It will not, I think, be contested that throughout West Africa there is no native conception of private ownership of land. This is almost an article of religious faith amongst the African races generally. Let one tribe murder a member of another community and a palaver will be called and compensation paid. If wife-stealing or kidnapping of boys takes place, the tribes involved will remain calm and settle their dispute by making peaceful and honourable amends. Let one tribe exploit the palm, or without leave settle on the lands of another, and, on the instant, the ultimatum is despatched—“Depart forthwith, or accept the alternative!” Indeed the occupation of the communal lands of another tribe is recognized by most tribes as an overt act of warfare, the signal that all negotiations for peace are at an end.

Perhaps no more eloquent testimony of the attachment of native tribes to their lands is to be found anywhere than in the great Equatorial regions of the Congo. The early ’eighties witnessed in the Congo basin three convulsive movements; the entrance of the white man from the west, following on Stanley’s journey across the continent; the incursion of the Arabs from the north, and the Lokele wars towards the south. This latter movement was destined to change the whole situation in the Equatorial regions, south of the main Congo. The Lokeles, probably pressed by the Arabs from the north, started a “land war” with their southern neighbours, the object being to obtain an extension of tribal land. This pressure set in motion a land war, which ultimately extended over an area nearly five times the size of Great Britain and ran right through the south reaching down to the Lukenya river, and in some places even across the greatest of the southern tributaries—the Kasai. Tribes fought each other for the maintenance of their ancient boundaries until the whole of the Equatorial region was in a state of warfare, which only ceased when starvation claimed victims by the thousand. Then only were boundaries re-adjusted by peaceful agreements; even so the whole population for months was in such dire straits for food, that men sold their wives, and mothers their children, for a single basket of manioca. One realizes how passionately the natives are attached to their lands as they recount the horrors of those terrible years. Said one to me recently—“At first we fought to protect our lands, but in the end we had to fight to obtain ‘meat’—human flesh—to stay the pangs of hunger.”

The native boundaries are almost invisible to the European eye, but to the African student of nature those boundaries are fixed and immovable as the eternal hills. The limits of tribal lands, within the orbit of which the clans may move and hunt whenever they will, are the stream, the palm plantation, the hilly range and the bridges across streams and rivers. Upon the chief and his advisers devolves the sacred duty of maintaining intact these tribal lands, alienation being foreign to the native ideas. So jealously is this guarded that many paramount chiefs in native law have no power to grant even occupancy rights. For six months the cession of Lagos to the British Crown was held up because King Docemo had signed a treaty which appeared to violate this principle of native law. The population declared that the ownership of the land of Lagos was not vested in the paramount chief, but in the seven White Cap chiefs, who, fearing the terrible consequences of alienating the tribal lands, fled to the bush. It became necessary for the British representatives to give the most explicit assurances and sacred promises on the point, in order to secure the ratification of the treaty of cession.

It is perfectly true that titles have been granted to native tribes and to white men, but it is equally true that originally there was never the remotest idea that this involved the European conception of total alienation. In the Holt v. Rex case of Southern Nigeria, the Crown held that “under native law strangers cannot obtain freehold rights—only occupancy rights.” The tribal conception of occupancy rights also carries with it the communal idea; a native clan settling by permission within the territory of another tribe really constitutes the first step in progressive incorporation. In the first instance of white settlers, there are abundant stories of the native interpretation of this principle—some of them distinctly objectionable, although there were pure motives behind them; others are amusing, such as that of the chiefs “borrowing” saws, axes, string, rope, nails and what not. Again and again they have freely and openly helped themselves to palm nuts and other produce from the white man’s ground. No doubt much of what the European calls “pilfering” was really quite innocently founded upon the communal conception of the primitive races.

The impetuous scramble for African territory, which began thirty years ago, made, and continues to make, a considerable breach in this old primitive system. White men, acting through the doubtful medium of interpreters not infrequently corrupted in advance, have secured from chiefs titles to land of all dimensions. These chieftains, as a whole, never fully grasped the meaning of the titles obtained with honeyed words, and which they are now unable to repudiate. That this is so is partly proved by the fact that in some colonies areas have been conceded twice and even three times over. Swaziland is, of course, the most flagrant example, where it will be remembered a situation so complex was created that it ultimately became impossible for any Court to decide as to who were the real owners of specific areas.

In West Africa things are not, and never can be, quite so bad, although in some colonies, the Gold Coast for example, German Cameroons and French Congo, land difficulties are being piled up for the endless confusion of future administrators. In Belgian Congo there is no immediate probability of trouble, due partly to the fact that capital has little confidence in Belgium’s heritage, but more because the major part of the population has disappeared.

