Government, Property, and Inheritance
Government and Justice.
There is, as might be expected, no organised system of government
among the Mafulu, nor is there any official administration of justice.
As regards government, the chiefs in informal consultation with the
sub-chiefs and prominent personages deal with important questions
affecting the community or clan or village as a whole, such as the
holding of big feasts and important ceremonies, the migrations or
splitting-up or amalgamation of villages, and warlike operations; but
events of this character are not frequent. And as to justice, neither
the chiefs nor any other persons have any official duties of settling
personal disputes or trying or punishing wrongdoers. The active
functions of the chiefs, in fact, appear to be largely ceremonial.
Concerning the question of justice, it would seem, indeed, that
a judicial system is hardly requisite. Personal disputes between
members of a village or clan, or even of a community, on such possible
subjects as inheritance, boundary, ownership of property, trespass
and the like, and wrongful acts within the village or the community,
are exceedingly rare, except as regards adultery and wounding and
killing cases arising from acts of adultery, which are more common.
There are certain things which from immemorial custom are regarded
as being wrong, and appropriate punishments for which are generally
recognised, especially stealing, wounding, killing and adultery; but
the punishment for these is administered by the injured parties and
their friends, favoured and supported by public opinion, and often,
where the offender belongs to another clan, actively helped by the
whole clan of the injured parties.
The penalty for stealing is the return or replacement of the article
stolen; but stealing within the community, and perhaps even more so
within the clan or village, is regarded as such a disgraceful offence,
more so, I believe, than either killing or adultery, that its mere
discovery involves a distressing punishment to the offender. As regards
wounding and killing, the recognised rule is blood for blood, and a
life for a life. The recognised code for adultery will be stated in
the chapter on matrimonial matters.
Any retribution for a serious offence committed by someone outside
the clan of the person injured is often directed, not only against
the offender himself, but against his whole clan.
There is a method of discovering the whereabouts of a stolen article,
and the identity of the thief, through the medium of a man who is
believed to have special powers of ascertaining them. This man takes
one of the large broad single-shell arm ornaments, which he places on
its edge on the ground, and one of the pig-bone implements already
described, which he places standing on its point upon the convex
surface of the shell. To make the implement stand in this way he puts
on the point, and makes to adhere to the shell a small piece of wild
bees' wax, this being done, I was told, surreptitiously, though I
cannot say to what extent the people are deceived by the dodge, or
are aware of it. The implement stands on the shell for a few seconds,
after which it falls down. Previously to doing this he has told his
client of certain possible directions in which the implement may fall,
and intimated that, whichever that may be, it will be the direction
in which the lost article must be sought. He has also given certain
alternative names of possible culprits, one of such names being
associated with each of the alternative directions of falling. The
fall of the implement thus indicates the quarter in which the lost
article may be found and the name of the thief. Father Clauser saw
this performance enacted in connection with a pig which had been
stolen from a chief; the falling bone successfully pointed to the
direction in which the pig was afterwards found, and there was no
doubt that the alleged thief was in fact the true culprit. Presumably
the operator makes private enquiries before trying his experiment,
and knows how to control the fall of the implement.
Property and Inheritance.
The property of a Mafulu native may be classified as being (1) his
movable belongings, such as clothing, ornaments, implements and pigs;
(2) his house in the village; (3) his bush land; (4) his gardens.
The movable belongings are, of course, his own absolute property.
The village house is also his own; but this does not include the site
of that house, which continues to be the property of the village. Every
grown-up male inhabitant of the village has the right to build for
himself one house in that village; he is not entitled to have more than
one there, but he may have a house in each of two or more villages,
and a chief or very important man is allowed two or three houses in
the same village. On a house being pulled down and not rebuilt, or
being abandoned and left to decay, the site reverts to the village,
and another person may build a house upon it. [65] Houses are never
sold, but the ordinary life of a house is only a few years.
