7
As Tonga gradually emerged from a fragmented society into a centralised political system it had to acquire legal machinery adequate to its changing requirements. The Tongan leaders had no need to consult the missionaries for advice on matters relating to pedigree or the succession to the various titles, but when it came to questions of law in a Christian society, they were quite aware of their own ignorance of jurisprudence and felt tremendously dependent upon the missionaries for advice. The missionaries in Tonga were well aware of this need and they regarded it as an integral part of their work. This has been well expressed by the Reverend John Williams (1839:119), in reference to the work of the L.M.S. missionaries in the South Seas:
The important implication of this statement is that the very nature of missionary endeavours will inevitably bring about an involvement in the politics of the society in which the missionary works. This situation is brought about by the nature of man himself, as Dr Philip (1828, I:vii), an early mission director, vividly pointed out. ‘Man’, he wrote, ‘in his individual and collective capacity, is so constituted, that no improvement can take place in any part of one or the other without diffusing its influence over the whole man, and over the whole frame of society.’
The traditional Tongan society with its social, economic and political institutions had been closely integrated with the traditional religious system. When the influential chiefs and their people accepted Christianity, the equilibrium of the old social system was undermined and changes and adjustments became inevitable. A deliberate effort was made to reconstruct Tongan society upon the new Christian beliefs and values. It was to be based only upon those old customs and traditions which the missionaries and their chiefly converts thought suitable for the new design, and it was to incorporate many new and imported elements.
The immense task of social reconstruction proved to be too formidable for the chiefly builders, who were often at a loss as to the nature of the new design. During the first two or three decades, they were forced to rely heavily upon the advice of the missionaries. These converted chiefs were already the political leaders of their various kā inga, and their continued reliance on the missionaries ensured that the missionaries had almost as much to do with political matters as they had with religious guidance.
There was a precedent for this, in the close alliance between the priests and chiefs in pre-missionary Tongan society. It was therefore not surprising to find the converted chiefs, who wished to pursue their politics according to Christian principles, as early as 1827, consulting the missionaries on political matters (N. Turner, Journal, 29 Nov. 1827, WMMS 1818-36, item A2833).
The result was a fusion of church and state matters. Residences for the missionaries, school buildings and churches were built and maintained by the people, often not on their own initiative, but rather ‘in obedience to the command ( fekau) of the King. Their conversion was a “mea Fakafetogia”—(a matter imposed upon them by the government)’ (Whewell to Eggleston, 4 Aug. 1856, WMMSA 1852-79; item 170). Peter Turner (Journal, 24 May 1841) wrote, ‘I must say that the people have done much for us since we came. They have thatched our house—and the house of Bro’ Kevern. And they are about to put up a house for Bro’ Wilson and a house for an academy.’
The fusion of church and state matters caused some confusion as to the leadership of the church. In 1834 John Thomas reported of King Josiah Aleamotu’a that, ‘In the course of two years I have spent with him he has interfered with me on several occasions, he has got an idea that it is his duty to govern in the Church of Christ, his place to appoint teachers or displace them—his place to take into the Society and put out etc’ (Thomas, Diary and letter book: 153).
The consummation of this alliance between church and state occurs in the remarkable career of King George. In a letter to the Committee in London, the Reverend Charles Tucker wrote of him:
While the progress of the church and state alliance was hindered on Tongatapu by bitter opposition from a strong and influential band of heathen chiefs, it sailed before the wind in Ha’apai and Vava’u where Tāufa’āhau’s rule was uncontested. King George was convinced that, in general, the ways of the kau papā langi (Europeans) were superior to those of the Tongans, for he was quick to see that they possessed superior wealth, knowledge and, above all, power. He was responsive to innovations and was prepared to learn all he could from Europeans and put what he had learned into practice, whether it was in the field of culture, economics, religion or politics.
