INHERITANCE AND INTERNATIONAL LAW.
97. INHERITANCE.
“... the wife of the dead shall not marry without unto a
stranger; her husband’s brother shall go in unto her and take
her to him to wife.”—DEUT. xxv. 5.
When a man dies, part of his goods is buried with him, part goes to pay
the precentor at the wake, and to feast the undertakers and friends.
Besides these and such like funeral expenses, there is the cost of the
legal investigation into the cause of death, and this item if not repaid
by damages from the bewitcher (107), will be the most expensive piece
of mourning. The remainder of his property (92), including his wives
and children, passes on, without any government tax, to his heir. The
nearest heir is his eldest brother, who obtains complete possession.
This is no hardship to younger brothers, who will succeed in their turn.
Failing a brother, there comes the eldest sister, not indeed herself
but her son, so that the next heir after a man’s younger brother is his
nephew (mwipwagwao). By this custom a man’s own children are purposely
set aside. When we tell the natives about the English law of succession,
they say that it is “very stupid”. They want to be sure that the heir
really has the family blood in his veins, and they cannot trust that
a man’s sons answer to this description. The same laws of inheritance
are found in various parts of Africa—as for instance among the Ashanti
on the Western Coast. Any will that attempted to strike at this custom
would be at once set aside. Where writing is unknown, written wills are
impossible, but no will would be recognised except perhaps in the case
of some trifling matters. If the rightful heir be a minor (_i.e._, a
mere child), some one takes the inheritance till he comes of age. The
first-born always has the precedence, the younger brother being nothing
while the elder is alive. We saw an amusing illustration of this in the
case of our own two children. On the birth of the first, the relatives of
the chief Kapeni patronised him and even proposed a wife for him, while
all the natives called him little Kapeni. But the second child they took
no notice of, he was merely “the younger brother of little Kapeni”. The
heir pays any debt that may be on the inheritance, he also takes the risk
of the “witchcraft” trial. If his predecessor died by witchcraft, he
receives a large fine from the bewitcher’s estate, but if his predecessor
died by the poison (mwai), he pays a fine to the bewitched persons, or
their representatives. The great majority of the natives are the victims
of witchcraft one way or other. They either die of witchcraft themselves
(106), or are poisoned because they bewitched some one else. On the day
of entering on his inheritance the heir marries not only the inferior
wives, but the chief wife of his predecessor (43). Should she have
property her sureties look after her interest. A married woman, if free,
may have property—she may be a herbalist, or a “cook” at the mysteries,
or she may make money by her flour and fowls. When a wife dies possessing
wealth, her husband to keep off the “surety” (48), asks a younger sister
to marry him, and take charge of (kwachinga) the children. If he cannot
succeed in this, the goods may be divided, part going to the husband and
part to the sureties of the wife.
98. SUCCESSION TO THE CHIEFTAINSHIP.
The order of this succession is the same as in ordinary inheritance.
The chief’s nearest heir is the eldest of his brothers (97), who will
be younger than the chief himself, otherwise he would have had a prior
claim to the title. Next to younger brothers come nephews, but not the
sons of a brother, who are really reckoned the sons of the chief (60).
Occasionally natives set aside this order of succession. The parties
concerned are—(1) The deceased man’s slaves. (2) His wives and children,
many of whom are also slaves. (3) Headmen related to the chief. (4)
Headmen not related to the chief. The 3rd class are not impartial judges,
because some of them may be candidates for the throne. The 4th class,
however, often do much to settle disputes. But strange to say, it is the
slaves and wives, the 1st and 2nd class, that raise the loudest voice.
They are a numerous and powerful body, and may contain some of the old
chief’s best fighters. On the death of the former Malemya of Zomba, there
survived a younger brother Kumtaja, who, so far as birth went, was the
rightful heir; but there was also a nephew called Kasabola. Kumtaja urged
his claim, but the slaves (achachanda) disliked him, and so did many of
the headmen (alambi). Moreover, all the wives of the old chief desired
Kasabola, and quoted a saying of the deceased chief in his favour. The
Alambi said, “If Kumtaja enter Malemya’s village, all that reside there
will run away,” and accordingly Kasabola was made “Malemya”. Still it
is dangerous to tamper with the law of the land. Kumtaja set up an
independent kingdom, taking to him such headmen as would go; and had
there been a division among the wives or slaves, he might have claimed
all that wished to adhere to him.
At an installation there are several ceremonies, which, however, vary
among different tribes. The new chief first gets a severe lecture, in
which he is told that he must be hospitable and not beat his people too
much. Afterwards he is formally installed in office (34). His temples
are girt with the brow-band (ndawila), which he will henceforth wear on
every formal occasion. He is then called by his new name, and received
with songs of rejoicing. His assumption of the name is much dwelt on.
When old Kapeni of Sochi became chief in the distant Yao country, before
his tribe migrated, the songs and the response, “Awo Kapeni ’wo” (that
is Kapeni), produced an impression that is fresh in the memory of his
people to this day. The chief may appoint a high priest (jua mbepesi) of
his government, who is also called his captain. It is the duty of this
man to carry the chief’s banner and lead his army. The chief seldom goes
to battle; “he stays behind to supply powder and deal with deserters”.
