Primitive Manners and Customs

by James Anson Farrer

The different stages of progress from the lowest social state, where the redress of wrongs is left to individual force or cunning, to the state where the wrongs of individuals are regarded and punished as wrongs to the community at large, may be all observed in the customs of modern or recent savage tribes. Yet instances where the redress of wrongs is purely a matter of personal retaliation are not really numerous, occurring chiefly where the rulership of a tribe is ill-defined and is an exercise of influence rather than authority, as among the Esquimaux, the Kamschadals, and some Californian and other American tribes. In such states of society, though some political sovereignty is vested in the heads of the different families, they have but little power either to make commands or to inflict punishments, so that self-help is for individuals the first rule of existence. But generally this deficiency in the legal protection of life and property is made up for by a principle which lies at the root of savage law—the principle, that is, of collective responsibility, of including in the guilt of an individual all his blood relations jointly or singly.

This consideration of crimes as family or tribal rather than as personal matters, (the duty of satisfying the family or tribe of anyone injured devolving upon the family or tribe of the wrongdoer,) must have tended in the earliest times to withdraw attention from the merely personal aspect of injuries and to direct it to their more social relations. The common test of likelihood is no bad guide in ethnology; and the difficulty of conceiving any society of men, even the most savage, living together absolutely unaffected by, or uninterested in, wrongs done by one of their members to another, is only equalled by the difficulty of finding credible records of any such community. Even in Kamschatka, where the head of an ostrog had only the power to punish verbally, a man caught stealing was held so infamous, that no one would befriend him, and he had to live thenceforth alone without help from anybody; whilst, if the habit seemed inveterate, the thief was bound to a tree, and his arms bound by a piece of birch-bark to a pole stretched crosswise; the bark was then ignited, and the man’s hands, thereby branded, marked his character in future to all who might be interested in knowing it.[218] Even in so rude a tribe as the Brazilian Topanazes, a murderer of a fellow-tribesman would be conducted by his relations to those of the deceased, to be by them forthwith strangled and buried, in satisfaction of their rights; the two families eating together for several days after the event as though for the purpose of reconciliation.[219] And several other tribes, destitute of any chiefs possessing the power or right to judge or punish, have fixed customs regulating such offences as theft or murder. Thus the Nootka Indians avenge or compound for punishable acts, though their chiefs have little or no voice in the matter. Where, as among the Haidahs of Columbia, crime likewise has no legal punishment, murder being simply an affair to be settled with the robbed family, we may detect the beginnings of later legal practices in the occasional agreement among the leading men to put to death disagreeable members of the tribe, such as medicine-men, and other great offenders.[220] So that wherever, from causes of war or otherwise, tribal chieftaincy has become at all fixed and powerful, we may expect to find the chief or chiefs called upon to settle disputes between individuals or families; and thus gradually a way would be found for the addition of judicial functions to the more primary duties of government.

From this natural tendency of submitting disputed claims or the measure of redress to the decision of a single chieftain or of several, the personal right of retaliation would soon become a tribal one; and though ignorant of the science of jurisprudence, most savage tribes seem early to have learnt to treat torts or offences against an individual as crimes or offences against the community, taking as their standard of punishment the measure of the wrong done to the individual. The transfer of sovereignty from smaller units to the tribe is clearly marked in instances where the chiefs of a tribe try crimes and decide guilt, but leave the punishment of the offender to the discretion of the injured persons or family; of which the following are characteristic illustrations.

According to Catlin, every Indian tribe he visited had a council-house in the middle of their village, where the chiefs would assemble, as well for the investigation of crimes as for public business, giving decisions after trial concerning capital offences, but leaving the punishment to the nearest of kin, to be inflicted by him under the penalty of social disgrace, but free from any control by them as to time, place, or manner.[221] So also on the Gold Coast, where suits lay at the decision of the caboceros or chiefs, the original conception of murder appears clearly, in the practice for the murderer to get generally from the relations of the deceased some abatement of the pecuniary penalty affixed by law to his crime; they being the only persons the criminal had to agree with, and free to take from him as little as they pleased, whilst the king had no pretence to any share of the fine except what he might get for his trouble in exacting it.[222] In the Central African kingdom of Bornou, a convicted murderer was handed over to the discretional revenge of the murdered man’s family.[223] In Samoa, again, the chief of a village and the heads of families, forming as they did the judicial as well as legislative body, might condemn a culprit to sit for hours naked in the sun, to be hung by his head, to take five bites from a pungent root, or to play at ball with a prickly sea-urchin, according to the nature of his offence. But one punishment was especially remarkable, as showing how the right of punishment originally belonging to the family may survive in form long after it has in reality passed to a wider political union. This was the punishment of binding a criminal hand and foot and carrying him suspended from a prickly pole run through between his hands and feet, to the family of the village against which he had transgressed, and there depositing him before them, as if to signify that he lay at their mercy.[224] And in the villages of Afghanistan, where an assembly of the elders act as the judges of the people, a show is always made of delivering up the criminal to the accuser and of giving the latter the chance of retaliating, though it is perfectly understood that he must comply with the wishes of the assembly. This instance, therefore, illustrates the two distinct methods of legal punishment in process of actual transition from one to the other.[225]

If then the original standard of punishment was just that amount of severity which would suffice to prevent individuals from seeking satisfaction by their private efforts and avenging their own wrongs, it is intelligible that penal customs should be cruel in proportion to their primitiveness. It is distinctly stated that in Samoa fines in food and property gradually superseded more severe penalties. Yet, in the face of the very varying penalties found in most different conditions of culture, it is a subject on which it is difficult to lay down any rule. Sometimes murder alone is a capital crime, sometimes theft, witchcraft, and adultery as well; sometimes all or some of them are commutable by fine. Nor does it seem that, wherever an offence is punishable by fine, the penalty has been mitigated from one originally more severe. In some cases the chief judges may have found their interest in assessing a more humane, and to themselves more profitable, forfeit than that of life or limb; but savages, living in the most primitive conditions, seem to have been led by their natural reason alone to observe fitting proportions between crime and retribution. For their punishments, in default generally of imprisonment or banishment, are not as a rule gratuitously cruel: though as occasional punishments among the Caffres are mentioned the application of hot stones to the naked body, or exposure to the torments of ants;[226] and slavery, so common a punishment in Africa, far from being essentially cruel, is rather a sign of an amelioration of manners, of a reasonable willingness to take the useful satisfaction of a man’s labour in lieu of the useless one of his life. Severity of the penal code would rather seem to be a concomitant of growth in civilisation, of stronger and deeper moral feelings, of a sense of the failure of milder means, than of a really primitive savagery. On the whole continent of America no savage tribe ever approached the Aztecs in cruelty of punishment, nor is it among people of a ruder type of culture that we should ever look to find some form of death the penalty alike for the lightest as for the gravest crimes, for slander no less than for adultery, for intoxication as much as for homicide.[227]

It might naturally be inferred that, because the laws of savages are unwritten and depend on usage alone for their preservation, therefore they are entirely uncertain and arbitrary. This, however, is not often the case. On few points are the statements of travellers less vague than on the details of native penal customs; a fact which is only compatible with their being both well known and regularly enforced. What the Abbé Froyart says of the natives of Loango, may be said of all but the lowest tribes: ‘There is no one ignorant of the cases which incur the pain of death, and of those for which the offender becomes the slave of the person offended.’[228] The laws of the Caffre tribes are said to be a collection of precedents, of decisions of bygone chiefs and councils, appealing solely to what has been customary in the past, never to the abstract merits of the case. There appears, it is said, to be no uncertainty whatever in their administration, the criminality of different acts being measured exactly by a fixed number of cattle payable in atonement. And the customs reported from Ashantee manifest a similar sense of the value of fixed penalties. An Ashantee is at liberty to kill his slave, but is punished if he kills his wife or child; only a chief can sell his wife or put her to death for infidelity; whilst a great man who kills his equal in rank is generally suffered to die by his own hands. If a man brings a frivolous accusation against another, he must give an entertainment to the family and friends of the accused; if he breaks an Aggry bead in a scuffle, he must pay seven slaves to the owner. A wife who betrays a secret forfeits her upper lip, an ear if she listens to a private conversation of her husband.[229] Savage also as is the kingdom of Dahomey, arbitrary power is so far limited, that no sentence of death or slavery, adjudged by an assembly of chiefs, can be carried out without confirmation from the throne; and such a sentence ‘must be executed in the capital, and notice given of it by the public crier in the market.’ It is no paradox to say, that human life, even in Dahomey, enjoys more efficient legal protection at this day than it did in England in times long subsequent to the signature of Magna Charta.

The forms of legal procedure manifest often no less regularity than the laws themselves. In Congo the plaintiff opens his case on his knees to the judge, who sits under a tree or in a great straw hut built on purpose, holding a staff of authority in his hand. When he has heard the plaintiff’s evidence he hears the defendant, then calls the witnesses, and decides accordingly. The successful suitor pays a sum to the judge’s box, and stretches himself at full length on the ground to testify his gratitude.[230] In Loango, the king, acting as judge, has several assessors to consult in difficult cases, and the suit begins by both parties making a present to the king, who then proceeds to hear in turn plaintiff, defendant, and witnesses. In default of witnesses the affair is deferred, spies being sent to gather ampler information and ground for judgment from the talk of the people. In the public trials of Ashantee ‘the accused is always heard fully, and is obliged either to commit or exculpate himself on every point.’ On the Gold Coast a plaintiff would sometimes defer his suit for thirty years, letting it devolve on his heirs, if the judges, the caboceros, from interested motives, delayed to grant him a trial and thus obliged him to wait, in hopes of finding less impartial or else more amenable judges in the future.[231]

Several rules of savage jurisprudence betray curiously different notions of equity from those of more civilised lands. The Abbé Froyart was shocked that, on the complaint of the missionaries to the King of Loango of nocturnal disturbances round their dwellings, the king should have issued an ordinance making the disturbance of the missionaries’ repose a capital crime. The reason the natives gave him for thus putting slight offences on an equality with grave ones was, that, in proportion to the ease of abstinence from anything forbidden, or of the performance of anything commanded was the inexcusableness of disobedience and the deserved severity of punishment. Again, impartiality with regard to rank or wealth, which is now regarded in England as a self-evident principle of justice, as a primary instinct of equity, is by no means so regarded by savages; for not only is murder often atoned for according to the rank of the murderer, as on the Gold Coast or in old Anglo-Saxon law, on the basis, apparently, of the value to the individual of his loss in death, but such difference of rank sometimes enters into the estimate of the due punishment for robbery. Thus the Guinea Coast negroes thought it reasonable to punish rich persons guilty of robbery more severely than the poor, because, they said, the rich were not urged to it by necessity, and could better spare the money-fines laid on them. Caffre law distinguishes broadly and clearly between injuries to a man’s person and injuries to his property, accounting the former as offences against the chief to whom he belongs, and making such chief sole recipient of all fines, allowing only personal redress where a man’s property has been damaged. Thus Caffre law divides itself into lines bearing some analogy to those of our criminal and civil law: such offences as treason, murder, assault, and witchcraft entering into the criminal code, and constituting injuries to the actual sufferer’s chief; whilst adultery, slander, and other forms of theft, enter as it were into the civil law, as injuries for which there are direct personal remedies.[232]