NATIVE LAWS OF SOME BANTU TRIBES OF EAST AFRICA

 NATIVE LAWS OF SOME BANTU TRIBES OF EAST AFRICA.

INTRODUCTION. 

FOR some years I have given particular attention to the study of the laws and organization of certain Bantu tribes among which I have lived in East Africa . These tribes are :—The Wakamba, Wakikuyu, Watheraka, and Wadigo in Kenya Colony, and the Wazeguha, Wapare, and Wachagga in the Tanganyika Territory ( formerly German East Africa ) . In all these tribes I observed a similarity in their conceptions of law and practice which suggested to me that certain principles might be common to all Bantu of these countries. I was fortunate enough to find in German East Africa a number of German writings concerning other tribes of which I have little or no personal acquaintance, and in these also I found a great deal of information which coincided with my own observations. A summary of such information combined with my own observations is contained in the following.

In so far as a great deal that will be related here is gleaned from other sources, I cannot entirely answer for its accuracy, but there are indications that if the study had been pursued by one person in all the tribes mentioned, a greater degree of agreement in the main principles of their laws would have become apparent. The various points discussed have, moreover, not been equally exhaustively investigated, and in particular due consideration has not always been given to present-day and original practices which are by no means invariably identical.

I am thus well aware that the whole falls far short of being a reliable and complete study. My plea for publishing it despite these shortcomings is that, so far as I am aware, very little of the like has been compiled on a subject which I cannot but think has not only its ethnological value, but is of the utmost consequence both to the ruling and the subject races who are mutually concerned in the great problems that Africa presents in regard to its future advancement. We cannot ignore the principles and institutions whereunder these millions of Africans have lived generation upon generation, and which are still in vogue whether officially recognized or not. And that which we cannot ignore, we cannot afford to be ignorant of. The whole subject must sooner or later be carefully studied the sooner the better--while yet we have the opportunity. My aim is, then, to record such information as I have in preparation and as an outline which may be useful to those who can adequately give their attention to it , and in the meantime these pages may serve as a guide to others whose daily occupation calls for an understanding of native law and who have had less opportunity to acquire a knowledge of it .  

JUDICIAL AUTHORITIES. 

Among primitive people and in disordered times political upheavals were as frequent as their causes were many. A tribe or collection of tribes might be united under the rule of a prominent man, or times of stress would knit them together in common defence, or a ruler might be imposed upon them by an invader. Conversely, stable rule collapsed through internal dissension or gradual decline resulting from prolonged security. The latter tendency is observable in many parts since the establishment of European rule. As an example of such events, the Shambaa tribe may be quoted. About 150 years ago a man of the Kilindi tribe gained renown chiefly by his skill in exterminating the wild pig which devastated the fields of the Washambaa, and was eventually invited to rule the tribe. In course of time the kingdom of Vuga was established, being named after Vuga the capital, or king's residence, and this kingdom extended from North Pare to Tanga, Pangani, and Uziguha. When Rebmann landed at Pangani in 1848, the chief of that town was a vassal of the King of Vuga, who commanded him to receive the traveller. To-day the Wakilindi form the aristocracy of Usambara, and most, if not all, of the petty headmen are Wakilindi. But in course of time the royal family was divided , a separate ruler of Masinde broke from the Vuga family, and the powerful and well-organized state created by the Wakilindi declined until, at the present day, the Washambaa are divided into such a number of petty headmanships that they bear the appearance of a tribe which has never attained any real unity. Elsewhere chiefs have been created where they never existed before : thus among the Wakikuyu ; in other parts the chiefs, backed by the invincible power of European government, have become more powerful than before : so the Chagga chiefs . In general it may be said that where chiefship was not known or hardly existed, it has developed under European rule, and where it was most firm and absolute it has declined.

 Everywhere the political sovereign was the supreme judge, whether that dignity was represented by an individual or a council. And for this reason the native will always regard the European judge or magistrate as his immediate ruler, wherefore a distinction between judicial and political officials dealing directly with the people in Africa is never to be recommended. The effectiveness and supremacy of the law depends mainly on the stability of the tribal organization : it is most lax among the disorganized tribes, and most telling among those who are united under individual and powerful rulers. Therefore, it is necessary to consider jointly the political organization and the judicial system of each tribe.

It is hard to apply European terms to Africa, but to borrow the nearest equivalents we may distinguish between democratic and monarchical tribes, though it is not to be assumed that in each case the latter are subject to one individual ruler. 

I. Of the tribes here discussed the following may be described as entirely democratic. The Wamakonde, Wakarra, Wagiriama, Wakamba, Wakikuyu and Watheraka. The first of these tribes affords a striking example of a people without chiefs in so far as this affects its civil laws. Here the embryo of state is to be sought in the clan ; but clans rarely boast of a specific head, and its representative bears rather the burden of constantly standing by or standing good for the clan members without any material advantage to himself ; the community in this case is founded on mutual relationship, and not on executive authority, and by consequence there is no actual judiciary within the entire tribe. In matters between clansmen it will not be difficult to achieve a settlement, and moreover disputes will be rare. The method of exacting redress in cases of homicide will be related elsewhere, but the following is a description of the normal procedure in ordinary cases : " In the first instance the Mkonde will endeavour to obtain redress unaided by his relatives and friends. If he fails to come to an agreement he will have recourse to a solicitor, who may be of any clan , and is selected for his eloquence and ability. Having received an advance or promise of payment, the solicitor approaches the defendant, whom he plies with arguments and threats . If he proves obdurate and unwilling, the claimant will appeal to the senior members of his family, an elder brother, uncle, or the head of his clan according to the importance of the matter. These endeavour to arbitrate. If such efforts are fruitless, a new solicitor is engaged who goes to the defendant's family and clan, to whom he represents the true aspects of the case. The defendants on their side put up a pleader, and the two solicitors now wrangle over the case for days together, supported by their respective parties. The plaintiff's solicitor resorts to all manner of objective and historical arguments, which he combines with persuasion and threats, and if these fail he will speak of the standing of his client, his numerous and wealthy kinship, intimating the consequent disadvantages of opposing him. If all this is of no avail, open hostility is threatened and finally carried into practice. By force or cunning, slaves and members of the opposing family are kidnapped to extort payment. This final phase may be reached for any cause from the murder of a brother to the loss of a knife." Here, then, the means of redress was persuasion or force, but hardly judicial decision.

The Wakarra submit their disputes to decision by their elders, but enforcement of their judgment is left to the plaintiff himself.

