Chapter IX: Comparative Folk-Lore (5)

But whether or not the institution of _tabu_ was a clever invention of kings for increasing their power, its inevitable extension reacted in time as a limitation to it. This may be illustrated from the Tongan Islands, where the regal power, owing probably to a long constitutional struggle between the rival claims to sovereignty of birth and merit, stood in a most anomalous position. For the king did not belong to the highest rank of the people, his title depending in part on birth, but principally on his reputation for personal strength and military capacity. Tooitonga and Veachi, the direct descendants of the gods who first visited the island, or (as we may perhaps rationalistically translate it) the direct descendants of the earliest kings, occupied a higher status than the actual king, and were honoured with acknowledgments of their divinity which even the king himself had to pay. To the posterity of bygone monarchs the actual king stood in the relation of a peasant to a prince, being expected, like anyone else, to sit down on the ground when they passed, though they might be his inferiors in wealth nor possessed of any direct power save over their own families and attendants. The dignity of the Tooitonga survived not only in his not being circumcised nor tattooed as other men, and in peculiar ceremonies attending his marriage or his burial, but in the more substantial offerings of the firstfruits of the year at stated periodical festivals. The king used to consult him before undertaking a war or expedition, though often regardless of the counsel offered; and in reference to the person of either descendant of the gods the king was subject to tabu, or even in reference to ordinary chiefs in any way related to them. If he but touched the body, the dress, or the sleeping mat of a chief nearer related to Tooitonga and Veachi than himself, he could only exempt himself from the inconveniences incurred by the violation of tabu by the dispensation attached to the ceremony of touching, with both his hands, the feet of such supernatural chief, or of some one his equal in rank.

In the Society Islands, in consequence of the regal attribute inseparable from royalty of tabooing whatever ground it traversed, Tahitian kings became in course of time either entirely restricted to walking in their own domains, or subjected to the discomfort of a progress on servile shoulders over whatever district they wished to visit. So that tabu in both these instances acted as a limitation to the despotism of the king.

In Tahiti, however, the king’s power was further limited by a custom which, extending as it did to all the noble classes, was perhaps the most anomalous institution in the world, whether as regards the theory or the practice of inherited rank. For the custom compelling a king or a noble to transfer all his titles and dignity to his firstborn son at the moment of his birth, whether instituted originally for securing an undisputed succession to the regency or due to a similar rude confusion of ideas, such as associates the sanctity of a man’s origin with the sanctity of all he touches, carried the claims of primogeniture to a degree unknown either by the Jewish or the English law. ‘Whatever might be the age of the king, his influence in the state, or the political aspect of affairs in respect to other tribes, as soon as a son (of noble birth) was born, the monarch became a subject; the infant son was at once proclaimed sovereign of the people; the royal name was conferred upon him, and his father was the first to do him homage by saluting his feet and declaring him king.’ The national herald, sent round the island with the infant ruler’s flag, proclaimed his name in every district, and, if it were acknowledged by the aristocracy, edicts were thenceforth issued in his name. Not only the homage of his people, but the lands and other sources of his father’s power, were transferred to the minor child, the father only continuing to act as regent till his child’s capacity for government was matured.

The Fijians also have a peculiar custom, the institution of Vasu, which serves as a barrier both to regal and aristocratic oppression, and shows how, even among savages, the caprice of individuals is held in bondage by the traditions of the elders. Vasu signifies the common-law right of a nephew to appropriate to his own use anything he chooses belonging to an uncle or to anyone under his uncle’s power. The king often availed himself of Vasu for his own benefit, it being customary for a nephew to surrender as tribute most of the legal extortions which his title of Vasu might enable him to levy. But the king himself was liable to Vasu; for we are told that, ‘however high a chief may rank, _however powerful a king may be_, if he has a nephew he has a master;’ for, except his lands and his wives, neither chief nor king possessed anything which his nephew might not appropriate at any moment. If, for instance, the uncle built a canoe for himself, his nephew had only to come, mount the deck, and sound his trumpet shell, to announce to all the world a legitimate and indefeasible transfer of ownership. It is even said that on one occasion a nephew at war with his uncle actually supplied himself, unresisted, with ammunition from his enemy’s stores. It is difficult indeed to divine the origin of so singular an institution, unless perhaps we regard it as surviving from a time when as in so many parts of the world nephews and not sons ranked as first in inheritance. In Loango the nephews of a deceased king become princes, whilst his sons descend to the commonalty; the throne of Ashantee passes not to a man’s natural heir, but to his brother’s or sister’s son, and the same rule of descent prevails widely over the world.[212]

