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A DISSERTATION SUBMITTED TO THE GRADUATE DIVISION OF THE UNIVERSITY OF HAWAI`I IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN POLITICAL SCIENCE DECEMBER 2008 By David Keanu Sai Dissertation Committee: Neal Milner, Chairperson Matthew Craven John Wilson Katharina Heyer Aviam Soifer Jonathan K. Osorio
On January 17th 2007, a bill was re-introduced by Senator Daniel Akaka (DHawai`i) to provide a process of granting tribal sovereignty to Native Hawaiians as the indigenous people of Hawai`i, a similar status afforded Native American tribes on the continental United States. The difference, however, is that Native Hawaiians are citizens of an internationally recognized sovereign, but occupied State, whereas Native Americans are a dependent nation within the sovereign State of the United States. Great Britain and France were the first to recognize Hawai`i’s sovereignty on November 28th 1843 by joint proclamation, and the United States followed on July 6th 1844 by letter of United States Secretary of State John C. Calhoun. This dissertation reframes the legal status of the Hawaiian Islands by employing legal and political theories that seek to explain Hawaiian modernity and international relations since the 19th century to the present. As an alternative to the view of U.S. sovereignty exercised by virtue of the plenary power of Congress over indigenous peoples, this dissertation challenges the core assumptions about the history of law and politics in the Hawaiian Islands by providing a legal analysis of Hawaiian sovereignty under international law that clearly explicates Hawai`i’s occupation by the United States since the Spanish American War. In terms of law, this study looks at the origin and development of the Hawaiian Kingdom as a constitutional monarchy, the events that led to the illegal overthrow of its government, the prolonged occupation of its territory, and a strategy to impel the United States to comply with the international laws of occupation with the ultimate goal of ending the prolonged occupation.
CONTENTS Acknowledgments……………………………………………………………………….ix Bibliography……………………………………………………………………………...x Preface…………………………………………………………………………………xxvi Chapter 1 – Introduction: Current Legal Challenges Facing the Native Hawaiian Community……………………………………………………………..1 CHALLENGING HISTORICAL AND LEGAL ASSUMPTIONS………………..2 Impact of International Arbitration: Larsen v. Hawaiian Kingdom…………….5 State, Sovereignty and Government……………………………………………..6 HAWAIIAN SOVEREIGNTY AND INTERNATIONAL LAW………………...10 Confusing Indigenous Peoples with Hawaiian Sovereignty…………………...12 Hawaiian Sovereignty Maintained under International Law………………….15 Chapter 2 – The Road from Chiefly to British to Hawaiian Governance: Kamehameha I to III……………………………………………………………..16 CHIEFLY GOVERNANCE OF THE KINGDOM OF HAWAI`I………………..20 The Kingdom of Hawai`i Divided: Ascension of Kamehameha I……………...22 Foreign Trade Throughout the Island Kingdoms……………………………...25 Kamehameha Attempts to Conquer the Kingdom of Maui…………………….27 Unification of the Kingdom of Hawai`i………………………………………..29 FROM CHIEFLY TO BRITISH GOVERNANCE………………………………..30 Kamehameha Conquers the Kingdom of Maui and Acquires the Kingdom of Kaua`i by Cession………………………………………32 Communiqués of Kamehameha to King George III……………………………35
Establishing a British form of Governance……………………………………39 Ascension of Kamehameha II………………………………………………….42 Introduction of Christianity……………………………………………………44 Sandwich Island Delegation Meets with King George IV……………………..47 FROM BRITISH GOVERNANCE TO HAWAIIAN GOVERNANCE…………54 Code of Laws…………………………………………………………………..55 Ascension of Kamehameha III…………………………………………………56 Facing Religious Tolerance……………………………………………………57 Chapter 3 – The Rise of Constitutional Governance and the Unitary State: Kamehameha III to Kalakaua…………………………………………………...62 1840 CONSTITUTION……………………………………………………………66 Evolution of Prime Minister……………………………………………………68 Hawaiian Independence and the Question of British Sovereignty…………….69 British Occupation……………………………………………………………..71 International Recognition of Hawaiian Independence………………………...72 Formalizing Hawaiian Law……………………………………………………75 Distinguishing Dominium from Real Property………………………………...78 The Great Mahele (Division)…………………………………………………..81 1852 CONSTITUTION……………………………………………………………87 Provisions to Address Imminent Threats to the Realm………………………...87 Tensions with France…………………………………………………………..88 Ascension of Kamehameha IV…………………………………………………92 Ascension of Kamehameha V…………………………………………………..93
..110 THE HAWAIIAN CONSTITUTIONAL ORDER………………………………113 Territory………………………………………………………………………113 Citizenship……………………………………………………………………116 The Monarch………………………………………………………………….118 The Judiciary…………………………………………………………………120 Rule of Law………………………………………………………………….1864 CONSTITUTION……………………………………………………………94 Legislature Acknowledges Lawfulness of Kamehameha’s Actions……………95 Ascension of the Elected Monarchs: Lunalilo and Kalakaua…………………..108 Judicial Remedies Available…………………………………………………...128 Breakout of the Spanish-American War…………………………………….125 First Attempt to Illegally Annex Hawaiian Islands by Treaty………………...124 UNITED STATES’ VIOLATION OF HAWAIIAN STATE SOVEREIGNTY….130 vi .117 Legislative Assembly………………………………………………………….100 Revolution and the Rule of Law………………………………………………103 A Failed Attempt of Citizen’s Arrest………………………………………….97 1887 REVOLUTION………………………………………………………………98 The Bayonet Constitution……………………………………………………..126 Protests Prevent Second Attempt to Annex Hawaiian Islands by Treaty………………………………………………………………….120 Separation of Powers…………………………………………………………122 Chapter 4 – The Prolonged Occupation of the Hawaiian Kingdom: From Lili`uokalani to the Present……………………………………………….
141 Government Officials and Scholars Unclear as to how Hawai`i was Annexed………………………………………………………………144 Secret Senate Transcripts Reveal Intent of the Joint Resolution……………...Hawaiian Neutrality Intentionally Violated………………………………….132 Newlands Submits Resolution to Annex Hawaiian Islands………………….138 Texas was not Annexed by Congressional Action……………………………..S..176 U.170 Native Hawaiians Associate with Plight of Native Americans……………….....136 Legal Interpretation of Annexation by Congressional Action……………….153 International Laws of Occupation……………………………………………156 Civilian Government Established in Violation of the Laws of Occupation………………………………………………………161 United States Misrepresents Hawai`i before the United Nations……………165 HAWAIIAN INDIGENEITY AND THE SOVEREIGNTY MOVEMENT………168 Hawaiian Renaissance………………………………………………………..172 United States Apology and Introduction of the Akaka Bill………………….134 The Great Charade: Annexation by Congressional Resolution…………….179 Chapter 5 – Righting the Wrong: Beginning the Transition from Occupied to Restored State………………………………………………………...178 Contrast between Hawaiian State Sovereignty and Hawaiian Indigeneity…………………………………………………….147 THE MILITARY OCCUPATION OF THE HAWAIIAN ISLANDS……………. National Security Council Defines Indigenous Peoples……………….184 THE CIVIL POPULATION OF AN OCCUPIED STATE UNDER THE vii ..
216 Impel Compliance…………………………………………………………….…...242 viii ..190 THE CASE FOR REPARATIONS……………………………………………….185 Military Government…………………………………………………………...229 Effect of Occupation on United States Courts in Hawai`i……………………231 Strategy to Begin the Administration of Hawaiian Kingdom law…………….205 United States Obligation Established by Executive Agreement……………......202 Constitutional Constraints upon the Agreement to Settle…………………….214 The Function of the Doctrine of Estoppel…………………………………….211 United States Breach of the 1893 Cleveland-Lili`uokalani Agreement……………………………………………………………….236 Conclusion…………………………………………………………………………….LAWS OF OCCUPATION……………………………………………………....188 Absence of a Legitimate Government since January 17th 1893 and the Stimson Doctrine of Non-recognition……………………………….197 Negotiating Settlement: 1893 Cleveland-Lili`uokalani Agreement of Restoration………………………………………………..193 Responsibility of States for Internationally Wrongful Acts………………….222 The Namibia Case and the Application of the Doctrine of Non-Recognition………………………………………………………….
To this I add in particular my good friend Professor Kanalu Young. As the oldest mo`opuna (grandchild). ix .” And particular sections of the Introduction and Chapter 4 are from another article published in the Hawaiian Journal of Law and Politics (Summer 2004). she instilled in me a responsibility to my mo`oku`auhau (genealogy). my two sons Kapuaakeanu and Kihaakeanu. Fall 2008. “American Occupation of the Hawaiian State: A Century Unchecked. But through it all we became a much stronger family. Finally. who will be sorely missed. It was my Tutu who is responsible for putting me on this journey. and with whom I stand today in person and spirit.” This dissertation is dedicated to all those Hawaiian subjects who love their country who have come before. I want to acknowledge my maternal Tutu (grandmother). Chapter 3 and a portion of Chapter 5 are from my article published in the Journal of Law and Social Challenges (University of San Francisco School of Law). my mother and father. who passed away in October 1984. Rose Kekaikuihala Simerson Reeves. My sincere thanks and gratitude must also go to my wife Kina. titled “A Slippery Path towards Hawaiian Indigeneity: An Analysis and Comparison between Hawaiian State Sovereignty and Hawaiian Indigeneity and its Use and Practice in Hawai`i today.ACKNOWLEDGMENTS In addition to the obvious debts owed to the patience of the members of this dissertation committee. vol. I want to thank Professor Jonathan Osorio and Professor Matthew Craven for stepping in as members of the committee as a result of the passing of Professor Kanalu Young. and my sister Katherine for their love and support when we all had to endure such trying and difficult times as a result of my active participation in exposing the prolonged occupation of the country. Dennis and Nanea. titled. 10.
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Executors. 167 (1884) Castle v. 1 Haw. William Flowerdew. Miltenberger. 2004). Minister of the Interior. 86 U. Godfrey Rhodes and James S.. Lingle. &c. Charles C. 6 Haw. Arakaki v. Kapena. 2002). Joseph Booth. Coleman. 5 Haw. 7 Haw. Collector-General of Customs. Young. Burdick v. “Dependent Independence: Application of the Nunavut Model to Native Hawaiian Sovereignty and Self-Determination Claims. TABLE OF CASES HAWAIIAN KINGDOM A. Yoshino. Kanalu. “Kuleana: Toward a Historiography of Hawaiian National Consciousness. Troy M. 25 (1870). 6 Haw. 2d 1161 (D. Bishop and Al. Edward Dennis.” The American Political Science Review 74(3) (1980): 713. Responsibility and Interracial Justice. 3 Haw. 300 (1885) Hyman Brothers v. 4 Haw.. 6 Haw. “Rethinking Alliances: Agency. Cleghorn v.. Eric K. Arakaki v. Young Tang. 3 Haw. 49 (1887) UNITED STATES OF AMERICA Auditors of Wayne Co. 27. Tong Lee.” American Indian Law Review 22 (1998): 509. Haw. 250 (1871) Kekiekie v.” UCLA Asian Pacific American Law Journal 3 (1995): 33.Wutzke. 4 Haw. 616. 314 F. 414 (1883) Harriet A. “An Interdisciplinary Study of the term ‘Hawaiian’”. 34 (1883) C. 17802001. 7 Haw..T. 362 (1824). 5 Haw. Burke v. Benoit.S. 305 F. John M. Gulick. 483 (1873) Aliens and Denizens.. 3 Haw.3d 1091 (9th Cir. 335 (1880) The King v. 630 (1863) The King v. xix . “The Rationality of Hegel’s Concept of Monarchy. Lemon. for admission to the Bar. 76 (1887) In Re Gib Ah Chan. Yack. 715 (1864) James A.” Michigan Journal of Race and Law 3 (1998): 475.) 519 (1873). (19 Wall.S. Supp. William Gill. Jeffrey. In Re Gip Ah Chan. 25 (1870) In Re Petition of Clarence W. 69 (1851) Kuki`iahu v.S. Bernard. 3 Haw. v. 5 Haw. 614 (1883) In Re Wong Sow on Habeas Corpus—Appeal from Decree of Hartwell. Hawaiian Journal of Law and Politics 1 (Summer 2004): 23 _____. 22 U. J. Administrators of the Estate of His Late Majesty Kamehameha V. “Ua Mau Ke Ea O Ka Aina: Voting Rights and the Native Hawaiian Sovereignty Plebiscite. 503 (1873) In the Matter of the Estate of His Majesty Kamehameha IV. Yamamoto. 1 Haw. 3 Haw. Apollon.” Hawaiian Journal of Law and Politics 2 (Summer 2006): 1. v. Ashford. Coleman v. 20 Michigan 176 (1870). Kapena. 90 (1851) Rex v. State of Hawai`i.