The Wagiriama are another tribe whose sole heads are the seniors of their clans ; the present headmen are purely Government creations and were never really recognized by the people. If a matter cannot be settled locally, the elders meet to decide it. A writer, ¹ speaking of the Giriama Laws of Procedure , says : “ The judgments are often ignored, the defeated party going elsewhere to try his luck before another Kambi (council) . I had a case a short time ago on which the elders had given judgment no less than ten times. Again, if a judgment is given against a man by his own Kambi, it is perfectly open to him to leave his village and go off elsewhere without paying I am not well acquainted with the Giriama tribe, but they are so nearly akin to the Wakamba in their customs that I suspect their ideas in this matter to be more or less identical with those of the Wakamba, Kikuyu, and Theraka. The only original and real authorities among these tribes are the elders , whose decisions in political and judicial matters carry weight according as the matter is one of general interest, and the meetings by consequence largely attended or not. Elsewhere it will be related how the elders could go to the extent of passing a death sentence, but, as will be explained, this was more a measure of self- defence than a judicial act. As the spiritual heads of the people they might also resort to such means as cursing the defaulter, but the effectiveness thereof depended on the superstitious fears of the culprit . The elders are not necessarily old men, in fact those of advanced age retire from the ordinary judicial duties¹ ; but with few exceptions they are men of mature years who have been admitted to the degree of " Eiders of the Council. " It is interesting to note that for years we vainly endeavoured to create and establish so-called chiefs or headmen, but with the smallest success, because the people simply failed to comprehend the position and functions of such an authority. Meanwhile the elders continued to exercise their influence and office as judges. The councils formed by them, called Nzama in Ukamba, Kiama in Kikuyu, and Chama in Theraka, were ultimately officially recognized and formed into regular tribunals with legal jurisdiction within defined areas for each settlement. Their present form is, of course, a Europeanized adaptation of the original institution , which was not nearly so definite . Formerly, if a man did not take his due by force, or could not come to terms with his opponent, he would demand that they should call a council, and if they agreed upon this course each party would summon his own elders ; to this day they speak of " making a Kiama, and while we speak of the proceedings as a trial, " they describe them as a consultation ( Kochira, Kosila to consult) . Now supposing the council to have met and decided the case, the losing party might, and frequently does, decline to abide by the decision. Asked what then happens, the elders will say that formerly they told the successful party to take his due by force, and if the matter interested them sufficiently, the elders might endeavour to intervene to avert fighting ; but more often the contending parties fought, and hence the incessant feuds in the old days. Under present conditions, the elders tell the claimant to " go to the Government, " but they will rarely trouble to make complaint of the defendant's disobedience. Not infrequently the claimant left it to the issue of some ordeal or had recourse to witchcraft.

Thus it is apparent that the Council of Elders had to all intents and purposes no powers of decision . The defendant himself summons the council, and by so doing declares his willingness to submit the matter to discussion, but it will invariably be found that in such case he admits some liability, and this explains why it is that a Mkamba is so reluctant to appear before a court to answer a charge which he entirely refutes his mere appearance is, in their view, an admission in some degree. Next, the losing party abides by the decision or not as he pleases . On the whole, then, the assembly of elders was more in the nature of a court of arbitration than of decision.

Less independent, but still in the same category as the tribes so far discussed, are the Wadigo, Wapare, and Wazigua.

Among the first of these tribes, the Wadigo, the government is composed ofthe headman, called Zumbe, the elders, and a functionary called Mwananjirra, who is a sort of messenger or constable. The elders or adult men are divided into ten grades, which are attained by gradual admission, and of these the three senior grades constitute a council or Ngambe ( Giriama Kambi). These elders conduct the trial and explain the facts to the Zumbe, who mainly on their advice gives the decision. But for the enforcement of such decisions there was only the course of assisting the successful party to seize the defendant's goods ; in particularly flagrant cases the offender was punished by the ban of fire and water until he submitted. 

The same word Zumbe for a chief is the term in use among the Wazigua, who have a large number of petty headmen. The office is inherited from father to son ; the privileges of the Zumbe are free labour for the cultivation of his fields , otherwise the position is little distinguished . As judge, the Zumbe is assisted by the elders , and his decisions are based on their advice. For many years the Wazigua have been much under Arab influence, and latterly the Zumbes have been replaced by native magistrates, so that it is difficult to arrive at the original form of their jurisdiction .

A definite aristocratic class is not uncommon among African tribes. In Upare the village headmen ( Valao) and the chiefs ( Vafumwa) are always of this class. The position and powers of the chief are rather just what he can make them : he is not distinguished in dress nor by any peculiar marks of respect, but he has the privilege of calling on his people to work for him, and criminals may claim the right of asylum with him (see under Murder) . The real power of the land lies with the elders, who are consulted in all matters. His judicial power the chief shares with the elders, called Vagosi va Kaa, the Valao, and other men distinguished by their intelligence and eloquence. But the council thus formed is little respected by the more powerful individuals, and it is said that in former times it was frequently overawed by the number of armed followers brought by each party, and the proceedings often ended with a free fight in which the chief himself might not be spared . In general the claimant took the law into his own hands, at any rate in all serious cases such as homicide, stock thieving or other thefts-in fact, petty warfare ensued. At the present day the chief's judicial authority is supported by the Government, but it is clear that here also in former times cases were effectively decided by the chief and elders only by voluntary agreement of the parties.

I now come to a tribe which is in some ways remarkable for its organization. The Wachagga are a mixture of the most diverse sections of tribes, principally the Wakamba, Wapare, Washambaa, Wataita, and probably an aboriginal tribe of Kilimanjaro. The mountain was gradually peopled by these immigrants, who settled each in their own ridge, and clan by clan each with its distinct head. Among the latter, the head of the clan which first colonized there took the lead and in due time became the recognized chief. Actual chiefship seems to have been founded not more than 120 years ago, but many local conditions which it would be too lengthy to go into contributed to make this institution very stable, though naturally from time to time lesser chiefs were conquered and their domains incorporated in the victor's lands temporarily or permanently, others became vassals of the most powerful chiefs, and others again have in course of time broken up into petty headmanships. The more powerful chiefs attained very considerable despotic authority, which was aped by the smaller chiefs. This stage of development was reached not long before European rule was established, and since then the chief's position and powers were not only confirmed, but in some degree increased, so that the Chagga tribe would not properly be classed among the democratic tribes were it not that the original features of the tribal institutions have survived and are much in evidence. While the chief was all powerful and arrogated certain privileges such as free labour, contributions and rights over life and death, property and persons, he remains at bottom the principal clan head. In his judicial capacity the chief is assisted by a council of persons called Njama, who, though not necessarily elders, are in the majority elderly men and in particular seniors of the clans. In practice we have here the same institution as the Kiama of the Wakikuyu and the Nzama of the Wakamba-even the name is almost identical-in short, the jurisdiction of the elders.

Among the Wachagga also it is the common practice to this day for the claimant to seize whatever he claims from the defendant. Whether the chief steps in to avert bloodshed or merely to uphold his own authority depends on the character of each one, and the nature of the case, but no chief regards such action in the light of an obligation . 

II. The numerous petty chiefs of the Washambaa have now little or no power, having been superseded by native magistrates appointed under the German regime. To learn the original organization of this tribe, it would be necessary to go very far back, before the time of the Vuga kings. It is probable that the small chiefs pretended to the same powers as the king held in his time, but the tribe is so akin to its neighbours the Wazigua that I surmise their institutions were much alike. The chief's judicial court was composed of assessors called Watawa and other officials who conducted the case, while the decision was pronounced by the chief alone. Notwithstanding the political and judicial power of the chief, a claimant would often obtain permission from some sub- chief to seek his own remedy by force. 