In two respects especially, savages may be accredited with having secured a certain stability for their institutions and saved them from some of the dangers which have been the bane of more civilised countries. It entitles them to no slight praise that they have generally so adjusted the relations of the temporal and spiritual powers as to prevent their clashing, and have taken its sting from taxation by making the day of taxpaying a day of public rejoicing. In the Tongan Islands (before the custom was abolished by a revolutionary king) the tax of the annual payment of firstfruits to the Tooitonga was almost forgotten in the grand ceremonies with which it was associated, and tributes received from inferiors by chiefs came as much as possible in the way of presents, whilst so far away as the Slave Coast, the feast of taxpaying is the great recurring Saturnalia of the year. In Dahomey income-tax is ‘paid under a polite disguise,’ each man bringing a present to the king in proportion to his rank, and at an annual festival.[213] The feast lasts a whole month; public plays take place every four or five days; singers chant the king’s praises and the historical traditions of the country; and the whole concludes with the ever popular African entertainment of human sacrifice, on an unlimited scale. In Fiji also taxpaying was associated with all that the people love; the time of its taking place being ‘a high day, a day for the best attire, the pleasantest looks, and the kindest words; a day for display.’ The Fijian carried his tribute with every demonstration of joyful excitement, paying it in with songs and dances to a king who received it with smiles and who provided a feast for the happy taxpayers. So among the Kaffirs the presence of the four royal[214] taxgatherers in the town was the signal for feasting and amusements, and when payment had been at last demanded by them they were conducted out of the town, as they had been welcomed into it, by dancers and musicians.[215]

In all the lower communities of the globe the priest, as the Shaman who can invoke rain, who can cause or cure diseases, who can detect the unknown thief, or read the result of a coming battle, may be revered for his power as a sorcerer, but he seldom enters into the scheme of the body politic as an efficient political force. In the Sandwich Islands, where priestly power was more developed than elsewhere, the priesthood, though not merely an hereditary body and possessed of much property in men and lands, but recipients of the same servile homage that was paid to the highest chiefs, occupied, nevertheless, a subordinate position to the governing class. As the nation retained a chief priest who had charge of the national god, so each chief retained his own family priest, whose function it was to follow him to the battle-field carrying his war-god and to direct the sacred rites of his house. In New Zealand the tohunga (or priest) was ‘not significative of a class separated from the rest by certain distinctions of rank,’ but was an office open to anyone.[216] In the Tongan Islands, a priest had no respect paid to him beyond what was due to his family rank, owing to the fact that the title to the priesthood was dependent on the accident of inspiration by some god. Whenever a priest invoked the gods (and it was generally on a person of the lower classes that such inspiration fell), the chiefs, nay, even the king himself, would sit indiscriminately with the common people in a circle round him, ‘on account of the sacredness of the occasion, conceiving that such modest demeanour must be acceptable to the gods.’[217] Whatever the priest then said was deemed a declaration of the god, and, in accordance with a confusion of the human voice and the divine, not unknown elsewhere, the oracle, in speaking, actually made use of the first person, as though the relation of himself to the god were not merely one of delegated authority, but of real and complete identification. Except, however, on such special occasions, a Tongan priest was distinguished by no particular dress, nor invested with any official privileges. In Fiji, also, the priests ranked below the principal chiefs; and the chief priest, though, as in Tahiti, it was his office to perform the ceremony which introduced the monarch to regal dignity, seems in nowise to have interfered afterwards with the sovereignty of his temporal lord. It is remarkable that the power of priestcraft increases with the increase of civilisation; ultimately serving to arrest and retard the growth of which it is at once a symptom and a measure.

