THE SOCIAL ORGANISATION AND

CUSTOMARY LAW OF THE

TOBA-BATAK OF NORTHERN SUMATRA

KONINKLIJK INSTITUUT

VOOR TAAL-, LAND- EN VOLKENKUNDE

TRANSLA nON SERIES 7

THE SOCIAL ORGANISATION AND

CUSTOMARY LAW OF THE

TOBA-BATAK OF NORTHERN SUMATRA

BY

J. C. VERGOUWEN

WITH A PREFACE BY]. KEUNING

PUBLICATION COMMISSIONED AND FINANCED BY

THE NETHERLANDS INSTITUTE FOR

INTERNATIONAL CULTURAL RELATIONS

Springer-Science+Business Media, B.Y: 1964

TRANSLATED FROM THE DUTCH BY JEUNE SCOTT·KEMBALL

Additional material to this book can be downloaded from http://extras.springer.com

Softcover reprint of the hardcover 1st edition 1964

ISBN 978-94-015-0415-7 ISBN 978-94-015-1035-6 (eBook)DOI 10.1007/978-94-015-1035-6

PREFACE

.J. c. Vergouwen 's work , H et Rechtsleven der T'oba-Bataks, herepresented in an English translation, was published in the autumn of1933, a few weeks before the author's death at the early age of 44 fromtuberculosis, from which he had suffere d since 1930. During the timehe spent in a sanatorium in Davos and later in the Netherlands, hebegan and completed his monograph on the customary law of theToba-Batak. His book immediately became one of the outstandingworks of Dutch scholarship on Indonesian customary law (Adat law).

Jacob Cornelis Vergouwen began his career as an administrativeofficer in South Borneo (now K alimantan ) in 1913, after a brief prac­tical training. In 1921 he was given the opportunity for further studyat the University of Leiden where a five-year scientific training for acareer as an administrative officer in the Dutch East Indies had justbeen instituted. On obtaining his Master's degree, he was appointed tothe Tapanuli Residency, from of old , the homeland of the Toba,M andailing, Angkola, and Dairi or Pakpak Batak.

As a young offic ial , Vergouwen had already evinced great interest inthe laws and customs of th e Dayak people in Borneo. His studies at theUniversity brought him into close contact with the founder of thescience of Indonesian Adat law, Professor Cornelis van Vollenhoven,one of the greatest Dutch jurists of this century.

Since 1901, Van Vollenhoven had been teaching, among other things,Indonesian Adat Law at the University of Leiden. For his research hedivided the Dutch East Indies into 19 law areas ('r echtskringen' ) basedon the existing diversity in the laws and customs of the peoples in thevarious parts of Indonesia. By 1918 he had completed the first scholarlydescription of the unwritten customary law in these 19 'homeonomic'groups. He found his material for it by laboriously searching throughthe anthropological literature of the time, in accounts of travels, inofficial reports, in the communications of Protestant and Roman Catholicmissionaries and in adat law judgements, at that time only publishedsporadically. It was a masterly work ; scholarly pioneering in the truesense. Van Vollenhoven work ed out a fixed and specific taxonomy andintroduced special terms for the qualification of the legal facts and the

VI CUSTOMARY LAW OF THE TOBA-BATAK

legal concepts appropriate to the nature and content of the unwrittenIndonesian law. He broke away from the attempts to squeeze this lawinto the straightjacket of legal taxonomy and legal terms current inDutch code-law, which owed their meaning and their suitability to thisWestern legal system. *

With an adequate taxonomy, with a legal terminology of its own anda specific approach, the science of adat law came to be acknowledgedas a young tree standing on its own in the park of Dutch legal science:a yet small waringin amidst and beside the oaks and elms of the studyof Western law in the Netherlands.

