lenha,
were carrying on a regular and legal commerce with the natives,
but, at the same time, were slave-owners. In consequence of an
incendiary attempt upon a Dutch factory, the residents of Punta da
Lenha made a “_noyade_” (drowning of several persons at the same
time) of Negroes in the river opposite Boma. The British consul, who
resides ordinarily at Saint Paul de Loando, which city is under the
jurisdiction of the Portuguese crown, wished to make inquiries at the
scene of the crime in regard to the summary execution of twenty-nine
Negroes by order of their masters, but he did not dare to disembark
at Punta da Lenha because of the threats of the inhabitants. Under
these circumstances, the Portuguese Government conducted itself in a
very proper manner. At the instance of Consul Hopkins, of Loando, the
governor of the Portuguese province of Angola sent a gunboat to Punta
da Lenha, and arrested a British subject named Scott, implicated in
the _noyade_, and was perfectly willing to try the accused according
to the laws of Portugal with the consent of the English consul;
but the correspondence between the two governments shows that the
English Government was unwilling to admit Portuguese sovereignty
over the banks of the Congo. It is surprising that the author of the
circular dispatch should have cited this incident as indicating the
recognition of Portuguese sovereignty by the English Government, when
the correspondence presented to the British Parliament in regard
to the matter proves precisely the reverse. Here, for example, are
the terms of a dispatch of Sir Julian Pauncefote, under secretary
of state, to the English consul at Loando, which closes the
correspondence:
“The territory in which these outrages have been committed has long
been claimed by the Portuguese Government, and this claim is renewed
in the correspondence with the Portuguese authorities inclosed in
your dispatches. Her Majesty’s Government, however, as you are aware,
have always contested and opposed that claim, and cannot, therefore,
admit the jurisdiction of the Portuguese tribunals to deal with the
case of Scott.”[63]
No one accuses Portugal of wishing to impede the free navigation of
the Congo, but it is to be regretted that, being powerless to insure
that navigation to its own subjects, it is unwilling to consent to
a friendly agreement with the powers whose subjects have factories
upon the north bank, to put the navigation of the river beyond risk
of danger. I have said advisedly that Portugal is powerless to insure
the navigation of the river to _its own subjects_. I have already
spoken of the tribes which inhabit the borders of Pirates’ Bay, upon
the north bank of the river, against whom the English commander,
Hewitt, had to organise an expedition in 1875, because they had
plundered an English merchant ship and massacred the crew. But there
is, on the south bank, a considerable tribe who practise piracy
on a large scale, and do not even respect Portuguese vessels. The
pirates especially infest San Antonio, at the southern extremity of
the mouth, in the immediate neighbourhood of the column of Point del
Padron. The author of a book entitled _Four Years on the Congo_,[64]
published in Paris, describes an attack by these pirates upon a
Portuguese brig. The account is interesting, but I will not now go
into details. What it imports is, the powerlessness of the Portuguese
Government to suppress the piracy of this tribe and to punish the
guilty ones. I cite an extract from this work which gives the history
of the Portuguese expedition sent to punish the Mussorangos who had
attacked the Portuguese brig:
“On the 15th of November two corvettes and the frigate _La Guadiana_
left Loando. The little fleet, commanded by M. Viegas de C——, headed
for the Congo. The commander hoped to surprise the Negroes. Arrived
at a place considered sacred, and which is called the “Stone of the
Fetish,” they anchored, and M. Viegas himself, with one company,
ascended the creek in a steam gunboat and effected a landing, which
the savages endeavoured at first to oppose; but soon afterwards,
dislodged by the showers of grape shot from the frigate, moored a
few cables’ length only from the shore, they retired in good order.
Meanwhile, the little band of whites, finding no serious resistance,
advanced. The corvettes shelled the villages in sight. Some groups
of Mussorangos, who had stood firm till then, feeling themselves
vanquished fled in every direction, returning and stopping, from
time to time, behind trees to discharge their guns at the whites.
