Conflict, war, mediation, and administration of justice

After marriage and childbirth, it is the end of the marriage, whether by divorce or death, that now requires attention. Like the earlier events of the life cycle, these were strictly regulated by customary law and reflected the patrilineal kinship system. Knowledge of the system, including gender differences, is necessary to understand the extent of legal change brought about by the missionaries, the colonial administration, and the agency of the Toba Batak themselves during the colonial period, discussed in the next chapters. This chapter starts with a description of the traditional legal system, followed by a section on Batak legal concepts regulating the settlement and adjudication of divorce and other relevant issues.

Any dispute regarding marriage involved men and women. What were the options of a husband and wife if marital discord wrecked their marriage? What would happen if one of them engaged in an extramarital relationship? What were the rights and entitlements of a spouse and their children after the partner had died? All ‘ruptures’¹ with the previously normal conditions of a standing marriage had different consequences for men and women, which influenced the actions they could take and the setbacks they were prepared to accept or wished to avoid (sections 5.3 to 5.6). In the concluding section, the answers to these questions are situated in the context of the different construction of men and women as legal subjects in Toba Batak customary law.

Nineteenth-century sources on the contents of Toba Batak customary law are relatively extensive. Older sources such as (Marsden [1783] 1975) and Junghuhn (1947) refer to certain customary laws and the administration of justice. The two manuscripts written by Batak authors Ruhut pasaoran di habataon (1898) and Patik dohot uhum ni halak Batak (1899), both translated into Dutch, describe customary law at the middle and end of the nineteenth century.² The most extensive source on the subject, however, is The social organization and customary law of the Toba Batak of Northern Sumatra by J.C. Vergouwen ([1933] 1964). Unfortunately, less is known about the implementation of the law than about its (uncodified) content. For this reason, I occasionally refer to disputes brought to court during the period 1920–1940 if the judges adjudicated cases according to traditional Toba Batak customary law. The agency of men and women when a marriage broke down or a spouse passed away also comes forward in accounts in missionary sources of the everyday life of the Toba Batak, which are useful as concrete illustrations of certain customs or customary rules.

5.1. Conflict, war, mediation, and administration of justice

Disputes and litigation of any kind that happen between people belonging to the same kampong are settled by a magistrate appointed for that purpose, and from him, it is said, there is no appeal

1 The term ‘rupture’ is taken from Maria Mies’s article (Mies 1983) on the movement opposing violence against women in Cologne in the 1970s. The rupture with normalcy as far as their marriage concerned propelled victims into collective action. Such collective action of women was absent in traditional Batak society, anecdotal evidence demonstrating only individual opposition by women. Collective action developed in the late colonial period (Chapter 12, section 12.9).

2 For the translations, see the bibliography under Ruhut and Patik. It should be noted that these Batak descriptions were not meant as codifications of Toba Batak law. The written guidelines for the courts were the Christian By-laws discussed in Chapter 8. Nevertheless, un-codified customary traditional law, which deviated from those by-laws, was still generally adhered to by the Batak judges (Chapter 9. section 9.1.).

to the raja: when they arise between persons of different kampong, they are adjusted at a meeting of their respective rajas. […] This is productive of much order and decency (Marsden [1783]

1975:376).

The Toba Batak were prone to quarrel and dispute. This inclination was rooted in the acephalous political constellation and the social fabric of pre-colonial Toba Batak society. The rajas of the lineages, having authority over a relatively limited geographical area, were said by Marsden to be ‘extremely jealous of any increase of their relative power’ and quick to take up arms ‘on the slightest pretext’ (Marsden [1783] 1975:375). Problems that could cause disputes between clans of lineages of clans varied: incursion on another raja’s territory; manslaughter; cattle theft by someone from another clan; unpaid gambling debts; dispute over succession to the position of raja of a marga conglomerate; rape and abduction of a woman; and so forth. Disputes between the inhabitants of the same village also encompassed land issues and quarrels about petty theft, insult, and seduction. Marital problems involved members of different marga, living either in the same village or in different villages.

As the quote above indicates, the composition of the assembly of rajas adjudicating a dispute depended on the parties involved.³ A council of rajas, which convened at the large marketplace of the religious community called bius, handled serious offences and acrimonious disputes between villages or clusters of villages (Henny 1869:45). They tried to maintain the peace through mediation and arbitration. Whether the disputing parties accepted their decision or mediation depended on the respect (hasangapon) and fear they had for the arbiters, whose power to enforce a decision was limited. If one of the parties refused to abide by the decision and felt sufficiently powerful, hostilities would resume (Junghuhn 1947:174). The village raja and senior men in the village dealt with disputes between common villagers. They could summon the disputing parties, and their decision was final. The rajas thus acted in the capacities of diplomat, mediator, arbitrator, and judge.

Arbitrage and adjudication were the most important functions of the rajas.⁴ The rajas who gained the highest prestige were the parbaringin, the religious leaders of the bius, who officiated at religious rituals but also acted as arbiters in conflicts involving different communities. To be respected, a raja had to be a rich and generous host, courageous in war, firm towards his subordinates, skilled in the science of divination, and—importantly—adept in the art of oratory and dispute. If a raja possessed all these qualities, it signified that he was qualified to govern—

that is, he possessed the authority indispensable for maintaining peace and order, the observance of judicial decisions, and the assistance and co-operation of his dependents and affines against his adversaries. The Toba Batak believed that the population governed by such a raja would prosper, as he was endowed with the spiritual power the ancestors had conferred on him at the time the members of his lineage had elected him raja.⁵ Numerous proverbs reflected the respect

3 The following description is a very brief summary of the traditional legal system as described by Vergouwen ([1933]

1964:377-423).