Van Vollenhoven gave all his great gifts of mind and heart in theservice of the study of Indonesian adat law. A great inspiration and adesire to study the laws and customs of Indonesian ethnic groups flowedfrom him to his students, with whom he remained in constant contactafter they had begun their duties as judge or administrative officer inthe Dutch East Indies. Van Vollenhoven has had a great influence onthe striking development in the study of Indonesian adat law. Duringhis entire scholarly career - he died in 1933 when he was nearly 59 ­he strove for the recognition and the just appreciation of this autoch­thonous Indonesian law, both in the administration of justice and in themanagement of internal affairs. In 1909 he wrote his booklet with thesignificant title, Miskenningen van het Adatrecht (Four Cases of Lackof Acknowledgement of Adat Law), and in 1919, De Indonesier en zijngrond (The Indonesian and his Land), in which, with a number ofarguments drawn from scholarship and practical experience, he took astand against Government plans in respect of land rights, because he sawthem as a violation of the autochthonous legal system of the Indonesianpeople. In his splendid article, 'Juridisch confectiewerk ; eenheidsprivaat­recht voor Indie' (Ready-ma:de Legislation; A Uniform Civil Code forthe Indies), written in 1925,** he exposed. the artificiality, the unrealisticnature and the practical inapplicability of a proposed uniform civilcode with a Dutch trade mark which was intended for all groups ofpeoples in the Dutch East Indies - Dutch, Chinese, Arabs, Indians, etc.,as well as for the Indonesians from all parts of the large and diversified

* Arthur Philips draws attention to this aspect of Van Vollenhoven's work inAfrica (Vol. XIX, 1949, p . 248) : " . .. and the treatment of this subject (landrights, J. K .) is marked by the use of a special terminology originally intro­duced by Van Vollenhoven as a remedy for the confusion caused by theadoption of terms carrying a European legal connotation."

** Reprinted in Het Adatrecht van Ne derlan dsch-Ln die , Vol. III, Leiden, 1933 ,pp, 719 - 743.

PREFACE VII

archipelago. This Bill thereupon disappeared silently under the table.

The point of view, enunciated with such fervour by Van Vollenhoven

and his supporters that, for the sake of justice, customary law should beacknowledged as being of at least the same ideal and practical valuefor the Indonesians and their social relationships as Western law is forthe people in Western society, had by this time found a response amongthe highest policy-making Government authorities. A half-hearted takinginto account of the autochthonous Indonesian law changed into apositive appraisal. As early as 1924, a Law University was establishedin Batavia (now Djakarta) where B. ter Haar - one of Van Vollen­hoven's outstanding students - started to teach adat law, which hecontinued to do until 1939. *

In 1928 a commission was appointed with the object of advising theGovernment on the principles of agrarian legislation in the Dutch EastIndies, and adat law jurists were freed to do research in various lawareas. Another important feature of this new attitude towards adat lawwas that an investigation was ordered into the administration of justicein adat law cases, the aim being to effect a new and better regulationthereof. A pilot study was deemed necessary for that purpose and thisbrings us - after a perhaps overlong digression - - back to Vergouwenand his work.

In May 1927, Vergouwen was relieved of his usual administrativeduties and charged with the leadership of the highest Customary Courts(the so-called Rapat na bolon , literally, the Great Courts) in the TobaBatak country with, at the same time, instructions to embody his findingsin a report and to make recommendations for reforms in the existingjudicial organisation. This report appeared in 1930 (see p. 1 note 1) .

On its completion, Vergouwen went on leave to the Netherlands wherehe started, on his own initiative, the writing of his book, H et Rechts­leven der Toba-Bataks. That he completed this work in spite of hislingering and fatal illness, demonstrates his great interest in Toba-Bataksociety and its laws and customs ; an interest which did not restrain himfrom making some rather critical observations in respect of particularfacets of the culture of the Toba-Batak and their conceptions of rightand wrong. In my opinion, he had a right to do so by virtue of hisknowledge of their jural relationships and the disputes daily broughtbefore him as President of the Courts, and his social intercourse with

* Ter Haar published a concise manual in 1939 : Beginselen en Sielsel van hetAdatrecht ; translated into English and published by the Institute of PacificRelations, New York, 1948 , under the title : Adatlaw in Indonesia.

VIII CUSTOMARY LAW OF THE TOBA-BATAK

all levels of their society. He was no outsider dependent upon informantsand enquiries; he had played an important part in deciding disputesand lawsuits of all kinds.

