CHAPTER 11. LAWS OF RELATIONSHIP, MARRIAGE, AND INHERITANCE.
RELATIONSHIP AND MARRIAGE. DIVISION OF FAMILIES.
Traditional Laws of Relationship and Marriage.
One of the most remarkable facts connected with the natives is that they are divided into certain great families, all the members of which bear the same names, as a family, or second name: the principal branches of these families, so far as I have been able to ascertain, are the:
Ballaroke
Tdondarup
Ngotak
Nagarnook
Nogonyuk
Mongalung
Narrangur.
But in different districts the members of these families give a local name to the one to which they belong, which is understood in that district to indicate some particular branch of the principal family. The most common local names are:
Didaroke
Gwerrinjoke
Maleoke
Waddaroke
Djekoke
Kotejumeno
Namyungo
Yungaree.
These family names are common over a great portion of the continent; for instance, on the Western coast, in a tract of country extending between four and five hundred miles in latitude, members of all these families are found. In South Australia I met a man who said that he belonged to one of them, and Captain Flinders mentions Yungaree as the name of a native in the gulf of Carpentaria.
LAW OF MARRIAGE.
These family names are perpetuated and spread through the country by the operation of two remarkable laws:
1. That children of either sex always take the family name of their mother.
2. That a man cannot marry a woman of his own family name.
COINCIDENT INSTITUTIONS AMONGST THE NORTH AMERICAN INDIANS.
But not the least singular circumstance connected with these institutions is their coincidence with those of the North American Indians, which are thus stated in the Archaeologia Americana:*
Independent of political or geographical divisions, that into families or clans has been established from time immemorial. At what time and in what manner the division was first made is not known. At present, or till very lately, every nation was divided into a number of clans, varying in the several nations from three to eight or ten, the members of which respectively were dispersed indiscriminately throughout the whole nation. It has been fully ascertained that the inviolable regulations by which those clans were perpetuated amongst the southern nations were, first, that no man could marry in his own clan; secondly, that every child belongs to his or her mother's clan. Among the Choctaws there are two great divisions, each of which is subdivided into four clans, and no man can marry in any of the four clans belonging to his division. The restriction among the Cherokees, the Creeks, and the Natches, does not extend beyond the clan to which the man belongs.
There are sufficient proofs, that the same division into clans, commonly called tribes, exists among almost all the other Indian nations. But it is not so clear that they are subject to the same regulations which prevail amongst the southern Indians.
(*Footnote. Volume 2 page 109.)
A similar law of consanguinity seems to be inferred in Abraham's reply to Abimelech (Genesis 20:12) And yet indeed she is my sister; she is the daughter of my father, but not the daughter of my mother, and she became my wife.
FAMILY NAMES AND SIGNS. ORIGIN OF FAMILY NAMES.
The origin of these family names is attributed by the natives to different causes, but I think that enough is not yet known on the subject to enable us to form an accurate opinion on this point. One origin frequently assigned by the natives is that they were derived from some vegetable or animal being very common in the district which the family inhabited, and that hence the name of this animal or vegetable became applied to the family. I have in my published vocabulary of the native language, under each family name, given its derivations as far as I could collect them from the statements of the natives.
But as each family adopts some animal or vegetable as their crest or sign, or Kobong, as they call it, I imagine it more likely that these have been named after the families than that the families have been named after them.
SECOND COINCIDENCE.
A certain mysterious connection exists between a family and its kobong, so that a member of the family will never kill an animal of the species to which his kobong belongs, should he find it asleep; indeed he always kills it reluctantly, and never without affording it a chance to escape. This arises from the family belief that some one individual of the species is their nearest friend, to kill whom would be a great crime, and to be carefully avoided. Similarly a native who has a vegetable for his kobong may not gather it under certain circumstances and at a particular period of the year. The North American Indians have this same custom of taking some animal as their sign. Thus it is stated in the Archaeologia Americana:* "Each tribe has the name of some animal. Among the Hurons the first tribe is that of the bear; the two others of the wolf and turtle. The Iroquois nation has the same divisions, only the turtle family is divided into two, the great and the little." And again, in speaking of the Sioux tribes:** "Each of these derives its name from some animal, part of an animal, or other substance which is considered as the peculiar sacred object or medicine, as the Canadians call it, of each band respectively." To this we may add the testimony of John Long, who says,*** "one part of the religious superstition of the savages consists in each of them having his totem, or favourite spirit, which he believes watches over him. This totem they conceive assumes the shape of some beast or other, and therefore they never kill, hunt, or eat the animal whose form they think the totem bears."
(*Footnote. Volume 2 page 109 quoting from Charlevoix volume 3 page 266.)
(**Footnote. Ibid page 110 quoting from Major Long's Exp. volume 1 chapter 15.)
