journal Debates Conference

Elisabetta Fiocchi Malaspina

National, Colonial and International Entanglements in Nineteenth-Century Legal Discourses on Land Law and Land Registration Systems

1Entanglements are at the heart of the most recent debates in legal history, to be understood either as transnational phenomena closely connected to each other, without a real beginning or end, or as the product of a point of interweaving, or meeting, between different historical and geographical contexts and between synchronic or diachronic processes.

2The aim of the article is to present the preliminary results of an ongoing research project that intends to investigate the 19th century entanglements generated by: the different systems of land registration in some European States; the relationship between Europe and its African colonies with regard to the land registration systems; the international scientific collaborations to address issues that could arise at the time of the introduction in the colonial context-specific land registration system.

1. Entangled history: Europe and the colonies

3Transnational history, intercultural history, histoirecroisée, and entangled history, despite developing different approaches and methodologies1, as Pietro Costa argues, embrace the so-called “spatial turn”.2 This is meant as a “rediscovery” of space but also the time in their dynamic and structuring role, that brings out an infinity of entanglements3 and lays many possibilities of elaborating narratives and their methodology - especially in the history of international law and its entanglements with colonial law.4

4Entanglements are at the heart of the most recent debates in legal history, to be understood either as transnational phenomena closely connected to each other, without a real beginning or end5, or as the product of a point of interweaving, or meeting, between different historical and geographical contexts and between synchronic or diachronic processes.6

5The aim of the article is to present some preliminary results of an ongoing research project that intends to investigate the 19th-century entanglements generated by: the different systems of land registration in some European States during the nineteenth century; the relationship between Europe and its African colonies with regard to the land registration systems; the international scientific collaborations to address issues that could arise at the time of the introduction in the colonial context-specific land registration system.7

6It proposes to examine these legal mechanisms of colonial expansion and to outline the entangled discourses between the colonial powers and their implications on the legal concepts of land ownership in both a colonial and a European context.8 This paper will also analyse the creation of the Institut Colonial International in Brussels in 1894, whose aim was to promote the idea of a “rational and scientific colonisation”.9 It will also examine the procedure used by the Institut to discuss and establish universal principles on colonial law, taking as a case study land law and land registration systems.

2. Europe and the colonies: entanglements concerning land registration systems

7The problem of land laws, land register systems and the consequent choice of the best system to adopt were questions that dominated the discussion both in the European states and in their respective colonial possessions during the 19th and 20th centuries, inevitably involving domestic, colonial and international law.

8In the 19th century, private law codifications and the crystallisation of private property rights had been crucial to the discussion and adoption of specific land register systems. Concurrent to the nation-building process was the nationwide unification of law and establishing land register systems.10

9Land register systems and property were part of the legal discourse around achieving a certain level of security in the transfer of immovable goods. It was felt, without doubt, that protection of property lay at the core of good government, also affecting other fields of law, from administrative law to tax law. By protecting real property, states ensured a certain level of legal certainty between private individuals and encouraged private and economic exchange. The level of legal certainty regarding property transfer was guaranteed by the land register system and its different typologies.11 In this perspective, one of the fundamental principles of land register systems was the publicity principle, which had repercussions on the certainty of ownership, security of tenure and reduction of land disputes.

10Influenced by different cultural, political and economic developments, several land register systems emerged: particularly the land register systems established in France and Austria in the 19th century, and the Torrens system - established ex novo in the colony of South Australia in 1858 - serve as case studies for this analysis.

11While drafting the French Civil Code, discussions evolved between the members of the commission around the transcription system, a land register system that originated from legislation passed during the French Revolution and the coutumes de nantissement.12 For some of the drafters, transcription had to be considered and included in the Code concerning all transactions of immovable goods. At the same time, for other members, this was contrary to the idea of an absolute property right, crystallised in art. 544.13 The drafters of the code ultimately supported the consensualist doctrine of transfer and thus considered all transfers as exchanges.

12Under the Code, only certain legal transactions and certificates needed to be transcribed: it was mandatory to transcribe donations, for example, according to art. 939 ff., entailed estates substitutions (art. 1069) and petitions of restitution (art. 958 ff).14 However, as Gaetano Petrelli has pointed out, the lack of a homogenous discipline concerning transcription led to criticism of the Code itself, accompanied by severe repercussions on finance sectors and credit financing.15

13To overcome this problematic situation and uncertainty of legal transfers, detailed provisions regulating the transcription system were issued, years later, with the Loi du 23 mars 1855 sur la transcription en matière hypothécaire, introducing the transcription system “in public registers of property as a whole”.16 This law disciplined the “transcription of mortgage, also providing for the recordation of all transfers of land and vesting all property rights and interest on land”.17

