III. Systems of Law in Conflict

Primitive law is not a homogeneous, perfectly unified body of rules, based upon one principle developed into a consistent system. So much we know already from our previous survey of legal facts in the Trobriand Islands. The law of these natives consists on the contrary of a number of more or less independent systems, only partially adjusted to one another. Each of these — matriarchy, father-right, the law of marriage, the prerogatives and duties of a chief and so on — has a certain field completely its own, but it can also trespass beyond its legitimate boundaries. This results in a state of tense equilibrium with an occasional outbreak. The study of the mechanism of such conflicts between legal principles, whether overt or masked, is extremely instructive and it reveals to us the very nature of the social fabric in a primitive tribe. I shall therefore proceed now to the description of one or two occurrences and then to their analysis.

I shall describe first a dramatic event which illustrates the conflict between the main principle of law, Mother-right, and one of the strongest sentiments, paternal love, round which there cluster many usages, tolerated by custom, though in reality working against the law.

The two principles Mother-right and Father-love are focussed most sharply in the relation of a man to his sister’s son and to his own son respectively. His matrilineal nephew is his nearest kinsman and the legal heir to all his dignities and offices. His own son on the other hand is not regarded as a kinsman; legally he is not related to his father, and the only bond is the sociological status of marriage with the mother.1

Yet in the reality of actual life the father is much more attached to his own son than to his nephew. Between father and son there obtains invariably friendship and personal attachment; between uncle and nephew not infrequently the ideal of perfect solidarity is marred by the rivalries and suspicions inherent in any relationship of succession.

Thus the powerful legal system of Mother-right is associated with a rather weak sentiment, while Father-love, much less important in law, is backed by a strong personal feeling. In the case of a chief whose power is considerable, the personal influence outweighs the ruling of the law and the position of the son is as strong as that of the nephew.

That was the case in the capital village of Omarakana, the residence of the principal chief, whose power extends over the whole district, whose influence reaches many archipelagoes, and whose fame is spread all over the eastern end of New Guinea. I soon found out that there was a standing feud between his sons and nephews, a feud which assumed a really acute form in the ever recurrent quarrels between his favourite son Namwana Guya’u and his second eldest nephew Mitakata.

The final outbreak came when the chief’s son inflicted a serious injury on the nephew in a litigation before the resident government official of the district. Mitakata, the nephew, was in fact convicted and put to prison for a month or so.

When the news of this reached the village, the short exultation among the partisans of Namwana Guya’u was followed by a panic, for everyone felt that things had come to a crisis. The chief shut himself up in his personal hut, full of evil forebodings of the consequences for his favourite, who was felt to have acted rashly and in outrage of tribal law and feeling. The kinsmen of the imprisoned young heir to chieftainship were boiling with suppressed anger and indignation. As night fell, the subdued village settled down to a silent supper, each family over its solitary meal. There was nobody on the central place — Namwana Guya’u was not to be seen, the chief To’uluwa hid in his hut, most of his wives and their families also remained indoors. Suddenly a loud voice rang out across the silent village. Bagido’u, the heir apparent, and eldest brother of the imprisoned man, standing before his hut, spoke out, addressing the offender of his family:

„Namwana Guya’u, you are a cause of trouble. We, the Tabalu of Omarakana, allowed you to stay here, to live among us. You had plenty of food in Omarakana, you ate of our food, you partook of the pigs brought to us as a tribute and of the fish. You sailed in our canoe. You built a hut on our soil. Now you have done us harm. You have told lies. Mitakata is in prison. We do not want you to stay here. This is our village! You are a stranger here. Go away! We chase you away! We chase you out of Omarakana.”

