The Family. - Marriage.-Contracts. -Property. -Crimes and Punishments.-Judicial Procedure.
THE subject of African Law is a fascinating one and I am tempted to enlarge on it, the more so as it is but little understood in England, although a knowledge of it is clearly essential to the right governance of our black fellow subjects. Miss Kingsley has treated of African religion and law in her West African Studies (abridged edition), among other writers may be mentioned the late Sir. A. B. Ellis, Sir J. Smallman Smith, and Mr. J. W. Sarbah in addition. Much material has of course been pigeon-holed by various officials.
But, able though the English works above mentioned are, they do not go deep below the surface, and are far from being text-books of native customary law, to which the administration can turn for guidance. Our French neighbours, wise in their generation, have recently issued a monumental work, Les Coutumes indigènes de la Côte d'Ivoire by Clozel; and a similar work on the native law of Nigeria compiled by a trained anthropologist who can give his whole time to his work would undoubtedly be of extreme value, not only to the student of comparative jurisprudence, but to the official who comes in daily contact with men who know only the native law, whose life is regulated by its fundamental principles, and who can be governed only if the English ruler recognises those principles and deals out even handed justice in accordance with them.
In some primitive communities there is only one sort of offence which can be regarded as law-breaking Dr. Codrington shows that in Melanesia tabu takes the place of law; the infraction of a tabu may bring down on the head of the offender an automatic penalty; but he may be too strong spiritually; and then the penalty falls upon the innocent. To provide against this, the society itself of which the offender forms a part inflicts the penalty for wrong doing and thus satisfies the power whose wrath is incurred by the infraction of the tabu.
Just in the same way in Africa a violation of the moral law, if I may so term it, is an affair for the whole of the community. If Nzambi, on the Kongo, is provoked by immorality especially of a sexual kind, the result, as we shall see in a later chapter, is drought, and the penalty falls on the community. A violation of the moral law is in native phraseology a "God palaver"; any outrage on a spirit may be of this nature but in practice a man is left to settle his own account with a minor spirit, which is hardly powerful enough to inflict damage on a family or tribe. On the Congo, justice is so far organised, where "god palavers" are concerned, that punishments are inflicted by the Badungu acting on the orders of the king.
"Man palavers," on the other hand, or in our phraseology, Civil and Criminal Cases (for they are identical in Africa, the fundamental idea being that a debt of some sort has been incurred) are decided by a court of justice, which bases its decisions on precedents, but the judgment must be enforced by the winner of the case, aided it may be, by his family. It is not the business of the king or of any official to see that justice is done; when once judgment has been given and recognised by the people, generally the matter passes out of the hands of the state and becomes a private affair. If the loser is strong enough to resist payment the palaver becomes a trial of strength between the two families and may become a "war palaver"; in any case the palaver and its consequences, in the shape of liabilities to pay and right to receive, are handed down in the respective families, like any ordinary debt, until such time as the winner of the case is in a position to enforce payment.
If the loser cannot resist, he must pay the debt or in default become a serf or pawn in the hands of the creditor; failing him, a member of his family, or an inhabitant of his town or district, loses his freedom. This service is not a setoff against the debt; the pawn is held until the debt is paid in legal currency; though a debtor may become a slave if his family has died out or dies out before the debt is paid; slavery, however, being regarded as a disgrace, the family would as long as it subsisted, endeavour to release one of its members.
The intimate connection between the spheres of law and religion or magic cannot be better illustrated than by the fact that the weaker party to a suit calls in the help of nail fetishes.
The form of the following notes is dictated by the form of the questionnaire-issued by the French authorities-to which it was originally an answer, and it must be read in the light of the foregoing note.
Section I.-Of the Family.
The organisation of the family or Xifumba is certainly one that the Bavili need not be ashamed of, and when compared to that of many civilised peoples can only be looked upon as a model of logical compactness.
The Xifumba is composed of the four grandparents Nkaka, the father Tata, the mother Mama, their children Bana, grandchildren Batekulu, great-grandchildren Ndandu, and great-great-grandchildren Ndalula.
The uncle on the mother's side is called Ngulinkaci, the aunt Mama.
The aunt by marriage is called Mama.
The uncles and aunts on the father's side Tata.
Brother or sister-in-law Zali.
Father or mother-in-law Nkwekici.
Son or daughter-in-law Nkwekici.
Uncle of mother Xikweci.
Uncle of father Xikweci.
When you ask a native to what family he belongs he will answer you by giving you the name of his mother's family.
On the death of the father his brother takes care of the children; but the wife remains with her children sorrowing for her husband for at least twenty-four months, when she may marry again. These children are called bana bana ba bika nkulu. (The little children left by the spirit.)
A man may not marry any of his mother's family or relations whom he terms Mama. If the Xina of the girl the man wishes to marry is that of his mother he cannot marry her.
He may not marry the children of his father's brothers, but those of his father's sisters are not forbidden to him.
