RIGHTS OF PROPERTY AND OFFENCES AGAINST THEM.
83. PUBLIC PROPERTY.
In Britain, the land belongs to a proprietor, so that if another person
go into the woods and cut a tree, he is trespassing and damaging
property, if he shoot a deer he is a poacher. But among these Africans
one may cut as many trees as he wishes, and hunt as long as he chooses.
This is not because the land is common property. In the Yao language the
chief is expressly called the “owner of the soil”. It is rather because
trees are so abundant and grow so fast that the natives are anxious to
keep them down. In the same way deer are plentiful, and it is better to
let man feast on them than to leave them for the lion or the vulture. The
natives seem to be placed on certain spots for the purpose of subduing
the country and maintaining their right to exist against the wild animals
around them, and this must have been so to a much greater extent at the
time when these tribes formed their ‘social contract’. Even as it is,
man looks a very puny object when placed amidst the vastness of the
African jungle. Human beings are quite lost among the grass, not to
mention the trees and bushes. Hence “to catch a man among the grass” is a
proverbial expression which means to do one an injury in secret.
[Illustration: NATIVES IN THE AFRICAN JUNGLE.]
I shall make a few remarks, first on various kinds of public property
(84-91), and next on private property.
84. LAND.
A man may hoe as much land as he pleases, and for any purpose. He may
make trenches for entrapping deer, he may cut up the ground for great
distances in search of moles for his dinner, or he may begin to plant and
make a farm (62). He must never cultivate ground that has been betrothed
by another party. But as soon as he hoes a field the ground is entirely
his own. He hoes, and plants, and builds, without paying any tax or rent.
It has been said with reference to various parts of Africa, that the soil
belongs to the tribe and that, according to the native idea, no chief
has a right to make grants of land. But I found chiefs always willing
to grant as much land as they were asked for. It would be more correct
to say that these natives do not know what can be the use of Perpetual
property in land: when _their_ fields are farmed for two or three years,
the soil yields a poor return, and they find it necessary to go to new
ground.
85. TIMBER.
One may cut wood wherever he chooses. I knew a chief ask strangers to pay
for trees that were cut to make canoes; but he let his own subjects fell
the largest trees without demanding any tax.
At the time of the Mission’s arrival, the Blantyre district was covered
with a dense jungle, which contained not only an impassable mass of young
trees, but also a sprinkling of old ones. About twenty years before, the
ground had been farmed over by natives who had then cut down the timber
for manure and firewood, sparing only those larger trees, some of which
had been the prayer trees of their old villages.
86. ROADS.
Any person may hoe up a public road. Many a time have I found it
difficult to keep the path after a new village had risen in its
neighbourhood, although I had been familiar with the king’s highway
before. When the owner of a farm puts a bunch of thorns on a path, every
bare-legged native understands the signal. Still the road cannot be
closed altogether, it will take a graceful curve round the side of the
new farm. Where it passes through the centre of a large field the farmer
leaves it alone. It is so hard that he prefers to try his hoe on the
surrounding soil.
87. MINERALS.
Where one has a right to hoe at all, he has a right to all the minerals
that he may find, but if he dig much iron and make many hoes, he is
expected to present some to the chief of the country. No one in this
district knows about gold or silver. A piece of calico is more valued
than all the coins of the Bank of England would be.
88. BUILDING MATERIALS.
Grass, reeds, bamboos, and other materials used for erecting huts may be
cut anywhere. In the dry season the country is covered with grass of
from two to eight feet high, according to the richness of the soil. This
mass of vegetation will make an enormous blaze. Some set it on fire to
catch deer or buffalo, others to catch field-mice, and others for mere
sport. Anyone may burn the grass, but if the flames spread to a village
or a corn field, the fire-raiser is responsible for the consequences.
89. STREAMS AND RIVERS.
In this district one may draw water, bathe, or catch fish anywhere. When
a number of men have to cross a stream at a place where they see women
bathing, they shout out “Travellers! Travellers!” (alendo). So when a
woman comes to a stream and sees a man approaching, she will often turn
back with her water-pot, saying, “Perhaps he wants to bathe”. There are
certain superstitions also, and it is very common when walking along a
stream even in the morning (when no one bathes), to see women emerge
from a village and retreat as soon as they observe men advancing. As to
fishing, there is no restriction, and the natives use the euphorbia tree
(mtutu) which kills fish much as lime would do.
