Strouthes D.P. Law and Politics: A Cross-Cultural Encyclopedia
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seen
by the kin of the
offender
as
unjustified,
so
the
killing often brings about
a
feud.
SANCTION
Sanction
is one of the
four
attributes
of
law.
That
is,
sanction must
be
present
for law to
exist.
A
sanction
is
either
a
negative device that withdraws rewards
or fa-
vors
that
otherwise
(if the law had not
been vio-
lated) would have been granted,
or a
positive
measure
that
inflicts some
painful
physical
or
psychological experience.
The
Ifugao people
of the
Philippines pri-
marily
use fines as
sanctions, even
in
cases
of
murder. However, unlike
our own
system
in
which
the
offender
is
forced
to pay the fine by
the
court system
and by law
enforcement per-
sonnel,
the
Ifugao place
the
burden
of
forcing
payment
on the
injured party
who is to
receive
the fine
(among
the
Ifugao,
fines are
paid
to the
directly injured parties
and not to the
people
of
the
society
as a
whole).
The
party
due to
receive
the
payment must vigorously pursue
it, not
merely
ask for it. The
offender,
on the
other
hand,
has a
very good reason
to pay the fine; if
he
does not,
he may be
lawfully killed
by the
one
due the
payment
of the fine.
However,
kill-
ing an
offender
who has not
paid
a fine is
often
Barton,
Roy F.
(1969
[1919])
Ifugao
Law.
Pospisil, Leopold. (1974
[1971])
Anthropology
of
Law:
A
Comparative
Theory.
SKGMKMTARY
LINKACI:
The
segmentary lineage
system
is a
social
and
political
form
of
organi-
zation
in
which
a
person
belongs
to a
number
of
related descent groups
that
telescope
from
an
apical ancestor
and
that
have
different
functions
in
different
social situ-
ations.
The
segmentary lineage system
is
orga-
nized vertically
in
levels
of
greater
and
greater
inclusion.
The
segmentary lineage system
is
common
in
parts
of
Africa
and the
Middle
East.
It
functions
most
often
in
times
of
conflict,
as
may
be
seen
in the
following common Bedouin
(Arab) saying,
"Myself
against
my
brother;
my
brother
and I
against
my
cousin;
my
cousin,
my
brother,
and I
against
the
outsider"
(Murphy
and
Kasdan
1959:
20).
Segmentation occurs within
the
lineage.
Suppose there
are
three brothers
in a
patrilineal
society,
named
A, B, and C.
Each
one has
male
children,
and
they
in
turn have male children
themselves,
and so on.
Suppose that
after
five
generations,
the
great-great-grandchildren
and
the
great-great-great-grandchildren decide
that
they wish
to be in
separate groups
from
each
other,
due to
conflicts.
They
might
make seg-
ments
based upon
the
brothers
A, B, and C. For
instance,
all of the
descendants
of A
make
up
one
segment,
all of the
descendants
of B
make
up
another,
and all of the
descendants
of C
make
up
another.
The
same
thing
will happen
to the
descendants
of the
great-great-great-grandsons
235
S
SEGMENTARY
LINEAGE
of
these descendants
in
another
five
generations
or
so, and
this
principle will continue
to be ap-
plied
in
perpetuity. However, segmentation
is
not the
same
as fission.
Fission, which
often
occurs
with
lineages
of
hunting
and
gathering
peoples, makes
two or
more
new
groups
out of
one,
but the old
group
ceases
to
exist.
With
seg-
mentation,
the old
group
can
still come into
form
and
action
as a
group when circumstances call
for
it. For
example,
if a
descendant
of A got
into
a
fight
with
a
descendant
of As first
cousin, then
all
of the
descendants
of As
father
(all
of the
descendants
of
A, B, and C)
would unite
to
sup-
port
the
descendant
of A
against
the
other
man.
Among societies
with
segmentary lineages,
lineage segments usually only
run
three
or
four
generations deep.
In
some segmentary lineage
societies such
as the
Amba
of
western Uganda,
all
or
nearly
all of the
members
of a
lineage seg-
ment
can be
found
within
one
local group.
In
other societies, such
as the
Lugbara
of the
West
Nile district
of
Uganda,
the
Dinka
of the
south-
ern
Sudan,
and the
Mandari, also
of the
south-
ern
Sudan, members
of
lineage segments were
frequently
dispersed among
a
number
of
local
settlement groups.
Segments come together
to the
degree that
the
interests
of the
members
of
each segment
are
affected.
In
some societies,
it is
possible
to
unite
all
members
of a
language group
or
"tribe,"
as
it may be
called.
For
example, under tradi-
tional circumstances,
all of the
speakers
of
Dinka
could come
together
into
one
politically
united
group
for
some particular action
that
affected
the
entire Dinka tribe.
The
same
is
true
of the
Lugbara,
the
Nuer
of the
Sudan,
and the
Kon-
komba
of
Togo.
However, among
the
Mandari,
the
largest group that could become politically
united
was the
chiefdom.
For the
Amba,
no
groups
larger than exogamous clusters could unite,
and
among
the Tiv of
Nigeria,
it is
maximally only
a
lineage
of
eight
or ten
generations
in
depth.