Unlike Hawaii, Fiji, Samoa and many other Pacific islands, which had quite large numbers of white settlers, Tonga, in the first half of the nineteenth century, had only a small number of Europeans and, apart from the missionaries, they were mostly escaped convicts and runaway sailors. They did not own land or establish businesses, but lived with various chiefs who had befriended them (Dillon 1829, 11:260), so they could not be classed as settlers. The absence of a settler class to whom to turn made the chiefs, especially Tāāufa’āhau in the early days of his political career, rely almost exclusively upon the Wesleyan missionaries for advice. In 1831 Peter Turner (Journal, 26 Dec. 1831) recorded that, ‘The king came up this morning and wished to have some laws for the regulation of his servants...’.
The missionaries, for their part, were not only willing to give their advice, but they expected to be consulted on almost every important matter, so much so that when their advice was not sought by the chiefs they were deeply disappointed. Thomas noted in his journal, in February 1831, that in things of small importance he had been consulted by the chief, Tāufa’āhau, but it was a long time since Tāufa’āāhau had taken much notice of him. Later, in the same year, Thomas was furious when Tāufa’āhau decided of his own accord to accept an invitation from Fīnau ‘Ulukālala of Vava’u, who was then heathen, to a canoe race. He referred to Tāufa’āhau as ‘headstrong’, because he had not consulted him on the matter, ‘but sent word to ‘Ulukālala that at such a time he could come’ (Thomas, Journal, 13 April 1831).
It is quite obvious that Tāufa’āhau’s first venture into legislation was strongly influenced by mission teaching. He had great admiration for the prominent figures of the Bible and wanted to follow their examples. He told one of the missionaries, in the course of a conversation on political matters, that, ‘he wanted to imitate Abraham and those of whom the scriptures speak’ (P. Turner, Journal, 26 Dec. 1831).
Although there is no documentary evidence, it seems fairly certain that the missionaries told King George about the system of government in their homeland and that the King of England and his Parliament ruled the people according to a written code of law. It would also be surprising if the King had not heard from the missionaries and visiting sea captains about the laws and port regulations already existing in other Pacific islands such as Hawaii and Tahiti.
It is not possible to document the degree of Tāufa’āhau’s familiarity with the British system of law, but it was under his rule that the first written law in Tonga—the Vava’u Code (for the full Code see Appendix A)—was officially promulgated in a fono at Pouono, a mala’e at Neiafu, the capital of Vava’u, on 20 November 1839. According to Thomas (Journal, 20 Nov. 1839), these laws had, with a few exceptions, been acted upon in Vava’u for more than twelve months before the Code’s official promulgation. They were printed on 16 May 1838.
Authorities have pointed out that this simple but remarkable Code was largely Tāufa’āhau’s own composition. However, the influence of the missionaries is quite apparent in the Code itself, which has a long preamble written in Biblical language.
Perhaps the most striking feature of the Code is the bold step it made towards limiting the power of the chiefs. This was undoubtedly due, to a large extent, to the advice of the missionaries.1 They believed that all men were equal in the sight of God, and they had long been disturbed by the arbitrary power of the chiefs and the inhuman way they often treated the commoners. The attitudes of the missionaries on the question may be illustrated by the following instances. Tāufa’āhau decided to bury without any ceremony an old woman who died at Lifuka, Ha’apai, where John Thomas was working at the time. ‘I told him [Tāufa’āhau]’, wrote the missionary after hearing what happened, ‘I wished to do towards a poor old woman as I would towards the rich, and that God was no respecter of persons’ (Thomas, Journal, 26 Mar. 1831). Again, a charge was brought against a chief of one of the islands of Ha’apai, in a Quarterly Meeting, for appropriating to himself yams belonging to other people, and forcing them to cultivate his land for him without receiving any wages, and also tabooing for the King certain pigs belonging to the people. The missionaries’ reaction against this action was firm and decisive. One of them reported:
This attitude of the missionaries is reflected in Section 4 of the Code which reads:
The setting up of a court of four magistrates in Vava’u to sit once a month and to have jurisdiction over chiefs and commoners alike was deliberately designed to put an end to the use of the despotic club of the chiefs as the supreme arbiter in any serious dispute or quarrel, which had hitherto been the custom of the land. Murder and theft in former days had been regarded with indifference unless the person murdered was equal to or of higher rank than the murderer or unless the property stolen was a consecrated article. The prohibition of these crimes again reflects the attitude of the missionaries towards the importance of the individual and the value of personal property. Part of Section 1 states that it is the King’s prerogative to command the death sentence and if anyone attempts to injure or kill another he shall be brought before a judge for sentence.
