This article belongs to the debate » Restitution, Colonialism and the Courts
02 December 2022

Possessions, Spoils of War, Belongings

What Museum Archives Tell us About the (Il)legality of the Plunder of African Property

“In normal circumstances, [Africans] can hardly be persuaded
to give
[their possessions] away, even less to give away old masks and sacred objects.
We even have to bargain for a long time for items of everyday life and they can only be acquired in exchange for lavish gifts. Only in times of war or in the case of great expeditions are conditions more favourable, because power can exert a certain pressure.”

F. G. Umlauff

Addressing colonial injustices by claiming restitution of artefacts and other belongings1) before German courts is undeniably a legal challenge for all stakeholders.2) As a shield against (potential) legal claims, museums, state authorities and some legal scholars  have argued that there is no legal obligation for restitution of such belongings.3) Based on the stipulation that “colonial law has to be applied, even if it is no longer compatible with today’s views on law and justice”,4) this line of argument assumes that the acquisition of the possessions of colonized people by Europeans and subsequent transactions were generally considered lawful in the nineteenth century.5)

In this contribution, we question this assumption. We let the archives speak for themselves and invite readers to reassess critically the voices of European agents at the time. Letters and documents from the late nineteenth and early twentieth century demonstrate that museum staff, art dealers and colonial officers were well-aware that the taking of possession mostly had to take place by means of violence or duress. The case of German West African colonies (Cameroon and German Togoland) will be exemplary here.

Voices in the archives as constructive interpretations of colonial law

Before we render the voices of the colonizers, we argue on a conceptual level that those voices should be heard and understood as interpretations of colonial law. The recognition of Indigenous possession and ownership by Europeans and their acknowledgement of their lack of proprietary rights to Indigenous belongings reflect an “interpretative attitude” that was “constitutive” of law.6) In their professional activities, museum staff, art dealers and colonial officers interpreted the “legal world” they were living in and thereby participated in constructing it.7) Their writings are therefore, if not sources of law in a strict sense, historical sources for making sense of past colonial law, or rather for complicating it and questioning the enduring “semantic authority” of the “dominant” view at the time.8)

Present-day lawyers might not feel confident with using historical sources as constructive interpretations of colonial law, but to cling onto the dogma of “merely” applying black letter law “as it was” is to cling onto a myth. It implies that there was a pre-determined legal outcome that followed positive colonial law, unjust law, but still law. However, there were often no clear-cut legal rules9) and the question concerning the acquisition of Indigenous belongings was such a legal “grey zone”.10)

In the lack of applicable legislation or case law, the claim that the acquisition of Indigenous belongings by means of violence or duress and/or subsequent transactions were legal under positive German/colonial law is ahistorical. It presupposes that such forceful acquisitions and transactions would have been considered legal, had such question been in front of a German/colonial court. In the guidelines on colonial collections issued by the German Museums Association, legal scholars Carola Thielecke and Michael Geisdorf specify that, “even in the colonial period, a theft did not constitute the acquisition of ownership […]. In contrast, it can be assumed that appropriations by public authorities were always covered by the formal colonial law applicable at that time.”11)

It is entirely unclear which “formal colonial law” could have legalized the acquisition of belongings of which Europeans took possession often under the exertion of power or duress (at least in nineteenth and early twentieth century Cameroon and German Togoland) for three obvious reasons: first, under German/Prussian law, it was indeed impossible to acquire ownership from a non-owner until the introduction of the BGB in 1900.12) Further, after 1900 under §932 BGB, the one acquiring property had to be in good faith concerning the property rights of the seller. Finally, under §935, the acquisition in good faith was barred when the original owner lost possession involuntarily (“abhanden kommen”).13)

The line of argument presented by the German Museum Association is therefore exemplary for the counter-factual character of the strategy of “merely applying the law as it was”. Lacking black letter law or any other formal decision, this line of argument imagines how colonial law would have been developed further, in deviation from German law also applicable in the colonies.14)

This operation is not only normatively questionable, as it extends the arbitrariness of colonial law into the present, but it is often also speculative.15) For a grounded claim that colonial law is merely applied “as it was”, the present-day lawyer would – in the absence of any positive law – need to rely on legal writings and other opinion juris, thus on a similar conception of constructive interpretations of law as we apply. As you will see in the following section, though, our interpreters of the law did not consider violent appropriation and commodification of African belongings as fully right, righteous, or legal. Rather, they had their reserves on its legality, but carried on anyway.

Acknowledgement of African possession

Museums and other institutions of knowledge in colonial metropoles explicitly commissioned the extraction of cultural heritage, natural specimens, and ancestral remains. In 1891 in Germany, the Berlin Ethnological Museum became the central repository for so-called “ethnographic” and “anthropological” collections acquired by the military during expeditions or by colonial administrators in their districts. In 1897, ethnologist Heinrich Seidel published instructions for ethnographic collecting in German Togoland. In this text, he explicitly asks officers and agents of the colonial state to send handmade weapons, royal sceptres, jewellery, music instruments, but also skeletal remains, complete hairstyles, including scalps, pieces of skin with tattoos or scars and even genitalia.