When
the
lineages
are
dispersed
in
many
different
localities, partial
or
complete
tribal
unity
is
often
achieved
by the
tribe having
a
dominant
or
leading lineage.
This
lineage would
provide
the
leaders
of the
communities
and
would also create
a
core around which
the
rest
of
the
tribe could
be
organized. Since
the
mem-
bers
of
this lineage would
be
found
in all
com-
munities, they could rally
all the
members
of the
tribe behind them
in
action. Such
is the
case
among
the
Nuer
and the
Lugbara. Among
the
Mandari,
the
Bora lineage supplies
the
tribe's
several
chiefs.
The
most important aspect
of
segmentary
systems,
from
a
political perspective,
is
that
so-
cieties
so
organized have
no
central leadership
and
authority.
They
are
able
to
unite
all or
part
of the
society
to
face
a
common threat,
but
have
no
ability
to
unite under
a
single leadership
and
no way to
keep
the
segments permanently united.
There
appear
to be
three
major
types
of so-
cial
organization
in
segmentary lineage socie-
ties.
In
societies
of the first
type, exemplified
by
societies such
as the
Nuer
and the
Lugbara,
so-
cial
unity
is
created
by the
belief
in a
single large
genealogy
that
unites
the
entire tribe.
Despite
the
fact
that
there
are
many segments, Nuer
people,
for
example, still consider themselves
and
all
other Nuer
members
part
of a
single lineage
descended
from
one
man.
Thus,
the
number
of
people
who can be
united
for
political
or
mili-
tary action
is
larger than
can be
assembled
in
societies
of the
types discussed below.
A
second
way in
which social unity
may be
created
in
segmentary lineage societies
can be
seen
in the
examples
of the
Konkomba, Amba,
and
Tallensi
societies.
In
these societies, there
is
no
large single lineage
to
which
all
other mem-
bers
of the
tribe belong. Rather, social unity
is
created
by
each segment having ritual obliga-
tions
toward other segments
and by
intermarry-
ing
with them. Typically, lineages
are
exogamous,
thus increasing
the
ties
with
other
lineages.
There
are
very
few
examples
of
chiefs
within this
type
of
society,
and
whatever
authorities
and
leaders there
are
have relatively
little
power.
236
SELF-REDRESS
The
third means
by
which
a
society with
segmentary
lineages
may
create social unity
is
to
unite within territorial sections
of the
tribe's
entire region.
Thus,
there
are
numerous united
small
groups,
but no
unity
at the
tribal level, even
though members
of
lineages
are
dispersed over
a
wide geographic area.
An
example
of
this type
of
social organization
is
seen
in
Dinka society.
Societies
with this type
of
organization
fre-
quently
have
chiefs
as the
leaders
of
each
of
these
territorially
based groups.
I
will
use the
example
of the Tiv
people
to
illustrate some salient aspects
of the
segmentary
lineage system
as
found among
the
members
of
that
society.
The
members
of
Tiv
society
all
con-
sider
themselves descendants
of a man
called
Tiv
because
they belong
to
Tiv's
lineage.
It is not
true
that
a
modern-day
Tiv
person could trace
each
link
in his or her
genealogy
to Tiv
himself,
but he or she
could name
the
segments
in the
overall
Tiv
lineage
and
describe where
his or her
segment
fits
into
the
entire descent group.
Each division
in the
lineage
is
known
to the
Tiv as
nongo
("line"
or
"queue").
Thus,
the
three
children
of a
man,
if
they have many descen-
dants,
may
sometime
in the
future
each
be the
beginner
of a
nongo.
A
nongo
typically
refers,
how-
ever,
to the
living members
of a
line
of
descent.
The Tiv
make
a
distinction between lines
of
descent
and
actual patrilineal descent groups,
which they call
ityo.
In
addition
to a
mans
own
itydy
those
of his
mother,
his
father's mother,
his
father's
father's mother,
and his
mother's
mother's
were important
to
him, especially since
he was
protected when
he was
among
any of
these other
ityos
y
which
are
called
igbas.
The Tiv
lineages
are
divided into segments,
which
are
known
as
ipaven.
Each
ipaven
lives
by
itself
on a
tar,
a
particular piece
of
land
on
which live
no
people oustide
of the
ipaven.
The
ipaven
functions
in
times
of war be-
tween
Tiv
groups.
A man
will
be
involved
in a
fight
if
he
belongs
to the
ipaven
of a man who
has
a
dispute with
a man of
another
ipaven.
Ev-
ery
male
is
involved
in the fighting who is a de-
scendant
of the two
linking sons
to the first
com-
mon
ancestor reckoned genealogically
from
the
disputants upward.
In
other words,
let us say
that
there were three brothers,
A,
B,
and C,
sons
of
D.
Four generations later,
a
great-grandson
of
A has a
serious dispute with
a
great-grandson
of
B.
If
there
was to be a
war,
all of the men de-
scendants
of A
would
be
involved
in a war
with
all
of the men
descendants
of B. The men de-
scendants
of C
would
not be
involved except
possibly
as
peacemakers.
On the
other hand,
if
man
descendant
of E, D's
brother,
had a
dispute
with
a man
descendant
of D, all of the men de-
scendants
of D
(all
of the men
descendants
of
A, B, and C)
would
be
involved
in
fighting
against
all of the men
descendants
of E.