These words were uttered in a loud piercing voice, trembling with strong emotion, each short sentence spoken after a pause, each like an individual missile, hurled across the empty space to the hut where Namwana Guya’u sat brooding. After that the younger sister of Mitakata also arose and spoke, and then a young man, one of the maternal nephews. Their words were almost the same as in the first speech, the burden being the formula of chasing away, the yoba. The speeches were received in deep silence. Nothing stirred in the village. But, before the night was over, Namwana Guya’u had left Omarakana for ever. He had gone over and settled in his own village, in Osapola the village whence his mother came, a few miles distant. For weeks his mother and sister wailed for him with the loud lamentations of mourning for the dead. The chief remained for three days in his hut, and when he came out looked older and broken up by grief. All his personal interest and affection were on the side of his favourite son, of course. Yet he could do nothing to help him. His kinsmen had acted in complete accordance with their rights and, according to tribal law, he could not possibly dissociate himself from them. No power could change the decree of exile. Once the ’Go away’ — (bukula), ’we chase thee away’ — (kayabaim), were pronounced, the man had to go. These words, very rarely uttered in dead earnest, have a binding force and almost ritual power when pronounced by the citizens of a place against a resident outsider. A man who would try to brave the dreadful insult involved in them and remain in spite of them, would be dishonoured for ever. In fact, anything but immediate compliance with a ritual request is unthinkable for a Trobriand Islander.

The chief’s resentment against his kinsmen was deep and lasting. At first he would not even speak to them. For a year or so, not one of them dared to ask to be taken on overseas expeditions by him, although they were fully entitled to this privilege. Two years later in 1917, when I returned to the Trobriands, Namwana Guya’u was still resident in the other village and keeping aloof from his father’s kinsmen, though he frequently paid visits to Omarakana in order to be in attendance on his father, especially when To’uluwa went abroad. The mother had died within a year after the expulsion. As the natives described it: „She wailed and wailed, refused to eat, and died.” The relations between the two main enemies were completely broken and Mitakata, the young chieftain who had been imprisoned, had sent away his wife who belonged to the same subclan as Namwana Guya’u. There was a deep rift in the whole social life of Kiriwina.

The incident was one of the most dramatic events which I have ever witnessed in the Trobriands. I have described it at length, as it contains a clear illustration of Mother-right, of the power of tribal law and of the passions which work in spite of it.

The case, though exceptionally dramatic and telling, is by no means anomalous. In every village where there is a chief of high rank, an influential notable or a powerful sorcerer, he favours his sons and allows them privileges, which are, strictly speaking, not theirs. Often this produces no antagonisms within the community — when both son and nephew are moderate and tactful. Kayla’i, the son of M’tabalu, the recently deceased chief of highest rank of Kasanai, lives on in his father’s village, carries on most of the communal magic and is on excellent terms with his father’s successor. In the cluster of villages of Sinaketa, where there reside several chiefs of high rank, some of the son-favourites are good friends with the rightful heirs, some in open hostility to them.

In Kavataria, the village adjoining the Mission and the Government Station, the last chief’s son, one Dayboya, has completely ousted the real masters, supported in this by European influence, which naturally worked for patrilineal claims. But the conflict, more acute nowadays and carried on with greater force by the paternal principle, because of the backing it inevitably receives from the white man, is as old as mythological tradition. It is expressed in the stories told for amusement, the kukwanebu, where latula guya’u, the chief’s son, is a standard type, arrogant, pampered, pretentious, often the butt of practical jokes. In serious myths, he is sometimes the villain, sometimes the contending hero — but the opposition of the two principles is clearly marked. But most convincing as to the age and cultural depth of the conflict, is the fact that it is embedded in a number of institutions, with which we shall presently become acquainted. Among the people of low rank, the opposition between Mother-right and Father-love also exists, and it shows itself in the father’s tendency to do all he can for his son, at the nephew’s expense. And again after the father’s death the son has to return to the heirs practically all the benefits and possessions received during the father’s lifetime. This naturally leads to a good deal of discontent, friction, and round-about methods of arriving at a satisfactory settlement.