In the words of one of the missionaries, ‘neither chiefs nor peoples were hereafter to take the law into their own hands. The rights of the parties in criminal or disputed matters, were to be decided and maintained by the appointed and responsible courts of law, after a fair and open trial’ (West 1865:164).
The prohibition of adultery and fornication sprang from the emphasis which the missionaries placed on the sacredness of sex—‘a belief that man and women could only excusably share the joys of love after a ceremony in which with the sanction of church and state, they pledged themselves to one another in life-long fidelity’ (Collocott, n.d.:199). To do otherwise was, in the eyes of the missionaries, a serious sin. One of them reported in his journal, ‘In the course of the day, a case was brought before him (Leonaitasi—the King’s representative)—of fornication ... the couple were publicly flogged. May these chastisements be sanctified to the good of all’ (Rabone, Journal, 22 Sept. 1836).
Fidelity in marriage and the sanctity of family life were always very important features in the teaching of the missionaries. After visiting a young man who had been assaulted by the husband of his mistress, Thomas (Journal, 20 April 1828) wrote, ‘If each man had his own wife at Tonga many evils would be avoided and many sins destroyed’. In order to safeguard marriage Section 8 decreed that a deserted wife might claim her husband’s plantations and property while a woman who deserted her husband should be brought back to him; if she refused to remain she could not lawfully remarry during her husband’s lifetime.
It should be pointed out that marriages in Tonga were frequently arranged, by one’s parents or by a chief, without reference to the wishes of the couple who were betrothed. A marriage was entered simply by the woman cohabiting with a man under his roof and protection. She was expected to remain with her husband until such time as he might choose to divorce her. Mariner estimated that about two-thirds of the married women in Tonga had been divorced and married again several times. The missionaries condemned this custom, not only because they regarded it as immoral and sinful, but also because it had led to several murders, when men of lower rank had married the former wives of superior chiefs.
The great emphasis which was placed on the holiness of the Sabbath and of church services by the missionaries is clearly and unequivocally reflected in Section 2, which exhorts people to abstain from work on the Sabbath day and to attend places of worship, and which makes it an offence for anyone to disturb the service or insult the minister of the congregation.
Another distinct feature of the Code is the importance given to industrious habits and the cultivation of the land. Many missionaries complained bitterly because the Tongans appeared to them incredibly indolent. In a letter to the General Secretary of the mission, the Reverend John Whewell asserted that the Tongans were naturally indolent. ‘Only the old and married people’, he wrote, ‘profess to work. The young people spend their time up to manhood in supreme indolence or in what is worse—voyaging from group to group’ (Whewell to Eggleston, 4 Aug. 1856, WMMSA 1852-79, item 170). A few, on the other hand, argued that the people were not entirely an idle race. Their aversion to work was mainly due to the abundance of natural resources from which their simple wants were supplied. Hence, there was no strong incentive for them to work, but when it appeared necessary they were capable of intensive labour to supply their needs. To the missionaries, however, all idleness was a breeding ground for sin and crime, and they determined to put an end to it. A reflection of this sentiment may be seen in Section 3 which exhorts the chiefs to show love to the people under them but to require them to be industrious and perform their duties to the government and to the chiefs. It also states that the chief should apportion land to the people, sufficient to enable them to procure the necessities of life and support a family. And in order to safeguard the gardens, provision was made to that effect in Section 5 which prohibited anyone to allow his pigs to run loose and damage other people’s gardens.