Bohannon, Laura. (1958) "Political Aspects
of
Tiv
Social
Organization."
In
Tribes
without
Rulers,
edited
by
John
Middleton
and
David
Tait,
33-66.
Fortes, Meyer.
(1953)
"The
Structure
of
Unilineal Descent Groups."
American
An-
thropologist^'.
17-41.
Middleton,
John,
and
David
Tait.
(1958)
"In-
troduction."
In
Tribes
without
Rulers,
edited
by
John
Middleton
and
David
Tait,
1—31.
Murphy,
Robert
F, and
Leonard Kasdan.
(1959)
"The Structure
of
Parallel Cousin Marriage."
American
Anthropologist
61:
17-29.
Si:u
;
-Ri:i)ki:ss
Self-redress,
also known
as
self-help,
is the
pro-
cess
whereby
one who
has
been wronged rights,
or
redresses,
the
wrong
through personal action, without making
use of
the
law.
For
example,
if a man
steals
a
shovel,
the
owner
of the
shovel
may
engage
in
self-redress
237
SELF-REDRESS
by
simply going
to the
thief's
residence
and re-
possessing
the
shovel. Self-redress
is
extralegal
behavior,
although
a
legal authority
may
deter-
mine
that
a
particular
act of
self-redress
is
legal
after
the
fact,
according
to the
laws
of
that soci-
ety
at
that particular time.
In our
legal
and po-
litical system, certain kinds
of
self-redress
are
permitted, although they
are
discouraged
be-
cause
of the
potential
for the
dispute
to
become
violent;
use of the
legal system
is
preferred.
Among
the
Garia people
of New
Guinea,
there
are not
many legal institutions,
and
none
that
are
effective,
so
many disputes lead
to
self-
redress because there
is no
other
way to
resolve
them. Unfortunately, self-redress
often
results
in
fighting
and
bloodshed.
The way in
which
the
Garia people keep these disputes
from
erupt-
ing
into
more serious disputes
is
somewhat com-
plicated.
A
Garia individual
is
connected
to
other
members
of
society through
a
variety
of
social
relationships, including
his or her
kindred (close
kin
on
both
the
father's
side
or the
mother's
side),
his or her
patrilineal
descent group,
his or her
affines
(kin
by
marriage),
as
well
as
bush
broth-
ers
(people whose land borders his), trading part-
ners,
and,
for
men, other
men
with whom
one
went through age-grade initiations.
These
people
together
are
called
by the
ethnologist Lawrence
(1973
[1971]:
76) a
security circle. Towards these
people, correct behavior must
be
observed,
be-
cause
their proper behavior
in
return
is
very
im-
portant. People within
the
security circle have
reciprocal
obligations
to
each other,
and
when
one
does
not
fulfill
his
obligations
to
others,
one
does
not in
turn receive
the
help
one
needs
from
them.
Within
the
security circle, morality shapes
one's
behavior,
and any
individual
who
does
not
observe morally correct behavior should,
if he
or she has
been properly socialized
as a
youth,
feel
shame. Lawrence calls
the
effect
of
moral-
ity
and
shame self-regulation (1973
[1971]:
82).
Self-regulation applies only
to the
people
in one s
own
security circle.
It is
only
in
cases
involving people outside
of one s
security circle that self-redress comes
into
play.
Normally, when there
is a
dispute, there
are
accepted
ways
in
which
one can
retaliate,
and
accepted
degrees
of
severity
of
retaliation.
If
someone
defrauds
another
in a pig
exchange,
the
culprit either
pays
what
he
owes
or, if he
attempts
to
escape without paying,
the one
defrauded
may
initiate
a fight or a
blood
feud
or use
sorcery.
The
outcome
of
many cases
in
which
the
culprit
does
not
agree
to
make amends voluntarily
is
that
the
culprit
and the one
seeking self-redress
begin
a
feud
as a
result
of
their disagreement.
If
someone
who has
been
wronged
seeks self-
redress,
and in the
process starts
a
feud
with
the
culprit,
he may
expect members
of his
security
circle
to
come
to his
aid. However,
it is
often
the
case
that
many members
of the
plaintiff's
security circle
are
also members
of the
culprit's
security
circle. Such people cannot take
one
side
or
the
other, since they
are
obligated
to
both
sides. Instead, they
try to act as
peacemakers,
because
they
do not
want
to see any
member
of
their
own
security circle
injured
or
killed.
Fre-
quently,
the
number
of
people
who can
commit
wholeheartedly
to one
party
or the
other,
that
is,
people
who
have
one of the
parties
in
their
own
security circle
but not the
other,
are
very
few,
and so the
feud
does
not
become
too
large.
Thus,
the
security circle
of
people that surround
a
Garia individual works
not
only
to
protect
the
individual
in
case
of a fight or a
feud
but
also
helps
to
keep down
the
level
of
violence
in
Garia
society
as a
whole.
Among
the
Micmac Indians
of
Nova Scotia,
self-redress
is the
preferred means
of
handling
most types
of
disputes, even
though
they have,
and
have
long
had,
an
adequate legal system.