14The law of 1855 extended transcription to transfers of ownership, but registering real property was not deemed a legal prerequisite for the transfer of ownership. The transfer of ownership was by mere agreement. Therefore, the transcription system had no probative force. Nonetheless, the register’s purpose was to inform about the legal status of immovable property. Registration was personal. Consequently, entries in the register were listed by the name of the owner and not by the immovable property itself (as, for example, in the Grundbuch).18

15Some years later, in a completely different geographical, political context, another “model” of codification was enacted, legislating a different land registration system. A real property system, listing according to plots of land and citing their boundaries, existed in the Austrian territories from the 15th century.19 The Allgemeines Bürgerliches Gesetzbuch (ABGB) unified Austrian substantive property laws and entered into force in 1812. It established an Austrian land register system throughout all territories of the Empire, the so-called Grundbuch system, under which title registration constituted the property as a right in rem. Registration was therefore a necessary condition for the transfer of ownership, as stated in § 321 of the Austrian civil code: “Wo so genannte Landtafeln, Stadt- oder Grundbücher, oder andere dergleichen öffentliche Register eingeführt sind, wird der rechtmäßige Besitz eines dinglichen Rechtes auf unbewegliche Sachen nur durch die ordentliche Eintragung in diese öffentlichen Bücher erlangt”.20 Detailed legislation regulating the harmonisation of the discipline of the Grundbuch in all the territories of the Empire was issued only in 1871.21

16Concerning the transfer of ownership, the Grundbuch and the French transcription systems are significantly distinct. French transcription followed the solo consensu, in which the mere conclusion of property sale transfers the property. The subsequent registration served only to protect the original vendor from third-party purchasers in good faith, whereas in Austria transfer of ownership was not valid until the transaction was registered in the Grundbuch. Thus, the contract of sale and the transfer of ownership were conceptually distinct in the Grundbuch system. The registration, therefore, had a constitutive effect.

17Transcription and Grundbuch were two parallel systems functioning within property registration but resulting from two different legal concepts. Grundbuch differs from transcription in some crucial aspects: the implementation of the registration system, which is property-based instead of subject-based; the constitutive value attributed to registration; the registration principle, which states that an inter vivos transaction alone could not be considered a transfer or lead to the establishment of property rights. Other features of the Grundbuch were a judicial review of the formal and substantive requirements of the titles and strict compliance with the principle of continuity since the registration of an item could only be attributed to the person referred to as the owner in the land register.22

18A paradigmatic example of a register system ex novo in a colonial context was the Torrens System, established in the British colony of South Australia in 1858 and developed by Australian politician Sir Robert Torrens. Inspired by the Merchant Shipping Act 1854, he largely reinterpreted and adapted its principles on the registration of ships and charges to the context of colonial land tenure. He also drew from the land register systems of the German cities of Hamburg, Lübeck and Bremen. His Real Property Act 1858 introduced mandatory registration for all immovable property. As in the Austrian land register system, all changes of land rights had to be registered. Consequently, a real property system was established, assigning to every particular plot a parcel identification number.23

19Furthermore, entry into the register was a constitutive element for the conveyance of property. The owner held a certificate of title; property could be conveyed by transfer of the title deeds, and also title deeds had probative value24. The validity of the title deeds was supported by the government records of all land titles. As a result, the purchaser’s title upon registration was indefeasible and free from any defects affecting the vendor’s title.25 For the rare cases of fraud in which the owner suffered financial loss due to an error in the system, an insurance fund was set up to compensate the owner for his loss. Such guaranteed and marketable titles facilitated the conveyance of real property, enabling the property to be traded like commodities.26

20The concept of establishing a land register system ex novo in a colonial environment, through which the colonisers could exploit lands and enable fast circulation of property rights through title certificates, was exceptionally well received in many other colonies. As a result, the European colonial states decided to introduce the Torrens system in many of their African colonies between the end of the 19th century and the beginning of the 20th century and many colonies of the East.27

3. Different entangled choices on land registration in colonial space

21The problem of land registration and the consequent choice of the best system to adopt became a major issue in the nineteenth century. The affirmation of the codes, the technicality achieved by the enactment of certain special laws, as we have seen, during the mid-nineteenth century in France and Belgium with regard to transcription, the measures and rules to be observed for the establishment of land registers in the Austro-Hungarian Empire in 1871, the introduction of the Torrens system in the colony of South Australia, the debates emerging in the Ottoman Empire for a radical reform of the land regime,28 but also in Latin American countries, such as Argentina,29 are a privileged observation point for addressing and developing research from a transnational and global perspective.