(***Footnote. Voyages and Travels page 86.)
Civilized nations, in their heraldic bearings, preserve traces of the same custom.
BETROTHMENTS AND MARRIAGES.
Female children are always betrothed within a few days after their birth; and from the moment they are betrothed the parents cease to have any control over the future settlement of their child. Should the first husband die before the girl has attained the years of puberty she then belongs to his heir.
A girl lives with her husband at any age she pleases, no control whatever is in this way placed upon her inclinations.
WIDOWS.
When a native dies his brother inherits his wives and children, but his brother must be of the same family name as himself. The widow goes to her second husband's hut three days after the death of her first.
The old men manage to keep the females a good deal amongst themselves, giving their daughters to one another, and the more female children they have the greater chance have they of getting another wife by this sort of exchange; but the women have generally some favourite amongst the young men, always looking forward to be his wife at the death of her husband.
OBLIGATIONS OF RELATIONSHIP. DIVISION OF FAMILY BRANCHES.
But a most remarkable law is that which obliges families connected by blood upon the female side to join for the purpose of defence and avenging crimes; and as the father marries several wives, and very often all of different families, his children are repeatedly all divided amongst themselves; no common bond of union exists between them, and this custom alone would be sufficient to prevent this people ever emerging from the savage state.
As their laws are principally made up of sets of obligations due from members of the same great family towards one another--which obligations of family names are much stronger than those of blood--it is evident that a vast influence upon the manners and state of this people must be brought about by this arrangement into classes. I therefore devoted a great portion of my attention to this point, but the mass of materials I have collected is so large that it would occupy much more time to arrange it than I have been able to spare so as to do full justice to the subject; but in order to give an accurate idea of the nature of the enquiries I pursued I have given in the Appendix A a short genealogical list which will show the manner in which a native gives birth to a progeny of a totally different family name to himself; so that a district of country never remains for two successive generations in the same family. These observations, as well as others made with regard to the natives, can be only considered to apply, as yet, to that portion of Western Australia lying between the 30th and 35th parallels of south latitude unless the contrary is expressly stated; though I think there is strong reason to suppose that they will, in general, be found to obtain throughout the continent.
DIFFICULTY OF PURSUING THE ENQUIRY.
It is impossible for any person not well acquainted with the language of the natives and who does not possess great personal influence over them to pursue an inquiry of this nature; for one of the customs most rigidly observed and enforced amongst them is never to mention the name of a deceased person, male or female. In an inquiry therefore which principally turns upon the names of their ancestors this prejudice must be every moment violated, and a very great difficulty has thus to be encountered in the outset. The only circumstance which at all enabled me to overcome this was that the longer a person has been dead the less repugnance do they evince in uttering his name. I therefore in the first instance endeavoured to ascertain only the oldest names on record; and on subsequent occasions, when I found a native alone and in a loquacious humour, I succeeded in filling up some of the blanks. Occasionally round their fires at night I managed to involve them in disputes regarding their ancestors, and on these occasions gleaned much of the information of which I was in want.
LAWS OF LANDED PROPERTY. RIGHTS AND BOUNDARIES. PROPERTY VESTED IN INDIVIDUALS.
Traditional Laws relative to Landed Property.
Landed property does not belong to a tribe, or to several families, but to a single male; and the limits of his property are so accurately defined that every native knows those of his own land, and can point out the various objects which mark his boundary. I cannot establish the fact and the universality of this institution better than by the following letter addressed by Dr. Lang, the Principal of Sydney College, New South Wales, to Dr. Hodgkin, the zealous advocate of the Aboriginal Races:*
(*Footnote. Extracted from the Reports of the Aboriginal Protection Society.)
Liverpool, 15th November 1840.
My Dear Friend,
In reply to the question which you proposed to me some time ago in the course of conversation in London, and of which you have reminded me in the letter I had the pleasure of receiving from you yesterday, with the pamphlets and letters for America, namely, Whether the Aborigines of the Australian continent have any idea of property in land, I beg to answer most decidedly in the affirmative. It is well known that these Aborigines in no instance cultivate the soil, but subsist entirely by hunting and fishing, and on the wild roots they find in certain localities (especially the common fern) with occasionally a little wild honey; indigenous fruits being exceedingly rare. The whole race is divided into tribes, more or less numerous, according to circumstances, and designated from the localities they inhabit; for although universally a wandering race, with respect to places of habitation, their wanderings are circumscribed by certain well-defined limits, beyond which they seldom pass, except for purposes of war or festivity. In short, every tribe has its own district, the boundaries of which are well known to the natives generally; and within that district all the wild animals are considered as much the property of the tribe inhabiting, or rather ranging on, its whole extent, as the flocks of sheep and herds of cattle that have been introduced into the country by adventurous Europeans are held by European law and usage the property of their respective owners. In fact, as the country is occupied chiefly for pastoral purposes, the difference between the Aboriginal and the European ideas of property in the soil is more imaginary than real, the native grass affording subsistence to the kangaroos of the natives as well as to the wild cattle of the Europeans, and the only difference indeed being that the former are not branded with a particular mark like the latter, and are somewhat wilder and more difficult to catch.
EFFECTS OF EUROPEAN APPROPRIATION.
Nay, as the European regards the intrusion of any other white man upon the cattle-run, of which European law and usage have made him the possessor, and gets it punished as a trespass, the Aborigines of the particular tribe inhabiting a particular district regard the intrusion of any other tribe of Aborigines upon that district, for the purposes of kangaroo hunting, etc., as an intrusion to be resisted and punished by force of arms. In short this is the frequent cause of Aboriginal, as it is of European wars; man, in his natural state, being very much alike in all conditions--jealous of his rights and exceedingly pugnacious. It is true the European intruders pay no respect to these Aboriginal divisions of the territory, the black native being often hunted off his own ground or destroyed by European violence, dissipation, or disease, just as his kangaroos are driven off that ground by the European's black cattle; but this surely does not alter the case as to the right of the Aborigines.
UNIVERSALITY OF THIS CUSTOM.
But particular districts are not merely the property of particular tribes; particular sections or portions of these districts are universally recognised by the natives as the property of individual members of these tribes; and when the owner of such a section or portion of territory (as I ascertained was the case at King George's Island) has determined on burning off the grass on his land, which is done for the double purpose of enabling the natives to take the older animals more easily, and to provide a new crop of sweeter grass for the rising generation of the forest, not only all the other individuals of his own tribe, but whole tribes from other districts, are invited to the hunting party and the feast and dance, or corroboree that ensue; the wild animals on the ground being all considered the property of the owner of the land. I have often heard natives myself tell me, in answer to my own questions on the subject, who were the Aboriginal owners of particular tracts of land now held by Europeans; and indeed this idea of property in the soil, FOR HUNTING PURPOSES, is universal among the Aborigines. They seldom complain of the intrusion of Europeans; on the contrary, they are pleased at their sitting down, as they call it, on their land: they do not perceive that their own circumstances are thereby sadly altered for the worse in most cases; that their means of subsistence are gradually more and more limited, and their numbers rapidly diminished: in short, in the simplicity of their hearts, they take the frozen adder in their bosom, and it stings them to death. They look for a benefit or blessing from European intercourse, and it becomes their ruin.
If I had had a little more leisure I would have written more at length and in a style more worthy of your perusal; but you may take it as certain, at all events, that the Aborigines of Australia HAVE an idea of property in the soil in their native and original state, and that that idea is, in reality, not very different from that of the European proprietors of sheep and cattle, by whom they have, in so many instances been dispossessed, without the slightest consideration of their rights or feelings.
Indeed the infinity of the native names of places, all of which are descriptive and appropriate, is of itself a prima facie evidence of their having strong ideas of property in the soil; for it is only where such ideas are entertained and acted on that we find, as is certainly the case in Australia, Nullum sine nomine saxum.
I am, my dear Friend,
Your's very sincerely,
JOHN DUNMORE LANG.
To Dr. Hodgkin.
LAWS OF INHERITANCE AND TRESPASS. LINE OF INHERITANCE.
A father divides his land during his lifetime, fairly apportioning it amongst his several sons, and at as early an age as fourteen or fifteen they can point out the portion which they are eventually to inherit.
If the males of a family become extinct the male children of the daughters inherit their grandfather's land.
CERTAIN LAWS REGARDING ARTICLES OF FOOD.
The punishment of trespass for the purpose of hunting, is invariably death, if taken in the fact, and at the very least an obstinate contest ensues. If the trespasser is not taken in the fact, but is recognised from his footmarks, or from any other circumstance, and is ever caught in a defenceless state, he is probably killed; but if he appears attended by his friends he is speared through the thigh, in a manner which will be mentioned under the head of punishments.
There are other laws intended for the preservation of food, such as that which enjoins that:
1. No vegetable production used by the natives as food should be plucked or gathered when bearing seed.
2. That certain classes of natives should not eat particular articles of food; this restriction being tantamount to game laws, which preserve certain choice and scarce articles of food from being so generally destroyed as those which are more abundant.
3. The law regarding the family kobongs, mentioned above.
Independent of these laws there are certain articles of food which they reject in one portion of the continent and which are eaten in another; and that this rejection does not arise from the noxious qualities of the article is plain, for it is sometimes not only of an innocent nature but both palatable and nutritious: I may take for example the unio, which the natives of South-west Australia will not eat because, according to a tradition, a long time ago some natives ate them and died through the agency of certain sorcerers who looked upon that shellfish as their peculiar property.