4 Missionary Bruch (1912:24-5) mentioned this as the first occupation of men, adding on a condescending note: ‘babbling is for the Batak in general a necessity of life, in particular babbling about the many lawsuits which are going on in his village or close neighbourhood […]’. Other occupations of men mentioned by him are gambling, hunting and fishing, trade, crafts, and agriculture (in that order).

5 A raja possessed the sahala harajaon, the authority to act as a raja. The concept of sahala has been the source of considerable debate, summarized by Angerler (2009:369-91)

RMV, no. A 13-41. Photograph by K. Feilberg 29. Portrait of a raja from Tongging (1870)

RMV, no. A14-1-27

31. Raja and other Toba Batak men (1870). The older man standing in the back holds a lance, part of the traditional attire of a raja

RMV, no. A 72-152

30. Display of different types of (Karo Batak) weapons

The rajas and parbaringin

TM, no. 10000223. Photograph by D. van der Meulen (Controller)

32. Parbaringin convened at the open market at Limbong, Samosir (ca. 1915)

TM, no. 10001806. Collection W.K.H. Ypes

33. Adjudication of an inheritance dispute in the presence of the Dutch administration in the village Urat on Samosir (1938)

32. On the large stone (probably a batu ni sulang, the stone on which one took an oath) lies a book of divination (pustaha). On the right is a Batak orchestra (gondang). This photograph and the next one are probably representative of older days.

33. Samosir was incorporated into the Residency of Tapanuli in 1906, the same year this photograph was taken. Although it is from the early twentieth century, the picture gives an idea of the setting for the administration of justice in pre-colonial times. The rajas sit in a circle surrounded by family members and villagers, women and children included. The colonial administrator was perhaps a Batak jaihutan: the man holding a piece of paper.

one should pay to one’s raja and his decisions.⁶

Toba Batak rajas were not always impartial and were sometimes corruptible. If one of the disputants was a close relative belonging to the same marga or close affine, a raja’s judgement might easily be in his favour; and if a commoner had a dispute with a wealthy man, he might be inclined to decide in favour of the latter.⁷ The participation of rajas from different clans in great councils helped, to some extent, to ensure a fair judgement. The public hearing of cases also served as a safeguard, because it allowed interested or concerned outside persons to give information bearing on the case. Moreover, the purpose of the hearing was not always to achieve a fair decision, but to work out a solution to the conflict that was acceptable for the quarrelling parties.⁸

Another characteristic of the application of the law was the tendency to resort to the judgement of supernatural powers in the absence of satisfactory proof. Although the rajas could make inquiries, they did not always take the trouble of gathering supporting evidence. Instead, they requested the person whose testimony was in doubt to take an oath, by which the person called misfortune on himself if he did not speak the truth.⁹

The most common punishment of crimes and offences against the public order consisted of a fine or compensation, decided upon by the rajas. Only in the case of very serious crimes, such as adultery or treason, they could mete out a death sentence. The community would tie the criminal to a pole in the centre of the village and cut him up, after which they would consume his flesh. For offences such as sexual harassment or grave insult, the culprit not only had to pay a fine, but also had to apologize publicly to the aggrieved party and offer him, his family, and the village community a ceremonial meal.

A dispute was considered settled when the contestants had paid the dues to the rajas for their mediation (pagopago). The payment of these dues also had the function of putting the decision ‘on the record’, meaning that the rajas would remember the verdict if a dispute on the same issue arose in the future. A similar fee, called ingotingot (Malay: ingat, to remember), was also paid to the rajas when two parties entered a contract—for example, on marriage payments. This was important because the parties involved did not always transfer the agreed gifts immediately, which could become a cause of dispute if one of the parties did not keep his promise. The amount of the dues for the rajas was not fixed, but depended on the type and gravity of the offence, the value of the disputed items, and the solvency of the contestants. The dues were divided among the rajas participating in the adjudication of a case or the conclusion of an agreement.¹⁰

6 For the qualities of the raja and the respect one should pay to one’s raja, see Ruhut 1898 [tr. Vergouwen 1932:123-7] and Vergouwen ([1933] 1964:133).

7 The first missionaries already mentioned the rajas’ corruptibility (VEM, F/b 1,1 KP 1879:239).

8 Colonial officials were not in favour of amicable settlements, which often were to the disadvantage of one of the disputing parties. They referred to the practice with the condescending term ‘damaien’.

9 There were different objects used for taking an oath, depending on the kind of offence committed (Ruhut 1898 [tr.

Vergouwen 112-3]). One used, for example, an ‘oath stone’ placed in the centre of the market, or an animal, and the following oath formula: if I do not speak the truth (or have broken the agreement), I will become like this object.

10 Vergouwen [1933] 1964: 379-95; 410-12. Besides the income they retrieved from their work as judges, the rajas were also entitled to various tithes (Adatheffingen 1932).