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.