(22 Wal. 30 U.S. 8 U.S. 11 U. Oliver. 214 U. 279 (1807). McFaddon. United States v. Fiske. 1. Neff. 363 U. Inc. The Schooner Exchange v. Madsen v. Cook v. Territory of Hawai`i v. State of Hawai`i). (23 Wall.S.. 27 F. 386 F. Clark. 217 Michigan 63. 17 (1832). 528 U. Kahawaiola`a v. Supp. Cherokee Nation v. Cross v. 213 (1907). Smith. 197 (1903) Texas v. Smythe v. 95 U. 8 Wall. Pennoyer v. New Orleans v. Union Bank. 77 Haw. Rose v. Horn v. xx . Dorthy. Doane. 324 (1937). Surget. 17 Wall. 285 (1866). Woodruff. White. 179 U. 219 (1994). Haw.S.S. 203 (1942). United States v. 369 (1870). Nogueras. Ex parte Milligan. (20 How. Knote v. Hatch v.146). Froehlke. 54 U.S. Himely. 320 F. 260 (1909).S. United States v. Baker. Alldridge. Ford v. United States. In re Vidal. 594 (1878).S. Leitensdorfer v. Kinsella. Rice v. 459. Davies v. Marden v. 15 Wall.S. Hanauer v. United States v. 1 (1960).. 2001). 712 (1900).S.S. Williamson v. Doe v. Chase’s Decision 167 (1868). 334 F. v. 1 Woods 437. Nishitani v. 175 U. 42 Ct. Carroll v. 840 (1970). 2 (1866). 126 (1900). Mechanics’ & Traders’ Bank v. 5 Nev. State of Georgia. 301 U. Paquete Habana. Norton. 342 (1870).S. Guy W.Carpenter v. Jecker v. Santiago v. 2004). 16. Supp. Ho Tung and Co. Cl. Capps. Burroughs. 61 U. 90 U. Cas. 10 Ct.3d 1271 (9th Cir.2d 655 (4th Cir. 54 Northwestern Reporter 726 (1899). 341 (1952). State of Hawaii v. 722 (1877).S. Lorenzo. (20 Wall. 416 F. 439 (1872). 1. 495 (2000). 2005). Belmont. 87 U. 12 Wall. 1107 (1971). Supp. 714. 71 (1921).) 276 (1874). Thorington v. (13 How. Railroad Co. 20 Wall.) 374. Reiter. 97 U. Pink. Hanauer v. 71 U. Sprott v. The United States. Keppel v.S.S. Cayetano. Montgomery. La. 1 Woods 439.. Nakatani (Barrett v. Mankichi. Harrison. Ex parte Law.3d 1025 (9th Cir. Louisiana. 700 (1868). 2d 1219 (D.S. 204 F.) 498 (1851).S. McKeeby.S.S. 380 (1874). 241. 57 U. The United States. (16 How. 190 U. 397 (1875). 89 U. 281 (1996). Ct. 188 F.S. 74 U. Steamship Co. 343 U. Lockhart. 570.S. 1865) (No. 315 U. 85 Ga. 1953) United States v.) 176 (1857).) 387 (1874). 116 (1812). 768 (Prov. Cls. Webb.S.) 164 (1853). Kamehameha. 82 Haw. Jacobs v.
C. Case concerning the Barcelona Traction. Nottebohm Case (Liechtenstein v.UNITED KINGDOM AND COMMONWEALTHS Adams v. United Kingdom of Great Britain and Northern Ireland. December 1st 1927. Case concerning Monetary Gold removed from Rome (Italy v. 20 International Law Reports 547 (May 19. Limited (Belgium v. 1959). Interhandel Case (Switzerland v. 1955). QB 205 (1978). I. Australia). I. Carl-Zeiss-Stifftung v. xxi . Aegean Turkish Holidays. United States).C. 19 International Law Reports 507 (July 22. Reports 1995. 90. United Kingdom). docket no. 3 All ER 572 (1970). Case concerning East Timor (Portugal v. v. 353 (1927).R.” American Journal of International Law 27 (1933): 160. Hawaiian Kingdom. (Greco-German Mixed Arbitral Tribunal. Belgium). 2.J. Mitchell and Other v. Iran). Director of Public Prosecutions and Another. Daylight Case (United States and Mexico). and the United States of America). Emin v. (United Kingdom v. General Claims Commission. Coenca Brothers v. Case concerning Certain Phosphate Lands on Nauru (Nauru v. Reports 1992. 182. 19. Germany. B. Provisional Measures. Spain). Yeldag. (Const) 88–89 (1980).C. 8 (April 10). PCIJ. Mavrommatis Palestine Concession case.J. 1 FLR 956 (2002).J. Adams. I.. Hesperides Hotels v.J.. “Chevreau case (In the Matter of the Claim Madame Chevreau Against the United Kingdom). Anglo-lranian Oil Co. Reports 1954. 2 All ER 536 (1966). 35 L. Ser. 2 FLR 707 (2000). Light and Power Company. case no. Appellate Division. Reports 2000. Australia). 1961 International Court of Justice Rep. 1952). 1953).” 39 International Law Reports 184 (1970). INTERNATIONAL Ambatielos (Greece v. 119 International Law Reports 594 (2001). 22 International Law Reports 349 (April 6.C. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Ltd. “Judgment of the High Court of Rhodesia. no. A. Order. 240. Rayner and Keeler. “Chamizal Arbitration Between the United States and Mexico.” American Journal of International Law 5 (1911): 782. France. 27 International Law Reports 475 (March 21. Lance Larsen vs. Guatemala). I. B. 389).C.
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gov/public/index.html>.cfm?FuseAction=pressreleases.” The New York Times. Office of Hawaiian Affairs. MISCELANEOUS Chamberlain to Whitney and Ruggles. Press release from the office of Senator Daniel Akaka.ch/uncc/>. Planning and Research Office. January 14. Report of the Minister of Foreign Affairs to the President of the Republic of Hawaii (Honolulu Star Press 1898). 1931). Librarian (January 10.pacom.S. 2001.S.oha. Dec. Pacific Command <http://www. a pamphlet produced by the students in “ES221–– The Hawaiians” in the Ethnic Studies Program at the University of Hawai`i’s. U.mil>.home&month= 1&year=2007&release_id=1491>.html>. at Manoa. xxv . Taylor. Minutes of the Executive Council of the Republic of Hawai`i. 2008) <http://www2.umn. (visited October 2. January 18.org/databook/databook1996_1998/go-app. Position on Indigenous Peoples. 1894. U. The website is an excellent resource of information regarding the claims by states. 17-27. INTERNET SOURCES Native Hawaiian Data Book 1996. January 17. MS in HMCS Library.98. individuals and businesses against Iraq as well as selected publications. Hawai`i Archives. 2008) <http://www1. Islands of the Hawaiian Domain. United Nations established a website for the United Nations Compensation Commission. 3 (July 25.edu/humanrts/usdocs/indigenousdoc. 2008) <http://www. 2007 <http://akaka. Appendix.“Hawaiian Treaty to Wait—Senator Morgan Suggests that It Be Taken Up at This Session Without Result. (visited October 2.unog. National Security Council.P. Hawaiians: Organizing Our People. (visited October 2. 37 (University of Hawai`i 1974). 1897). prepared by A.senate.
Love of country is deep-seated in the breast of every Hawaiian. both at the national and international levels.PREFACE This dissertation is intended to provide. whatever his station. In her book Hawaii’s Story by Hawaii’s Queen. and finally to the prospect of ending the occupation in the twenty-first century. through its prolonged occupation by the United States in the twentieth century. through its status as an independent and sovereign State in the nineteenth century. we must not forget the words of Queen Lili`uokalani honoring Joseph Nawahi. Hawai`i’s legal status is reframed in order to understand the political maneuvering that took place since Kamehameha I to the present in the maintenance of the country and its current status as a neutral State that has been under prolonged occupation since the SpanishAmerican war. This is a legal analysis of the Hawaiian Kingdom that draws from legal and political theories. within reasonable range. “The cause of Hawaii and independence is larger and dearer than the life of any man connected with it. a historical and legal account of the Hawaiian Kingdom from its origin under the reign of Kamehameha I in the eighteenth century. a Hawaiian statesman and patriot. she wrote. The exposition of this legal status also provides the foundation for future political maneuvering that will seek to bring the prolonged occupation to an ultimate end. Through this analysis. In these times.” xxvi .
The act. “would provide parity in federal policies that empower other indigenous peoples. native people of the United States. 2008) <http://akaka.” and that native Hawaiians are “the native people of the Hawaiian archipelago that is now part of the United States. 2007 (visited October 2.gov/public/index. like Press release from the office of Senator Daniel Akaka. Senator Daniel Akaka (D-Hawai`i) reintroduced a bill entitled “The Native Hawaiian Government Reorganization Act of 2007” (S. 3 1 . 310). Reprinted at Hawaiian Journal of Law and Politics 1 (Summer 2004): 290. to participate in a government-togovernment relationship with the United States. 147) failed to receive enough votes in the Senate in June 2006. 310.CHAPTER 1 INTRODUCTION: CURRENT LEGAL CHALLENGES FACING THE NATIVE HAWAIIAN COMMUNITY When the Senate opened its 2007 session. S. otherwise known as the “Akaka bill”.home&month=1&year=2007&release _id=1491>. 1 2 107 U. native people of the United States.senate. [and] are indigenous. is a by-product of a 1993 resolution passed by Congress in apology to native Hawaiians for the 1893 overthrow of the Hawaiian Kingdom. The bill’s purpose is to form a native Hawaiian governing entity in order to negotiate with the State of Hawai`i and the Federal government on behalf of the native people of the Hawaiian Islands. and Alaskan Natives. 110th Congress (2007). This piece of legislation was brought before the Senate on January 17 to mark the one hundred and fourteenth anniversary of the United States’ overthrow of the Hawaiian Kingdom government.”3 The bill.”1 An earlier version of the bill (S.2 The Akaka bill provides that the “Constitution vests Congress with the authority to address the conditions of the indigenous.S. American Indians. According to Senator Akaka. the bill. STAT.cfm?FuseAction=pressreleases. 1510. January 17.
30 U. that any attempt to acquire their lands. 5 2 . This includes analysis of the current erroneous identification of native Hawaiians as an indigenous group of people within the United States. assumes the native Hawaiian population to be an indigenous people within the United States similar to Native Americans. Georgia (1832). 1. Following this introductory chapter. as being so completely under the sovereignty and dominion of the United States. the dissertation will be carried out 4 Cherokee Nation v. They and their country are considered by foreign nations.” and not independent and sovereign States. the United States Supreme Court recognized Native American tribes as “domestic dependent nations.the 1993 resolution. In the seminal case Cherokee Nation v. rather than as nationals of an extant sovereign. 4 The Court explained: They look to our government for protection. The bill also served as the foundation of political thought regarding native Hawaiians’ relationship with the Federal and State governments. appeal to it for relief to their wants. and an act of hostility. would be considered by all as an invasion of our territory. 17 (1832). and address the president as their great father.5 CHALLENGING HISTORICAL AND LEGAL ASSUMPTIONS This dissertation challenges standard assumptions about the history of law and politics in the Hawaiian Islands. State of Georgia. as well as by ourselves. It does so by providing an analysis of Hawaiian sovereignty under international law since the nineteenth century.S. Id. State. rely upon its kindness and its power. or to form a political connexion with them. but occupied.
Aloha Betrayed: Native Hawaiian Resistance to American Colonialism (Durham. and Noenoe Silva. Sally Merry. history and law to engage the subject of Hawaiian sovereignty without being confined to apologist formalities or political leanings. 2004). Righting the Wrong: Beginning the Transition from Occupied to Restored State. 6 3 .” The Contemporary Pacific: A Journal of Island Affairs 15(1) (2005): 237. has consistently been portrayed in contemporary scholarship as a vanquished aspirant that ultimately succumbed to United States power through colonization and superior force. See also David Keanu Sai. the Prolonged Occupation of the Hawaiian Kingdom: Lili`uokalani to the Present. Kahana: How the Land Was Lost (University of Hawai`i Press 2004).under four chapter headings: the Road from Chiefly to British to Hawaiian Governance: Kamehameha I to III. and Professor Noenoe Silva’s Aloha Betrayed: Native Hawaiian Resistance to American Colonialism (2004) evidence this paradigmatic view and portrays the Hawaiian Kingdom as a failed experiment that could not compete with nor survive against dominant western powers. Colonizing Hawai`i: The Cultural Power of Law (Princeton University Press 2000). Dismembering Lahui: A History of the Hawaiian Nation to 1887 (University of Hawai`i Press 2002). and. Robert Stauffer’s Kahana: How the Land was Lost (2004). Robert Stauffer. Professor Jonathan Osorio’s Dismembering Lahui [the Nation] (2002). Professor Sally Engel Merry’s Colonizing Hawai`i: the Cultural Power of Law (2000). Recent works such as Professor Lilikala Kame`eleihiwa’s Native Land and Foreign Desires: Pehea La e Pono Ai? (1992). the Rise of Constitutional Governance and the Unitary State: Kamehameha III to Kalakaua. Jonathon Osorio. of which the native Hawaiian population comprised the majority of the citizenry. The Hawaiian Kingdom.6 This point of view frames the takeover of the Hawaiian Islands as fait accompli—a history not significantly different Lilikala Kame`eleihiwa. London: Duke University Press. Native Land and Foreign Desires: Pehea La E Pono Ai? (Bishop Museum Press 1992). The dissertation concludes by urging scholars and practitioners in the fields of political science. “Kahana: How the Land Was Lost (bookreview).