If from the foregoing data, collected from the best accredited missionary sources, it is permissible to speak in general terms of primitive political life, it would appear that the social organisation of the lower races stands at a far higher level than too rapid an inspection would lead a critic to suspect. Their institutions are such as to presuppose as much ingenuity in their evolution as sagacity in their preservation. Their despotism is never so unlimited but that it recognises the existence of a customary code beside and above it; nor is individual liberty ever so unchecked as to outweigh the advantages or imperil the existence of a life in common. In short, the subordination of classes, the belief in the divine right of kings and in differences ordained by nature between nobles and populace, the principle of hereditary government (often so firmly fixed that not even women are excluded from the highest offices), the prevalence of feudalism with its ever-recurring wars and revolutions, not only prove an identity of social instinct which is irrespective of latitude or race, but prove also among the lower races the existence of a capacity for self-government, which is disturbing to all preconceptions derived from accounts of their manners and superstitions in other relations of life.

VI.

_SAVAGE PENAL LAWS._

If, interpreting the present by the past, and taking as our standard of the past contemporary savage life, we endeavour to gain some insight into the origin of those legal customs and ideas which are so interwoven with our civilisation, the statements of travellers relating to the judicial institutions of savage tribes gain considerably in interest and value. For savage modes of redressing injuries, of assessing punishment, of discovering truth, reveal not a few striking points of resemblance and of contrast to the practices prevalent in civilised communities; whilst they serve at the same time to illustrate the natural laws at work in the evolution of society.

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]

The almost universal test among savages of guilt or innocence, where there is a want or conflict of evidence, is the ordeal. At first sight it would appear that such a practice presupposes a belief in a personal supernatural deity—that it is, in fact, as it was in the middle ages, a judgment of God, an appeal to His decision. If so, a theistic belief would be of wide extent, for the ordeal is common to very low strata of culture; but, in consideration of the savage belief in the personality and consciousness of natural objects or in spirits animating them, it would seem best to regard the ordeal simply as a direct appeal to the decision of such objects or spirits themselves, or through such objects to the decision of dead ancestors, a means for the discovery of truth that would naturally suggest itself to the shamanic class. For it is at the peril of his life that a shaman, or priest, asserts a title to superior power and wisdom; and as his skill is tested in every need or peril that occurs, he is naturally as often called upon to detect hidden guilt as to bring rain from the clouds, or drive sickness from the body. Driven, therefore, to his inventive resources by the demands made upon him, he thinks out a test which he may really consider just, or which, by proving fatal to the suspected, may place alike his ingenuity and the verdict beyond the reach of challenge. Such ordeals not only often elicit true confessions of guilt by the very terror they inspire, so that, according to Merolla, it sufficed for the Congo wizards to issue proclamations for a restitution of stolen property under the threat of otherwise resorting to their arts of detection, but they are valuable in themselves to the shamanic class from being easily adapted to the destruction of an enemy and offering a ready channel for the influx of wealth. A comparison of some of these tests, which decide guilt not by an appeal to the fear of falsehood, as an oath does, but by what is really an appeal to the verdict of chance, will display so strong a family resemblance, together with so many local peculiarities, as to make the origin suggested appear not improbable.

Bosman mentions the following ordeals as customary on the Gold Coast in offences of a trivial character:

1. Stroking a red-hot copper arm-ring over the tongue of the
suspected person.

2. Squirting a vegetable juice into his eye.

3. Drawing a greased fowl’s feather through his tongue.

4. Making him draw cocks’ quills from a clod of earth.

Innocence was staked on the innocuousness of the two former proceedings, on the facility of the execution of the two latter. For great crimes the water ordeal was employed, a certain river being endowed with the quality of wafting innocent persons across it, how little soever they could swim, and of only drowning the guilty.[233]

Livingstone mentions the anxiety of negro women, suspected by their husbands of having bewitched them, to drink a poisonous infusion prepared by the shaman, and to submit their lives to the effect of this drink on their bodies; a judicial method strikingly similar to the test of bitter waters ordained in the Book of Numbers to decide the guilt of Jewish wives whom their husbands had reason to suspect of infidelity. The Barotse tribe, in Africa, who judge of the guilt of an accused person by the effect of medicine poured down the throat of a dog or cock, manifest more humanity in their system of detection.[234]

