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:

CHAPTER I.—Declaration relative to Freedom of Trade in the Basin of the Congo, its Mouths, and circumjacent Regions, with other Provisions connected therewith.

ARTICLE 1. The trade of all nations shall enjoy complete freedom—

1. In all the regions forming the basin of the Congo and its outlets. This basin is bounded by the watersheds (or mountain ridges) of the adjacent basins, namely, in particular, those of the Niara, the Ogowé, the Schari, and the Nile, on the north; by the eastern watershed line of the affluents of Lake Tanganyika, on the east; and by the watersheds of the basins of the Zambesi and the Logé, on the south. It therefore comprises all the regions watered by the Congo and its affluents, including Tanganyika, with its eastern tributaries.

2. In the maritime zone extending along the Atlantic Ocean from the parallel situated in 2° 30´ of south latitude to the mouth of the Logé.

The northern boundary will follow the parallel situated in 2° 30´ from the coast to the point where it meets the geographical basin of the Congo, avoiding the basin of the Ogowé, to which the provisions of the present Act do not apply.

The southern boundary will follow the course of the Logé to its source, and thence pass eastwards till it joins the geographical basin of the Congo.

3. In the zone stretching eastwards from the Congo Basin, as above defined, to the Indian Ocean from the 5° of north latitude to the mouth of the Zambesi in the south, from which point the line of demarcation will ascend the Zambesi to five miles above its confluence with the Shire, and then follow the watershed between the affluents of Lake Nyassa and those of the Zambesi, till at last it reaches the watershed between the waters of the Zambesi and the Congo.

It is expressly recognised that in extending the principle of free trade to this eastern zone the Conference Powers only undertake engagements for themselves, and that in the territories belonging to an independent Sovereign State this principle shall only be applicable in so far as it is approved by such State. But the Powers agree to use their good offices with the Governments established on the African shore of the Indian Ocean for the purpose of obtaining such approval, and in any case of securing the most favourable conditions to the transit (traffic) of all nations.

ARTICLE 2. All flags, without distinction of nationality, shall have free access to the whole of the coast-line of the territories above enumerated, to the rivers there running into the sea, to all the waters of the Congo and its affluents, including the lakes, and to all the ports situate on the banks of these waters, as well as to all canals which may in future be constructed with intent to unite the watercourses or lakes within the entire area of the territories described in Article 1. Those trading under such flags may engage in all sorts of transport, and carry on the coasting trade by sea and river, as well as boat traffic, on the same footing as if they were subjects.

ARTICLE 3. Wares, of whatever origin, imported into those regions, under whatsoever flag, by sea or river, or overland, shall be subject to no other taxes than such as may be levied as fair compensation for expenditure in the interest of trade, and which for this reason must be equally borne by the subjects themselves and by foreigners of all nationalities. All differential dues on vessels, as well as on merchandise, are forbidden.

ARTICLE 4. Merchandise imported into those regions shall remain free from import and transit dues.

The Powers reserve to themselves to determine after the lapse of twenty years whether this freedom of import shall be retained or not.

ARTICLE 5. No Power which exercises or shall exercise sovereign rights in the above-mentioned regions shall be allowed to grant therein a monopoly or favour of any kind in matters of trade.

Foreigners, without distinction, shall enjoy protection of their persons and property, as well as the right of acquiring and transferring movable and immovable possessions; and national rights and treatment in the exercise of their professions.

ARTICLE 6. Provisions relative to Protection of the Natives, of Missionaries and Travellers, as well as relative to Religious Liberty.—All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the Slave Trade. They shall, without distinction of creed or nation, protect and favour all religious, scientific, or charitable institutions, and undertakings created and organised for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilisation.

Christian missionaries, scientists, and explorers, with their followers, property, and collections, shall likewise be the objects of especial protection.

Freedom of conscience and religious toleration are expressly guaranteed to the natives, no less than to subjects and to foreigners. The free and public exercise of all forms of Divine worship, and the right to build edifices for religious purposes, and to organise religious missions belonging to all creeds, shall not be limited or fettered in any way whatsoever.

ARTICLE 7. Postal Régime.—The Convention of the Universal Postal Union, as revised at Paris the 1st June, 1878, shall be applied to the Conventional Basin of the Congo.

The Powers who therein do or shall exercise rights of sovereignty or protectorate engage, as soon as circumstances permit them, to take the measures necessary for the carrying out of the preceding provision.

