CHAPTER XII.

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.

Africana; or, the heart of heathen Africa, Volume 1 (of 2) · 第 12 / 19 章