THE TRIBUNALS OF ARCADIA
Happy is the land that has neither taxes, nor treasury, nor paid civil
service, nor prisons, nor police! The problem that puzzled Plato and
Confucius and Machiavelli and Locke and Jeremy Bentham has never
troubled Niué, for only once in its history has it felt the need of
these things. It happened in 1887, when one Koteka slew his brother.
He could not be acquitted--the man was disobliging enough to admit his
guilt--the penal code had never contemplated such a crime as this. The
chiefs sought counsel of Mr. Lawes, as they have ever done in moments
of perplexity, and for once he was powerless to help them. There was
no prison, and an execution carried out by natives was out of the
question; the High Commissioner's Court in Fiji had no jurisdiction
over natives, and the Pulangi Tau, or Council of War, that would have
given the man short shrift in heathen days by telling off one of his
judges to betray him into ambush, had long been dissolved. There was
nothing for it but to sentence him to perpetual labour on the roads,
and, as they could not sentence a free citizen to stand perpetual guard
over him, they left it to the convict's honour to see that the sentence
was carried out. But Koteka, who had showed singular callousness to
the embarrassment of his fellow-countrymen, now came to their aid,
which proved that there was good in the man, since he suffered little
personal inconvenience from the sentence. A ship coming in a few weeks
later, he boarded her without opposition, and worked his passage to
Manahiki, where he is still living, to the undisguised relief of the
native authorities.
The old criminal court was, as I have said, the Pulangi Tau, or Council
of War, whose only rule of procedure was to meet and try the accused
when he happened to be out of the way. The code was the Lex Talionis
modified by the rank and influence of the defendant. Murder, that is
the killing of a member of the tribe (for the slaying of a potential
enemy was a virtue rather than a crime), was punished by the _kopega_.
The trial was held in secret and without the knowledge of the accused.
If he was condemned to death, some member of the court was told off to
_afo_ him, that is to say, to win his confidence by an open profession
of friendship. The business of the executioner was thus drawn out into
weeks. When he had wormed himself into his victim's confidence, a day
was appointed, and a band of warriors was concealed at a concerted
spot in the bush. Then the Judas, on the pretence of taking him to an
assignation with some village beauty, led him into the ambush, and he
was done to death by blows struck from behind. Adultery was punished by
fine or by the paddle-club, according to the influence of the offender,
and there were instances of persons being condemned to be the slaves of
their accusers. The gratification of private revenge was recognised,
and justice was administered capriciously, as must always be the case
in a society that tolerates might as right.
All this was swept away by the five Samoan teachers. They brought with
them the penal code of the London Missionary Society, which was already
in full force in Tahiti and Rarotonga, and was beginning to displace
the elaborate system of punishments in Samoa. When the Mission ship
_Duff_ sailed from Portsmouth the stocks were still in use, and just
as they were being abandoned in England, they took root in the South
Seas. But in 1859, as Dr. Turner records with complacency, the "Broom
Road," which was to aid the good work by enabling the missionary to
keep a horse, had become the sheet-anchor of the law. All malefactors,
from thieves to truants from the Sunday school, were sentenced to
a spell of work upon this road, calculated in fathoms according to
the degree of their iniquity, and if at that early date it stretched
already, as Dr. Turner says, from Avatele to Alofi, a distance of six
miles, the greater part of the population must have brought themselves
within the clutches of the law. In these days men must sin with greater
impunity, for to keep the road in repair the entire male population
is giving the first Monday in the month. On the very afternoon of my
landing they took me with pride to see a gigantic feat of engineering
on which they were engaged--nothing less than the grading of a steep
hill of coral for wheel traffic, although the only carts in the island
belong to the traders. A few charges of dynamite would have done the
job in a week, but they were too proud to ask the white men to help
them, and they had set about the task in the only fashion they knew,
which was to light big fires on the limestone rock, and then break
away the calcined surface with hammers, a few inches at a time. That
bluff may be cut through some day, but it will not be in our time, nor
in theirs.
The law courts of Niué have never felt the want of paid police. There
is a judge in every village, who holds his court when and where he
pleases, but preferably in the open air. A verbal summons is sent to
the accused. If he appears, the trial proceeds, but if not, the court
adjourns until such time as his contumacy yields to the constant
worrying to which he is subjected. There are no particular rules
of procedure. The great object is to get the accused to confess.