ARTICLE 8. Right of Surveillance vested in the International Navigation Commission of the Congo.—In all parts of the territory had in view by the present Declaration, where no Power shall exercise rights of sovereignty or protectorate, the International Navigation Commission of the Congo, instituted in virtue of Article 17, shall be charged with supervising the application of the principles proclaimed and perpetuated (consacrés) by this Declaration.

In all cases of difference arising relative to the application of the principles established by the present Declaration, the Governments concerned may agree to appeal to the good offices of the International Commission, by submitting to it an examination of the facts which shall have occasioned these differences.

Spotted a typo or a problem in this chapter? Tell us

II. Declaration relative to the Slave Trade

ARTICLE 9. Seeing that trading in slaves is forbidden in conformity with the principles of international law as recognised by the Signatory Powers, and seeing also that the operations which by sea or land furnish slaves to trade ought likewise to be regarded as forbidden, the Powers which do or shall exercise sovereign rights or influence in the territories forming the Conventional Basin of the Congo declare that these territories may not serve as a market or means of transit for the trade in slaves, of whatever race they may be. Each of the Powers binds itself to employ all the means at its disposal for putting an end to this trade and for punishing those who engage in it.

Spotted a typo or a problem in this chapter? Tell us

III. Declaration relative to the Neutrality of the Territories comprised in the Conventional Basin of the Congo

ARTICLE 10. In order to give a new guarantee of security to trade and industry, and to encourage, by the maintenance of peace, the development of civilisation mentioned in Article 1, and placed under the free trade system, the High Signatory Parties to the present Act, and those who shall hereafter adopt it, bind themselves to respect the neutrality of the territories, or portions of territories, belonging to the said countries, comprising therein the territorial waters, so long as the Powers which exercise or shall exercise the rights of sovereignty or protectorate over those territories, using their option of proclaiming themselves neutral, shall fulfil the duties which neutrality requires.

ARTICLE 11. In case a Power exercising rights of sovereignty or protectorate in the countries mentioned in Article 1, and placed under the free trade system, shall be involved in a war, then the High Signatory Parties to the present Act, and those who shall hereafter adopt it, bind themselves to lend their good offices in order that the territories belonging to this Power and comprised in the Conventional free trade zone shall, by the common consent of this Power and of the other belligerent or belligerents, be placed during the war under the rule of neutrality, and considered as belonging to a non-belligerent State, the belligerents thenceforth abstaining from extending hostilities to the territories thus neutralised, and from using them as a base for warlike operations.

ARTICLE 12. In case a serious disagreement originating on the subject of, or in the limits of, the territories mentioned in Article 1 and placed under the free trade system, shall arise between any Signatory Powers of the present Act, or the Powers which may become parties to it, these Powers bind themselves, before appealing to arms, to have recourse to the mediation of one or more of the friendly Powers.

In a similar case the same Powers reserve to themselves the option of having recourse to arbitration.

Spotted a typo or a problem in this chapter? Tell us

IV. Act of Navigation for the Congo

ARTICLE 13. The navigation of the Congo, without excepting any of its branches or outlets, is, and shall remain, free for the merchant ships of all nations equally, whether carrying cargo or ballast, for the transport of goods or passengers. It shall be regulated by the provisions of this Act of Navigation, and by the rules to be made in pursuance thereof.

In the exercise of this navigation the subjects and flags of all nations shall in all respects be treated on a footing of perfect equality, not only for the direct navigation from the open sea to the inland ports of the Congo and vice versâ, but also for the great and small coasting trade, and for boat traffic on the course of the river.

Consequently, on all the course and mouths of the Congo there will be no distinction made between the subjects of Riverain States and those of non-Riverain States, and no exclusive privilege of navigation will be conceded to companies, corporations, or private persons whatsoever.

These provisions are recognised by the Signatory Powers as becoming henceforth a part of international law.

ARTICLE 14. The navigation of the Congo shall not be subject to any restriction or obligation which is not expressly stipulated by the present Act. It shall not be exposed to any landing dues, to any station or depôt tax, or to any charge for breaking bulk, or for compulsory entry into port.

In all the extent of the Congo the ships and goods in process of transit on the river shall be submitted to no transit dues, whatever their starting-place or destination.