Osorio. to protect that government from being discarded. “the government that was overthrown in 1893 had. Silva. fashions the nineteenth century Hawaiian Kingdom into an imperialistic dichotomy of conflicting cultures and people. 8 9 9 4 .S. for much of its fifty-year history.8 Stauffer states that. Id. 202. Id. notwithstanding the United States’ recognition of the Hawaiian Kingdom as a co-equal sovereign State and a subject of international law.. Stauffer. to a position of inferiority and at the same time elevates the United States to a position of political and legal superiority. 73. who viewed historical events through a constructed model of Hawaiian metaphors. in the end.”9 And Silva concludes that the overthrow “was the culmination of seventy years of U.7 Merry. Indigenous sovereignty. Kame`eleihiwa.” because the system itself was foreign and not Hawaiian. whose theoretical framework is colonial/post-colonial. nor even.. Osorio concludes that the Hawaiian Kingdom “never empowered the Natives to materially improve their lives. as an indigenous group of people. concluded that the “real loss of Hawaiian sovereignty began with the 1848 Mahele. has become the lens through 7 Id. Kame`eleihiwa. Id. when the Mo`i (King) and Ali`i Nui (High Chiefs) lost ultimate control of the `Aina (Land)...from other western colonial takeovers of indigenous peoples and their lands throughout the world.”10 These views serve to bolster a history of domination by the United States that further relegates native Hawaiians. 15. been little more than a de facto unincorporated territory of the United States…[and] the kingdom’s government was often American-dominated if not American-run. to protect or extend their cultural values. being a subject of United States domestic law. missionary presence. 257.
and International Law.” (Sally Engle Merry and Donald Brenneis.” Hawaiian Journal of Law and Politics 2 (Summer 2006): 1. In 2001. Hawaiian Journal of Law and Politics 1 (Summer 2004): 23. Impact of International Arbitration: Larsen v. “Kuleana: Toward a Historiography of Hawaiian National Consciousness. History. 1780-2001. “An Interdisciplinary Study of the term ‘Hawaiian’”. ed. law and politics—to an interstate point of view—as between two internationally recognized political units. Law & Empire in the Pacific. the United Lance Larsen vs. 11 Works on this topic include: David Bederman & Kurt Hilbert.” Hawaiian Journal of Law and Politics 2(Summer 2006): 97. “Hawai`i. Law. Fiji and Hawai`i (2003). Reprinted at Hawaiian Journal of Law & Politics 1 (Summer 2004): 299. Kamana Beamer. As the Hawaiian State gains more attention as a subject of international law. Kanalu Young. D. Matthew Craven. 213. Jonathan Osorio.” Hawaiian Journal of Law and Politics 2 (Summer 2006): 34. Hawaiian Kingdom Since the hearing of the Lance Larsen vs. “Teaching Land and Sovereignty—A Revised View. And Other Faiths.12 It is through this shift that scholars are now revisiting contemporary assumptions regarding the history of the Hawaiian Kingdom. a comprehensive overview of the history of the Hawaiian Islands since the nineteenth century is necessary. “Mapping the Hawaiian Kingdom: A Colonial Venture?. “Arbitration––UNCITRAL Rules–– justiciability and indispensable third parties––legal status of Hawaii” American Journal of International Law 95 (2001): 927. the Permanent Court of Arbitration in The Hague acknowledged that the Hawaiian Kingdom “existed as an independent State recognized as such by the United States of America. scholarship has begun to shift this paradigm from an intrastate—within the context of U. Patrick Dumberry. Hawaiian Kingdom arbitration at the Permanent Court of Arbitration (1999-2001).11 however. 119 International Law Reports 566 (2001).s).” Hawaiian Journal of Law and Politics 1 (Summer 2004): 46. Hawaiian Kingdom. “American Occupation of the Hawaiian State: A Century Gone Unchecked. 12 5 . and Umi Perkins. “The Hawaiian Kingdom Arbitration Case and the Unsettled Question of the Hawaiian Kingdom’s Claim to Continue as an Independent State under International Law. Keanu Sai.” Hawaiian Journal of Law and Politics 1 (Summer 2004): 6.which Hawai`i’s legal and political history is filtered. “Ku`e and Ku`oko`a: History.” Chinese Journal of International Law 2(1)(2002): 655. I cover this contemporary view of colonialism and Hawaiian indigeneity in Chapter 4.S. Kanalu Young.
1879).3d 1271. Kahawaiola`a v.Kingdom. to be a sovereign State it must not be subject to any external control. an independent State in the nineteenth century may be defined as “a people permanently occupying a fixed territory.”14 State. vol. 81. 1.”15 In 1895. 15 16 Freeman Snow. finally. 2004). the definition of the State was codified in Article 1 of the Montevideo Convention on Rights and Duties of States. it must possess an organized government capable of making and enforcing law within the community. at 581.”13 Furthermore.”16 By 1933. and of entering into all International relations with the other communities of the globe. 3rd ed. the Ninth Circuit Court of Appeals also acknowledged the status of the Hawaiian Kingdom as a “coequal sovereign alongside the United States. and. it must permanently occupy a fixed territory. capable of making war and peace. & Co. to appreciate and understand the terms “independent State” and “coequal sovereign. and various other States. as they were understood in the nineteenth century. (Government Printing Office.” we need to know these terms. 14 Sir Robert Phillamore. Norton. 19. Sovereignty and Government In order. supra note 10. exercising. independent sovereignty and control over all persons and things within its boundaries. According to Sir Robert Phillamore. Professor Freeman Snow states that a “State must be an organization of people for political ends. Commentaries upon International Law. 386 F. (Hodges. 6 . 1895). and customs into one body politic. habits. International Law: Lectures Delivered at the Naval War College. through the medium of an organized Government. bound together by common laws. which provided that the “state as a person of international law 13 See Larsen. in 2004. though. at 1282 (9th Cir. Foster.
in respect to all other political societies. (c) a government. however. Blackwell 1955).should possess the following qualifications: (a) a permanent population.” Sovereignty was understood to be of two essential forms—internal and external. which is merely the machinery of policing the state. 27. Six Books of the Commonwealth (B.”18 At this time. for example. was an abstract or a “state of being comprehending every aspect of existence from the spiritual and metaphysical to the material. External sovereignty consists in the independence of one political society. (b) a defined territory. with all other political societies. such as Carl Friedrich von Gerber and Otto Gierke. Jean Bodin. French jurist and political philosopher Jean Bodin stressed that it was important that “a clear distinction be made between the form of the state. according to Professor John Wilson. began to transform the State from a moral concept grounded in natural law to a 17 Henry Wheaton. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained.17 In the sixteenth century. Internal sovereignty is that which is inherent in the people of any State.”19 Since then. 7 . 56. and the form of the government. the State evolved and it wasn’t until the early 19th century that German philosophers. Henry Wheaton’s renowned 1836 treatise of international law.. the State. John F. “Royal Monarchy: ‘Absolute’ Sovereignty in Jean Bodin’s Six Books of the Republic. or vested in its ruler. offered the following definition: Sovereignty is the supreme power by which any State is governed.” Interpretation: A Journal of Political Philosophy 35(2) (Summer 2008): 242. Elements of International Law (Clarendon Press 1936). This supreme power may be exercised either internally or externally. by its municipal constitution or fundamental laws. and (d) capacity to enter into relations with other states. in peace and in war. 18 19 Wilson.
a sovereign State would continue to exist despite its government being overthrown by military force.”21 Political philosopher Frank Hoffman also emphasized that a government “is not a State any more than a man’s words are the man himself. 25 8 . the overthrow of the Taliban (Afghanistan) in 2001 and of Saddam Hussein (Iraq) in 2003. Hudson. History of the Theory of Sovereignty Since Rousseau (Ams Press 1968). 23 Manley O..juristic person capable of having legal rights.” 29 American Journal of International Law 29 (1935): 110. 22 Quincy Wright. Hudson.E. 24 and the latter since 1932.”23 Therefore. “Afghanistan. Ecuador. Jr. 113. Merriam. 19. For example. and the same is true of Sudan where there still appears to be no entity governing the country effectively. 114. 21 Frank Sargent Hoffman. The former has been a recognized sovereign State since 1919. and the Soviet Union in the League of Nations. an agent for putting into execution the will of the State. The Sphere of the State or the People as a Body-Politic (G. “The Status of Germany and the Peace Proclamation.” American Journal of International Law 46(2) (Apr.”22 Quincy Wright. also concluded that. the absence of an effective government in Afghanistan and Iraq following the intervention of the USA did not mean that there were no such states.” American Journal of International Law 27 (1933): 133.20 Gerber “maintains that in monarchy is incorporated the supreme power of the State. Id.” but “is simply an expression of the State. 24 Manley O. 1952): 307. Putnam’s Sons 1894). 20 C. “The Admission of Iraq to Membership in the League of Nations.. a twentieth century American political scientist. but that the king holds his authority only as an organ of the State. Two contemporary examples illustrate this principle of international law.P. Martin Dixon explains: If an entity ceases to possess any of the qualities of statehood…this does not mean that it ceases to be a state under international law. “international law distinguishes between a government and the state it governs.25 Dr.
is a purely political act 26 Martin Dixon. who held the monopoly on the use of violence. If this were true in a legal sense. governments have the monopoly of violence. 6th ed. if a state is allegedly ‘extinguished’ through the illegal action of another state. and not all governments are violent. not legal. This no doubt comes from the influence of Max Weber who defines a State as having the monopoly on the legitimate use of violence. (Oxford University Press 2007). 3rd ed. not States. (Macmillan Publishing Company 1992). Weber’s definition would fail miserably in attempting to explain how the Iraqi and Afghan State would continue to exist after their governments. “Title to Territory: Response to a Challenge. External sovereignty cannot be recognized without initial recognition of the government representing the State.26 Often times the term State has been personified as if it is capable of behavioral qualities. 28 29 Gerhard von Glahn’s.Likewise. there are two aspects— recognition of sovereignty and the recognition of government. In other words.. but this is a sociological definition. 9 . Once such recognition of external sovereignty is granted. it will remain a state in international law.” American Journal of International Law 51(2) (1957): 316. Professor Georg Schwarzenberger also asserts. International Law. 27 Georg Schwarzenberger. which could change form through constitutional or revolutionary means. were overthrown. Green and Company 1920). 6th ed. 85. Textbook on International Law. With regard to the recognition of external sovereignty.”28 Recognition of a sovereign State is thus a political act with legal consequences. (Longmans. 119. 29 The recognition of governments. that “recognition estops the State which has recognized the title from contesting its validity at any future time. Professor Lassa Oppenheim asserts that it “is incapable of withdrawal”27 by the recognizing States. Lassa Oppenheim. Law Among Nations.. 137.
may depend…upon its internal constitution or form of government. but rather on the rules of international law. or whoever be its ruler. The recognition of any State by other States. According to Wheaton. the State still subsists in contemplation of law. sovereignty. both external and internal. in that the U. or by some other cause which puts an end to the being of the State.S. is not dependent upon the political will of other governments. (b) its defined territory being the Hawaiian Islands. The elements of the Hawaiian State are: (a) its permanent population that constitutes its citizenry. once established. supra note 14. but at the same time this political act did not mean Cuba ceased to exist as a sovereign State. but rather are distinct from each other. 10 . or the choice it may make of its rulers. or even if it be distracted with anarchy. called the Hawaiian Kingdom. and (d) its ability to enter into international relations through its diplomatic corps. is an attribute of an independent State. or form of government.30 The terms State. Hawaiian subjects. 30 Wheaton. (c) its government being a constitutional monarchy. government and sovereignty are not synonymous in international law. 15. while the government exercising sovereignty is the State’s physical agent. and its admission into the general society of nations.and can be retracted by another government for strictly political reasons. withdrew its recognition of Cuba’s government under Fidel Castro. sovereignty of an independent State. until its sovereignty is completely extinguished by the final dissolution of the social tie. But whatever be its internal constitution. In other words. through a violent contest for the government between different parties among the people. In other words. Cuba is a clear example of this principle.
which gives title. and thereby brings the war to an end. Connecticut. “His Britannic Majesty acknowledges the said United States.32 but these States later relinquished their sovereignties in 1789 into a single federated State. after having firmly established the conquest. South Carolina and Georgia. Rhode Island and Providence Plantations. Documentary Source Book of American History (The Macmillan Company 1923). Subjugation. That he treats with them as such. New York. and shall be their Boundaries. may be prevented. Massachusetts Bay. And such ending of war is named subjugation. North Carolina. 394. could only be applied to countries at war with each other and not applied to neutral countries occupied by one belligerent State in order to wage the war against the other belligerent State. The establishment of the United States is a prime example of this principle at work through a voluntary merger of sovereignty. International law in the nineteenth century provided that only by way of conquest.HAWAIIAN SOVEREIGNTY AND INTERNATIONAL LAW Because Hawai`i existed as a co-equal sovereign alongside the United States of America in the nineteenth century.31 or by a treaty of cession could an independent State’s complete sovereignty be extinguished. After the American Revolution. his Heirs and Successors. Oppenheim defines subjugation as ancillary to the conquest of a State during war. formalized by treaty or subjugation. despite the illegal overthrow of its government on January 17th 1893. to be free Sovereign and independent States. it is conquest followed by subjugation. “Conquest is only a mode of acquisition if the conqueror.” 32 11 . 31 William MacDonald. Article I of the 1782 Treaty of Paris provided that. Virginia. It is hereby agreed and declared that the following are. but seized Hawai`i’s territory as a base for military operations against Spain. Pennsylvania. Viz New Hampshire. international laws and not United States domestic laws regarding indigenous people should provide the basis upon which to determine whether the Hawaiian State continues to exist.” The United States was not at war with Hawai`i. Delaware. and every part thereof. and that all Disputes which might arise in future. formally annexes the territory. and is a mode of acquiring territory. viz. Propriety. New Jersey. relinquishes all Claims to the Government. which was to be thereafter referred to as the United States of See Oppenheim. as a mode of acquiring territory in the nineteenth century. on the Subject of the Boundaries of the said United States. and territorial Rights of the same. supra note 22. 205. And for himself. thereby merging the former State into that of a successor State. Such annexation makes the enemy State cease to exist. only Spain. Great Britain recognized the former thirteen British colonies as “free Sovereign and independent States” in a confederation by the 1782 Treaty of Paris. and not conquest alone. Maryland.