22In colonial possessions, questions of ownership, property and land registration and the type of system to be set up were central to the management of the territory and to guarantee certainty in the transfer of property to those who for various reasons settled in the colony, such as nationals of the mother country or from other European states, or capital companies interested in investing.

23At the end of the 19th century, the spread of the Grundbuch, transcription and Torrens systems in the African colonies resulted in contamination and transfer of legal norms.30

24In the French colonies in Tunisia (1885-1892), the decree of 1 July 1885 introduced a land register system based on the Torrens system but also influenced by the French transcription and the German Grundbuch system.31 This law of 1885 had some unique features: the “publicité” was “réelle”, which meant that the land, not the owner, was registered (art. 18). The “immatriculation”, or registration of land, was “facultative” (Art. 22). Concerning any “oppositions à l’immatriculation” a mixed land tribunal (Tribunal MixteImmobilier) was entitled to establish the ownership of contested land (Art. 33 ff.) and at the same time an insurance fund was regulated: “fonds d’assurance destine à indemniser celui qui se trouvait lésé par l’immatriculation d’un immeuble ou par l’inscription d’un droit reel” (Art. 39).32

25With the promulgation of the law of 1 July 1885, the legal consistency of property was definitively and unassailably established on the date of the applicant’s application. In fact, land registration systems based on the Australian Torrens ensured its constitutive essence for certain acts or contracts and the publicity of certain legal facts towards third parties. In addition, through this legislative measure, all matters relating to registered buildings would fall under the exclusive jurisdiction of the French courts, which would also judge disputes over boundaries and easements.33

26It was Paul Cambon himself, Résident Général of the French Republic, who, in his preliminary report on the law, outlined the “success” of the Torrens system and its advantages, identifying it as the result not of improvised legislation but of the “l’adaptation ingénieuse aux besoins de pays neufs, de principes hypothécaires appliqués depuis plusieurs siécles en Allemagne et que les législations européennes les plus récentes tendent de plus en plus à s’approprier”.34

27The legislation adopted in Tunisia and the Torrens system served as a model also for the Congo Free State (1885-1908). Relevance in this context is the Ordonnance of 1 July 1885. The government established the concept of state land, starting a consequent process of occupation based on legal title. As Johan Pottier pointed out, “European ideas of legal tenure, assumed to be universal, became central to the land laws of every colony. In particular, the colonial authorities assumed that the European concept of proprietary ownership covered the full range of customary land rights in Africa”.35Article 1 of the Ordonnance of July 1885 stated: “A partir de la présente proclamation, aucun contrat ni convention passé avec des indigènes pour l’occupation, à un titre quelconque, de parties du sol, ne sera reconnu par le gouvernement et ne sera protégé par lui, à moins que le contrat ou la convention ne soit fait à l’intervention de l’officier public commis par l’administrateur général et d’après les règles que ce dernier tracera dans chaque cas particulier”. Furthermore, Article 2 proclaimed: “Nul n’a le droit d’occuper sans titre des terres vacantes, ni de déposséder les indigènes des terres qu’ils occupent; les terres vacantes doivent être considérées comme appartenant à l’Etat”.36 The Ordonnance represents the first legal instrument for the regulation of State land and it laid the foundations of subsequent legislation concerning land tenure and the introduction of the Torrens system in 1889. This choice was also confirmed by the Belgian government in Congo in 1920.37 While in Belgium, the French transcription system was implemented in 1851, it is interesting to note that in their colony of Congo, the Belgian government opted for the Torrens system and implemented it by a decree dated 6 February 1920. The decision to establish the Torrens system was an attempt at finding a compromise between guaranteeing the boundaries of “indigenous” land and protecting the interests of colonial landowners.38 The same Decree entered into force in 1927 in Ruanda-Urundi. The legislation established that the “land title of the registered proprietor was paramount and indefeasible unless fraud had been committed. Furthermore, a person dealing with a registered proprietor need not be concerned about the validity of such title - he could rely on the Certificate Title as conclusive”.39

28In Eritrea, the Italian government introduced the Grundbuch under the Royal Decree of 1909.40 Article 164 included the establishment of a probative land register system. Article 206 specified that “registration in the particular land registers is the only legal statement of rights over property and their transfer”. Registration had to “be based on a legal document valid for the purchase and transfer of rights over properties according to the law applicable in the colony” (article 207). According to the land register, registration of the transfer of a right could not be done if the transferor was not the holder of that right (article 208).41 According to article 209, any concession deed had to be noted in the land register within sixty days from the date of its stipulation, under penalty of cancellation of the same. All transfer deeds or declarations concerning ownership of property and any other right over property had to be registered as well.42Subsequently, Decree no. 1247 of 21 November 1918 established a title registration office in Asmara.43