Among the Bakumbi an aristocracy by birth is recognized, and as a rule the village headmen ( Mwanangwa) belong to this class . The latter are subject to the chief, whose insignia is a round shell worn on the arm. His privileges consist in free labour and a contribution of one basket of millet from each harvest ; he has no uncontrolled power over the lives, property or wives of his people. The successor to the chief is elected by a council of persons called Banangoma, and the same council assist the chief in all matters and act as assessors in the trial of cases. Minor disputes may be decided by the village headman, but whether the trial comes before him or the chief, the decision is determined by the assessors or only pronounced by the presiding headman or chief. The creditor or prosecutor may, however, take the law into his own hands. The decision of the chief is enforced by the simple method of devastating the offender's property.

More paramount is the position of the chief or king in Ungoni. He exercised powers of life and death and to a certain extent had a right to his subjects ' wives, in that he could dissolve any marriage and appropriate the woman thus divorced. Yet he was distinguished only by the greeting accorded to him ; his only source of wealth was the booty brought to him by his warlike people . Formerly the dead chief was buried with a slave and a store of ivory. Succession to the chiefship was in the same order as that of inheritance of property, e.g. son, brother, or nephew in order. The villages are controlled by headmen who are subject to the chief and constitute the chief's council. Judgment is delivered by the chief with the acclamation of his councillors. The decision is rarely enforced, but if the losing party defied the chief he was formerly killed or enslaved. Under all circumstances, however, the claimant had full right to seize what he laid claim to of the defendant's property.

The Wabungu call their chief Inkozi. He decides all disputes and apparently without assistants. I am not informed as to whether he enforces his decrees or how, but the right is accorded to the claimant to redress his wrongs by seizure. 

The Sumbwa and Mnyamwezi have village headmen ; over these are heads of districts. Among the former this position may be bought from the chief, but they are generally members of the chief's family ; among the latter the nobility are members of the chief's family and those who govern districts ( Vasaliwe) . The Wasove people are divided into five classes of which the first two are the issue of male and female members of the chief's family respectively ; the third are the headmen or Wanzagila ; the two last are the peasants and strangers. Here also there are village headmen, though the community of the clan is a more stable association than that of the village. Over all these stands the chief ; the Msove chief wears no insignia, but is greeted with a particular formula. In Sumbwa the chief wears a round shell in the hair, an armband of lion's sinew, and two copper armrings. In Unyamwezi the chief wears a strip of lion skin bearing four round shells and worn on the head , neck and arms, also an elephant tail attached to the head. It is curious that in this tribe the women curtsy to the chief, an action I have not observed among any other natives.

In Sumbwa the successor to the chief is elected by the favourites from among the chief's sons ; in Unyamwezi, succession goes by election of a member of the ruling family, but not necessarily of a son ; and among the Wasove, succession goes to a cousin or next to a son-in-law. The privileges of the chief are : In Sumbwa tribute of five hoes or one goat, one basket of honey, a measure of grain and cultivation of a field in each district ; in Unyamwezi a payment of a small tax, and free labour. If burial rite may be regarded as a form of privilege, it is to be noted that the burial of the Mnyamwezi chief was very ceremonial, including the burying alive of a slave woman. Among the Wasove, the chief's subjects have to work for him, excepting the smiths, who pay a tribute in hoes in lieu of work.

Among the Wasove and Wasumbwa, the claimant has the right to seize the defendant's property ; in the latter tribe, however, only if he is unable to pay. In Unyamwezi, it is said that no such right is accorded . The supreme judge is the chief, who is assisted by councillors. Unlike many other tribes , this council is selected by the chief, and does not exist by right. It is said that in Sumbwa, the chief's power is greatly limited by the councillors, and that he always acts on their advice . In Usumbwa the decision of the chief must be enforced by the claimant, but if the defendant resists, the chief will devastate his property. In Unyamwezi the chief does not enforce his decree, excepting if it be one of punishment as distinct from compensation. Among the Wasove enforcement of the judgment is left to divine vengeance following on ordeal : the chief will not enforce his decision. 

It will be seen that, though the constitution of these eighteen tribes varies, there is no great variation in the character of their judicial authorities. The main difference is to be found in this, that the tribes which have evolved actual chiefship are judged by their chiefs ; those who have no chiefs recognize the jurisdiction of a council of elders. The former are in the minority, and invariably the chief as judge is assisted or guided by a council, so that individual jurisdiction is hardly known. The effectiveness of the judgment given will depend upon the power and influence of the judicial authority, but as a general rule it is no more than an authoritative establishment of a claim the enforcement of which is left to the claimant : the judicial authority neither brings offenders to justice nor enforces its decree. Almost invariably the claimant has the right to redress his own wrong ; in fact this is very frequently the ordinary method or that attempted in the first instance, and by consequence the case is submitted to trial rather by mutual agreement than in obedience to any law. As will be seen later, the judicial authority hardly takes upon itself to give a decision on facts in dispute, this being left to some such test as ordeal. Therefore the judicial authority in the main restricts itself to decision concerning undisputed facts voluntarily submitted for decision by the parties interested , and this decision will in almost all cases and in all tribes be in regard to a payment in the nature of compensation. Now at the present day in Europe a crime is considered primarily as an offence against a definite law : it is the breach of a law rather than the injury to a person which is in issue ; but in Africa it is the personal injury which counts : the injured party takes action independent of the public authority ; his redress lies mainly in his own hands, and thus the whole procedure and essence of the law bears a purely private character by comparison with ours. Under our system we cannot, excepting in rare cases, make private amends for our misdeeds, but we can for wrongs which come under the classification of civil suits, such as debts. In Africa all wrongs can be amended by payment of compensation much as though all cases were compoundable with us ; but this is principally a matter for the person wronged to decide . In Africa the injured party has, as it were, the power to convert a criminal case into a civil suit. For instance, if we regard blood- revenge as an admissible penalty on the guilty party, the aggrieved party has the right to inflict this penalty or to convert it into a civil suit for compensation, as he pleases. These are some of the salient points of variance between European and Bantu law, and they are significant if we would form a true estimate of native ideas on the subject.

It must seem that compensation was an ineffectual means for the restriction of crime, but there are aspects of this question which should not be overlooked . Actual crime in olden times would be limited almost to injury of one sort or another which was inflicted in the heat of anger by men whose minds were little capable of controlling their actions, and to them the fear of punishment would hardly be a deterrent. It must, however, never be forgotten that compensation was really an alternative, which the offender could not count on. The most effectual deterrent was the fear of private revenge, which was generally lawful and often a duty. He who offended against many had so many more to fear, and was never safe. And whether redress took the form of revenge or compensation, the burden might fall on the offender's relatives, to whose interest it therefore was to dissuade him from wrongdoing. It thus comes about that at the present day when we admit the application of the old rule of compensation we do not fully retain the essential element of primitive law, for we have eliminated the fear of revenge. 