America. The United States was the successor State of the thirteen former sovereign States by voluntary merger or cession. As the U.S. Congress in 1993 admitted that its involvement in the overthrow of the Hawaiian government was indeed illegal, the quintessential question that should be asked is: “What was the legal status of the Hawaiian Kingdom in 1893, and did that status change in the aftermath of the overthrow of its government?” This question should be answered before discussing the creation of a new nation, which otherwise would only exist under the mandate of U.S. sovereignty. In other words, given that a recognized State has legal sovereignty, how did the United States alienate Hawaiian sovereignty under international law? This answer is critical to determining whether one should act upon a sovereignty already achieved and employ international law as nationals of the Hawaiian State for redress, or seek autonomy within the U.S. and employ domestic laws as an “indigenous people.” To answer this question we need to step aside from indigenous politics and enter the realm of international law and politics, which, in Political Science, is commonly referred to as International Relations. In this realm, established States are the primary actors and the domestic laws of the United States have no bearing because they can only apply to U.S. territory.
Confusing Indigenous Peoples with Hawaiian Sovereignty One year following the 1993 Apology Resolution, Professor James Anaya published a law review article concerning the illegal overthrow of the Hawaiian Kingdom and the legal status of 20th century native Hawaiian self-determination. He concluded, “Despite the injustice and illegality of the United States’ forced annexation of Hawaii, it
arguably was confirmed pursuant to the international law doctrine of effectiveness. In its traditional formulation, the doctrine of effectiveness confirms de jure sovereignty over territory to the extent it is exercised de facto, without questioning the events leading to the effective control.”33 Anaya cited two international law scholars,34 Oppenheim and Hall, to support his contention. A more careful reading, though, shows that Oppenheim explains that the doctrine of effectiveness only applies when a recognized State occupies territories not under the dominion of another State, and Hall concurs with this description of the doctrine. If the Hawaiian Kingdom was an internationally recognized State at the time of the unilateral annexation, Anaya’s assertion is a misreading of Oppenheim and Hall. Oppenheim clarifies that “[o]nly such territory can be the object of occupation as is no State’s land, whether entirely uninhabited, as e.g. an island, or inhabited by natives whose community is not to be considered as a State.”35 These native communities that Oppenheim makes reference to had become the subjects of colonization, and are known today as indigenous peoples or populations. Anaya states:
the rubric of indigenous peoples or populations is generally understood to refer to culturally cohesive groups that…suffer inequities within the states in which they live as the result of historical patterns of empire and conquest and that, despite the contemporary absence of colonial structures in the classical form, suffer impediments or threats to their ability to live and develop freely in their original homelands.36
James Anaya, “The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs,” Georgia Law Review 28 (1994): 329.
See Lassa Oppenheim, International Law, 3rd Ed., (Longmans, Green & Co. 1920), 384; and William Hall, A Treatise on International Law, (Clarendon Press 1924), 125-6.
Id., Oppenheim, 383. Anaya, supra note 28, 339.
Many writers37 have relied upon Anaya’s article on native Hawaiian selfdetermination, which is one of the reasons why the Hawaiian situation has not been understood within the framework of international law, but rather has been pigeon-holed in colonial/post-colonial discourse concerning the rights of indigenous peoples, which
See; ARTICLE: “With a Very Great Blame on Our Hearts”: n1 Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, American Indian Law Review 27(2002): 1; COMMENT: “Dependent Independence: Application of the Nunavut Model to Native Hawaiian Sovereignty and Self-Determination Claims,” American Indian Law Review 22 (1998): 509; ARTICLE: “Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act,” Arizona State Law Journal 29 (1997): 25; COMMENT: “Ho'olahui: The Rebirth of A Nation,” Asian Law Journal 5 (1998): 247; ARTICLE: “The New Deal Origins of American Legal Pluralism,” Florida State University Law Review 29 (2001): 189; NOTE: “Irreconcilable Rights and the Question of Hawaiian Statehood,” Georgia Law Journal 89 (2001): 501; ARTICLE: “Property Rights of Returning Displaced Persons: The Guatemalan Experience,” Harvard Human Rights Journal 9 (1996): 145; ARTICLE: “Property Rights of Returning Displaced Persons: The Guatemalan Experience,” Harvard Human Rights Journal 9 (1996): 145; Recent Developments: “Not because they are Brown, but because of Ea n1: Rice v. Cayetano, 528 U.S. 495 (2000),” Harvard Journal of Law and Public Policy 24 (2001): 921; NOTE: “International Law as an Interpretive Force in Federal Indian Law,” Harvard Law Review 116 (2003): 1751; ARTICLE: “People’s Rights or Victim’s Rights: Reexamining the Conceptualization of Indigenous Rights in International Law,” Indian Law Journal 71 (1996): 673; ARTICLE: “Law, Language and Statehood: The Role of English in the Great State of Puerto Rico,” Law and Inequality Journal of Theory and Practice 17 (1999): 359; ARTICLE: “Pluralisms: The Indian New Deal As A Model,” Margins 1 (2001): 393; ARTICLE: “What is a Community? Group Rights and the Constitution: The Special Case of African Americans,” Margins 1 (2001): 51; ARTICLE: “Assessing the Delgamuukw Principles: National Implications and Potential Effects in Quebec,” McGill Law Journal 45 (2000): 155; ARTICLE: “Not Because They are Brown, But Because of Ea: Why the Good Guys Lost in Rice v. Cayetano, and Why They Didn’t Have to Lose,” Michigan Journal of Race and Law 7 (2002): 317; NOTE: “Ua Mau Ke Ea O Ka Aina: Voting Rights and the Native Hawaiian Sovereignty Plebiscite,” Michigan Journal of Race and Law 3 (1998): 475; NOTE: “Rice v. Cayetano: Trouble in Paradise for Native Hawaiians Claiming Special Relationship Status,” North Carolina Law Review 79 (2001): 812; ARTICLE: “Critical Praxis, Spirit Healing, and Community Activism: Preserving a Subversive Dialogue on Reparations,” New York University Annual Survey of American Law 58 (2003): 659; Part Three: "‘Traditional’ Legal Perspective: State Court Recognition of Tribal Court Judgments: Securing the Blessings of Civilization,” Oklahoma City University Law Review 23 (1998): 353; COMMENT: “Seeking Sovereignty: The Akaka Bill and the Case for the Inclusion of Hawaiians in Federal Native American Policy,” Santa Clara Law Review 41 (2001): 509; “Fifth Annual Tribal Sovereignty Symposium: ‘Save the Whales’ v. Save the Makah: Finding Negotiated Solutions to Ethnodevelopmental Disputes in the New International Economic Order,” St. Thomas Law Review 13 (2000): 155; COMMENT: “Reaching Regional Consensus: Examining United States Native American Property Rights in Light of Recent International Developments,” Tulane Journal of International and Comparative Law 10 (2002): 307; ARTICLE: “Rediscovering America: Recognizing the Sovereignty of Native American Indian Nations,” University of Detroit Mercy Law Review 76 (1999): 745; COMMENT: “Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual, n1,” University of Hawai`i Law Review 24 (2002): 693; RECENT DEVELOPMENT: “The Akaka Bill: The Native Hawaiians' Race For Federal Recognition,” University of Hawai`i Law Review 23 (2001): 857; ARTICLE: “Self-Determination for Nonself-governing Peoples and for Indigenous Peoples: The Cases of Guam and Hawai`i,” University of Hawai`i Law Review 18 (1996): 623; ARTICLE: “Cultures In Conflict In Hawai`i: The Law and Politics of Native Hawaiian Water Rights,” University of Hawai`i Law Review 18 (1996): 71; ARTICLE: “The Kamehameha Schools/Bishop Estate and the Constitution,” University of Hawai`i Law Review 17 (1995): 413; SYMPOSIUM: “Native Americans and the Constitution: Tribalism, Constitutionalism, and Cultural Pluralism: Where do Indigenous Peoples fit within Civil Society?,” University of Pennsylvania Journal of Constitutional Law 5 (2003): 357; ARTICLE: “Rethinking Alliances: Agency, Responsibility and Interracial Justice,” UCLA Asian Pacific American Law Journal 3 (1995): 33; “SYMPOSIUM RACE AND THE LAW AT THE TURN OF THE CENTURY: Righting Wrongs,” UCLA Law Review 47 (2000): 1815; ARTICLE: “Empire Forgotten: The United States’s Colonization of Puerto Rico,” Villanova Law Review 42 (1997): 1119; ARTICLE: “The Political Status of the Native Hawaiian People,” Yale Law & Policy Review 17 (1998): 95.
only serves to reify U.S. sovereignty over the Hawaiian Islands––a claim that international law and Hawaiian history fails to support.
Hawaiian Sovereignty Maintained Under International Law Despite the illegal overthrow of the Hawaiian government on January 17th 1893, the Hawaiian Kingdom continues to exist as a sovereign and independent State, which has been under prolonged occupation since the Spanish-American War. There were two illicit attempts by the U.S. to acquire Hawaiian sovereignty by a treaty of annexation, after the Hawaiian government was illegally overthrown, but both failed because of protests from Queen Lili`uokalani and loyal Hawaiian subjects organized into political organizations. The Hawaiian Kingdom is a small State that has been held firmly in the grip of the United States for over a century, and hidden from the international community. The most practical way for the Hawaiian Kingdom to compel the U.S. to release its grip is to excite scholarly inquiry. As the illegal overthrow of the Hawaiian Kingdom government and the subsequent occupation is now at 115 years, this dissertation is a study of the legal and political combustion required to bring the prolonged occupation to an end. The next chapter begins with the origin of the Hawaiian Kingdom under the reign of Kamehameha I.
CHAPTER 2 THE ROAD FROM CHIEFLY TO BRITISH TO HAWAIIAN GOVERNANCE: KAMEHAMEHA I TO III After the unification of the island Kingdom of Hawai`i by Kamehameha I in 1791, his subsequent acquisitions of the Kingdom of Maui by conquest in 1795, and the Kingdom of Kaua`i by cession in 1810, the realm had its fair share of experience that fashioned Hawaiian governance. From 1782 to 1887, the kingdom experienced three forms of governance—Chiefly, British, and Hawaiian. These changes in governance were not brought about as a result of internal revolt or revolution, but rather by changing circumstances and influences, both foreign and domestic. Hawaiian constitutionalism was an eclectic process drawing on political ideas and experiments of other countries as well as from the trials and tribulations of Hawaiian rulers. Manly Hopkins observed that the first Hawaiian constitution in 1840 appeared to be a combination of “the Pentateuch, the British government, and the American Declaration of Independence.”1 While it is true that Hawaiian constitutionalism may have drawn from British and American political experience, its history and circumstances were unique. Hawai`i did not undergo the firebrand of revolution that escalated to regicide in Great Britain and France, and Hawaiian history finds no comparison to Locke and Rousseau’s social contract theory recognizing popular sovereignty resident in the people. What is apparent, though, was that the political leadership borrowed and/or was influenced by legal cultures throughout Europe and the United States, especially in the formative years of its transformation from autocratic rule to constitutional governance.
Manley Hopkins, Hawaii: The Past, Present and Future of Its Island Kingdom (Kegan Paul 2003), 478.
6 Haw. James A. Minister of the Interior.Thomas Cooley’s 1868 treatise on Constitutional Limitations.. A. C. 6 Haw. J. v.T. 3 4 Id. The history from absolute constitution to a constitutional government is a narrative of the interplay of internal and external forces that shaped the government of the Hawaiian Kingdom.. 7 Haw. Kapena. 167 (1884). Cleghorn v. John M.. 7 Haw.”4 Therefore. 614 (1883). often cited in Hawaiian Kingdom court decisions. In Re Petition of Clarence W. Harriet A. and Hyman Brothers v. 2 Thomas Cooley. Id. William Flowerdew. Lemon. Godfrey Rhodes and James S.. 483 (1873). 2. until it has become an understood part of its system. 3 Haw. Administrators of the Estate of His Late Majesty Kamehameha V. 5 Haw. Bishop and Al. Throughout 19th century Europe. for admission to the Bar.”5 But not all nations have constitutional governments. Young Tang. 4 Haw. 49 (1887).S. Tong Lee. 3. but also define the limits of its exercise so as to protect individual rights and shield them against the exercise of arbitrary power. Burdick v. and Company 1868). The King v. 5 Haw. Brown. In Re Wong Sow on Habeas Corpus—Appeal from Decree of Hartwell. 4 Haw. all nations have constitutions. Executors. Ashford. 250 (1871). 25 (1870). a constitution is “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised. Coleman. Coleman v. Charles C. Collector-General of Customs. 414 (1883). In Re Gib Ah Chan. 300 (1885). 335 (1880). Gulick. 3 Haw. 2. to which obedience is expected and habitually yielded. Aliens and Denizens.2 distinguishes between a constitution and a constitutional government. in which some leading principles have “prevailed in the administration of its government. 503 (1873).”3 But a constitutional government applies “only to those whose fundamental rules or maxims not only locate the sovereign power in individuals or bodies designated or chosen in some prescribed manner. According to Cooley. &c. there were two main strands of constitutional development—liberalizing a monarchy as advocated in Great Britain.. A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union (Little. 76 (1887). 5 17 . 3 Haw. The King v.
whether Chiefs or commoners. but was subjugated by the O`ahu King.7 and O`ahu and its dependent island of Molokai8 under Kahahana. Both foreign intervention and the threat of more served as a driving force for government reform. King of Hawai`i Island. consolidated three kingdoms into the Kingdom of the Sandwich Islands in 1810. 1939). Stenton. Modern Constitutions Since 1787 (D. to establish a constitutional government whereby all people. but reform itself was a national matter and ultimately left to the deliberations and work of the King and Chiefs. Hawgood. who thereafter made Waikiki the residence of his court. Van Nostrand Company. under the sanction of Kamehameha III and the tutelage of their instructor of political science. 18 . 230. Peleioholani. Anglo-Saxon England (Clarendon Press 1943).enlightening despotism that took place on the European continent.9 Kamehameha. and monarchs rarely were willing participants. there were four distinct kingdoms in the archipelago: Hawai`i under Kamehameha I. Neither the threat of internal revolt nor the curtailing of powers was the driving force of Hawaiian constitutionalism. Kaua`i and its dependent island of Ni`ihau under Ka`eo. Ka`eo was also the brother of Kahekili. And to this Hawai`i can add a third strand of constitutional development—paragon of virtue. Maui and its dependent islands of Lanai and Kaho`olawe under Kahekili.D. 8 9 F. Rather. 2. The latter kingdom was conquered in 1783 by the Maui king. William Richards. and made a dependent island under the O`ahu kingdom. Inc. The term Hawaiian was not known at 6 John A.6 Both strands sought to limit the monarch’s authority. of the seven Anglo-Saxon kingdoms of southeast Britain that later came to be known as England. 7 The island of Molokai was once an independent and automonous kingdom. In a manner resembling that of King Egbert of Wessex and his consolidation in 829 A. were equal before the law. In the eighteenth century. it was the collective endeavor of the Chiefs.M. the Maui King.