The family forms a part of the higher organisation of the tribe. Each individual belongs to a family; each family is under a chief called Kongo Zovo, and this chief is under the prince of the province containing these families, who is called by the name of his province preceded by the prefix Ma, short for Manifamu. Seven of these provinces hold the people of Luango, called the Bavili. The Bavili, under their king Maluango, form a third part of the kingdom of Kongo, or the Fjort people, who are a section of the Bantu race. My head man Tati for example is of the family of Yanga of the royal province Buali of the Bavili of the KONGO kingdom of the Bantu race.
An individual may not leave his town without the permission of his father or of the Kongo Zovo, and upon his return he must present himself before him, to give an account of himself and show the proceeds of his fishing, hunting, or trading. He must obey and respect his chief, who may tie him up, chastise him, deprive him of food, but has no power of life and death over him-this right belonging in law only to the King Maluango. The Kongo Zovo can also requisition the services of all his family.
We find the highest form of marriage to be that of Monogamy. That is to say Princesses whose offspring may become the future rulers of the kingdom, may not have more than one husband, whom she has the right to choose. He may be already married or not, but once selected he must put away his other wives and become the slave of the princess, who has the power of life and death over him. But when she dies this man inherits all her property. Maluango so long as he is simply Nganga NVUMBU may have as many wives as he pleases, but once he has been crowned Maluango he is supplied with one wife, a princess of Ngoio (Cabinda in Kakongo) and must put away the others.
The people generally are polygynists, but there is a line drawn between the first wife and the others. The first is called Nkaci Ntete, the second and others Nkaci Sialila. A concubine is called Ndâia Xicinsu. An unchaste woman Ndumba.
Polyandry has not the legal character that it has among certain primitive peoples. With regard to Polygyny and its effect upon the condition of the woman, it is true that, apparently, certain women have always existed in this country who object very strongly to sharing a husband with others, and such are said to be bad women or women of spirit, Muntu 'Mbi. But as a rule the first wife asks her husband for women to help her in her work, and such a woman is called a good woman or creature, Muntu 'Mbote. There are constant quarrels among these wives, but the husband refuses to take sides, and would be looked upon as a fool if he interfered. Should the injured woman in these disputes appeal to an outsider or judge, as an arbitrator, he will refuse to have anything to do with it. She has no appeal in these matters. Mankind generally treats the affair with indifference.
Should a man promise to marry a girl, she can make him pay very heavily for breach of promise if he has touched her; if not, she can only slang and shame him. The man, however, cannot claim anything from the woman who breaks off an engagement, but she gets a bad name.
If the woman whom the man desires to marry is past the age of puberty and is able to judge for herself as to a man's parts, the man will first address himself to her. If the girl is still a child he goes to her father and mother in the first place. The proposal made, the father and mother discuss the matter.
[1. High priest.]
If they can find no objection to the young man and they think it well to allow their daughter to marry, they accept the young man's offer.
The young man then approaches his own parents and if they do not object, the mother, who keeps her son's savings for him, gives him the goods necessary to present to his future father and mother-in-law. These goods are given to the girl's parents in order to give the man a hold upon them in case they supply him with a worthless article as a wife. It covers their responsibility, which is a very great one, and gives the father the right on the other hand, after returning the exact amount presented, to take his daughter away from the husband, should he turn out to be a beast and ill-treat her. There are two "marriage bundles": (1) Bukali in the olden days, 20 longs (say 10 francs) but now 100 longs and one demijohn of rum (say 60 francs). (2) Mpakete, in the olden days 10 longs, but to-day consisting Of 50 longs and one demijohn of rum, 1 coat, 1 counterpane, 1 hat, 100 longs to mother's relations, and a present of 50 longs to the bride.
Certain families may not intermarry, as those of Xibanga and Maluango. Intertribal marriages were once totally prohibited, but to-day marriages take place although the offspring of such unions are looked upon much in the same prejudiced light by the Bavili as the offspring of black and white races are looked upon by the Europeans.
A woman who cannot plant is not allowed by her parents to marry. A known fool will not be accepted, and sickness is a bar. The goods bestowed on the parents of the proposed wife are called goods for marriage, Bindele Bi Kukwela, and not goods for barter, nor can the marriage be properly termed a marriage by purchase. The goods are accepted as a gage, or pledge, not as purchase money.
The "Bundle" having been given to the assenting parents, when the time comes or the girl arrives at the age of puberty, the bridegroom sends money to the parents so that the girl may be placed in the "paint house," where she undergoes certain rites of purification. The father's women folk then take the girl to the water and the Tukula or red paint is beaten off her with pliant switches or twigs. Then she is dressed and adorned with leg and arm rings of brass, necklaces of coral and other ornaments and taken to the expectant bridegroom. The dancing and singing that has commenced after the washing maybe continued during the whole night. The husband gives certain presents to the father's relations who have brought him his bride. The next morning the husband presents his wife with a white handkerchief. Then the women again come and present the couple with food. The husband makes them a return present and the bride returns to her father's house. The husband then sends his father and mother to his father-in-law with a present to ask him to send him his wife. The father-in-law marks a day for her return to her husband, and gives certain presents to the father and mother of the husband, who return to their village. Upon the day mentioned the father-in-law takes his daughter back to his son-in-law with a present. Then in the presence of the husband's father and mother he exhorts him to follow in his good father's footsteps, then turning to his daughter he gives her good advice and hands her over finally to her husband.