The commander burned all the villages he found. That was all that
could be done. It would not have been prudent to march at a venture
into an unknown country in search of an unapproachable enemy, always
fleeing. It was necessary to re-embark; the ships came back to
Banana, where they remained some days, and then returned to Saint
Paul.”
This is a very recent occurrence, which does not very well bear out
the assertions of the Portuguese Government relative to the efficacy
of its jurisdiction as remedy for the disorders of the Congo.
“The Congo [says the author of the circular dispatch] and the
territories bordering its mouth are already the seat of an important
commerce, and of European establishments of diverse nationalities,
but there is no security either for life or property, no police, no
courts, nor any of the institutions so necessary to all civilised
people, and which can only be established under a recognised and
effective jurisdiction. And such jurisdiction can only be exercised
by Portugal, because no other nation possesses or claims any rights
of sovereignty over these territories.”[65]
I repeat, the good intentions of Portugal are not in dispute. What
is wanting is energy and material power; and it is necessary to have
these in order to civilise the country discovered by the agents of
the International Association. Four centuries have elapsed since
Diego Cam, a Portuguese cavalier, erected a column upon the Point
del Padron, the end of the south bank of the river’s mouth, in
commemoration of the fact that a subject of the crown of Portugal
had discovered the great river Congo. This same point is to-day in
the hands of a native tribe, which not only does not recognise the
sovereignty of Portugal, but openly defies it. Nevertheless, the
author of the circular finds much fault with the resolution of the
Institute of International Law, because that resolution implies,
according to him, forgetfulness of the rights of Portugal. What
rights? There exist rights based upon the discovery of the country,
but considering that the fleets of Pharaoh Neco, King of Egypt, made
the circuit of Africa, we cannot admit that the legal discovery of
the Congo was effected by Diego Cam. But rights founded upon the
discovery of the country are only imperfect rights; occupation should
follow, within a reasonable time, to render them perfect; otherwise
the discovery becomes inoperative, like an abandoned title. Has
Portugal occupied both banks of the Congo to acquire possession
of its waters? Have we the proof of it? On the contrary, the very
territory where Cam erected this column is to-day in the power of
a native tribe, who have always resisted Portuguese sovereignty,
and who openly claim to be (a thing almost incredible) the enemies
of the human race (_hostes humani generis_). And, on the other
hand, England, which pretends to no sovereignty over the waters of
the Congo, has been obliged to land a force upon the north bank to
chastise an act of piracy committed by the inhabitants of the creeks
in the neighbourhood of Banana.
It is evident that very soon the problem of the free navigation of
the Congo will assume such proportions that the solution cannot be
longer deferred. Should this solution wait upon a state which up to
now has only demonstrated its powerlessness to civilise the countries
on the south bank of the Lower Congo, its sovereignty over which is
not disputed by any European state?
LONDON, November 21, 1883.
FOOTNOTES:
[57] The Schloss Hauptmann of the Castle of Marienbourg, formerly the
palace of the grand master of the order, is now appointed by the King
of Prussia.
[58] The old Teutonic Order was suppressed in the year 1809 at
the peace of Luneville, when the grand master of the order was
secularised for the archduke to be chosen by the emperor. It may
be said of the Teutonic Order that it was renewed in 1824 and
reorganised in 1840 and 1865, but that it is the shadow of a great
glory—_magni stat nominis umbra_.
[59] Vol. xii. of the _Revue_ above cited, p. 224.
[60] Mr. A. J. Wauters, assistant secretary of the International
Congress of Commercial Geography, 1879. First number of the _Revue_,
July 1, 1883, p. 63.
[61] Niadi-Kwilu.
[62] The _Times_ of the 5th November, 1882, in which an English
translation of the circular dispatch of the Portuguese Government is
published, says: “Unquestionably because the Government _perceived_
that the capture had been made improperly.”
[63] _Parliamentary Papers_, Africa, No. 2, 1882, p. 86.
[64] Paris, G. Charpentier & Co., 1883.