Knopf 1985).” Interior Department. the systematic collection of taxes.D. culture. 0-300 from the Marquesan Islands. and hierarchically ordered social system. an organized priesthood. with a “centralized monarchy.”12 Kamehameha I. Exalted Sits the Chief (Mutual Publishing 2000). like his counterparts. fashioned government according to ancient tradition and strict religious protocol. xxi. 11 Eli Sagan. W. Alexander. which “bore a remarkable resemblance to the feudal system that prevailed in Europe during the Middle Ages. 109. Traditional governance was not radically changed by the cession. the people in these kingdoms shared the same language. At the Dawn of Tyranny: The Origins of Individualism. 12 19 . Like the people of the Anglo-Saxon kingdoms who migrated to the British Isle from Germany. Political Oppression. 3. Kamehameha and his Chiefs considered themselves British subjects and recognized King George III as their liege and lord. but resided on lands held under a chief.the time and did not come into use until the reign of Kamehameha III.D. a political bureaucracy. Appendix to Surveyor General’s Report to the 1882 Hawaiian Legislature. The first Polynesians to settle the islands appears to have taken place between A. but augmented 10 Ross Cordy. were not so transient as the chiefs.”11 Throughout the island kingdoms. though. But subsequent to his voluntary cession of the island Kingdom of Hawai`i to Great Britain in 1794.10 and later migrations came from the Society group of islands until the 14th century. and the State (Alfred A. it was common practice for Chiefs to leave one court and be received in another depending upon newfound loyalty or departure necessitated by royal disfavor or failed rebellion. “A Brief History of Land Titles in the Hawaiian Kingdom. religion. and genealogies that were part of the much larger Polynesian people of the south Pacific. Traditional society was advanced and complex. The commoner class. brother to the late Kamehameha II.
The separation between these laws was indistinct during the eighteenth century while their source of authority emanated from the person of the King. 1843. This was the theory on which the ancients worked. prime minister and governors.” Hawaiian Almanac and Annual (Thos. According to Hawaiian historian David Malo. British governance would last until 1829 when Kamehameha III.14 13 “The Hawaiian Flag.with principles of English governance and titles. and the United States on July 6th 1844 by letter of Secretary of State J. The priest of the king’s idol was the right hand. G. For a national ensign. of the government.C. and achieved the formal recognition of the Hawaiian Islands as an independent and sovereign State by proclamation from the British and French on November 28. Calhoun. Hawaiian Antiquities (Bishop Museum 1951). 187.g. blue and red. but replacing the thirteen red and white stripes with seven alternating colored stripes of white. Thrum 1880). the chiefs below the king. Government was absolute with a highly defined and ordered hierarchy of Chiefs. The king was the real head of the government. 24. CHIEFLY GOVERNANCE OF THE KINGDOM OF HAWAI`I Chiefly governance was a mixture of religious and chiefly law. took political steps asserting the kingdom’s comity with the British. the shoulders and chest. Kamehameha adopted a flag very similar to the British East India Company13 with the same Union Jack in the canton. rather than its dependency. David Malo. e. The soldiery were the right foot of the government. The people who performed the miscellaneous offices represented the fingers and toes. 14 20 . the minister of interior (kanaka kalaimoku) the left. while the farmers and fishermen were the left foot. which was expected of an adopted kingdom into the British Empire. together with his Council of Chiefs.
Ka Po`e Kahiko: The People of Old (The Bishop Museum Press 1964). 72. or gods’ laws. 16 17 Samuel Manaiakalani Kamakau. 21 . According to Hawaiian historian Sheldon Dibble. while the Chiefly laws served to administer governance under and by virtue of the King. The religious laws both organized and stratified Hawaiian society. and everything formed or acquired by the skill or industry of the people was admitted to be owned by the chiefs. As a general mark the chiefs were regarded as the only proprietors. “the chiefs below him and the common people throughout the whole country were his defense. Publisher 1909). 191. 53. A History of the Sandwich Islands (Thomas G. “the kanawai akua.The King’s agents were his chiefs and priests. supra note 14. to oversee the performance of the religious rites in the temples of human sacrifice. and to these agents the commoner held strict obedience.” and to preside “over such other ceremonies as he might be pleased to appoint. were met and dealt with by the King and his principal Chiefs in council with laws or edicts to follow. Everything that grew or had life on the land or in the sea.”18 Sovereignty was consolidated in the person of the King in whose 15 Id. the King was compared to a house.16 The constitution was unwritten and comprised of two basic kanawai (laws).”17 Religious laws were closely interwoven with chiefly laws and it was the duty of the King “to consecrate the temples. services. 18 Malo. Sheldon Dibble.”15 Outside influences. whether political. also things inanimate. or sacred chiefly laws. 11. not only the fish of the sea but also the time. and implements of the fisherman. Thrum. social or religious. They were admitted to own not only the soil but also the people who cultivated it.. As stated by Malo. and the kanawai kapu ali`i.
20 While the late King’s nephew. Religion constituted the organic law of the country while. 204. he also could adjust the form of governance. and consequently. with the King as lord paramount. administratively. Under this system all functions of government.. 20 21 Id. legislative and judicial. “The Evolution of the Hawaiian Judiciary. 22 . executive.hands controlled life and death. 1894). subject only to his own superiors. 303. King of the island of Hawai`i. 1. Hawaiian Justice Walter Frear noted: The system of government was of a feudal nature. Kiwala`o became his successor. governance resided solely with the King and his Chiefs. the chief as mesne lord and the common man as tenant paravail— generally three or four and sometimes six or seven degrees.”21 his son Kiwala`o held the reigns of state. Abraham Fornander.19 The Kingdom of Hawai`i Divided: Ascension of Kamehameha I Upon the death of Kalaniopu`u in January of 1782. Ancient History of the Hawaiian People to the Times of Kamehameha I (Mutual Publishing 1996). were united in the same persons and were exercised with almost absolute power by each functionary over all under him.” Papers of the Hawaiian Historical Society (June 29. each function being exercised not consciously as different in kind from the others but merely as a portion of the general powers possessed by a lord over his own. According to tradition and usage. all landed property held by the tenants in chief 19 Walter Frear. his son. was “heir to the redoubtable war-god of Kalaniopu`u. Each held land of his immediate superior in return for military and other services and the payment of taxes or rent. Kamehameha.
of Kalaniopu`u would revert to Kiwala`o for redistribution to the latter’s most trusted chiefs. he started a chain of events that would ultimately fracture the island kingdom.”22 The fealty of the Kona chiefs was tenuous and fighting broke out between these chiefs and the King’s brother. Ruling Chiefs of Hawaii (Kamehameha Schools Press 1992). who was still performing a religious rite for the occasion with his high priest. At the onset of battle. Keoua killed some of Kamehameha’s people and when he cut down coconut trees. which they held under Kalaniopu`u. Fornander.23 The raid happened “without the command or sanction of Kiwala`o.” but the new King “was gradually drawn into it in support of his brother. but with the arrival of Kamehameha and his men the battle violently turned against the King. which was a traditional symbol of war. was marred with turmoil and rebellion by his father’s former chiefs of the leeward side of the island—otherwise known as the “Kona chiefs. all of the Kona chiefs were engaged except for Kamehameha. after he led a raiding party into the land of Kamehameha. who looked to Kamehameha for leadership. It first appeared that Kiwala`o would be victorious. The royal forces were finally routed after 22 Id. 302. Both sides gathered their troops and a great battle ensued on the leeward side of the island in an area called Ke`ei.”24 This began a civil war and triggered the rising of Kamehameha and the Kona chiefs.” These chiefs. supra note 20. 23 24 23 . which came to be known as the Battle of Mokuohai. would be greatly shorn or entirely loss. Kamakau. Keoua. were deeply concerned in “the coming division of their lands.. 308. though.” and worried that “their possessions. 120. Samuel M. His short reign.
Ke`eaumoku. himself setting an example in work and 25 Kamakau. but Keoua. “where he turned his attention to agriculture. who survived though severely wounded. 26 24 . who instigated the battle. remained true to and acknowledged Keawemauhili as their Mo`i [sovereign]. 121. Fornander. the patrimonial estate of Kiwalao. At the close of his last campaign in 1785 against the Ka`u and Hilo forces. 311. and skirmishes took place between Kamehameha and these two Chiefs. but none was decisive enough to alter the equilibrium established after the battle of Moku`ohai. Kohala. The remaining portion of Hamakua. Fornander describes the results of the battle of Mokuohai as: to render the island of Hawai`i into three independent and hostile factions. Keawemauhili. supra note 23. Keawemauhili later escaped and he sought refuge on the windward side of the island. and portions of Hamakua acknowledged Kamehemeha as their sovereign. the district of Hilo. and a part of Puna. ungrudgingly and cheerfully supported Keoua Kuahuula against the mounting ambition of Kamehameha. Kamehameha returned to Kohala. supra note 20. while the lower part of Puna and the district of Kau. The district of Kona.25 Kamehameha’s army captured Kiwala`o’s chief counselor. retreated with his army and took refuge in Ka`u—the southern district of the island.26 The warfare for ascension to the throne would continue for the next five years. An alliance would later be established between Keawemauhili and Keoua.Kiwala`o was slain by one of the Kona chiefs.
Id. First a very high ranking former Maui chief. after the death of Kamehameha. So widespread was the trading.industry. American. Ka`iana. 28 29 25 . though valuable. French. materials to promote their interests and to execute their commands. and Portuguese ships visited the islands and actively traded with the people. delight. 320. as was the case before Captain James Cook’s death in 1778 at the hands of the chiefs of Kalaniopu`u. and powder. not only not feared them as superior beings. and incipient disease.”28 Foreign Trade Throughout the Island Kingdoms Between 1787 and 1790 an increasing number of English. Fornander explained: To the natives it was an era of wonder. Spanish.”27 He also married Ka`ahumanu who would later “fill so prominent a place in modern Hawaiian history.. joined Kamehameha’s ranks in January of 1789 with a large cache of weapons and ammunition. Id. that during this period there are no records of any battles taking place throughout the islands. which he had acquired during “three years in China and other 27 Id. but rather as partners in trade that bolstered aspirations of glory by the Chiefs. and guns accumulated in the princely storerooms. but actually looked upon them as serviceable. and visions of conquest grew as iron. No longer were the foreigners looked upon with wonder. to the chiefs it was an El Dorado of iron and destructive implements. The blood of the first discoverer had so rudely dispelled the illusion of the “Haole’s” [foreigner’s] divinity that now the natives.29 Circumstances benefited Kamehameha.
his renowned bravery. the Maui King. he departed Kaua`i and was the first chief to leave the islands on a foreign trading vessel. G. Kamehameha had also detained two Englishmen.. 33 26 . King of Kaua`i. accepted service under Kamehameha. and for his cache of weapons that enlarged Kamehameha’s own. and Isaac Davis.”32 Fornander states: These two captive foreigners…finding their lives secure and themselves treated with deference and kindness. 96. Ka`iana sought refuge under Ka`eo. supra note 20. In 1787. Thrum 1910). On his way to Kauai the following year. accompanying Captain Meares to Canton. Fornander.” Hawaiian Almanac and Annual (Thos.33 30 Kamakau. he realized he fell into disfavor with Ka`eo and requested that he disembark on the Island of Hawai`i at the court of Kamehameha instead. were soon reconciled to their lot. 144. the Nootka. born at Liverpool. a Brief Sketch of His Life in Hawaii. He “was anxious to secure foreigners to teach him to handle the muskets which it had been his first object to obtain. Ka`iana was favorably received by Kamehameha due to his high aristocratic status.lands. “John Young: Companion of Kamehameha. then thirty-six years old. During Captain Vancouver’s second trip to the islands in 1793 he identifies John Young to be “about forty-four years of age. supra note 23. born at Milford. and contributed greatly by their valor and skill to the conquests that he won. 146. Thomas Thrum.”30 After a failed rebellion against Kahekili. John Young and Isaac Davis31 Both men were skilled in the use of muskets and artillery. 235.” 31 32 Id. and by their counsel and tact to the consolidation of those conquests.