Correspondences between colonial agents on the ground and museums reveal that anthropologists knew that a large part of their collections had been taken away forcibly, often through plunder. In 1900, the head of the Sokodé station in northern Togo, Hermann Kersting, explicitly stated in a letter to the assistant director of the Berlin Museum für Völkerkunde, Felix von Luschan, that some of the artefacts that he had sent to the museum had been “looted from the big village Napári during a small war that [he] led in Dagómba [Dagbon]”.16) His colleague, the former chief of the colonial police troops in German Togoland, Valentin von Massow, also admitted the following in a letter from 1899 sent to the museum:

During my three years of uninterrupted activity here, I have been able to collect what I possess mostly on swift war campaigns and expeditions; it is therefore war booty. Because of that, what I have collected is of low ethnographic value. As a soldier by profession, my war booty is a more valuable souvenir/memory to me than it is to collectors who collect only for scientific purposes.17)

Herein, Massow explicitly refused to consider the African belongings he had sent to the museum as ethnographic material, despite using the verb “to collect”. In his terms, these so-called “collections” are both spoils of war and his personal souvenirs. They will neither serve the advancement of science, nor the representation of African people to the broader public. They are the material remnants of colonial campaigns and asymmetrical wars. Interestingly, in order to retain an item in Massow’s collection, the museum in Berlin had to produce an expert’s report to justify that this item was valuable to ethnographic science. At the time, war trophies indeed belonged in the armory (Zeughaus), and not in the museum.18)

The instructions abovementioned and additional letters also demonstrate that the museum encouraged this plunder of possessions, without commenting on its (il)legality. In the period between Massow and Kersting’s letters, Luschan had received photographs from the Cameroonian grassfields. After browsing these snapshots, he wrote in a letter to the Imperial Governor of the colony:

Photographs show that Chief Fontien of the Bangwa possesses [“besitzt”] a very odd house with pillars, the like of which remains completely unknown in West Africa until today […]. In the event of a punitive expedition being undertaken, the Royal Museum would have tremendous interest in ensuring that this house is not set on fire. In the interest of the scientific community, the museum expresses its urgent desire to see that at least the pillars and long shafts carved with figures be preserved and brought to Berlin. The Royal Museum would also be grateful if the chief’s large signal and dance drums, as well as other carvings, “fetishes” etc. in his possession [“in seinem Besitze”], could be sent to us rather than being destroyed (emphasis added by the authors).19)

This document explicitly attests to the active and premeditated dispossession of African communities. In addition, the wording used by the museum anthropologist in unequivocal: the fon was recognized as the legitimate owner of the artefacts that Luschan coveted. After a German expedition was dispatched to Fontem and brutally defeated the Bangwa, the officer in charge of the expedition, Hautpmann von Besser, burnt down the house and the fon’s possessions. Unlike many of his fellow officers, von Besser was not interested in sending African cultural heritage to the museum in Berlin.20)

The solution against African resistance? Plunder.

In 1907, the art dealer Adolf Diehl took photos of ornamented stones in the Cameroonian grasslands and sent them to the former director of the Leipzig Museum für Völkerkunde. In a letter accompanying these photos, he wrote:

Given the unfriendly attitude of the locals, I had to be very careful when taking photographs, for I was observed with scrutiny. […] Should those stones be of particular value to you, then I would try to take them.21)

This quote demonstrates that even taking photographs of cultural heritage was a challenge for Europeans. Equally, it reveals that art dealers offered their service to museums, who could then “order” particular objects from them. It is obvious that Diehl was far from assuming that he had any sort of moral or legal right to the stones. Instead, he indicated that he would have “to try”, implying that there could be resistance.

Another example attests further to mechanisms of violent dispossession, but also to the resistance of African communities against the appropriation of their belongings. J. F. G. Umlauff, one of the most prolific sellers of African art, weapons and belongings in Germany in the early twentieth century, approached the Berlin Museum für Völkerkunde in 1914 to sell parts of his Cameroon collection. In an appendix to his catalogue, Umlauff wrote:

When you consider the rich material of idols, masks, carvings, drums, weapons, household utensils, etc., you might be led to believe that such things are easy to obtain [zu erlangen und zu beschaffen]. In reality, the situation is quite different. The transport of such large pieces as door posts, ancestral figures, drums etc. is quite difficult and extremely expensive. Besides, the [locals] are very attached to their things and especially to old, inherited family pieces. In normal circumstances, they can hardly be persuaded to give them away, even less to give away old masks and sacred objects. We even have to bargain for a long time for items of everyday life and they can only be acquired in exchange for lavish gifts. Only in times of war or in the case of great expeditions are conditions more favourable, because power can exert a certain pressure.22)

Here, the art dealer who profited from the plight of non-European people openly admits that Africans owned and held on to their belongings, and that violence was the best modus operandi for getting hold of the most prized objects such as royal insignia. This concurs with a text from the year 1908, in which colonial officer Karl Adametz also confessed that violence yielded better results than bargaining for African belongings:

Since I have been working in the Bamenda district, I have come to the conclusion that collecting on the occasion of a warlike action produces more complete and original results than the purchase of goods.23)

This is evidence that Africans did not sell or traded their cultural heritage as easily as the Europeans would have