XIV.
Amateur Law-Giving.

The dismissed Premier was not only a spiritual and temporal dignitary, he was also the lawgiver of Tonga; yet it was only in the most limited sense that he united the qualities of Moses and Melchisedec.

It has been the fate of Tonga to furnish the vile body on which the legislative experiments of amateurs have been tried. The first written code of law in Tongan history was promulgated in Vavau in 1839, and, crude though it was, it may be doubted whether it was not far better suited to the people than the elaborate but often incoherent effusions of the missionary lawyers of later days. It was King George's own composition, and it was intended for his own people only, to be administered by judges of his own race. There was a long preamble filled with Biblical quotations, after which follow a few plain straightforward clauses such as the following:—

It is my mind: That the land should be brought into cultivation and be planted. Hence, I inform you it is unlawful for you to turn your hogs outside the sty. If a hog be found page 221eating the yams, or destroying the produce of the land, the owner of the hog shall be at once informed that he may shut the hog up, and he shall restore whatsoever be damaged. If the owner neglect to take warning, either in confining his hog, or in recompensing the damage done, and the hog be again found eating the yams, it shall then be lawful to kill the hog, and the owner of the plantation shall have the carcase for his own.

A giant yam.

Hitherto the laws had merely expressed in writing the prohibitions that already existed in the native mind, but for which no fixed punishment had been stipulated. The government by chiefs was defined and their powers described, but it was the same form of government that had been in force since the social organisation of the people was crystallised out of the primitive family. King George—to his credit be it said—long resisted the importunities of the missionaries to grant his people a Constitution, and ape the form of government evolved in Europe from centuries of civilisation. The people were not ready for it, he said. It might suit England very well. There the people were perhaps accustomed to think for themselves, but the Tongans were wont to let their chiefs think for them.

The Tongans had reached a stage of development midway between the patriarchal and feudal systems Their chiefs had the blood of the founder of the family in its purest form, and were the earthly incarnation of their deified ancestors. Each chief had hereditary retainers who followed him to battle, and obeyed him in time of peace; but the constant wars during the latter half of the eighteenth century had created a lower class of servants than these—the tu'a, children of prisoners of war. These, together with the illegitimate children of the chief's father or grandfather (his cousins, in fact, for a chief bred servants for his descendants), were in the nature of serfs, leading, however, an easier life than such a designation would imply. The missionaries had perhaps read of Peter the Great and Wilberforce, and they too panted to win the grateful admiration of posterity. To page 223their heated fancy the people appeared as slaves, because they yielded service without fixed wages, and nothing would content them but a formal liberation. They did not stop to reflect that these "serfs" were fed and clothed by their chief, and that as members of his household they enjoyed privileges which men of their low rank could not hope for in other societies. If they were contented, they ought to be taught a noble discontent, and to pine for the Anglo-Saxon fetish, freedom. King George, as he hoped to be saved, must "liberate the serfs."

In 1862 he yielded, and signed a bran-new Constitution, drawn up by the missionaries, after a model devised for the King of Hawaii by a Mr St Julian. On the 4th of June 1862 there was a solemn meeting of the newly constituted Parliament. In the intervals of feasting the code was passed, and at the end of two months the legislators dispersed, leaving the land as bare as if a swarm of locusts had passed over it. The missionary historian waxes emotional as he tells of how they contrived to eat 150,000 large yams and 9000 hogs, besides other provisions, and of how they feasted daily at a board spread in European fashion, clad in decent black broadcloth and white chokers, to the glory of God and the triumph of missionary statecraft.

This code was considerably altered, —I reject the word "amended" advisedly, —and in 1875 a complete penal code, far too elaborate for the Tongans, yet infinitely better than the pretentious laws that afterwards repealed it, was passed by the native Parliament. From 1875 to 1888 Mr Baker tried his 'prentice hand at legislation. He altered the Constitution four times, and he drafted page 224and passed laws and ordinances whenever the fit took him, until the body of law had become so confused and conflicting that not even a Blackstone could have cut a path through its thorny labyrinths. Some of these laws were not even read to the Parliament that passed them: more than a few were enacted in English, and never translated into Tongan. Of these, some were printed in the 'Gazette' in English; others had not even this courtesy extended to them. The fatal ease of legislation bred in the Premier's mind a kind of disease—Legislatitis—until every idea that flitted through his facile imagination was crystallised into an ordinance, and the cause of every passing annoyance was made penal by enactment. Some one remarked that the wild duck were becoming scarce: an ordinance was passed to preserve them. A ship-of-war was disappointed in not finding coal: a statute converted Nukualofa into a coaling-station for foreign ships. Some urchins shouted "Sail ho!" on the beach near the Premier's office: to cry "Sail ho!" became forthwith a penal offence. Many of these enactments were extremely unpopular; but the wily Premier knew how to let the fury of the mob beat upon other heads than his, and generally caused his laws to be promulgated the day after he sailed for one of his frequent holidays to New Zealand. By the time he returned the people had become accustomed to them.

