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.