Directions for the Judges and the Jury
Directions for the Judges and the Jury
The Judges and the Jury shall not regard the appearance (circumstances) of men. If a man of influence (be brought before them) let him be a man of influence; if a neighbour, let him be a neighbour; if a relative, let him be a relative; or a friend, let him be a friend; this they shall not regard. That which is written in the laws, and that alone, shall they regard.
When an offence is committed, such as theft or adultery; if the injured person desires that the offender should be tried, he shall go himself to the magistrate, and give information. The magistrate shall write his name, and the name of the person accused, that it may be regular in trial. But offences which affect the whole island, such as murder, rebellion, conspiracy, working on the Sabbath, it shall be competent for any person to give information to the magistrate; and the magistrate shall write his name, and the name of the person accused. The magistrate shall not regard or bring to trial on vague reports. It is proper that some individual should go and lodge the information.
When a person is brought to trial, and when the magistrates are assembled—the accused, and the accuser, and the accuser, and the witnesses, being also present—the magistrate or judge shall publicity declare the crime of which the offender is accused, and shall then ask him if it is a true word or accusation. If the prisoner replies, “Yes, it is a true word,” the judge shall pronounce the sentence. But if the person accused replies, “It is not, I did not commit the offence;” then shall the judge request the person on whose information he was apprehended, to state his accusation. page 191 If there be two witnesses, let there be two; if three, (let there be) three. It is proper that witnesses should have the clearest, strongest evidence. Then shall the judge request the prisoner to declare what he has to say. If there be a person there that knows the accused to be innocent, he shall give his evidence; and if there be two, let three be two; if three, let there be three; they shall deliver all their word or evidence. If the person accused wishes to ask his accuser any questions, it is right for him to do so. He shall inquire of the judge, and the judge shall repeat the question to the accuser.
No man shall be confined without cause. When a pig breaks into a garden, the owner of the pig shall not be bound, but information shall be given to the magistrate, and he shall send his messenger to bring the owner of the pig, that he may be tried according to Law III. The same course shall be adopted in all petty offences: but for murder, theft, rebellion, &c. and all great crimes, it is proper to secure (the offender.) Let not the confinement be long before the person is brought to trial. One, two, or three days will be sufficient. Let it not be longer.
When petty offences are committed, the district magistrates shall try the offenders; but in all great crimes, the judges and the jury shall assemble in one place for the trial.
When a man is tried by a district magistrate, and sentenced by him, if the person sentenced think that the judge has been irritated with him, and has increased his punishment; if (from these considerations) he shall say— I will go to the chief judge and the jury to be tried, it is right that he do so. They shall both go before the supreme judge and a jury, to be tried.
When a man is tried, convicted, and sentenced by the jury and judge, he shall not be maltreated, as by beating with a stick, piercing with a spear, or enduring any other savage practice. It shall not be practised. The punishment appropriate shall be adjudged.
When a man is convicted of any great crime by the judge and the jury, and they unanimously think that he deserves punishment; then the judge shall write on a paper his crime, and his own and the jury's decision on which he has been sentenced. This shall be taken to the king, and if the king approves of their decision, he shall write upon a paper brought by the judge, “It is fully approved,” and write his own name underneath, then page 192 shall the punishment be inflicted on such offender. If the king desire to mitigate the sentence, he may do so, but cannot increase it.
The names of the judges, magistrates, and messengers, or police officers, for Huahine and Sir Charles Sander's Island, follow this last regulation, and close the first official document issued by the government of these islands—and, next to the sacred writings, the most beneficial ever promulgated among the people.
I have endeavoured to give a correct and even servile translation of this important publication. The idiom and peculiar phraseology of the original. I have almost invariably retained, rather than sacrifice fidelity to improvement of style. In some respects I have wished that several enactments had been otherwise than they are; these parts, however, have not been omitted; and notwithstanding their imperfections, considering the circumstances of the parties by whom they were framed, regarding them also as the first effort of their legislation as a Christian people, and the basis of their future civil institutions, they imbody all the great principles of national security, personal liberty, general order, public morals, and good government. And if no Solon or Lycurgus should appear among them, it is not too much to hope that, amidst the variety of character daily unfolded, and the means of improvement which the introduction of letters imparts, that political economy will not be neglected, but that legislators will arise, whose genius shall model and prepare such improvements in their system of jurisprudence, as shall render it in every respect conducive to general prosperity and individual happiness.
