CHAPTER X.

GOVERNMENT AND ADMINISTRATION OF JUSTICE.

68. VILLAGE POLITICS.—THE HEADMAN OR VILLAGE CHIEF.

The inhabitants of a native village live together on well-understood

principles, whatever may be said of their practice. The village headman

is their Governor, or rather their “Father”. In describing how a new

settlement is founded (62) we supposed that a man went forth alone, and

was afterwards joined by others, who were called his “younger brothers”.

But often the founder is from the first accompanied by several friends.

Now, all these “younger brothers” form a kind of Parliament. The founder

of the village, or in other words the village headman, presides over this

body, but is not obliged to follow its instructions. Slaves cannot be

members of Parliament, neither have females any voice in the council. So

much is this last fact recognised, that when a mother is asked whether

the infant in her arms is a boy or a girl, instead of saying “It is a

girl,” she will reply, “It belongs to the sex that does not speak!”—an

answer which strikes us as implying an unusual definition of the

female sex. A headman does not convene his parliament except when he

sees occasion. If he think, for instance, that some of his people are

becoming too rich, he transfers their goods to himself without making

any fuss about the matter. But if he wish to engage in war, he considers

it necessary to assemble his parliament. In the same way if he desire to

carry out any public work, as surrounding the village with a stockade,

he summons his people to consider the proposal and assist in the

undertaking. The headman, however, cannot make his villagers hoe his farm

for him, or do any such private work (65). Neither does he exact tribute

from them—for who would tax his “younger brothers?” Still he expects

them not only to stand by him in war, but to support his government on

all occasions, and to render special assistance in the trial of judicial

cases. After such cases have been debated by his parliament, it becomes

his duty to give decision. He may pronounce a capital sentence, or order

as large a penalty as the fine of four slaves—especially if he be a

higher headman (72). But his judgment may be complained of by any of his

free subjects (only such appeals are rare, unless by parties that want to

leave his village altogether). His decision may be revised by some other

headman, as the ruler of the village from which his own settlement broke

off (62); but the ultimate appeal is to the chief of the country. While

the village headman settles all smaller disputes without troubling his

chief, he usually reports graver cases. Where he has any difficulty in

administering justice he appeals to his chief for aid, and if such aid

were refused, he would have sufficient reason for rebelling. The headman

is called the “owner of the village,” and when he dies his position is

taken by his heir (97).

69. THE KING OR CHIEF OF THE COUNTRY.

The chief is called the “owner of the territory” (msiene chilambo), and

has supreme power over every one that dwells within his dominions. It

is true that he does not personally interfere with all his subjects,

much less with their slaves, but he holds the headmen accountable for

the government of their respective villages. He lives in what is called

the “capital” (kumbala), which is inhabited mainly by his wives and

slaves—a man’s greatness being always measured by the number of these.

If he have ten wives, he must have ten huts for them; and he requires

other huts for his older children and his slaves. These items alone make

his village large, and he may have many people besides. He maintains no

special army, for every man in the country is supposed to be a soldier.

He rules his own village in the same way as an ordinary headman would do.

He often gives considerable authority to his principal slave, who may be

as important a functionary as Joseph was with his Egyptian master. In and

around his own village the chief of the country is a terrible power, and

his government is supported by the most prompt and severe punishments.

But in distant parts of his dominions, where influential headmen live, he

may be little known, although as a matter of theory he is supposed to

settle all graver disputes even in remote villages. When an appeal comes

up from a headman’s village, the chief generally decides it himself, but

he may refer it either to this headman again or to some other headman in

whom he has confidence. In a dispute between the inhabitants of different

villages, the respective headmen represent their own subjects, and the

chief is appealed to. All his decisions are final. Still the chief may

often have less influence than powerful headmen, and we have known cases

where he simply contented himself with grumbling when his headmen acted

contrary to his desire; and in many criminal trials he is eclipsed by the

sorcerers and pounders of poison.

70. GOVERNMENT OF THE COUNTRY.

The chief governs his whole territory on the same principles as a headman

governs a village (68). He presides over a parliament composed of his

headmen, and he deals with this body in the same way as the headmen

themselves deal with their own village parliaments. Order is maintained

among the various classes of his subjects as follows:—(1) Slaves are

entirely under their own master—they are his “goods”; (2) Freemen are

under their elder brother in the first instance, but they may carry

their cases to the headman of their village, or even to the chief of

the country; (3) Headmen are under higher headmen and the chief. Where

a chief sees occasion to interfere with his subordinates, he generally

consults his own interest. He will say to a headman, “I see that you have

been behaving badly to that subject of yours. You cannot get on with

him; he must leave you and come to dwell in my own village!” The chief

thus secures another servant.

71. HEADMEN.

Headmen are of various classes. Some are the chief’s blood-relations and

are called his ‘younger brothers’. But just as in a village, there may be

free-men not related to the headman, so in the chief’s country there may

be headmen not related to the chief. They may have come over with a large

following from a hostile chief, in which case they are called “settlers,”

or “refugees” (alambi). Or they may be men that have gained the chief’s

favour by their services, and been sent to occupy new spots in his

kingdom. Again, when a large village increases, and sends forth smaller

hamlets, new headmen arise; but some of these may carry all their trials

to the mother village, and in this case they are still the subjects of

their “elder brother”.