The divergent characteristics of African and European jurisprudence are patent : on the one hand a voluntary means of redress through arbitration and induced by expediency, on the other an inexorable law manipulated by judges of decision. Once this distinction is clear to us we are capable of appreciating a certain perplexity the native must feel in regard to our handling of his affairs , and we shall understand how essential it is that as far as is practicable their disposal should be entrusted to his own tribunals. It may be objected that the native prefers the tribunal of the white man, but it must be borne in mind that it is mostly only the successful party who expresses an opinion, and under all circumstances the more intimately the court is acquainted with and guided by the native view of a case, the more surely its decision will give satisfaction. The weakest side of the native tribunal is of course its venality, not that the majority or even a large percentage of litigants fail to find justice ; but none is so well aware as the native that complete integrity in his own. tribunal is not assured, and it is here that he shows preference for the European courts . On the other hand, it must be confessed that as often as not the underlying idea of the litigant who has recourse to European courts is to derive advantage from the ignorance of the white judge. Another reason for such preference is the more absolute decision thereby ensured, but that a final and irrevocable solution is not appreciated appears from the fact that when, as invariably happens, the losing party again brings forward his case at a later date, often representing the judicial award as an arbitrary seizure by the other party, the latter as often as not omits to refute it, merely repeating the statement of his original case, so that finality is by no means ensured in our courts. Similarly, all the venality of the native court may and often does imperceptibly appear in our courts, in which case the result is, if anything, far less satisfactory than it would have been before a native tribunal.

From all this we may conclude firstly that native jurisdiction should be entrusted to their own authorities, secondly, that we must make it our business as far as possible to ensure there the utmost integrity and finality. These conditions guaranteed by us will satisfy native litigants to a degree which our own courts are not capable of achieving.

The facts of a case of recent date are not often in dispute before a native tribunal, for the judges themselves are as often as not aware of them and there remains only the rule of custom to be decided ; but the majority of disputes brought up are of very ancient origin . As often as not two men will agree to leave a dispute as to a certain claim or property because they are friendly, but later in life the friendship may cool and then come claims and counterclaims. Moreover, a claim never lapses, and consequently what A did not demand from B, the descendants of A may very well demand from the descendants of B. Thus B may accidentally have killed A's brother, but A made no claim because he was B's friend ; but his sons or grandsons will probably not omit to claim from B's descendants. Here, then , the whole matter is in dispute, because none of them is really aware of the facts in issue. 

The evidence of witnesses is in general taken greatly into consideration, but this depends largely on who the witnesses are ; for instance, as weighty as a man's evidence might be against his brother, just so worthless it would be in his favour, it being assumed that the witness is biased. To the native a trial is in this respect much like a fight : your brother may be in the wrong, but loyalty forbids you to go against him. So also it were shameful to testify against a clansman ; indeed , some natives, like the Wakamba, always seem to reckon up which of the two contending parties is more nearly allied to them by blood, family, clan, community or tribe, and they give evidence accordingly. Loyalty is simply more weighty than truthfulness, and if a kinsman denies a thing, it is not right to go against him : the blame for the untruthfulness falls on the kinsman. After many years' experience of natives I have to come to the conclusion that in nine cases out of ten in which the truth is spoken in a court, it is spoken by the accused and not by the witnesses. Therefore the native goes so much by what the contending parties say and less by what their witnesses depose to, unless these witnesses have no more interest in the one than in the other. Yet the fewest natives can conceive the rejection of a suit for lack of evidence, and there is undoubtedly a theory that it is for the accused or defendant to clear himself, it being assumed that he is not accused without any cause at all. So often I have had cases referred to me with these words, " and now we appeal to you because this case defeats us, " and invariably I have found that the defeat lies in the fact that there is no evidence at all. It will appear more clearly in the following that the burden of proof lies with the accused as a rule.

Under all these conditions it is explicable that the natives resort to superhuman devices for discovering the truth, and it may be said that in the vast majority of cases where any doubt as to fact exists, some such remedy is sought. These devices may take the form of oaths or ordeals or special tests of a supernatural nature devised by medicine men, and finally fatal curses which only affect the guilty one. It is difficult to draw an exact distinction between these various modes of discovery, and their variations are without number, but I propose merely to relate a few in order to give a general idea of the nature of such devices , and mostly I speak of my own experience.

Oath by witnesses is rare, or if administered it is mostly a mere formula, such as stepping over a stick ; or the witness submits to an ordeal. For instance, the Mkamba may step over a stick and say, " If I lie let my leg be broken," but he is not therefore more credited ; or, as among the Wabena, the accused and his witnesses are given a concoction to drink (Mwafi) which they vomit if they are speaking the truth. So among the Wakamba and many tribes the witnesses may subject themselves to the same ordeal as the accused undergoes . The contending parties are subjected to ordeal or test, but this always voluntary, though their consent or refusal will influence the decision. Among the Theraka, Wakamba, Kikuyu, Wakarra, Wazigua, Washambaa, Wangoni, Wasumbwa, and Wabungu, the oath or ordeal is always taken either by the accused alone or by him in the first instance. Among the Wasove it is taken by both parties, but by the defendant first. If the ordeal or oath is passed by the accused, the case is decided in his favour and the complainant may have to pay compensation. So compensation is paid among the Wasove, Wabena, Wabunga, Washambaa, Wangoni. Among certain tribes the ordeal may be proved by proxy ; so among the Wasove, where dogs and fowls are used ; among the Wabunga, with whom any person, preferably a slave, may be subjected to ordeal on behalf of the accused. Among the Wazigua, if the ordeal is adverse, it may be repeated by a relative, and in Usambaa, if one party is a medicine man, the other party may demand that he shall be substituted by a proxy.

The commonest test or ordeal is perhaps the licking of hot iron . I have seen this performed on more than one occasion, but I have never seen more than a slight scorching of the tongue result. I do not know how it is done in the other tribes , but in Ukamba it was performed as follows : A knife was thoroughly heated in a fire, but previously the medicine man dabbed and streaked a white powder on it. The same medicine was streaked on the man's forehead, nose, on the palms of his hands and on his tongue. The heated knife was then copiously licked with the tongue on both sides. I am told that the powder used was probably diatomite, and that diatomite is an excellent heat-insulator. Without some such protection a man could not possibly touch the knife without severely scorching his tongue, but I have seen it done without any visible results at all. The same powder is used by medicine men for many purposes ; whether they know its true virtue in these cases I cannot say, but it is obvious that the medicine man can direct the issue of the ordeal by the quantity or evenness of smearing the powder on the knife and tongue as he pleases or accidentally applies it. As a matter of fact, the Mkamba does not put much faith in this ordeal, but calls it a " witness, " and generally it is used only as a preliminary to the real or divine ordeal. The Washambaa seem to put more trust in this test, and if the accused sustains it his accuser must pay him one cow in compensation.

