Australia: The Land Where Time Began
Aboriginal Justice - Trial by ordeal
The magarada or manejag that was practiced in northeastern and western Arnhem Land is another form of dispute settlement. This is carried out after a man has been found guilty or confessed, with the aim of restoring peace, all interested parties being represented. It has been said that it was described by several other terms - 'settlement by combat', or in some instances, 'settlement by duel' (Howitt 1904). Some have described it as retaliatory action rather than law (Radcliffe-Brown, 1952), a legal system in the narrow sense not having been developed. Others see it as a trend towards law. Hoebel (1954) said "there is no superior restraining power; it all depends on the self-control of each group involved". Significant in this argument is Gluckman's (1955) concept of the 'reasonable man' (Berndt & Berndt, 1964).
Others, such as the Berndt's, socially sanctioned, publically demonstrated, conventionalised retaliation, is a legal procedure with the aim of settlement (indemnity), and seems to be related to a system of law.
A magarada (makarata) is not held immediately following an offence, being carried out after a period of time over which rage and resentment has had time to cool (Warner 1937/58). The injured party makes the arrangement, the 2 opposing groups are painted in white clay and stand facing each other, just out of range of spears, usually with mangroves or scrub for protection if it is needed.
The aggrieved party move towards their opponents in a totemic dance, then walk back. The other side do the same. Men from the aggrieved group then run irregularly across the ground, and 2 men closely related to both sides run with them and spears are thrown at them. These spears usually have the points removed. They are allowed to dodge by must not throw the spears back of return the abuse that is directed at them. After a short time the accused man or men run across the ground. The spears, that have their points attached, are hurled at him, one at a time. The whole time the elders from both sides try to keep the young men involved calm and their tempers in check. Eventually the accused man's party dance across to the aggrieved party. If they spear him in the thigh the matter is considered to be settled, in which case both sides join in dancing.
A thigh would is usually considered to be enough to settle the matter, but sometimes the accused man is seriously wounded or killed, either at the time or from complications of the wound such as infection. Rarely, there is disagreement over the settlement, which leads to a fight. If this occurs the feud continues until there is another attempt to settle it was a magarada. If the accused man is not speared the matter is not considered closed and retaliation can be expected.
In many other parts of Australia there were variations on the theme, in the Western Desert the thigh wound was also part of the ordeal. A number of other instances of ordeals are given by Howitt (1904). Among the people of Maryborough in Queensland, the accused man has a shield for protection. Among the Buntamurra, a close kin of an injured man "fight and thrash the offender". Among the Kaiabara, the injured party sends out a challenge, if it is accepted it seems they meet in a similar way to the magarada, but with no dancing. It appears the ritual dancing involved in the magarada may be have been unique. The Turrbal had "expiatory combats". The Wotjobaluk used armed combat to settle differences immediately. In such fights they continue until blood is drawn.
A case is mentioned by Howitt in which the aggressors and their kin are summoned to the injured man's group to face their spears. The headman of the offender's party tells them not to take unfair advantage of the situation, while standing between the 2 groups. The offenders have shields but no weapons while spears are thrown at them. As soon as one is wounded the headman throws a "lighted piece of bark into the air". The fight is then over.
Another example is known from Merri Creek, near Melbourne, in 1840, in which 2 groups met to settle a killing. The accused man had to withstand a shower of spears and boomerangs, with a shield for protection. He was hit in the side with a reed spear, on which the headman ran between the 2 groups calling in them to stop. Howitt says "they had blood and all were again friends".
With the Yuin, the accused man had 2 shields. If he was accused of murder, he usually stood alone. If he was accused of sorcery or wounding, he could have another man to help deflect the spears. The relatives of the opposing parties stood on opposite sides of the ground. The men to throw the spears and boomerangs stood in a line facing him. When blood is drawn the ordeal is over.
Howitt also reported an example from the Tambo between Swan Reach and Lake King. The 2 groups were arranged facing each other and the accused man, who continued to deny he was guilty, had 2 shields. In this case he had to run the gauntlet of a hail of boomerangs, one of which hit him on the thigh. He broke with tradition by throwing it back, which could have led to further fighting, but a crowd of women "rushed in between the 2 parties and stopped the fight".
On Bathurst and Melville Islands, the Tiwi held a public trial during which a duel was held. (Hart & Pilling, 1960). During the proceedings the people form a ring around an open clearing. The accuser is painted and stands opposite the defendant who is not heavily painted and has few if any weapons. The accuser puts on an elaborate display, stating his case, abusing the defendant and biting his beard, which is a widespread sign of anger among the tribes along the north coast. Eventually he begins throwing his spears, while the defendant does his best to dodge them, but eventually he must let one hit him, and he is not allowed to throw spears back. Basedow (1925) tells of an armed duel which continued until one man falls or both are exhausted.
A dagger with a long stone flake with a grip or haft of porcupine grass resin (spinifex-Triodia scarirosa - formerly irritans) is used in a duel among the Aranda and Dieri.
These cases involve settlement, and a series of rules are observed, but no authority figure, such as a headman, takes part as adjudicator. They differ in this way from the forms of settlement involving a council.
According to Kaberry (1939), in the Kimberleys, matters brought up in inter-tribal discussions have been thoroughly talked over before any potential physical activity takes place between the 2 sides. She refers to an incident from Violet Valley where people from the opposing sides faced each other across a 'ring place', a specially prepared place, as headmen tried to keep reminding the opponents to be restrained. The accuser ran towards the defendant threatening to throw his spear and shouting allegations of sorcery at the defendant, then calmly walked back. The defendant then did the same, asserting his innocence. There followed a lot of abuse between the 2 sides, by women as well as men, and the waving of fighting sticks, as well as some skirmishing. Eventually the headman of the visiting group called an end to the meeting, whereupon they dispersed to prepare for the evening's ceremony. In these proceedings, both parties are apparently interested in reconciliation rather than revenge or punishment. It can be seen as a kin-based legal procedure, the headman acting more as an mediator than a arbitrator. In these proceedings his main function seems to be to keep everything under control and avoid the outbreak of actual fighting.
An incident of 'trial by ordeal' was portrayed in the movie Ten Canoes, most of the scenes in this movie were re-enactments of events that were photographed many years previously, when the people were still living in the traditional way, and the actors would have all been descendants of the people in the photos or their relatives.
Ten Canoes is a DVD about a story of pre-contact Aboriginal People from north Australia.
R.M. & C.H. Berndt, The World of the First Australians, Ure Smith, Sydney, 1964
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