This book penetrates the facade Peter G. Sack Land Between of colonial law to consider European land acquisitions Two Laws in the context of a complex historical process. Its context is land, but it is fundamentally a legal study of the problems arising out of the dichotomy between traditional New Early European Land Guinea law and imposed Prussian law. Though these Acquisitions in New Guinea problems arose out of events that took place more than fifty years ago, they are of immediate relevance for New Guinea in the 1970s. They are mostly still unsolved and are only now emerging from under the layers of po­ litical compromise that have concealed them. Dr Sack emphasises the differences between tra­ ditional and introduced law in New Guinea in order to in ­ vestigate the chances of a synthesis between them. He offers no panacea, but points up clearly the tasks which must be accomplished before the 'land between two laws' can become a truly indepen­ dent state. This is an essential work for anthropologists, lawyers and all those con­ cerned with the emergence of a stable, unified Papua New Guinea. This book penetrates the facade Peter G. Sack Land Between of colonial law to consider European land acquisitions Two Laws in the context of a complex historical process. Its context is land, but it is fundamentally a legal study of the problems arising out of the dichotomy between traditional New Early European Land Guinea law and imposed Prussian law. Though these Acquisitions in New Guinea problems arose out of events that took place more than fifty years ago, they are of immediate relevance for New Guinea in the 1970s. They are mostly still unsolved and are only now emerging from under the layers of po­ litical compromise that have concealed them. Dr Sack emphasises the differences between tra­ ditional and introduced law in New Guinea in order to in ­ vestigate the chances of a synthesis between them. He offers no panacea, but points up clearly the tasks which must be accomplished before the 'land between two laws' can become a truly indepen­ dent state. This is an essential work for anthropologists, lawyers and all those con­ cerned with the emergence of a stable, unified Papua New Guinea. Dr Peter Sack was trained as a lawyer at the Universities of Goettingen and Kiel. In 1967 he began his work on European land acquisitions in New Guinea, the results of which are presented here. His research has involved several field trips to New Guinea and the study of many hitherto unpublished sources. He is at present Re­ search Fellow in Papua New Guinea Law at the Australian National University. Printed in Australia Jacket designed by AIMU Architecture/Design Sectior. This book was published by ANU Press between 1965–1991. This republication is part of the digitisation project being carried out by Scholarly Information Services/Library and ANU Press. This project aims to make past scholarly works published by The Australian National University available to a global audience under its open-access policy. Land Between Two Laws Land Between Two Laws 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 German New Guinea 62 North-eastern Gazelle Peninsula 156 Maps drawn by the Cartographic Office, Department o f 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 lieber Kaiser Wilhelmsland und den Bismarckarchipel (Organ of the Neu Guinea Kom­ pagnie) N. L.C. Native Land Commission O. G. Obergericht (Court of Appeal) PR. 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 Kolonial politik 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 facade 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 fifty years 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 modern Western civilisation; whereas primitive or half-civilised contemporary societies were more or less retarded members of the family of mankind.