Similar ordeals to this are the licking of hot coals and picking an axe-head out of boiling water. It is curious to note that in Sumbwa such ordeals have become converted into formal oaths : for instance, the accused will say, " May I suffer the pain of boiling water if I did so and so, " but it is never put to the test and remains a mere formula. 

Other tests or ordeals practised on the body of the person are piercing the cheek or ear-lobe : if the needle passes through without causing bleeding the person is innocent in Usiguha, but guilty in Upare. In Uzigua another common ordeal is the smearing of a medicine under the eye : if the person is guilty the medicine penetrates the eye and smarts severely. 

The Wabena, Wangoni, Wabunga, Wanyamwezi, and Wasove use a form of test which consists in drinking a concoction or poison called Mwafi.1 This is drunk by both parties, but it is said that in Ubena originally only the accused was put to the test, and it is still often done, so that the drink is given to a fowl on behalf of the prosecutor : if the Mwafi liquor is vomited the innocence of that party is established. If both parties vomited it was in favour of the accused. If the prosecutor died thereof he was considered guilty of the charge he made, and his property was forfeited accordingly. In case of adultery, the Wanyamwezi use a test somewhat in the same nature. The suspected adulteress's apron is wrung in water and the suspected adulterer must drink this, but here his innocence is proved if he retains the liquid.

The Wachagga use a liquid concoction of another sort and with different effect. This is called Kimangano, and it seems to have an intoxicating effect upon the person, who is believed to confess to his guilt under its influence. As a matter of fact, I have ascertained that the person subjected to Kimangano does not speak entirely of his own accord, but the most leading questions are put to him and in his muddled state he is as likely as not to reply in the affirmative, which is taken to be clear proof of guilt. The custom has spread over the whole of Upare from Kilimanjaro. 

These are some of the ordeals by which the truth is put to the test on the person's own body. Other ordeals may be by articles, animals or magic. For instance, in Upare the accused is required to split a piece of wood at a particular point. In the same country it is common for the contending parties each to bring a fowl ; these are decapitated, and the party whose headless fowl flutters farthest has won. More common are avowals made under particular ceremonies or on articles endowed with supernatural virtue and which cause the death of the perjurer. Such is the Kithito of the Wakamba, which is most commonly used in disputes. A Kithito is an article endowed with mysterious powers. There are many Kithitos, and not all are equally powerful and feared in like degree. They consist of horns, banana- leaves or baskets filled with all sorts of odds and ends. The person taking an oath on Kithito should be nude. Seven stones are placed before the Kithito, and the person taking the oath must stand before it so that his heels rest on two of the stones. Holding a twig, porcupine quill or some such thing, he then taps or pierces the Kithito repeatedly, whilst making his avowal in words such as follows : " If I owe you anything let this Kithito kill me.' As a rule both parties take the oath, but it makes little difference, for the effect is the same : the one who gainsays the truth is doomed by the Kithito to die sooner or later, according to its power. Therefore it is more feared when taken by one party without the knowledge of the other, for it operates as a fatal curse of which the victim may be unaware. On the other hand, if he knows of it he may, and often does, take the risk, but as soon as he feels himself sickening he will go to the other and, on restitution of what was demanded, beg to be cured. I have, however, known the oath to be pronounced with the additional clause that if either party should consent to cure the other, he himself shall be afflicted by the Kithito, and this is much dreaded. 

Almost identical with the Kithito in Ukamba is the Kisasi in Kikuyu, though generally of different material. Kisasi are often made of clay in the form of a hollow cylinder. The one taking the oath inserts a bunch of certain herbs into the hollow. Such Kisasi are manufactured, and are not so much feared as some natural articles obtained in one way or another and inherited from father to son. One such seen, and formerly in my possession, appeared to be a lump of volcanic stone having a hole in the centre. 

Something similar to these supernatural objects are the pots used by the Wachagga of these there are comparatively few, mostly only one in each locality in possession of the chief. But these are not used for an oath between two parties so much as for cursing the unknown evil- doer. In Upare the breaking of any pot operates as a curse, and is commonly used in judicial trials. The devices for detection of an unknown offender are without number, and invariably they are in the nature of curses or witchcraft, to avert which the evil-doer may discover himself and give redress.

Actual tests of veracity may be further applied by particular medicine men, and are without number in their kind. I will only mention two which I have witnessed in Kikuyu for an example.

1. Two men were strongly suspected of a theft of cattle. A medicine man was called in, and his performance was as follows : A common lizard was produced, and after being encircled by the doctor's gourds, was held to the nose of one of the men, who was asked if he was the thief. The men denied it and nothing occurred, but when the second man likewise denied his guilt, the lizard immediately bit him in the nostril. The medicine man pronounced the first man innocent and the second an accessory to the theft but not a principal . The same test was applied to two other men, and this time so soon as they denied their guilt the lizard bit the man's nostril and hung on. These were pronounced to be the actual thieves. I endeavoured, by close observation and experiment with several persons, to discover how the trick was done, but could find nothing to explain it ; the medicine man would hold the lizard on his open palm, so that there was no possibility of squeezing or otherwise provoking it to bite. 

2. Two men disputed for the possession of a wife . The one was required to go on all- fours on the ground. A small gourd was then placed on his back, and inside this a leaf, and on it two small bottles sewn in skin. The whole was covered with the man's blanket for a few moments, and on being uncovered the gourd was found about a quarter full of blood-said to be his own and proof of his false statement. Here also I could not find out, despite several repetitions , how the blood was conveyed . into the gourd, where the medicine man had a supply of blood about his person, or how he had kept it from coagulating.

Discovery of the truth by ordeal, test , divining, witchcraft, and cursing is, so far as I know, always the business of a medicine man. In ordinary disputes it is left to the parties to have recourse to such means or not, but it seems that they are invariably applied in accusations of witchcraft as a matter of course. Mere oath without fatal consequences is not administered by a medicine man, but may include much ceremony which requires the administration to be done by elders . One such oath as in use among the Wakikuyu may be described for illustration . A sheep is killed and a piece of the meat, cut from the neck over the shoulder, is roasted on skewers of a particular wood (mugure) , on which seven bark- rings are made. Seven staffs of elders present are bound together with a bunch of leaves of the same wood, and these are waved round the fire by two of the most senior elders. The staffs are then thrown backwards and forwards seven times over the fire and the heads of the parties who sit on either side of it ; they are then laid between the parties and the fire. The parties now leap over the fire seven times, declaring the truth of their statements as they do so. Next each takes half of the meat roasted, which is cut into seven pieces but not entirely severed ; into each piece two acacia thorns are stuck. The slices are bitten off one by one, and in doing so the person extracts the thorns, saying, “ If I lie let me fall like this thorn. " This ends the ceremony ; the staffs are unbound and the fire covered with a little grass . The details of this oath proclaim a religious ceremony rather than any medicine- craft, and it is presumed that here the wrath of the spirits is invoked upon the perjurer. 

Although ordeal or oath is as a rule confined to the contending parties, on occasions witnesses also may be subjected to the same tests, but in my opinion this is only done when a witness is interested in the decision-in which case, of course, he is regarded more as a party than a witness.