[65] I quote the text of the circular as published in the
_Indpendance Belge_ of the 7th November, 1883.
ARGUMENT OF PROFESSOR ÉGIDE ARNTZ
Can independent chiefs of savage tribes cede to private citizens
the whole or part of their states, with the sovereign rights which
pertain to them, conformably to the traditional customs of the
country?
This question, as it is propounded, presents two aspects. It must be
considered:
I. From the point of view of the right of the one who cedes.
II. From the point of view of the one to whom the cession is made.
I
In examining this question from the standpoint of international law,
we must first ask if the chiefs of savage tribes can, generally, make
treaties, conventions, cessions of territories; in other words, if
the tribes which they represent are considered as states, having the
capacity to make international treaties, which would be respected as
such by all civilised or non-civilised nations.
From the fifteenth century till early in the nineteenth century, the
rules of international law were regarded as being to some extent an
exclusive privilege of Christian peoples, for the establishment of
regular relations between them. With regard to pagan peoples, they
were not considered as participating in the political community which
international law established between Christians; and it was only by
Article VII. of the treaty of Paris of the 30th of March, 1856, that
the Sublime Porte was admitted “to participate in the advantages of
the European concert.”
We can easily understand that Christian nations could not admit to
participation in the advantages of international law the people of
nations who did not recognise this law as binding upon themselves,
and who did not practise its precepts. Publicists and moralists teach
that in their relations with pagan and savage populations, Christian
sovereigns should always conduct themselves honestly, and observe the
rules of justice, equity, and Christian morality.
It would be too long to enter here into the details of the
discussions which the authors of the sixteenth and seventeenth
centuries had on the subject of the conduct of European nations in
regard to the Indians. We shall limit ourselves to saying that the
relations of the states of Europe with other nations had no fixed
rules, that they varied much, according to the power and importance
of the foreign nations, according to the communications more or less
numerous which Europeans had with them, and according to the manners
and customs practised by them.[66]
Thanks to the progress of humanitarian ideas, of a better practice
of Christian morality, and the greater influence of principles of
international justice, feeble people, almost savage, although not
possessed of the benefits of civilisation, are no longer considered
in our days, as destined to serve as a mine for civilised nations to
“work.” All those having a human face, turned towards the heavens,
are considered as members of the great human family, children of the
common Father, animated by the same Divine breath, having the same
destiny to accomplish, and meriting the respect due to human dignity.
These ideas have prevailed with jurisconsults and publicists, have
permeated their doctrines, and happily have guided their practices.
Savage tribes, although living in very imperfect communities, as well
as their territories, are no longer regarded to-day as things without
a master, and belonging to the first occupier, that is, to the first
comer stronger than themselves. Want of civilisation can no longer
serve as a pretext to civilised nations to put them under subjection,
or to control them by violence.
The law of nations is a science still imperfectly moulded or
stereotyped, and especially is it a science which ought not to be,
and cannot be, formulated _a priori_. Its fundamental principle is,
no doubt, philosophy, but it has its positive base in the facts of
history and authoritative doctrine.
What are the conditions to enable a state to exist, as such, and to
qualify it to treat?
“A certain number of men and families, who, being united, in a
country, and having fixed their abode there, associate and submit
themselves to a common chief, with the intention of providing for the
safety of all, form a state,” says Klüber,[67] and to the same effect
says G. F. Von Marten.[68]
“Sovereignty [continues Klüber[69]] in this extended sense consists
in the _ensemble_ of rights belonging to a state, independent as
regards its object. It comprises, first, the entire independence of
the state in the face of foreign nations; second, legitimate power
of the Government or of the authority which the purpose of the state
demands.”
The same author says[70]:
“Sovereignty is acquired by a state either at its foundation or when
it separates itself legitimately from the dependence under which it
was. To be valid, it does not need to be _recognised or guaranteed_
by any foreign power whatever, provided its possession is not faulty
(_vicieuse_).”