When a person has acquired several villages (97), he becomes a higher

headman, intermediate between the chief and the owner of a single

village. Each headman lives in the village he likes best, and leaves

his “brothers” to manage his other villages. But a headman of great

ambition often places “brothers” all around him, decides their cases, and

practically governs a small kingdom of his own. If he live far from his

chief, one might suppose that he was quite independent. When a quarrel

arises between the chief of the country and an important headman, the

latter may rebel, and found a new kingdom, thus depriving the old chief

perhaps of one-third of the villages in his dominion. On the other hand,

a headman may keep up the chief’s authority in a district that the latter

could not otherwise hold.

72. DUTIES OF HEADMEN TO THE CHIEF.

In all public transactions the headman represents his village. He

receives the chief’s orders and sees them carried out. When he kills

an elephant he sends one of the tusks to the chief. Should he kill

twenty elephants he is not expected to give up twenty tusks—two or three

would be sufficient. If he shoot a large buck he gives one haunch of

venison. For all such tribute he expects to receive a return present

(generally of a little powder). It is customary for him to invite his

chief to a beer-drinking, at least once a year, and the latter accepts

the invitation. He is expected to attend the chief’s parliament,

unless he is under an elder brother, in which case he is not allowed

to speak, except when specially commissioned. Headmen are expected to

report all cases of war, but they often attack enemies without telling

their chief beforehand, saying, “Let him hear of the enterprise when

it succeeds”. Yet this is dangerous unless they are sure of success,

and well acquainted with the chief’s private sentiments. On reporting

the attack they present the chief with part of the booty. In times of

war each headman when summoned, must follow his chief’s flag, otherwise

his village is burned down, and all that fail to escape are killed or

enslaved.

73. COURTS OF JUSTICE.

Courts of justice are held in every village for trying cases that

occur among the villagers. These courts are identical with the village

parliament (68), and the members discuss the cases, some taking one

side and some the other. The supreme court is regularly held in the

chief’s village, and tries graver cases. It is identical with the supreme

parliament of which the village headmen are members. Although the village

headmen and the chiefs of the country preside over these courts, yet in

many trials their influence is less than that of the sorcerer or the

pounder of poison. Since the natives neither divide their days into

weeks nor number the days of their “moons,” they have no stated time for

holding courts, they just call them as occasion requires.

74. TRIALS.

In a trial the accuser speaks first, and the accused replies. Afterwards

the various members of the council (68, 70) give their views. Throughout

the speeches there are expressions of approval at the close of each

sentence, which serve to mark the punctuation. One man keeps crying out,

“Amao! Atati! Nangolo!” “Mother! Father! Parent!”—words extolling the

wisdom and experience of the speaker.

The chief or headman on settling a fine does not claim part of it. The

whole is paid over to the aggrieved persons, but if they thus obtain

several slaves, they will present the chief with one in consideration

of his services. The idea of friends paying each other is not agreeable

to the native mind. Professional men such as sorcerers and physicians

are paid, but transactions between a superior and his younger brother

take the form of presents. The natives show here a beautiful delicacy of

feeling that we are apt to overlook, amidst their obtrusive greed. An

unsophisticated chief will give a goat as a present, where he would scowl

very much at the idea of selling it, although it is true that he expects

the return present to be greater than the proper price. The services

of a judge are not such a hard task in this country: as there are no

newspapers the chief and his companions feel the need of something to

talk about.

75. EVIDENCE.

Though witnesses are appealed to, it must not be imagined that cases are

decided by their testimony as in England. Let a man be accused of theft,

and though six witnesses declare that they saw him steal, the case may

be as far from a settlement as if there had been no witness at all. The

accused cries, “I did not steal, give me the poison (mwai) and it will

prove my innocence”. If his friends think him innocent they support his

demand, for an innocent man (they believe) will vomit the poison, and

thus become entitled to receive a fine. But if they think him guilty

they will rather not appeal to the poison, for a guilty man will die in

great pain,[8] and his representatives must make full restitution. The

accusers of course, insist that the goods should be given back at once.

They do not wish to run the risk of the ordeal, for if the thief vomit,

they must pay him a fine, besides losing their goods. All the natives

believe that mwai is infallible, while they well know that the testimony

of their countrymen is not so. Were a judge to attempt to decide a native

case by ordinary evidence he would produce the strangest results. The

prosecutor would come with hundreds of his friends prepared to swear to

anything that was wanted. The defendant would come in like manner with

all his friends ready to swear against everything said by the opposite

party. Even though the alleged crime should be of the most secret

character, none of these persons would hesitate to swear that he had been

an eye-witness. To crown all, each man would attend the trial, “armed to

the teeth”. But when cases are decided by the poisoned cup, the natives

feel that an element of quiet solemnity is introduced. They see one of

their fellow creatures brought face to face with death. Here we encounter

the most deeply rooted faith that these tribes have. If they believe

in anything, it is in this ordeal. I once asked Kumpama of Cherasulo,

“What would you do if a man stole ivory and vomited the mwai, but was

afterwards found selling the stolen ivory?” His reply was, “If the man

stole the ivory he would not vomit the mwai, the mwai would kill him”. I

have made similar suppositions to many natives, and though I carefully

concealed my _petitio principii_, they at once pointed out that I was

supposing cases that could never occur.