The married couple now. have two fathers and two mothers to whom they owe obedience and whom they must treat equally as members of one family, helping them all as children are expected to help their parents.
Should the woman be guilty of adultery the man may forgive his wife the first offence, but on the second occasion he will return her to her father, who must return the " pledge " money given to him. Should he discover the guilty man he may ask what indemnity he likes, and that man has to pay the fine even if he has to pawn himself as a hostage. The first time the husband is caught by the wife he may be forgiven, but the next time the wife reports the matter to her husband's parents, and the man must pay. She may leave him for a time, but generally comes back to him. If not, and should it happen that the father finds her another husband, the pledge goes to her first husband. But the husband cannot make her father give back the original pledge. The. wife has no claim on the woman who has committed adultery with her husband.
The male adulterer pays the fine, the husband alone inflicts it, and the amount is generally about equal to the pledge, but the actual amount rests with the husband.
As regards the duties of married persons, the woman plants, cooks, carries wood, and draws water; the man looks after the religious and fetish rites of the family, closely allied to the treatment of his sick relations, and their burial, finds his wife in dress, fish, the chase, palm nuts, etc., builds her house and cuts the bush where she may have decided to plant.
Divorce.-Apart from the causes already mentioned, long absence and non-support bring about divorce or dissolution of marriage. In this case the wife, after having waited, say twelve months, for the return of her husband, seeks his father and mother and puts the situation before them. They advise her, and if they give their consent she goes back to her father and may re-marry. Upon the reappearance of the first husband the "pledge" is returned to him. So that divorce is looked upon as a family matter.
In the event of the parties being unable to agree, the father returns the " pledge " and they are free to marry again.
If the children are very young they go with the mother, but the daughters remain with the mother in any case, while the sons when old enough to do without the mother's care go to the father. The father has to do his part in sustaining the children.
Section III.-Concerning Relationship.
The different kinds of relationship are as follows:-
1. Their own children. Bana bana na veka.
2. The children of their elder brother. Bana ba ya yandi.
3. Their brother's children. Bana ba nkawmba andi.
4. Children of their uncle. Bana ba mama'ndi nkaci.
5. Children of their grandparents. Bana ba buta kak'andi.
6. Children of the father's sister. Bana ba nkaci.
7. Children of his nephew. Ntekulu u buta muana nkaci.
8. The children in pawn. Buti ci xivili i vanina.
9. The bought slaves. Ndongo i sumba.
10. The children of slaves. Bana ba xifula.
The native law does not adopt the distinction of our civil law between legitimate, and natural children recognised by the father or otherwise. Birth sanctifies the child, and, as the child of its mother, it may become the inheritor of its uncle's property. As regards the general rule of succession it is not the eldest son but the wisest that inherits the property. But where the father of a family has been neglected by his relations, he sometimes takes his revenge on them by dividing his property among his children while he is yet alive. The mother has no property of her own, but is the guardian of that of her children, and should they die this goes to her family.
Both the father and mother watch over the interests of their children, and can punish them.
The mother alone has the right to pawn her child, but she must first consult the father, so that he may have the chance of giving her goods to save the pledging. The father cannot pledge his child. The brother can pawn his sister, or the uncle his niece, the mother being dead. But the father being alive the uncle must go first to him to give him the chance of helping him out of the difficulty by means of a loan of goods. If the uncle is what they call a bad man, the father will call witnesses to see the cloth that he is lending the uncle who would pawn his child, he takes up a kernel of the palm nut in their presence and drops it into his box; which being interpreted means that he has bought his daughter. Until this debt is paid to the father the uncle cannot raise the wind on that child again. A person is never free from being pawned in this way.
Parental authority is really never lost, for the father has always the right to ransom the child, who never ceases to look to him as its father. But as the child often settles down in the village of its pawnee and becomes the parent of children, the amount needed to ransom it increases in proportion to the child's offspring. The debtor has to pay double the amount he borrowed and so much for every child. Even then the child may elect to remain where it is.
A child or children bereft of all family ties may be adopted by one of the father's friends, who calls it or them (Muana bika wali) the child my friend left. Under this kind of artificial parentage the adoptor can neither sell nor pawn this child, nor has he any hold on its earnings; it is a work of love and honour, but he looks to the gratitude of the child to make it up to him in some way or other.
Section IV.-Of Guardianship, of Emancipation, and Prohibition.
The French law recognises four kinds of guardianship:
1 That of the survivors of the fathers and mothers.
2. That by will conferred by the fathers or mothers dying last.
3. That of the next of kin.
4. That which is disposed of by a meeting of the family.
The Bavili recognise six forms of guardianship, in order:
1 The grandfather. Xinkaka xi andi.
2. The father's family. Xitata.
3. The mother's father. Xinkaka xibuta.
4. The mother's family. Mama ci andi.
5. The father's friend. U,yukani tatitu.
6. The guardian appointed by the family. Nandi u yonzola muana u bika vumbi.
The guardian acts as a father to the child, but cannot touch its property, for, as already shown, that belongs to the mother's family. He is paid by the family upon delivering up the child according to his deserts,-whatever he asks for if all has turned out well, with little except shame if badly.