A vast number of cases are disposed of by these methods among the more primitive tribes. In fact, it is generally so when an accusation or claim is entirely disputed, for the judicial authority will not undertake to decide on evidence ; indeed , it is more their duty to arbitrate than to decide, and therefore they are prone to leave decision to divine judgment. 

It is said of the Washambaa, Wangoni, Wasumbwa, Wabungu, and Wabena that they have recourse to torture in order to extort confession . Such may occur in any tribe, but it is not considered admissible among any of the tribes known personally to me, and possibly is not so among the five tribes mentioned above. 

I have heard of only one tribe with whom ordeal by duel is known, namely the Wabena, but here it is resorted to only on an accusation of cowardice. The duel is said to be fought to the death in the presence of the chief.

All the devices and methods here discussed are but a few of those in use, and are described merely as examples of the ways and means which Bantu consider justifiable and reliable for discovering the truth in any judicial matter. 

Some of these practices must appear to us as entirely ridiculous and merely calculated to defeat the ends of justice, so that we are unable to countenance them or permit their application. But we should not condemn them all too hastily, especially as long as natives retain a genuine belief in their efficacy. Let it also be considered that originally they were not intended as indisputable deciding factors in trials, for the ultimate outcome of every suit lay with the parties themselves. And in point of fact, natives frequently speak of such devices as " witnesses," according as they are considered fallible or not. One reason for suspicion as to the reliability of these tests lies in the fact that either the medicine man who administers them may be biased or the one party may risk the supposed evil consequences rather than give way, or for some supernatural reason their potency may fail, or, finally, the victim may be cured of the ill effects by the aggrieved party. Hence, although the decision may be guided by some such test, its execution need not necessarily follow, and mostly does not ensue through the judges . It is therefore only when we convert the native tribunal into a European court that the application of these means is apt to defeat the ends of justice. Nevertheless, they have their uses, partly because the one who is in the wrong may fear their supernatural power and therefore give way, knowing himself to be at fault ; partly because many are in the nature of solemn or sacred affirmations which the native will not flippantly pronounce. Not every witness in a European court is a sincere believer in the divine nature of his oath on the Bible, and yet the oath does call to mind very potently the sacred obligation he undertakes in the court. So with the native, even if he has become sceptical, the ceremonial and traditional performance of his oath, test or ordeal is not without veneration in his eyes, and we shall not be well advised if we discard such ceremonies entirely. What we must do, then, is to distinguish between the mere trick or farce , and retain whatever takes the form of oath or affirmation-a solemn warning, we might call it, that under such circumstances custom and tradition demand the truth to be spoken. With this we must teach the native judges not to rely merely on tests, but to use them only as a means for ascertaining the truth whereon they will decide. 

DEATH PENALTIES. 

With the exception of acts of blood revenge and similar forms of homicide, an actual death penalty is rarely inflicted among Bantu, and is feasible almost only among tribes who have despotic chiefs . For instance, among the Wapare, robbers were put to death in times and districts in which there happened to be a powerful chief who appreciated the advantages of ordered conditions. Another crime which frequently involved capital punishment was treason , the traitor being of course equivalent to an enemy, and therefore without rights. Thus, among the Wabena, the chief alone could sentence a man to death, but if robbers were pursued and killed bythe pursuers, or a burglar was caught in the act and killed, the chief would subsequently sanction the killing. In Sumbwa, the woman who causes herself to abort maybe put to death, together with theone who assisted her. Among the Wanyamwezi . and Wamakonde incendiarism was punished with death, that is to say, if the culprit. was caught in the act he was hurled into the flaming house. The Wanyamwezi also punished serious thefts, and in particular thefts of slave women, with death. A very serious form of theft was always the stealing of honey hives in the bush and forest, where they are of course entirely unguarded, and in Ukumba, Kikuyu, and Theraka the thief caught in the act might be killed .

Among the Wangoni it is said that a debtor could formerly be put to death if he refused to pay his debt. 

These examples of death penalties are the exception to the prevailing rule among the Bantu that a man's life could not be forfeited by his acts ; they are not general among the tribes, and I doubt if they are commonly applied in any tribe. But there was one crime which invariably was punished with death , namely, witchcraft . Curiously enough, among tribes which I know personally I have always found that no other penalty than death is known for this crime : it is not compensated as murder, and if the detected wizard is not actually killed he is at least required to take an oath or submit to an ordeal which is believed to cause his or her death in the end. But I do not know of a tribe with whom witchcraft is not punishable by death . The vast majority of natives believe that death from natural causes is the work of supernatural and evil magic. Therefore when anyone dies, or even if great numbers die, as in epidemics, the evil sorcerer is sought out by many devices , and having been found and put to various tests, is convicted and put to death. It may be considered what number of persons have lost their lives for purely childish fancies in past times. On the other hand, supposed witchcraft is practised daily everywhere, and the witch as often as not firinly believes in the power of the magic used . Nor is this always mere magic, for the native does not distinguish between the absurdest concoctions and the most deadly poisons, wherefore innumerable cases of so- called witchcraft are undoubtedly simply cases of poisoning. Other harm is done to individuals and communities through dread of supposed injury done to them, as, for instance, when on one occasion a wizard placed some perfectly harmless medicine beside a water-hole, and so deprived a whole community of their water supply for several days. Imagine, then , the futility of impressing on the native the argument that there is no such thing as witchcraft, and his amazement when a person proved to be a wizard by all the tests ever devised is permitted by the European to go unpunished and at large. As often as not the wizard died a cruel death ; in Useguha, Udoe, and Ukwera, he might be burnt ; in Usambara he was burnt or clubbed and thrown over a precipice ; among the Wapare he was speared , after which the head was cut off, or he was stabbed and thrown from a cliff. Among the Wadigo he was buried alive. A peculiarity about witchcraft is that the execution may be said to be a public execution in which the community is concerned, whereas in other crimes punishable with death it is generally speaking only a matter of a right of private revenge executed by the aggrieved party, excepting in some few tribes whose organization has developed to stable kingship . I incline to think that a death sentence was passed only when proved to the satisfaction of all that the witchcraft practised resulted almost immediately in death, or when one and the same person was proved to be habitually addicted to witchcraft. And here I must speak of a peculiar custom which may be common among many tribes, but which I am familiar with in Kikuyu and Ukamba. Among the former the word mwinge and among the latter kingolle denotes almost any kind of public justice, including force ( I have heard it used for imprisonment) , but in its extreme form it amounted to public execution. When a man had repeatedly committed serious crimes, or was a notorious wizard, so that he came to be regarded as a public danger, the assembled elders might decide that he must be put to death. In such case elders from remote parts were summoned, and the accusations made were deposed to in a form of oath, which is believed to be fatal to the perjurer. The culprit's nearest relative was then called upon to give his consent ; if he refused he was required to take a like oath that the offender would not repeat his crimes. If he consented, as he would in most cases, everyone set upon the offender, the consenting relative making the first attack by casting earth at him, and thereby cursing the victim.1 The latter might defend himself, and no claim could be made for any death or hurt inflicted by him, for henceforth the matter was never referred to again or even mentioned. I myself have experienced such a case in Ukumba. An old woman was reported to be an habitual witch and to have killed a number of children. She was summoned to a place where all the people had assembled in the bush, and her own son placed a noose round her neck, while the rest strangled her by hauling at the rope over a bough. It is my impression that this is regarded as a crime committed of necessity by the people as a whole , and sanctioned by the only one who could take vengeance or claim compensation, namely the nearest relative. Whether or not the same custom obtains among other tribes I cannot say, but I note that among the Sumbwa a family may secure itself against blood revenge by disowning a member who has committed repeated murder or witchcraft : in Upare an incorrigible homicide was beaten and surrendered by his relatives (rupture of brotherhood). In the presence of the chief, who held an arrow aloft, the culprit was stoned and driven away, whereafter anyone might kill him. Among the Wachagga also a reputed wizard might be sentenced to death by his clan and stoned by the women and children . The Theraka under like circumstances flog the offender with terrible severity (loamba) . The practice among these four tribes seems to me akin to the kingolle of the Akamba, i.e. , the killing of an habitual offender with the sanction of his relatives.