In a review of Vergouwen's book, Ter Haar says: "Ret Rechtslevender T oba-Bataks is truly a fine book. The indigenous society and itsmany-sided and complex relationships are studied and described 'fromthe inside' and customary law is shown as a pattern running throughthe entire social fabric." These words I readily endorse. I still rememberclearly how much help this book was to me when I was a student ofadat law in Leiden from 1931-34 endeavouring to grasp the inter­relationship of the Toba-Batak legal facts, and even more do I recallhow, in 1935, as a young Government official, I had immediately onarrival in the Batak country the feeling that I had entered a knownand understandable world. Above all, Vergouwen's study was a source,difficult to surpass, from which I acquired a knowledge and a com­prehension of Toba-Batak laws and customs when I was President ofthe highest Customary Courts in 1940 and 1941. It made it possible forme to discuss with the chiefs, as members of the courts, on a footing ofequality, as it were, the value and the meaning of the varying statementsof the parties and the witnesses, and after that to establish, in collabo­ration with them, the rule to he applied to the case before the court.Vergouwen's exposition, moreover, showed the way to those relationshipswhere an attempt at conciliation, or a mediatory settlement, could leadto a result satisfactory to both parties in their mutual relationships. Thenon-Batak President could collaborate 'from the inside' on the judicialfindings and, what was also very important, could play his part in thedevelopment of the law by way of the administration of justice, underchanging social conditions which modified concepts of right and wrongin social and economic life.

In my opinion rightly, Vergouwen has described Toba-Batak adat law,in its flexibility, within the framework of the social structure and formsof organisation as based on kinship and co-dwelling in village, territoryand in the wider groupings. It seems to me that for this reason his bookis not out-of-date and will not easily become out-of-date either, whateverchanges may have taken place since 1930 in Indonesia in general andin the Toba-Batak country in particular. Vergouwen gives no hard andfast code-rules which, as such, must be upheld when they no longercorrespond to the social reality. New situations and conditions can onlybe understood against the background of older and recent cultural andsocio-economic history. On this point, one finds in Vergouwen the

PREFACE IX

J. KEUNING

University of Lciden

necessary data and their context. Naturally, his explanations of the

principles and the forms of expression of particular Batak institutionsare not always the only ones possible ; here and there he may lay toomuch stress on the magico-religious element. Vergouwen did his researchand wrote his book upwards of 30 years ago, and he was, moreover,not an anthropologist by profession." But, it seems to me, that thisdoes not alter the fact that from his book one can become acquaintedwith the Toba-Batak people and understand their social and juridicallife in diachronic perspective. This establishes the value of this bookfor the present day. Dutch cultural anthropologists esteem highlyHet Rechtsleven der T'oba-Bataks. In it they have found much importantmaterial for theoretical studies in the field of kinship and affinal relation­ships in a patrilineal society with an asymmetrical connubium.

I am pleased that funds have been made available for the trans­lation of Vergouwen's book into English. One of the best Dutch workson Indonesian adat law can now be made accessible to the internationalworld of students of social anthropology and customary law.

The translation of a scholarly work of this nature is always a hazard­ous undertaking, particularly when the author can neither supervise itnor influence it. In translating Vergouwen's book into English a numberof problems presented themselves. He wrote in a rather old-fashionedstyle of Dutch in which long sentences, built up of subordinate clauseswhich were meant to explain the main theme, were frequent. Thesehave been broken down for the sake of readability. He also refers toGovernment measures or plans for reforms which are not relevant tothe present day and I have taken the liberty of either deleting thesepassages from the translation or, in some cases, have given a shortenedversion. But, these minor alterations apart, Vergouwen's disquisition hasnot been altered : the present translation is his book in substance and inspirit. And the translator, in reproducing the essentials and the detailsof his work has succeeded, in my view, in achieving, as far as such ispossible in a translation, conformity with the style in which the originalis written.

Such minor, or perhaps major, errors as occur in the English syntaxmust be attributed to last-minute alterations in the final draft. For thes eI accept responsibility.

* For this reason his theoretical digression on the possibility that a matrilinealkinship system preceded the present patrilineal organisation was omitted fromthe translation. It is no longer accepted in social-anthropological theory.

CONTENTS

Introduction

The genealogy of the Batak people .

CHAPTER 1. Genealogical structure: the kinship system

A. Kinship

The nature and extent of the Batak's knowledge of their descent 17.

The main lines of the genealogical structure: general distribution 21.

A . THE LONTl!NG MOIETY 21 ; Limbong, Sagala and Malau 22; the

Lontung group 22 ; the Borbor complex 24. B. THE SUMBA MOIETY 25 ;

the Nai Ambaton division 25 ; the Nai Rasaon division 25 ; the Nai

Suanon div ision 26 ; the Pohan group 27 ; the Sipaettua group 27 ;

the Silahis abungan group 27; the Radja Oloan group 28 ; Sihombing

and Simamora 28 ; the Sobu (Hasibuan) group 29 ; the Naipospos

group 29. The age of the tribal groups and marga 30. The meaning

of " marga" 30. The lineage, saompu 32 . The lineage as a ceremonial

and sacrificial community 34. Sapanganan 34. The larger genealogical

communities 35. Connection with the giving of women in marriage 36.

