Volume 20 1911 > Volume 20, No. 2 > The most important principles of Samoan family law, and the laws of inheritance, by E. Schultz, p 43-53
THE MOST IMPORTANT PRINCIPLES OF SAMOAN FAMILY LAW, AND THE LAWS OF INHERITANCE.
I. FAMILY RIGHTS.
THE Samoan race is divided like a clan into families, āiga, which again are split up into groups or branches. If a family spreads into several villages, the total of the members in one village is called fuaifale. Within the same village the larger branches are called ituāiga, the smaller puiāīga, whilst by the term faletama one understands all the children of one pair of parents (i.e., full brothers and sisters).
At the head of every branch stands the matai, or head of the family. One of these is the chief, matai sili, of the whole clan. Every matai has a name—igoa, suafa—which is handed down from generation to generation, and by the power of which he performs (exercises) the rights connected with his office.
1. The matais of the family branches are either subservient to the rule—pule—of the matai sili, or they have their own pule. This depends upon their origin, which varies in different families, and is generally to be traced back to the decree of the founder of the family, or some other ancestor.
The members of a family must serve the matai-tautua and show him respect (fa'aaloalo). No one may use the mat on which he lies, nor drink of the water of which he has drunk.
If a family meal is held, he is served first. A round house (fale tele or fale tali malō) is built for him in the village (the ordinary Samoan house is oblong), where he rests and receives his visitors, for hospitality is both a duty and a privilege to the matai.
An ideal matai will control his regiment in patriarchal style, and in important family affairs will undertake nothing without first consulting - 44 with his family or his own branch of it. A legal limitation of his power (pule) exists with respect to his authority over the land—fanua, lau'ele'ele—which belongs to the family.
Some families still possess the whole of their land undivided, others have given up joint possession and have handed over a definite portion to each branch. In the first case, no one matai can alienate family land without the approval of the others, not even the matai sili, who has authority over the whole clan. In the latter case the approval of the others is not necessary for the matai who wishes to alienate.
Land that anyone has received by inheritance, or as the gift of a third party, or has acquired with his own means—the payment consists in mats, pigs, etc., and lately also in money—is private property and subject to no family control.
He who is not a matai has only a (Christian?) name, and is indicated as taule'ale'a (plur: taulele'a), young man, or toeaina, old man. Both expressions are, by the way, applied also to the matais, but only when it is needful to indicate their approximate ages. Unfortunately the word taule'ale'a has now established itself for any male person who is not a matai.
The following peculiarities are to be noticed:—
The first case is the result of warlike issues by which one of the parties is subjugated. The latter takes place when one family puts itself under the protection of another from fear of subjugation. A special case of this kind is the togiola: a matai pursued by the revenge of an enemy takes refuge with another, saves his own life in this way, - 45 and hands over his name and pule to his protector, who returns the name but keeps the pule. The family which thus forfeits its independence is thenceforth regarded as the property of its protectors, and their successors feel the stigma of the discreditable affair to which they owe their independence as an indignity.
2. The position of matai makes itself felt not only in the family but in the village. The family is the centre of social life; the village, that of political life amongst the Samoans. Both are so closely interwoven, however, that neither can be understood without the other. The village, nu'u (and) a'ai consists of parts, fuaialu 'aufono (i.e., groups of families dwelling together, drawn together through relationship, the chances of war, and hence common need of inter-protection, or by other circumstances). The political organ of the village is the “village meeting,” fono fa'ale-nu'u, which takes place on the village green, an open place, malae malae-fono. Matais only have part and voice in this assembly. All who do not take part in the government are called tagatā-nu'u, tagatā-lau tele (i.e., the people, the masses). To this belong all the men who are not matai, women, and children, but politeness forbids the use of the expression towards the wives of prominent matai, as also towards the so-called “village maiden,” taupou.