29The decisions taken in Eritrea also had an impact on property ownership and registration mechanisms in the Italian peninsula, which had chosen transcription as the system of land registration. The Italian case is very interesting because what was tried to be implemented in Eritrea, through the establishment of a probative land register, is exactly what had been sought to be introduced in the Italian peninsula for years, but without success. In Eritrea, a sort of experimentation was carried out with the parliamentary, governmental and political demands of the Kingdom of Italy: a way of seeing, analysing and understanding, starting from the colonial context, whether a change in the Italian peninsula was possible and above all feasible. The modification of the cadastral system and of the transcription, however, was always one of the central issues addressed by the Government and the Parliament, which set up commissions in order to draw up several reform projects, unfortunately without success44.

4. Entangled national and international orders

30The introduction of a specific land registration system into a colony and the reason for its choice were thoroughly debated by the Institut Colonial International. It was founded in Brussels in 1894 as an independent institution, whose aim was to engage and promote transnational exchanges between scholars, politicians, colonial administrators and experts.45 Among the founding member, there were: Donald James Mackay, Lord Reay, undersecretary of State for the Indies between 1894 and 1895 and Governor of Bombay from 1885 to 1890;46 Camille Janssen, honorary Governor-General of the Congo Free State and Secretary-General of the Institut Colonial International;47 Major Albert Thys, Leopold II’s orderly officer and founder of the Compagnie du Congo pour le Commerce et l’Industrie.48 Other founding members were the French economist and Finance Minister (from 1872 to 1883) Léon Say;49 Joseph Chailley-Bert, a key figure in French colonialism and General-Secretary of the French Colonial Union for more than twenty years;50 Fransen van de Putte, Prime Minister of the Netherlands in 1866 and ancienministre of colonial affairs,51 and lastly the professor of colonial law at the University of Leiden, Pieter van der Lith, who had been among the authors of the Revue colonialeinternationale published in Amsterdam from 1885.52

31The Institut focused on specific topics relevant to the colonial context: regulation of labour, tropical hygiene, acclimatisation of Europeans to colonial environments, and colonial monetary matters, as well as land law and land registration systems. Ulrike Lindner has highlighted the prevalence of, frequent and common cooperation in different fields of international and colonial law at the end of the 19th century. The work and the network created by the Institut “seem to have reached a surprising level of institutionalised exchange”.53

32Legal regulations were central to the Institut’s research, something also confirmed by the background of the members, most of whom were lawyers or pursuing a legal profession.54

33It is interesting to notice that, despite the publication of numerous studies on, for example, “l’influence du climat sur la colonisation” (1894), the debate “sur l’enseignement colonial” (1900) or “sur le régime forestier aux colonies” (1912) In 1911, the Institut published the Recueil international de législationcoloniale, a collection of laws intended, as the Institut’s founders had hoped, to promote legal debates, discussions and the prospects of specific legislation, decrees or norms to be adapted and used in very different colonial systems. Examples of this “borrowing” and cross-pollination were the application in African territories of the Torrens system, and of “typically European” land register systems, such as the Grundbuch or transcription.

34Between 1898 and 1904, the Institut Colonial International published several volumes of detailed reports on how land ownership was regulated and introduced a specific real estate registration system within the various colonies of the different European countries. The ambitious objective was to map the whole “colonial world”, giving the broadest possible picture, by collecting all legislations concerning the regulation of land law in the colonies. The first volume, published in 1898, was dedicated to British India and the German colonies; a second volume, issued the following year, focused on the Congo Free State and the French colonies; a third volume, published in the same year, dealt with the Philippines, Eritrea and Tunisia; a fourth, with the Dutch East Indies; the fifth volume in 1902 collected results from Laos, Sierra Leone, Gambia, Northern Dutch Borneo, Cape of Good Hope, Rhodesia, Botswana, Solomon Islands and Fiji.55

35In providing data for these reports, the colonial administrations had to answer a series of exact questions to be analysed by the members of the Institut. Furthermore, the construction of a common platform to discuss specific colonial issues, such as land ownership, is characterised by questions, which take on the value of “universal” questions.56 Most states with colonial possessions had to deal with various difficulties in managing land belonging to the government, indigenous people and private individuals or commercial companies.

36The Institut Colonial International instructed Günther Kurt Anton, professor in Jena,57 to provide a comprehensive overview of the colonial legislations collected in the volumes, inviting him to present a final report in the occasion of Institut’s conference, that took place in London in May 1903, and then to attend the discussions among the members on land law and land registration in the colonies.