The kinship group in village and territory 37. The agnatic kinship

system 37. The uaris concept 40. Disputes about descent 41. Changing

one's marga 42. The significance of the patrilineal structure 42 .

B. The Affin es

Establishment and consolidation of the affinal relationship 44. The

affinal relationship in th e wider context 47 . The affines as a group 48.

The in-dwelling marga boru 50 . Marriage frequency 53. The magico­

religious character of the affinal relationship 54. The mangupa boru

56 . Adoption of a hula-hula 57. Participation in ceremonies 57. Gifts

between affines 58 . Ulos gifts 58 . Ulos gifts other than cloths 59.

Motives for giving gifts 60. The piso gifts 6L T'ulang-ibebere, brother­

sister 63 . The affinity relationship and the administration of justice 64.

A kinship and affinity relationship system 66.

CHAPTER II. Religious concepts

The gods 67. The spirits 69. The sumangot 70. The sombaon 7L The

bius sacrificial community 73. The parbaringin-organisation 75. Some

6

17

17

44

67

XII CUSTOMARY LAW OF THE TOBA-BATAK

further details concerning the bius 76. Participation in sacrificial

ceremonies 78. The human being's tondi 79. The tondi personified 80.

The tondi as the source of supernatural power 82. The mangupa

tondi 84. Food and meals 87. The na margoar 88 . Aims and efficacy

of meals 92 . Manulangi 94. The batu ni sulang-sulang 95. The efficacy

of speech 95. Dondon tua 98. Sampe tua 99. The homitan ni tondi 99.

Magical purification = pangurason 101. The influence of Christianity

102.

CHAPTER III. The corporate communities (haradjaon) . 105

The village 105. The tribal group 106. The corporate characteristics

of the tribal group 107. The village as a corporate community 108.

The territories between huta and tribal group 117; one land-control-

ling group 118; the group accepting responsibility for crime and for

the administration of justice 119; one onan 120; one homban (spring),

one pangulubalang (centre of supernatural power) , one ruma par-

santian (house for the ancestral spirit) 121; one mother-village (huta

parserahan) 121; one common in-dwelling marga boru 122 ; one group

for giving its daughters in marriage 123 ; one group governed by

chiefs (panggomgomion) 124. Djandji 126. Government interference

with the social and political structure 127. The nature of the chiefsauthority 130.

CHAPTER IV. Some general observations

Legal maxims, umpama 137. The immutability of traditional law 140.Inter-communal law 141. The law and contracts 142. Difficulties ofinvestigating the law 143. Apparent stability of the law 144. Slacknessin legal proceedings 145. The law within the kinship group 147.Development of the law 150. The older history of customary law 151.Legal terminology 152.

137

CHAPTER V. Matrimonial law (Adat pardongan-saripeon) 156

General characteristics 156. The various forms of marriage 157. No

adoptive marriage 158. The laws of exogamy 158. Other forms of

marsumbang 162. General stipulations for marriage 165. Social inter-

course between young people 165. The young man begins his quest:

mangaririt 166. The domu-domu 168. Betrothal pledges 169. In­admissible relationships 169. · Informing the parents 170. Determining

the marriage payment 171. The allocation of the marriage payment:

the djambar na gok 173. The ragi-ragi 174. Confirmation of th ebetrothal 174. Collecting the parts of the marriage payment 176. Themarundjuk or mangan djuhut 176. The party given by the bride andher fr iends 181. The m arba gas 182. The Church's blessing 183. Con-

CONTENTS

eluding a Mohammedan marriage 184. The departure to the husband's

village 18·1. The role of parents in a betrothal 185. The boru sihunti

utang 186. Parumaen di losung 187. Reasons for child betrothal 188.

Betrothal formalities: presents and counter-presents 189. Breaking off

a child betrothal 190. The young people's freedom 191. Defence

against parental compulsion 193. The parboru and the paranak 193.The parboru after the marriage 195. The upa tulang 196. Constituents

of the marriage payment 196. Evidence regarding the marriage pay­

ment 198. The assistance of the higher chiefs 201. The dowry,

pauseang 202. Presents during marriage 210 . Marriage following

abduction = mangabing boru 211. Marriage after elopement = man­

galua boru 214. Marriage after seduction by the girl = mahiturun or

maliuempe 215. Marriage after rape 215. Living-in marriage =marsonduk hela 216. Setting up one's own household = mandjae 217.