In the Tahitian and Raiatean codes, when first page 193 promulgated, the punishment of death was annexed to the crime of murder, and rebellion or treason. But by the laws of Huahine and its dependency, capital punishment was not inflicted for any crime. In the first law, prohibiting murder and every species of infanticide, the penalty annexed to its commission, instead of being death, is banishment for life to Palmerston's, or some other uninhabited island. This was in consequence of our particular recommendation. We were convinced, that if, under any circumstances, man is justified in the infliction of death, it is for murder alone; but an examination of those parts of the bible which are generally supposed to authorize this punishment, did not fix on us the impression that the Almighty had delegated to man the right of deliberately destroying a human being, even for this crime.
In our views of those parts of the sacred writings, we may perhaps have been mistaken; but in reference to the great principles on which public justice is administered, the plan recommended appeared in every respect preferable. Death is not inflicted, even on the murderer, from motives of retaliation or revenge; and if it be considered that his life is forfeited, and is taken to expiate his crime, the satisfaction which the injured party derives from such expiation must be of a very equivocal kind. At the same time, the very execution of the sentence imparts to the executioner somewhat of the character of an avenger, or excites the apprehension that it is done under the influence of irritated and vindictive feelings.
The great design of capital, and even other punishments, is the security of society, and the prevention of crime. The death of the criminal page 194 preserves society from any future injury by his means; and the fatal punishment inflicted, it is presumed, will deter other from the commission of similar offences. The security of the community from all future violation or outrage, is certainly obtained by the death of the criminal; but experience and observation abundantly demonstrate the inadequacy of public executions to restrain from the most appalling deeds. Every repetition of the awful spectacle appears to diminish its horrific character, until those habituate to felony become familiar with its heaviest punishment. The principal end of public executions is thus defeated, the general tone of public feeling lowered, and that which was designed to be the most effectual moral barrier, is at length converted into an occasion, or sought for as an opportunity, for the commission of crime.
By recommending the omission of capital punishments, we avoided this evil, and, regarding the peculiar circumstances of the nation, were in hopes thereby indirectly to elevate the tone of moral feeling, and improve the sensibilities, of a people emerging from a state of barbarism, in which murder, and retaliated murder, had not only been familiar, but committed with brutal satisfaction.
The existence of a number of islands uninhabited, but capable of cultivation, and, from the cocoa-nut trees growing on their borders, and the fish to be found near their shores, capable of furnishing the means of subsistence, and yet too remote to allow of the convicts returning, or proceeding to another island in any vessel they could construct, appeared to afford the means of answering every end of public justice. The community would be as safe from future injury, as if the offender had page 195 been executed; and we had a firm conviction, that a life of perpetual solitude, and necessary labour, would be regarded by many as more intolerable and appalling than speedy death.
We have always regarded it, as less difficult to render laws, once established, more sanguinary, than lenient afterwards. Another consideration, by which were also influenced, was, the season to exercise repentance, or supplication for mercy, which it would afford the criminal before he was called to the bar of the Almighty. To the offender this was most important, and as it could be bestowed without danger to the donors, wer were always desirous that it should be granted. No opportunity for obsrving the practical effects of this law has yet occurred, no murder having been committed in any of the islands since its enactment. Within two years after the promulgation of the Tahitian code, four executions for conspiracy and treason took place. The influence of these appeared by no means salutary; and, in the revision of the laws of Tahiti in 1826, banishment for life was substituted as the penalty for those crimes to which death had before been annexed. One individual was senstenced to perpetual solitude, and was to have been furnished with a few tools, together with such seeds and roots as, it was presumed, would, when cultivated, afford the means of subsistence; but before he was actually transported, circumstances occurred which induced the king to mitigate his sentence. It has never been intended to send any number of felons to the same island; hence distinct and distant islands have been appropriated to the residence of traitors and murderers.
The observations on this article may appear to page 196 have been unnecessarily extended; but the important character of the law itself, and the difference in its penalty from that ordinarily inflicted, have induced more lengthened remarks than I should otherwise have offered. Since the first publication of this work, I have been led carefully to review the opinions here exhibited, and the result is, a stronger conviction that capital punishment, certainly for every crime excepting murder, is not less opposed to sound policy, or a due regard to the welfare of society, than repugnant to every humane feeling and Christian sentiment.
