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.

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:

“‘The charter has not conferred upon the company a single privilege above and beyond what it had already acquired by virtue of a title sufficient to enable it to exercise all these powers.’

* * * * *

“From the explanations given by Lord Granville in the House of Lords, the 13th March, 1882, it appears that if Holland and Spain have protested against the rights invoked by the Overbeck-Dent Company, it was because of anterior rights which these states pretend to have over the northern part of Borneo; but, no more than Germany, formally consulted in the matter by the British Government, have they raised any doubt as to the capacity of individuals and companies to obtain from non-civilised sovereigns the cession of rights implying the exercise of sovereignty. This capacity also was not denied by the members on the opposition side of the House of Commons.”

Thus, the opinion of four Governments, the opinion of two English ministers, Lord Granville and Mr. Gladstone, and of the attorney-general, Sir Henry James, that of Sir Travers Twiss, and of M. de Laveleye, to which we would add the considerations developed in the open letter addressed, the 23d April, 1883, by a member of the African International Association to the _Courrier des États-Unis_, form an assemblage of authorities of a nature to fortify us in our conviction if we had any doubts.

We conclude with these observations:

1. It is evident that if some powers have raised against similar concessions, made by chiefs of savage tribes to individuals and associations, reclamations founded upon rights _previously acquired_, there would be ground to submit these pretensions to serious examination, or perhaps they might be submitted to arbitration, as Great Britain and Portugal, in 1875, submitted to the arbitration of the President of the French Republic, M. MacMahon, the contest in regard to certain lands situated on the bay of Delagoa.

2. _New sovereignties, at the head of which are individuals or associations, the concessionaries of the chiefs of savage tribes, exist of themselves, of their own right and their own strength, without having need of the recognition of other States._ (See Klüber, par. 24; Heffter, par. 23, p. 42, and par. 51, p. 104; Bluntschli, pars. 28 and 38; and all the authors.)

It depends upon the _convenance_ of other States to recognise or not to recognise these new sovereignties. But whatever may be their determination in this respect, the want of recognition does not give them the right to act as if these sovereignties did not exist, and to consider their territories susceptible of _occupation_.

3. According to the practice of international law, at this day, the recognition of one to whom sovereignty has been conceded, as a sovereign, can even follow of itself, in certain cases. Almost all governments, especially Great Britain and the United States of America[84] have adopted the rule of considering _de facto_ governments as legitimate, as far as they themselves are concerned. (See Heffter, pars. 51, 53, pp. 101-105.)

Let us suppose a European nation had concluded a treaty of friendship or commerce with the chief of a savage tribe, inhabiting a fixed territory. This treaty is supposed to be concluded, and is effectively concluded with the State which the chief represents. The chief had ceded his rights of sovereignty to a European individual or a European association, who are put in real possession of the sovereignty. Could the European nation deny the legitimacy of this new Government if it was a government _de facto_, according to international usages? No. At least, Great Britain and the United States would recognise it, and probably other States also. And if the preceding chief had been displaced by internal revolution—which can break out among blacks as among whites—and if the black chief had ceded his sovereignty to another Negro, a relation or even a stranger to his family, would that be a reason for refusing recognition to the new sovereign? And if the chief of the tribe had ceded his sovereignty to a white man, in place of choosing for his successor a black man, or an association composed of whites, certainly the difference of colour could not be a reason for refusing recognition to the new sovereign.

Thus it is seen that in wandering away from true and simple principles difficulties of every kind are encountered.

Therefore I am of opinion that independent chiefs of savage tribes can validly cede to a private individual the whole or part of their State, with the sovereign rights which belong to them, and conformably to the traditional customs of the country.

BRUSSELS, December 15, 1883.

OTHER AUTHORITIES CITED

(Extract from the _Droit international codifié_, by M. Bluntschli.)

(Page 68, paragraph 35): A new State has the right to enter into the international association of States, and to be recognised by other powers when its existence cannot be put in doubt and is assured. It has the right because it exists, because international law unites existing States by common laws and principles based upon justice and humanity.

Recognition by other sovereign States is a voluntary act on a part of these latter. It is not, nevertheless, an absolutely arbitrary act, because international law unites, even against their will, diverse existing States, and makes of them a kind of political association.

The opinion is frequently advanced by the older publicists that it depends upon the good pleasure of each State to recognise or not to recognise another, outside of the necessary and absolute line of international law. If this law rested solely upon the arbitrary will of States, it would not be just that it should be simply a conventional law.

