Казахский суд биев общекультурная ценность с. З. Зиманов

S.Z.Zimanov Ten samples of biy judgement

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S.Z.Zimanov

Ten samples of biy judgement

The personality of a biy is the main figure in the judgement in the society of the Kazakh nomads. He was trusted and his decisions were trusted even then when it could be decided dıfferently by the logic. A biy-judge was presented as the wise man and fair person as the connoisseur of the steppe law and court precedents involved into the history and the memory of the nation. A biy was recognized as the intermediary between litigating sides — such was the common social belief. The Russian officials, who worked in the bodies of the colonial Russian administration in the XIX century in Kazakhstan and who had seen and known the last representatives of the disappearing rank of the old biys said the following. «In the conscious of the nation the rank of a biy belonged to a few ones who were distinguished by impartial fairness, natural intellect and who could show their deep knowledge in the common customs of the nation. A biy is the lively legend of the people, its jurist and legislator.» (Kozlov I.). Leontyev A., who had known the Kazakh life and the Kazakh language gave some examples of normative standards defining the essence of activity of biy- judges in his book devoted to the customary law of the Kazakh people: «Biyding birligi-jurttyng birligi» — «The court decision of the biy serves to the unity of the nation»; «Biylik aitqan biy emes, bitim aitqan biy bolar» — «Those who sentence are not biys, those who settle down the sides are biys». Kraft I. wrote that: «Many years ago there was a biy (a judge) who was famous by his wisdom and fairness in the Steppe. Many people arrived to him in order to settle their proble4ms and all the litigating sides were always pleased by his fair decisions... Biys were recognized as the wisest and fairest people and they were not the representatives of clan and party interests because they were not elected. If there was a person distinguished by his wisdom and fairness then every litigating side appealed to his decision. There were 3 or 5 biys in the whole steppe who treated the matters consciously and by the customary laws.» Some years earlier of that time an official Zagryazgesky G. had served for 5 years in Turkistan which was consisted of southern, south-eastern regions of Kazakhstan, who devoted a special work to «the national court of the nomadic population» and wrote: «А Kirghiz (Kazakh — S.Z.) was named a biy who was famous by his wisdom, impartial morality, fairness, experienced in the Kirghiz court precedents consequently he knew the Kirghiz customs which were the basis for court decisions and sentence of the Kirghizs.» The orientalist-scholar Slovohotov A., who spoke the Kazakh language fluently and worked in Orenburg city, which was the administration centre of the Western Kazakhstan at that time, in the Orenburg scientific achiever commission named the Kazakh biy court as «the glashatai of the national truth», «natural intermediary of the litigating sides». His aim was to find out how and in what way the biy courts could be formed end existed there among the nomadic Kazakh people which were absent in other Turkic speaking people of the Central Asia. He wrote: «The life of a nomad was so precisely defined; the steppe life was so deeply separated was in such contradiction with the life of an agrarian, that there was nothing to borrow for a nomad from the life of an agrarian-settler. That was the cultural wealth of the last and which the subject of his was proud and creature was not suitable for the conditions of the steppe life of a free encampment». The author considered that the biy-judges owned all the best qualities of that «free encampment». By his opinion a biy was recognized as «the lively legend of the nation, the legislator of the nation's law conscious». Another famous orientalist-scholar Grigoriev V.V. who served in the colonial administration in Kazakhstan for almost ten years made such conclusion in his research works: «We can see such perfect legal proceeding and such orders of investigating and judicial process in the Kirghizs (Kazakhs — S.Z.) that can be the object of envy of many civilized nations».

II

A biy-judge including those of them who was famous beyond the borders of their clan lands and even their Juzes (the Steppe was divided into three Juzes — Younger, Middle and Senior) and did not have any apparatus or people with special education, beside the envoys. And not all of them had the same. They were the specialists, the experts, and estimators in the subject sphere which was related to the litigations concerning the using the natural lands, cycle and elements of nomadic life and economy, the mode of life of the nomads themselves and biys were recognized as the connoisseurs, factually, educated and passed the steppe school in order to the biys. Knowledge, experience and wisdom of biy-judges were clearly shown in the given below typical samples of their court decisions. It is necessary to note that especially three objects were represented the most distributed types of the litigating matters. These were: a horse, a woman, a death of the man and aruana-nar (camel).