Sale of rum and other spirits to the Tongans was a cause of constant worry to the missionaries. One of the later missionaries wrote to the General Secretary of the mission on the subject. ‘What will be said when a Tonga man drinks 3 bottles of strong spirit in one day and laughs at it and says he did not take enough to make himself drunk, and yet this is the case. Will not the curse of the Holy one be upon those Europeans who thus bring the cup of death to this (sic) ... islanders’ (Baker to Eggleston, 18 Dec. 1861, Baker 1860-79). Some years later, when one of King George’s sons died, the missionaries did not hesitate to attribute his death to excessive drinking. The prohibition of the sale of hard liquor by the new laws and its being punishable by ‘a fine to the King of Twenty Five Dollars’2 and a liability ‘to have the spirits taken from him’, was obviously a reflection of the missionaries’ sentiment.
The missionaries’ attitude to heathen customs and traditions (especially those which had any religious connection) was one of uncompromising intolerance. They identified Christianity with ‘civilisation’ and the latter with the habits and customs of an English town or village, and anything contrary to them, such as Tongan customs and traditions, was uncivilised or unchristian, and therefore ought to be destroyed. Bishop Blanc (1934:38) asserts that ‘It seemed to be the aim and object of the former [Wesleyan missionaries] to instill into the minds of the people the idea that all pleasures were sinful. To this end they prohibited, through Taufaahau, all the early dances and songs and many of the ancient customs; ... Through the suppression of the ancient songs, much valuable information regarding the early history of Tonga has been for ever lost.’ Section 8 of the new law, consistent with the teaching of the missionaries, specifically mentions traditional customs such as tattooing, circumcision and ‘any other idolatrous ceremonies’ which are punishable by fines.
Except for liquor retailing and drunkenness, for inducing seamen to leave their ships with the intention of staying in Tonga, and for allowing pigs to run loose and damage gardens, the laws did not stipulate any fixed punishments. Consequently, punishments for various crimes were left to the discernment of the magistrates.
Desiring to inflict penalties in accordance with Christian principles, King George and his magistrates naturally consulted the missionaries on the matter:
The consultation of the missionaries on this matter gave rise to resentment, and mission houses at Neiafu were burnt down and Peter Turner (Journal, 18 Aug. 1845) told King George that the missionaries no longer wished to be consulted on the subject of punishment, since ‘the most abandoned of our people might think that we influenced the judges to inflict certain punishments upon them’.
Thomas recorded in his journal on 20 November 1839 that the Vava’u Code would be put in force at Ha’apai too, which group was also under Tāufa’āhau’s rule from 1820. It appears, however, that these laws had been acted upon in Ha’apai long before this date, for Dr Lyth (Journal, 12 Dec. 1838), who was working at Ha’apai at the time, reported in December 1838 that ‘The King [Tāufa’āhau] assembled the people from all the islands [of Ha’apai] and gave them new laws. The meeting commenced by daylight and was ended in about two hours.’
When Tāufa’āhau became Tu’i Kanokupolu on 4 December 1845, it appeared that the same Code—or at least the principles of the same Code—was applied to Tongatapu as well, and to the rest of Tonga, until the new Code was promulgated in 1850.
Knowing that the King would hold a fono with his people at Nuku’alofa on the morning of 9 January 1846, Thomas wrote to the King the night before, hoping it would assist him in preparing for his meeting with his people in the morning. On the day of the fono, Thomas (Journal, 9 Jan. 1846) recorded:
Being conscious of the rapid advance of the general sophistication of his people, King George felt that there was a need for another more comprehensive code of laws with which to govern his country more efficiently. He frequently and earnestly consulted the missionaries on the subject and at the end ‘applied for their official help in framing them’ (West 1865:212).