But perhaps the best collection of African ordeals is that given in the voyage of the Capuchin Merolla to Congo in 1682. In case of treason a shaman would present a compound of vegetable juices, serpents’ flesh, and such things to the delinquent, who would die if he were guilty, but not otherwise; it being of course open to the administrator to omit at will the poisonous ingredients. Innocence was further proved, if a man suffered nothing from a red-hot iron passed over his leg, if he felt no bad effects from chewing the root of the banana, from eating the poisoned fruit of a certain palm, from drinking water in which a torch of bitumen or a red-hot iron had been quenched, or from drawing a stone out of boiling water. The crime of theft was proved by the ignition or the non-ignition of a long thread held at either end by the shaman and the accused, on the application of a red-hot iron to the middle. Among the Bongo tribe a murder is often traced to its source, by making plastic representations so closely resembling the victim, that at a feast given with dances and songs the criminal will generally manifest a desire to leave the company.[235]

So great in general is the dread of such ordeals, that they often actually serve as the most potent instruments for the discovery of crimes. In the kingdom of Loango was kept a fetich in a large basket before which all cases of theft and murder were tried; and when any great man died, a whole town would be compelled to offer themselves for trial for his murder by kissing and embracing the image, in the fear of falling down dead if they fancied themselves guilty. In the space of one year Andrew Battel witnessed the death of many natives in this way.

In the Tongan Islands the king would call the people together, and, after washing his hands in a wooden bowl, command everyone to touch it. From a firm belief that touching the bowl, in case of guilt, would cause instantaneous death, refusal to touch it amounted to conviction.[236]

Among the Fijians, distinguished in so many points from other savages by originality of conception, the ordeal of the scarf was the one of greatest dread, extorting confession, it is said, as effectually as a threat of the rack might have done. The chief or judge, having called for a scarf, would proceed, if the culprit did not confess at the sight of it, to wave it above his head, till he had caught the man’s soul, bereft of which the culprit would be sure ultimately to pine away and die.[237]

Among the ordeals of the Sandwich Islanders was one called the ‘shaking-water.’ The accused persons, sitting round a calabash full of water, were required in turns to hold their hands above it, that the priest, by watching the water, might detect, when it trembled, the presence of guilt. On the Society Islands the ordeal only differed slightly, the priest reading in the water the reflected image of the thief, after prayer to the gods to cause his spirit to be present. The mere report that such a measure had been resorted to often led to timely restitutions of stolen goods.[238]

In Sardinia there is, or was, a well, the waters of which were supposed to blind a person suspected of robbery or lying, if he were guilty; otherwise to strengthen and improve his sight.[239]

The above instances, remarkable for their practical efficiency no less than for their puerile ingenuity, suffice to illustrate the nature of savage judicial ordeals and the extreme variety displayed in their invention. The identity of many ordeals among different people, such as that by fire or water, is probably due to the readiness with which such tests would suggest themselves to the imagination. ‘He who, holding fire in his hand,’ said the Indian law, ‘is not burnt, or who, diving under water, is not soon forced up by it, must be held veracious in his testimony upon oath;’ and the same was the idea in China and Africa as well as in Europe. That these ordeals, like others, were originated by the class of shamans, and were traditionally preserved by them as one of the sources of their power, derives probability from their close analogy to the judicial ordeals invented and administered by the priests of early Europe. The trial by the hallowed morsel, which decided guilt by the effects of swallowing a piece of hallowed bread or cheese; the trial by the cross, when both accuser and accused were placed under a cross with their arms extended, and the wrong adjudged to him who first let his hands fall; or the trial by the two dice, when innocence was proved if the first dice taken at hazard bore the sign of the cross—though they may have been metamorphosed heathen ordeals, seem rather to have been of pure Christian invention; nor are they distinguished in any point above corresponding practices on the coast of Guinea, except in this, that they were called the judgments of God, and implied some belief in a personal spirit, who could and would control the verdict of chance to prove guilt or innocence.[240]

As in Europe after the fifteenth century the oath of canonical purgation gradually displaced the older system of ordeals, so it would seem that in savage life too the judicial oath succeeds in order of time the judicial ordeal. An oath implies a prayer, an invocation of punishment in case of perjury; and a man’s conscience is evidently more directly appealed to where his guilt is tested to some extent by his own confession, than where it is decided by something quite external to himself.