35 Taking advantage of Kamehameha’s absence. which at the time included the islands of Maui. 35. 34 35 Kamakau. governed the islands of Maui. Foundation and Transformation. vol. When Kamehameha’s forces landed on Maui they overwhelmed the Maui chiefs and the decisive battle. Lanai. Ralph S. Angered by Keawemauhili’s support of Kamehameha’s Maui campaign. He was forced to abandon his pursuit of complete victory over the Maui kingdom and returned to Hawai`i to deal with his sole remaining archrival for control of Hawai`i island.34 Kahekili held his court at Waikiki on the island of O`ahu. and the former Kingdom of Oahu. King of Kaua`i. Kalanikupule. 1 (University of Hawai`i Press 1938).Kamehameha Attempts to Conquer the Kingdom of Maui Keawemauhili and Kamehameha reconciled their differences and in the spring of 1790. Keoua invaded Hilo and slew Keawemauhili in battle while adding Hilo to his dominion. The Hawaiian Kingdom: 1778-1854. Molokai. the former had “sent a substantial contingent of canoes and warriors to aid” the latter in his invasion of the Maui kingdom. Keoua then proceeded to invade the districts of Hamakua and Kohala and lay waste to Kamehameha’s lands. supra note 23. 151. Kalanikupule and some of his men escaped capture and fled to O`ahu after the battle. Word of Keoua’s pillage soon reached Kamehameha while he was preparing to invade O`ahu from Molokai. The islands of Maui and Molokai were later reclaimed without incident by the combined forces of an avenging Kahekili and his brother Ka`eo. Kamehameha soon overran Lanai and Molokai. was fought in the valley of Iao. while his son. known as Kepaniwai (damning of the waters) and also Kauwaupali (clawed off the cliff). Kuykendall. 27 . Lanai and Molokai.
37. though. 37 38 39 28 . supra note 34. 161.”37 Two unsuccessful battles with Keoua since his return—where neither chief could claim victory. would soon be diverted to the invading force of the two leeward Kings departing from Maui. Kamakau. but it would prove no match against Kamehameha’s fleet. he sent one of his chiefs to consult with a renowned kilokilo (seer) resident on the island of O`ahu “to find out by what means he could make himself master of the whole of Hawaii island.”36 The answer given was that Kamehameha must “build a large Heiau (temple) for his god at Pu`ukohola. and Kamehameha refocused his energy and labor into the building of the grand heiau. resulted in a stalemate. supra note 34. It was an enormous task that involved the physical labor of not just his people. Hawai`i. and sailed for Waipi`o Valley to battle the leeward invaders. Kahekili and Ka`eo embarked from Maui on a large fleet of canoes and invaded the northern coast of Hawai`i committing “serious depredations before Kamehameha could interpose to stop them. that done. but also Kamehameha himself. 36. Kuykendall.39 The leeward force also had cannons and foreigners to handle them. he would be supreme over Hawai`i without more loss of life. supra note 20. supra note 23. adjoining the old Heiau of Mailekini near Kawaihae. The two leeward Kings then prepared to launch an invasion against Kamehameha from Maui. 240. His attention. The invading force was engaged in a naval battle. Before Kamehameha returned from his leeward campaign. “and when the two fleets came together not 36 Kuykendall. Fornander.”38 Kamehameha responded by organizing his forces into a large fleet of schooners and double hull canoes fixed with cannons.while Kalanikupule remained on O`ahu to govern in his father’s absence.
which came to be known as the Battle of Kepuwahaulaula (red-mouth gun). Keoua was killed before he could set foot on the shoreline fronting the grand temple. but the two leeward kings managed to escape with but a remnant of their forces and returned to their kingdoms.far from Waipio…the battle was long and sanguinary. Unification of the Kingdom of Hawai`i Refocusing his attention on the prophesy. When Keoua’s retinue entered the bay at Pu`ukohola by canoe. Kamehameha returned to labor at Pu`ukohola and the great temple was finally completed and consecrated with full religious rites in the summer of 1791.. with an undeterred vision of consolidating his dominion over the fractured Hawai`i island kingdom. to meet with Keoua. Id. his party came under attack by Ke`eaumoku. and his men. and the normal development of the resources of his 40 Kuykendall.”41 Keoua consented. he sent two of his Chiefs. 41 29 . Keaweaheulu and Kamanawa. The latter received Kamehameha’s ambassadors with all the customary formalities and was urged to accompany them to Pu`ukohola “to meet Kamehameha face to face and to make peace with him. 37. Whether by circumstance or design. 37. Thereafter. the death of Kamehameha’s rival in 1791 was the final step of consolidating Hawai`i’s dominion in the person of Kamehameha—the Kingdom of Hawai`i had been reunited after nine years of civil war. the organization and administration of his government. Kamehameha “devoted the next few years to works of peace. supra note 34.”40 Kamehameha defeated the leeward force. one of Kamehameha’s trusted advisers.
he sent an envoy to Kahekili’s court at Waikiki to arrange in a courteous and chiefly manner the place of battle. 38.43 FROM CHIEFLY TO BRITISH GOVERNANCE Captain George Vancouver. then Hawai`i shall be the Maika-stone that will sweep the course from here to Tahiti. 4th Earl of Sandwich.”42 The Hawai`i king had grand designs of conquering the leeward kingdoms. and the Daedalus. Kamehameha remained fully aware 42 Id. the Discovery.territory. While Kamehameha was on the island of Molokai a year earlier. Captain Vancouver was to complete the exploration of the northwest coast of the American continent begun by the late Captain James Cook. February-March 1793. Captain Vancouver was on good terms with all three kingdoms and even attempted to broker peace between them. John Montagu. tell Kamehameha to return to Hawai`i. Kamehameha and Captain Vancouver became close friends and an affinity soon developed between the Hawai`i King and the British. Fornander.. By order of the British Admiralty. In 1778. After consideration of the various plans proposed by Kamehameha’s messenger. the Chatham. Cook named the island group the Sandwich Islands in honor of his superior the First Lord of the British Admiralty. let him then come and possess the country. Go. but these plans were held in abeyance by request of Kahekili. and January-March 1794. Kahekili replied. visited the islands on three separate occasions—March 1792. supra note 20. but it was with Kamehameha that a close relationship developed. 239. 43 30 . and when he learns that the black kapa covers the body of Kahekili and the sacrificial rites have been performed at his funeral. who commanded three English vessels.
government. With an objective toward security for the kingdom from both the leeward kings and foreign nations. 342. and Kalaimamahu. According to Hopkins. chief of Kau. was placed at Kamehameha’s residence.”44 It was agreed that the British government would not interfere with the kingdom’s religion. chief of Puna. Kaiana. with the following inscription. chief of Kona. Kamehameha ceded the Island Kingdom of Hawai`i to Great Britain and recognized King George III as his liege and lord on February 25th 1794. his brothers Keliimaika`i. Kamehameha also “requested of Vancouver that on his return to England he would procure religious instructors to be sent to them from the country of which they now considered themselves subjects. 56. were to continue as usual to officiate with the same authority as before in their respective stations. 133. and that only time could tell when another invasion would be attempted.’ Keeaumoku.”46 After the ceremony. The cession. 44 Id. especially in the aftermath of the Battle of Kepuwahaulaula.”45 Kamehameha and his Chiefs understood themselves to be a part of the British Empire and subjects of King George III. was a conditional mutual agreement recorded in the ship’s log. Voyage of Discovery to the North Pacific Ocean and the round the World.. supra note 1. 3 (Da Capo Press 1967). and present were “Kamehameha. who is styled a half-brother of Kamehameha. though. and Kalaiwohi.of how tenuous relations were with the leeward kingdoms. and domestic economy. vol. the latter of whom Vancouver styles as ‘chief of Hamakua. George Vancouver. Kameeiamoku. The meeting of the cession took place on the HBMS Discovery. the British ships fired a salute and a copper plaque. and “the chiefs and priests. Keaweaheulu. 31 . chief of Kohala. 45 46 Hopkins.
would govern Maui and the adjacent islands. returning to Great Britain.”48 Ka`eo. 262. To do this. Lieutenant Peter Puget. Kalanikupule. His son. after due consideration. and in the presence of George Vancouver. prepared to depart from the leeward side of O`ahu to his Kingdom of Kaua`i. and the calm between the kingdoms remained undisturbed until the death of Kahekili in July 1794. king of Owhyhee [Hawai`i]. supra note 20. unanimously ceded the said island of Owhyhee [Hawai`i] to His Britannic Majesty. This arrangement of a shared kingdom became a source of tension between the Kaua`i and Maui chiefs and a battle later took place on O`ahu between the two factions. commander of his said Majesty’s armed tender the Chatham.”47 Kamehameha Conquers the Kingdom of Maui and Acquires the Kingdom of Kaua`i by Cession Captain Vancouver’s squadron left the islands on March 3rd 1794. while Kalanikupule governed and held court at Waikiki. Fornander. and Oahu. the Kaua`i 47 Id. island of O`ahu. a plan was contrived by his chiefs to overthrow Kalanikupule at Waikiki and bring the entire leeward islands under Kaua`i rule. and acknowledged themselves to be subjects of Great Britain. Tamaahmaah [Kamehameha]. 48 32 . and the other officers of the Discovery. though. commander of the said sloop. which caused a war between the kingdoms of Maui and Kaua`i. 1794. While Ka`eo. Molokai.On the 25th of February. with an army of soldiers. Lanai. in council with the principal chiefs of the island assembled on board His Britannic Majesty’s sloop Discovery in Karakakooa [Kealakekua] bay. “was recognized as the Moi [King] of Maui and its dependencies.
and they prepared for an invasion of the Kingdom of Hawai`i. the Jackall and the Prince Lee Boo commanded by Captain Brown. The two armies met on the plains of Honolulu just above Pearl Harbor. They thought perhaps that possession of foreign ships would make them invincible…A cunning plot was formed and on the first day of January.chiefs assumed their King would not have supported an overthrow of his nephew. According to Kuykendall: Success inflated the ambition of Kalanikupule and his chiefs and they began to dream of conquering Kamehameha. though..49 Ka`eo uncovered the plot. and made preparations to kill Ka`eo by throwing him overboard while the fleet was deep in the channel between the islands of O`ahu and Kaua`i. Id. 263. the Jackall and the Prince Lee Boo were captured. 46. Kuykendall. Brown and Gordon. and with the assistance of two British ships. Lanai and Molokai were forsaken by the Kaua`i chiefs. but instead of rounding up and seizing the conspirators. and the Kingdom of Kaua`i descended to Kaumuali`i. the two captains. supra note 34. Kalanikupule defeated the invaders and Ka`eo was killed in battle in December of 1794. 1795. 343.50 The islands of Maui. and 49 Id. were killed.51 Kalanikupule’s invasion plans. 50 51 33 . and the surviving members of the crews were made prisoners. the Kaua`i King decided to give in to the impulsive endeavors of his chiefs and plan the invasion himself. were foiled when the surviving crew managed to retake control of the ships off of Waikiki on January 12th 1795.. son of the late king. The success of the battle soon had Kalanikupule and his chiefs entertaining ideas of avenging their defeat at the hands of Kamehameha four years earlier.
but the superiority of Kamehameha’s artillery. Id.immediately sailed for the Island Kingdom of Hawai`i. his duty to atone the deaths of the two British captains. and the better practice of soldiers. He was also given the leeward king’s arms and ammunition that were stored on the ships. in 1788. 53 34 . It has been speculated by Hawaiian historians that Kamehameha’s disfavor of Ka`iana was attributed to Ka`iana’s intimacy with Ka`ahumanu. supra note 20. the ships were refurbished with supplies and before they departed for Canton. and the 52 Fornander. China. China. Lanai and Molokai. The victors sojourned on the latter island to prepare for the invasion of O`ahu where the bulk of Kalanikupule’s army were stationed. and he and his army was left with no alternative but to break ranks with the Hawai`i King and join forces with Kalanikupule on O`ahu. In February of 1795. and “for a while the victory was hotly contested.53 The final planning of the invasion did not include Ka`iana. 84. While on Hawai`i. Kamehameha was notified of the murders of the two British Captains and Kalanikupule’s plan to invade. for this chief fell into disfavor by Kamehameha—an issue reminiscent of the former’s relationship with Ka`eo upon his return from Canton.52 Two situations presented themselves to Kamehameha—as a British subject. 343.000 men and quickly overran Maui.. Kamehameha departed Hawai`i with an army of 16. and an opportunity for a pre-emptive strike against the Kingdom of Maui whose alliance with the Kingdom of Kaua`i was now severed. soon turned the day in his favor. one of the wives of Kamehameha. Kamehameha landed his forces on O`ahu. In April 1795. the number of his guns.