(Page 164): A State has evidently the right to constitute itself without the ratification of another State. This would be the case when emigrants, for example, found a State upon an uninhabited island, as did the Norwegians in Iceland in the middle ages. A number of new States of North America were founded by individuals; it was only later that they were recognised by England, and to this day they proceed in the same manner in the United States. If new states can in this way constitute themselves, by still stronger reasoning analogous extensions of territory already existing should be recognised.

ANOTHER MANNER OF ACQUIRING THE SOVEREIGNTY OF A FREE COUNTRY

(From Vattel, _Le droit des gens_, vol. i., page 489, par. 206.)

If free families, scattered over an independent country, unite to form themselves into a nation or a State, they acquire the sovereignty over the whole State which they inhabit, for they possess already the domain; and since they wish to form a political society and to establish a public authority to which all will owe obedience, it is quite manifest that their intention is to confer upon this public authority the right of sovereignty of the whole country.

(From Heffter, _Le droit international publique de l’Europe_.)

(Pages 32 and 33): The existence of a state supposes the following conditions, to wit:

I. A society capable of existing by itself and independently.

II. A collective will regularly organised, or a public authority charged with the direction of society for the end which we have just indicated.

III. A permanent status of society, the natural base of a free and permanent development, and which depends essentially on the fixity of the tenure of real estate and the intellectual and moral tendencies of its members.

We regard as idle the questions discussed by the schools, such as, What is the number of persons necessary to form a state? or, If one or three persons are sufficient? The distinctive characteristics of a state which we have just indicated sufficiently answer these questions.

(Page 42): A state exists _de facto_ so soon as it unites the necessary elements indicated above; that is to say, will, united to the indispensable means and strength to defend its independence.

(Page 43): The entry of a new state upon the political scene depends in no wise upon an express preliminary recognition by foreign powers. It is fully accomplished the day when it commences to exist. On the other hand, political reasons alone may decide foreign powers to recognise or enter into direct relations with it. Recognition only confirms what legally exists by admitting the new member into the grand European family.

(From the _Commentary upon the Elements of International Law, and History of the Progress of International Law_, by William Beach Lawrence.)

(Page 162): It is not necessary that there should be a determined number of persons to form a state.

(Page 197): Texas was recognised by England in 1839, when its population was not more than 60,000 souls. Lord Palmerston said on that occasion to Mr. O’Connell that “the principle of the Government was to recognise every state which had a _de facto_ independence.”

(Chamber of Commerce of the State of New York. Founded A.D. 1768.)

At an adjourned meeting of the Chamber of Commerce, held January 10, 1884, the following resolutions, presented by Mr. A. A. Low, were adopted:

WHEREAS, the President of the United States has, in his recent message, called attention to the fact that the rich and populous valley of the Congo is now being opened to commerce by the International African Association, and has especially dwelt upon the interest, for the purposes of trade and commerce, that we have, as a people, in the neutrality of that valley, free from the interference or political control of any one nation: Therefore,

_Be it resolved_, As the opinion of this Chamber that it is incumbent upon the Government of the United States, through its accredited representative, to apprise the Portuguese Government that it will not recognise, but denies the right of the latter to interfere with the free navigation of the Congo; that the discovery of this great waterway into the interior of Central Africa is not due to Portugal, but was the discovery of an explorer in the interest of no one nationality; and that the entry, 400 years ago, into the mouth of the Congo, by the Portuguese, not having been followed up by actual and continued occupation, can give that nation no territorial right to the river, or to the countries upon its banks.

_Resolved_, That the recognition by the Government of the United States of the flag of the International African Association, now extending over twenty-two settlements, in the heart of Africa, will be but an acknowledgment of the fact that that organisation, under rights ceded to it by African chiefs of independent territories, is exercising rule and authority over a large part of Africa in the protection of life and property, the extinguishment of the slave trade, the facilitating of commercial intercourse, and other attributes of sovereignty; and that it be recommended to the President to send an accredited agent of the Government to the Congo, to confer with that association in the adopting of such measures as may secure to American citizens free commercial intercourse along the course of that river, and through the various settlements or stations established by the association.

A true copy.

JAS. M. BROWN, _President_.

GEORGE WILSON, _Secretary_.