The witness in a modern English law court, invoking upon himself divine wrath if he swear falsely by the book he kisses, preserves with curious exactitude the judicial oath of savage times and lands. Our English judicial oath, in use though no longer compulsory, has withstood all attacks upon it, for the insuperable practical reason that the majority of men are more afraid of swearing falsely than of speaking falsely, and that the fewer scruples a man feels about lying, the more he is likely to feel about perjury. The notion that one is morally worse than the other is probably due to the imaginary terrors which, associated time out of mind with perjury, have given it a legal existence apart, and made it, so to speak, a kind of lying-extraordinary, a crime outside the jurisdiction of humanity.

In Samoa, as at Westminster, physical contact with a thing adds vast weight to the value of a man’s evidence. Turner relates how in turn each person suspected of a theft was obliged before the chiefs to touch a sacred drinking-cup, made of cocoa-nut, and to invoke destruction upon himself if he were the thief. The formula ran: ‘With my hand on this cup, may the god look upon me and send swift destruction if I took the thing which has been stolen.’ ‘Before this ordeal the truth was rarely concealed,’ it being firmly believed that death would ensue, were the cup touched and a lie told. Or the suspected would first place a handful of grass on the stone or other representative of the village god, and laying his hands on it, say, ‘In the presence of our chiefs now assembled, I lay my hand on the stone; if I stole the thing, may I speedily die,’ the grass being a symbolical curse of the destruction he invoked on all his family, of the _grass_ that might grow over their dwellings. The older ordeal of fixing the guilt upon a person to whom the face of a spun cocoa-nut pointed when it rested, shows how ordeals may survive in use after the attainment of judicial oaths and contemporaneously with them.[241]

To understand the binding force of oaths among savages it is necessary to observe how closely connected they are with savage ideas of fetichism and their belief in witchcraft as a really active natural force. The hair or food of a man, which a savage burns to rid himself of an enemy, is no mere symbol of that enemy so much as in some sense that enemy himself. The physical act of touching the thing invoked has reference to feelings of casual connection between things, as in Samoa, where a man, to attest his veracity, would touch his eyes, to indicate a wish that blindness might strike him if he lied, or would dig a hole in the ground, to indicate a wish that he might be buried in the event of falsehood. In Kamschatka, if a thief remained undetected, the elders would summon all the ostrog together, young and old, and, forming a circle round the fire, cause certain incantations to be employed. After the incantations the sinews of the back and feet of a wild sheep were thrown into the fire with magical words, and the wish expressed that the hands and feet of the culprit might grow crooked; there being apparently a connection assumed between the action of the fire on the animal’s sinews and on the limbs of the man. And in Sweden there are still cunning men who can deprive a real thief of his eye, by cutting a human figure on the bark of a tree and driving nails and arrows into the representative feature. But perhaps the best illustration of this feeling is the practice of the Ostiaks, who offer their wives, if they suspect them of infidelity, a handful of bear’s hairs, believing that, if they touch them and are guilty, they will be bitten by a bear within the space of three days. It would seem that oaths appeal to the same idea of vicarious or representative influence, a real but invisible connection being imagined between the actual thing touched and the calamity invoked in touching it.

Instances from the oaths of other tribes will manifest the operation of the same feeling as that which makes grass a symbol of utter ruin in Samoa, or some bear’s hairs of a bear’s bite among the Ostiaks.