(Charles Edwin Hitchcock 1847). together with a feathered cloak as a royal gift to the King. Kamehameha was now King of the Sandwich Islands. but paid an annual tribute to Kamehameha as his feudatory lord. Molokai and O`ahu. Vancouver Informed me you would send me a small vessel am sorry to say I have not yet received one. Vancouver left here has been the means of my Silence. would deliver the letter and gift when he left the island of O`ahu the following day. but was later found by Kamehameha’s forces and killed. History of the Hawaiian Islands. 3rd ed. Master of the ship Duke of Portland. James Jackson Jarves. Lanai. This schooner was finally delivered to Kamehameha’s successor on May 1. Captain Spence. 55 35 . 1822. 117. The name of the schooner was the Prince Regent. Communiqués of Kamehameha to King George III Before Kaua`i was ceded. Kamehameha I sent a letter to King George III dated March 3rd 1810. 348. Capt.defeat of the O`ahu forces became an accelerated rout and a promiscuous slaughter. By April of 1810 the Sandwich Islands came under the complete control and dominion of one king after the Kingdom of Kaua`i and its dependency. the island of Ni`ihau. by Captain Kent on behalf of King George IV. Captain Spence penned the letter on behalf of Kamehameha. This battle is known as the Battle of Nu`uanu.”54 Ka`iana was killed by artillery and Kalanikupule temporarily escaped capture. which stated: Having had no good opportunity of writing to you since Capt.55 54 Fornander. was voluntarily ceded by Kaumuali`i who thereafter recognized Kamehameha as his liege and lord. Kaumuali`i was permitted to govern Kaua`i with his own chiefs. supra note 20. Maui. The defeat of the Maui kingdom rendered Kamehameha master of Hawai`i.
for the repairing of ships. I have built a few small vessels with an Intent to trade on the North West of America with Tarro [taro] root the produce of these Islands for fur skins but am told by the White men here I cannot send them to sea without a Register. the ships needed registration papers proving British nationality in accordance with admiralty law. and other marine contracts. 75. 2nd ed. Should any of the powers which you are at War with molest me I shall expect your protection. charter-parties. Woodfall 1802).A.56 In order for Kamehameha to begin trading taro on the northwest coast of America. “made the exercitor or owner answerable for the contracts of the master. or setting them out to sea. I am in particular need of some Bunting having no English Colours also some brass Guns to defend the Islands in case of Attack from your Enemies. as well as to freight. Hackler.e. or provisions. British ships doing trade at the time fell under the jurisdiction of admiralty law that covered “contracts made upon land but relative solely to shipping and naval affairs. and it is said they also make the ship liable to Rhoda E. particularly with respect to material men. the substance of 18th century admiralty law. such as furnish tackle. (G. In consequence of which beg you will send me a form of a Register & seal with my Name on it. furniture. 57 36 . 56 Arthur Brown. A Compendious View of the Civil Law. and of the Law of the Admiralty. “Alliance or Cession? Missing Letter from Kamehameha I to King George III of England Casts Light on 1794 Agreement. and beg you will order your Ships of War & Privateer not to Capture any vessel whilst laying at Anchor in our Harbours.Am sorry to hear your being at War with so many powers and I so far off cannot assist you. though made upon land. as I would thank you to make ours a neutral port as I have not the means of defence. i.”57 According to Arthur Brown.” The Hawaiian Journal of History 20 (1986): 7.
Brown & Mr. The Constitutional History of England (University Press 1926).”59 Seals. Of particular interest is in the postscript of the letter. F. 393. Masters. Walker. 35. wishing to render every assistance to the ships of his most sacred Majesty’s subjects who visit these seas. Hackler. The Oxford Companion to Law (Clarendon Press 1980). and reiterated his former request for a seal. Without a great seal. Kamehameha stated: Kamehameha. unable to qualify the merchant ships’ rights and protection under admiralty or maritime law.” to his Majesty.W. David M. 59 60 61 37 . were not “mere ceremonial symbols like the crown and the scepter. according to Professor Frederic W. two of you[r] merchant ships. whereby Kamehameha explained that the invasion of the Kingdom of Maui and the change in royal residence from Hawai`i to O`ahu “was in consequence of their [Kalanikupule’s men] having put to death Mr. England could not be governed. since which 58 Id. they are real instruments of government.the same. Maitland. With salutations to the British King. “important posts in government are conferred by the Crown by delivery of the seals of office and surrendered by delivery up of the seals. Gordon.)”61 A second communication by Kamehameha I dated August 6. 1810.”60 Without a seal Kamehameha would not be able to register the ship’s nationality for trading purposes with the northwest coast of America. (of the Jackall & Prince Le Boo. therefore. apprised King George III of the recent consolidation of the entire Sandwich Island group. and. King of the Sandwich Islands. Under British law. ship “Duke of Portland. supra note 56.”58 The seal with Kamehameha’s name was intended to authenticate the registration of the ships as a commissioned officer of the British Crown. Maitland. have sent a letter by Captain Spence. 1122.
E. and we are now in possession of the whole of the Sandwich Islands.”64 What was left unanswered.Timoree [Kaumuali`i]. F. wish to have a seal and arms sent from Britain. The Secretary of State assured Kamehameha I that the Prince Regent would “promote the Welfare of the Sandwich Islands. Liverpool to Kamehameha. Earl of Liverpool. April 30. 131. We. 63 64 38 . In a communication from London dated April 30th 1812.”63 He also stated that the Prince Regent was “confident that the Complete Success which He has gained over His Enemies in every Quarter of the Globe. was Kamehameha’s request for a register form and seal.62 In 1811. the Prince of Wales and son of King George III became Prince Regent and ruled the British Empire after his father had a relapse of insanity the year before. Series 402 Box 2.. Captain Spence arrived in England during the royal transition and was unable to deliver Kamehameha’s letter to King George III. Hawai`i Archives. or any hindrance whatever. Kamehameha found that he could trade the kingdom’s lucrative and vast amounts of 62 Hopkins. Instead. as subjects to his most sacred Majesty. King of Atooi [Kaua`i]. has delivered his island up. 1812. though. or to Your subjects. which would prevent his ability to trade with merchants on the northwest coast of the American continent. so as there may be no molestation to our ships or vessels in those seas. supra note 1. all Trading Vessels belonging to you.O.X. The letter and gift of Kamehameha I was instead delivered to the Prince Regent. Kamehameha I was notified of the change in government by the Secretary of State for Foreign Affairs. and that He will give positive Orders to the Commanders of His Ships to treat with proper respect. Id. will have the Effect of securing [Kamehameha’s] Dominions from any attack or Molestation on their part.
but remained a King. Frear mistakenly states Kamehameha established four earldoms that included the Kingdom of Kaua`i. Ltd. Maui and O`ahu. supra note 34. the junior of one of Kamehameha I’s Kona Chiefs. Id.sandalwood with merchant ships coming to his homeports. and Governors to preside over them. A governor was not established until July 1821 after Kamehameha II removed Kaumuali`i to O`ahu and appointed Ke`eaumoku.. Kuykendall. supra note 34. 66 67 Walter Frear. Kamehameha incorporated and modified aspects of English governance to his own. and became the native equivalent in title to that of Prime Minister.65 According to Kuykendall.. 68 69 Id. as governor of Kaua`i. Kaumuali`i was not a governor. 1906). 84-89. 65 Kuykendall. “Hawaiian Statute Law. 85.68 These Governors served as viceroys over the lands of the former kingdoms “with legislative and other powers almost as extensive as those kings whose places they took. 51.” Thirteenth Annual Report of the Hawaiian Historical Society (Hawaiian Gazette Co.”69 Kalaimoku (carver of lands) was the ancient name given to a King’s chief counselor. Aligned with adopted English custom. but “with only such modifications as were required by new conditions or suggested by his own experience. 39 .”66 Establishing a British form of Governance With the acquisition of the leeward islands under one kingdom. Kamehameha established three earldoms over the former kingdoms of Hawai`i. this expansion of trade in the islands “afforded a convenient base of operation.” and by “1812 we find at least one agent established in Honolulu to coordinate the operations of several ships and to handle the business in the islands.” 67 These modifications included the office of a Prime Minister and the establishment of Governors. for which the seal and register form were not needed .
Should that officer fail to confirm a gift it would not be binding. and only upon his arrival could things be given away to chiefs. and all who were fed by the chief.Kamehameha appointed Kalanimoku as his Prime Minister and he thereafter took on the name of his title—Kalaimoku. established a national council for the kingdom that was comprised of the three governors. as well as to be commanderin-chief of all the military and head of the kingdom’s treasury. Foreigners also commonly referred to him as Billy Pitt. or to any others. In effect. If he were staying. the soldiers. who was the younger Pitt who served as Britain’s Prime Minister under the third of the Hanoverian Kings. 70 40 . Kalaimoku’s duty was to manage day to day operations of the national government. not in Kailua but in Kawaihae or Honaunau. the chiefs. whereby at the higher level a national government with dominion over the four former kingdoms concerned itself with matters of national interests and foreign policy. 175. soldiers. but in practice. Like the British Prime Minister. the lesser chiefs. he had charge of everything. supra note 23. The laws determining life or death were in the hands of this treasurer. A two-tier government was formed. anyone to whom Kamehameha gave a gift. Kamakau. through his Prime Minister. Kamehameha could not give any of the revenues of food or fish on his own account in the absence of this officer. Kamehameha established a federal system not by theory. Kamakau explained: By this appointment Kamehameha waived the privilege of giving anything away without the consent of the treasurer. and the King’s trusted foreign advisors—John Young and Isaac Davis. to the chief’s men.70 Kamehameha. the favorites. lesser chiefs. other high chiefs. George. Kamehameha’s brothers. the treasurer had to be sent for. could secure it to himself only by informing the chief treasurer.
under my command have been highly indebted for their good offices.”73 Kamehameha and these chiefs Thomas Thrum. who were each given “large tracts of lands from Hawai`i to O`ahu in payment for their services. Kame`eiamoku and Kamanawa. son of Kaumuali`i. G. Thrum 1910). 175. supra note 23.while at the lower level Kamehameha’s vassals governed day to day matters among their tenants under a feudal tenure. that they have been materially instrumental in causing the honest. Keaweaheulu. Captain Vancouver made the following comments regarding the two men. “John Young: Companion of Kamehameha. A Prime Minister now headed the national government. 72 73 Kamakau. civil and attentive behavior lately experienced by all visitors from the inhabitants of this island. a Brief Sketch of His Life in Hawaii. John Young and Isaac Davis. the Kaua`i chiefs unsuccessfully rebelled under Humehume. Ke`eaumoku.” Hawaiian Almanac and Annual (Thos. He stated: I likewise beg leave to recommend Messrs. King of Kaua`i. In 1794. Humehume was removed to O`ahu under the watch of Kalanimoku. 71 On 8 August 1824.. National and regional authorities were mutually independent of each other save for their common allegiance to Kamehameha. 99. to whose services not only the persons. who no doubt were influential in forming the government of the Sandwich Islands along English custom.72 were divided between Kamehameha and his four principal chiefs.71 As a feudal monarchy. John Young and Isaac Davis. the lands of the kingdom. and all of the Kaua`i chiefs were dispersed throughout the other islands and their lands replaced with Hawai`i island chiefs. but am convinced that through the uniformity of their conduct and unremitting good advise to Tamaahmaah [Kamehameha] and the different chiefs. while the sovereignty resided in the person of the King. with the exception of Kaua`i. 41 . This was an experiment that came about through British relations with Kamehameha as well as the advise of his trusted British advisors. &c.
Kamehameha decreed his son Liholiho (Kamehameha II) heir to the throne. Ascension of Kamehameha II In 1809. the kingdom experienced a radical change in 74 Jarves.”75 Native religion organized and stratified the regional authorities. Although each principal chief was practically independent to govern his own newly acquired districts as he saw fit. until it reached the common tenant by subsequent divisions—each person in the chain bearing fealty to their superior from the lowest class of tenants. improved the laws. through the levels of chiefs. and the native term Kalaimoku with Kuhina Nui. made them more uniform.then divided their lands anew to their lesser chiefs. Ka`ahumanu would serve as Kamehameha II’s minister. Frear. “the ancient traditionary laws of the kingdoms were so arranged and executed as to have all the force of a written code.”74 Kamehameha “put an end to wars. 75 42 . rigidly enforced them. to Kamehameha. erected a strong central government. After the passing of Kamehameha I on May 8th 1819. The use of the term Prime Minister would hereafter be replaced with Premier. Prime Minister and Governors. and generally brought about a condition of comparative peace and security. replacing Kalanimoku. but according to his last will. 19. supra note 50. In return for the lands. checked the oppression of the lesser chiefs. p. while British principles of governance at the national level organized and stratified the roles of the King. 86. while the commoners owed labor and the produce of the soil and ocean. appointed officers more for merit than rank. the chiefs owed military service when called upon. supra note 55.
Id.. and particular types of fish. Kamakau.” Of the eleven degrees of rank within the Chiefly class.76 If there was any infraction of this kapu (taboo). but rather the religion would be overthrown by edict of Kamehameha II. 10. and “in this case Kamehameha II merely continued the practice of free eating. bananas. second highest in rank through his mother. Kamehameha II had the rank of a pi`o Chief. coconuts. 76 77 78 Malo. porpoise and whale.” but “after the period of mourning was over the new ruler placed the land under a new tabu following old lines. The overthrow of the religion not only created a political vacuum to be filled with more Chiefly edicts. shark. No longer would there be a duality of religious and chiefly laws. and the latter were forbidden to eat pork. turtle. but the kapus of the ni`aupi`o and pi`o chiefs were equal to the gods.”78 The repudiation of the eating kapu (taboo) set in motion a chain of events that culminated in the order to destroy all religious temples and idols throughout the realm. supra note 68. the overthrow of the religion was warranted.its governance. the punishment was death.”77 According to Kamakau. The most prominent law that separated religious law from chiefly law was the `ai kapu (eating restriction). 29. Kamakau explained that. men and women ate separately. Accordingly. Keopuolani. but it also threw into question the organization and stratification of Hawaiian society that religion had dictated for centuries. 222. 43 . supra note 23. “free eating followed the death of the ruling chief. “The kapu [taboo] of a god was superior to the kapu of a chief.
”79 Introduction of Christianity When the American missionaries arrived in the kingdom in March of 1820. that they were permitted to come on shore. 60.”80 But these were not the “religious instructors whom the King and chiefs expected from England. which he later extended. provide instruction on reading and writing. 35. Inventing Politics: A New Political Anthropology of the Hawaiian Kingdom. 133. and foreign residents during a third of a century. Malo. supra note 34.. there was much opposition to their landing. (University of Hawai`i Press 2003). Id. John Young. This teaching was limited to the chiefly class. For the next four years the missionaries would reduce the Hawaiian language into written form. 100.”82 because the “condition of the common people was that of subjection to the chiefs. explorers.Professor Juri Mykkanen points out that the abolition of the religion “allowed people more flexibility in their dealings with the increasing numbers of foreigners.”81 The missionaries were granted a license of one-year residency by Kamehameha II. Hopkins. the religion recently had been overthrown and the country had been “modified by contact with traders. and it was only on the assurance of the English settler. that these missionaries came to preach to the same religion as those whom they expected. 104. supra note 1. 80 Kuykendall. supra note 14. 81 82 83 44 . If the missionaries “could not win the Chiefs they had little chance of success with the common people.” and when it was discovered “that they were not.”83 The overthrow of the 79 Juri Mykkanen. and through this medium teach the Christian religion.
