Savage Island/Chapter 7
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 neighbours 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 ever 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.