90. HUNTING.
Any resident or traveller has a right to hunt. On shooting a large buck
or an elephant, he is expected to send the chief a present. But if he
be far from the chief’s principal village he seldom does so. A company
of native travellers who shoot a buffalo out in the bush far from the
abodes of men, will use the whole of it themselves. Strangers may be
imposed on by headmen, who, although loud in making demands, have no
right to such a present. But their claiming it, shows how much they
regard themselves as being separate kings. English hunters used to obtain
a great amount of ivory not far from Blantyre, much of it being shot in
No-man’s-land. The Mangoni first drove off the Yao, and then receded
themselves, leaving the country unoccupied.
91. TRAVELLING.
As a matter of theory, a person may travel in this part of the country
without asking permission, but unless well acquainted with the chiefs and
the people, a foreigner will find it awkward to go without a guide. It is
easy, however, except in times of war, to get a guide from one chief to
the next. The right to travel naturally implies the right to hunt; arms
must be carried for protection and may be used to obtain food.
92. PRIVATE PROPERTY.
Were a native to count over the items of his property he would give a
list like this:—(1) His chief wife, whom, however, he cannot sell (60).
(2) Inferior wives (masulila) with their children. (3) Female slaves not
related to him (achambumba pa mlango pao), who may be given as wives to
his male slaves. (4) Male slaves (achachanda), who, although valuable in
times of war, fetch lower prices than females. (5) His money, _i.e._,
cloth and beads (which except in the neighbourhood of the Mission are
small items of native property): arrow-heads, hoes, and indeed most
articles are used in bartering. (6) Implements and weapons—axes, hoes,
mortars, baskets, guns, spears, &c. (7) Houses, crops, fowls. In this
list he may include his sisters or other relatives, who are to a great
extent at his disposal (77). If rich, he may possess also a tusk of
ivory, or a few goats. When an attack is made a native that saves his
life has little to lose. The greater part of his property can run with
him and carry all his moveables. Each wife takes a child on her back, and
a basket with all her goods on her head. The houses are left, but the
party can make a shelter in a few minutes. The crop is the man’s greatest
loss, the roots and leaves of the jungle do not taste so well as his
porridge.
93. BORROWING AND LENDING.
The natives are fond of borrowing from each other. If a school-boy
possess an unusual dress, it goes round the whole of his companions.
Often a native begs for cloth, and when told that he has enough, he
replies, “All that I am wearing is borrowed”. Likely this statement is
false, but the custom of borrowing is so common as to make the falsehood
plausible. If a woman at Quilimane lend a pot, she expects on its return
to receive something for the use of it, but the more primitive natives
about Blantyre lend “hoping for nothing again,” in the shape of interest.
94. PETTY THEFT.
Many cases of pilfering dealt with by village headmen we might call petty
thefts. Natives possess so little property that nearly all stealing from
them comes under this head. Plucking the ears of corn in a field is not
criminal. The person that takes a cob of maize leaves the stalk so as to
convey a well-known meaning to the farmer, who as he looks at the signal
is able to say, “Oh! it is a poor man that has eaten because of hunger,”
or “It is my friend that has helped himself”. But if the smallest article
be taken by an enemy, a disturbance arises. Natives are fairly honest
among each other. When one is plundered by a companion he exclaims,
“If you had stolen from a white man, then I could have understood it,
but to steal from a black man——”. Several articles were once carried
off from the Mission Station. As a rule, when theft is mentioned, the
natives say stealing is “very bad,” “some black men do not know how to
steal, other black men are very bad”. But one little fellow, on this
occasion, took a milder view of the matter and said to his instructor,
“Black man very poor, ma’am”. Among the older natives, however, a
tendency to extenuate is seldom found, and often we see cases like that
mentioned by Livingstone, where a person had to drink mwai for taking
a few ears of corn. One circumstance that makes even petty theft very
heinous in the eyes of the native is that the thief is identified with
the Bewitchers (106). He uses “medicine” like them, and employs “horns”
in the same way. He has a charm (chitaka) that enables him to go to a
sleeper at night and ask, “Where are your hoes? Where are your beads?”
So complete is his power over his victims, that he makes them answer all
such questions without waking, and so secure does he feel that he cooks
porridge and takes a meal before leaving the plundered house. So much
is thief-medicine believed in that few venture to steal without seeking
the proper charm. Hence it is that a thief becomes an object of disgust,
and may lose his life for taking a few articles which he might have got
by simply asking the owner. The native view about witches modifies the
whole civil code. Any offence may be brought under the terrible crime of
witchcraft. If a wife run away it is easy to convince her husband that
she would not have done so but for powerful “witchery” used against her.
