Popular Science Monthly/Volume 26/November 1884/Old Customs of Lawlessness
GRIMM tells, in his "Legal Antiquities of Germany," of a peculiar custom which existed, in the duchy of Carinthia, during the election of a new duke, till a comparatively recent period. So long as affairs continued unsettled, relates the narrative from which he quotes, the Gradnecks had the right, which had come down to them from of old, to mow as much hay as they could, robbers to plunder, and pirates to ravage the land at will with impunity, unless peace was made with them. Leoben states that this custom arose in the time of Charlemagne, about a. d. 790, under Duke Ingo, but further than that its origin is still in the dark. It is impossible to explain the existence of so barbarous a practice as this, by reference to any motive of expediency, as we are usually able to do with the phenomena of political and social life. An outbreak of outrage could evidently respond to no real social want; least of all a usage that must have been destructive, for the time being, of all fundamental conditions of social life, and of the material well-being of the population, and that could not have failed to be detrimental to the maintenance of social order when law was supposed to be again in force. The case is evidently one of a survival from a former period, a relic, perhaps, of some older condition of society. We may probably find a little light concerning its origin in the study of some of the savage tribes of the present time, who are believed by many anthropologists to be living in the same grades of civilization which the ancestors of modern civilized nations have passed through.
We learn from African travelers of the existence by custom, in some of the West African states, of a general anarchy and tolerated hostility during the interregnum between the death of a king and the enthronement of his successor. When the King of Ashantee dies, his women destroy his treasures, and general unrestricted license, robbery, and murder prevail in the country: and a similar season of disorder ensues on the death of the chief in Whydah, Benin, and other states. Waitz remarks, in his "Anthropology of Savages," concerning the duration and extent of this license: " Usage has limited the anarchy to a definite and short time, and it is admitted by all that the disorder in no way works a real dissolution of all social bonds, but is only to be regarded as a sudden relaxation of them which, notwithstanding that all sorts of outrage are let loose, is always controlled by custom, and induces no material damage to society." In Ashantee, the season of unrestraint may last for five days: in other states it may continue for a considerably longer time, as in Loango, where it prevails for several months. In Dahomey, the death of the king is not made known for eighteen months, while the heir, assisted by the two highest officers, reigns in his name during this whole period. The eighteen months seem to mark the time during which a legal anarchy formerly prevailed, though it may now have been done away with.
We have a right to conclude from these facts that a tolerated disorder is an accompaniment of the death of a ruler, and lasts until the accession of a new one. The eighteen months mentioned above were probably originally an interval of that kind: and, although the deceased ruler is now immediately succeeded by another, the latter still reigns, according to a custom transmitted from that time, not in his own name, but in that of his predecessor, who is not regarded as dead, but only as ineffective. A customary anarchy is also said to have prevailed as a form of mourning after the death of a sub-chief among the Maravis — a fact that agrees with the general explanation of the usage incidentally given by Waitz, who remarks that it "appears to be nothing more than the public mourning of the whole country, which inflicts wounds upon itself as individual relatives afflict themselves after the death of a private person." A similar motive possibly prompts the destruction of the king's jewels by his women in Ashantee, and is perhaps re-enforced by a view which has been observed to prevail in earlier stages of civilization, that all that he possesses dies with the owner. Livingstone speaks of a periodical lawlessness among the Banyai, which ceases upon the election of a new chief. A similar custom prevails among the Wahumas of the lake-region, who have in other respects made considerable advances in civilization. These African peoples stand as a rule at a far lower grade of civilization than the one which the people of the duchy of Carinthia had reached while the custom of legal anarchy as described still existed among them. We are able to study the practice more closely among the African peoples, and make a nearer approach to its origin. Among them it does not appear to be connected with the time when the newly chosen chief ascends the throne, but at an earlier period to have lasted considerably longer than it does now, or during the whole interval that might have elapsed between the death of a ruler and the accession of a new chief. As such an interval is superfluous in hereditary monarchies, where a successor to the throne is always at hand, we must relegate the origin of the custom to that period of the people's life when the chief obtained his office by election. A connection with election is indicated in the case cited by Grimm and confirmed by Livingstone's relation. If the custom continues after the office has become hereditary, it is evidently only as a survival.
The condition of disorder assumed another form in Tahiti, where, upon the death of the chief, the several districts of the nation made sham wars upon one another, which were sure to end in real plundering. This phase of the custom appears to have been an outgrowth of the federative nature of the state. The bond of union between the provinces having been severed, the mutual jealousies, which always prevail between adjoining communities, broke out in force, and found expression in the singular way that we have indicated. Questions were sure to arise, as to which district should nominate the new chief, that would be certain to generate disturbance. The hostile relations would cease as soon as the new chief was chosen and the federal bond was restored: for the several communities would again be members of the same political body, under a common head, and would be compelled to live in at least outward unity. The custom of legal anarchy in this form, then, appears to be a survival from a condition in which neighboring districts waged constant, real wars with each other, and gave to destruction all the property they could get of their rivals: and its existence in countries where the chiefdom has become hereditary may be regarded as a sign that a federative system, with an elective chief, once existed there. Confirmation of this view is afforded by the existence of a tradition among the Ashantees, where the royal dignity is now hereditary, according to which the nation was once a federation of twelve territories.
It is easy to believe that, in view of the periodical disorders to which federatively constituted states are liable, such forms must give way to more solid ones, as soon as the instinctive, mutual hostility of the allied territories is extinguished, under the continuous operation of an associated life: and that the efforts of powerful families to appropriate the chieftainship to themselves as an hereditary possession will find sympathizers among those who dread the return of a temporary legal anarchy as an accompaniment of each new election. It will, moreover, be important, after the hereditability of the royal office has been accepted, to establish the principle of the uninterrupted existence of that office. According to this principle, the throne is never vacant: or, as it is expressed in the English common law, "the king never dies." In Dahomey, this fiction assumes the form that no demise of the royal authority has taken place, and the heir reigns in the name of the old king. Everything that can suggest anarchy, and lend support to the old custom, is carefully set aside. Neither the election of a new ruler, which is always attended with contentions and excitement, nor the death of the old one, is recognized. If anarchy still survives there, where every measure is taken to prevent it, it is only as a shadow of the past.—Translated for the Popular Science Monthly from Das Ausland.