Reproduced from " THE SOLICITORS' JOURNAL AND WEEKLY REPORTER " of October 18, 1924 (by courtesy of the Editor)


THE origins of law and custom are usually the study of the antiquarian, but it is possible to witness the emergence of them as a contemporary process. This opportunity is afforded to us to day within the confines of the British Empire, for, in the Islands of Pitcairn, in the South Pacific, and Tristan da Cunha, in the South Atlantic, may be seen developments for the regulation of society which are a purely native and spontaneous outgrowth.

No regular communications exist with either of these islands, and, to render their isolation and detachment from the world the greater, both have rock bound coasts without harbours or natural facilities for landing. Consequently, the communities settled on them are subject to a minimum of influence and interference from outside, and the present form and character which each has assumed may be regarded as the peculiar product of its immediate environment, and as little as possible attributable to introductions from without.

As is well known, the settlement on Pitcairn took its origin in the mutiny of the Bounty towards the end of the eighteenth century. The mutineers, with wives brought from Tahiti, sought refuge there and their whereabouts were not discovered for nearly thirty years, and when they were found, a new generation had appeared. All but one of the mutineers were dead, and the inhabitants, despite their unfavourable origin, had become a God fearing, happy and industrious people, and this they have since remained.

Tristan da Cunha had no such unfavourable beginnings. Though the annexation was due to the American War of 1812 15, the settlement there owed its origin to the imprisonment of Napoleon on St. Helena. William Glass, the founder of it, was one of a company of soldiers who were sent to Tristan to prevent its being used as a jumping ground for contriving the rescue of the Emperor, and Glass remained with his wife and children when the company was withdrawn, and the settlement has grown from that. Both islands have a population seldom numbering many more than a hundred, and, in the case of the one as of the other, there is no crime or immorality amongst them, and the inhabitants of Tristan da Cunha, like those of Pitcairn, have the reputation of being a brave, contented and upright people.

The thing which strikes the inquirer at the outset is the few laws which meet the needs of a community of the kind. We are concerned here more especially with the island of Tristan da Cunha, but, in the case of Pitcairn, it is interesting to note that, so fully aware were the islanders of the undesirability of framing a code of laws, that it was amongst their early decisions to pass no laws until they were actually needed. Sir Matthew Hale, in his day, commented strongly on the u n desirability of new laws except under pressing circumstances, and what justification is to be found in the primary instincts of these islanders for our own delays in legislation and the postponement of it until thought is ripe and the demand unanswerable !

In Pitcairn, the rudiments of administrative control appeared at an early date. A magistrate was elected from amongst the inhabitants, and it became his duty to convene public meetings on all complaints arising, and to see all public works executed. But on Tristan da Cunha it has been otherwise. In 1876 an attempt was made to introduce a similar system there. One of the visiting warships made a report on the subject, and in this report it was suggested that the Commander of the Cape Station should be constituted ex officio Governor of the island with a deputy appointed by the islanders from amongst themselves, and this was accepted by the Government in principle and a simple constitution was actually drafted by the Law Officers of the Crown. It was not proceeded with, however, because the islanders took alarm at the prospect and their preferences were respected.

The system which Tristan da Cunha employs has not been reduced to writing, and in this respect it is unlike that of Pitcairn. The inhabitants of Pitcairn soon came to discover that no system of government could be administered if ignorance of the laws could be pleaded as an excuse for disobedience, and so, with the introduction of an administration, the more important of its customs were written down, and they became its laws, and it was made thenceforth the duty of the magistrate to keep them entered and periodically to read them publicly. Seeing that the British Constitution is rooted in both systems, the unwritten law to which we are accustomed to conform and the written law which we are compelled to obey, the study of Tristan da Cunha and Pitcairn in conjunction are of interest as showing the initial steps by which such a development is reached.

The community of Tristan da Cunha may be defined as a simple republic bound by its customs enforced by common consent. It has been described as exactly fitting Herbert Spencer's definition of a simple society which forms a single working whole unsubjected to any other, and of which the parts co operate with or without (in this case without) any regulating centre. It exemplifies a civilized community in its most elementary form, in which the father exercises rule over his own family, but can impose his will on no one but his wife and children. But though the father is by common consent head in his own household, there is no recognized head of the settlement, and, when, in the pastóas in the case of William Glass, the founder, and, after him, of Peter Greenócircumstances created one, it has been solely due to the weight of personal ascendancy, and with the passing of personality, equality in the community has revived.