We are, then, once more face to face with the discrepancy between the ideal of law and its realization, between the orthodox version and the practice of actual life. We have already met with it in exogamy, in the system of counter-magic, in the relation between sorcery and law, and, indeed, in the elasticity of all the rules of civil law. Here, however, we find the very foundations of the tribal constitution challenged, indeed systematically flouted by a tendency entirely incompatible with it. Mother-right as we know is the most important and the most comprehensive principle of law, underlying all their customs and institutions. It rules that kinship has to be counted through females only and that all social privileges follow the maternal line. Thus it excludes the legal validity of a direct bodily tie between father and child and of any filiation in virtue of this tie.2 With all this, the father loves the child invariably and this sentiment finds a limited recognition in law; the husband has the right and duty to act as a guardian to his wife’s children till puberty. This, of course, is the only line which law can possibly take in a culture with patrilocal marriage. Since small children cannot be severed from the mother, since she has to be with her husband, often at a distance from her own people, since she and her children need a male guardian and protector on the spot — the husband necessarily fulfils this rôle and he does it by strict and orthodox law. The same law, however, orders the boy — not the girl, who remains with the parents till marriage — to leave the father’s house at puberty and to move to his mother’s community and pass into the tutelage of his maternal uncle. This, on the whole, runs counter to the wishes of the father, of the son and of the latter’s uncle — the three men concerned, with the result that there has grown a number of usages, tending to prolong paternal authority and to establish an additional bond between father and son. The strict law declares that the son is citizen of the maternal village, that in his father’s he is but a stranger (tomakava) — usage allows him to remain there and to enjoy most of the privileges of citizenship. For ceremonial purposes, in a funeral or mourning performance, in a feast and as a rule in fight, he will stand side by side with his maternal uncle. In daily execution of nine-tenths of all the pursuits and interests of life he is bound to his father.

The usage of keeping the son after puberty, often after marriage, is a regular institution: there exist definite arrangements to meet it, it is done according to strict rules and definite procedure, which make the usage anything but clandestine and irregular. There is first the accredited pretext that the son remains there to be able better to fill his father’s yam-house, which he does in the name of his mother’s brother and as his successor. In the case of a chief again there are certain offices, considered to be most appropriately filled by the chief’s own son. When this latter marries he builds a house on his father’s site, near the father’s own dwelling.

The son naturally has to live and eat, he must therefore make gardens and carry on other pursuits. The father gives him a few baleko (garden plots) from his own lands, gives him a place in his canoe, grants him rights of fishing — hunting is of no importance in the Trobriands — equips him with tools, nets and other fishing tackle. As a rule, the father goes further. He allows his son certain privileges and gives him presents, which by right he should keep till he hands them on to his heirs. It is true that he will give such privileges and presents to his heirs during his life-time, when they solicit it by a payment called pokala. He cannot even refuse the deal. But then his younger brother or his nephew has substantially to pay for land, magic, Kula rights, heirlooms, or ` ’mastership’ in dances and ceremonies; even though they belong to him by right and he would inherit them in any case. Now established usage allows the man to give such valuables or privileges to the son free of charge. So that here the usage, established but non-legal, not only takes great liberties with the law, but adds insult to injury by granting the usurper considerable advantages over the rightful owner.

The most important arrangement by which a temporary father-line is smuggled into Mother-right is the institution of cross-cousin marriage. A man in the Trobriands who has a son and whose sister gives birth to a girl child has the right to ask that this infant be betrothed to his son. Thus his grandchildren will be of his own kin, and his son will become the brother-in-law of the heir to chieftainship. This latter will, therefore, be under an obligation to supply the son’s household with food and in general to be a helpmate to his brother-in-law and protector of his sister’s family. Thus the very man on whose interest the son is likely to encroach is prevented from resenting it and, indeed, made to regard it as his own privilege. Cross-cousin marriage in the Trobriands is an institution by which a man can secure for his son a definite though roundabout right to remain for life in the father’s commmity, through an exceptional matrilocal marriage, and enjoy almost all the privileges of full citizenship.

Thus round the sentiment of Father-love there crystallizes a number of established usages, sanctioned by tradtion and regarded as the most natural course by the community. Yet they are contrary to strict law or involve exceptional and anomalous proceeding such as matrilocal marriage. If opposed and protested against in the name of the law, they must give way to it. Cases are on record, when the son, even though married to his father’s niece, had to leave the community. And not infrequently the heirs put a stop to their uncle’s illegal generosity, by demanding with pokala what he is about to give to his son. But any such opposition gives offence to the man in power, provokes hostilities and frictions, and is resorted to only in extreme cases.