Another distinguishing and important feature in their judicial proceedings is, the omission of oaths, in appointing the jury, or examining witnesses. No oath is administered on any occasion: deliberate assertion is received as evidence; and false evidence is regarded as equally criminal with false accusation, and is, I believe, punished accordingly
The second law is one of those regulations peculiar to particular and local communities. Their swine and their gardens are among their principal sources of maintenance and wealth. The animals are not kept in sties or other enclosures, but range the district at liberty; a great proportion of their food being derived from the cocoa-nuts, breadfruit, plums, chesnuts, and other fruits that fall from the trees. During the season of fruit, these are abundant, and the pigs feed and sleep in quietness under the shade; but during the other seasons of the year, they are very troublesome. Their materials for fences are not good; and a large strong and hungry hog will easily force a way into the garden with his tusks or his teeth, and often do great mischief in a very short time. In 1826 this law was revised, and rendered more simple.page 197
The sixth enactment, relating to barter, was required, not only for the exchanges, or trade, carried on among the natives themselves, but for the prevention of misunderstanding between them and those foreigners by whom they might be visited for purposes of traffic. They are naturally fickle, and were formerly accustomed to return articles which they exchanged, merely because they desired to reposses whatever they might have given for it; this practice led to frequent altercations, and, when trading with foreigners, to serious quarrels.
The law which prohibits labour on the Sabbath-day, is perhaps enforced by a penalty disproportioned to the offence. It ought, however, to be observed, that as a nation they were accustomed to pay the strictest regard to this day from religious considerations, before the legal enactment was made, which was principally designed to prevent annoyance to those who were desirous to devote the day to religious services. The road which the offenders were to make, was not much more than a footpath, with a small trench dug on each side, and raised in the centre, from the sand or earth taken from its borders.
The eighth law, referring to rebellion, is translated from the amended code of 1826, simply because this article was much shorter than that of 1823. It contains the substance of the former enactment, which had been copied verbatim from the Tahitian code, and was drawn up by Pomare, it fixes the punishment for the third offence to perpetual banishment, instead of leaving it optional with the judges to banish, or sentence to public abour for seven years or for life.
The ninth regulation can only be of temporary page 198 application, and the necessity for its introduction arose from the peculiar circumstances of the people, while passing, as it were, from paganism to Christianity. Prior to the subversion of heathenism, polygamy prevailed more or less in all the South Sea Islands: some of the chief women had also a plurality of husbands. This regulation did not require those who had enterd into these relations in a heathen state to dissolve them on becoming Christians, and was only designed to prevent any one from making these engagements after they had become such: it is a circumstance which merits notice, that there were very few who did not of their own accord, and by agreement among themselves, disannul this relationship excepting with one individual. They knew that, with more than one person, it was inconsistent with the precepts of the bible; and this consideration induced the discontinuance of their former practice. If their previous habits of life, and the notorious licentiousness of their character, be regarded, their conduct in this respect is a striking illustration of the power of Divine truth upon their minds, and of theattention they condidered its injunctions to require. This article was amended in 1826, and it was enacted, in the event of a man marrying a second wife, without her knowing that he was already a married man, he should not only be sentenced to public work, but should furnish compensation for the female he had thus injured.
The twelfth enactment, which regards the dissolution of the marriage contract, is rather a singular article. The influence of former institution appears to require it, or at least something of the kind. Formerly, with whatever ceremonies the page 199 engagement had been made, nothing could be more brittle than the bond which held together those united in matrimony. The engagement was not regarded as binding any longer than the caprice or inclination of the parties dicated. Accustomed thus to relieve themselves for any unpleasantness in temper, &c. it was to be feared that the separations resulting from them would lead to the arranging of new contracts. To avoid the confusion and inconvenience of this, the present regulation was introduced; and although it was not supposed that hard labour would revive affection in the bosoms of those who, notwithstanding they had solemnly agreed to dwell together for life, had yet become estranged from each other; yet it was presumed, that the admonition from the magistrate, and the consequence of obstinate alienation, might induce the parties to impose a little restraint upon their tempers, and to make an effort to live together in peace, if not in kindness and in love.
The degradation of the female sex is an invariable accompaniment of paganism; and, in addition to the humiliation and slavery to which those in the South Sea Islands were reduced while the community were heathens, they were often exposed to the sufferings of hunger and want, from the neglect or unkindness of their savage and imperious husbands.
The thirteenth enactment, requiring provision to be made for them, may be regarded as an indication of the light in which the nation at this time viewed their former treatment of the females, or an expression of their determination to prevent its recurrence.
The law concerning marriage is a most important enactment, and may be justly regarded as the basis page 200 of all their regulations for domestic comfort, and the spring of every household virtue. It was thought that the season of assembling for public lecture during the week, which was on Wednesday evening, would be preferable to the Sabbath, for giving the notice, or, what is termed with us, publishing the bans, but the marriage was not to take place till the following week. Though the law only prescribes the terms in which the contract shall be made, the people usually expect a short address, and prayer for the Divine blessing; and on that account, in general, prefer applying to the Missionaries to perform the ceremony. No fees are received by either party for solemnizing the marriage, or entering the record. In the revision of the code in 1826, this law was considerably improved, by annexing to the public announcement of the intention of the parties, the reason why such public declaration was made, viz. that any who knew of just cause why the marriage should not take place, might declare the same.