The confused state of the law had a remarkable effect upon the magistrates. The only written law within their reach had been so often altered and repealed that they had come to rely for their decisions not upon the written law, but upon the verbal directions of the Prime Minister.

I myself came at last to admit the advantages of this system, since, when I declined to give them advice upon cases sub judice, much of my time was occupied in appeasing consular representatives for illegalities practised by the courts upon the subjects of foreign Powers. If I had attempted to right the wrongs of Tongans suffered at the hands of their own magistrates, I should have had time for nothing else. The stumbling-block of the magistrates was the subtlety of their reasoning. Not long before my arrival three men were indicted for stealing a pig. It transpired in the evidence that two of them had agreed to keep watch while the third committed the theft. "This," said his worship, "was no ordinary theft; it was conspiracy!" He found that his law-book defined conspiracy as a synonym for talisone (treason), and the punishment provided for talisone was twenty years' penal servitude. These criminals were said to be languishing in prison when the general amnesty that followed Mr Baker's fall set them at liberty.

The pliancy of the police magistrates made them, in the hands of a Free Church Government, ready instruments of persecution. The courts took their bias from the attitude of the Executive. Every law that could be made to bear hardly upon the Wesleyans was strained to their discomfort. By an abuse of the land laws they were deprived of their holdings. In places where the minister was the only Wesleyan, he was charged with neglecting to keep the church lands weeded—each enclosure being treated as a separate cause of offence—and imprisoned in default of paying the enormous fines imposed upon him. For all these abuses Mr Baker has, with some injustice, been page 226made personally responsible. He, it is true, gave the bias to the courts, but, once started on their devastating way, the magistrates in their crass stupidity went to lengths he would have repudiated had he dared.

They were generally men of inferior calibre. Tongotea, the most notorious, was a handsome, bright-eyed man of about fifty, too young to be naturally tolerant, too old to be reformed. In the missionary reports on the Church troubles his name recurs as often as Mr Baker's in these pages. Execrated by the missionaries, he was not less hated by the traders for his habitual discourtesy and dislike to Europeans when on the bench. He was too hardened an offender to realise that the old order had changed, and we had at last to yield to the continued petitions for his dismissal.

At the beginning of 1888 the confusion in the laws had become such a scandal that Mr Baker determined to codify them. He lacked either the courage or the energy to submit his code to Parliament, and he therefore passed an Act empowering him to "revise" the code of laws and print them in Tongan and English—surely the widest power ever conferred upon an individual in the history of representative government. At the end of two years he had written the English version and about half the Tongan. I have it on the authority of the punditsnative and European—that the Tongan version was so full of errors as to be quite unintelligible; but it is possible that in his anxiety to retain his position as legal adviser to the magistrates, he intentionally made their path thorny and difficult.

Following the general policy of complicating the administrative machinery of the tiny State, the law estabished a vast number of unnecessary law courts. There were (1) the Judicial Committee of the Privy Council; (2) the Supreme Court; (3) the three District Courts; (4) the Police Courts. There were thus three appeals against a decision of the police court, and each appeal brought in fees. Even in criminal cases the unfortunate defendant was mulcted in fees which had to be worked off in the form of additions to his term of imprisonment.

Besides these courts there were—the Probate Court, the Divorce Court, the Admiralty Court, the Lands Court, and Courts-Martial, for none of which was any form of procedure laid down. In the case of disputed wills I found the practice to be for one claimant to seize the property, and for the other to prosecute him for larceny. In one case an unfortunate widow was convicted at the suit of her stepson of stealing her late husband's house in which she was living.

We condemned this code on its first hearing. No amount of amendment could make it work. The Tongan version was unintelligible; the English was ridiculous. Nothing less than a new code would meet the necessities of the case. I confess that at first I recoiled from the toil of drafting a code, translating it into Tongan, taking it through Parliament, and passing both volumes through page 229the press with compositors ignorant of the language they were setting up. The work must be done in odd hours, snatched from arduous administrative duties, in a period of less than six months. I succeeded, and a consideration of the difficulties against which I had to contend should soften the harsher criticisms that may be passed upon my code in the future. I worked upon the Indian Penal Code and the existing law of Tonga, using the plan of the former, and simplifying the latter as far as the constitution would let me. Working far into the night, I made my rough draft in English, and then with the help of a little shorthand writer, Pauli by name, I turned the draft into halting Tongan. This version went sheet by sheet to Tukuaho for conversion into elegant Tongan, and then came back to me for careful revision, lest the sense should have suffered in the process of decoration.