It is useless to multiply extracts. The principles summarised by
Klüber on the sovereignty, the independence, and the equality of
states, from the legal point of view, are equally professed by all
authors. We will limit ourselves to the following: Heffter, par. 15,
16, pp. 32-34; par. 23, pp. 42, 43; par. 26, 27, pp. 47-49. Wheaton,
vol. i., pp. 32, 43. Vattel, lib. i., chap. i., sec. 4. W. E. Hall,
_International Law_, par. 2, 4, pp. 16-20; par. 6-8, pp. 34-37; par.
9, 10, pp. 39-42. Calvo, _Droit international_, par. 39-41, pp.
143-147.
Tribes inhabiting determined territory, represented by their chiefs,
form, therefore, independent states.
From this the first consequence is that the territories which they
occupy are not things without masters (_res nullius_), and cannot be
occupied by other states. It is only territories _without master_,
that is to say, upon which no sovereign power is yet established,
that can be the object of occupation.
As regards the right of _occupation_, see the following authors:
“Christian people cannot rightfully take possession of lands which
savages already really occupy,” says George Frederick von Marten.[71]
Klüber[72] says: “A state can acquire things which belong to no
one (_res nullius_) by _occupation_ (_original_), and the goods of
others by means of _conventions_ (derivative occupation) ... In order
that the occupation may be legitimate, the thing itself should be
susceptible of exclusive property and belong to no one. (A) The state
should have the intention of acquiring the property thereof.”
In the note (A) the author says: “Property thus is acquired
rightfully by an occupation without flaw; it is preserved by
continuous possession. In consequence no nation is authorised, no
matter what its pretensions, especially if of a higher degree of
culture, to seize upon the property of another nation. It cannot even
take it from savages or nomads.”
The author cites in support of this, Gunther, _Völkerrecht_, vol.
ii., p. 10 _et seq._ See also the beautiful and energetic passage
from Heffter, _Le droit international public_, vol. i., par. 70, pp.
141, 142: “Droit d’Occupation.”
To give validity of occupation it is necessary that the property
should be without master, and that the intention to acquire
the domain should be joined to the fact of an effective taking
possession. Let us examine each of the three conditions:
1. Occupation is only to be applied to property which, although
susceptible of being possessed, has no master. It does not extend
to persons, who can only be the object of a submission, whether
voluntary or forced. Occupation is to be applied notably to countries
and islands uninhabited or not entirely occupied; but no power on
earth has the right to impose its laws upon wandering or even savage
peoples. Its subjects can seek to establish commercial relations with
these latter, can remain among them, in case of necessity can demand
of them indispensable articles of provisions, and even negotiate with
them the voluntary cession of a portion of the territory, with the
object of colonising it. Nature, it is true, does not forbid nations
to extend their empire upon the earth; but it does not give the
right to a single one among them to establish its dominion anywhere
wherever it chooses to do it. The _propaganda_ of civilisation, the
development of commercial and industrial interests, the putting
into activity of unproductive values, do not justify it either. All
that can be accorded on the subject is, that in the interest of
the preservation of the human kind, it may be permitted to nations
to unite in order to open by common accord the ports of a country
hermetically sealed to their commerce.
See, to the same effect, Bluntschli, _Droits des gens, codifié_, par.
20, p. 63.
Similar citations could be multiplied.
Communities of non-civilised tribes, forming according to the law of
nations, as to-day admitted, independent states, the first logical
consequence which follows is that these states cannot be acquired
by reason of occupation by other states. A second consequence
which necessarily follows from the same premises is, that these
states, or their chiefs, can make international _treaties_ of every
kind—treaties which have obligatory force for the contracting
parties, and which should be respected by all other states, if they
do not interfere with existing rights.
We would remark here, with Calvo,[73] that “international treaties
may be concluded, even with nomadic peoples, having no territory of
their own nor fixed domicile, when they have an expressed political
organisation and a common council by the intermediary of their chiefs
or their assemblies.” “In this category [adds the same author] may be
classed the Bedouins, scattered over the deserts of Arabia, Syria,
Egypt, and barbarous Africa, and the Turcomans, who wander over the
plains of Central Asia.”
