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Early European Land Acquisitions in New Guinea

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Early European Land Acquisitions in New Guinea Land Between Two Lavvs Early European Land Acquisitions in New Guinea Peter G. Sack Australian National University Press Canberra 1973 ©Peter G. Sack 1973 This book is copyright. Apart from any fair dealing for the purposes of private study, research, criticism, or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Inquiries should be made to the publisher. Printed and manufactured in. Australia Registered in Australia for transmission by post as a book Library of Congress Catalog Card no. 72-80330 National Library of Australia Card no. and ISBN 0 7081 0700 1 Preface This study is the abbreviated and amended version of a thesis submitted to the Australian National University which in turn was the abbreviated and amended version of a series of progressively longer manuscripts. It is hoped that the repeated trimming made the end product more palatable. On the other hand, it is certain that the arguments became in the process increasingly apodictic and that the documentation of the factual accounts correspondingly decreased. Those who are interested might find that the thesis, which is held by the University Library in Canberra, will assist them in filling some of the many gaps. In the interest of the reader all non-English quotations have been translated. No claim is made that the translations are as literal as possible. Instead of German currency or measurements their Australian equivalents have been used. The conversions are based on the rough equations: 1 Mark equals $0.10, and 1 hectare equals 2 · 5 acres. Regarding proper names and their spelling (which have changed and will change frequently) no firm rules have been followed. The term 'New Guinea' is used in its political sense. It refers to the Territory of New Guinea, which comprises the north-eastern part of New Guinea, the islands of the Bismarck Archipelago and, as well as Buka and Bougainville, the northernmost islands of the Solomon Group. Peter G. Sack Canberra 1972 Contents Preface v Abbreviations ix Introduction xi 1 Primitive Law and Western Law 1 2 Primitive Law and Traditional Land Tenure 19 3 Traditional Rights to Land 33 4 The Transfer of Traditional Land Rights 47 5 Beginnings of European Settlement 63 6 The Neu Guinea Kompagnie 81 7 Imperial Administration 96 8 Land and Interracial Relations 106 9 Land Acquisitions without Government Control 116 10 Establishing a Colonial Land Law 127 11 Land Dealings under the Neu Guinea Kompagnie 137 12 A Judicial Interlude 150 13 Land Dealings under Imperial Administration 155 14 Expanding Administrative Discretion 176 References 187 Index 191 MAPS German New Guinea 62 North-eastern Gazelle Peninsula 156 Maps drawn by the Cartographic Office, Department of Human Geography, A.N. U. Abbreviations Annual Report See References, under Germany 1899- and Neu Guinea Kompagnie 1885- C.A. Commonwealth Archives Office Canberra Custodian Custodian of Expropriated Property D.O. District Office D.H.P.G. Deutsche Handels- und Plantagen Gesellschaft (German Trading and Plantation Company) D.K.B.L. Deutsches Kolonialblatt (Official Gazette for the German Colonies) D.K.G. Deutsche Kolonialgesetzgebung (Collection of German Colonial Legislation) D.K.P. Die Deutsche Kolonialpolitik (Collection of Documents on German Colonial Policy) D.K.Z. Deutsche Kolonialzeitung (Organ of the German Colonial Society) G. Gericht (Court) H.M.S. Her Majesty's [Queen of England] Ship H.S.A.G. Hamburgische Suedsee Aktiengesellschaft (South Sea Company of Hamburg) K.M. Kirchliche Mitteilungen (Organ of the Neuendettelsau Mission Society) L.T.C. Land Titles Commission M. Monatshefte (Organ of the Sacred Heart Mission Society) n.d. no date N.K.W.L. Nachrichten fuer und ueber Kaiser Wilhelms/and und den Bismarckarchipel (Organ of the Neu Guinea Kom­ pagnie) N.L.C. Native Land Commission O.G. Obergericht (Court of Appeal ) P.R. Patrol Report S.D.O. Sub-District Office S.M.S. Seiner Majestaet Schiff (His Majesty's [Emperor of Ger­ many] Ship) Z.A. Deutsches Zentralarchiv, Potsdam Z.f.E. Zeitschrift fuer Ethnologie Z.f.K. Zeitschrift fuer Kolonialpolitik Introduction In Western states the acquisition of land is essentially a legal matter. Laws determine under which circumstances an acquisition of rights to land is legally valid and, in case a particular acquisition is disputed, courts can make a final decision which is then backed by the authority of the state. A study dealing with the acquisition of land can concentrate on analysing the existing system of land law, taking the rule of law for granted. In a colony the situation is different. Behind the fa�ade of colonial law, a study of legal problems must revolve around the questions whether and to what extent this colony is ruled by law. In New Guinea the establishing of law and order is, even today, by no