Though the islanders render voluntary assistance as occasion requires, their independence is much cherished by them, and the drawbacks of this become manifest in the stifling of initiative and enterprise destined for the common good by way of public service, a striking instance of which was seen on the occasion of the visit of H.M.S. Dublin in 1923. The islanders are expert boatmen, and probably there is little diversity of opinion amongst them as to the right thing to do in emergencies. But the want of an acknowledged head proved a source of embarrassment on this occasion, for, as the official report said, the members of the crew had many suggestions to offer, and it was only when all were agreed as to the course to be adopted or the moment to be chosen that the boats were well handled, and a strong beach party under a determined officer became necessary for the expeditious landing of the stores. From this it may be doubted whether a community can long thrive that is not modelled on the constitution of the family with the discipline implicit in it. When Lycurgus was advised to establish a popular government in Lacedaemon, he said, " Go and first make a trial of it in thy own family," and in these words the need for authority in the state, not less than in the family, was convincingly implied.

It is in the customs attaching to property in Tristan da Cunha that we find the outstanding feature of its dispensation, and it is to these that attention is now more especially drawn.

All land is in the first place regarded as being held in common. That acquired for building purposes becomes the absolute property of the owner when built upon, and land intended for cultivation remains the subject of individual ownership only so long as it is cultivated. Whenever an islander wishes to occupy a portion for cultivation, he encloses it, and it is considered to belong to him and his descendants so long as it is kept under cultivation, but when no longer cultivated it is thrown open and becomes common pasturage again.

With regard to movables, the principle of equality is rigidly enforced in the case of all new acquisitions not addressed expressly to individual islanders, and a method of distribution has developed in the island for giving effect to this. The people have always been largely dependent, in the way of barter, on passing ships for many of their necessaries of life, and the simple customs which have evolved chiefly touch the ownership of the property so acquired. All clothing, stores, provisions, and money (when there is any) coming into the island in this way are, with certain qualifications, deemed to be common property and subject to equal distribution amongst the inhabitants according to families (whatever the constitution of each family may be), and with special treatment of the surviving widows, the wives of the men lost in the boating disaster of 1886. And the produce given by the islanders in exchange is deemed to be given by the community, though, as a matter of fact, for the sake of convenience, it is given by each family in turn. Though the people are entitled according to family to an equal distribution of the supplies furnished by passing shipping, it is one of the qualifying rules that no family, if the father be living and able, is permitted to participate unless he goes out to the ship. And furthermore, provided private barter does not interfere with the quantities required for a visiting ship's use, individual transaction and profit are allowed and the accumulation of wealth is permitted. On the death of the father, the mother stands in his place as head of the family and owner of his possessions, and on her death the children are entitled equally. There is no instance remembered of these rules of inheritance being given a new direction under the will of an islander. Testamentary disposition is apparently unknown.

Customs that have all the authority of law prevail, too, in other connections. The clergyman is kept entirely by the people, and, in order that the obligation may be shared equally, each family, in weekly turn, provides a fixed quantity of food, and, however poor the family may be, "the minister" must never be allowed to go short., it being a point of honour as well as of obligation that he shall be provided for first. In the care of the shipwrecked, too, equality of service obtains. Tristan da Cunha has been the scene of numerous shipwrecks, and a system of billeting amongst the people has grown that provides for an even distribution of the burden.

Though the chief customs of the island may be thus defined, it must not be taken that all render ready obedience to them. At the same time, the people show a strong disposition to protect their system against invasions of it, and from this it may be seen that the upholding of the law may be as much a consideration with a small community as with a great one. In giving an instance of this, it should be first understood that the islanders are a generous people. We have it on the authority of those well informed, and who are not deceived by first impressions, that they are more ready to give than to receive, and when they accept readily what is given to them they do so as those who are prepared to give in return. The issue in question arose in connection with the consignment sent by the Dublin already referred to. The Crown Agents had received many parcels, sonic addressed " To the Inhabitants," others to individuals by name. In repacking, a parcel addressed to an individual was put by the Agents in a crate addressed " To the Inhabitants." When it arrived, the crate was placed with those goods which were to be the subject of equal distribution, and when there was found in it a parcel addressed to an individual, the question arose which was to prevail, the direction given on the parcel, or the covering direction on the crate. Needless to say, the claim of the individual prevailed, but the way in which the case was debated brought to mind in all its simple aspects the jus strictum of the common law on the one side and the amelioration of equity giving recognition to intention on the other, and the incident is not without instruction as showing the small beginnings from which our two great systems of jurisprudence have sprung and the need for them.