Another duty of the high priest is to find out whether war is to be
successful, but if he fail to get a favourable answer, the chief himself
presents the offering, for just as every headman is the priest of his
village (7), so the chief is the real high priest of the country. If the
army go forth and be thoroughly defeated after the offerings declare
victory to be certain, the people simply say, “Our God has deceived us”.
When the chief has a beer-drinking, his priest or captain brings out the
beer to the guests, and tastes it to show that it is not poisoned. In
the case of English visitors, the Magololo headmen taste all the food
themselves, but at Kapeni’s capital his priest generally performs the
ceremony. When there is a witch-dance at a place where the chief cannot
attend, the priest is sent to represent him, and takes a prominent place
in beating the drums. Many ceremonies seen at a chief’s installation are
observed when any one succeeds to a village. Moreover, since it is only
certain families that have brow-bands, a headman may wear the badge where
his chief has no right to do so. Headmen don it when presiding at trials,
or when they go to a beer-drinking in full dress!
99. INTERNATIONAL LAW.
Disputes between a master and his slave, between a governor and his ward,
between a headman and his villager, or between a chief and his headman,
are easily settled by the power of the Superior. But disputes between
different villages are more puzzling. If a man of Chingota’s kill a man
of Matope’s in Chuma’s village, the three headmen may be involved only,
when all belong to one chief, reference is ultimately made to him. But
when they belong to different chiefs the case is rendered more dangerous,
as their respective chiefs may become parties. The following instances
show how cases between chiefs are settled. If a subject of Malemya be
killed in a village of Kapeni’s by men of Kumpama,[11] Malemya expects
Kapeni to catch the criminals and hand them over to him; and Kapeni
must do so, otherwise he becomes a party to the crime. Kumpama sends a
message to Kapeni asking, “Where are those men of mine that went to your
territory?” and Kapeni refers him both now and in all subsequent steps of
the dispute to Malemya. The chief of a country thus takes cognisance of
crimes committed in his land not by punishing the guilty parties himself,
but by handing them over to the injured. Again, suppose that Malemya’s
men when carrying goods for Kapeni were plundered by subjects of Kumpama,
if the deed be done in Malemya’s territory, Malemya takes the matter up,
but if the goods be once out of his territory, Kapeni becomes prosecutor.
In either case Kumpama is asked to surrender the thieves, and is liable
to punishment, either because he is a party to the theft, or because he
fails to govern his kingdom in the proper way.
100. GENERAL REMARKS ON NATIVE LAW.
As law is a subject of great complexity in all countries, it must not
be supposed that we have settled every question. In a native dispute
difficulties may arise regarding the form of prosecution, the form of
evidence, the proper court, the position and members of that court,
and in short at every step. These _special_ difficulties are settled
according to the merits of each case: and cannot be here solved without
treating the subject with a minuteness that would be too tedious for the
most ardent student of African customs.
101. WAR.
As war may begin in Africa without any provocation at all, trivial
reasons are quite sufficient to produce bloody feuds. Hence, quarrels
that in civilised countries would be mere law suits become occasions
for war. A chief _declares_ war by killing or kidnapping some of his
enemies. He may either find them on a journey, or send an expedition to
their villages. Deeds of this kind proclaim that a messenger sent to the
aggressor will be either slain or sent back mutilated, the two parties
are now declared enemies, and all friendly intercourse is at an end. War
may be declared on a travelling party by simply calling out “ngondo”
(war). The natives _conduct_ war by making a series of attacks in order
to plunder or to destroy by fire and sword. The Yao chiefs say that
they do not attack by night—“to attack by night is a sneaking piece of
conduct fit only for the Anyasa and the Achipeta”. But they can explain
with great relish the method of night attack. A band of men go to an
enemy’s village when the people are all in bed. They carry sticks finely
sharpened at the point (songa), and place them in the ground right before
the hut doors, and in such a way that a native coming hastily out of
the house in his usual dress will run one of them into his body. After
setting this trap, the invaders apply fire to the various houses, and
then look on with loaded guns. Sometimes they tie up the doors before
setting the houses on fire, but unless their animosity be very deadly,
they will not burn all their foes. It is more profitable to capture the
women and children for sale. The boldest of their enemies will be the
first to rush forth to investigate the disturbance, and once they have
impaled themselves on the sharp-pointed sticks, their wives can easily be
captured.
A war may _end_ in various ways. One of the parties may be entirely
broken and driven from the country, their wives and children becoming
slaves. Or the weaker may succeed in buying a peace. Two hostile chiefs
may continue beside each other for many years, afraid to risk anything
more serious than kidnapping. Since the natives trust greatly to war
medicine, a small chief that long maintains his position against a
stronger, and occasionally gains a battle, is believed to have a powerful
“medicine,” and is feared accordingly. Native wars frequently cause more
deaths through famine than through actual slaughter. All natives confess
that war is “bad,” but strangely enough each race values itself upon its
military powers. Even the Achipeta, although they have been completely
vanquished by the Mangoni, will boast, “In our country we know nothing
but war”.
Natives jump and swing their guns about by way of making a war dance,
but these evolutions being originally adapted for their long spears, are
unsuitable for guns. The Mangoni, like the Zulus, have a special training
for war.
Native fights remind one of the days of Homer. A good tongue is as
essential as a good spear. So long as a combatant has courage to demand
his rights, the fact that the enemy has “eaten” a number of his followers
is regarded as mere by-play.