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History of Government and Laws, Part 9

“The Development of the System of Government and Laws of Pitcairn Island From 1791 to 1971"
Printed in and taken from Laws of Pitcairn, Henderson, Ducie and Oeno Islands, Rev. Ed., 1971
By Donald McLoughlin, B.A., LL.B.

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The Island Court

That the 1904 Constitution continued for so long can largely be attributed to the general state of lassitude in relation to their affairs on the part of the Islanders themselves as well as their steadily increasing trade with passing vessels in the period after 1920 which took up more and more of their time and energy leaving less time for the petty quarrels in relation to their governmental affairs to which they appear to have been so prone towards the close of the 19th century and in the early years of the 20th century. One cannot, however, rule out the fact that this system of laws was more suited to the people themselves and therefore had a better chance of survival than the top heavy 1893 Constitution.

The application in practice of the 1904 Constitution and Laws was more than a little unusual particularly in relation to the enforcement of the laws and regulations and the conduct of proceedings in the Island Court. The latter had little relation, if any, to those of any Court of Justice known to more sophisticated societies. The system does, however, appear to have worked on the whole as a form of practical, although at times exceedingly rough justice.

The court records for the year 1904 to 1907 were very well kept by a Welshman named Petch who served as the first Government Secretary over those years. Thereafter the records deteriorated somewhat in the hands of his successors but, having regard to their educational standards are surprisingly good and constitute perhaps the best overall picture of contemporary life on Pitcairn Island, in that they portray the people as they really were and not as they preferred to represent themselves to outside officialdom. They are also indicative of a general falling off in the standard of court procedures which at times, appear to have been virtually ignored or supplanted by the whims of individual Chief Magistrates(50). Many of the matters dealt with by the Court would not be entertained by a court in any other jurisdiction as coming within the category of purely domestic upheavals or too petty to justify court proceedings.

In the period from June 1904 to June 1908, the first four years under the 1904 Constitution, a total of 43 cases were heard by the Island Court. Of these 7 were inquiries conducted by the Island Magistrate into various matters outside the jurisdiction of the Court, with the result that no findings were recorded and one gathers, were held solely for the purpose of enabling a public airing of the matters under inquiry. One was a civil case concerning the ownership of land. The remaining 35 were criminal cases (an average of less than 9 of such cases a year). Of these 35 cases 3 involved alleged breaches of Law 4, which made it an offence to commit adultery or for a married person to “associate with a person of the opposite sex in secluded places for the purpose of acting in a manner not consistent with his or her marriage vows, or for the purpose of committing carnal offences.“ Two cases involved breaches of Law 5, which made it an offence for unmarried persons of either sex to congregate together in such a manner as to cause scandal or to endanger the morals of the younger members of the community. Seven cases involved theft, the articles stolen being a newspaper, coconuts, chickens, a goat and pineapples. Five cases involved breaches of the Internal Committee's Regulations relating to gathering coconuts and cutting down a “doo-doo“ tree. The other 7 cases involved minor breaches of the peace and abusive language. Of the 35 criminal cases, findings of guilty were returned in 19 cases involving a total of 38 persons, however, the finding in 1 case was reversed on appeal to Mr. Simons the Deputy Commissioner of the Western Pacific at Papeete. The penalties imposed ranged from a caution to a fine of five pounds, with two cases in which corporal punishment, in the form of 3 strokes with a cane and 6 strokes with a cane were inflicted.

During the succeeding period of just under 8 years, namely from July 1908 to February 1916, a total of 128 criminal cases were heard by the Court and findings of guilt, involving a total of 163 persons, were returned in 84 of those cases. The penalties imposed ranged from a caution to one month's imprisonment, with fines ranging from 2/6 to ten pounds.

It is extremely difficult to assess the composition of these cased with any exactitude due to the fact that the laws and regulations under which the offenders were purported to be convicted were not always specified and in a number of cases, while they were specified, in fact bore little or no relation to the evidence adduced. In addition, as commented earlier, the tendency soon developed of dealing with a complaint that an unmarried woman was with child as coming within the scope of Law 5 rather than Law 2 with the quaint result that the complainant instead of recovering maintenance for her child ended up by herself being fined the sum of five pounds. A number of offences were also charged which had no foundation in the laws at all. For instance one person was charged with causing trouble by clipping a girl's hair at night. The Court duly found the accused not guilty but left the case open “for any open light.“ In another case a girl was charged with the unknown offence of “Being in a family way“ and although the Court found her not guilty, as indeed it had no other alternative, it added the rider to its finding of “Suspicious Case,“ and, in another case, an unfortunate charged with the so-called offence of “attempted suicide by shooting himself“ was duly found guilty of it, the penalty imposed being that he was prohibited from using firearms. In another case a child was charged with failing to return a book to the owner and ordered to return the book. In yet another a person was charged with committing an unnatural offence with a pig but the proceedings closed after a desultory attempt at a trial without any attempt by the Court to reach any conclusions. In another case a man was duly acquitted of a charge of giving a girl the claps. None of these “offences“ had any authority in the laws and were apparently charged without reference to the laws themselves at all. Apart from these and other similar cases, however, it has been possible to extract with some degree of accuracy the fact that 30 of the cases involved allegations of theft, 22 involved alleged breaches of Laws 4 or 5 or a combination of these two laws, 5 involved allegations of breaches of Law 2 (paternity of illegitimate child) 16 involved allegations of breaches of the peace and 32 involved allegations of breaches of the Internal Committee's Regulations including 1 case in which 10 persons were found guilty of using unlicenced firearms (the first revenue case on Pitcairn Island.