North Asiatic tribes have in use three kinds of oaths, the first and least solemn one being for the accused to face the sun with a knife, pretending to fight against it, and to cry aloud, ‘If I am guilty, may the sun cause sickness to rage in my body like this knife!’ The second form of oath is to cry aloud from the tops of certain mountains, invoking death, loss of children and cattle, or bad luck in hunting, in the case of guilt being real. But the most solemn oath of all is to exclaim, in drinking some of the blood of a dog, killed expressly by the elders and burnt or thrown away, ‘If I die, may I perish, decay, or burn away like this dog.’[242] Very similar is the oath in Sumatra, where, a beast having been slain, the swearer says, ‘If I break my oath, may I be slaughtered as this beast, and swallowed as this heart I now consume.’[243] The most solemn oath of the Bedouins, that of the cross-lines, is also characterised by the same belief which appears in the case of the slain beast affecting with sympathetic decay anyone guilty of perjury. If a Bedouin cannot convict a man he suspects of theft it is usual for him to take the suspected before a sheikh or kady, and there to call upon him to swear any oath he may demand. If the defendant agrees, he is led to a certain distance from the camp, ‘because the magical nature of the oath might prove pernicious to the general body of Arabs were it to take place in their vicinity.’ Then the plaintiff draws with his sekin, or crooked knife, a large circle in the sand with many cross-lines inside it, places his right foot inside it, causes the defendant to do the same, and makes him say after himself, ‘By God, and in God, and through God, I swear I did not take the thing, nor is it in my possession.’ To make the oath still more solemn, the accused often puts also in the circle an ant and a bit of camel’s skin, the one expressive of a hope that he may never be destitute of camel’s milk, the other of a hope that he may never lack the winter substance of an ant.[244]

Firm, however, as is the savage belief that the consequences of perjury are death or disease, a belief which shows itself not unfrequently in actually inferring the fact of perjury from the fact of death, escape from the obligation of an oath is not unknown among savages. On the Guinea Coast recourse was had to the common expedient of priestly absolution, so that when a man took a draught-oath, imprecating death on himself if he failed in his promise, the priests were sometimes compelled to take an oath too, to the effect that they would not employ their absolving powers to release him. In Abyssinia a simpler process seems to be in vogue; for the king, on one occasion having sworn by a cross, thus addressed his servants: ‘You see the oath I have taken; I scrape it clean away from my tongue that made it.’ Thereupon he scraped his tongue and spat away his oath, thus validly releasing himself from it.[245]

It does not appear that savages refine on their motives for punishment, the sum of their political philosophy in this respect being rather to inflict penalties that accord with their ideas of retribution deserved for each case or crime, than to deter other criminals by warning examples. The statement that New Zealanders beat thieves to death, and then hung them on a cross on the top of a hill, as a warning example, conflicts with another account which says that thieves were punished by banishment.[246] But, subject to the influence of collateral circumstances, savage penal laws appear to be as fixed, regular, and well-known, as inflexibly bound by precedent, as often improved by the intelligence of individual chiefs, as penal laws are in more advanced societies. The case of an Ashantee king, who, limiting the number of lives to be sacrificed at his mother’s funeral, resisted all importunities and appeals to precedent for a greater number, is not without parallel in reforms of law. Thus we may read of one Caffre chief who abolished in his tribe the fine payable for the crime of approaching a chief’s krall with the head covered by a blanket; whilst another chief made the homicide of a man taken in adultery a capital offence, thus transferring the punishment for the crime from the individual to the tribe.[247]

In legal customs analogous to those of the savage or rather semi-civilized world, the legal institutions of civilized countries, their methods of procedure, of extorting truth, of punishing crimes, seem to have their root and explanation. For this reason the same interest attaches to the legal institutions of modern savages as attaches to the laws of the ancient Germanic tribes or to the ordinances of Menu, the interest, that is, of descent or relationship. The oath, for instance, of our law courts presupposes in the past, if not in the present, precisely the same state of thought as the oath customary in Samoa; and the same virtue inherent in touching and kissing the Bible in England, or the cross in Russia, leads the Tunguse Lapp to touch and then kiss the cannon, gun, or sword, by which he swears allegiance to the Russian crown.[248] The Highlander of olden time, kissing his dirk, to invoke death by it if he lied, is a similar instance of the survival of the primitive conception, that physical contact with a thing creates a spiritual dependence upon it. The ordeal, so lately the judicial test of witchcraft, still retains a foothold of faith among our country people, as is proved by the fact that not longer ago than 1863 an octogenarian died in consequence of having been ‘swum’ as a wizard at Little Hedingham, in Essex. And, lastly, the English law that no person could inherit an estate from anyone convicted of treason, or from a suicide, shows how naturally the savage law of collective responsibility, in reality so unjust, may survive into times of civilisation, whilst the ignominy still attached to the blood-relations of a criminal shows with what difficulty the feeling is eradicated.

VII.