1. «Bota dauy» — «Litigation about a camel». The litigation was about that how Tole biy, who became the famous and popular biy of the whole Middle Juz in his youth when he was 20 years old (the last quarter of the XVII century) settled down the difficult case, which his father Alibek biy could not settle, who was the most experienced Biy and had taught his son to the art of biy legal proceedings. The problem of the litigation was the following. Two people from different nomadic communities who were very respectful, litigated and could not express their attitude toward the belonging of the «camel» — «aruanadan tughan bota». Each of them proved his own point of view, made reasons which seemed persuasive. They decided to appeal to the experienced biy Alibek biy with their case and were ready th hear his decision. There happened something which was characteristic for the biy court. Alibek biy (father of Tole biy) before making a decision, before the litigation sides did their traditional rituals — to take the pose of «Juginis», to throw down their - kamshy before the biy as the sign for subordinating to his decision, he listened the sues of the sides and stood up from his place and announced that the plaintiff and defendant should stay in his aul for 2 — 3 days as his guests and only after that he would call them to the trail court. It meant that the biy was in difficult situation in searching and establishing the truth of the conflict case and was in doubt of possible variant of persuasive decision which was based on truth and fairness. Such explanation of Alibek biy postponing the consideration of the case made some doubt to the litigating sides. Tole biy, who took part at the beginning of litigation of the sides, understood that his father Alibek biy was in trouble. Moreover the dissatisfaction to the litigating sides was percieved by him as the loss of the prestige of the biy house of his father and himself also because he was very proud person. He decided to litigate that case and requested his father to deign and concede him the trail. Alibek biy, who always stimulated his son for independent way of taking decision in court cases, agreed with his son's dfer and announced it to the litigation sides, to the plaintiff and the defendant, and asked their agreement for solving their conflict case by his son Tole biy. They agreed because they had heard a lot about him as the new rising star of the biy legal proceedings. Tole biy asked then to obey the traditional rules of the ritual. The twos pretended to the camel-cut and each of them proved their own arguments that the camel-cut had been belonging to him since his birth. Sharpness of the case was connected with that the camel-cut was of special value, unusual, uncommon kind born from the 'aruana' a beautiful and slim camel mother of special kind because there were a lot of legends about that camel among nomads. Plaintiff proved his right by the following: his 'aruana' as it happened often, before giving a birth broke away from the breed in order to be alone. After a week's search she it was found in the foothill zone, it was wandering in alarming postpartum condition. It could not find place where to go and always went away without any reason as if it wanted to find something and making some loud sounds and its eyes were full of tears. If it gave a birth to a cub-abortion or wolves ate it then the mother camel would mill about that place did not go far away from that place and would always sniff at lying corpse and return to that place with blood stains. It did not happen and consequently, the plaintiff with large certainty supposed that the camel-cut was gone away by some people. And some months ago he discovered his camel-cut in the breed of the defendant and recognized him by the individual breed features of its mother-camel; moreover his sound and eyes resembled its mother. The plaintiff also showed that his insistent addressing to the defendant to return his camel- cut to its host was rejected. In his turn, the defendant stated that the camel-cut was from his 'aruana' and he could prove it by the fact that it always grazed together with its mother which did not reject him as a stranger, on the contrary looked after it. In his proof he brought with him witnesses, shepherd who was looking after the camel breed. Not any of the applicants for the litigating camel-cut was going to give up the goodwill.

Tole biy expected to sentence not only his verdict, but fair verdict based on recognized truth which two sides would agree to admit. The witnesses of the main participants of the trail process and their sides did not show enough answer to make a certain solution. The difficulty was in that any of the sides did not want to give up his goodwill to the second side and there was not a noticeable truth in their explanation. The animal was valuable and it was a desire for everybody to have it. Tole biy suggested the sides to get to the trail the camel-cut aunt two mother camels. The interest to the biy court was aroused. Many people arrived from his and neigbouring auls as it was at that times, some of them wanted to estimate the abilities of the rising biy-judge, some of them arrived because of the curiosity. Tole biy dfered his two assistants to twist strongly haunch of the hind leg of the sitting camel-cut with horse hair cord that it sounded painful loud shouts. In the process of that procedure one of the mother- camels was worrying and attempted to the camel-cut and its eyes were full of tears, the other one was in calm and did not show any trouble. Tole biy -a judge, who was trusted and elected by the sides, announced his trail that the camel-cut was from that mother-camel who was eager to come to the help for his cut naturally when it was in difficulty, and its host — the plaintiff was the owner of the arguing camel-cut. All the participants recognized the verdict of Tole biy as truthful and fair. The defendant, who wanted not to give such camel-cut, said that he took it and grafted to the mother camel which had lost his cut before. People started to talk more about Tole biy in the community.

2. «Sozding atasy kim?Anasy kim?» - «The trail is about the concept: 'Who is the father of the Word? Who is the mother of the Word?» The meaning is: «How are the paternal (leading, reasonable) roots of the word? How are the maternal (consequent) roots of the word? These and other questions were the logical exercises, arguments and controversy of them in the traditional Kazakh society.