The decisions in this assembly are not carried by majority of votes. Majority and minority are unknown as voting terms. The authority of one or more matais, who are called upon (by the others) as representatives, makes the decision. From this, however, it does not follow that absolutism is the rule in the government of the Samoan village. The influence of the one or more “deciding” matais is moderated by the consulting vote (voices) of the others. Before the meeting (fono), private consultations (taupulega) take place among the groups, in which the heads of different families exchange ideas, seeking to convince one another, and avoid disputes, so that the actual meeting appears to be the result of great preparations, and every one knows beforehand more or less what will be said. Deep-lying differences of opinion were at one time settled by violence. With the hoisting of its flag, however, the German Government has undertaken to arbitrate in these cases, and by uninterrupted watchfulness over Samoan affairs to make for peace.
The matai is either ali'i, “chief,” or tulāfale, “speaker.” We suspect that the class of “speakers” has sprung from the servants or dependants of the “chiefs.” The other meaning of the word tulāfale is “houseroom,” and the circumstance that the word matai has only lately been applied to “chiefs” lead us perhaps to the conclusion that - 46 the tulāfale was the original, and at first the only apparent form for the head of a family.
In time, certain tribes, through the warlike character of their members, obtained the supremacy and formed an aristocracy, then calling in the aid of superstition to help their power. They boasted of supernatural descent. Thus the others became their subjects, and the word tulāfale took the meaning of an inherited office (of servitude). In many villages the tulāfale succeeded later on in regaining their power and in obtaining political influence; in these places the “chiefs” had to be content with their (empty) privileges. Elsewhere, power is equally divided between “chiefs” and “speakers.” In the few places where the “chiefs” are supreme (e.g., in Solosolo, Saluafata, and Lotofaga), the activity of the “speakers” is confined to the control of the very complicated ceremonial systems of the Samoans, the care of the delivery of representative power, the finding of wives for the “chiefs,” and the right of speech at the meetings, in which they are actually the mouthpiece of the “chiefs.” To undertake these affairs themselves would be lowering to the dignity of the chiefs. It should be noticed, however, that the office of “speaker,” combined with the Samoan custom of holding general discussions previous to every decision (filifili), and of making speeches, gives them the opportunity of acquainting themselves with every occurrence, and even of themselves exercising influence, where, according to law, this would be beyond their right. They are themselves often bad disturbers of the peace. In the picturesque language of the Samoans, the activity of the “speakers” is often compared to the menial work in house, field, or forest, and called fa'a'ele'elea (“making oneself dirty”).
The “speakers” are bound together in companies (fale-upolu), of which there are one or more in every village.
3. The relation in which the “speakers” stand to the “chiefs” is called feagaiga. 1 The organic inter-dependence of both is indicated by the word tūla, a term of respect especially used for high “speakers.” 2 Tūla is a stick bent at a slight angle, on which pigeons are carried, and denotes in picturesque fashion the prop or support of the chieftainship.
The individual relationship between the chiefs and speakers of any given village is expressed in the word mau=firm, durable; ali'i-mau tulāfale-mau. Another word which must be mentioned for the better understanding of the relationship is pitovao (i.e., a piece of bush land at the edge of a cultivated field). The application is as follows: The families of “chiefs” and “speakers” are by no means strictly severed, for it often occurs that both kinds of matai-name are represented in the - 47 same family. This has taken place either through inter-marriage, inheritance, or through the will of some founder who has appointed one son “chief” and another “speaker”; 3 or else a prisoner of war, or a fugitive, was adopted into the family and made a “speaker.” Such a speaker is called the pitovao of the chief. In this picture the company of speakers (fale-upolu) is likened to the inland bush. If a chief has a pitovao, the entrance to the inland bush is open. A tulafale-pitovao simplifies for his “chief” the enforcement of his commands and wishes in the fale-upolu.
Besides this, the relationship has a purely material meaning for the “chief.” On numerous public occasions in Samoa mats are distributed; especially fine mats (i.e., toga) are very highly valued and play an important rôle in Samoan life. They serve partly as interchangeable goods as a means of payment, and secondly they have at times a special value, and even often a special name.
The most important public function in which mats are distributed is the presentation of a Samoan title—pāpā, ao—to a chief. The functions of family life are birth, marriage, and death.
