CHAPTER 11. LAWS OF RELATIONSHIP, MARRIAGE, AND INHERITANCE.

RELATIONSHIP AND MARRIAGE. DIVISION OF FAMILIES.

Traditional Laws of Relationship and Marriage.

One of the most remarkable facts connected with the natives is that they

are divided into certain great families, all the members of which bear

the same names, as a family, or second name: the principal branches of

these families, so far as I have been able to ascertain, are the:

Ballaroke

Tdondarup

Ngotak

Nagarnook

Nogonyuk

Mongalung

Narrangur.

But in different districts the members of these families give a local

name to the one to which they belong, which is understood in that

district to indicate some particular branch of the principal family. The

most common local names are:

Didaroke

Gwerrinjoke

Maleoke

Waddaroke

Djekoke

Kotejumeno

Namyungo

Yungaree.

These family names are common over a great portion of the continent; for

instance, on the Western coast, in a tract of country extending between

four and five hundred miles in latitude, members of all these families

are found. In South Australia I met a man who said that he belonged to

one of them, and Captain Flinders mentions Yungaree as the name of a

native in the gulf of Carpentaria.

LAW OF MARRIAGE.

These family names are perpetuated and spread through the country by the

operation of two remarkable laws:

1. That children of either sex always take the family name of their

mother.

2. That a man cannot marry a woman of his own family name.

COINCIDENT INSTITUTIONS AMONGST THE NORTH AMERICAN INDIANS.

But not the least singular circumstance connected with these institutions

is their coincidence with those of the North American Indians, which are

thus stated in the Archaeologia Americana:*

Independent of political or geographical divisions, that into families or

clans has been established from time immemorial. At what time and in what

manner the division was first made is not known. At present, or till very

lately, every nation was divided into a number of clans, varying in the

several nations from three to eight or ten, the members of which

respectively were dispersed indiscriminately throughout the whole nation.

It has been fully ascertained that the inviolable regulations by which

those clans were perpetuated amongst the southern nations were, first,

that no man could marry in his own clan; secondly, that every child

belongs to his or her mother's clan. Among the Choctaws there are two

great divisions, each of which is subdivided into four clans, and no man

can marry in any of the four clans belonging to his division. The

restriction among the Cherokees, the Creeks, and the Natches, does not

extend beyond the clan to which the man belongs.

There are sufficient proofs, that the same division into clans, commonly

called tribes, exists among almost all the other Indian nations. But it

is not so clear that they are subject to the same regulations which

prevail amongst the southern Indians.

(*Footnote. Volume 2 page 109.)

...

A similar law of consanguinity seems to be inferred in Abraham's reply to

Abimelech (Genesis 20:12) And yet indeed she is my sister; she is the

daughter of my father, but not the daughter of my mother, and she became

my wife.

FAMILY NAMES AND SIGNS. ORIGIN OF FAMILY NAMES.

The origin of these family names is attributed by the natives to

different causes, but I think that enough is not yet known on the subject

to enable us to form an accurate opinion on this point. One origin

frequently assigned by the natives is that they were derived from some

vegetable or animal being very common in the district which the family

inhabited, and that hence the name of this animal or vegetable became

applied to the family. I have in my published vocabulary of the native

language, under each family name, given its derivations as far as I could

collect them from the statements of the natives.

But as each family adopts some animal or vegetable as their crest or

sign, or Kobong, as they call it, I imagine it more likely that these

have been named after the families than that the families have been named

after them.

SECOND COINCIDENCE.

A certain mysterious connection exists between a family and its kobong,

so that a member of the family will never kill an animal of the species

to which his kobong belongs, should he find it asleep; indeed he always

kills it reluctantly, and never without affording it a chance to escape.

This arises from the family belief that some one individual of the

species is their nearest friend, to kill whom would be a great crime, and

to be carefully avoided. Similarly a native who has a vegetable for his

kobong may not gather it under certain circumstances and at a particular

period of the year. The North American Indians have this same custom of

taking some animal as their sign. Thus it is stated in the Archaeologia

Americana:* "Each tribe has the name of some animal. Among the Hurons the

first tribe is that of the bear; the two others of the wolf and turtle.

The Iroquois nation has the same divisions, only the turtle family is

divided into two, the great and the little." And again, in speaking of

the Sioux tribes:** "Each of these derives its name from some animal,

part of an animal, or other substance which is considered as the peculiar

sacred object or medicine, as the Canadians call it, of each band

respectively." To this we may add the testimony of John Long, who

says,*** "one part of the religious superstition of the savages consists

in each of them having his totem, or favourite spirit, which he believes

watches over him. This totem they conceive assumes the shape of some

beast or other, and therefore they never kill, hunt, or eat the animal

whose form they think the totem bears."

(*Footnote. Volume 2 page 109 quoting from Charlevoix volume 3 page 266.)

(**Footnote. Ibid page 110 quoting from Major Long's Exp. volume 1

chapter 15.)

(***Footnote. Voyages and Travels page 86.)