(From copy of correspondence of the Manchester Chamber of Commerce and the Secretary of State for Foreign Affairs.)

His Majesty the King of the Belgians has, during the last two years, incurred considerable expense in an expedition to the Upper Congo for the purposes of opening roads, establishing stations for trade, and for communication with the vast tribes inhabiting the interior of Africa. For the result of this expedition merchants are watching with interest, believing that this river will ultimately become one of the great highways for trade in the heart of Africa.

... It is, therefore, both manifest and notorious that the African tribes who inhabit the coast-line claimed by Portugal, between 5° 12´, and 8th degree south latitude, are in reality independent, and that the right acquired by Portugal from priority of discovery at the end of the fifteenth century has for a long time been suffered to lapse, owing to the Portuguese Government not having occupied the country so discovered. In the presence of these facts the undersigned must repeat the declaration of Her Majesty’s Government that the interests of commerce imperatively required it to maintain the right of unrestricted intercourse with that part of the coast of Western Africa extending between 5°, 12´, and the 8th degree of south latitude....

I have the honour to be, my lord, your lordship’s obedient, very humble servant,

JOHN SLAGG, _President_.

(From Earl Granville’s reply to Lord Mount Temple in the House of Lords, March 9, 1883.)

... The labours of men like Livingstone, Stanley, and others have given us a knowledge of the physical character of Central Africa, and of the populations which inhabit it, showing that there are great capabilities for the development of trade, and of the civilising effects which are the result of commerce. The work of the philanthropic International Association, in which the King of the Belgians takes a great interest, the mission of M. de Brazza, the increasing trade in different degrees, of the English, the Portuguese, the French, the Germans, the Dutch, and the Belgians, on the Congo and its banks, are acting as a stimulus and afford grounds why no reasonable endeavours should be neglected to insure freedom of commerce and navigation, and to anticipate possible jealousies, which so easily check trade, and which, under the pretence of securing peculiar advantages to some, are really injurious to all....

FOOTNOTES:

[66] Heffter, par. 7, p. 14: “With respect to non-Christian states, which are not yet regularly admitted into the bosom of the European family, the application of the same law is entirely free, and founded upon a purely conventional reciprocity. Relations with them are formed according to the exigencies of policy and morality.”

[67] _Droit de gens moderne_, par. 20.

[68] _Einleitung in das positive europaïsche Völkerrecht_, Gottingen, 1796, p. 1.

[69] _Droit des gens moderne_, par. 21.

[70] _Droit des gens moderne_, par. 23.

[71] _Einleitung in das positive europaïsche Völkerrecht_, par. 31.

[72] _Droit des gens moderne de l’Europe_, par. 25.

[73] See Charles Calvo, _Manuel du droit international public et privé_, par. 49, p. 85; also his _Droit international theorique et pratique_, vol. i., p. 320.

[74] _Précis du droit des gens_, Paris, 1877, No. X., p. 23.

[75] See on this point, _International Law_, by Edward W. Hall, M.A., barrister-at-law, Oxford, 1880, par. 35, p. 100.

[76] Bancroft’s _History of the United States_, vol. i., pp. 342-350.

[77] Carlier, _History of the American People_, vol i., p. 300.

[78] _Elements of International Law_ (Fr. tr.), vol. i., p. 50.

[79] Vol. xii., p. 12.

[80] See the histories of Bancroft and Carlier.

[81] Heffter, _Le droit international publique_, par. 52, p. 104.

[82] Wheaton, vol. i., par. 12, p. 25; Heffter, par. 8, p. 16.

[83] _Revue de droit international_, vol. xi., pp. 258, 259.

[84] See manifesto of President Monroe, of December 2, 1823.

GENERAL ACT OF THE BERLIN CONFERENCE

In the name of Almighty God,—

His Majesty the German Emperor, King of Prussia; His Majesty the Emperor of Austria, King of Bohemia, etc., and Apostolic King of Hungary; His Majesty the King of the Belgians; His Majesty the King of Denmark; His Majesty the King of Spain; the President of the United States of America; the President of the French Republic; Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India; His Majesty the King of Italy; His Majesty the King of the Netherlands, Grand Duke of Luxembourg, etc.; His Majesty the King of Portugal and the Algarves, etc.; His Majesty the Emperor of All the Russias; His Majesty the King of Sweden and Norway, etc.; and His Majesty the Emperor of the Ottomans,