The family are the judges as to the time when the child shall be taken from its guardian, and that is generally when the child has grown up to manhood or womanhood. As the child's pro-father all that it has- earned is his, or as much thereof as he likes to take.
Section V.-Concerning Property.
The best general idea that can be given of the native theory concerning property is given in their own words (Li kanda li ami) "my family," literally Kanda means to make straight, to tighten-Nkanda equals skin, i.e., the natural part of man, or that part which he has in common with animals. As the saying goes, Muntu nkanda, xibula nkanda, muntu ua vioka mu ku bula mbembo. Man is of skin, the cattle are skin, man is only superior by speech.
The right of property is derived through the mother, the planter, to the Great Uncle the giver of all good gifts, Mbunzi, the W. wind, the rain giver, one of the Bakici baci or primeval " powers " on earth.
The Bavili have no word in their language to express proprietor or property. The nearest expression for proprietor is Fumu Bima, the chief or prince of all things. He may possess (Baka vua) money or goods (Mbongo) or things (Bima) or even land, Ci, but as Fumu ci, the land chief, he is the head of a family holding the land in trust for his people; while a possessor of goods is really a man who is only the temporary owner of things that belong to his Fumu.
Both kinds of goods, movable and immovable, have their uses, but one remains (Ci, i.e. the land), the other gets used up (Ma). The difference may be best explained by the words themselves, thus Ci has the meaning of primeval matter, the earth (Nci), while the primeval Ma or Mad equals water.
Wherever labour is implied the possessor has the right of the disposal of its fruits, or that part of it which his Fumu has given back to him or allowed him to keep. A man trades, the part allotted to him is his. The woman plants, that part which remains after feeding her husband and paying the tithes to the Fumu may be said to be hers. The plantation is hers on this understanding. That is to say, all sources of wealth carry their responsibilities with them, and all goods are rather in trust than actual possessions.
The right of usufruct is granted to the Kongo Zovo by the Prince, or to the individual by the Kongo Zovo, on demand, and this may be for him and his descendants so long as they exist as a family, but no use or habitation gives a man the right to ownership. This usufruct may have been granted in the first place by right of birth, as a reward for service rendered, or on payment by a rich man on the extinction of the family on whose land he has been living. And just as the king of the country may depose the prince of the province, so the prince may take away this usufruct from a rebellious Kongo Zovo. The Kongo Zovo in his turn may revoke the usufruct of land or goods enjoyed by the individual.
Usufruct may be established by inheritance, gift, loan, and permission, on land, water, cloths, goods, fruit of the soil.
The Kongo Zovo has the use of the land and water for his family; in return for this (1) he must help the prince in his wars with armed men; (2) all leopards killed on the land must be sent to the prince; (3) the head and a leg of the antelope, the wild ox, and the pig killed must also be sent to him; (4) the backbone of any whale washed ashore, the heads of the sea fishes called Bafu, Ntala, Nqueci, Mbili, Mbuta, Muenji, Tobo; the water pig Ngulu Maci, and a small basket of fish from each net, must also be sent to the prince; (5) his women also must send him one-fifth of the palm nuts, and a basket of pea nuts and Indian corn harvested; (6) the rich man or Esina living upon the property is expected to give the prince a feast and presents every year.
In return for a gift of cloths or the loan of goods the recipient is expected
to be at the beck and call of the one who gives, although he has no right to
claim service. The receiver calls this man "my friend who gives me cloths to
wear every day." U yukana yami u kalila u mpuika nlele kada xilumbu.
Those who are permitted to cut down the palm nuts or reap any of the unplanted fruits of the soil are rewarded by a certain share in the profits of their sale.
The usufruct comes to an end by the will of the prince, the Kongo Zovo, or the individual, although it is granted generally to the recipient and his successors so long as they exist and behave themselves.
I have explained the duty of the individual to the Kongo Zovo, and of the Kongo Zovo to the Prince; there remains that of the Prince to the King. Maluango, as prince of the province of Buali, enjoys the same revenue as the princes of the other provinces, but as King he sends his messages to the princes to demand their aid in any emergency. He demands men in case of war, goods in case of need when one of the " powers " or Bakici baci have to be appealed to. The Prince must send him the skins of all animals killed, three pieces of chalk, 100 longs (or 50 francs goods), three saga ngo, and three mbongo lu tumbu or native money mats.
Roads running from the villages through the lands granted to the Kongo Zovo to the main roads are called Nzila Zi Nyawna, and are of a private nature, that is to say a stranger may be asked if met where he is going to, and if his reply is satisfactory he is allowed to proceed, if not he is asked to go by the public road, or Nzila Ivanga Nzambi, or God-created road.
These latter roads cross at Buali, the sacred and central province of the Bavili or Luango. The east road leads to the country of the Batetchi, and is called Nzila Xintetchi, the west leading to the sea, Nzila Mbu, the south, Nzila Kakongo, the north road, Nzila Balumbu. These are partof the public lands, as are also the sacred groves (Bibila), lakes, lagoons, rivers, bush, and ownerless lands.
Fishing, hunting, trees, native string, reeds, and the fruit of the soil not planted by the hand of man are common to the natives of the country.
The King holds the whole country in trust from God, through the "powers," for the use of the people.
White men may on certain conditions become users of the land and that which
grows on it. The white man wishing to occupy land applies to the Kongo Zovo, who
marks off the land put aside for his use. The white man then compensates the
Kongo Zovo for his loss of use of the land, and the family for loss of use of
the trees, etc. In the meantime the Kongo Zovo has warned the prince, who sends
his Mafuka, Maxienji, and Mangova to visit the white man and witness the act of
self-sacrifice on the part of the Kongo Zovo. They supply the white man with an
interpreter, to whom they give the title of Mafuka or messenger. This man
watches the interests of the white man and the prince conjointly. When the white
man has returned the prince's messengers with small presents and has settled
down a little, the prince, accompanied by his Mambuku, Mamboma, Mafuka,
Maxienji, and Mangova and followers, comes to visit him officially.
The white man has to supply these six personages with chairs or stools, and should place upon the prince's chair a piece of checked cloth called the cloth of law.
The prince then bestows the land upon the white man and his successors. Thereupon the white man takes a position in the country equivalent to the Kongo Zovo, but instead of paying the prince in flesh and fish or the products of the soil, pays the prince so much in goods half yearly or yearly, as well as a certain small percentage on the produce he buys.
Section VI.-Of Successions, Gifts, and Wills.
On hearing of the death of a person all his relations come to "weep." The wife of the deceased delivers the key of the house, where the wealth is, to the man she knows in the absence of any will to be the rightful inheritor. These are -1. The brother of the deceased by the same mother. 2. Then the nephew by his sister. 3. The relations of his mother. 4. Failing these, his child. The wife he has loved and esteemed the most is the guardian of his wealth and the keeper of the key, but she inherits nothing.
The natural inheritor cannot repudiate his succession; he must take over the debts, not being able to renounce the inheritance.
When about to bury the deceased the inheritor plants a sword in the ground, before the assembled guests, and asks if there is anything more to be paid by him on behalf of the deceased. Any creditor present then goes up to the sword and placing his hand upon it declares that the deceased owes him money or goods, and that he will give particulars of the debt later on. These are considered as proved. Any creditor claiming his money after that must bring his witnesses, and be prepared to substantiate the debt. The wife generally knows all about the debts of her husband.
The wife mourns for her husband (or did) for 18 to 24 months after death; the burial of her husband often taking place about that time.
The members of the family generally help to pay the expenses of the ceremonies in connection with the death of the Kongo Zovo; they then stay with the inheritor or disperse to the families of their mothers. They inherit nothing from the Kongo Zovo except by will.
A man may give away his property during his life, or make his verbal will in the presence of his wife and witnesses. He will call his slaves and tell them that they have been given to so-and-so. Or he may call his children and let them choose their slaves or goods. But this is seldom done, and only to spite the family of his people who may have behaved badly to him.
The gift is made in the presence of witnesses, and is revocable until the death of the giver, if it is to take effect only after death. But a simple gift between the living is irrevocable.
There are no special forms to be observed when a will is made; it is held to be written in the heart of the wife who has the key.
The wife and the witnesses are the executors of the will. The family will often make the widow pass before their fetishes and swear that she is keeping nothing back. They sometimes go further and force her to take "casca" as a test of her honesty.
There can be no revocation of the last will, the matter rests with the wife and witnesses once the husband is dead.
Section VII-Of Contracts.
Contracts may be enumerated as follows:-Those between the King and his neighbours, those between prince and King, those between prince and prince, those between prince and Kongo Zovo, and those between individuals.
[1. Bark of NKASA.]
Treaties or contracts between Kings are brought about by a third party or mutual friend, who acts as intermediary and witness. Between the King or prince and his inferior, the inferior gives the superior a present, and in the presence of witnesses "claps his hands," "Kalambala nkele maluango nkici." On the creation of a market a gun is buried, and an agreement made that no arms of any sort may be brought there, and this is done in the presence of witnesses. Between individuals no contract is legal unless made in the presence of witnesses. These compacts are known by the words Nkaka or Nkankano.
The one thing in all these compacts that is essential is that witnesses shall be present, and when it is proposed to cancel a contract the contracting parties buy "malafu" (palm wine) in equal quantities, but deposited in one bottle or other vessel, and then in the presence of witnesses drink and agree to cancel the compact. But in the case of one of the parties refusing to annul the contract, the matter is taken before two or three chiefs or princes and talked out. In the event of the dispute arising out of inequality of service rendered, the division of profits is rearranged, or the contract declared then and there null and void.
All goods, Bima, are freely bought and sold except men, Bantu, the sale of men being a family affair.
A sale becomes definite after the transaction has been accomplished in the presence of witnesses, and the seller has " blessed it." He lifts his hands to his arm-pits, and then throws them out towards the buyer, and breathes or blows over the thing sold. This is called Ku vana mula, to give the breath, and is equivalent to saying " God bless thee."