Accuser and accused generally fall to wrangling before the judge, who
sits quietly listening until they have done, when, having used this
excellent opportunity for forming an opinion of the merits of the case,
he pronounces sentence. When there is no clue to the perpetrator of a
crime, it is not unusual for the judge to send for a Bible and solemnly
curse him upon it. Then the real culprit generally falls ill from sheer
fright, and confesses to save his life. Primitive as the system is,
I feel sure, from my experience of the Tongan courts, that with more
elaborate machinery the Niuéan magistrates will do less justice.
Three penalties are now recognised by the courts: the making of fifty
or one hundred fathoms of road, the burning of an oven of lime, and the
fine. The road-making consists in clearing the undergrowth, filling up
the crevices in the jagged limestone with branch coral carried from the
beach, and spreading a layer of sand over all. Making an oven of lime
is supposed to take a fortnight--one week for cutting the firewood, and
another for bringing coral to burn in the fire; but, inasmuch as there
is no officer paid to see that the sentence is carried out, the courts
have fallen into an easy way of imposing fines for all offences, which,
being usually paid by the relations of the prisoner, are apt to fail as
a deterrent.
It is not surprising that offences are on the increase. The abduction
of married women to the bush--an offence that was kept down by the club
in the old days--is a growing source of trouble. A fine paid by the
relations of the co-respondent does not satisfy the injured husband,
who might think his honour cleared if he could see the gallant sweating
at labour on the public road. I remember once laying before the great
Council of Chiefs in Fiji a proposal to substitute a civil action for
damages for the criminal penalty for seduction. During the debate that
followed not a single voice was heard in support of the proposal. The
opinion was unanimous that the existing law was a safety-valve without
which there would be constant explosions. A man wanted no monetary
gain from his dishonour, and if he were denied the legitimate revenge
of seeing the man that had injured him languishing in gaol, he would
resort to the old remedy of the club. Suicide, which seems to have
been common in heathen times, is still of not unfrequent occurrence.
It is rarely committed deliberately, but in an access of rage or shame
young men and women jump over the cliffs and are dashed to pieces on
the coral rocks below. Like angry children, they are tempted to avenge
themselves by picturing the trouble that they will bring upon the
friends who have offended them.
Thefts from Europeans are settled in an informal manner that does
credit to everyone but the thief. The European generally goes first
to Mr. Lawes, who invites the chiefs to make inquiry. A Fono is held,
and, as a rule, the offender is discovered. The honour of the island
being concerned, the relations of the thief are obliged to make
restitution, in some cases twofold. But even in cases where a close
inquiry has failed to discover the thief, restitution is sometimes
made by the district, even though the European has admittedly thrown
temptation in the way of the thief by his own negligence. It was owing
to the just and tactful arbitration of Mr. Lawes that the Europeans
had no complaints to bring before me, and that there exists between
the traders and the natives a good feeling that can scarcely be found
in any other part of the Pacific. These good relations may not last.
Mr. Lawes told me that the young bloods who have been abroad and have
worked side by side with Europeans are becoming prone to be insolent
and abusive to the traders, and that there is a disposition to take
advantage of the traders' necessity when a copra ship is in by refusing
to work for the time-honoured rate of a dollar a day. The Niuéan's mind
does not deal in fractions; it works in dollars, and when one seems
insufficient, it jumps lightly to two. "Two dollars or we strike," are
the terms they spring upon the wretched trader, who knows that his ship
cannot wait many hours in her dangerous anchorage, and that his copra
may lie rotting in his sheds before another ship will come to take it.
This is one of the questions that an English Resident may be trusted to
deal with.
The judicial preference for moral suasion to overcome contumacy is
shared by the Executive. Nothing is done in Niué without the decree of
the Fono, a council attended by all the chiefs of villages and heads of
families. The Fono is half parliament and half law-court. Nothing is
too great or too small for its attention. Has a strong man encroached
on a widow's yam patch, it is to the Fono that she makes her plaint.
Has a villager of Avatele been rude to a visitor from Tuapa, it is to
the Fono that he will be called to answer. Time was when the Fono made
laws, but as the only copy of these enactments is in the possession
of Mr. Lawes, and the magistrates have managed very well without them
for many years past, legislation is a very rare part of its labours.