Legally, only “speakers” are allowed to receive mats at public functions. 4 This is called tali togā. The mats are spread out and exhibited in the village meeting place (fua). In family functions the chiefs, too, have their turn, but the mats are given them without ceremony in their houses (tufa). The tulafale-pitovao may not, however, keep his acquired treasures all to himself, but must give some of them to his “chief.” A “chief” can even, for the occasion of a mat distribution, take the name of his “speaker” in order to receive mats. A chief who has no speaker is directed for this purpose to the speakers' company and the general “feagaiga.”
The greed for mats has now and then the result that a “chief” borrows the name of a “speaker,” for which of course the consent of the latter is necessary. To a certain extent there exists the converse of a tulafale-pitovao (i.e., a “speaker”) who performs an operation called the 'aimau or 'aiali'i. It consists shortly in this, that a “speaker” supplies a “chief,” in whose possession he knows a fine mat to be so long with food that the latter is at last bound in honour to repay him with the gift of the coveted mat.
4. We must distinguish amongst matai names:—
All male persons of a village are called aualuma o tane; all unmarried females aualuma o teine. At the head of the latter stands the “village maiden,” taupou, tama'ita'i. It is the special right of the chiefs to have a taupou. Yet all chiefs have not the right, only those in whose families certain names have been always in use as taupou names. The taupou is or passes as the daughter of the chief in whose house she lives. To her corresponds the manaia, a young chief or chief's son, whose task it is to acquire the greatest possible number of wives, and thus supply the speakers, who act as agents, with mats. With the introduction of Christianity and of monogamy, the prospects of the speakers of obtaining mats in this way have naturally diminished, but even now the number of marriages which a chief contracts is comparatively great, and when the speakers have discovered a chief's daughter whose family is rich in mats, they do not enquire too carefully whether the bridegroom is of an age exactly suited to the bride. Chiefs, their sons, and great speakers assume on their marriage (aumoega fa'alele'aga) a definite title in their village, sa'oāualuma o tane. On the other hand, sa'oaualuma o teine is the official title of the taupou, by which she and her female attendants are known.
(d) FORMS OF ADDRESS.
These are:—Afioga for chiefs, susuga for chiefs and speakers, tofa and fetalaiga for speakers. The titles afioga and susuga were originally of equal rank. Later on it became customary to address the tupu, or - 49 king, with afioga, since the speakers of Lufilufi, Malie, and Afega have the title susuga by order of the Queen Salamasina, and a title especially belonging to chiefs was preferred for the king. This has (thereafter) induced Europeans to look upon afioga as the higher title, and to this the Samoans have also accustomed themselves. For the rest, descent decides whether the title afioga or susuga be applied to a chief.
5. Fa'asamoa, i.e., “according to Samoan custom.” There are two kinds of marriage rites: one ceremony exclusively for chiefs and high speakers' families, with preceding formal wooing (aumoega) with the full sympathy and agreement of both families; and a simple form merely consisting in the girl's running away from her parents and giving herself to the man (avaga). In the first case there takes place between the two families that interchange (so often mentioned in books) of Samoan articles of value and of food (toga and 'oloa). If a maiden runs away against her father's will she is in most cases cast out (fa'ato). And yet after a time the families usually approach one another and bring about a reconciliation. By law the marriage contract is sealed in modern style nowadays by a missionary's help.
With respect to impediments to matrimony, purely Samoan ideas prevail. They are: (1) Blood relationship in direct line. (2) In a side line. The forbidden degree is not fixed. If the common origin lies so far back that the relationship is almost forgotten, the marriage is no longer regarded as illegal. The reason of the impediment is on account of the holiness of the relationship of brother to sister, which is called feagaiga, or, also, ilámutu, and affects the issue of both sides; on the other side, the opinion that brothers and their issue, likewise sisters and theirs, should be regarded as one body (tino e tasi).
