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.