Civilized nations, in their heraldic bearings, preserve traces of the

same custom.

BETROTHMENTS AND MARRIAGES.

Female children are always betrothed within a few days after their birth;

and from the moment they are betrothed the parents cease to have any

control over the future settlement of their child. Should the first

husband die before the girl has attained the years of puberty she then

belongs to his heir.

A girl lives with her husband at any age she pleases, no control whatever

is in this way placed upon her inclinations.

WIDOWS.

When a native dies his brother inherits his wives and children, but his

brother must be of the same family name as himself. The widow goes to her

second husband's hut three days after the death of her first.

The old men manage to keep the females a good deal amongst themselves,

giving their daughters to one another, and the more female children they

have the greater chance have they of getting another wife by this sort of

exchange; but the women have generally some favourite amongst the young

men, always looking forward to be his wife at the death of her husband.

OBLIGATIONS OF RELATIONSHIP. DIVISION OF FAMILY BRANCHES.

But a most remarkable law is that which obliges families connected by

blood upon the female side to join for the purpose of defence and

avenging crimes; and as the father marries several wives, and very often

all of different families, his children are repeatedly all divided

amongst themselves; no common bond of union exists between them, and this

custom alone would be sufficient to prevent this people ever emerging

from the savage state.

As their laws are principally made up of sets of obligations due from

members of the same great family towards one another--which obligations

of family names are much stronger than those of blood--it is evident that

a vast influence upon the manners and state of this people must be

brought about by this arrangement into classes. I therefore devoted a

great portion of my attention to this point, but the mass of materials I

have collected is so large that it would occupy much more time to arrange

it than I have been able to spare so as to do full justice to the

subject; but in order to give an accurate idea of the nature of the

enquiries I pursued I have given in the Appendix A a short genealogical

list which will show the manner in which a native gives birth to a

progeny of a totally different family name to himself; so that a district

of country never remains for two successive generations in the same

family. These observations, as well as others made with regard to the

natives, can be only considered to apply, as yet, to that portion of

Western Australia lying between the 30th and 35th parallels of south

latitude unless the contrary is expressly stated; though I think there is

strong reason to suppose that they will, in general, be found to obtain

throughout the continent.

DIFFICULTY OF PURSUING THE ENQUIRY.

It is impossible for any person not well acquainted with the language of

the natives and who does not possess great personal influence over them

to pursue an inquiry of this nature; for one of the customs most rigidly

observed and enforced amongst them is never to mention the name of a

deceased person, male or female. In an inquiry therefore which

principally turns upon the names of their ancestors this prejudice must

be every moment violated, and a very great difficulty has thus to be

encountered in the outset. The only circumstance which at all enabled me

to overcome this was that the longer a person has been dead the less

repugnance do they evince in uttering his name. I therefore in the first

instance endeavoured to ascertain only the oldest names on record; and on

subsequent occasions, when I found a native alone and in a loquacious

humour, I succeeded in filling up some of the blanks. Occasionally round

their fires at night I managed to involve them in disputes regarding

their ancestors, and on these occasions gleaned much of the information

of which I was in want.

LAWS OF LANDED PROPERTY. RIGHTS AND BOUNDARIES. PROPERTY VESTED IN

INDIVIDUALS.

Traditional Laws relative to Landed Property.

Landed property does not belong to a tribe, or to several families, but

to a single male; and the limits of his property are so accurately

defined that every native knows those of his own land, and can point out

the various objects which mark his boundary. I cannot establish the fact

and the universality of this institution better than by the following

letter addressed by Dr. Lang, the Principal of Sydney College, New South

Wales, to Dr. Hodgkin, the zealous advocate of the Aboriginal Races:*

(*Footnote. Extracted from the Reports of the Aboriginal Protection

Society.)

Liverpool, 15th November 1840.

My Dear Friend,

In reply to the question which you proposed to me some time ago in the

course of conversation in London, and of which you have reminded me in

the letter I had the pleasure of receiving from you yesterday, with the

pamphlets and letters for America, namely, Whether the Aborigines of the

Australian continent have any idea of property in land, I beg to answer

most decidedly in the affirmative. It is well known that these Aborigines

in no instance cultivate the soil, but subsist entirely by hunting and

fishing, and on the wild roots they find in certain localities

(especially the common fern) with occasionally a little wild honey;

indigenous fruits being exceedingly rare. The whole race is divided into

tribes, more or less numerous, according to circumstances, and designated

from the localities they inhabit; for although universally a wandering

race, with respect to places of habitation, their wanderings are

circumscribed by certain well-defined limits, beyond which they seldom

pass, except for purposes of war or festivity. In short, every tribe has

its own district, the boundaries of which are well known to the natives

generally; and within that district all the wild animals are considered

as much the property of the tribe inhabiting, or rather ranging on, its

whole extent, as the flocks of sheep and herds of cattle that have been

introduced into the country by adventurous Europeans are held by European

law and usage the property of their respective owners. In fact, as the

country is occupied chiefly for pastoral purposes, the difference between

the Aboriginal and the European ideas of property in the soil is more

imaginary than real, the native grass affording subsistence to the

kangaroos of the natives as well as to the wild cattle of the Europeans,

and the only difference indeed being that the former are not branded with

a particular mark like the latter, and are somewhat wilder and more

difficult to catch.