The
reason
for
this
seemingly strange preference lies
in
the
Micmac's placing
a
highly
positive value
on
equality
and
self-reliance.
To use a
legal
au-
thority
to
solve
a
dispute requires
the use of a
person
of
authority,
and the
idea
of
another per-
238
SELF-REDRESS
son
having authority over
one is not one
that
appeals
to
many Micmac. Rather,
it is
ideal
to
take care
of
one's
own
problems.
To
call upon
a
legal authority makes
one
look weak,
as if one is
incapable
of
handling problems. Also,
to use a
legal authority
is
considered vindictive.
It is as
if
one
wishes
to
increase
the
sanction
the
other
party
in the
dispute will have
to
bear.
It
also
makes
the
party asking
for
legal help appear that
he
or she is
trying
to
"gang
up" on the
other party
by
enlisting
the aid of
others.
The
Micmac value
people
who
handle their disputes without
in-
volving others.
The use of
self-redress almost never leads
to a
feud
or an
enlarged
or
intensified dispute.
This
is
because
the
culprit
is
already known
and
the
problem
is
being discussed throughout
the
community, which
will
result
in
ostracism.
Should
the
culprit resist
or
attempt
to fight the
person coming
to
redress
the
wrong,
it
will
ap-
pear
that
the
culprit
is
committing
a
second
and
more
serious
offense,
which will result
in
greater
ostracism
and
perhaps violence
by
other mem-
bers
of the
community.
In
Micmac society, self-redress
is
ideally
undertaken
with cleverness
and
humor.
If one
takes
self-redress
in
such
a way as to
make
the
other party look foolish, then
the
other people
in
the
group will always remember what hap-
pened,
and the
effect
will
be to
remind that per-
son
of his or her
misdeed
and
thus less likely
to
continue
a
pattern
of
offensive
behavior.
The
following
case exemplifies
an
ideal method
of
self-redress.
In the
1940s,
the
federal
government
was
building
a
great many
new
houses
on a
Micmac
reserve.
It
employed many Micmac
men in the
forest,
cutting trees
to
supply
the
lumber needed.
The men
were still using
axes
in
those days.
When
the men
took
a
break
to eat
their lunches,
they frequently
put
their gloves down
on one
stump, buried
the
blades
of
their axes
on an-
other stump,
and sat
down
on a
third stump,
from
which they would converse with each other
while eating.
One
fellow
had a
nasty habit
of
pretending
to
approach
a
colleague
to
converse
with him, then burying
his axe
blade
in a
stump
nearby
so
that
the two
might talk.
It
just
so
hap-
pened
that
the
stump into which
he
buried
his
axe
blade
was the
same stump
on
which
the
other
fellow
had
placed
his
gloves, which
the
culprit
had
pretended
not to
see.
The
result
was
that
many
workers
had had
their gloves ruined
by
this man. After this went
on for a
while,
one
man
decided
to
stop
the
culprit through
self-
redress.
He
bought some
new
gloves
and
some
large nails.
When
the
time
for the
lunch break
came,
he
took
his
gloves
and
inserted into each
of
the fingers one of the
nails,
and put
them
down
on the
stump next
to
him.
The
culprit
saw
the new
gloves
and
could
not
resist
the
tempta-
tion
that
they presented.
He
walked over
and
swung
the axe at the
gloves,
but to his
surprise,
the axe
bounced back
from
the
gloves.
The
nails
also made
a
number
of
deep nicks
in the
axe's
blade, which took
the
culprit
a
long time
to re-
move
by filing.
Needless
to
say,
the
glove axing
stopped.
The
following legal decision,
from
India,
answers
the
question
as to
those circumstances
under
which self-redress
is
legal
in a fight in
which both parties come
to the fight
armed
for
conflict
(General
Index
of
the
Indian
Law
Reports,
Allahabad
Series,
1949:258-278).
APPELLATE
CRIMINAL.
Before
Mr.
Justice
Agarwala
PARASRAM
and
Another
v.
REX.
Self-defense—Right
of—When
obtained
and
by
whom—If
both
parties come armed
with
weapons—
Indian
Penal
Code
ss.
323, 304.
Even when
both
the
parties
to a
conflict come
armed
with
lathis,
if
there
be no
evidence
to
239
SELF-REDRESS
show
that
they
had
made
any
pre-arranged
plan
of
fighting
out the
dispute
by
force
that
day,
the
party
that
attempted
to
strike
the
first
blow must
be
deemed
to be the
aggressor,
and
the
other party,
if
obviously
in
danger
of an
injury
to the
persons
of its
members,
has a
right
to
strike
in
self-defense.
Case
law
discussed
and
certain propositions
of law
deduced therefrom.
Queen
Empress
v.
PragDaf(l),
King
Emperor
v.
Kaliji
(2),
Queen
Empress
v.
NarsangPathabhai
(3)
y
Maniruddin
v.
Emperor
(4)
y
Qinn
v.
Leathern
(5),
Punjab
Co-operative
Bank Ltd.
v.
Commissioner
of
In-
come
tax
(6)
y
Hariram
Mahatha
v.
Emperor
(7),
Summa
Behera
v.
Emperor
(8),
referred
to.
Criminal Appeal
No. 57 of
1948,
from
an
order
of C.
B.
Lai
Mathur,
First
Additional
Sessions
Judge
of
Budaun dated
the
27th
of
January 1948.
The
facts
appear
in the
judgment.
Roop
Kishor
Srivastava
for the
appellants.
/
S.
David,
holding
the
brief
of
the
Assistant
Government Advocate
(D. P.
Uniyal)
for the
Crown.
Agarwala,
J.
Parasram
alls
Har
Prasad,
and
Basant were prosecuted under section
304
Indian Penal Code, read with section
34 In-
dian Penal
Code,
for
having caused
the
death
of
one
Munnalal.
They
have been convicted
of
the
offence
with which they were charged
and
sentenced
to ten
years rigorous imprison-
ment.
They
have come
up in
appeal
to
this
Court.
The
prosecution case
was
that
the ac-
cused,
who are
father
and
son, were neighbors
of
Munnalal residing
in
village Chitora
in the
district
of
Budaun.
They
were relations
of
each
other
and had
descended
from
a
common
an-
cestor.
Their
houses were
adjacent
to
each
other. There
was a
cattle trough
in
front
of
the
house
and
baithak
of the
deceased
Munnalal.
This
cattle trough adjoined
the
platform
of the
house
of the
accused.
There
was
a
long standing dispute
as to the
owner-
ship
of the
cattle trough between
the
accused
and
the
deceased.
On the
14th
of
June, 1947,
there
was a
quarrel over this trough between
Munnalal deceased
on the one
hand
and the
accused
and one
Ramdin
on the
other, which
resulted
in a fight. The
accused
and
Ramdin
gave
lathi blows
to the
deceased
as a
result
of
which
his
skull
was
fractured
and he
died.
The
defense
was
that there
was a
quarrel
between
Parasram accused
and
Munnalal over
the
cattle trough; that Munnalal
was the ag-
gressor
and
gave
him a
lathi [stick] blow
first
with
the
result
that
he
fell
down
and
became
unconscious;
that
when Basant,
the
second
accused,
wanted
to
protect
his
father
and
raised
his
lathi with that object, then Pashpati
and
Shankar,
on the
side
of
Munnalal,
and
Munnalal himself
gave
him
lathi blows.
In
self
defense
Basant
struck lathi blows
on
Munnalal
who
fell
down
and
became unconscious.
The
medical report showed
that
Munnalal
had
received
five
injuries:
(1)
con-
tused wound
on the
right side
of the
head;
(2)
contusion
just above
the
right ear;
(3)
contu-
sion,
left
side
of the
head near
tuft
of
hair;
(4)
contusion
with abrasion, right upper arm;
and
(5)
swelling
on
left
ankle joint. Cause
of
death
was
extensive
fracture
of
skull caused
by in-
jury
No. 1.
Basant accused
had
received
two
injuries;
(1)
contused wound
on the top of
head—size
1
V2
W
x
V/
x
skin deep;
and (2)
painful
defused
swelling
on
back
of
lower third
right forearm.
The
prosecution could produce only
one
eye-witness
of the
occurrence.
He was
Tara.
Four others were examined
in the
court
of the
Committing Magistrate
as
eye-witnesses
but
they denied that they
had
seen
the
occurrence.
They
were, therefore,
not
examined
by the
prosecution
in the
Sessions Court.
Now
Tara
said
that
on
hearing
a
noise
he had
gone
to
the
place
of
occurrence;
that
on
reaching there
he
heard
hot
words being exchanged between
Munnalal
on one
side
and the
accused
on the
other; that
it was
Munnalal
who
wielded
his
240
SELF-REDRESS
lathi
first
and
then
the
accused used
his
lathi
in
return;
and
that
the
deceased received
a
lathi
blow
from
Basant accused. From this state-
ment
it is
quite clear that
it was
Munnalal
who
was
the
aggressor because
he
struck
the
first
blow without
the
accused having assaulted
him
or
having threatened
to
assault him.
The
learned
Sessions
Judge, however,
says
thatTara
appears
to
have stated about
the
deceased hav-
ing
used
his
lathi
first
only
to
save
the
accused
from
punishment
and to
give them
an
oppor-
tunity
to
plead
the
right
of
private defense.
The
learned Sessions Judge
did not
believe this
part
of the
statement
of the
witness
and
held
that
no
occasion
for the
exercise
of the
right
of
self-defense
arose.
I
have
no
reason
to
think
that
the
witness
was not
telling
the
truth when
he
stated that Munnalal
was the
first
to
strike.
The
learned Sessions Judge then goes
on to
say
that
if
this statement
be
taken
to be
true,
even
then
the
accused
had no
right
of
self-
defense.
According
to him
"when
two
parties
are
armed with lathis
for a
fight
to
enforce
their
supposed
ownership over
a
property
it
does
not
matter which party attacks
first
and
right
of
private
defense
also does
not
arise
in
such
cases.
It is
quite evident
that
both
the
accused
were
armed with lathis
from
before starting
the
fight.
They
must have, therefore, come
there with
the
intention
of
fighting
and
can-
not be
given
the
benefit
of the
right
of
private
defense
simply because
the
deceased wielded
his
lathi
first."
The
learned Sessions Judge
is
right
in
saying that both
the
accused were
armed
with lathis
from
before
starting
the
fight,
but
there
is no
evidence
on the
record
to
show that
the
parties
had
made
any
pre-
arranged plan
of
fighting
out the
dispute that
day
or had
made
any
preparations
to
that
end
from
before
the
start
of the
fight.
It
appears
that there
was a
quarrel
as
usual over
the
cattle
trough.
In the
absence
of any
evidence
it
can-
not be
said that
the
parties came
out of
their
houses
with
the
intention
of
fighting.
It is
quite
possible that
the
quarrel started
all of a
sud-
den
on
some
hot
words
or
abuse being
ex-
changed.
In the
absence
of
evidence
to
show
that
there
was a
pre-arranged plan
or
prepa-
ration
to
fight,
it
could
not be
said
that
the
intention
of the
parties
was to
decide
the
ques-
tion
of
ownership
of the
cattle trough
by an
armed
fight.
The
question, however,
is of
some impor-
tance
and I
think
I
should deal with
it at
length, especially when
the
view expressed
by
the
learned Sessions Judge
finds
support
from
the
observations made
in
some
of the
reported
cases.
In
Queen
v.
Nawabdee
(1),
the
facts
were
that prisoners
93 and 94
having reason
to ap-
prehend
an
attack, stood outside their house.
Presently
the
attacking party came, then words
arose,
and
then blows followed
on
both sides.
Steer,
J.
held that
the
accused courted
the at-
tack,
and
instead
of
sitting
within doors when,
if
their house
had
been attacked they would
have
had a
right
of
defense, they went out-
side,
and met the
assailants,
and
that, there-
fore,
they were guilty.
With
all
respect
to the
learned Judge,
I
have grave doubts
as to the
soundness
of the
decision.
It is not
only when
the
property
of a
person
is
actually attacked
that
he is
invested with right
of
self-defense.
If
there
is an
attempt
or
threat
to
attack
the
property, then also there
is a
right
of
self-
defense.
There
is
nothing wrong
if the
party
threatened
to try to
prevent
the
threat materi-
alizing
and to
meet
the
attack
by
standing
in
such
a
position that
no
harm
be
inflicted
on
the
property.
In the
case
before
Steer,
J. the
accused
were perfectly entitled,
to my
mind,
to
stand outside their house
to
prevent
any
harm being caused
to
their house.
In Queen Empress v. Prag Daf(T) there
was
a
dispute between
the
Thakurs
and
Chaubeys
of
Madhonagar over
a
strip
of
waste-land.
The
Chaubeys asserted that
the
land appertained
to a
grove which admittedly
belonged
to
them,
but the
Thakurs
on the
other hand maintained that
the
disputed land
was
part
of
their cultivation, which
as a
fact
did
adjoin
it. It was
found that
on the day of
occurrence
theThakur
party consisted
of
from
30 to 50
men,
and
that
one of
that party
had a
241
SELF-REDRESS
gun
and the
others
had
lathis.
On the
other
side were arrayed
the
seven accused;
one of
them carried
a
gun; others
had
nothing
in
their
hands
except perhaps sticks.
The
Thakurs gave
orders
for the
demolition
of a
mud-wall. Upon
this
the
Chaubeys interfered
and
begged that
the
matter
be
referred
to
court. Words ensued
and
then blows,
and
almost immediately
Laltu
fired
at
Ajudhia
on the
Thakur
side
and
shot
him
dead
on the
spot. Upon this
all ran
away.
CHIEF
JUSTICE
KERSHAW
and
Mr.
Jus-
tice KNOX observed: "The
use of
force
in
defense
of
property
by
private individuals
is a
matter
defined
by
law.
The
presence
of
Laltu
with
his
gun, unexplained
as it is by any
evi-
dence
for the
defense, proves
that
the
Chaubeys were prepared
to
defend
this mud-
wall even
to the
voluntarily causing
of
death;
and
the
burden
lay
heavily upon them
of
prov-
ing
that they acted under reasonable appre-
hension
that death
or
serious hurt would
be
the
consequence
if the
right
of
private defense
were
not
exercised.
The
harm intended
was
so
light that persons
of
ordinary
sense
and
tem-
per
would have
and
should have
refrained
from
taking
the law
into
their
own
hands.
. . . The
fact
that
40 or 50
persons began
the
attack
and
that
after
the
attack began, Laltu
fired a
shot which struck Ajudhia
is not
enough
to
show
that Laltu
was
justified
in firing.
Laltu
had
to
prove that
he had
reason
to
apprehend
that
the
Brahmins might
be
killed.
He
gave
no
evidence
of
this,
or of
facts
from
which
we
could
hold
it
proved."
As in
that case death
was
caused
by firing the
action could
be
justi-
fied
only
if the
case
fell
within
the
purview
of
section
103
Indian Penal Code.
That
section
runs
as
follows:
"The right
of
private
defense
of
prop-
erty
extends, under
the
restrictions men-
tioned
in
section
99, to the
voluntarily
causing
of
death
or of any
other harm
to
the
wrong-doer,
if the
offence
the
com-
mitting
of
which,
or the
attempting
to
commit
of
which, occasions
the
exercise
of the
right,
be an
offence
of any of the
descriptions hereinafter enumerated,
namely:
firstly—Robbery;
secondly—House
breaking
by
right;
thirdly—Mischief
by fire
committed
on
any
building, tent, vessel, which build-
ing, tent
or
vessel
is
used
as a
human
dwelling,
or as a
place
for the
custody
of
property;
fourthly—Theft,
mischief
or
house tres-
pass,
under such circumstances
as may
reasonably
cause
apprehension that death
or
grievous hurt will
be the
consequence,
if
such right
of
private
defense
is not ex-
ercised."
The
facts
of
that
case
did not
show
that
any
of the
offences
mentioned
in
section 103,
Indian
Penal Code, were attempted
or
threat-
ened
to be
committed
by the
Thakurs and,
therefore,
the
Chaubeys
had no
right
to
cause
death.
The
Chaubeys were rightly held guilty
of
murder, their
case
not
being covered
by ex-
ception
2 to
section
300
Indian Penal Code,
inasmuch
as
they
had
intended
to do
more
harm
than
was
necessary
for the
purpose
of
defense.
Their
lordships, however, went
on to
quote
from
a
passage
from
the
unreported
judgment
of SIR
JOHN
EDGE
in
Queen-
Empress
v.
Rupa
(1)
that "when
a
body
of men
are
determined
to
vindicate their rights
or
sup-
posed
rights,
by
unlawful
force,
and
when they
engage
in a fight
with
men
who,
on the
other
hand,
are
equally determined
to
vindicate
by
unlawful
force
their right
or
supposed rights,
no
question
of
self-defense
arises. Neither side
is
trying
to
protect itself,
but
each side
is
try-
ing to get the
better
of the
other."
As the
case
of
Queen-Empress
v.
Rupa
(1) has not
been
re-
ported
I
cannot
say
what
its
facts
were.
The
proposition
of
law,
as
stated
by SIR
JOHN
EDGE,
is of
course unquestionable.
The im-
portant words
in
that dictum
are
'Neither
side
is
trying
to
protect itself,
but
each side
is
try-
ing to get the
better
of the
other/The
enquiry,
therefore,
in
every
case
has to be
whether
the
accused
were trying
to
protect themselves
or
their property,
or
whether they were trying
to
242
SERVITUDE
get the
better
of the
other
side
and
enforce
a
supposed
right
by use
offeree.
General Index
of the
Indian
Law
Reports,
Allahabad
Series.
(1949).
Lawrence,
Peter. (1973
[1971])
"The Garia
of
the
Madang
District."
In
Politics
in New
Guinea,
edited
by
Ronald Berndt
and
Peter
Lawrence,
74-93.
Strouthes,
Daniel
P.
(1994)
Change
in the
Real
Property
Law
of
a
Cape
Breton
Island
Micmac
Band.
Servitude
is a
legal duty
to
give one's labor
to an-
other
person,
who
then
has
the
right
to the
value
of
that
labor. Servi-
tude
may be
voluntary
or
involuntary.
In the
United States, servitude
is
prohibited
by the
thir-
teenth amendment
to the
constitution.
An
interesting type
of
servitude
was
once
practiced
by the
Yoruba
people
of
Nigeria.
In
that
society,
a
person could pawn himself
or
her-
self,
that
is, use
himself
or
herself
as
security
for
a
loan.
The
person pawned
was
then legally
bound
in
servitude
to the
creditor.
The
debtor
would have seventeen days
after
initiating
the
pawn
to
deliver himself
or
herself
to the
credi-
tor to
begin work.
The
work
the
debtor per-
formed
for the
creditor
did not
reduce
the
amount
of the
debt owed,
but
rather constituted
the
interest
on the
loan.
For
each
day
that
an
adult debtor worked
for the
creditor,
he or she
was
allowed
by law one day to
work
for
himself
or
herself
to
earn money
to
repay
the
debt
and
to end the
period
of
servitude, which extended
until
the
debt
was
paid.
People were also able
to
pawn others
within
their
family.
A
woman could pawn
her
child.
However, unless
her
husband
had
mistreated her,
she
could only pawn
the
child with
her
husband's
permission.
If her
husband
had
mistreated her,
and
especially
if he had
failed
to
support
her
materially,
a
wife
could pawn
her
child without
her
husband's
permission
so as to
acquire money
to
support
herself.
A boy
could pawn
his
younger
brother with
the
consent
of
both
parents
and
the
younger brother
to be
pawned.
Child
pawns
had no
right
to
work
for
themselves
to end
their
servitude;
the
payment
of the
debt
was the
respon-
sibility
of
their parent(s)
or
sibling.
Child
pawns
generally lived most
of the
time
with
the
credi-
tor,
who had the
responsibility
of
feeding
them.
The
Yoruba
person
who
pawned
him or
her-
self
could
not do so
without providing
a
surety,
a
person
who
promised
to pay to the
creditor
the
amount
of the
debt should
the
debtor
fail
to
do
so. The
debtor paid
the
surety
a
small
sum
called
egba,
and by
accepting this
sum the
surety
agreed
to act as a
surety.
A
Yoruba creditor
who had
sexual
inter-
course
with
a
woman
who had
pawned herself
to him was
treated
differently
by the law
depend-
ing
upon whether
she was
married
or
betrothed
to
another
man or was
unmarried.
If she was
married
or
betrothed,
the
creditor
had to pay
the
penalties
that
any man who
seduced
a
mar-
ried
or
betrothed woman paid,
and in
addition
was
no
longer able
to
collect
the
debt
the
woman
owed him.
If the
woman
was
unmarried,
he
would
not
face
prosecution,
but
again
was un-
able
to
collect
the
debt under
the
law.
On the
other hand,
if the
unmarried woman
was
agree-
able,
the two
could
marry,
in
which
case
the
creditor
did not
have
to pay a
bride-price.
Another
form
of
servitude
was
found
in the
Spanish
parts
of the
Americas, including parts
of
the
United States that were once under Span-
ish
control.
This
form
of
servitude
is
known
as
peonage.
A
peon
is
someone
who was
legally
bound
to
provide another person
with
labor
in
order
to pay a
debt.
In
central
and
southern
Mexico,
from
the
time
of
Mexico's
war for in-
dependence
in
1823 until
the
Mexican Revolu-
tion
in
1910,
a
particularly dark
form
of
peonage
was
once practiced.
In
this
form,
called
the
SERVITUDE
243
SERVITUS
hacienda
system,
an
individual would receive
ownership
of a
piece
of
land
from
the
central
government.
There
were,
of
course, people
al-
ready
living
on the
land,
often
Indians,
who had
no
other place
to go,
since most
of
central
and
southern Mexico
was
even then densely popu-
lated. Under Mexican law,
the
original inhabi-
tants
had no
ownership rights
to the
land.
In
order
to be
able
to
remain
on the
land,
the
price
of
the
rent
was to
labor
for the
owner
of the
land
in
whatever manner
the
owner determined
and
under whatever conditions
he
dictated.
Another
form
of
peonage developed later.
Whereas
the
hacienda system allowed people
to
leave
the ha-
ciendas legally whenever they chose,
the new
system
of
debt peonage kept most bound
to the
hacienda.
The
haciendas would operate small
stores
from
which
the
people
who
lived there
could
buy
what they needed
on
credit.
As
long
as
there
was a
debt outstanding, they were bound
bylaw
to
remain
on the
hacienda;
of
course, they
had no
choice
but to
work there, since there
was
no
other employment available
by
which they
could
pay
their
debts.
Debt
peonage
was
insti-
tuted
for two
reasons.
The first was to
keep
ag-
ricultural labor available, since many people were
tempted
to
move
to the
cities
to
seek better pay-
ing
work there.
The
second reason
was to
pre-
vent Indians
from
leaving
the
haciendas
and
living together with other Indians, thereby pre-
venting their acculturation
and
assimilation.
In
some nations, peonage obligation
is
passed
on to
children.
In
India alone, there
are
an
estimated
6.5
million people living
in
debt
bondage.
In
India,
the
situation
was
created
in
part
by the
absence
of
bankruptcy laws, which
made
it
necessary
for
people
to
place themselves
in
debt bondage
in
order
to
repay their debts.
Although debt bondage
was
banned
by law in
1976,
the
practice continues
in
many rural
re-
gions. Debt bondage
is
common throughout
all
of
south Asia
and is
found
in
Pakistan, Nepal,
and
Bangladesh
as
well
as
India. Most
of
those
in
debt bondage perform agricultural work.
Forced labor
refers
to a
situation where
in-
dividuals
are
coerced into working,
often
in
con-
ditions
that
are
unsafe
and
usually
for low
wages.
Recent examples
of
forced
labor include
the use
of
Brazilian Indians
in
forestry,
mining, rubber
tapping,
and
prostitution;
forced
prostitution
in
Turkey; Haitian sugarcane workers
in the Do-
minican Republic; prisoner labor
in the
People
s
Republic
of
China;
and
Peruvian
and
Salvador-
ian
domestic laborers
in the
United States.
The
latter
are
individuals
who are in the
United States
illegally
and
thus
are
sometimes exploited
by
their employers,
who pay
them
low
wages
and
make
them work long hours, knowing
that
as
illegals they have less recourse
to
judicial
and
administrative protection than legal immigrants
or
citizens.
Ajisafe,
A. K.
(1946)
The
Laws
and
Customs
of
the
Yoruba
People.
Spicer,
Edward
H.
(1980)
TheYaquis:A
Cultural
History.
A
servitus
is a
legal
re-
striction, such
as a
cov-
enant,
on the use of
land
and
other real property.
It is a
burden
on the
interests
of the
owner
or
lessor
and is
applicable
to
those
who
lease
the
property
or
subsequently
own the
property. Some kinds
of
servitus
are
known
as
equitable servitudes. Servitus
is a
part
of the law of
real property.
One
example
of
servitus
is a
covenant that
a
certain
part
of a
parcel
of
land will never
be
logged. Covenants
are
created
by the
owner
and
"run
with
the
land,"
as
attorneys state
it.
That
is,
they come with
a
parcel
of
land
and
apply
to
future
owners
no
matter
who
they happen
to be
or
when they happen
to own the
real property.
Owners normally
do not
like
to
create covenants
because
they
are a
burden
on the use of the
prop-
244
SI:RVITUS