There shall be levied no maritime or river toll based on the mere fact of navigation, nor any tax on goods aboard of ships. There shall only be levied taxes or duties having the character of an equivalent for services rendered to navigation itself, to wit:

1. Harbour dues on certain local establishments, such as wharves, warehouses, etc., if actually used.

The tariff of such dues shall be framed according to the cost of constructing and maintaining the said local establishments; and it will be applied without regard to whence vessels come or what they are loaded with.

2. Pilot dues for those stretches of the river where it may be necessary to establish properly qualified pilots.

The tariff of these dues shall be fixed and calculated in proportion to the service rendered.

3. Charges raised to cover technical and administrative expenses incurred in the general interest of navigation, including lighthouse, beacon, and buoy duties.

The last-mentioned dues shall be based on the tonnage of vessels as shown by the ship’s papers, and in accordance with the rules adopted on the Lower Danube.

The tariffs by which the various dues and taxes enumerated in the three preceding paragraphs shall be levied shall not involve any differential treatment, and shall be officially published at each port.

The Powers reserve to themselves to consider, after the lapse of five years, whether it may be necessary to revise, by common accord, the above-mentioned tariffs.

ARTICLE 15. The affluents of the Congo shall in all respects be subject to the same rules as the river of which they are tributaries.

And the same rules shall apply to the streams and river as well as the lakes and canals in the territories defined in paragraphs 2 and 3 of Article 1.

At the same time the powers of the International Commission of the Congo will not extend to the said rivers, streams, lakes, and canals unless with the assent of the States under whose sovereignty they are placed. It is well understood, also, that with regard to the territories mentioned in paragraph 3 of Article 1, the consent of the Sovereign States owning these territories is reserved.

ARTICLE 16. The roads, railways, or lateral canals which may be constructed with the special object of obviating the innavigability or correcting the imperfection of the river route on certain sections of the course of the Congo, its affluents, and other waterways placed under a similar system, as laid down in Article 15, shall be considered, in their quality of means of communication, as dependencies of this river, and as equally open to the traffic of all nations.

And as on the river itself, so there shall be collected on these roads, railways, and canals only tolls calculated on the cost of construction, maintenance, and management, and on the profits due to the promoters.

As regards the tariff of these tolls, strangers and the natives of the respective territories shall be treated on a footing of perfect equality.

ARTICLE 17. There is instituted an International Commission, charged with the execution of the provisions of the present Act of Navigation.

The Signatory Powers of this Act, as well as those who may subsequently adhere to it, may always be represented on the said Commission, each by one Delegate. But no Delegate shall have more than one vote at his disposal, even in the case of his representing several Governments.

This Delegate will be directly paid by his Government. As for the various agents and employees of the International Commission, their remuneration shall be charged to the amount of the dues collected in conformity with paragraphs 2 and 3 of Article 14.

The particulars of the said remuneration, as well as the number, grade, and powers of the agents and employees, shall be entered in the Returns to be sent yearly to the Governments represented on the International Commission.

ARTICLE 18. The members of the International Commission, as well as its appointed agents, are invested with the privileges of inviolability in the exercise of their functions. The same guarantee shall apply to the offices and archives of the Commission.

ARTICLE 19. The International Commission for the Navigation of the Congo shall be constituted as soon as five of the Signatory Powers of the present General Act shall have appointed their Delegates. And pending the constitution of the Commission the nomination of these Delegates shall be notified to the Imperial Government of Germany, which will see to it that the necessary steps are taken to summon the meeting of the Commission.

The Commission will at once draw up Navigation, River Police, Pilot, and Quarantine Rules.

These Rules, as well as the tariffs to be framed by the Commission, shall, before coming into force, be submitted for approval to the Powers represented on the Commission. The Powers interested will have to communicate their views with as little delay as possible.

Any infringements of these Rules will be checked by the agents of the International Commission wherever it exercises direct authority, and elsewhere by the Riverain Power.

In the case of an abuse of power, or an act of injustice, on the part of any agent or employee of the International Commission, the individual who considers himself to be aggrieved in his person or rights may apply to the Consular Agent of his country. The latter will examine his complaint, and if he finds it primâ facie reasonable, he will then be entitled to bring it before the Commission. At his instance then, the Commission, represented by at least three of its members, shall in conjunction with him inquire into the conduct of its agent or employee. Should the Consular Agent look upon the decision of the Commission as raising questions of law (objections de droit), he will report on the subject to his Government, which may then have recourse to the Powers represented on the Commission, and invite them to agree as to the instructions to be given to the Commission.