EFFECTS OF EUROPEAN APPROPRIATION.

Nay, as the European regards the intrusion of any other white man upon

the cattle-run, of which European law and usage have made him the

possessor, and gets it punished as a trespass, the Aborigines of the

particular tribe inhabiting a particular district regard the intrusion of

any other tribe of Aborigines upon that district, for the purposes of

kangaroo hunting, etc., as an intrusion to be resisted and punished by

force of arms. In short this is the frequent cause of Aboriginal, as it

is of European wars; man, in his natural state, being very much alike in

all conditions--jealous of his rights and exceedingly pugnacious. It is

true the European intruders pay no respect to these Aboriginal divisions

of the territory, the black native being often hunted off his own ground

or destroyed by European violence, dissipation, or disease, just as his

kangaroos are driven off that ground by the European's black cattle; but

this surely does not alter the case as to the right of the Aborigines.

UNIVERSALITY OF THIS CUSTOM.

But particular districts are not merely the property of particular

tribes; particular sections or portions of these districts are

universally recognised by the natives as the property of individual

members of these tribes; and when the owner of such a section or portion

of territory (as I ascertained was the case at King George's Island) has

determined on burning off the grass on his land, which is done for the

double purpose of enabling the natives to take the older animals more

easily, and to provide a new crop of sweeter grass for the rising

generation of the forest, not only all the other individuals of his own

tribe, but whole tribes from other districts, are invited to the hunting

party and the feast and dance, or corroboree that ensue; the wild animals

on the ground being all considered the property of the owner of the land.

I have often heard natives myself tell me, in answer to my own questions

on the subject, who were the Aboriginal owners of particular tracts of

land now held by Europeans; and indeed this idea of property in the soil,

FOR HUNTING PURPOSES, is universal among the Aborigines. They seldom

complain of the intrusion of Europeans; on the contrary, they are pleased

at their sitting down, as they call it, on their land: they do not

perceive that their own circumstances are thereby sadly altered for the

worse in most cases; that their means of subsistence are gradually more

and more limited, and their numbers rapidly diminished: in short, in the

simplicity of their hearts, they take the frozen adder in their bosom,

and it stings them to death. They look for a benefit or blessing from

European intercourse, and it becomes their ruin.

If I had had a little more leisure I would have written more at length

and in a style more worthy of your perusal; but you may take it as

certain, at all events, that the Aborigines of Australia HAVE an idea of

property in the soil in their native and original state, and that that

idea is, in reality, not very different from that of the European

proprietors of sheep and cattle, by whom they have, in so many instances

been dispossessed, without the slightest consideration of their rights or

feelings.

Indeed the infinity of the native names of places, all of which are

descriptive and appropriate, is of itself a prima facie evidence of their

having strong ideas of property in the soil; for it is only where such

ideas are entertained and acted on that we find, as is certainly the case

in Australia, Nullum sine nomine saxum.

I am, my dear Friend,

Your's very sincerely,

JOHN DUNMORE LANG.

To Dr. Hodgkin.

...

LAWS OF INHERITANCE AND TRESPASS. LINE OF INHERITANCE.

A father divides his land during his lifetime, fairly apportioning it

amongst his several sons, and at as early an age as fourteen or fifteen

they can point out the portion which they are eventually to inherit.

If the males of a family become extinct the male children of the

daughters inherit their grandfather's land.

CERTAIN LAWS REGARDING ARTICLES OF FOOD.

The punishment of trespass for the purpose of hunting, is invariably

death, if taken in the fact, and at the very least an obstinate contest

ensues. If the trespasser is not taken in the fact, but is recognised

from his footmarks, or from any other circumstance, and is ever caught in

a defenceless state, he is probably killed; but if he appears attended by

his friends he is speared through the thigh, in a manner which will be

mentioned under the head of punishments.

There are other laws intended for the preservation of food, such as that

which enjoins that:

1. No vegetable production used by the natives as food should be plucked

or gathered when bearing seed.

2. That certain classes of natives should not eat particular articles of

food; this restriction being tantamount to game laws, which preserve

certain choice and scarce articles of food from being so generally

destroyed as those which are more abundant.

3. The law regarding the family kobongs, mentioned above.

Independent of these laws there are certain articles of food which they

reject in one portion of the continent and which are eaten in another;

and that this rejection does not arise from the noxious qualities of the

article is plain, for it is sometimes not only of an innocent nature but

both palatable and nutritious: I may take for example the unio, which the

natives of South-west Australia will not eat because, according to a

tradition, a long time ago some natives ate them and died through the

agency of certain sorcerers who looked upon that shellfish as their

peculiar property.

Journals of Two Expeditions of Discovery in North-West and Western Australia, Volume 2 · 第 11 / 19 章