“There are conglomerated populations which do not compose a state....
But the nomads and the savages have, either among themselves or with
civilised people, an international law which is observed equally with
the international law of civilised nations,” say Funck, Brentano, and
Sorel.[74]
By still stronger reasoning the tribes composing states dwelling in
determined territory can make international treaties. Savage African
tribes, possessing determined territories, _can make all kinds of
treaties_. _Their chiefs_ can therefore _cede territory_, in whole
or in part, _to whom_, we will see under No. 2. This rule, or rather
this consequence, cannot be impeached _in theory_.
“Sovereignty of a state, in the sense of international law [says
Klüber, _Droits des gens moderne de l’Europe_, p. 22], consists
essentially in independence of all foreign control in relation to
the exercise of rights of sovereignty; it ought by its nature even
to be exercised independently of the antiquity of the state, or the
form of its constitution of government, or the order established
for the succession to the throne, or the rank, title, or state of
its sovereign; of the extent of its territory; of its population,
political importance, manners, religion, state of culture in general,
the commerce of its inhabitants,” etc.
And the same author, par. 127, says:
“In regard to public domain, the state has, over the things which
form part thereof, all rights of property, not only of exclusive
possession and the right to enjoy it as owner, but also that of
disposing freely thereof. The conventions or arrangements which
it may make in this respect, whether with its subjects or with
foreigners, are absolutely independent of other Governments. Nothing
forbids it alienating its property, its putting it in pledge, or
abandoning it. It has the capacity to acquire by accession.”[75]
Without going back to antiquity, modern history, since the
seventeenth century up to our own days, furnishes us numerous
examples of treaties, of cessions of territories, etc., concluded
between civilised states on the one hand and savage tribes on the
other. It is sufficient to recall the most noted cases:
In 1620 the English Puritans embarked on board the _Mayflower_, after
establishing themselves in the northern part of Virginia, concluded
with the chief or sachem of the Indians, Massasoit, a treaty of
friendship, the most ancient treaty concluded by New England.[76]
In 1639 the founders of the colony of New Hampshire concluded with
the Indians conventions for the purchase of land situated between
the Piscataqua and the Merrimac, and there established the town of
Exeter.[77]
Later, William Penn made treaties with chiefs of Indians. It is
useless to cite here the numerous treaties between the different
States of New England and the chiefs of Indian tribes.
Wheaton[78] recounts that some of these Indian tribes have recognised
by conventions that they held their existence entirely at the will of
the State within the limits of which they resided, and that others
preserved a limited sovereignty and the absolute dominion of the
territory inhabited by them; and he adds that by two decisions of the
Supreme Court of the United States, in 1831 and 1832, the Cherokee
Nation, residing within the limits of the State of Georgia, are held
to constitute a distinct political society; that numerous treaties
made by this nation with the United States recognise it as a people
capable of maintaining relations of peace and war; that the English
Government, having preceded the United States, bought their lands by
contracts of sale, freely assented to, and never forced them to make
sale against their will.
Let us pass from America to Africa and Asia. In the course of the
last fifty years England has concluded with the chiefs of countries
adjacent to the Congo thirteen treaties, of which we mention
specially two, one concluded the 11th of February, 1853, with the
King and chiefs of Cabinda, the other concluded the 20th June, 1854,
with divers chiefs of the river Congo.
The treaty concluded by M. Savorgnan de Brazza with the King Makoko
is of public notoriety.
To terminate the series of historical documents in support of the
theory that chiefs of savage tribes can validly make treaties and
cessions of territories in full sovereignty, let us recall further
the recent treaties of the 29th of December, 1877, and the 22nd of
January, 1878, by which the Sultans of Brunei and of Sulu, in the
island of Borneo, ceded a part of their territory to Mr. Alfred Dent
and Baron Overbeck.