The matter was brought up in the annual meeting of the missionaries in July 1847, at Nuku’alofa. Lawry, the then General Secretary of the Wesleyan Mission in the South Seas, who visited Tonga and Fiji that year, presided over the meeting. After a careful discussion of the whole question, the missionaries suggested that the King should seek the advice and opinion of ‘the highest English legal authority in New Zealand’ on the matter. The King then wrote a letter on the subject and Lawry conveyed it to the appropriate quarter. In due course, the reply came advising the King that the best he could do was to adopt a code of laws similar to the Society Islands laws published by William Ellis (1831: 176-92), making any modification necessary to suit the local situation.
The missionaries immediately prepared a translation of this Code of Laws which had been drawn up for Huahine in 1823, and placed it in the hands of the King and his chiefs for their consideration. The King and his chiefs held several meetings to discuss the laws. In these meetings they made many alterations and amendments as well as additions to the laws, and a rough draft was drawn up.
In June 1850, the King and some of his chiefs attended the annual meeting of the missionaries which was held at Neiafu, Vava’u, to seek the advice and opinion of the missionaries on the rough draft they submitted to the meeting. One missionary wrote:
One of the things advocated by the missionaries was some standard of appeal, so that the people would not be subject to the whim or caprice of any ‘upstart native Judge, who may be as unfit for his office as a want of common sense can make him, but who may have got into office by mere favour or rank’. However, the missionaries found that the King’s mind was not fully made up on the question, and he wanted to postpone it till he consulted with the chiefs of Tongatapu.
Accordingly the King and some of his chiefs from the northern groups sailed for Tongatapu in the mission vessel, John Wesley, to meet the chiefs there. Thus, in the first week of July 1850, King George held his court at Nuku’alofa during which ‘the Code was finally completed and made law by public and regal authority’ (West 1865:213).
In effect, the Code of 1850 (see Appendix B) turned out to be a revision and enlargement of the Vava’u Code of 1839 with only a few additional provisions from the Huahine Code. The missionaries were a little disappointed with the outcome, since several things they would have liked to have seen included were absent; at the same time, they found in it much that was contrary to their views. The sentiment of the missionaries was expressed by Lawry who again visited Tonga at this time. On 5 July 1850, he recorded in his journal:
In spite of their disappointment, the missionaries believed that, on the whole, the Code of 1850—with all its defects—was much in advance of the 1839 Code, and that it would, ‘no doubt, prepare the way for something better still’ (West 1865:213).
As in the 1839 Code, the influence of the missionaries was apparent. Emphasis on industrious habits was again a feature. Article XXXVI declared that men must work and persevere in labouring to support themselves and their families and to contribute to the cause of God and the Chief of the land. Anyone who refused to work was to be denied food or other assistance.
Quoting the above article as evidence, Thomson (1894:221) claimed that the missionaries designed the Code mainly for their own profit. ‘Their hand’, he wrote, ‘is detected in the following excellent provision, designed to check the growing indolence of the people, and turn their labour into a channel of profit to the reverend legislators.’
On the other hand, the missionaries felt that they were only doing their duty in trying to inculcate in the minds of the Tongans that it was ‘the duty incumbent upon professed converts to the Christian faith, and especially upon all members of the church, of personally contributing to the support and extension of missionary agencies’ (West, 1865:141).
In the Law referring to Women (Article XXXVII) the duties of women included labouring to clothe their husbands and children. It was forbidden for any women to remain indolent, and they were not to be assisted or fed since ‘Our assisting the indolent is supporting that which is an evil’.3
Sanctity of marriage was again an important feature of the 1850 Code in which Article VII declared marriage to be a covenant which could not be broken during the lifetime of either spouse.