In the light of the information disclosed by the figures in relation to these cases one can appreciate the apparent validity of the contemporary comments by Simons' successor that “the Pitcairn people are going from bad to worse, in health, morals and general civilization“ and the report attributed to Mr. Petch, the First Government Secretary, that “crime is of frequent occurrence; of law there is almost none, every man does practically as he sees fit while the idea of restraint in any form, is abhorrent to them.“(51)

On a detailed inspection of the case records, however, I feel that the actualities were not as black as they were painted. Although the population of the Island over this period was only approximately 140 persons(52) and the total number of people convicted over the period of 8 years was 163, an average of just over 20 persons convicted per year, the majority of the offences in respect of which those convictions were recorded were such that they would not be regarded as offences in a more sophisticated community on the grounds of triviality or constituting no offence in law. Of the 30 cases of alleged stealing which came before the Court most of them related to the taking of coconuts and fruit by children and I can find no more than a dozen cases in which a prosecution would conceivably have been brought had they occurred in Fiji for instance. The majority of the cases were in fact the outcome of petty quarrels, domestic disputes and childish pranks and of no significance whatsoever. Even the cases involving moral lapses not normally the subject of criminal proceedings in other jurisdictions do not, on inspection, justify any serious conclusions other than that the morals of the island community left a lot to be desired and that the islanders had drifted a long way from the highly moral and innocent people of the pre-Norfolk Island emigration in 1856.

In the next period in respect of which detailed court records are available for inspection, namely from the 20th of January, 1920, to the 10th of December, 1934, a total of 167 cases came before the Court and findings of guilt were returned in 141 of those cases involving a total of 247 persons, making an average of 17 persons convicted per year. The composition of these cases was virtually identical with those for the period from 1908 to 1916, reflecting a continuation of a similar state of affairs to that which existed in that period. A detailed examination of the case records, however, does indicate an even lower standard of court procedures than that which prevailed in the former period.

In the early years the court proceedings were reasonably well conducted with only occasional departures from recognized court procedures. In the succeeding years, however, particularly after the removal of Mr. Petch from the office of Government Secretary, as an apparent direct result of conflicts between him and the then Chief Magistrate as well as with other islanders, the procedures became haphazard in the extreme. Whilst in the earlier years it was not uncommon for court proceedings to take the form of a general inquiry, the Court did at least refrain from returning any finding against any particular individuals in such cases. In the succeeding years, however, the practice of holding such inquiries became more general and usually resulted in a finding of guilt against any persons who as the result of such inquiry the Court considered guilty of an offence. This applied even in cases where a formal charge was laid against a particular individual or individuals. The result was that, in several cases, although for instance two persons were charged with an offence it was quite possible for a complainant or a witness called to give evidence or, in two cases for one of the assessors hearing the case, to be also found guilty of some offence and punished.

In fact it reached a stage where to have any part in a case before the Court, whether as a complainant, witness, member of the Court, or accused, was a somewhat hazardous experience as, regardless of the role in which a person attended the Court, it was not beyond the bounds of possibility for him to find himself convicted of some offence or another. A classic example of this is to be found in a case heard in 1925 in which a complaint was made by a third party that a young man had attempted to choke his girl friend in the course of a quarrel. The informant having laid his complaint before the Court, the accused was asked to explain the nature of the trouble. He promptly accused others of causing trouble with him and denied the allegation of attempting to choke his girl friend. She was then called and asked if the accused had been fighting with her. After hearing her account of the matter the Chief Justice then called on each person whose name emerged from the statements given to the Court, either as having knowledge of the affair or having been involved in the dispute. In the final result the Chief Magistrate, without obtaining the opinion of the assessors as regards each person, proceeded to impose a fine of ten shillings each on the original accused, the assaulted girl friend, one of the witnesses and one of the assessors who, although continuing to sit in that capacity, also gave evidence in the case. In addition a bystander was arbitrarily fined one pound for insulting the Court and the Magistrate, without being informed of any of the details of the alleged insult or being given any opportunity of defending himself(53).

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(50) This I consider attributable largely to the virtual complete lack of understanding as to how the laws should have been interpreted and applied.

(51) Maude I, p. 96. Petch does not appear to have been an unbiased witness as his removal from the office of Government Secretary coincided with a long criminal case against him in which he was found guilty and from the records of other cases it is apparent that considerable antipathy had developed between him and the islanders. He Was previously acquitted of another alleged offence against the laws.

(52) Neill, p. 5, the relevant figures over the years were 1901–126 persons; 1914–140 persons; 1920–169 persons; 1932–200 persons; and 1936–209 persons.

(53) In another case in which a man was charged with threatening his wife, a similar type of general inquiry was conducted with the result that both the accused husband and his wife were found guilty of an unspecified offence which one can only assume as being that of disturbing the peace, as also were three other persons named by one or other of the witnesses during the course of the hearing. Each was found guilty by the assessors and duly fined £2 by the Chief Magistrate. In addition another person called upon the Magistrate to act as an assessor in the case was fined £1 for contempt of court although continuing to sit as an assessor and without either having his alleged contempt explained to him or being given an opportunity to defend himself.

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