They often leaded to complicated cases. And that time the legendary Kazybek biy was visited by two groups of people from the trade caravan which stayed for a rest in the campsite of the biy. Having known, that they stayed in the aul of the famous biy in the region — Kazybek biy, they decided to address to him in order to solve the controversy which separated traders into two groups and caused certain strength in their relations. On the one side were the Uzbeks and on the second side were mainly the Kazakhs. They divided into two groups in their answers for the question «Sozding atasy kim? Anasy kim?» translation is: «Who is the father of the Word? Who is the mother of the Word?» The Uzbek group insisted that the aim-the father of a word was Islam; the mother was the belief in Islam religion. They stated that a word must serve to get some profit, consequently the father of a word was manats (money), and the ways to get it, i.e. the mother was a trade. The Kazakh group stated the other proof. By their opinion the father of the words was a biy, and the mother was eloquence. That conflict by the complaints of the sides, had dangerous form not only in the controversy and disturbance of the peace of the traders, but it was close to physical fight between two groups. The tellers said that Kazybek biy was in trouble and could not make up his decision at once, only after several time he pronounced his respond which was equal to the trail sentence and had a recommendation character: «Sozding atasy birlik, sozding anasy-shyndyq» — translation: «The father of the word is unity, and the mother of a word is truth», it has the following meaning: A word follows an aim to achieve the unity in a society, and it is reachable if there is a truth in its bottom, sense, i.e. fairness and truth. The litigating sides were pleased by the decision of Kazybek biy. They entered the house of the biy as «enemies» and went out as «friends».

3. «Bir aielge eki erkekting talasy» — «Two applicants for one woman». That case was described by the Russian official Kraft I. at the end of the XIX century on the plot of the stories of the western Kazakhs of the Steppe area. He was told that «Many years ago, two men came to a biy and they brought a woman». One of the men was literal by the measures of that time and each literal person considered himself as mullah, served at the governor of the clan as writer and translator during the official visits of the envoys from Bukhara and Russia. The next was uneducated servant of the governor. A woman was alone and pretty and also served in the court. Litigating men pretended for her without asking her opinion. They addressed to the biy to settle down the case. As it was recommended by the rules of the trail, two sides did proceeding rituals about unqualified recognition of the decision which would made by the biy. The plaintiffs and each of them tried to prove that the woman belonged only him. The biy heard them and asked to leave the woman for three days at him and came after that period for the decision. When men left, the biy began to study how the woman cleaned the rooms, how she prepared the meal and serve during the meal. The biy noticed that the woman knew all writing instruments and could use them, knew the food for settled ones and wanted to make an expression on the 'cultural one'. From all that the biy made a conclusion that the woman had the skills to visit educated one getting habits of other not nomadic environment. The verdict of the biy which he declared after three days was recognized fair by the intermediaries of two sides.

4. «Jorgha dauy» — «Litigation about an ambler». There was described that Syrym biy (Younger Juz, XVIII century) was distinguished by his large observance, and was elected as a «Tobe biy» — «Senior biy» for several times in the complicated trails. Two people visited him. One of them was from his clan and his close relative, the other was from distant aul and had the rank of a local biy. The offer to appeal namely to Syrym biy (then he became the leader of the national movement) was from the plaintiff — local impoverished biy, though he knew that Syrym was the relative of the defendant. Biy trail was popular by that and especially such biy as Syrym was devoted to the catechism of biys: «Tura biyde tughan joq» — «The fair biy has not any relatives». The essence of the litigation was: as the plaintff-biy stated during the horse races devoted to the honour and memory of one of the famous local activities, his ambler took the first place and was recognized as of special kind and perspective by the connoisseurs of the horses. That ambler had skills to graft alone from the breed and always returned to his night place later than others or sometimes he stayed at the pasturage. One day he did not return to his place and his traces were lost. It was two years ago. I had recognized my ambler during the horse race in the horse place of the Alim uly tribe when I was as a guest there. My ambler took part in that ceremonial and I recognized it by its manner of ride and steps of its hint leg and by its appearance. A new owner rejected to return it. The defendant, he was the factual owner of the ambler told the truth and explained: in far distance from the aul of the plaintiff, he found a horse wounded by wolves, it was very weak and he did not see any grafting breed nearby. He thought that it was worth to care about because it's built was perfect. It became a real ambler. He proved his right for that ambler by the ancient law of the Kypchak-kazakhs which said the following: «Jurtta qalghan jurttiki» — «Left in the horde belonges to everyone». The ambler lost its breed by its habit and by the blame of the plaintiff who could not teach it to join the breed. By the sue of the defendant, he discovered the ambler in the dfferent pasturage direction which belonged to different clan which member he was, and consequently in that case there was another standard of customary law relations: «Adasqan maldyng tubi eki jylqy» — «The lost animal must be found in two years». The defendant demonstrated his knowledge of the Kazakh law «Jarghi» in his evidence and proved that he was not going to return the ambler to his former owner. The judge — Syrym biy was the best connoisseur and interpreter of the Kazakh law «Jarghi» — the norms of order. He pronounced a rithoric speech which had the conclusion with following standard of behaviour: «Tapqan quanady, tanyghan alady» — «Who finds is happy, who recognizes then catches». As the addition to that there was another proverb: «Tapqan ue, tanyghan uesi» — «Who finds things then he owns it, if you recognize your thing then you are the owner of it». This law was higher above all private standards but the question concerning the responsibility of the sides was decided separately. Syrym biy made up an alternative decision:

a) the ambler had to be given from the defendant-biy to its first owner on the following conditions, that the last must to return to the defendant the tangible costs for cure, feeding and preparation for the horse-race for two years and also moral costs of the defendant connected with departure of the ambler which became a part of his possession.