The man's bush land is his own property, and his ownership includes
all trees and growth which may be upon it, and which no other man may
cut down, but it does not include game, this being the common property
of the community; and any member of the community is entitled to pass
over the land, hunt on it, and fish in streams passing through it,
as he pleases. The whole of the bush land of the community belongs
in separate portions to different owners, one man sometimes owning
two or more of such portions; and it is most remarkable that, though
there are apparently no artificial boundary marks between the various
portions, these boundaries are, somehow or other, known and respected,
and disputes with reference to them are practically unknown. How the
original allocations and allotments of land have been made does not
appear to be known to the people themselves.
The man's garden plot or plots are also his own, having been cleared
by him or some predecessor of his out of his or that predecessor's
own bush land; and he may build in his gardens as many houses as
he pleases. His ownership of his garden plot is more exclusive than
is that of his bush land, as other people are not entitled to pass
over it. But on the other hand, if he abandons the garden, and nature
again overruns it with growth--a process which takes place with great
rapidity--it ceases to be his garden, and reverts to, and becomes
absorbed in, the portion of the bush out of which it had been cleared;
and if, as it may be, he is not the sole owner of that portion of bush,
he loses his exclusive right to the land, which as a garden had been
his own sole property.
No man can sell or exchange either his bush land or his garden plots,
and changes in their ownership therefore only arise through death
and inheritance. This statement, however, is, I think, subject to the
qualification that an owner of bush-land will sometimes allow his son
or other male descendant to clear and make for himself a garden in it;
but I am not sure as to the point.
On a man's death his widow, if any, does not inherit any portion of his
property, either movable or immovable, but three things are allowed
to her. She is generally allowed one pig, which will be required by
her at a later date for the ceremony of the removal of her mourning;
and she shares with her husband's children, or, if there be none,
she has the sole right to, the then current season's crops and fruit
resulting from the planting effected by her late husband and herself,
though this is a right which, after her return home to her own people,
she would not continue to exercise; and she is allowed to continue to
occupy her husband's house, but this latter privilege terminates at
the mourning removal ceremony, when the house will be pulled down, and
its site will revert to the village, and she will probably return to
her own people in her own village, if she has not done so previously.
Subject to these three allowances, I may dismiss the widow entirely
in dealing with the law of inheritance. I may also dismiss the
man's female children by saying that, if there be male children, the
females do not share at all in the inheritance, and even if there be
no male children the female children will only perhaps be allowed,
apparently rather as a matter of grace than of right, to share in
his movable effects; and that, subject to this, everything goes to
the man's male relatives. I may also eliminate the man's pigs, as
apparently any pigs he has, other than that retained for his widow,
are killed at his funeral.
On the death of an owner everything he possesses goes, except as above
mentioned, to his sons. They divide the movable things between them,
but the bush and garden land pass to them jointly, and there is no
process by which either of these can be divided and portioned among
them. The male children of a deceased son, and the male children of
any deceased male child of that deceased son (and so on for subsequent
generations), inherit between them in lieu of that son. There does not
appear, however, to be any idea in the Mafulu mind of each son of the
deceased owner being entitled to a specific equal fractional share,
or of the descendants of a deceased son of that owner being between
them only entitled to one share, _per stirpes_. They apparently do
not get beyond the general idea that these people, whoever they may
be and to whatever generations they may belong, become the owners of
the property.
They take possession of and cultivate the existing gardens as joint
property. Any one of them will be allowed to clear some of their
portion of bush, and fence it, and plant it as a garden, and it will
then become the sole property of that one man, and if he dies it
will pass as his own property to his own heirs; though, as before
stated, if he abandons it, and lets it be swallowed up by the bush,
it will cease to be his own garden, and will again be included in the
family's joint portion of bush land, and on his death his heirs will
only come into the joint bush ownership.
In this way the ownership of a garden must often be in several persons,
with no well-defined rights _inter se_, and the general ownership of
bush land which has never been cleared, or which, having been cleared,
has been abandoned and reverted, must often be in a very large number
of persons without defined rights. In fact, so far as bush land is
concerned, one only has to remember that on the death of an owner it
passes into joint ownership of children--that on the deaths of these
children fresh groups of persons come into the joint ownership--that
this may go on indefinitely, generation after generation--that bush,
having once got into the ownership of many people, is hardly likely
to again fall by descents into a single ownership--that indeed the
tendency must be for the number of owners of any one portion of bush
steadily to increase--and finally that there is no way by which the
extensively divided ownership can be terminated by either partition
or alienation--and one then realises the extraordinary complications
of family ownership of bush land which must commonly exist.