There is a vital connection between land and labour in all tropical and sub-tropical colonies. The economic future of native races is immobilized in the proportion in which their lands are taken from them. The almost phenomenal success of the cocoa industry in the British colony of the Gold Coast is due entirely to the fact that the natives are the proprietors of the cocoa farms. Throughout the colonial world, there is no more striking contrast between a landed and a landless native community than the British Gold Coast colony and the neighbouring Portuguese colony of San Thomé. In both territories cocoa flourishes, both produce excellent cocoa, in both nature is very kind, but while the one will march on conquering the cocoa markets of the world, the other is doomed to ultimate disaster.

The San Thomé cocoa producer is only a labourer—in fact a slave—and he is perishing at such a rate that the depleted ranks must be filled from outside sources to the number of 3000 to 4000 labourers every year. This constant inflow of labour cannot continue indefinitely, even if European sentiment permitted—which it will not—the revolting concomitants by which this labour has been maintained. The economic future of these colonies from which the supplies are drawn will soon forbid the emigration which at present is necessary to the island of San Thomé The population of the Gold Coast, on the other hand, happy in the enjoyment, in the main, of its own lands, reproduces and to some extent even increases itself every year. The native occupies his rightful place as producer, while the white man finds his true sphere, first as the inspirer of native efforts to place on the market cocoa of increasingly good quality, secondly as the medium by which the cocoa produced is conveyed to the manufacturer, and thirdly that by which surplus European manufactures are brought to the door of the native in exchange for his products.

This relationship of land to labour is receiving increasing recognition by students of colonial policy. The Republican Government of Portugal, finding both labour and land problems in hopeless confusion in the African colonies, has recently introduced a comprehensive measure embracing both factors in the development of African colonies. The ordinance is probably too generous in proportions to be carried through effectively in any colony, and stands little chance of complete application in Portuguese colonies, which suffer already from an excess of legislation, coupled with a rooted contempt for “Lisbon dictation.” This new ordinance, however, is a valuable contribution to West African legal literature.

The Provisional Government first lays down the proposition that every native in the Portuguese colonies is under “a moral and legal obligation to work.” The proposition upon land is in the following terms: “In all the Provinces beyond the seas, wherever there are public lands vacant, uncultivated, and not used for any special purpose, natives may occupy and cultivate them subject to conditions laid down in the present ordinance.”

The native in Portuguese colonies, therefore, must work. The sphere of labour he may choose, but idleness is henceforth a punishable offence.

Women, sick men, minors under fourteen years of age, chiefs and those in regular employment, are either exempt from the operation of the ordinance or deemed to have fulfilled its obligations.

Any native may contract his services, but, in the first instance, for a period limited to two years. The agreement is null and void unless the wages are fixed and recorded in the contract. Any clause giving the employer the right to administer corporal punishment likewise renders the contract invalid. The engagement may be made with or without the assistance of Government officials, but any document signed in the presence of a Government authority carries with it both the right and the responsibility of official intervention in any subsequent dispute between the parties. If, however, the contracting parties enter into the agreement without reference to the authorities, the employer cannot look for official assistance in disputes with the employés, although the latter under all circumstances may rely upon official protection and assistance. All contracts must bear the impress of the labourer’s thumb. Wages may not be withheld, nor may pressure be exerted to force merchandize upon the employé in lieu of wages.

Recruiting agents must obtain a licence from the Governor of the province, and any infraction of this section of the ordinance is punishable by a fine of £100 to £1000. A heavier penalty still awaits any recruiting agent who attempts to contract labourers for prescribed regions: presumably that death-trap of Portuguese colonies, the island of Principe. The punishment for such violation may be imprisonment for one year, a fine of £200, and at the expiration of the term of imprisonment, expulsion from the colony. Similar penalties await any agent contracting labourers beyond the bounds of his judicial area.

The Republican Government evidently realizes that contract labour, however benevolent it may be made to appear on paper, is not always a heavenly condition, and that the labourer may repent of his bargain before expiration. Section 18 provides for almost every concomitant which attaches to restrained labour. The pill, however, is sugared by a preliminary and somewhat unctuous preamble, that the whole trend of employment must be that of “moral education.” In pursuance of this laudable object, powers of arrest are conferred, “precautions” against running away are permitted, and if a second offence occurs, the offender, “when caught,” may be taken to the authorities “to be chastised.” There are, however, certain limits to these powers, for the employer may neither shackle nor chain an employé, nor may he deprive the labourers of food, nor impose any fines which involve deductions from wages.

If the native of the Portuguese colonies dislikes the yoke of any master, he may, like Adam, “till the soil,” for, as already stated, all vacant public and uncultivated lands are at the disposal of the colonists. The first general restriction is that this liberty is only open to those “who do not possess immovable property to the value of £10.” The object of this restriction is nowhere elucidated, but apparently it is that of fixing the population upon definite areas.