II. CONNECTION BY MARRIAGE.
1. In direct line. 2. In the side line with the following restrictions: Marriage is forbidden (a) between the wife's brother and the husband's sister when the man and his wife are dead, or finally separated and leave no children. If there are children they are regarded as brothers and sisters of their father's sister or their mother's brother, and thus form again by the feagaiga an impediment, their uncle and their aunt. For a like reason marriage is forbidden (b) between the descendants of a wife's brother and those of her husband's sister. If, however, the marriage forming the impediment was so long before that the relationship is almost forgotten, marriage is allowed in this case also. (c) Between husband's brother and wife's sister. Whilst the impediments just mentioned resemble “impedimenta diximentia” of the canonical terminology, this one can be described as “impedimens tantum” in Samoan: “e te matua sa, 'a e te onomea”—(“It is not strictly forbidden but is not regarded as right”). The reason is that brothers and likewise sisters are tino e tasi. The impediment exists only so long as - 50 the marriage exists. Even by continuance of marriage it lapses if there are no children by it, and both families agree to it. The intention is, that the childless pair shall adopt the expected children. The reverse of this takes place when the deceased husband's brother marries the deceased wife's sister for the purpose of adopting the orphans. The widower may marry his deceased wife's sister; the widow her deceased husband's brother.
Both cases often occur at the wish of the dying parent in order to secure loving treatment for the children. Such wishes do not constitute a command, although often complied with from superstitious reasons.
6. Adoption shall be considered in the second part, together with the law of inheritance, for which it is of especial importance. Here be it only remarked that it is very frequent, and that it forms between parents and their adopted children as well as between adopted brothers and sisters the same relationships as matrimonial birth.
7. The education of chief's and speaker's sons, especially of those who shall later on inherit their parent's name, is very careful. At the present day there is in every village, owing to the presence of several forms of faith, several native missionaries who instruct the children in religion and elementary knowledge. But besides this, the education of his children is obligatory to every father. This education includes:
The higher the family the worse of course the consequences of a disregard of this custom. With equal care are the traditions closely associated with the pedigrees guarded from profanation by other villages. This Samoan knowledge rests even to this day chiefly upon oral tradition; but few of those who can write have made any notes upon it. If a father is himself not very learned in these matters, there - 51 remains nothing for the enquiring child but to help himself, to listen to the speeches of other chiefs or speakers, and here and there to ask a question. The Samoans call anyone who has gained his knowledge in this way, poto= wise; poto a'e means one who has become wise by his own exertions—an “Autodidakten” or self-taught man. He who has to thank his father for all he knows is called “'o lē na nofo tuavae” (i.e., “one who has sat behind his father's legs”). To understand this picture we must imagine a Samoan saofa'iga, or assembly of chiefs and speakers in the Roundhouse, leaning against the posts of which the men sit with their legs crossed, whilst the children are not allowed within the circle, but crouch behind their fathers.
II. THE LAWS OF INHERITANCE.
The Samoan law of inheritance rests upon the basis of relationship in the sense of the German legal term “agnation.” A further similarity to the “Fidei commiss” consists therein, that in both cases land is the chief article of inheritance. In other respects the position of the Samoan equivalent is the better one.
If all male persons descended on the male side from a common ancestor, the founder of the family as handed down by tradition, they are called in Samoan tamatane (male from male). Their cognates (male from female) tamafafine tamasa, or tamafanau, also se'etalaluma (i.e., he who holds the place of honour in the front part of the house), who only have their turn when no real tamatane is forthcoming.
For the privilege which the tamatane has in the matter of inheritance, the tamafafine is to a certain extent compensated, in that owing to the feagaiga between brother and sister, certain honours must be conferred upon him by the tamatane. This is expressed by the offering of foodstuffs and mats on certain occasions (taulaga). Besides this, however, the tamafafine really exercises great influence in all family matters, owing to the Samoan superstition that the wrath of the sister or her descendants may bring disaster upon the family, and it may as well be mentioned here at once that in this way not infrequently power is brought to bear against well-grounded claims for inheritance.
A general term for tamatane and tamafafine is suli (heirs expectant in a wider sense).
The regular order of inheritance may be described as a kind of seniority. For instance: if the founder X has two sons, A and B, and has appointed A his heir, then at A's decease, not his children, but B, the surviving brother ('o le toe o le uso) has the right to inherit. If B dies, the name may not remain in his family, but must return to the children of A, and so on alternately. (Felafoa'i=to throw to and fro.)