76. DISCOVERY AND GENERAL TREATMENT OF CRIME.

Since evidence is of such small importance, how can the natives ever

discover criminals? They cannot use the poisoned cup for mere discovery,

because no freemen can be compelled to drink it without a reason. They

encounter a peculiar difficulty here, but they have a peculiar remedy.

Their method may be explained by showing how it works in the case of

theft. When a man finds his goods stolen and can get no trace of the

thief, he applies to the sorcerer. This personage takes up the case,

inspects the dry bones in his calabash, and in a short time is able to

declare the thief. The sorcerer usually trusts to his calabash alone, but

occasionally he makes men lay hold of a stick which after a time begins

to move as if endowed with life, and ultimately carries them off bodily

and with great speed to the house of the thief. When his divination is

completed, the sorcerer announces that he has “detected” (kamula) the

thief and then formally names him to the owner of the stolen goods. The

latter goes to the alleged thief, tells him that he has been detected

by the “oracle” and boldly charges him with the crime. When the theft

is proved either by the thief’s confession, or by the ordeal (75), the

pursuer demands his goods and a fine besides, and holds the headman of

the thief’s village responsible. It is always assumed, and generally

correctly, not only that the headman knows[9] of every theft committed

by his villagers, but that he has even received part of the plunder.

Where the accused party, in spite of the verdict of the oracle denies the

crime and survives the poisoned cup, the result brings discredit on the

sorcerer. As the poison is the infallible test, the sorcerer is proved to

have “detected” the wrong party. He accordingly loses his fee, and the

pursuer is not likely to put confidence in him again. Should the pursuer

still hope to recover his goods, he applies to another sorcerer, but the

latter must not “detect” the party that has just been accused. A person

cannot be asked to drink poison twice for the same charge.

_Caught in the Act._

When a criminal is caught stealing in a man’s house, the course of

justice is more speedy. The owner may kill him on the spot, and he

has the sanction of the law for doing so. The friends of the criminal

cannot complain. The thief deserved his doom for he was behaving like a

bewitcher—he had put himself beyond the pale of human rights, and was in

the position of a lion or a leopard. This holds good whether the theft

is by night or by day, whether the criminal is killed in the house or

after a long pursuit. The thief is generally well armed—a circumstance

which makes his capture more dangerous. But the injured party, for the

purpose of extorting a great ransom, often tries to secure the criminal.

On succeeding, he puts the captive in a slave-stick and sends a message

to the headman of his village, who will be glad to pay several slaves

in order to redeem his “brother”. Should the headman refuse to pay the

ransom the unfortunate “brother” is left entirely in the hands of the

prosecutor, and is liable to be killed, sold, or retained as a slave.

When it is known to what village the stolen “property” was taken, as in

cases of kidnapping, the injured party applies at once to the headman

of the guilty village, and if he can get no satisfaction, there arises

a state of war. The prosecutor captures the very first inhabitants of

the guilty village that come into his power, and then he keeps them in

slave-sticks until compensation is made. Here is a case where a lingering

imprisonment falls on persons that are entirely innocent, the only thing

against them being that they belong to a guilty village.

SUMMARY.

As native law is rather intricate, we give the following summary of

ordinary procedure in criminal cases.

_Detection._

The criminal (1) may be caught in the act, (2) may be known to have the

stolen goods in his possession, (3) may be detected by the sorcerer, or

(4) may be convicted on the confession of himself, or (5) the statements

of his accomplices and others. This last case (5) shows that, after all,

the natives cannot exclude testimony, and even in case (3) the sorcery

must derive all its value from ordinary evidence. The sorcerer has,

doubtless, many agents that are more useful than his calabash, although

it is for his interest to represent that all other evidence is of little

value as compared with his own inspiration.

_Proof._

In cases (1), (2), (4), no trial is needed. In cases (3) and (5) the mwai

is appealed to.

_Punishment._

The criminal is either killed or fined; imprisonment is rather a

preliminary step. In some cases, as in the poison ordeal, a fine is

demanded over and above the death. For all fines the headman of the

criminal’s village is responsible, but he can repay himself either from

the criminal or his relatives. He may even pay the criminal over to the

injured party, but in this case he loses a subject who may be related

either to himself or to some influential man in his village.

The demand of compensation over and above restitution seems to spring

from the constitution of human nature. A little child deprived of a

toy is not content to threaten or revile (or whatever the infantile

manifestation of feeling may mean), while the toy is in the hands of the

aggressor. He pours out the same torrent of hostile feeling after the toy

has been restored. Besides, there are cases in which _mere_ restitution

would not be sufficient compensation for the injury sustained.

Africana; or, the heart of heathen Africa, Volume 1 (of 2) · 第 10 / 19 章