If, from the point of view of international law, it is indisputable
that no state, civilised or not, has the right to arbitrarily trouble
the chiefs of savage tribes in the possession of their sovereignty,
the same prohibition applies to those to whom they have conceded,
_whoever they may be_.
The _cessionnaires_ have the same rights as the ceders. Under what
pretext could another state trouble them? Their cession is valid,
and thus all motive, or even all pretext for trouble is wanting; or,
the cession is null, according to the law of nations, and then the
sovereign who made the cession has, _in right_, preserved all his
sovereignty, and no other state has the right to trouble it, or even
to intervene to make good the nullity of the cession.
II
Let us take the second question. Can a cession be made to a _private
citizen_?
We are happy to be able to abridge this part of our work by referring
to the article, “The Free Navigation of the Congo,” published by our
eminent colleague of the Institute, Sir Travers Twiss, in the sixth
number of the _Revue du droit international_ for 1883.
It is true that Sir Travers Twiss occupies himself with the question
whether those associations which are not organised as States can
exercise sovereign rights, rather than whether these rights of
sovereignty can be conceded to private individuals; but the argument
which he invokes in support of his thesis applies in great part to
cessions made to individuals.
When writers establish their point of departure to arrive at a
demonstration they commence often by saying:
“It is an established principle,” etc. Or, “It is a principle of
law,” etc. And they employ this form when their principles are the
most contestable. In the article we have just cited, Sir Travers
Twiss mentions an article in the _Revue de géographie_ of Paris,[79]
in which Mr. Delavand says: “It is a principle of law that states
alone can exercise sovereign rights, and that no private company
can have them.” He (Sir Travers Twiss) adds, with reason, that this
proposition is affirmed in too absolute a manner, and he proves
conclusively by historical facts that his criticism is just.
Doubtless an individual, _as such_, and a private society, _in that
capacity_, are not sovereigns, and exercise no act of sovereignty.
This needs no demonstration. But, in virtue of what principle of
international law is it sought to be shown that one who is a private
citizen to-day cannot become a sovereign to-morrow, and be in
possession of the plenitude of sovereignty? Such a principle does
not exist. No author of international law has ever sustained it, and
all the history of humanity, from the earliest down to modern times,
denies it.
_Individuals can become sovereigns, and exercise the rights of
sovereigns, in two ways_:
First. By creating themselves into a state—that is to say, by
establishing themselves upon a territory which belongs to them, and
forming themselves into a community with a regular government, and
legal organs of public power—in a word, with all the constituent
elements of a state.
Most of the states of antiquity, according to legends and
traditions, or positive historical information, have been created in
no other way.
The states of the Middle Ages had the same origin. The Franks, the
Visigoths, the Ostrogoths, the Burgundians, and others, were only
nomadic peoples, composed of chiefs who, in the eyes of international
law, were only individuals, but who founded states.
The Italian republics of the Middle Ages were only municipalities
without international sovereignty, and they have become sovereign
states. Simple individuals, poor fishermen, caused the republic of
Venice to rise from the waves of the Adriatic and to become its queen.
Almost all the States of New England, in America, have been founded
by individuals.[80]
States, to _exist_, have no need to be recognised by other states.
Those who have founded them are the _sovereigns_, and therefore have
the right to exercise the rights of sovereignty in so far as this
exercise has not been delegated to an authority instituted under the
constitution of the state.
And a revolution which has for result the detaching from a state
of one of its parts, is it not at the commencement the work of
individuals? And those individuals, if they unite themselves in their
enterprise, can erect a simple province or provinces into a new and
sovereign state, and exercise then sovereign rights.
And if to-day, simple individuals should establish themselves on a
desert island, or on territory unoccupied by another state, they can
establish a new state, with all the rights of sovereignty. We have
seen Texas thus formed.
Second. An individual can become sovereign by succeeding to another
sovereign in the exercise of the sovereignty of a state. From a
private individual he becomes a sovereign.
