Criminal charges, too, in the first instance, are brought before the chief’s or head-man’s court. A man caught stealing may, by native law, be killed, and his death entails no prosecution. He may be caught alive, and would then be put into a slave-stick for safe-keeping, till ransomed by his friends; and killed, or kept as a slave, if no ransom were forthcoming.
When a theft has been committed, without suspicion falling on any particular person, the diviner or the mabisalila is consulted, and the person pointed out by him or her accused before the court. The prosecutors demand restitution of the stolen goods; the defendant pleads not guilty, and offers to drink mwavi to prove it. His friends, if they believe him innocent, will demand the ordeal on his behalf; if they have misgivings, they will be afraid to run the risk, convinced, as they are, that the guilty party invariably dies, and knowing that, in such a case, they will have to pay the full value of whatever was stolen. If guilty, a man will probably confess rather than risk the ordeal—he, or his relations, will have to make restitution and pay a fine besides, the head-man of his village being held responsible. These payments also have to be made for him, if his confidence in the judgment of the ordeal turns out to have been misplaced—his death, in the native view, conclusively proving his guilt. If, on the other hand, he survives, the accusers have to pay over a fine to him, and the sorcerer is assumed to have been mistaken. Some try a second sorcerer, but he must not point out the man just acquitted, as no man can be made to drink mwavi twice on the same charge.
Theft, if brought into court at all, is always punished by a fine; but sometimes the thief is handed over as a slave to the injured party. Other ordeals are sometimes used besides the mwavi—plunging the hand into hot water, or touching red-hot iron—but the principle is the same: injury to the hand proves guilt. It will be noticed that the head-man is held responsible for thefts committed by his villagers, in accordance with the principle already stated. (He may, in fact, be the receiver of the stolen goods.) If he refuses to take the matter up when it is brought to his notice, war may be the result.
A murderer, if caught red-handed, may be killed by the friends of his victim; or they may put him in a slave-stick till slaves have been paid over for his ransom. Some of these are sometimes sacrificed to the manes of the victim. If the actual slayer cannot be caught, a man from the same village may be captured and held to ransom in the same way. In some cases, no distinction is made between accidental homicide and murder; sometimes a gun which has been the cause of an accident is seized instead of the owner, and held till he pays several slaves for it. Sometimes, however, the view is taken that the man or his gun may have been bewitched, and steps are taken to find out and punish the person who has done this. The man who kills his own slave, or even his younger brother, or other ward, is not amenable to justice, but—unless he can protect himself by a charm—he is afraid of the mysterious chirope which overtakes those who shed blood within the tribe. The chief, to whom he goes if he has committed such a murder, procures the charm for him from his own medicine-man, and uses it himself as well, ‘because of the blood that has been shed in his land.’
Adultery is theoretically a capital crime with most Bantu tribes; that is, the man may be (and frequently is) shot or speared by the husband; the wife is frequently let off with a warning the first time, but for a second offence either killed or divorced and sent back to her relatives, who in such a case must return whatever present was made at the marriage. Sometimes she drinks mwavi, and is, of course, accounted guilty if she dies. But in practice, the matter is often arranged by paying damages, or the guilty man may be sold into slavery. Still there can be no question that (where they have not been corrupted by outside influences, or their customs and institutions disorganised by war, etc.) they look on it as a very serious affair.
Slave wives are more summarily dealt with, and are often either killed or sold. I have seen one ‘Angoni’ woman who had had her nose and ears cut off, but seemed to be living on in her husband’s (or master’s) family, as before,—though evidently doing most of the heavy work. But such cases are not common, except perhaps among the coast Arabs, who have large slave harems and rule them by terror.
From what has already been said, it will be seen that in ordinary procedure formal executions are not common; if the criminal has not been killed red-handed, or if he does not undergo the ordeal, the trial usually ends in a fine, or in his being handed over as a slave to his accusers. But where the chief orders a man to be executed, he is usually stabbed or has his throat cut. Sometimes a wizard is shot at once on being detected by the Mabisalila, and sometimes, when convicted by the ordeal, the crowd fall upon him and lynch him without waiting for the poison to do its work: an outbreak of panic ferocity which has its parallel, in a more deliberate form, in the records of English and Scottish witch-trials.
Witches were in former times sometimes burned alive by the Yaos; but Mr. Macdonald says that in his time this was only done if they refused the mwavi test, which was not likely to happen. It was done also by the Anyanja at Likoma, and the stake where these executions took place stood on the site of the present Cathedral. But by far the greater number of cases were left to be decided by the issue of the poison.
At one time, the Yaos used to torture the person pointed out by the witch-detective by squeezing his head between two pieces of wood, till he pointed out where the horns were buried; but in later times the Mabisalila found the horns (as already described) as well as naming the witch. But I do not think that this, or judicial torture to extort confession of ordinary crime, is common.
An act of sacrilege held to be penal is when a free man sets fire to grass or reeds near a lake supposed to be the abode of a tutelary spirit, in which case he would be thrown into the lake. This perhaps would be rather a sacrifice than an execution.