b) the reimbursement was defined at the size of 4 prize award of horse racing which held twice a year and it was equal to the cost of 20 three years of old horses. (Each prize was consisted of 5 houses). And the biy took into consideration the fact that if the ambler was healthy and he could win four prizes for two years;

c) Or the ambler would stay at the defendant and he would pay the plaintiff the fine in the size of the cost of two prizes — ten three years old horses in that case.

The owner of the ambler was not wealthy and supposing that the recovering of the power and speed of the horse in the previous level would need time and expenditure, and agreed to leave it at the local biy-defendant on the stipulated conditions which was made by the biy-judge; and that case was authenticated by the public. The biy's trail was admitted as fair and only possible variant by the sides and curiosity audience.

5. «Tangbaly at tuyaghynan» — «А signed horse's hoof gives a sign too»: «А normal horse makes a sign about its presence by its built» It was also considered as the trail precedent. There were various variants of that trail precedent, which were attributed to various biys, but all of them had the same meaning. A biy was addressed by twos and each of them declared that a horse belonged to him. Nobody had any evidence or proof in his profit and they did not present them. By one variant, the litigating sides came to the young rising biy fro the distant region because of the envy with the intention to fail him before the audience and public. By another variant, they were benevolent but they wanted to test a biy and temper his experience. A biy-judge felt by his personality that the litigating sides had a certain malicious intent and wanted to demonstrate his knowledge and ability of trailing such cases. He made three stages of recognition of horses. The horse was placed with other horses of the same colour and cover and the biy asked the arguing sides to recognize their horse. The sides without any difficulty found and indicated the horse. Next time the horsecloths were put on the horses which covered their heads as if only their legs were opened. The biy challenged the litigating sides to define their horses only by legs. The two applicants found the horse rightly. The third time the biy-judge proposed litigating people to came up to the horses closely and finding the horse to hold it by the bridle. The biy observing all these publicly made the verdict declaring that one of litigating sides was the true owner of the horse and the other was fined for his insincerity and false evidence. The biy made up the conclusion by the following way. In the first two cases he noticed slightly perceptible reaction of the horse for one of the men when he passed by it, but it was little to make a certain conclusion. In the third time when the men came up to the horse closely and held the bridle, one of the horses reacted at him and looked at him tenderly and raised the hoof of one leg. From his joint observance the biy made up absolutely true decision.

That decision of the anonymous biy became a trail precedent under the name: «Tangbaly at tuyaghynan» — «А signed horse's hoof gives a sign too».

6. «Elin tapqan har dauy» — «The litigation about camel of special kind, which returned to his land». That legend about the decision of Aiteke biy was reported in Kyzyl-Orda region in 1962 year. By the story it could be supposed that the court matter was taken place at the end of the XVII or at the beginning of the XVIII centuries when the popularity of Aiteke biy was very high. A fan of the camels grew aruana — a camel of special kind which was called «nars» and he lived on the bank of the river Syr-Darya and he sold one of the nars to the far Turkmenistan. After two years that camel returned to his owner, passing a long distance way which was equal for a week of journey — about five hundred miles with the water barrier. That journey had dramatic consequences. The Kazakh-nomads knew well the special features of such camels-nars. Especially the female camels addicted to their stay place and the owner so truly that they hardly adapted in the foreign country and often returned to their places, as if said among the population, to die in the home place. Such situation happened with the camel which was sold to the foreign country. A new owner seeing its unnatural behaviour when it became pregnant established constant observance and care in the first year of its stay. It was known that the camel of such kind never left for the far land when it was pregnant and it was so addicted to its cut. The aruana, when its cut grew up and was strong, together with its cut left the new owner and tan away in seeking the home place .On the way it was caught up by the courier, when the courier threw the net to the head of the camel cut, the camel-cut began to make loud shouts, then the aruana treaded down the courier and released the camel-cut and ran away with it. They needed to swim the river in order to get their place. The camel-cut entered the water and passed a small part of it and did not follow its mother because it was afraid of water and returned to the bank of the river. The aruana returned back to the bank of the river after its child and felt the couriers were tracing them down and when it attempted to return its child to swim and realized that she could not manage, the camel treaded down the camel-cut in order not to give it to the couriers. And swam another bank of the river and returned to home place. That event aggravated the relations between the neighbors — Turkmen and Kazakhs. The Turkmen demanded to return back the aruana and to pay the kun for the death of the courier and to take the responsibility for the death of the camel-cut because these dramatic events took place in the territory of the Kazakhs and they were done by the camel-aruana which had an intention to return to its home place, consequently «its home place» had to take the responsibilities. The Kazakh side made its claim and rejected to do the demands of the Turkmen. The litigation grew up its limits that it could lead to the «small war» between the Kazakh and Turkmen. They could not find the decision for a long time. At last they chose as a 'Tobe-biy' Aiteke-biy the most popular biy not only in the south-western regions of Kazakhstan but in the neighboring lands.