As regards both movable effects and gardens and bush land there must
be endless occasions for dispute. How are the movable things to be
divided among the inheritors, and, in particular, who is to take
perhaps one valuable article, which may be worth all the rest put
together? How are questions of doubtful claims to heirship to bush
and garden land to be determined? How is the joint ownership of the
gardens to be dealt with, and how is the work there to be apportioned,
and the products of the gardens divided? How are the mutual rights
of the bush land to be regulated, and especially what is to happen
if each of two or more joint owners desires to clear and allocate
to himself as a garden, a specially eligible piece of bush? Such
situations in England would bristle with lawsuits, and I tried to
find out how these questions were actually dealt with by the Mafulu;
but there is no judicial system there, and the only answer I could
get was that in these matters, as in the case of inter-community bush
boundaries and personal bush boundaries, disputes were practically
unknown; though it was pointed out to me, as regards bush land,
that the amount of it belonging to any one family was usually so
large that crowding out could hardly arise.
If a man dies without male descendants in the male line, then, subject
perhaps to some sort of claim of his daughters, if any, to share in
his movable effects, his property goes to his nearest male relative
or relatives in the male line. This would primarily be his father,
if living, but the father could hardly be the inheritor of anything
but movable things and perhaps garden land, as the deceased could not
be the owner of bush land during the lifetime of his father. Subject as
regards movable things and perhaps gardens to this right of the father,
the persons to inherit everything would be deceased's brothers and the
male descendants in the male line of any such brothers who had died;
or in default of these it would be the father's (not the mother's)
brothers and their male descendants in the male line, and so on for
more distant male relatives, every descent being traced strictly in
the male line only, on a principle similar to that above explained.
Male infants, by which term I mean young children, there being of
course no infancy in the defined sense in which the term is used
in English law, like adults, may become possessed of property by
inheritance as regards bush and garden land, and by inheritance
or otherwise as regards movable property, but they would hardly be
likely to be the owners of houses; and the descent from these infants
is the same as that in the case of adults.
No woman can possess any property, other than movable property,
and even this is at best confined to the clothes and ornaments which
she wears. On the death of a married woman all her effects go to her
husband, or, if he be dead, they go to her children or descendants,
male and female, equally, If she has no children or descendants, they
go to her husband's father, or, failing him, to such other person or
persons as would have been entitled to inherit if her effects had
been those of her husband. Her own blood relations do not come in,
as she had been bought and paid for by her husband. If the deceased
woman were a spinster, then her effects would pass to her father,
or, failing him, to her brothers, or, failing them, to her nearest
male relatives on her father's side.
The guardianship of and responsibility for infant children whose
father dies falls primarily upon the children's mother, and she,
if and when she returned to her own people, would probably take the
children away with her, though her sons, who shared in the inheritance
from their father, would usually come back again to their own village
when they became grown up, and might do so even when comparatively
young. If there is no mother of the children, the guardianship and
responsibility is taken up by one or more of the relatives of either
the deceased father or deceased mother of the children, and it might
be that some children would be taken over by some of such relatives,
and some by others. There appears, however, to be no regular rule as
to all this, the question being largely one of convenience.
Adopted children have in all matters of inheritance the same rights
as actual children.
From the above particulars it will be seen that there is no system
of descent in the female line or of mother-right among the Mafulu,
and I could not find any trace of such a thing having ever existed
with them. As to this I would draw attention to the facts that the
mother's relatives do not come in specially, as they do among the
Roro and Mekeo people, in connection with the perineal band ceremony;
that a boy owes no service to his maternal uncle, as is the case among
the Koita; that there is no equivalent of the Koita _Heni_ ceremony;
that in no case can a woman be a chief, or chieftainship descend by
the female line; that children belong to the clan of their father,
and not to that of their mother; and that no duty or responsibility
for orphan children devolves specially upon their mother's relations.