The married couple's mutual relations 220 . The legal competence of

the married woman 222. Relationship to members of the family:

subang, pantang 224. The children of the marriage 225. Gifts to the

children: the indahan arian 226. Discipline, repudiation 227. Respon­

sibility for offences committed by one's children 227. Coming of age

228. Adoption of children 229. Namegiving 230. Bigamy 232. Disso­

lution of a marriage 237. Death of a wife: her replacement 238. The

death of the husband 239. Pasae tudjung 240. The pasaehon: thecomplete separation of the widow 241. Levirate, pareakhon; widow­

remarriage 242 . Children and property in levirate and widow re­

marriage 245. The widow who remains unmarried 246 . The widowis no part of the estate 247 . Divorce, porsirangan 248. Causes 248 .

Mode of divorce 255 . The amount of the marriage payment to be

returned 259. Breaking off a betrothal 262. Langkup 262. Marital

infidelity and other moral transgressions 265 . Illegitimate children267.

XIII

CHAPTER VI. Inheritance law (Adat taringot tu tading-tadingan) 270

Main parts 270. The inheritance 271. The expenses on the estate 274.The heirs 280. Allocating the portions of the inheritance 281. Therights of daughters 285. Succession to office 288.

CHAPTER VII. The law of land tenure (Adat partanoon) 290

CHAPTER VIII. The law relating to debts (Adat dibagasaiipardabu-dabuanon ) 292

Terminology and nature 292 . Objects of transactions and contracts

293. General requirements of legal transactions 296. Contracting

XIV CUSTOMARY LAW OF THE TOBA-BATAK

agreements 298. The help of the domu-domu 300 . Witnesses, their

function and remuneration 301. Mutual binding of the parties 302.

Extra-contractual rights and obligations 304. Fulfilling contracts 306.

Appeal for clemency, asi ni roha 311. The actual transfer 312.

Arbitrary enforcement in respect of agreements 313. Responsibility

of the group to which the debtor belongs 315. No mixing of claims

316. Gift-giving 317~ Exchange 318. Joint ownership 319. Custody

and maintenance 323. Profit-sharing 325. Share-cropping 325. Loaning

and borrowing 326 . Rendering service: peons, slaves, artisans 327 .

Buying and selling 328. Hiring 332 . Money debts: utang singir 332.

Interest stipulations 333. Money loans 334. Security and pledging

335. Pledging land 338. Standing surety 341. Insolvency 342. Corpo­

rations and associations 343. Responsibility for damage 346.

CHAPTER IX. The law of offences (Panguhumon tu angkaparsala) 349

Confession of guilt and atonement 350 . The injured party 351. The

community 352. The supernatural effect of the offence 353 . Personalvengeance 354. Security; the restoration of harmony 354. The rules

relating to disciplinary measures 355. The means of legal redress andof defence against offences 355. Punishments having a magico­

religious character 356 . Compensation and fines 361. Other sanc­

tions 362 . Intent and guilt 364 . Responsibility of people other than

the offender 365. Summary justice 366. Is there always a previousrule? 367 . Some other data of a general character 369. Particularoffences 371. Verbal insult 371. Moral transgressions 371. Disturbingof peace and order 372. Infringing authority 372. Violation of thegeneral welfare 373. Offences against the person 374. Offences againstproperty 375.

CHAPTER X. Settling disputes (Ruhut ni parhataon)

Origin of disputes 377. Tracing and preventing offences 378.

Masitolonan = administering the oath mutually 379. The mangudji;

proof by competition 380. Marmusu = going to war 380. Mediator &

judge 381. The administration of justice and affinal relationships 384.

Introductory gifts 385. Respect for the court 386. The attributes of

a judge 388. The hearing in public 389. Parties: representation andassistance 389 . Complaint and defence: the judges' attitude 390 .

The proof of the facts 393. Information and advice 395. Witnesses396. Documents 398. Circumstantial evidence : presumption of fact400. The tanda 402 . The oath 402. The result of the lawsuit 409.The amicable settlement: pardamean or pardengganan 410 . The

377

CONTENTS

judgement: uhum 412. Content of the judgement 413. The adminis­tration of justice by the chiefs and customary law 417. The long­

neglected complaint 418. The Porang Tangga Batu limitation 419.

Implementation 421.

Appendices

Index of Batak words .

Legal Maxims and Aphorisms

xv

424

439

459

Tapanuli: Map of the Tribal Areas . (at back)