nineteenth and early twentieth century colonial legal thought all “undiscoveredland”, that is land were no Europeans were settled, were considered as
. It was immaterial if the native inhabitants of the territory occupied theland or not.While one may resent the arrogance of eighteenth century colonial mentality,it nevertheless makes sense to classify uninhabited land as a
, atleast in legal terms. However, to call land that has been inhabited for centuries a res nullius, makes no logical sense. To make sense of thisnonsense, jurists had to give the term a definition other than its clear, logicalmeaning. Initially the term was widened to include land not cultivated bynative inhabitants.
But even this definition did not fit the Namibian or theMarian people. In both cases the land was cultivated.
Other philosophers worked with the supremacy of the European nations over the territories of backward nations.
This theory was clothed in morality bylegal theorists who pointed to the benefits that Christianity, European cultureand civilization would bring to the backward people.
Already in the first half of the nineteenth century legal philosophersquestioned the morality of killing, massacring and destroying localcommunities and then call the land a
It is not possible toreconcile the moral ideals of Christianizing and bringing civilization to thebackward [people of Africa, with the vicious, sadistic edict of General vonTrotha.However, no matter how illogical the theory may sound, it gave rise to another legal fiction in British colonial law: All the colonial land acquired by subjects of colonial powers in Europe, belonged to the sovereign or Crown of the colonialpower. This possession, the courts further ruled, included both title andsovereign government. In other words, after colonization, in whatever form,
The Law of Nations
Bk I, pp 100-101. See also Castles, (1982),An
Australian Legal History,
pp 16-17, quoted in the Mabo case, point 33.
This argument is often raised in Namibia. See Horn, N.
Land Claims and History
,Unpublished lecture before the Seis Farmers Community, March 2003. However, while theland was not developed in a western sense of the word, the Herero and Nama people wereknown to be cattle farmers. They were extremely successful in it.
See Lindley, (1926)
The Acquisition and Government of Backward Territory inInternational Law
, Chs III and IV, quoted by Justice Brennan in
Mabo versus The State of Queensland
, supra, p 47.
Johnson v. McIntosh
(1823) 8 Wheat 543, at p 573
(21 US 240, at p253). ?/?
Blackstone, J (1830)
Commentaries on the Laws of England
, 17th ed. Bk II, ch 1, p 7-
"….so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far theseising (sic) on countries already peopled, and driving out or massacring theinnocent and defenceless natives, merely because they differed from their invadersin language, in religion, in customs, in government, or in colour; how far such aconduct was consonant to nature, to reason, or to Christianity, deserved well to beconsidered by those, who have rendered their names immortal by thus civilizing mankind".