CHAPTER XII

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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.

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