ARTICLE 20. The International Commission of the Congo, charged in terms of Article 17 with the execution of the present Act of Navigation, shall in particular have power—

1. To decide what works are necessary to assure the navigability of the Congo in accordance with the needs of international trade.

On those sections of the river where no Power exercises sovereign rights, the International Commission will itself take the necessary measures for assuring the navigability of the river.

On those sections of the river held by a Sovereign Power, the International Commission will concert its action (s’entendra) with the riparian authorities.

2. To fix the pilot tariff and that of the general navigation dues as provided for by paragraphs 2 and 3 of Article 14.

The tariffs mentioned in the first paragraph of Article 14 shall be framed by the territorial authorities within the limits prescribed in the said Article.

The levying of the various dues shall be seen to by the international or territorial authorities on whose behalf they are established.

3. To administer the revenue arising from the application of the preceding paragraph (2).

4. To superintend the quarantine establishment created in virtue of Article 24.

5. To appoint officials for the general service of navigation, and also its own proper employees.

It will be for the territorial authorities to appoint Sub-Inspectors on sections of the river occupied by a Power, and for the International Commission to do so on the other sections.

The Riverain Power will notify to the International Commission the appointment of Sub-Inspectors, and this Power will undertake the payment of their salaries.

In the exercise of its functions as above defined and limited, the International Commission will be independent of the territorial authorities.

ARTICLE 21. In the accomplishment of its task the International Commission may, if need be, have recourse to the war-vessels of the Signatory Powers of this Act, and of those who may in future accede to it, under reserve, however, of the instructions which may be given to the Commanders of their vessels by their respective Governments.

ARTICLE 22. The war vessels of the Signatory Powers of this Act that may enter the Congo are exempt from payment of the navigation dues provided for in paragraph 3 of Article 14; but unless their intervention has been called for by the International Commission or its agents, in terms of the preceding Article, they shall be liable to the payment of the pilot or harbour dues which may eventually be established.

ARTICLE 23. With the view of providing for the technical and administrative expenses which it may incur, the International Commission created by Article 17 may, in its own name, negotiate loans to be exclusively guaranteed by the revenues raised by the said Commission.

The decisions of the Commission dealing with the conclusion of a loan must be come to by a majority of two thirds. It is understood that the Governments represented on the Commission shall not in any case be held as assuming any guarantee, or as contracting any engagement or joint liability (solidarité) with respect to the said loans, unless under special Conventions concluded by them to this effect.

The revenue yielded by the dues specified in paragraph 3 of Article 14 shall bear, as a first charge, the payment of the interest and sinking fund of the said loans, according to agreement with the lenders.

ARTICLE 24. At the mouth of the Congo there shall be founded, either on the initiative of the Riverain Powers, or by the intervention of the International Commission, a quarantine establishment for the control of vessels passing out of as well as into the river.

Later on, the Powers will decide whether and on what conditions a sanitary control shall be exercised over vessels engaged in the navigation of the river itself.

ARTICLE 25. The provisions of the present Act of Navigation shall remain in force in time of war. Consequently all nations, whether neutral or belligerent, shall always be free, for the purposes of trade, to navigate the Congo, its branches, affluents, and mouths, as well as the territorial waters fronting the embouchure of the river.

Traffic will similarly remain free, despite a state of war, on the roads, railways, lakes, and canals mentioned in Articles 15 and 16.

There will be no exception to this principle except in so far as concerns the transport of articles intended for a belligerent and, in virtue of the law of nations, regarded as contraband of war.

All the works and establishments created in pursuance of the present Act, especially the tax-collecting offices and their treasuries, as well as the permanent service staff of these establishments, shall enjoy the benefits of neutrality (places sous le régime de la neutralité), and shall therefore be respected and protected by belligerents.

Spotted a typo or a problem in this chapter? Tell us

V. Act of Navigation for the Niger

ARTICLE 26. The navigation of the Niger, without excepting any of its branches and outlets, is and shall remain entirely free for the merchant-ships of all nations equally, whether with cargo or ballast, for the transportation of goods and passengers. It shall be regulated by the provisions of this Act of Navigation, and by the rules to be made in pursuance of this Act.