Wishing, in a spirit of good and mutual accord, to regulate the conditions most favourable to the development of trade and civilisation in certain regions of Africa, and to assure to all nations the advantages of free navigation on the two chief rivers of Africa flowing into the Atlantic Ocean; being desirous, on the other hand, to obviate the misunderstandings and disputes which might in future arise from new acts of occupation (_prises de possession_) on the coast of Africa; and concerned, at the same time, as to the means of furthering the moral and material well-being of the native populations: Have resolved, on the invitation addressed to them by the Imperial Government of Germany, in agreement with the Government of the French Republic, to meet for those purposes in Conference at Berlin, and have appointed as their Plenipotentiaries, to wit:—

His Majesty the German Emperor, King of Prussia, Otho, Prince von Bismarck, his President of the Prussian Council of Ministers, Chancellor of the Empire; Paul, Count von Hatzfeldt, his Minister of State and Secretary of State for Foreign Affairs; Auguste Busch, his Acting Privy Councillor of Legation and Under-Secretary of State for Foreign Affairs; and Henri von Kusserow, Privy Councillor of Legation in the Department for Foreign Affairs;

His Majesty the Emperor of Austria, King of Bohemia, etc., and Apostolic King of Hungary, Emeric, Count Széchényi de Sárvári Felső-Vidék, Chamberlain and Acting Privy Councillor, his Ambassador Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of the Belgians, Gabriel Auguste Count Van der Straten Ponthoz, Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia; and Auguste, Baron Lambermont, Minister of State, Envoy Extraordinary and Minister Plenipotentiary;

His Majesty the King of Denmark, Emile de Vind, Chamberlain, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of Spain, Don Francisco Merry y Colom, Count Benomar, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

The President of the United States of America, John A. Kasson, Envoy Extraordinary and Minister Plenipotentiary of the United States of America at the Court of His Majesty the German Emperor, King of Prussia; and Henry S. Sanford, ex-Minister;

The President of the French Republic, Alphonse, Baron de Courcel, Ambassador Extraordinary and Plenipotentiary of France at the Court of His Majesty the German Emperor, King of Prussia;

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, Sir Edward Baldwin Malet, her Ambassador Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of Italy, Edward, Count de Launay, his Ambassador Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of the Netherlands, Grand Duke of Luxembourg, Frederic Philippe, Jonkheer Van der Hoeven, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of Portugal and the Algarves, etc., Da Serra Gomes, Marquis de Penafiel, Peer of the Realm, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia; and Antoine de Serpa Pimentel, Councillor of State and Peer of the Realm;

His Majesty the Emperor of all the Russias, Pierre, Count Kapnist, Privy Councillor, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the King of the Netherlands;

His Majesty the King of Sweden and Norway, etc., Gillis, Baron Bildt, Lieutenant-General, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the Emperor of the Ottomans, Méhemed Saïd Pasha, Vézir and High Dignitary, his Envoy Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

Who, being provided with full powers, which have been found in good and due form, have successively discussed and adopted:—

1. A Declaration relative to freedom of trade in the basin of the Congo, its embouchures and circumjacent regions, with other provisions connected therewith.

2. A Declaration relative to the Slave Trade, and the operations by sea or land which furnish slaves to that trade.

3. A Declaration relative to the neutrality of the territories comprised in the Conventional Basin of the Congo.

4. An Act of Navigation for the Congo, which, while having regard to local circumstances, extends to this river, its affluents, and the waters in its system (_eaux qui leur sont assimilées_), the general principles enunciated in Articles CVIII. and CXVI. of the Final Act of the Congress of Vienna, and intended to regulate, as between the Signatory Powers of that Act, the free navigation of the waterways separating or traversing several States—these said principles having since then been applied by agreement to certain rivers of Europe and America, but especially to the Danube, with the modifications stipulated by the Treaties of Paris (1856), of Berlin (1878), and of London (of 1871 and 1883).

5. An Act of Navigation for the Niger, which, while likewise having regard to local circumstances, extends to this river and its affluents the same principles as set forth in Articles CVIII. and CXVI. of the Final Act of the Congress of Vienna.

6. A Declaration introducing into international relations certain uniform rules with reference to future occupations on the coasts of the African Continent.

And deeming it expedient that all these several documents should be combined into one single instrument, they (the Signatory Powers) have collected them into one General Act, composed of the following Articles: