The binding of the Nile and the new Soudan

by Sidney Cornwallis Peel

The sacred Mohammedan law is a very delicate matter for Europeans to deal with. It abounds in defects, but suggestions for reform coming from a Christian would not be well received. There are also opportunities for conflict with the ordinary civil courts. For example, in a question of inheritance a dispute as to whether the deceased person was a Mohammedan or not could only be properly settled by the civil court. But all difficulties have been avoided up to now by tact shown on both sides. The Grand Cadi is a man of singular enlightenment and ability, and is working hard to improve the administration of the Mohammedan courts. His remarks on the general situation, as quoted in Lord Cromer’s Report for 1902, are worth repeating:

‘What consoles me with regard to the stagnant state of the Mohammedan law in this country is the fact—deplorable though that fact be—that this state of stagnation is general throughout the Mohammedan world. And, although, for many centuries, it has been the only law applied to the people, time has, on account of the failure of those in charge to administer it properly, necessitated the introduction of other codes.

‘The whole responsibility for this decline in the Mohammedan law must be attributed to the authorities of former times.

‘What renders this condition of things the more regrettable is the fact that some of the causes which have for long been undermining the stability of this law have become a part of its traditions, any digression from which would be considered as a deviation from the Sharia law. Hence, it is impossible for me to exaggerate the difficulties which obstruct the way of the reformer. Yet I hope that we may have a good opportunity in this country to improve this state of things, and to bring about an unprecedented epoch of advance in the history of reform.’

Apart from the defects of the religious law, there are many obstacles to a proper administration of justice in the Soudan. Justice is a new idea. Colloquial Soudan-Arabic has no very extended vocabulary. A British officer learning Arabic at Khartoum had impressed upon his teacher that he only wished to master the ordinary language of the country. One day a new word turned up. ‘Is that a good word?’ he asked his teacher. ‘Good?’ said the learned man. ‘I should think so, indeed. Why, if you use that word, you and I will be the only people in the Soudan who understand what you mean.’ The word might well have been the ordinary Arabic term for justice. There has seldom been any use for it until now in common parlance. To the mind of the Arab the notion of an impartial tribunal giving final decisions is an absolute novelty. His natural view is that the judge decides either according to his own caprice, or according to the greater bribe, or to please some great man. The image of blind Justice holding equal scales is very puzzling to him. A judge, therefore, who, when he has decided a case, thinks he has heard the last of it, is liable to rude disappointment. The unsuccessful suitor is very likely to reappear a month or two later and ask for at least a modification of the judgment. He knows now that a bribe is worse than useless; so he comes with a terrible tale of ruin and despair to move the compassion of the Father of the Oppressed and the Protector of the Poor; or—for he is full of resources—he alleges that the judgment has not been properly carried out; or that at the trial an important witness on his side was absent; or that some third party, who had an interest in the case, never heard anything about the trial at all. It may be all pure invention, and very often is, for the Arab can be a fertile liar—that difficulty is not peculiar to the Soudan—but part of it may be true, and has to be sifted. It is very probable that some interested party will not know the date of a trial, when distances are so great and publication impossible other than by word of mouth, in view of the universal illiteracy. So the decided case has to be gone into once more. In the present stage of civilization it is often better to use the wisdom of Solomon than the wisdom of the code, and justice must necessarily be more or less patriarchal, for it is of far more importance to gain the confidence of the people than to abide by the strict laws of procedure.

So, too, in administering the criminal law the magistrate finds himself sometimes confronted by difficulties which could never be contemplated by any legal code. Alike in the Mohammedan and the Pagan Soudan ancient beliefs and superstitions live on, fostered to an incredible extent by the backward state of the people and the prevailing ignorance. In the face of the habits of mind produced by these conditions the principles of jurisprudence lose their significance. The ordinary rules cannot be justly applied to such cases. Not long ago a native of Southern Sennar was brought to trial on a charge of murder. There was no dispute as to the facts. The victim had been savagely done to death in cold blood. The accused admitted the deed, but pleaded, in all good faith, a defence which seemed perfectly natural and satisfactory to himself and every other native. His brother had recently died, and he had ascertained that his death was due to the evil eye. In accordance with the moral code of the district, it became his duty towards his brother to exact vengeance, and he therefore killed the man whose evil eye had caused the mischief. In his view and that of all his neighbours there was no more criminal intent in the act than if he had killed a poisonous snake.

Another most interesting case is related by the Legal Adviser as having recently occurred in Dongola Province. Taha Ali and Ahmed Hamad carried on business in partnership as butchers, and Taha kept the purse. One day Taha told his partner that ten and a half dollars belonging to the partnership had been stolen. But Ahmed did not believe him, and roundly accused him of stealing the money himself. A violent dispute arose, but at last they agreed to refer the matter to a holy man then residing in the neighbourhood. This holy man was a fakir belonging to Timbuctoo, who had made the pilgrimage to Mecca, and was now returning. At first he was very reluctant to interfere; it was no business of his, he said; they should go before the mamur. But the more he refused the more eagerly they insisted. They even said that if he would not, it was because he could not. It was a poor sort of fakir that could not find out a little thing like that, and they would lose no time in proclaiming the fact. At last he consented to act. First he copied out some passages from some religious books which he had with him on a native writing-board with European copying-ink. Then he washed off the writing into a bowl with bread and water, and divided the bread and water between the two, telling them that the one in the wrong would shortly become very ill. Each man consumed his portion of the mess and went away. An hour or two later Taha Ali was seized with violent pains in the stomach, and, returning to the fakir, confessed that it was he who had stolen the money. But in spite of his confession the pains grew worse, and he died the same day. The authorities stepped in, and the fakir was put on his trial for poisoning. The facts of the case were undisputed, and the fakir himself gave evidence on his own behalf. He pointed out that he had only undertaken to investigate the affair very reluctantly, as he was well aware that it was not his business, but he could not damage his reputation as a holy man. He had adopted the best method of discovering the truth. The man’s death was the act of God, not his. As for the suggestion that the copying-ink was poisonous, he was willing on the spot to drink up the remainder of it, the bottle being still about half full. The medical examination revealed no sign of poisoning, and the case was referred to Khartoum.

With the view of discovering the drift of the best native opinion on these subjects, the Legal Adviser told the story to two natives, one a religious sheikh of very high position, universally respected, and the other a servant who had been for many years in the employment of English masters. The sheikh, whilst not doubting that such an ordeal, if employed by a man of holy life, was a reasonable method of detecting crime, was inclined to think that this particular fakir was an impostor. At the same time, he did not consider that he should be punished, as the death might be due to some cause hitherto undiscovered. To illustrate his point he repeated a well-known story of a man who died at his friend’s house immediately after eating some honey. Great suspicion fell upon the friend, who only escaped punishment by the discovery of a dead serpent coiled up at the bottom of the pot. In this case, too, he suggested, a snake might have spat into the inkpot. The servant went further. He, too, was of opinion that trial by ordeal was a reasonable method of detecting crime, and more than that, it was really the only satisfactory and effective way, far better than any investigation by the best and wisest of mamurs. The only thing that surprised him in the story was that the guilty man should have died after confessing his crime; for this was contrary to precedent. He could only conclude that the man was exceptionally wicked, and that God had taken this opportunity to punish him for other crimes.

In such an atmosphere it is no wonder that miracles abound and holy men thrive. It is exceedingly difficult to know how to deal with them. Like the magicians of Ancient Egypt, whose descendants they are, they are sometimes open to the suspicion of establishing their miraculous reputation by natural but very undesirable methods. At Berber the Mudir was anxious to embellish the place with avenues of trees. So he imported some libbek acacias from Egypt, and to insure their being watered announced that rewards would be given to anyone in front of whose house a libbek was planted as soon as it attained a certain size. For a time all went well, and the trees grew and flourished. But then a local fakir saw his chance. He proclaimed that watering trees was contrary to the will of God, and threatened the most terrible penalties on anyone who dared to disregard his orders. Only one man, a sergeant in a black regiment, was bold enough to flout the fakir, and to continue watering his tree. Within a short time the man himself, his wife, and his servant, were all dead. It may have been a coincidence; it may have been the effect of imagination acting on uncultured minds; but far more probably, though it could not be proved, it was due to some wicked contrivance of the holy man. In the case of the Dongola fakir, a very practical solution of the difficulty was adopted. He was not punished, but facilities were given for his return to Timbuctoo. Guilty or not, a man whose reputation requires such bolstering up is a very undesirable resident.

That the various judges and magistrates administer the law intelligently and with discretion, and that the people themselves are more and more contented with the law, and accept it even when it comes in conflict with old-established ideas, is shown by the decrease in the number of petitions to the Governor-General. In the Soudan, as in other Oriental countries, anybody who has a grievance is allowed to appeal directly to the highest authority, and as the Governor-General does a great deal of travelling every year, there is every facility for presenting them. At first they numbered several thousands every year, but in 1902 they sank to the comparatively small total of 600. But whilst every endeavour is made to govern the country on lines acceptable to and understood by the people, there are, of course, some points on which the policy of a civilized government is necessarily in opposition to very deep-rooted customs and habits to such a degree as to completely upset the old basis of social life. In a minor degree this is true of the partial application of the game laws to natives, but of far greater importance is our attitude towards the institution of slavery and the slave-trade.