If, then, the native does not possess immovable property to that amount, he may occupy a piece of land measuring 2¼ acres for himself, and an additional acre for every member of his family with the exception of males above fourteen years of age.

A man with two wives, a mother, three daughters, and also three sons under fourteen years of age, could occupy under this regulation a little over ten acres, but the occupation must be an effective one. A dwelling-house must be erected, and two-thirds of the area must be under cultivation, otherwise the title becomes void, and the authorities will expel the occupants. The right of occupancy is inalienable.

During the first five years of occupation, the colonist is exempt from all dues, but at the close of this period taxation is levied and may be paid either in cash or kind. Failure to pay these dues renders the occupier liable to eviction without any compensation for improvements.

After an occupation of twenty years, characterized by the fulfilment of all legal responsibilities, the occupier automatically acquires the freehold. These cultivators or small holders are exempt from serving either in the army or the police; they are likewise freed from any form of forced labour, hammock carrying, or paddling, but they are not exempt from taking part in military operations with their respective chiefs, when such expeditions are undertaken by command of the authorities.

District commissioners, civil and military officials are urged to induce natives to avail themselves of the land provisions, and are empowered to assign them plots of land. They are also instructed to prepare local regulations safeguarding the rights of the colonists, compile land registers, etc., for which no fees are to be exacted from the natives.

If a native will not labour for another, if he will not sow a field or trade in produce, if in short he is only prepared to stretch forth an unwashed hand and mutter “Matabeesh, Senhor!” then the official representative of the Government will deal with him. The danger is that other than “wastrels” may be swept into the official net, particularly whilst such operations are so highly profitable to the Portuguese colonies.

First the delinquent is summoned to answer the charge of idling without visible means of support; then the paternal authorities are to read him a homily on “moral education,” and forthwith despatch him to a place where work is waiting for him. If he still refuses to work he may be sent to “correctional labour.” There he will receive food and lodging and be given one-third the market rate of wages. “Correctional labourers” may, according to Section 58, be hired out by private persons upon the same terms as the prisoners of State. Such persons willing to employ “correctional labourers” are requested to make formal application, but only those are eligible to receive such labourers who have never been convicted in any court. If they receive such labourers a given sum per capita must be paid to the State and a fine of £20 paid for any shortage in “returns” alive or dead, the number hired out must be returned to the Authorities. If, however, escape is feared, the correctional labourers may be returned to State prisons each night.

If the whole ordinance is to be applied to the Portuguese colonies in a measure of completeness hitherto foreign to the Portuguese possessions, then there is some hope that even the leopard may be able to change his spots.

There is little likelihood that the Portuguese land laws will be rendered effective on the spot, especially when we remember that many thousands of miles throughout which such laws are intended to operate are not yet under any sort of administrative control. The step which is finding most favour in British West African colonies is that of declaring all lands, whether occupied or not, as native land under some sort of ultimate trusteeship of the Governor for the benefit of the natives. No purpose can be served by denying that this would place very large powers in the hands of a single individual, even though the powers so conferred may only be exercised “in accordance with native law and custom.” It would beyond question give to the Governor powers which in the hands of some individuals might be exceedingly dangerous.

The majority of British Governors of Crown colonies could undoubtedly be allowed to supersede the paramount chiefs in every respect, providing the constitution of the Crown colonies permitted the bringing into full play of this one vital condition, viz. that his actions would always be “in accordance with native law and custom,” but Crown Colony government excludes at present any form of representative government which is the unwritten law of every African tribe.

Docemo, and his successor Prince Eleko, in Southern Nigeria, exacted, and exact to-day, an abject obeisance from their counsellors, which, if demanded by a British Governor, would secure his prompt recall. No chieftain, whether he be Mohammedan or Pagan, ever enters the presence of the native Council Chamber of Lagos without prostrating himself flat upon the ground and kissing it three times before receiving permission to sit down. Yet this paramount chief could not alienate a square yard of land without the sanction of his advisers.

No British Governor is at present in this position. In practice, his powers under Crown Colony government are in the ultimate resort absolute and uncontrolled, except by question, answer and debate, in the British House of Commons. When, however, the subject-matter reaches this stage, the man on the spot has probably already committed the Government, and the department is therefore bound to defend him.

Admittedly, somebody must protect the native from the wiles of unscrupulous white speculators, no less than from the subtle and treacherous conduct of individual natives. It is the duty of the Governor, as the responsible authority of the Crown and trustee of native welfare, to do this; let him by all means have power to prevent the alienation of land and to grant occupancy rights, but under a system of government which will give the natives themselves that which they possess by native law and custom—a collective voice in such decisions. It should not be beyond the wit of man to frame a system of governmental control over native tribal lands which would satisfy the great mass of the people, for let it never be forgotten that Africans in the aggregate are reasonable and by no means difficult to deal with along lines which are demonstrably equitable.