The question whether a private individual can accept a sovereignty
when the interior laws of his state forbid him is outside of our
subject, and we do not treat of it.
Philip, Duke of Anjou, great-grandson of Louis XIV., was, from the
point of view of international law, a simple individual. After the
death of Charles II., by the treaty of Utrecht the states belonging
to the Crown of Spain were dismembered, and Philip V. was recognised
as the King of Spain, and acquired part of the states of the Spanish
monarchy. Other examples might be cited.
When a prince was elected King of Germany he became a sovereign from
a private individual that he was.
Or, again, when a chief of an African tribe, forming a sovereign
state, cedes to an individual in full sovereignty a part of his
state, does he do other than to call another person to the exercise
of rights of sovereignty over one part of his state, erected into a
new state? What difference is there between the case of a European
prince who is called as sovereign to a state, or part of a state,
and that where an African chief calls upon an individual to exercise
sovereign powers over part of his state? In the _fact_ undoubtedly
there is much difference, but in _law_ there is none; and that is the
question. It is a question of law (_droit_) we have to study here.
It is even possible that an individual may remain _a subject of the
state_ to which he belongs, and may be the _sovereign of another
country_. The sovereign, therefore, can have a double personality.
Thus, Ernest Augustus, and George V., Dukes of Cumberland, were
subjects of Queen Victoria and peers of England and at the same time
Kings of Hanover. In 1787 the sovereign bishop of the principality of
Osnabruck, the Duke of York, sat as a peer of England in the House of
Lords.[81]
The question which has been laid down at the head of this opinion
is a novel one. It has not been foreseen or treated in works of
international law. Many authors treat a question which touches
upon this one, but which differs from it a good deal. They ask if
an individual can make in his own name an act of occupation of a
territory newly discovered without a master. They reply negatively to
this question, and, in their line of ideas, they are right; for those
who discover new territories are almost always navigators, travelling
in a public ship, often public officers or individuals commissioned
by their governments—agents of the government—and they cannot occupy
in their own name.
A recent event furnishes a powerful support to the theory that
rights of sovereignty can be ceded to individuals, namely, the
treaty between the Sultans of Borneo and Sulu and Mr. Dent and
Baron Overbeck, who, in their turn, have ceded their rights to
a private British company, the “British North Borneo Company.”
This fact has importance in itself, as a new event which enlarges
juridical science; but what especially gives strong support to our
thesis is the manner in which this event has been appreciated,
be it inferentially or explicitly, by several governments, by
jurisconsults, and by eminent statesmen whose opinions can be invoked
as having authority.
The opinions of jurisconsults and publicists are ranged among the
sources of international law.[82]
In the first place, the Governments of Holland and of Spain, who
believed themselves most directly affected by the concessions,
accorded by the two Sultans of Borneo, did not deny the principle of
the capacity of individuals or of associations to have ceded to them
rights of sovereignty, but they raised reclamations against these
treaties by invoking rights previously acquired.
Let us reproduce here the passage written by M. de Laveleye upon the
discussion to which the giving of a charter of incorporation to the
British North Borneo Company gave rise in the English Parliament[83]:
“Certain members of the left, adversaries of what is called in
England the imperial policy, that is to say of the policy which seeks
extension of territory and of influence, criticised the measure
because it created a new responsibility for the country; but no one
contested the right of individuals or of the company—rights resulting
from treaties concluded with indigenous chiefs. In the reply made in
the House of Commons by the attorney-general, Sir Henry James, we
read:
“‘These rights were conceded to the company and became legally its
property. The Government of Her Majesty had no power to enter into
a general examination of the propriety of the occupation of Borneo
by a commercial company. It would have been an act of confiscation
if, after what had happened, the Government had interfered, and had
endeavoured to take from it the rights which it had acquired. ... The
only thing the Government had to decide was whether or not it was
necessary to leave the company to act without impediment and entirely
without control.’
“Mr. Gladstone was not less affirmative. Said he, at the same sitting: