15. MAIMING

Maiming is compounded, and the method of procedure in prosecution is essentially the same as for theft.

16. MURDER

In the case of murder, if both parties are members of the same gens, the matter is tried by the gentile council on complaint of the head of the household, but there may be an appeal to the council of the tribe. Where the parties belong to different gentes, complaint is formally made by the injured party, through the chief of his gens, in the following manner :

A wooden tablet is prepared, upon which is inscribed the totem or heraldic emblem of the injured man's gens, and a picturewriting setting forth the offense follows.

The gentile chief appears before the chief of the council of the offender, and formally states the offense, explaining the picturewriting, which is then delivered.

A council of the offender's gens is thereupon called and a trial is held. It is the duty of this council to examine the evidence for themselves and to come to a conclusion without further presentation of the matter on the part of the person aggrieved. Having decided the matter among themselves, they appear before the chief of the council of the aggrieved party to offer compensation.

If the gens of the offender fail to settle the matter with the gens of the aggrieved party, it is the duty of his nearest relative to avenge the wrong. Either party may appeal to the council of the tribe. The appeal must be made in due form, by the presentation of a tablet of accusation.

Inquiry into the effect of a failure to observe prescribed formalities developed an interesting fact. In procedure against crime, failure in formality is not considered a violation of the rights of the accused, but proof of his innocence. It is considered supernatural evidence that the charges are false. In trials for all offenses forms of procedure are, therefore, likely to be earnestly questioned.

17. TREASON

Treason consists in revealing the secrets of the medicine preparations or giving other information or assistance to enemies of the tribe, and is punished by death. The trial is before the council of the tribe.

18. WITCHCRAFT

Witchcraft is punished by death, stabbing, tomahawking, or burning. Charges of witchcraft are investigated by the grand council of the tribe. When the accused is adjudged guilty, he may appeal to supernatural judgment. The test is by fire. A circular fire is built on the ground, through which the accused must run from east to west and from north to south. If no injury is received he is adjudged innocent; if he falls into the fire he is adjudged guilty. Should a person accused of having the general reputation of practicing witchcraft become deaf, blind, or have sore eyes, earache, headache, or other diseases considered loathsome, he is supposed to have failed in practicing his arts upon others, and to have fallen a victim to them himself. Such cases are most likely to be punished.

19. OUTLAWRY

The institution of outlawry exists among the Wyandots in a peculiar. form. An outlaw is one who by his crimes has placed himself without the protection of his clan. A man can be declared an outlaw by his own clan, who thus publish to the tribe that they will not defend him in case he is injured by another. But usually outlawry is declared only after trial before the tribal council.

The method of procedure is analogous to that in case of murder. When the person has been adjudged guilty and sentence of outlawry declared, it is the duty of the chief of the Wolf clan to make known the decision of the council. This he does by appearing before each clan in the order of its encampment, and declaring in terms the crime of the outlaw and the sentence of outlawry, which may be either of two grades.

In the lowest grade it is declared that if the man shall thereafter continue in the commission of similar crimes, it will be lawful for any person to kill him; and if killed, rightfully or wrongfully, his clan will not avenge his death.

Outlawry of the highest degree makes it the duty of any member of the tribe who may meet with the offender to kill him.

20. MILITARY GOVERNMENT

The management of military affairs inheres in the military council and chief. The military council is composed of all the able-bodied men of the tribe; the military chief is chosen by the council from the Porcupine gens. Each gentile chief is respon

sible for the military training of the youth under his authority. There is usually one or more potential military chiefs, who are the close companions and assistants of the chief in time of war, and in case of the death of the chief, take his place in the order of seniority. Prisoners of war are adopted into the tribe or killed. To be adopted into the tribe, it is necessary that the prisoner should be adopted into some family. The warrior taking the prisoner has the first right to adopt him, and his male or female relatives have the right in the order of their kinship. If no one claims the prisoner for this purpose, he is caused to run the gauntlet as a test of his

courage.

If at his trial he behaves manfully, claimants are not wanting, but if he behaves disgracefully he is put to death.

21. FELLOWHOOD

There is an interesting institution found among the Wyandots, as among some other of our North American tribes, namely, that of fellowhood. Two young men agree to be perpetual friends to each other, or more than brothers. Each reveals to the other the secrets of his life, and counsels with him on matters of importance, and defends him from wrong and violence, and at his death is chief mourner.

22. CONCLUSIONS

The government of the Wyandots, with the social organization upon which it is based, affords a typical example of tribal government throughout North America. Within that area there are several hundred distinct governments. In so great a number there is great variety, and in this variety we find different degrees of organization, the degrees of organization being determined by the differentiation of the functions of the government and the correlative specialization of organic elements.

Much has yet to be done in the study of these governments before safe generalizations may be made. But enough is known to warrant the following statement :

Tribal government in North America is based on kinship in that the fundamental units of social organization are bodies of consanguineal kindred either in the male or female line; these units being what has been well denominated "gentes."

These "gentes" are organized into tribes by ties of relationship and affinity, and this organization is of such a character that the man's position in the tribe is fixed by his kinship. There is no place in a tribe for any person whose kinship is not fixed, and only

those persons can be adopted into the tribe who are adopted into some family with artificial kinship specified. The fabric of Indian society is a complex tissue of kinship. The warp is made of streams of kinship blood, and the woof of marriage ties.

With most tribes military and civil affairs are differentiated. The functions of civil government are in general differentiated only to this extent, that executive functions are performed by chiefs and sachems, but these chiefs and sachems are also members of the council. The council is legislature and court. Perhaps it were better to say that the council is the court whose decisions are law, and that the legislative body properly has not been developed.

In general, crimes are well defined. Procedure is formal, and forms are held as of such importance that error therein is prima facie evidence that the subject-matter formulated was false.

When one gens charges crime against a member of another, it can of its own motion proceed only to retaliation. To prevent retaliation, the gens of the offender must take the necessary steps to disprove the crime, or to compound or punish it. The charge once made is held as just and true until it has been disproved, and in trial the cause of the defendant is first stated. . . .

In the tribal governments there are many institutions, customs, and traditions which give evidence of a former condition in which society was based not upon kinship, but upon marriage.

From a survey of the facts it seems highly probable that kinship society, as it exists among the tribes of North America, has developed from connubial society, which is discovered elsewhere on the globe. In fact, there are a few tribes that seem scarcely to have passed that indefinite boundary between the two social states. Philologic research leads to the same conclusion.

Nowhere in North America have a people been discovered who have passed beyond tribal society to national society based on property, i.e., that form of society which is characteristic of civilization. Some peoples may not have reached kinship society; none have passed it.

Nations with civilized institutions, art with palaces, monotheism as the worship of the Great Spirit, all vanish from the priscan condition of North America in the light of anthropologic research. Tribes with the social institutions of kinship, art with its highest architectural development exhibited in the structure of communal dwellings, and polytheism in the worship of mythic animals and nature-gods remain.

CHAPTER XI

KAFIR LAWS AND CUSTOMS1

SECTION 1

THE AMAXOSA TRIBES

1. THE GOVERNMENT AND ITS PRACTICAL OPERATION

It is common to talk of the despotism of Kafir chiefs. If by the use of this term it is intended to be implied that the will of the chief is the sole law of the nation, it is incorrect. The government amongst the tribes on this side of the Bashee is not a despotism. Such a term may be applicable to the rule of Mosheshe, the Basutu chief, who boasted that when he spoke the mountains moved; or to the tyranny of Tshaka, the head of the Amazulu, who would order a number of his people unarmed to catch a hippopotamus alive, and be obeyed, too, so far at least as the attempt was concerned, although it involved the certain and wanton sacrifice of many lives. The government of the Amaxosa and Abatembu tribes is a sort of mixture of Patriarchism and Feudalism. Age gives great weight and influence to the will of a chief, and most chiefs of rank can generally find means to accomplish their wishes; but if these wishes involve the death or spoliation of any of their subjects, they are usually obliged to resort to some form of law to give colour to their procedure. In the case of a Kafir chief, the principal checks to the despotic inclinations which the possession of power always induces are, first, the division of the tribes, and secondly, the existence of a very influential council.

The operation of succession to the chieftainship, which was explained in the "Christian Watchman" for September, has led to the formation of various tribes nearly equal in power to each

[Reprinted from "A Compendium of Kafir Laws and Customs (including Genealogical Tables of Kafir Chiefs and various Tribal Census Returns)"; compiled by direction of Colonel MACLEAN, C.B., Chief Commissioner in British Kaffraria (Grahamstown, 1906). The present account was written by Rev. H. H. DUGMORE.]