Dogs are numerous in the islands, though not now reared as formerly for food. They are generally indolent, unsightly, and ill-bred, and are a great nuisance in most of the settlements. Disputes are not frequent among the natives, but they arise as often on account of the depredations of their dogs and hungry pigs, as from any other cause. Neither their dogs nor swine are confined, but they prowl about, destroying fowls, kids, and young pigs. Several instances have occurred, in which children have been attacked and injured by savage and hungry swine. Under such circumstances, formerly, redress would have been sought, or vengeance taken, with the club page 201 or the spear. To diminish the number of useless animals, and to secure greater care over others, the twenty-first regulation was made, which rendered the owners in some degree responsible for any mischief they might occasion.
Such was the population of the islands formerly, that every bread-fruit and cocoa-nut tree had its owner; and a single tree, it is said, had sometimes two proprietors. Subsequently, however, extensive clusters or groves of trees were to be met with, having no other owner than the chief of the district in which they grew. The fruit of these, it was formerly their practice to gather in its season, without asking the consent of any one. The proprietor of the land could appropriate to his own use any number of the trees, by affixing such marks as were indications that they were rahuaîa, or prohibited. This practice being connected with certain idolatrous ceremonies, was discontinued with the abolition of the system. As the population increased, the people became more careful of their trees, and the practice of gathering promiscuously the fruit from those trees not enclosed, appeared generally undesirable. There are, however, a number of persons at most of the settlements, who have scarcely any other sources whence they can derive a supply. In order to afford them an opportunity of procuring this, and at the same time securing to the proprietors their right to the disposal of the fruit growing on their own lands, the twenty-fifth regulation was framed, and applied to most of the trees whose fruit is used as an article of food.
The government having been hitherto an arbitrary monarchy, the king and chiefs had been accustomed, not only to receive a regular supply page 202 of all the articles produced in the islands, but to send their servants to take whatever they required, however abundant the supply furnished might have been. This practice destroyed all security of individual property, and, so long as it continued was a great barrier to the improvement of the people. It had always appeared to us desirable to introduce such regulations, in reference to this subject, as would procure for the king and chiefs a revenue more ample than the system of extortion and plunder had ever furnished, and at the same time secure inviolate to the people the right of private property.
In proposing any regulation of this kind to the chiefs, we always felt some degree of delicacy, and found the introduction of the measure attended with difficulties. To the chiefs it appeared in some degree depriving them of their power, and rendering them dependent on the donations of the people; and there were others who, connecting the prosperity of the people with the continuance of the monarchical goverment, were not free from apprehension lest the restraint imposed on the chiefs should diminish their influence in the nation, and destroy the authority of the sovereign. The proposition arose from no desire on our part to limit the influence of the chiefs, or reduce them to a state of dependence; on the contrary, we were satisfied that a certain proportion of the produce of the soil, fixed by law, and regularly paid, would give them greater power than they had ever enjoyed before; and though some were apprehensive of a contrary effect, the rulers and chiefs of Huahine readily embraced the plan, and, heartily recommending it to the adoption of the people, have found it much more productive than the former page 203 system of oppression. To the people, the advantage of this enactment is incalculable. They have already begun to taste the enjoyments resulting from the secure possession of their property, and the satisfaction of contemplating the produce of their labour as inviolably their own. No regulation, before introduced, appears so much adapted to promote agriculture, industry, and advancement in civilization.
In 1826, this enactment was improved: the proportion of tribute, individuals in the several classes of society should furnish, was definitely fixed, and the whole rendered more explicit. Although this regulation has been subsequently introduced, and still further extended, in the codes of some of the other islands, this being the first enactment on the subject, promulgated by any of the infant governments of Polynesia, may be regarded as the basis on which the right and security of private property is established.
The remaining articles in the first Huahinean code refer to the regulation of their judicial proceedings, and are designed to supply the deficiency that appeared in the laws of other islands previously introduced. In these the power of the judge and magistrate was discretionary, both as to the kind and degree of penalty for several offences. This was found to open a door for the abuse of power, and was frequently very unsatisfactory to the people. From these considerations we were led to recommend the chiefs to annex the punishment to the prohibition of the offence, and restrict the magistrate to the infliction of such penalty only as the law enjoined: this plan has appeared in general to give satisfaction, though it is often attended with practical difficulties; these, however, page 204 the increasing experience of the people will probably enable them to remove.