My principal difficulty lay in the Constitution. Though the king readily consented to the abrogation of the laws, he had an almost superstitious dread of tampering with the Constitution. This attitude had its advantages when we wanted to silence our opponents of the Radical party in the House. We had only to point to the Constitution, which "Tubou did not wish to alter," as a reason for reenacting an old statute, and the opposition collapsed; but we were well aware that the pretentious document beginning, "Seeing it appears to be the Will of God for man to be free," with its complicated machinery, designed to deceive strangers into the belief that Tonga was a State growing in importance and prosperity, was utterly unsuited to the Tongans. I had a strong objection to include in my code any matter couched in such wretched English page 230—English of which a schoolboy would be ashamed. I was spared this necessity by an inspiration. Had not Mr Baker himself declared that the Constitution was passed by a Tongan Legislature? It must therefore have been enacted in the native language, and the Tongan version was the original. I had only to translate it back into English, and my code would be cleansed of the phraseology that constitutes Mr Baker's principal claim to distinction.

Chief among the purely Tongan enactments of the new code were the land laws. In former times the soil of Tonga was vested in the Tui Tonga—the spiritual chief. The great nobles and small cultivators held their lands from him, and he had theoretically the right to dispossess them at will. When the office of Tui Tonga became vacant, and the title was absorbed by the present king, the people readily adopted the idea that all the land was vested in the Crown who had the power to grant holdings in return for taxes. But in 1888, Mr Baker, acting either under pressure from the chiefs, or spontaneously wishing to create a landed aristocracy, foolishly caused the king to grant large estates, which he called "inheritances," to a number of hereditary lords, who were to receive from the tenants a rental of $1 per annum for each holding of about eight acres. In dealing with the land I could not hope to rid myself of these superfluous landlords, but I could, without evoking dangerous opposition, deprive them of all power over their estates. I determined to make the Crown collect their rents and pay it over to them, while reserving to itself all rights of granting allotments and evicting tenants. Thus for all practical purposes the land still belonged to the State; for so long as the rents were page 231paid to the lords of the manor, the Government was virtually the landlord, and the king had voluntarily made over to the Treasury all rents due upon the lands not included within any "inheritance."

The chief obstacle that would confront every Government in Tonga would always be the difficulty in collecting the poll-tax. The people required some stronger incentive to pay than the fear of levy by distress. To meet this difficulty I adopted an idea, suggested to me by Mr Hanslip, that the tenure of land should be made dependent upon the regular payment of taxes. I converted the polltax into a land-tax, and gave to every taxpayer the right of occupying one allotment of a fixed area, inalienable in his family so long as he and his heirs continued to discharge their debts to the State, but liable to forfeiture if for three successive years they were guilty of neglect As each man arrived at manhood he was entitled to claim an allotment; and when the father of grown-up sons died his widow kept his allotment for her lifetime. At her death each of the sons might choose whether they would relinquish their own holdings in favour of their father's or not; but in no case could a man occupy more than one holding. Thus we combined the "Nationalisation of land" with the institution of lords of the manor. By changing the name of the tax I disposed of the necessity for claiming it from Europeans, since, being possessed of no land of their own, they could not reasonably be called upon to pay a "land-tax." The poll-tax had for many years been the chief grievance of the traders, for Europeans will pay an amount of indirect taxation which, if imposed in direct form, would cause a rebellion.

A more delicate, if less important, question was that of the marks of respect to be paid to nobles The Tongans still cling tenaciously to certain ancient forms of respect, such as the unturbaned head and the cinctured waist in the precincts of a village. To traverse Nukualofa without a girdle would be a greater solecism than to walk the length of Piccadilly hatless and in one's shirt-sleeves. But the more servile forms of homage to chiefs—squatting at the loadside or performing moemoe—were so inconvenient that by the king's order a quasi-military salute was generally substituted. In Polynesia, to raise yourself physically above another is to lay claim to a moral superiority over him, and the introduction of horses brought a new difficulty. To sit elevated above the world on the back of a horse tends to make Tongans cheeky, just as in Fiji the consciousness of having long hair makes the most respectful man insolent to his superiors. Many years before, a law had been enacted compelling commoners to dismount when they passed a member of the Upper House, or rode past his house. The Europeans laid the blame of this enactment at Mr Baker's door; but, if I may judge from the savage tenacity with which the nobles clung to this obnoxious section, it is more probable that the law was passed in spite of him. Puerile as the restriction appears, let it not be forgotten that a primitive people is always ruled by outward forms; and wherever in the Pacific, and indeed elsewhere, a tribe is found who show no respect to their chiefs, there will be a people less susceptible to government and good order. Such laws, of course, always tend towards the ridiculous. A noble died, and one Jone page 233Fifita, his distant cousin, was invested with the vacant title. He was taking the air on the day of his elevation, marching in the middle of the road with the noble mien suited to his new dignity, when seven horsemen, his boon companions in humbler days, met him, showing no disposition to get out of his way.

"Why do you not dismount?" he shouted.

For answer they snatched the empty sacks that lay across their horses' withers, and, covering their faces with them, deliberately rode him down, crying through the sacks, "Recognise us, and take us to court for insolence, Jone!" His lordship laid informations against several innocent persons who were able to prove an alibi, bringing down upon his head thereby the lampoons of half Tonga; for it is fair to say that the Tongans, who have been called the "Snobs of the Pacific," are as quick to recognise and ridicule the peculiar failings of the snob as even Thackeray could have wished.