X, however, has free choice whether to appoint A or B his heir. Primogeniture has no privilege, although in most cases the elder is - 52 naturally chosen. If B is made heir A is called toe o le uso. The toe o le uso passes even when of greater age as the son of the heir (perhaps his younger brother), for so long as the latter has the pule (power).
Should a son have previously been disinherited (e.g., cast out for bad behaviour), both he and his issue are cut off for all time from the inheritance.
Upon which of the heirs prospective the choice falls depends partly upon the possessor at the time, and also partly upon the other members of the family. The rule is that the testator draws up a testament (mavaega), and therein names his heir. This appointment (tofiga) requires the consent of the other parties. A cautious matai will therefore seek to arrange that he shall be sure of this consent. Should the possessor (gugu) die without a will, the appointment of his successor takes place by unanimous family decree.
Since “disagreement” is a national Samoan vice, it follows that quarrels over inheritance are extremely frequent. If it came in consequence of such a quarrel to deeds of violence, as it often did in earlier days, the victory fell of course not to right but to might. Further instances of the maxim “Might before Right” were given in the countless civic wars of past Samoan history. A rightful heir who belonged to the defeated party had to submit to be dispossessed by a relation who sided with the victors. That the tamafafine have now and then used their influence amiss in the settlement of such difficulties has been already mentioned. Furthermore, the branching out of families which has taken place in the course of generations has had as a natural consequence that family ties have been loosened, that many branches have settled in other villages, and that the name remained a fixture in only one line. The total outcome of all these events is that in many Samoan families the actual possession does not correspond with the legal, if the “might is right” (or club law) be admitted as legal, and all alterations brought about by force be looked upon accordingly also as constitutional.
Unrestricted continuance of the line of inheritance is under all circumstances the personal right of a successor. Debarred from inheritance, for instance, are the weak in mind, cripples, and such as have behaved in a hard-hearted way to the family head for the time being. Should the chosen heir be too young, a locum tenens is put in, who has to vacate on the latter's coming of age.
Descent can in the following cases be replaced by adoption:—
In case (a) a relation of the wife is taken, and the heir by adoption is named tama vavae, or shortly, vaetama.- 53
In case (b) the testator chooses the son of an influential chief or speaker, and hopes that in the future he may be able by the glory of his family traditions to protect the family of his adoption—such adopted sons are called tama si'i. Another word for adopted son is tamafai. Under the latter is understood a boy who has been adopted for any reason, for instance: on account of being an orphan or poor. It is not exceptional for even a tama fai if he makes himself useful and lovable. But he has no expectations in this direction. It is otherwise with the tama vavae and the tama si'i. In general the word tamafai can apply to both of these. By suli is often understood the adopted heir; but in this case the tamatane and tamafafine are called for the sake of distinction. Suli moni=real heirs.
The adopted son has as successor the complete rights of a matai, with one exception. He cannot make a māvaega (will) in favour of a blood relation or an adopted son of his own; after his death the name reverts to the family of the adopting father, which decides upon the choice of a successor. Adopted sons also have often succeeded in keeping by force the position only temporarily allotted to them, and in assuring the succession to their own blood relations. Taken altogether, the association of the families of an adopted father and son is often the source of many quarrels as soon as the former has closed his eyes. When the matai is dead and the succession arranged, the heir may not at once assume the name until a saofa'iga (meeting) of the whole village has been convened. The first meeting in which he takes part has the significance of a universal recognition of his new position. He receives the kawa for the first time under his new name, and the celebration ends with a meal at the expense of his family. The provisions of a succession can therefore be summed up as follows:—
1 Derived from feagai, “to be opposite one another.”
2 Compare “Stubel's” Samoan Texts, p. 107.
3 Thus did Malufau deal with his two sons, Tuigamala and Tuiatua, of whom the former was made “chief”; the latter “speaker,” in Fasito'otai.
4 By a special decree certain “chiefs” have the right to receive mats in public, e.g., the chief Aiono in Fasito'outa of the Satuala family, through permission (?) on the part of King Fonōti.