The following statement sent me by Mr. Buchanan of Zomba will further
illustrate the law of theft:—
After mentioning that “a man found stealing is in the position of a
baboon, hyæna, or hog, etc., and is as liable to be shot down as any
of these animals,” Mr. Buchanan says, “Kasanda, one of my gaffers, had
charge of a gang of women who were carrying clay from a swamp about a
mile distant, and I allowed him a gun partly because kidnapping was rife
at the time, and partly because he had seen an eland as he went to the
clay hole the previous day. When returning in the evening he heard a
crashing noise in a clump of sugar cane just over the stream. Crossing
as quickly and as quietly as possible, he reached the spot unobserved,
and found a man tying up a large bundle of cane. He challenged the
thief, presented the gun, and had the case been his own, or had he been
serving a native chief, he would most undoubtedly have given the rascal
its contents, but knowing that the English discouraged such customs, and
doubtful how I would look on such an act, he allowed the man to escape.
The following day I sent for Kalimbuka, showed him the bundle of cane,
and stated what had happened. Several of his counsellors accompanied him,
and all were unanimous in asserting that according to native law Kasanda
had committed an egregious blunder in not shooting the thief dead. While
strongly objecting to this mode of procedure, I earnestly enquired if
such was really the law of the country, and found that it was. I remember
too that when Mr. Macdonald and I went to visit Malemya, his prime
minister told us of an instance in which this law had been carried out to
the bitter end. A man from Chikala had stolen yams belonging to Malemya’s
people, the owners lay in wait, and the thief returning a second time
was shot dead. But when a man detects a thief in his field during the
day, and knows the thief well, he need not shoot or capture him unless
he likes. He may march to the man’s village, ask the chief to turn out
his men, and then point out the depredator, who, if not redeemed, becomes
the lawful property of the man who owned the stolen stuff (it matters not
what it be).”
95. THEFT AND ROBBERY.
All the above-mentioned classes of property (92) are liable to be
pilfered, and among these tribes it is perhaps human beings that are
oftenest stolen. We do not now dwell on theft as we have taken it
to illustrate the general treatment of crime (76). When the injured
party demands redress, the refusal is a declaration of war. Robbery
with violence and bloodshed is a declaration of war almost under any
circumstances.
96. MISCELLANEOUS CRIMES AND PENALTIES.
Besides direct breaches of the 6th, 7th, and 8th commandments of the
Decalogue, which are all punishable by death, there are many other crimes
recognised and punished by native law. Burning a neighbour’s house,
setting fire to the bush and destroying his crops, and trespassing so as
to cause damage, are instances that have suggested to the native the _lex
talionis_. To the question “What would you do if your neighbour destroyed
your crop?” comes the prompt reply, “I would take his,” and many injuries
or accidents that result in the loss of property are settled accordingly.
Abusing another person—defamation of character—is also paid back in kind,
unless the stronger party give the other a beating to the bargain. To be
called a liar is rather a compliment, but to be called a bewitcher is
much resented. When a woman charges another with adultery, the fight is
often furious; they bite and scratch each other till they are covered
with blood and the dust or mud of the highway.
Fines may be paid in slaves or any other kind of property except ivory.
An offender may be bound over to keep the peace. When convicted of some
misdeed, he presents his superior with a spear, saying, “Kill me if I
offend you again”. The token is common between slaves and their masters.
In reviewing native punishments we find that almost every offence may be
punished by death, but when an offender is not redeemed, the particular
punishment is left to the headman of the injured party. For instance,
if a headman of Kumpama’s go and say, “Chenyono has killed a subject of
mine; I have caught a subject of his and want to kill him,” the chief’s
answer will be, “He has done you wrong, do according to your heart” (poli
mtima wenu). The punishment is thus inflicted not by the criminal’s
own chief but by the injured party, and it may fall, not on the guilty
person, but on one connected with him. It is when a man transgresses
against his own village-chief that _personal responsibility_ is brought
home to him. When he transgresses against another village, his own chief
pays for him. Of punishments inflicted for small offences by superiors
on their own wards, imprisonment in a slave-stick is common, and may
be inflicted by a husband on his wives, or by the chief wife on her
subordinates. _Beating_ is another punishment. When a slave is sent to
keep off the monkeys, and lets them eat the corn, he will taste the rod:
so will a child, or even a younger brother. These beatings when inflicted
are very severe, but they are rarely needed, slaves being generally
obedient, and young people respectful. _Justice is evaded_ by running to
the country of a hostile chief. It is common (as it is prudent) for a
fugitive to steal something from his present chief as a gift to the man
that receives him.