The missionaries made no compromise regarding polygamy. Giving up all but one wife was made one of the conditions of acceptance into membership of the Church. ‘I told the people’, wrote Thomas (Journal, 30 Mar. 1831), ‘of many of their sins particularly of the sin of Polegemy. I exhorted them to put away their wives and keep one only and the Lord will then receive them into his family’. This attitude is reflected in Article VII: 3 which made it unlawful for anyone to have more than one spouse.
Dancing was a popular entertainment among Tongans. It was mainly held at night time, and usually went on until the small hours of the morning. The excitement naturally whetted the sexual appetite, and couples would melt into the darkness. This was, of course, horrifying to the eyes of the missionaries who, like all Evangelicals, viewed dancing with disgust, as a great enticement to sin. Another reason for the missionaries’ disapproval of dancing was the fact that it was often performed in association with the old religious ceremonies. Their views were expressed in Clause XI which forbade dancing and heathen customs with a penalty of one month’s hard labour for the first offence and two months for further offences.
The puritanical views on modesty, which the Wesleyan missionaries held, made it imperative for adequate and proper clothing to be worn in public by the new converts. ‘To dress otherwise, leaving the body healthy and glad in the sunshine and fresh air was uncivilised, or worse’ (Collocott, n.d. (a): 199). Blanc (1934: 43) has claimed that the European style of clothing was detrimental to the health of the Tongans:
The missionaries’ view on this matter can be seen in Article XLI which stated that everyone had to be clothed.
The missionaries, however, cannot be blamed completely for clothing the people. The Tongans themselves were eager to imitate, though imperfectly, the way the Europeans dressed, for they, particularly the leading chiefs, believed that it was part of progress.
The General Secretary of the Wesleyan Mission was very disappointed that the promulgation of the 1850 Code had not been brought about earlier, since he could see no reason for the long delay, and he implied that the missionaries, being the advisers, were to be blamed for it. However, Peter Turner explained that the Tongans were very jealous of any foreign interference, and sometimes even questioned the motives of their missionaries, whether they might not wish to bring them under some foreign government. This was the reason why they had not done more to promote a code of laws like those of the Society Islands and Hawaii. He wrote in June 1850, a month before the promulgation of the second Code of Laws in Tonga, ‘We have left them to feel their own wants, and we hope now they will make some move towards improvement in civilization and political economy’ ( W-M Mag., 1851:511-12).
Among other reasons, the two Codes are important for the fact that they formed the basis of the future constitution of Tonga. They took two very important steps. Firstly, they limited the power of the chiefs, and thereby raised, to some extent, the social, economic, religious as well as political status of the commoners. Secondly, by limiting the power of the chiefs they consolidated the new and powerful position of the hau.
The Law referring to the King (1850 Code) proclaimed that the King was the root of all government and that it was for him to appoint those who should govern. He had power to command the assembly of his chiefs to consult with him on whatever he might wish to have done. He was the Chief Judge and the ultimate judicial authority in disputes. Finally, he had powers to impose whatever taxes seemed proper.
The analysis of the two Codes and the evidence available indicate that although their influence was quite apparent in the Codes, the missionaries could not, and did not, dictate the laws to Tāufa’āhau and his chiefs. That they did not do so can be attributed to the strong personality of Tāufa’āhau, and the chiefs’ suspicion of any foreign interference in the affairs of their country. Having accepted Christianity, Tāufa’āhau and his chiefs sought the advice of the missionaries, that they might govern the country in accordance with Christian or ‘civilised’ principles. The missionaries offered their advice, but it was left to the King and his chiefs to decide what laws were most suitable for their people. It is quite obvious that the decisions the King and his chiefs had made were made by means of the new ‘light’—dim though it might have been—which they had now received through the teaching of the missionaries. The eventual success of these laws can be attributed to the fact that it was the Tongan leaders who decided the final content of the codes of laws they wanted, and it was to the credit of the missionaries that they promoted and encouraged such a policy. This was in direct contrast to the situation in Tahiti where the L.M.S. missionaries, on their own initiative, drew up a code of laws and then invited the chiefs to ratify it.