Excepting a few isolated examples of tribes with whom it is customary to kill human beings at the burial of a chief, the only other permissible taking of life is in the form of infanticide, and this is very common, particularly in respect to twins. both twins are left to die in the bush. The Banjika and Wanjamwesi kill one child only, if there are triplets. The reason given for these acts is that the survival of such infants would be unlucky. Other tribes kill cripples and deformed children : so the Banjika, among whom also the husband is entitled to kill illegitimate infants of his wife. The Wabunga drown children who are too weakly to live, and so do the Wabena. More disastrous is the practice of infanticide among some tribes, for purely superstitious reasons, as was formerly the practice among the Wangoni, Waziguha, Wapare, Washambaa, Bagwe, Wadoe, and Wakwera. The Wangoni, Bagwe, Wadoe, and Wakwera, it appears, only kill children with whom the upper teeth grow before the lower teeth. The Washambaa kill children for the same reason, also twins , children born at new moon, children who fall from the hands of the midwife, and children born in abnormal position. Not only were such children killed at birth, but they might be killed as adult or old persons, if the diviner at any time indicted them as the causers of general misfortune. Among the Wapare twins were killed , likewise children whose upper teeth appeared first, or in whom the lower incisors did not follow immediately on the upper incisors, children begotten by uninitiated youths, and any child conceived while its mother was suckling and with whom menstruation had not been resumed. Among the Waziguha the superstitious causes of infanticide were almost innumerable and increased with time, until few children survived birth, and the tribe was threatened with extermination. It must not be thought that natives who are given to infanticide are less fond of their children than others. None are more pleased that the custom has been suppressed than are the Waziguha, though superstitious fear may still induce a woman here and there to kill her infant . I recollect two Wapare who gave twin children to a Christian native because for one cause or another they were unlucky. To my arguments they had only to say that they themselves wanted to keep the children , but they knew well that so soon as any ill- fortune befell their neighbours they would at once be accused of having brought it , through these children. And if such a child years later is liable to be put to death as the bringer of disaster it must be admitted that the parents do it a doubtful kindness to allow it to survive. The originators and promoters of this evil belief are of course the medicine men. A superstition arises, and the medicine man is consulted. If he always pronounces the infant to be harmless, people will soon give up consulting him, and his fees will not be forthcoming, but if he frequently discovers that the child is evil- fated and is credited , he will always be consulted and may be sure of a good income. So the medicine men may multiply the causes, and therewith the people's faith in them. Obviously, this cannot go on for many generations, because as it is infant mortality is high enough with all natives, and gradually the tribe dwindles as the Waziguha have, and it may therefore be assumed that where infanticide was extensively practised it was never an old custom.  

HOMICIDE. 

Penaltyfor Homicide : Blood Revenge.

 When questioned as to the penalty provided by their law for the taking of human life, natives invariably speak of compensation to be paid to the deceased's relatives. But we can imagine how ineffectual such a penalty would be among men who, even if not bloodthirsty, always have little control of their passions, and who have scant if any chance at all of finding redress other than by personal retaliation. Moreover, the amount of compensation is usually not so exorbitant that the average well- to - do man cannot easily pay it, and since it is mostly paid by the family or even the whole clan, it is in effect hardly a penalty at all on the evil-doer himself. It may be said here that whenever we find native law seemingly lax or ineffectual to excess, it is to be suspected that we have either not got to the root of it or that there are underlying aspects of the law which are not apparent to us. So it is with the law of homicide, for the truth is that compensation or blood-money was formerly not the normal penalty for homicide, but rather it was a composition voluntarily accepted in lieu of blood revenge, which is now suppressed by us, and therefore not often spoken of by natives. The only tribes concerning whom I am uninformed as to whether blood revenge was the rule, are the Wabunga and Wadigo, but of these also I am prepared to believe that if the murderer was killed in retaliation no actual penalty would fall on the avengers, the two murders being regarded as a set- off against each other-provided that such vengeance was directed against the murderer or some near relative.

Blood revenge was restricted to the slaying of one person, but it naturally tended to further reprisals, and so to feuds or open warfare, which was not to the interest of the chief, sultan or king, who thereby lost subjects, and consequently intervened . And the degree to which such intervention was effectual was according to the power of these supreme authorities. Thus among the Bakumbi murderers were usually executed by order of the chief ; in Usambara the chief had power to execute or enslave a murderer who failed to pay compensation. In Ubena the right of private revenge was apparently not recognized, for here the chief decided either that the murderer should pay or be speared to death by his slave executioner ; in the latter event the culprit's property was appropriated by the chief, who awarded a portion to the relatives of the murdered man.¹ We may suspect that in view of the personal gain accruing to the chief, death penalties were common. With the Wachagga also the right of private revenge was undisputed, but was frequently simply interdicted by the chief wherever he had sufficient authority to enforce his decision.

Sanctuary was known in so far as a murderer might seek refuge with the chief, and the latter, not wishing further bloodshed , would decline to surrender the offender, so that the pursuers were obliged to content themselves with payment of blood-money. Such was the rule among the Waziguha, Wapare, Wangoni, Wanjamwesi, and Wasove.¹ In Sumbwa, however, the chief could not save a murderer if the avengers demanded the right to kill him. With all these tribes the murderer's life was forfeited at any moment before he gained the presence of the chief. Among the less organized tribes revenge was more certain to follow, because there was none to stay it . The Wamakonde killed the murderer, but if he escaped and found protection with his kindred and these refused to pay, a state of war ensued. In Ukamba, Theraka, and Kikuyu, retaliation was no offence ; the elders would seek to bring about a composition of the crime, but this depended on the voluntary agreement of both parties, and hence internal warfare between family and family, village against village, and clan against clan was so much the order of the day that no man was safe, and even to this day these ancient feuds survive to such an extent that neighbouring villagers are found to regard one another as sworn enemies. The Wakarra knew of no composition for murder or homicide of any sort blood revenge followed in every case.  