Mbongo Masandi (or a piece of grass cloth measuring in length, including fringe, 45 centimetres, and about 25 centimetres in breadth) has been in use as money from time immemorial, although at present it may be said to be out of use, the French coinage gradually taking its place. Four of these small mats were wrapped in one bundle, Vili, and five of these bundles (20 mats) were called Milele Mbongo I Tanu. Ten bundles (40 Vili) Mbongo Fula. One hundred Mbongo Fula (4,000 Vili) were called Kama Mbonga. This was the price of a little slave of about five years of age. This equalled 8 fathoms of cloth,. or about 16 yards, or four francs, that is to say, 1 Vili was equivalent to .001 centime. The white traders' cloth is now doubled in 12 folds; three folds equals 1 long or "cortado"; and 4 longs or cortados form a piece of cloth sold for two francs. That is to say, one piece of 8 yards 21 inches wide is doubled into 12 folds or 24 laps.
Native custom allows the letting out on hire of men as of things. A native in need of labour might seek a large slave owner and hire slaves or others for the sum of five longs, the duration of the service not being definitely settled. Should one of these slaves die during the service, the hirer had to pass before the fetishes and declare that he had had no hand in his death. Under these circumstances he would pay the owner 20 longs. But if he had wilfully caused the death of the slave, he would have to pay 5 to 10 slaves in his place according to his wealth. The price of the grown slave was 5 times Kama Mbongo or 40 fathoms of cloth Kama Buta. This payment was called Ku Futa Li Bumi. (To pay that which is wasted.)
Slaves; are termed children of the "cloth", or Muana Ntu "the son of the head," in reference to the slave as the carrier). The owner is not expected to force a slave to do that which is wrong (Lu Kasu), but if he does the slave must do it, as his master has the right to kill him if he does not, and is himself responsible for the slave's action.
The domestic servants of a rich man are called Bavinji. A father may ask a friend to take his son as servant and teach him all he knows. Such a boy is called Xileci. The head boy or steward is called Xileci Xi Busu.
There is no lending at interest in our sense of the word. Where a man borrows goods he must pay back double the amount borrowed, no matter for how long a time he has owed them. Unless a certain date for the return of the goods is mentioned, the debt may continue for years. The writer knows of one case where a debt was 15 years old.
A man may lease his cattle to another under the following recognised conditions:-First increase goes to the owner; of the second the caretaker takes a female; of the third a male, the fourth goes to the owner.
A man may commission another to carry on trade for him. He gives him exact
instructions, paying him half the profits, but exacts from him or his family any
loss incurred. The sender is responsible to the family for any evil that may
overtake the one sent provided that it cannot be shown that the evil was the
consequence of his own folly. A man on leaving the country may commission his
friend to act for him, but the service requested must be mentioned to the man
commissioned in the presence of witnesses, and he may only act for him in that
particular instance or on that occasion. No procuration to act generally for
another is ever given. A present is given to one so acting for another, where no
profit can be expected. The act or service accomplished and the profits shared
or present given, ends the commission. The family being responsible, no general
procuration is needed, for it rests with them always as a matter of fact.
In the event of a time for the repayment of a debt having been fixed, the creditor asks for payment, and if this is put off or refused he has the right to arrest anyone belonging to the debtor's family. This person is held until the matter has been publicly settled by palaver in the courts of law, when, the debt being paid, the prisoner is set at liberty. The person thus arrested is not necessarily of the same family as the debtor, but he should be of a family in the same princedom or province, that is some one living not very far from the debtor. This captive receives payment from the debtor quite apart from the creditor, but as the result of the judgment of the same palaver. And this is the only form of security for the payment of a debt which the native law provides for.
Section I.-Of Infraction.
The Bavili have a very distinct idea of the moral and natural law, and classify their sins into five distinct sections of the one great class of laws called Xina or things forbidden, sometimes spoken of as Ka Zila, no road.
The first section is called Xina Xivanga Nzambi, or that which is contrary to God the creator. The sign of this is Mawso, the tail of the ox, the sign of office of the Kongo Zovo.
The second is found in the horror the native has (or had) of being photographed, and in the magic glass of the Nganga Nyambi, who alone is allowed to look into it, to discover the successor of the defunct Maluango, made, as they say in the image of God. This mirror-gazing is called Ku Sala Fumu.
The third we find in the way the mothers correct their children when they talk foolishly of God, this they call Xibika Bakulu.
In illustration of the fourth class. On the fourth day the prince, Kongo Zovo, or father, may have no connection with his wife, he may not go outside of his town, he may not hold a palaver. The doctor or Nganga Bilongo may not bleed his patient. The women may not work in the fields. All this is called Sona.
The fifth comprises all those ceremonies and things forbidden concerning maternity. A woman must not sleep with her husband on the ground. A girl must not have connection with a man before she has passed through the "paint house." No dishonour to their parents must be thought of. All this is summed up in the word 'Ngo, the leopard.
These foregoing five Bina (plural of Xina) are summed up as Xina Va Xi Fumba.
The sixth, to kill, is called Ku Vawnda.
The seventh, to commit adultery, Ku Bawnga.
The eighth, to steal, Ku. Kuba.
The ninth to bear false witness, Xi Buta Mambu.
These four are called Xina Nkaka.
Not to covet, to remember that all under the market tree is sacred, and that this tree is also the last resting place of the body of the defunct Maluango, on the way to the burial, after having held the "Seven" well in hand according to the will of God. All this is called Xina Nsotchi or Nsoxi.
Finally, we come to that class Aza Bina, or totems, by which the natives know whom they may marry and whom not, as already mentioned in Section II., i.e., a man may not marry a woman whose Xina or totem is the same as that of his mother's family. This class is called Xina Mvila. As in the case of the Hebrews, so in that of the Bavili contravention of these laws is believed to be punished by God, by His withholding the rains in due season. Hence the necessity of the offerings made to the "powers" representing the attributes of God on earth, or Ba Kici Baci, of which Maluango is one under the title of Nkicici.
The father, the Kongo Zovo, or the village are responsible in the event of the delinquent's non-arrest, and even then they must pay their share of the fine, or sell the prisoner into slavery, if he is not rich enough to pay the fine himself.
Children and fools or idiots are not responsible personally for their actions, but the injured party can claim compensation if he likes from the parents.
Killing, etc., in self-defence, robbery of plantations when very hungry, when no deception or secrecy is practised, are regarded as justifiable facts. In each case, however, payment for damage done is expected.
Section II.-Of Punishment.
The idea of the damage done to God, King, prince, father, neighbour, is the
ground of the punishment inflicted. The punishment itself being a payment to
satisfy the party injured. And this is shown by the fact, that except in the
case of children who are chastised, payment in money, kind, or goods is first
demanded. But pay you or your family must, if not in money, then by being sold
into slavery, or by becoming the slave of the injured party. A man condemned to
death may not be slain if there is one dissenting voice in his village. Under
these circumstances a goat is killed in his stead. A piece of this goat is given
to every member of the community and the culprit is sold. When it is decided to
kill the murderer or culprit, the Kongo Zovo, or the prince, must hand the
person over to Mamboma, and he hands him to Maluango, who calls his Mankaka (or
executioner), and the latter cuts off his head.
Generally speaking, payment in a greater or less degree according to the crime is the rule as to form of punishment. The only exceptions to the above are,-When a man sleeps with a child not yet arrived at the age of puberty (Xina Xinselo) and so causes the wrath of God and a drought and consequent famine. Or when a man presumes to commit adultery with the wife of a prince (Ku sumuna nkawci Luango i matali) to sin against the wife and the royal rites of marriage. In these cases the culprits, male and female, are entirely in the hands of the Maluango, and they are bound hands and feet and cast into the fire. Witches who have taken "casca" and have been proved guilty are also burnt. But even in these extreme cases Maluango can spare their lives.
In the event of the crime being considered as in part justified by circumstances, or in the case of a crime being committed without intention (Mamu Ma Bakici), on the spur of the moment, by a hitherto good man, the King will take him on one side and reason with him, pointing out that he has broken the law and must pay, but only in part, warning him to be more careful in the future.
Slavery may be substituted for either death or nonpayment.
The accomplice is reckoned as blamable as the actual criminal, but the instigator pays more than either, on the principle that a slave does his master's bidding, and that the master is responsible for his actions.
Each crime has its penalty, but in the event of a man becoming an habitual criminal the penalties may increase to such an extent as to make it worth while on the part of the family to sell or kill the criminal to get him out of the way.
In simple matters a third party is asked in the presence of witnesses to judge between the two parties; if they are not satisfied with this and the palaver is between two of one family the father may judge the matter. If the question is between two of the same Kongo Zovo then this chief may settle it. If between two of different Kongo Zovo then the prince. If between two off different provinces then the question is taken to Mamboma, and this prince takes it before the king Maluango on the day that the latter has marked off for the hearing of the case. Maluango's Court is the final court of appeal in a natural sense, although he may admit that the case is beyond his powers and refer the parties to the tests by ordeal.
In an ordinary palaver each party puts his side of the question before the third party or Reasoner, called Nzonzi. In case of appeal the Nzonzi appears before Maluango and explains the case to him from beginning to end. If one of the parties lives to the North of Buali (that is Maluango's province), and the other to the South, then Maluango sits with his back to the East. If the parties live East and West then he sits facing the South. The Nzonzi then stands at the opposite side of a hollow square, the defendant (Ntunyi) and his party, and the plaintiff (Mqwika) and his party, seat themselves at the right or left of Maluango, according to the direction in which their towns lie. To talk a palaver, or rather sit it, is called Ku Funda Nkano. The people reasoning it out, or the two parties, are called Bana Bankano.
The place where the palavers are held may be under a shed or a tree, and is called Nganda Tela Li Misarnu.
The natives recognise at least five kinds of palavers.
1. Concerning the rains and the "powers" (Ku Fwika Mambu Ma Ci).
2. Between the princes concerning the land (Ku Funda NKANOCI).
3. To clear up an intrigue between friends and find out who is at the bottom of it (Ku Zinga Cina).
4. Civil (Mi Samu Ku Sosubula).
5. Criminal (Nkano Ku Funda).
As the judges are the Chiefs, Princes, and King of the country they have no special prerogatives or duties apart from their governing offices.
Generally speaking, each party has an advocate to plead the cause. This advocate is called Nanga.
The attendants or helpers of the judges are those entitled to hold these
offices as Chiefs.
Maluango has seven titles, 12 followers, six kinds of Zi-Nganga. Mamboma has two titles of his own and people filling up the other titles of Maluango, except that of Nkicici, which, in Mamboma's court, is not represented. Then he has also 12 followers and six Nganga in connection with the trials by ordeal.
The followers that the Manifumus of the provinces have in common with Maluango and his Mamboma are:-
Maluango's signs of office are:-
1. Silver knife (Ximpaba).
2. 1 hat (Mpu Ntanda).
3. 1 cape (Xisemba).
1. iron (Ximpaba).
2. 1 hat (Mpu Nzita).
3. 1 cape (Xisemba).
his Mankaka (executioner)
1. sword (Mbele).
2. hat (Mpu Xikumbu).
3. A long cloth (Xinzobolo).
The prince of a province (and Maluango as such):-
1. ivory horn.
2. iron bell.
3. hat (Mpu Nzita).
4. cape (Xisemba).
1. the tail of an ox.
2. hat (Mpu Ngunda).
3. cape (Xisemba).
The condition of the plaintiff or defendant does not determine the composition of the palavers and there is no exceptional jurisdiction.
The judge alone is allowed to settle a palaver. The number of helpers or assessors is according to the importance of the palaver.
The palaver commences by each party stating his own case, and where there are advocates (ZINANGA), each advocate is instructed by his client beforehand, but may be reminded of any point during the proceedings.
Anyone may sit down and listen to the palaver, and the judgment is very quickly spread about by report.
The procedure, Civil and Criminal, is much as it existed in Europe in barbarous times, ordeals being used instead of legal proceedings where one of the parties fears that his opponent may take an unfair advantage of his poverty, or when legal proceedings have not been successful in clearing the matter up and as a kind of last appeal.
A man is not forced to answer any question until the palaver is held. The head of a family may put one of his people in the yoke or whip him to get him to tell the truth, but torture in legal matters is unknown.
In opening the palaver the prince claps his hands and says, Ngo Ngo Ngo, ngete Nzambi twa dukuna, and thus greets all that are present in the name of God. Then he asks for a drink, and each party gives the same quantity. He then calls on the NANGA to state the case (mayanga manzoa). He swears by the fetish present to speak the truth, and then having stated the case, hands the parties over to the King judge (Nkunzi). The King then orders the plaintiff to speak, which he does after " beating the fetish," and insisting upon its not allowing the defendant to interrupt him before his time to speak arrives. When both have finished they both "beat" the fetish, and agree to abide by the judgment, of the King. If it is felt that the palaver
[1. Literally, "Leopard, leopard, leopard, yes, O Nzambi, to keep on extracting."
2 Statement of the case.]
cannot be finished by "mouth," they call in the Nganga Bisengo, or Nganga Mbele Ku Mbazu, or Nganga Mbundu Ncitu, who divines who is guilty.
1. In the case of Mbundu Ncitu (a herb) one of each party is called upon to appear before the Nganga. The Nganga first takes the herb himself, and then falls down in the direction of the guilty party. He informs the prince of the fact. The prince then says it will be best to let each party eat the Mbundu Ncitu. This they do; the guilty party falls down, the innocent lets three drops of urine fall on a leaf that is placed between the legs of each party. (This is not the same as the Nganga Nkasa who gives the casca to witches.)
2. Nganga Bisengo has a little box with a tight-fitting lid, which refuses to be parted from the box when the party present is guilty.
3. Nganga Mbele has a heated knife, which will only burn the guilty party.
After judgment the two parties called by the Nganga are brought just as they are to the assembly, and each side takes his representative. The King then tells the culprit how much he has to pay, and the day upon which the payment must be made in his presence. When the payment is made the judge asks them both if they are satisfied, and if the judge is Maluango they place their hands on the ground under his chair, and swear to let bye-gones be bye-gones; if the judge is a Kongo Zovo they put their hands on his head and swear. And after a few words of advice and warning the palaver is finished.
Each day that the palaver lasts, each party pays the judge one large calabash of palm wine. When the judgment is given each party pays Kama (100 mats or cubits, see page 62), ZIMBONGO per diem.
Corporal punishment, as has been stated, is a matter for the father to inflict in his village, refractory prisoners are put in the yoke for the time being, but there are no prisons, and the slave or pawn is just as free of the village as any of the inhabitants.
The prisoner directed to pay a fine or expenses becomes the slave or pawn to the creditor until the amount is paid by his family.
There is very little to alter in either the composition or procedure of the native courts, they are the outcome of thousands of years of accumulated experience of a people who know themselves and their needs. Rather do the natives need a taking back to their ancient customs, before the "slave trade" and its abuses destroyed so much of their natural beauty. While some natives may have benefited by their contact with the white races, it is certain that the ignorance of the latter of their ways of thought and action has done the race a great deal of injury, which only time and study can possibly repair.