CHAPTER X
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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.
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