Thus it will be observed that compensation was far from being the accepted penalty for murder : either the right of revenge prevailed or this was superseded by the power or influence of the authorities, or it was voluntarily waived in favour of payment. But it is only natural that the waiving of this right was held not to be respectable, and that it would easily be interpreted as cowardly. It is , therefore , quite wrong to speak of murder as a matter of compensation merely. 

The right of blood revenge is inherited and becomes more or less obligatory on the rightful avengers. In general it is exercised by the whole or any member of the family, but custom among certain tribes specifies the particular relation on whom this duty devolves . In Useguha, Ungoni, and Unjamwesi the next male relative is the avenger, in Sumbwa the father of the deceased , in Bagwe the brother, or in his absence any male member of the family. In Ukarra a woman who is a mother is avenged by her brother or his son , a father is avenged by his sister's son, a child is avenged by mother's brother, and a brother by his brother. Father, child , and husband have no right of revenge, but whether or not it would be unlawful for those or other relatives to take blood revenge I cannot say. I rather suspect that it is more a matter of obligation than of right.

So far as I am informed, vengeance could be inflicted on one person only, and when it is related that among the Wachagga the murderer and several of his relatives were killed , this simply meant open warfare , just as among the Wamakonde. Elsewhere the rule was as follows : in Upare any clansman could be slain ; in Useguha, if the murderer could not be found, any member of his clan or locality could be killed ; in Kikuyu, Sumbwa, Unjamwesi , and Ukamba, near relatives only, and in Bagwe only a brother ; in Ungoni the murderer's wife might be slain if he was not to be found, while in Ukarra and Unjamwesi only a male for a male and a woman for a woman could be killed ; in Unjamwesi it must be the murderer's sister .

With the infliction of retaliation the crime is expiated and further murders were not justified . How strictly this provision may be observed is indicated by a curious custom of the Wakarra : if a man is seriously injured , the person by whom the injury was caused is held captive and subjected to rigorous treatment until the injured man recovers, but should the offender die while in captivity, his relatives have the right of blood revenge, notwithstanding that the other party was acting by right .

Probably among all tribes there were occasions and seasons when blood revenge had to be stayed for religious considerations ; thus in Sumbwa, during the month called Kwera, in which the chief sacrifices to his ancestors. The Wakikuyu also have certain periods when rain sacrifices are offered, and during these no man may touch the earth with iron, ¹ and I conjecture at such times blood revenge is equally unpermissible.

Blood- money.

I have mentioned before that where blood- money is agreed upon it is mostly paid by the family or clan. Among the Wakamba, Wakikuyu, Theraka, Wapare, and Wasove, the greater part is paid by the clan ; in Useguha, Bakumbi , and Sumbwa the family pays, and the Wachagga say that the family usually subscribed, but that they could not be compelled to do so, though it followed as a matter of course that if they wished to be preserved from a continued feud they must subscribe whatever their offending kinsman either could not or would not pay.

Blood-money is paid to the next of kin as representative of the family, but is generally distributed by him to the various relatives of the deceased . In Useguha the female relatives receive a share. In Theraka, Ukamba, and Kikuyu, I have found that the actual recipient retains only about a quarter of what is paid. 

It will be seen that just as blood revenge is not restricted against the culprit only, so blood-money given in place of revenge is paid by and to the respective families . Homicide is , in fact , a crime which concerns the whole family or even the whole clan on both sides ; the clan and family have been weakened by the loss of a member, and this is a loss which is felt beyond the circle of immediate relatives. In this respect murder is treated differently from all other crimes , and has probably retained a significance surviving from the most primitive times in that it reflects so vividly the individual solely as one of the family group or clan .

Manslaughter and Accident. 

In the Rombo area of Chagga Land I was told that in the case of premeditated murder blood revenge always ensued, and it seems natural that when it lay with the aggrieved party to reject compensation they would be the more inclined to do so in the case of deliberately premeditated as well as unprovoked murder. Perhaps such cases of homicide were more common in former times ; at the present day it must be said that they are rare. The great majority of homicidal cases are the result of sudden quarrels generally arising over beer drinks. But excepting as the aggrieved party may be influenced by the motive to compound the crime, few tribes make much difference between one form and another of homicidal acts : even accident is not always a mitigating consideration, though in such case settlement by compensation is more or less ensured. But very convincing proof will always be required , and it may be said that the onus of proving that it was accident lies with the offender. Of the Sumbwa, Bakumbi, and Wakarra, it is said that whether death was caused accidentally or not, blood revenge is always inflicted ; in Sumbwa even if it was done in self-defence. The same is the rule in Kikuyu and Theraka, indeed the law of these two tribes goes so far as to make a man liable for compensation for accidentally killing a man whilst attempting to save his life, as, for instance, inadvertently spearing a friend who has been seized by a lion ; even for striking a corpse or inflicting a slight injury in course of a fatal fight, a man is liable for half or a quarter blood- money, while in Ukamba the penalty for striking a corpse is full blood-money. In Unyamwesi accident is admitted in practice only if eye-winesses can testify to it, but killing in self- defence is lawful. In Ubena and Ungoni accident is never taken into account, but killing in self-defence is lawful in Ubena, excepting that one cow must be paid to the chief for loss of a subject. It is said that the Wamakonde in theory do not punish unintended homicide, but that accident is never admitted in practice. In Upare only a small payment is demanded for unintended acts generally, but I am not certain whether this applies also to homicide especially, because in cases of other hurts only the injured person can declare his readiness to believe that it was not wilfully done. Among the Waziguha, Wadigo, and Wachagga, reduced blood-money is paid for accidental killing ; in Useguha killing in self- defence is not punishable. In Ukamba accidental killing is called Mbanga, and is punished by payment of half blood-money. The Pare term Mbanya for accidental killing is obviously the same word.¹ In Kikuyu the term Mbangu has a different meaning, namely, death caused not directly by any person, but by his property ; as, for instance, by a ferocious bull or the fall of a beehive from a tree. In such cases the article or animal which was the cause of death is given to the deceased's relative, but in the Kyambu section of Kikuyu half blood-money is paid ; nothing, however, is due in Ukamba, and in most parts of Kikuyu, unless the person killed was employed or directed to handle the article or animal.

The Wachagga informed me that no compensation is payable in such cases. I regret that the question has not been investigated elsewhere, but a somewhat similar practice obtains among the Wamakonde : here full blood-money is five to ten slaves, but if, for instance, a guest is burnt to death in his host's hut, or if a man were to send another to climb a tree, and the one sent were to fall and be killed , one slave must be paid, provided that such deaths were not caused by sheer folly of the victim himself ; in the latter case the host or employer will demand a small fee for purification of his village.  

 page 240

BOOK NAME: THE JOURNAL OF THE ROYAL ANTHROPOLOGICAL INSTITUTE OF GREAT BRITAIN AND IRELAND.

PUBLISHED: 1921

By the HON. CHARLES DUNDAS.