Aiteke-biy wishing to calm the heated public, asked to give the evidence to the representatives of the sides. First, he asked to speak the senior biys who presented the interests of the sides then the owners of the aruana, then audience and answer the following questions:

a) «Urlyq joq, zorlyq joq, qorlyq joq jerde qandai aiyp turleri bolady?» — «How could be the punishment where there is not any stealing, outrage or mockery?»

b) «Eline qaitqan erine kim boryshty? Jerine saghynyshpen qaitqan nargha kim boryshty?» — «Who was responsible tor the militiaman who had returned from the foreign country? If the camel repeated the heroic deed of the man which punishment he would deserve?» c) «Nar tauekel» basynda ulgi bolyp nardan qaldy ma, adamnan qalgy ma?» — «The distinguished expression 'To risk as a camel' was said after the action of a man or a nar?» d) «Urpaghyn jaugha qimay olimge qusa kimjauapty?» — «How far was the blame of the parents who preferred the death to his child instead of the in the capture of the enemy?»

Aiteke biy addressed to the audience of the trail and listened to many responds and judgement to approve the action of the camel so he could calm down the litigating sides. He could realize his thoughts: he wanted to challenge and arouse the feeling of sorrow for the animal who insisted to return its home place sacrificing with its child. Aiteke-biy listened the judgments of the audience and evidences of the representatives of the sides and declared about his decision agreed with 'tobe-biys' — 'the senior- biys' of the sides: a) the first owner of the camel left it at himself and pat its cost to the Turkmen side; b) considering that, that the aruana-camel was in grief because of the lost of its cut and it needed some money to recover its health, which would be equal to the selling cost of it and that money would be subtracted from the total sum of the payment for the Turkmen; c) the death of the courier and mort of the camel-cut which happened in the Steppe was predetermined by the fate. Aiteke-biy ended his sentence by those words: «aruana deserved desirable life and it helped to be close to the relative nations by its deed».

7. «Qulannan tughan besti juyrik at dauy» — «The litigation is about five years horse born from the wild horse-kulan». The matter of the case was the following: a stallion, which was three years of old, following the vaulting-horse ('qunajyn baital') distilled it from the herd of horses and left it alone in the field. Wandering in the steppe it joined the passing herd of the kulans (wild horses) and brought a stallion. The horse-herd who took care about the horses of the wealthy person, noticed a vaulting-horse with a stallion among the herd of kulans in the steppe which began to run away at noticing the horse-herd. The vaulting-horse also ran away together with the herd of the kulans leaving its stallion in the field. The horse-herd took it and the wealthy master placed it near the vaulting-horse as traditionally and the vaulting- horse admitted it as its cut. At the age of five the stallion became the prize-owner of the horse races for several times. During one of the competitions of the horses one of the visitors turned to the owner of the stallion with the following words: «Mynau mening jylqymnan shyqqan at. Mynyng mening jylqym ekenin sueginen tyanydym. Atty qaidan aldyng?» — «That racer was born from my horse. I recognized it from its skeleton and other individual features which distinguished him. How did you get it?» Th qwner of the racer answered: « oz jylqymnyng balasy. Oz biemnen tughan. El biledi» — «It was born from my own vaulting-horse which belonged to me. It could be confirmed by my country-fellows». Each side tried to prove that five years old racer was its own property and did not want to concede. The matter turned into conflict. The sides decided to apopeal to the famous Aitalak-biy (1742 — 1838) in that region. He listened the evidences of the sides and did not fining the preponderance of evidence of the sides he propose them to «Mamyr aiynda qoi qozdaghanda kelingder» — «Arrive in the time of brining forth young of the sheep in spring — in May». That was done by them. A hundred of lambs were in the fenced circle. Aitalak-biy indicated to a sheep among the herd which were returning from the pasturage in order to milk their lambs and said the applicant of the racer: «chose one of the sheep from the herd and found its lamb among the others by its features, which were in the circle and brought it to its mother. That one studied in detail all the individual features of a sheep which was chosen at random from the herd and not hurrying looked at each lamb separately and chose one of them and brought to the sheep. The sheep immediately recognized its lamb and for confirming that it made some sound and began to milk it. Aitalak-biy declared his decision in the benefit for the applicant at once but said; «Bui at uesining enesinen qalghan jas qulyndy buesine telip.oltirmei mal qylyp asyrap, kazir mine baige at boldy. Mynyng engbegi zor. Sondyqtan asyl attyng basyn jeti buege kesemin. Attyng uesi, sen, attyng jarym baghasyn tole de atyngdy al, bolmasa atty uelenip jurgen kisiden jarym basyn al da, sonymen bitisingder». — «The litigating horse, being a stallion, was left in the field alone, recovered and became the championed in the race because of the care of the owner who deserved it without any doubt. The cost of the horse was estimated at the cost of seven horses of five years old. And, you, the applicant, pay the half of the cost and take your racer, if not; it will be left at the owner who will pay the half of the cost.» Such decision of the Aitalak-biy was found reasonable by all the participants.

8. «Bala dauy» — «А litigation about a child». In the conflict cases which were the cause for the trail in the biy court, the search of the truth by common, traditional- prosecutable ways could not give the desirable results or might be inapplicable. In those cases despite of the conditions, there were used physiological methods of the treatment of the sides which had the claims. The historical memory of the people kept one of such cases connected with the name of the legendary Kazybek-biy (1667 — 1763), whose court art was known in all regions of the vast Kazakh steppe. Once two women came to Kazybek biy, they were crying and quarreling about the right for a child. The first woman said that she had lost her child and found him, but his present parents do not want to return him to his mother. The second woman said that the child belonged to her because she had given the birth to him. Kazybek biy listened to them carefully and after some hesitation ordered to his slave to bring the child, then turned to the women and said: «If you do not want to confess by your own will which of you is the true mother of the child and you cannot live without him and ready to sacrifice your life and property for the sake of him I'll cut the child into two parts and each of you will have one part of him in order to have his image forever and you can bury him not far from your house. Saying that he took out his glittering sword from the scabbard and rose it up to the child's head in order to cut him in two, but at that time one of the women said: «Let me take one half of the child and I will own the half at least». The other woman was crying and fell to his feet and said: «Biy, I beg you not to let it be so, give the child opportunity to live, I'd like him to be alive wherever he is». Kazybek biy gave the child to the second pleading woman and made up a conclusion: «The native mother never wishes a death to her child. The child belongs to that woman who insisted not cut him 'in two'. Such was his wise sentence and the news about it distributed rapidly to the whole steppe.

9. «Urghashy tulki dauy» — «А litigation about the fox-female». Aiteke biy (1682 — 1766) was visited by two old hunters and they were arguing about the fox. One of them told that he had been watching it since the beginning of summer and had been waiting while the fox would have good wool. The other one told that he had been tracking it while it had built a cave then he got out the fox from the cave. Let's make a little deviation. Aiteke biy was one of the three the most prominent and famous biy-judges of the XVII — XVIII centuries. He was kept in the memory of the people as Tole biy and Kazybek biy. And also there are many records and notes of the travelers, orientalists and national elite of the last centuries. There are a lot of valuable legends and materials about their original methods of the trails. And there was always showed its natural orientation. After defining all the details lookoing thoroughly the corp of the fox he declared his decision: «If the fox was a male then ti would belong to who had traced and caught it dtfuse a male-fox liked to wander. However it was the fox-female it would belong to that who traced the cave because only a female-fox would live in a cave at that time and a male-fox would walk in the steppe. Not only the participants but the arguing people were glad to have his decision and went home peacefully.

10. «Shideratsaqtaidy, at er saqtaidy, erelsaqtaidy» — «А tripod saves a horse, a horse saves a man, a man saves his country». Tole biy was brought a theft who had stolen a tripod. He was caught when he wanted to untie it from the leg of the horse which was grafting near the jurt of the horse-owner and the litigants asked the biy to sentence him by the take a punishment by the laws of their ansectors. In order to understand the sence of the biy judgment it is necessary to tell the following. Horses in the society and in the Kazakh khanates were referred to the category of especcially valued and protected animals. Stealing, capture of the horses, making them any body damages by the criminals were punished strictly by the Steppe laws. Horses were considered the most powerful means in protecting the population from the external enemies,and presented the most comfortable mean of the transport and horse riding. In the laws of Essym khan (XVI-XVII centuries), Tauke khan (XVII-XVIII centuries) the responsibility for the murdering the horse was the second principle after the murdering of the man. It is interesting to know that the Kazakh law «Jarghi» does not define the size of the fine for murdering the horse; it leaves it to the trail of biys which dependson the type and kind of the horse. Now let's return to the subject of court decision of the Tole by on that matter. The tripods which limited the steps of the horses were divided into several types in the kazakh- nomads: 'tusay', when two fore-legs of the horse were tripoded; 'ore' — two parallels of the legs — one fore-leg and one back-leg; 'shal ore' — two legs were tied up in cross; 'shider' — two forelegs and one back-leg. In that case the matter was about the 'shider' — 'tripod'. The matter was thjat the tripod was made of the lisle sprat which was very expensive and of the thick rope of the lisle horse hair. «Shider» was used, as a rule, for protecting and holding the most valueable horse. Tole biy having heard the evidence of the theft and the witnesses, as it was recorded in the sources, «he was sitting and thinking over the decision for a long time, as if it seemed very simple.» The biy declared his decision: the guilty of the stealing had to put the tripods to three horses that each one had the tripod in one of the back-legs. Then he had to ride them in different directions. If one of the tripods would tear or one of the horses would escape from it then the theft would be free of the resposibilities. The tripod was so strong that it could hold all the horses. Tole biy addressed to the litigants:the theft had to pay the real cost of the tripod taking into consideration the fact: «Shider at saqtaidy, at er saqtaidy, er el saqtaidy» — «А tripod saves a horse, a horse saves a man, a man saves his country». Making into consideration this principle and form the experience which demonsrated the strenght of the power of the tripod the biy made up a conclusion: «Bui shider-ush er» — «That tripod presented three men». It had the following meaning: Shider- tripod was equal by force to three men, and consequently the theft paid the fine (aip) — three five years horses. The audience was astonished by the decision of the biy and his logic of defining the mean of the punishment.

III

Biy-judges were distinguished by their ranks and by the palce of office, truly-by the sphere of influence and by the level of recognition in the community. Tobe biy which is meant «the supreme judge», — had the upper level of the judicial institute. As a rule, this title was served as the mean of the population, professionalism in the adequate epoch of the perception of the kazakh-nomads, who were attached to the values of the self-determination. Biys more influencial and recognized in the frames of Juzes, separate regions and large clan collectives were named as Tobe-biys. The names of the regions of their birth and the most prominent were added to their titles. For example, the population who lived in the second half of the XVII century and in the

first half of the XVIII century admitted and recognized as Tobe-biys: Tole biy from the Senior Juz, Kazybek biy from the Middle Juz, Aiteke biy from the Younger Juz. The title of Tobe biy was given to those biys who were elected as Tobe biys during the complicated and large litigations and conflicts to settle them. They were appealed as the judges of the trails by all the population of the three Juzes.

The nominee of the Tobe biy in complicated, considerable and conflict cases were discusse thoroughly by the sides at their places before going to the court. There was necessary to take into consideration that the litigating sides protecting the interests of the large clan community, as a rule, defined the Tobe biy beforehand as their main solicitor. There is a typical case: In the middle of the XIX century there was a mass fight for owning the large meadow field territory in Altyn-Emal (Semirechie) between two neighbouring influential clan community — Matai and Jalair, each of them beloned to different lands with different sultan-governors. During this disorders four people from the side odf Jalairs and three from Matai were killed. Both sides announced «Myat» — a challenge to other representatives of the clan to join them in order to protect their interests in the coming biy-court. Jalair people (from the lands of Tezek tore) sent the couriers to Douglat people the large clan community who placed in the bank of the river Shu. Matai people in their turn sent to the Argyn tribes. The case began to take dangerous tendency: beginning with the mass disorders with several victims could turn into fratricidal war. It was necessary to call the biy court. It was important to settle some preliminary questions to reach it; where and who appeal to, who must be chosen as a Tobe biy (the supreme biy) in order to have the fair trail. Inits turn each side prepared its own biy who couls elect the supreme biy and to take part as the plaintiff in the trail.After arrival of the couriers who were sent to neighbouring clans, the sultan-governosr Ali who represented the interests of Jalair people made a Council of the famous biys. Among them were: Suranshu batyr (from the kin 'Shaprashty'), Tughanbai biy (from Talgar region), Karabai biy and Dikhanbai biy (from the region of Botabai),, Sary biy (from the kin 'Sary Uysin'), Baigazy biy and Kobekbai biy (from the region Kaskarau), Dautali biy (from Sambet) and others. After the stormy discussion they began to define the personality of biys who would go to the «arbitration» tribunal to protect the intersts of the clan community. To the question of the Sultan-governor about the fact that «all the participating biys would go there or would they chose only on representative, they answered without hesiatation that all of them would go there and drown all Matai people in their blood...» Then the speech was given by the Boltirek biy who was famous for the whole region. His speech was about «we are all relatives despite of will we fight or not and we must come to armistice — such was the will of our ansectors» and he could come down the furious crowd. After these words they decided to appoint and send one of the most experienced biy with accomplishers as the main representative in protection of the Jalair people. The discussion and appointment of the nominees were held in the following way: Each separate kin proposed its own biy. For the offer about choosing Shomai biy (kin 'Suqym') the response was negative: «That litigation was about the considerable part of the land and he was not raise above the decision of the small cases concerning land cases». Dautali biy (kin Sambet) did not have support by the motiv that «he was too fac and ridiculous». About Karabai biy was said that «he was more a warrior then a biy». About the famous Suranshy batyr (the leader of the militiamen) the following argument was said; «he liked to fight by swords not by words. About the popular biy of that time Sary biy (kin Uisyn) was said that «he liked to be among the women than in litigations between them». The oldest and wisest man entered the discussion who had kept silence for a long time. His words said with special pathos of the eloquence effected the crowd of the forum with some magic action, and he said: «Mundai ulken daugha auyzdygha soz bermeitin, ayaqtygha jol bermeitin, aityly sheber adam kerek. Az ata Ysty aruaghy depauyzdarynga almaisyngdar. Bui daugha Ysty Boltirek barsyn. Onan sheshen, onan tapqyr qaisyng bar?» — dep biraz toqtaidy da, - «Oghan serik Kebekbai biy bolsyn, qasyna erip Baighazy biy barsyn.» — In these words there are so much imageous expressions whish are difficult to interpret. But the meabibg is the following: «In the coming large trail litigation out side must be presented by the one who never fails in eloquence and in making a dialogue, he must be the best public speaker and the master of the eloquence. Why do not you remember the spirit of the Holy ansector of the tribe Ysty. I dfer to send to the biy court Boltirek biy frrom the Ysty clan. Who can be better by ability than he?» — He thought for a while and continued — «Kebekbai biy and Baighazy biy will be his assiatants and accomplish him.» The cffer of the old men was adopted and they decided to send to Altyn-Emel three indicated representatives of the large clan Jalair.