means completed. Present land acquisitions by Europeans are still not regarded as an essentially legal matter. There are still separate systems of law for natives and Europeans which are, at least in practice, not held together by a set of conflict norms, but by a series of political compromises which are far from being final. This study is concerned with land acquisitions which, according to the colonial law, took place more than fiftyyears ago; yet it deals with living history. The problems caused by the early European land acquisitions are very much part of the present, and their solution is still largely a question of the future. To appreciate these problems, they must be seen against the background of wider issues. They are part of the problems arising out of the confrontation of primitive law and Western law, a confrontation which must be understood as a historical process reaching from pre-colonial into post-colonial days. 1 Primitive Law and Western Law The first legal anthropologists were concerned with the early stages in the development of their own legal systems or with the legal systems of ancient cultures. When attention turned to contemporary primitive societies about a hundred years ago, they continued to study primitive law as legal historians. This was due to a theory of the evolution of human culture that gained predominance after a theory of evolution had triumphed in the field of biology. If the development of homo sapiens as a species was the result of evolution, the same process had to determine the history of this species : Western civilisation was the climax of human culture as homo sapiens was the ultimate in biological development. Looking at the speed with which European domination expanded around the globe, eliminating all alternatives, one could easily get the impression that there was only one universal culture, which had developed unilineally, culminating in modem Western civilisation; whereas primitive or half-civilised contemporary societies were more or less retarded members of the family of mankind. This theory of a unilineal development of human culture made it possible to study history, so to speak, horizontally on the level of space, as well as vertically on the level of time. The various contem­ porary societies living in different parts of the world could be taken to represent nearly all possible steps in the development of this universal culture. The first legal anthropologists applied this theory to the area of law. Their object was to collect material for a universal history of law. They wanted to trace the development of legal institutions back to their origins, which they believed to have found in the law of con­ temporary primitive societies. Or, as their critics saw it later on, 'they wasted their efforts upon the task of proving that Morgan's theories were correct' (Malinowski, 1940, 3). 2 Land Between Two Laws This first, historical school of legal anthropology dominated the field until World War I. By then the theory of unilineal evolution had lost ground to other theories or, at least, to more critical and less speculative methods. The historical school of jurisprudence had made way for more sociological schools-and the anthropologist had become a serious rival of the lawyer in the study of primitive law. Most of the lawyers of the historical school had little or no first­ hand knowledge of primitive societies and depended for their analysis on data gathered by early amateur ethnographers. They were aware that the information available to them was inadequate, but thought they could remedy this unsatisfactory state of affairs without having to go into the field themselves. Instead they compiled longer and longer lists of questions which were sent to officials, missionaries, traders and planters throughout the colonies. Information gained this way had to be, as a rule, inferior to that collected by trained specialists during systematic fieldwork. On the other hand, trained specialists would not be satisfied with supplying the lawyers with information but would analyse it themselves. As modern anthropology developed, legal anthropology was bound to develop from a branch of legal history into a branch of social anthropology. One of the first and most influential studies in this new genre was Malinowski's Crime and Custom in Savage Society. When published in 1926 it was 'welcomed with enthusiasm by legal philosophers who had long felt the need for an authoritative statement on primitive law' (Goodhart, 195 5, xiv) . Malinowski and even more so his followers did not aim at writing a universal history of law, but were interested in the way law functioned in the primitive societies they studied. They understood primitive law as a social phenomenon and were not anxious to subject it to legal analysis. On the contrary, legal analysis was to them a procrustean method and a lawyer incapable of under­ standing primitive societies.
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