_EARLY WEDDING CUSTOMS._

Amid the wonderful uniformity which pervades the thoughts and customs of the world some strange reversals here and there occur, as where white is the colour significative of grief, or where to turn one’s back on a person is a sign of reverence. But perhaps few such reversals are more curious than the custom of the Garos, in India, who consider any infringement of the rule that all proposals of marriage must come from the female side as an insult to the _mahári_ to which the lady belongs, only to be atoned for by liberal donations of beer and pigs from the man’s _mahári_ to that of the ‘proposee.’ More curious, however, than even this is their marriage ceremony; at which, after the bride has been bathed in the nearest stream, the wedding party proceed to the house of the bridegroom, ‘_who pretends to be unwilling and runs away, but is caught_ and subjected to a similar ablution, and _then taken, in spite of the resistance and counterfeited grief and lamentations of his parents, to the bride’s house_.’[249]

An exactly analogous custom as regards the bride’s behaviour at her wedding is sufficiently well known; and if it has been correctly interpreted as the survival, in form and symbol, of a system of capturing wives from a neighbouring tribe, there must have been a time when among the Garos a husband could only have been obtained in a similar way. The improbability of this suggests the possibility of some other explanation underlying the reluctance, feigned or real, with which it is common in savage life for a girl to enter upon the paths of matrimony, and for the show of resistance with which her friends oppose her departure with her husband.

In many instances this peculiar feature of primitive life appears as simply the outcome of feelings and affections which are the same, howsoever different in expression, in savage as in civilised lands. The conviction that there is an utter absence of anything like love between children and their parents, or between men and women, in the ruder social communities, is so strong and has been so often dwelt upon, that in speculations on this subject there is a tendency and danger of altogether overlooking the influence of natural affection in the formation of customs. It is needful, therefore, to preface the present chapter with a brief reference to the express statements of missionaries and travellers; for if it can be shown that there is such a thing as affection between parents and children, the inference is fair that neither would parents part with their children nor children leave their parents without mutual regret, when the children are married.

Of the Fijians, so famous for their cannibalism and their parenticide, it is declared to be ‘truly touching to see how parents are attached to their children and children to their parents.’[250] Among the Tongans, who would sacrifice their children cruelly for the recovery of the sick, children were ‘taken the utmost care of.’[251] The New Zealanders were not guiltless of infanticide, yet ‘some of them, and especially the fathers, seemed fond of their children.’[252] The Papuans of New Guinea manifested ‘respect for the aged, love for their children, and fidelity to their wives.’[253] In Africa, Mungo Park says of the Mandingoes: ‘The maternal affection is everywhere conspicuous among them, and creates a corresponding return of tenderness in the child.’[254] Among the Eastern Ethiopians were women who lived a wild life in the woods; yet the testimony is the same: ‘However barbarous these people be by nature, they yet are not devoid of feeling for their children; these they rear with nicest care, and for their provision strive to amass what property they can.’[255] Yoruba ‘children are much beloved by both parents.’[256] Love for their children unites the greater number of the Bushmen for their whole lives.[257] In North America the Thlinkeet Indians ‘treat their wives and children with much affection and kindness.’[258] Among the Greenlanders, says Cranz, ‘the bonds of filial and parental love seem stronger than amongst any other nations.’ Their fondness for their children is great; parents seldom let them out of their sight, and mothers often throw themselves in the water to save a child from drowning. In return ingratitude towards their aged parents is ‘scarcely ever exemplified among them.’[259] Of the natives of Australia, Sir G. Grey says that they ‘are always ardently attached to their children,’ and similar testimony has been borne to the parental affection even of the Tasmanians.[260]

But, lest it should be thought that these evidences are drawn from the higher savagery, let appeal be made to the case of savages who confessedly belong to the lowest known types of mankind, the Andaman Islanders, the Veddahs, and the Fuejians.

In reference to the first it is said that ‘the parents are fond of their children, and the affection is reciprocal.’[261] The Veddahs are not only ‘kind and constant to their wives,’ but ‘fond of their children;’[262] whilst Mr. Parker Snow saw among the Fuejians ‘many instances of warm love and affection for their children;’[263] so that if in the sequel we find daughters at their marriage displaying a real or simulated repugnance to their fate, the fact need not appear to us of such extreme mystery as it otherwise might, nor as one in which natural affection can play no part.