The same thing happened in the encampment regions of the clan Matai. Ater a long dfiscussion which continued for several days they decided that the interests of the Matai people would be represented by the known people: Kunanbai biy (the chief), Kusbek tore and Taneke biy.

The firthe contination of the event makes an interest. After 5-6 days of arrival to the certain place which was defined beforehand and where the litigation wold take place. Matai people stayed at jurts which was made especially for them and placed at one of the camps under the name Koyankoz. On the other camp were stayed Jalair people. A lot of guests from the both clans were stayed separately from the representatives. About tens of jurts were pout up for them. The local people which place was chosewn for trail of the matter accepted envoys and couriers of the sides as guests by the traditional custom. Formal part began with the meeting of the first envoys of the sides - between Boltirek biy (1771-1854) and Kunanbai biy (1804-1885). The negotiations were held in traditional form — respectful and friendly, in philosophic- logic competitions of words finding out the common objectives and common conturs of the final of the litigation. Boltirek was elected as Tjbe biy — The Supreme biy. Before entering to that office he made a speech: «Men aitsam isting dalelin, diylikting adilin aitam» — «If I judge then I will make a dicision on evidence and truth». The same happened — testifies the sources. Boltirek biy described the history of the Altyn- Emel place and the changing governors of it during several centuries, proving his words on the basis of names of woods, shafts, inscriptions and signes of the gravesides all those things testified that the region of Altyn-Emel was the land of many nations which changed each other, and Jalairs were one of them because the names of their ancestors and their children were everywhere including the cemetries which was constructed in the last several centuries.Boltirek biy declared that the litigating land «Altyn -Emel» was the original land of the clan-tribal community of Jalairs. The evidence power of the biy's decision was so influential that the opposite side of the litigation had to agree. That case of the biy legal proceeding was described in the work of Dadebayev J., whose book was devoted to the life and activity of Boltirek biy and it was published in Almaty in 1994 year.

Each pastural-nomad community was the basic of the clan division, — small or large — had their own biy, and not only one. The popultion could choose that person who would make the trail. They preferred those biys who lived not far from their encampments and who were famous by their impartiality, knowlegde and wisdom, those who corresponded to the criteria of the traditional legal proceedings.

In conclusion it is necessary to mark that there was a system of establishments and standards of norms which defined the meaning and final aims of the legal proceeding; the basis and methods of achieving those aims and objectives in the biy courts. They were expressed by short and meaningful word-combinations, often rythmed and east to remember. A biy-judge, irrespective of his rank or position, had to know and learnt by heart and had the ability to use them when it was necessary to interpret them depending on the situation obeying the limits of their logical meaning and aimed orientation. Any situation from the other sphere of the life was often added to the main idea f the word-combinations which were the basis of them in order to give them more expressed and poetic forms. So, in the expression «dau muraty — bitken, qyz muraty -ketken» — «The holy aim of the legal process is achieving the armistice; the holy aim of the girl is finding a good husband». The short form of this expression is often used in speech: «Dau tubi — bitim» — «The armistice in the litigation is holy thing». In biy courts «the armistice of the sides» was considered as the nearest task, in its turn leading to the establishment of the stability in the society and unity of the members of the community and nations in whole. The words were attached to the famous Kazybek biy: «Soz atasy — birlik, soz atasy — shyndyq» — «The father of word is unity, the mother of the word is truth». These expressions prove that the aim of the Word (debates) in the biy courts is not breaking the unity of the members of the community, on the contrary to strengthen it reaching by the basic of truth and fairness.

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