In the exercise of this navigation the subjects and flags of all nations shall be treated, in all circumstances, on a footing of perfect equality, not only for the direct navigation from the open sea to the inland ports of the Niger and vice versâ, but for the great and small coasting trade, and for boat trade on the course of the river.

Consequently, on all the course and mouths of the Niger there will be no distinction made between the subjects of the Riverain States and those of non-Riverain States; and no exclusive privilege of navigation will be conceded to companies, corporations, or private persons.

These provisions are recognised by the Signatory Powers as forming henceforth a part of international law.

ARTICLE 27. The navigation of the Niger shall not be subject to any restriction or obligation based merely on the fact of navigation.

It shall not be exposed to any obligation in regard to landing, station, or depôt, or for breaking bulk, or for compulsory entry into port.

In all the extent of the Niger the ships and goods in process of transit on the river shall be submitted to no transit dues, whatever their starting-place or destination.

No maritime or river toll shall be levied based on the sole fact of navigation, nor any tax on goods on board of ships. There shall only be collected taxes or duties which shall be an equivalent for services rendered to navigation itself. The tariff of these taxes or duties shall not warrant any differential treatment.

ARTICLE 28. The affluents of the Niger shall be in all respects subject to the same rules as the river of which they are tributaries.

ARTICLE 29. The roads, railways, or lateral canals which may be constructed with the special object of obviating the innavigability or correcting the imperfections of the river route on certain sections of the course of the Niger, its affluents, branches, and outlets, shall be considered, in their quality of means of communication, as dependencies of this river and as equally open to the traffic of all nations.

And as on the river itself, so there shall be collected on these roads, railways, and canals only tolls calculated on the cost of construction, maintenance, and management, and on the profits due to the promoters.

As regards the tariff of these tolls, strangers and the natives of the respective territories shall be treated on a footing of perfect equality.

ARTICLE 30. Great Britain undertakes to apply the principles of freedom of navigation enunciated in Articles 26, 27, 28, and 29, on so much of the waters of the Niger, its affluents, branches, and outlets, as are or may be under her sovereignty or protection.

The rules which she may establish for the safety and control of navigation shall be drawn up in a way to facilitate, as far as possible, the circulation of merchant-ships.

It is understood that nothing in these obligations shall be interpreted as hindering Great Britain from making any rules of navigation whatever which shall not be contrary to the spirit of these engagements.

Great Britain undertakes to protect foreign merchants and all the trading nationalities on all those portions of the Niger which are or may be under her sovereignty or protection as if they were her own subjects, provided always that such merchants conform to the rules which are or shall be made in virtue of the foregoing.

ARTICLE 31. France accepts, under the same reservations, and in identical terms, the obligations undertaken in the preceding Articles in respect of so much of the waters of the Niger, its affluents, branches, and outlets, as are or may be under her sovereignty or protection.

ARTICLE 32. Each of the other Signatory Powers binds itself in the same way, in case it should ever exercise in the future rights of sovereignty or protection over any portion of the waters of the Niger, its affluents, branches, or outlets.

ARTICLE 33. The arrangements of the present Act of Navigation will remain in force in time of war. Consequently, the navigation of all neutral or belligerent nations will be in all times free for the usages of commerce on the Niger, its branches, its affluents, its mouths, and outlets, as well as on the territorial waters opposite the mouths and outlets of that river.

The traffic will remain equally free in spite of a state of war on the roads, railways, and canals mentioned in Article 29.

There will be an exception to this principle only in that which relates to the transport of articles destined for a belligerent and considered, in virtue of the law of nations, as articles of contraband of war.

Spotted a typo or a problem in this chapter? Tell us

VI. Declaration relative to the essential Conditions to be observed in order that new Occupations on the Coasts of the African Continent may be held to be effective

ARTICLE 34. Any Power which henceforth takes possession of a tract of land on the coasts of the African Continent outside of its present possessions, or which, being hitherto without such possessions, shall acquire them, as well as the Power which assumes a protectorate there, shall accompany the respective act with a notification thereof, addressed to the other Signatory Powers of the present Act, in order to enable them, if need be, to make good any claims of their own.

ARTICLE 35. The Signatory Powers of the present Act recognise the obligation to ensure the establishment of authority in the regions occupied by them on the coasts of the African Continent sufficient to protect existing rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon.

Spotted a typo or a problem in this chapter? Tell us