In 1826, the regulations regarding the local magistrates was improved, and two were appointed to preserve the peace in each district, from whose decision any one could appeal, even in petty cases, to the judges of the island. At the same time, the salaries of the magistrates, as well as those of the judges, which are paid by the king, were definitely fixed.
The law which declared that, “No man should be tried for any great offence (viz. one which affected his person, liberty, or possessions) without a jury,” we have always regarded as the basis of their public justice. The liberty granted to the prisoner, of objecting to any members of the jury, is a valuable security for the proper and impartial investigation of the case.
In 1826, this enactment was also amended, and it was then enjoined, not only that a chief or raatira should be tried by his equals, but that if a peasant or mechanic were brought to trial, the jury also should be peasants or mechanics. Every friend of liberty, of the natural rights of man, and to the order and good government of society, must rejoice that these infant nations should have enjoyed, so early in their civil existence, the security which the trial of a subject by his peers is adapted to insure. At the same time it was also enacted, that, in all cases, the jury should be unanimous in their verdict.
Besides these regulations, which were included in the first legislative code, established in 1823, and improved in 1826; at this latter period, several important articles were added, and the Huahinean code now contains fifty laws. The first page 205 of those introduced at this time, regarded the education or discipline of the children, and was designed to counteract the fugitive habits in which they indulged, prior to the establishment of regular schools. Formerly the children were accustomed to resist all parental restraint, and, whenever they chose, to leave their parents' abode, and associate with other children, or take up their residence in any other part of the island.
The facility with which the means of support might in general be obtained, rendered it a matter of little or no inconvenience to the parties to whom such children might, at the age of eight, ten, or twelve years, attach themselves. The person with whose establishment they might unite, exercised no guardianship over them; and their distance from the dwelling of their own parents, removed them from the restraint and superintendence of those on whom naturally devolved the preservation of their morals and the formation of their character. To prevent the sanction and support which children absconding from their homes had been accustomed to receive, and to promote a more general attention to the reciprocal duties of parents and children, this regulation was introduced.
Another enactment prohibited the revival of those amusements and dances which were immoral in their tendencies.
A third prohibited husbands from ill-treating their wives.
The fourth referred to their fisheries, and, by fixing the proportion of fish taken which should be given to the king and governors was adapted to prevent dissatisfaction.
The most advantageous regulation, however, introduced at this period, for the first time in any page 206 of the legal enactments, was that which regarded the boundaries of lands. This law required that all disputes about land-marks should be referred to the judges, or settled by the decision of a jury; and that the boundaries of all the lands, fields, &c. throughout the island, should be carefully ascertained, and, with the dimensions, descriptions of the land, and the names of the owners, should be entered in a book called the Book of the Boundaries of Lands. A copy of the boundaries of each land, with the name of its owner, signed by the principal judge, and sealed with the king's seal, was to be prepared, as a document or legal title to the possession of such land in perpetuity.
Many difficulties presented themselves in adjusting the rights of different claimants to the same lands. Prior to the introduction of Christianity, the lands often changed owners during the internal wars that prevailed; and the descendants of those who at this anterior time possessed or occupied the land, preferred their claims. But as those who possessed the lands at the abolition of idolatry, held them either as the fruit of conquest, or the gifts of the king, it was decreed that those who possessed them then should be considered as their lawful owners, and that no claim referring to a period antecedent to this, should be admitted. This law, by which the lands of the islands were made the freehold property of their possessors, is one of the most important in its influence on property that had yet been enacted. The unalianable right in the soil would thus descend from the father to the son, and no man could be deprived of this natural right but by a flagrant violation of the laws of his country.
In the year 1824, when the infant, Pomare III. page 207 was recognized by the nation as the successor to his father in the government of Tahiti and Moorea, the Tahitian code was revised and enlarged. At this time a most important law was introduced, which gave to the nation, for the first time, what might be termed a representative government, and rendered the Tahitian a limited, instead of an absolute monarchy. It was then decreed that members from every district should meet annually, for the purpose of enacting new laws, and amending those already in existence. The duration of the session was to be regulated by the business to be transacted. The inhabitants of the districts were to select their representatives and fresh deputies, or members, every three years. It was at first enacted, that two should be sent from each district; but the same law authorized the body which might be thus convened, to increase the number to three or four from each, if it were found desirable. No regulation was to be regarded as a law, but such as had been approved or proposed by them, and had received the sanction of the king; and every regulation made by them, and approved by the king, was to be observed as the law of the land.
The printed report of the session of what may be termed the Tahitian parliament, which assembled in May, 1826, contains an alteration of two laws, and four new regulations. The first of these is sufficiently important to justify its translation, it is—