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Concerning the Jury.
1. No man shall be tried for any great crime without a JURY. There shall always be a jury, excepting in minor offences, quarrels, &c.
2. When a man is tried for any crime, the judge shall select six men to be a jury, men of integrity shall he select; they shall mark or hear attentively the untwisting or investigation (of the matter.) When the evidence and examination are ended, the jury shall confer privately on the statements and evidence they have heard during the trial, the words of the accusers, and the words of the accused, with the evidence or testimony of the witnesses. If they unitedly think the person tried is really guilty, that he committed the crime (there having been the evidence of two credible witnesses,) and if they agree that he is guilty, one of their number shall address the judge, saying, This man is really guilty. Then shall the judge pronounce the sentence upon the criminal; the sentence written in the law shall he pronounce. But if the whole of the jury think the man accused is not guilty, then one of their number shall say, There is no guilt. If it be one of the king's family that is tried, then the jury shall be members of the reigning family, (or individuals also of equal rank :) if a landed proprietor or farmer that is tried, of landed proprietors or farmers, only, shall the jury be composed.
3. If during the trial the jury desire to put any question to the prisoner, or to the witnesses, it is right they should do so.
4. If the accused person observes any one on the jury, whom he knows to be a cruel or evil-minded man, or a man of whom his heart does not approve, it will be right for him to say to the judge, "Remove that man, let him not be on the jury." Then shall the judge seek another man in the place of one so removed, and shall proceed in the trial of the accused. If it be two or three on the jury, of whom the prisoner does not in his heart approve, they shall be removed; but in reference to four, or the whole jury, it will be improper. When two are removed, two others the judge must seek; when three, then must the judge seek to fill the place of those removed, and then judge the person accused.
Concerning the Messengers of the Magistrates.
Their duties. This is the duty of the messenger, (or peace-officer.) When a man is accused to a magistrate,
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
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
preserves society from any future injury by his means; and the fatal punishment inflicted, it is presumed, will deter others 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 habituated 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
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 we 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, we were always desirous that it should be granted. No opportunity for observing 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. individual was sentenced 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