CHAPTER XXXVII

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:

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