37The outcome of the conference was the publication of Anton’s Le Régimefoncier aux Colonies in 1904 and it constitutes the last volume published within the Institut Colonial International series on land law. The volume explained from the outset that the systematic and comparative study of land regimes, highlighting their diversity, would contribute significantly to the “building of a unified theory”.58

38In particular, the problem that the members of the Institute had to face was which system of land registration (transcription, Grundbuch, Torrens system) was preferred in the colonial context.

39Members of the Institut Colonial International were called upon to discuss their colonial experiences and, at the 1903 London session, Camille Janssen reported on the legislative and political techniques implemented in the independent state of Congo, of which he was governor from 1886 to 1892; Donald James Mackay reported on India, while Chailley-Bert on Indochina and Van Deventer on the Dutch East Indies.59

40In particular, Janssen his first-hand experience in the Congo Free State for over thirteen years: “et nous avons pu constater non seulement les facilités qu’il accorde à la transmission de tous les droits immobiliers, mais encore les garanties dont il entoure ces transmissions sans qu’on soit obligé de s’astreindre à des formalités surannées”. And he concluded by confirming the fast circulation of property transfer as a strength of the Australian system: “Dans le système Torrens on peut dire qu’en matière immobilière le titre de propriété est quasi aussi aisément transmissible qu’une simple lettre de change en matière mobilière”60.

41Among the speeches by the members of the Institut Colonial International, Martens’ was the most interesting. The Russian jurist Friedrich Fromhold von Martens, member of the Institut Colonial International as well as of the Institut de Droit International, compared laws and decrees concerning land law and land register systems in the colonies and emphasised the need to formulate “universal principles to be adopted in the different colonial experiences”.61 Martens’ speech in fact gives a complete understanding of the role played by the Institut Colonial International for colonial science. He energetically urged his colleagues that the need to discuss different colonial legislation should not be seen as a purely scientific exercise. All meetings of the Institut had to lead to results, or better still, to the elaboration of principles that could be adopted in the different colonial contexts. “Je crois qu'il ne suffit pas d'obtenir des échanges d'idées sur les différentes expériences, les différentes conditions, les différents systèmes, mais qu'il est absolument nécessaire d'obtenir et établir des principes qui forcent l'unité dans la législation coloniale et le système foncier à appliquer aux colonies”.62

5. Conclusion

42This article focused on the history of property registration in the nineteenth century by considering the entanglements that occurred between the different systems of land registration in some European States during the nineteenth century; the relationship between Europe and its African colonies with regard to the land registration systems; the international scientific collaborations to address issues that could arise at the time of the introduction in the colonial context-specific land registration system.

43Nineteenth-century discussions addressed the issue of land registration systems in order to provide certainty and security for real estate transfers not only in Europe but also in colonial possessions, where the creation of a new land registration system was possible, such as the Torrens system in South Australia introduced in 1858.

44Furthermore, some examples, in which European systems of land ownership were introduced into the colonial context, were illustrated. These modified land register systems, to a certain extent, facilitated the expropriation of land by colonial powers. But there were more than economic interests at stake. The colonies also served as an experimental space, in which European colonial powers acquired knowledge on several land register systems under different circumstances.

45The Institut Colonial International, founded in Bruselles 1894, encouraged the exchange of ideas about the various colonial experiences that states had collected in their particular situations, to create common and universal principles. International law and domestic law, or national law concerning land register systems and land law were part of the colonial discourse as it endeavoured to create and adopt universal principles of law, trying to establish a platform of common dialogue, with common premises, concerning different colonies, different colonial experiences and ultimately different cultural, social and political contexts.

46The international exchange of principles of colonial law presupposed the definition of the general legal principles that Europe sought and established between the end of the 19th and the beginning of the 20th century. Thus, space defined as private and public space, is determined by the choice of register systems introduced in Europe and the colonies.

47The colonial context formed and traced the international space where a plurality of actors operated within a plurality of norms. This international space was characterised not only by its dynamics but also by its intrinsic diversity of forms and models, created with the common aim of guaranteeing the transfer of property rights. In this international space, economic, legal and political interests intertwined and formed an inextricable whole, “never finished; never closed”.63

Date added Dec. 12, 2022
© 2022 fhi
ISSN: 1860-5605
First publication
Dec. 12, 2022


  • citation suggestion Elisabetta Fiocchi Malaspina, National, Colonial and International Entanglements in Nineteenth-Century Legal Discourses on Land Law and Land Registration Systems (Dec. 12, 2022), in forum historiae iuris, https://forhistiur.net2022-12-fiocchi-malaspina