It sometimes happens that a village has refused to obey the decree of
the Fono. The Great Council flies into no vulgar passion, talks not of
legal penalties, sets no police in motion. It simply announces that
the next meeting will be held in the rebellious village. This means
more than meets the eye, for councillors are hungry folk, and they do
not bring sandwiches with them. No village would dare incur the odium
of neglecting to feed its august visitors. The headstrong village
knows its doom. Day after day the Fono will blandly hold its sittings,
eating its meals with intervals of talk between, and one thing only
will prorogue the session--the humble submission of its refractory
entertainers. Is it surprising that no standing army is wanted to
suppress sedition in Niué?
When I asked to see the Statute Book, Mr. Lawes, who combines with
his other unofficial functions the duties of Custos Rotulorum,
produced a faded sheaf of foolscap paper. It was the only existing
copy of the Acts of King Fataäiki, and it was doubtful whether any of
the magistrates, who administered the code from memory, knew of its
existence. It was simple in the extreme. Theft and adultery were to be
punished with labour on the roads; for traffic in strong liquor and the
sale of land, both absolutely forbidden, no penalties were provided. I
would fain have left the law in its nebulous and elastic condition had
it not been for the increasing proneness of the Niuéan to remove his
neighbour's landmark and--if the naked truth be told--his neighbour's
wife. Having with me the Penal Code which I drafted for the Tongans
in 1891, I dictated to Mr. Lawes the simplest and the shortest Penal
Code that every nation had, providing broadly for every crime in the
calendar, with penalties ranging from a fine of a plaited straw hat to
a maximum of six months' labour on the roads. The omission was criminal
assault upon children--a crime unknown in Niué, Mr. Lawes assured me,
though by a strange coincidence, as I heard afterwards, this very crime
was committed within a month from the passing of the code. My part
of the work was finished in two hours, and I blushed when I accepted
the offer of my patient amanuensis to make the translations and fair
copies after my departure, and even to persuade King Tongia to the
task of commending it to his council--the only legislative body. To
quote Mr. Lawes' own words, written six weeks afterwards: "We got the
Quarantine Regulations through at Fono on May 1st. At the same time I
read the translation of the laws which you wrote out, and suggested
that the present would be a fitting time to revise their laws, and,
together with those left by you, get all written out and put in force.
The proposal was received more cordially than I expected. The _patus_
had two sittings at Alofi. In every case in which they had similar
laws to those left by you they voted for the _mena fou_ in preference
to the old. I wrote out all on which they were unanimous, and at the
Fono at Tuapa to-day they have passed them by show of hands, and got
the king's signature affixed. The late king was an intelligent, shrewd
man, but I could not get him to do what Tongia has now done. There
was a little hesitation in substituting work in almost every case for
fines. The constables shrugged their shoulders at six or three months
on the roads, and no pay. We advised them to pass the law and arrange
afterwards about some remuneration for constables. For feeding the
prisoners for the longer terms of labour they have agreed to let them
off two days a week, to work for themselves and get food. In addition
to fines, they have decided upon a sixpenny poll-tax per annum for man
and wife and sons up to the age of going away in ships: unmarried women
and girls exempt. The beginning of taxes in Savage Island! What will it
grow to?"
There was one other matter in which I was obliged to tamper with
legislation. There were cases of bubonic plague in Australia and New
Zealand, and ships were free to communicate with the shore at four
different parts of the coast. A master might even land his sick on the
island and sail away unchallenged if he chose, and though masters who
would commit such an act of infamy are fortunately rare in these days,
the risk of infection was too great to be left unprovided for. There
being no Customs officer or medical man on the island, it was obvious
that nothing could be done without the willing cooperation of the
Europeans. The nine traders responded to my invitation to a meeting.
Having laid before them the risk the island ran, I called for volunteer
health officers. It was first proposed that Alofi should be made the
only port of entry, but to this it was objected that masters, having
anchored at one port, would refuse to incur the delay of going on to
another and returning before they began to discharge their cargo. There
was nothing for it but to appoint a health officer for every port, and
to the credit of the gentlemen present volunteers at once came forward.
Quarantine Regulations were drafted to be passed by the native council
(which must have been sorely puzzled by the unaccustomed phraseology);
the health officers undertook to board every incoming vessel, and
demand the Bill of Health, at the same time serving upon the master a
copy of the penalties he would incur if he allowed men to land before
he got pratique; and King Tongia, for his part, undertook to punish
any native who should put off to a vessel flying the yellow flag. It
was a game of bluff--for how was the penalty of £50 or six months'
imprisonment to be enforced?--but it served its purpose.