PREFACE xv
societies the actions which are thus repressed, and which are therefore, in those societies, crimes or public delicts, are most commonly various forms of sacrilege, incest—which is itself generally conceived as a kind of sacrilege—witchcraft, in the sense of the exercise of evil magic against members of the same community, and sometimes the crime of being a bad lot, i.e. habitually failing to observe the customs of the community.
Dr. Wagner, in his essay on the Bantu Kavirondo, describes how offenders could be expelled from their group or could be put to death by what he speaks of as lynching, and writes1; 'Such group action in the face of threatened danger, taken spontaneously, i.e. without a hearing of the case and often on the spur of the moment, is clearly not the same as institutionalized jurisdiction of the tribal society through recognized judicial authorities.* But it seems highly likely that if such actions could have been carefully observed it would have been found that they were directed by leaders who had some-measure of recognized authority. In the kingole of the Kamba and Kikuyu and in the injoget of the Kipsigis and Nandi> where individuals who had offended against the community were put to death or otherwise punished, this was done by an orderly procedure directed by men in authority.2
My own view is that in collective > actions of this kind, in which it may be said that the community judges and the community inflicts punishment, we may see the embryonic form of criminal law. That there is often no trial results from the fact that the offence is often patent, well known to all the community. Otherwise the relatives and friends of the accused would come to his defence and the procedure would be checked. If there is doubt, then, in Africa, recourse may be had to some form of ordeal or oath. It would be a serious mistake, I believe, to accept Dr. Wagner's view and regard actions of this kind as fundamentally the same sort of thing as actions of retaliation by a person who has suffered injury in his rights against the person responsible for the injury. The punitive action is to be regarded as the direct expression of public sentiment.
Within small communities there may be little or no need for penal sanctions. Good behaviour may be to a great extent the
1 Infra, p. 219.
2 Lindblom, The Akamba, pp. 176-180; Dundas, 'History of Kitui', Journal of the Royal Anthropological Institute, vol. xliii, 1913, p. 514; Peristiany, Social Institutions of the Kipsigis, pp. 5, 192; Hollis, Nandi, pp. 75-6.