The missionaries thereafter entered into a role similar to that held by the 84 85 86 87 Id. 118. Id..Hawaiian religion did not ease this relationship. 117. supra note 34. and added that “when schools are established. Ka`ahumanu. 49. The purpose of the King’s trip was to confirm the cession of his father’s kingdom to Great Britain in 1794. Mykkanen.”87 These events not only paved the way for universal literacy throughout the country. a mainstay of authority that was not diminished by the overthrow of the religion. which later included the former kingdoms of Maui and Kaua`i. formally declared Christianity to be the new religion of the country on December 21st 1823. by requiring strict observance of the Sabbath. Kamehameha II departed on a diplomatic mission to England and the Kingdom came under the administration of Ka`ahumanu as Regent and Kalanimoku her Premier. After Kamehameha II departed the islands. 45 . Ka`ahumanu met with the Chiefs in council in Honolulu “to make known their decision to extend the teaching of palapala and the word of God to the common people. rather.84 The Chiefs would be the ones to decide whether or not the missionaries would have access to the common people.”86 On April 13th 1824. but they also filled the void left by the abolition of religion in 1819 with Christianity. all the people shall learn the palapala [reading and writing]. Kuykendall. On November 27th 1823. supra note 79. it reinforced it through the consolidation of authority in the chiefly class and was the cause of much burden and oppression.85 Six months later she proclaimed by crier laws prohibiting murder. boxing or fighting among the people. work or play on the Sabbath. theft of any description. as Regent.
where “it was the duty of the high priest to urge the king most strenuously to direct his thoughts to the gods. Compounding the problem was the duplicity of governance—regional governance for the native. It served as the unwritten constitution of the country.” the Christian religion would do the same. Governance over the latter was extremely problematic for the Governors and Premier because foreigners viewed themselves as immune and not subject to the King. the four principal Chiefs and their successor children were the regional administrators of governance over the lands given to them by Kamehameha I. to worship them without swerving. 88 Malo. Under this new federal system. Mosaic law in theory became the foundational or organic law for the Chiefs and natives. national governance for the foreigner. the use of Jehovah in the chiefly laws was reminiscent of the use of the deities of Ku. but also imperative for the survival of the Kingdom. but subject to the laws of their own particular countries. as a practical matter. but these laws were not uniformly enforced throughout the islands. supra note 14. 46 . save for the laws proclaimed by the King or Regent at the national level. and a move toward a unitary State and the establishment of a “common law” over the entire country was not only necessary. 188.”88 Thenceforth. Lono and Kanaloa in Kamehameha I’s time. As the old religion “organized and stratified Hawaiian society. [and] to be always obedient to their commands with absolute sincerity and devotedness. It soon became apparent that this system was completely inadequate to deal with the increased presence and demands of the foreign population.priests under the old religion. which was supplemented by native customary law and edicts of the Chiefs. Kane.
” for “when we obtain that which will be of great benefit to us. 89 90 King Kamehameha II letter to from London.O. having appointed me his successor. F. he wrote a letter to Kalanimoku. Kauikeaouli.”91 The benefit that he alluded to appears to be the assurance of British protection from foreign powers. then we will return. he disclosed his own sickness and that of his wife and of one of the chiefs. contracted measles in London. he and the Queen. who departed this life the 8th of May. and his younger brother. and. and I assure your Majesty it is my sincere wish to be thought as worthy of your attention as my father had the happiness to be. Ka`akumu and his younger brother. (translation). Ka`ahumanu. Kapihe. In that correspondence. The whole of these Kamehameha II’s letter was addressed to Pa`alua.” and that the “King of England has taken a great liking to us. But his letter concluded that “we will remain until we see the King. followed by the King only six days later. It may be a misspelling of Ka`ahumanu instead. Pa`alua was another name for Kalanimoku and there is no record of a chief or chiefess named Ka`akumu. much lamented by his subjects. Kamehameha II stated: I avail myself of this opportunity of acquainting your Majesty of the death of my father. during the visit of Captain Vancouver. Kamamalu. & Ex. I have enjoyed a happy reign ever since that period.89 He explained that when the delegation arrived in London a representative of King George IV told them “he was to see to all of [their] needs and…will pay all expenses. In the month before Kamehameha II died. Kamamalu was the first to die on July 8th 1824. 1819. which was the subject of a letter he sent to King George IV on August 21st 1822.”90 After stating that his delegation had yet to meet the King. Hawai`i Archives.Sandwich Island Delegation Meets with King George IV Before Kamehameha II could meet with King George IV. Kamehameha. Id. 91 47 .
”93 In response. “Reverend William Richards Record of Kekuanao`a’s Testimony of What Was Said at the Court of Saint James. 48 . Canning as the Kalaimoku. 93 94 Liverpool. and James Young Kanehoa. and by that agreement Kamehameha acknowledged King George III as his “superior. Kekuanao`a. In his recounting of what took place Kekuanao`a mistakenly referred to Mr. Boki. and beg leave to place them all under the protection of your most excellent Majesty. Accompanying Boki was his wife. 1824.islands having been conquered by my father. and to be thought worthy the confidence I place in your Majesty’s wisdom and judgement. also printed in the Polynesian Newspaper. Naukana. a native term synonymous with Prime Minister. Liliha. and your Majesty’s counsel and advice will be most thankfully received by your Majesty’s most obedient and devoted servant.92 On September 11th 1824. headed by the group’s ranking Chief and brother to Kalanimoku. met with King George IV. I hope your Majesty may deem it fit to answer this as soon as convenient. I have succeeded to the government of them. supra note 55. wishing to observe peace with all nations. 118. King George IV reiterated the position he held in his communication with Kamehameha I as Prince Regent in 1812: that the Sandwich Islands were considered a British protectorate. supra note 63. and four remaining Chiefs of the delegation. as we wish the Protestant religion of your Majesty’s dominions to be practiced here. In attendance with King George IV were his Prime Minister Robert Jenkinson and the Foreign Secretary George Canning.94 Kekuanao`a recalled King George IV’s statement: 92 Jarves.” Archives of Hawai`i. 1851. the Sandwich Island delegation. Boki explained to the British King that the Royal Court in London wished to “confirm the words which Kamehameha I gave in charge to Vancouver” in 1794. October 18. Kapihe. The former idolatrous system has been abolished in these islands.
so as to prevent occupation or conquest by them. rather than international law. which do not amount to full rights of property or sovereignty. if it prefers. Charlton arrived with his wife in Honolulu on April 16th 1825. 95 Richards.” whether it “may set up a complete hierarchy of officials and judges.97 Because of the dissimilarity of practice.95 According to William Edward Hall. Hall explains that a protecting State itself “must be left to judge how far it can go at a given time. I will watch over it. 152. supra note 93. but which are good as against other civilized states. to Ka`ahumanu and to Kalaimoku. 8th ed. A Treatise on International Law. William Edward Hall. it may spare the susceptibilities of the natives and exercise its authority informally by means of residents or consuls.”96 And while the relationship between protector and protectorate is a matter of the protecting State’s municipal laws and its agreement with the protected. (Oxford University Press 1924)..” and varied amongst the protecting States of Europe.I have heard these words. 96 97 98 49 . 150. Id. Id. Return and say to the King. the practice itself was “extremely elastic. lest evils should come from others to the Kingdom. or. “States may acquire rights by way of protectorate over…imperfectly civilized countries. and through what form of organization it is best to work. The evils within your Kingdom it is not for me to regard.”98 It appears that Great Britain chose to exercise the latter when King George IV appointed Richard Charlton as British consul to both the Kingdom of the Sandwich Islands and the Society Group. I will attend to the evils from without. I therefore will watch over him agreeably to those ancient words. they are with yourselves.
”99 [Open with the announcement of Mr. you proceed to make yourself acquainted with the existing government. you will endeavour to maintain a strict Neutrality.The following month. were to continue as usual to officiate with the same authority as before in their respective stations. you will espouse that which you shall find to be most consistent with established Laws and Customs of that People. In his possession. 50 . HBMS Blonde. arrived at Lahaina with the bodies of Kamehameha II and Kamamalu on May 4th 1825. but also expected. and Sandwich Islands. 99 Vancouver. Society.] with such marks of respect as may be proper and acceptable to the Natives. as well as with the influence and interests which any foreign Powers may have in them. and the internal state of this group of Islands. Charlton’s being authorized to look after and protect British subjects in the Friendly. and if forced to take any Part. The following instructions are reprinted in full so it is possible to grasp the full scope of Britain’s view of the Sandwich Islands. supra note 45. under the command of Lord Bryon. Lord Byron held secret instructions from the British Crown regarding the native government of the Sandwich Islands and specific actions to be taken with foreign powers should they exert sovereignty over the islands. If any Disputes as to the Succession on the Death of the late King should unhappily arise. Orders to Lord Byron to land the bodies of the King and Queen. that Lord Byron also apprised the British Consul Charlton of the secret instructions. It was not only plausible. which specifically adheres to the conditions of the 1794 cession entered into between Vancouver and Kamehameha whereby “the chiefs and priests.
you will be apprized of the position in which these Islands stand with regard to the Crown of Great Britain. any native Authority:—with such the question should not be raised. and if by circumstances you should be obliged to come to a specific declaration. 51 . by Captain Kotzbue). and to deny the right of any other Power to assume any Sovereignty. by kind Offices and friendly Intercourse. but by a direct and formal Cession by the Natives. you are then to assert the prior rights of His Majesty. As my Lords have directed that you should be furnished with the voyages of Captains Cooke and Vancouver. and that of Captain Kotzebue of the Russian Navy. or to make any exclusive settlement in any of that group. if proposed. and an essay on the commerce of the Pacific by Captain Macconochie. you are to take the Islands under His Majesty’s protection. and that His Majesty might claim over them a right of sovereignty not only by discovery. to establish any Sovereignty or possession (of which a remarkable instance in mentioned. in whatever native Hands it may be. and by the virtual acknowledgement of the Officers of Foreign Powers. and to secure. in order to avoid any differences or Sentiment on an occasion so peculiar as your present Mission to those Islands. had better be evaded.You will endeavor to cultivate a good Understanding with the Government. but if any Foreign Power or its Agents should attempt. but in such a manner as may leave untouched the actual relations between His Majesty and the Government of the Sandwich Islands. and. a future and lasting Protection for the Persons and Property of the Subjects of the United Kingdom. or have attempted. The right of His Majesty does not think it necessary to advance directly in opposition to. or in controul of. with disapprobation.
In all matters of this nature, so much must depend on the actual state of affairs, which at this distance of time and place cannot be foreseen, that my Lords can give you no more particular instructions; but their Lordships confide in your Judgement and Discretion in treating unforeseen Circumstances according to the Principles of Justice and Humanity which actuate H[is] M[ajesty]’s Councils, and They recommend to You, that while You are ready to assert and vindicate H[is M[ajesty]’s Rights, you will pay the greatest Regard to the Comfort, the
Feelings, and even the Prejudices of the Natives, and will shew the utmost Moderation towards the Subjects of any other Powers, whom you may meet in those Islands. H[is] M[ajesty]’s Rights you will, if necessary, be prepared to assert, but considering the Distance of the Place, and the Infant State of political Society there, You will avoid, as far as may be possible, the bringing these Rights into Discussion, and will propose that any disputed Point between Yourself and any Subjects of other Powers shall be referred to your respective Governments.100
This passage is quoted at length because it explicates the essential basis for British sovereignty over the Sandwich Islands. After the funeral and time of mourning had passed, there was a meeting of the Council of Chiefs on June 6th in Honolulu, with Lord Byron and the British Consul in attendance. At this meeting it was confirmed that Liholiho’s brother, Kauikeaouli, was to be Kamehameha III, but being only eleven years of age, Ka`ahumanu would continue to serve as Regent and Kalanimoku her Premier. Kalanimoku addressed the council “setting forth the defects of many of their laws and customs, particularly the reversion of lands” to a new King for redistribution and
Secret Instructions to Lord Byron, September 14, 1824, BPRO, Adm. 2/1693, pages 241-245, printed in Report of the Historical Commission of the Territory of Hawai`i for the two years ending December 31, 1926, p. 19.
assignment.101 The Chiefs collectively agreed to forgo this ancient custom, and the lands were maintained in the hands of the original tenants in chief and their successors, subject to reversion only in times of treason.102 Lord Byron was then invited to address the Council, and without violating his specific orders of non-intervention in the political affairs of the kingdom, he prepared eight recommendations on paper and presented it to the Chiefs for their consideration.
1. That the king be head of the people. 2. That all the chiefs swear allegiance. 3. That the lands descend in hereditary succession. 4. That taxes be established to support the king. 5. That no man’s life be taken except by consent of the king or regent and twelve chiefs. 6. That the king or regent grant pardons at all times. 7. That all the people be free and not bound to one chief.
8. That a port duty be laid on all foreign vessels.103 Lord Byron introduced the fundamental principles of British governance to the Chiefs and set them on a course of national consolidation and uniformity of governance. His suggestions referred “to the form of government, and the respective and relative rights of the king, chiefs, and people, and to the tenure of lands,”104 but not to a uniform code of laws. Since the death of Kamehameha I in 1819, the Hawaiian Kingdom, as a
Jarves, supra note 55, 122. Id. Voyage of H.M.S. Blonde, 155; reprinted in Kuydendall, supra note 34, 120.
C.S. Stewart, A Visit to the South Seas, in the U.S. Ship Vincennes, during the years 1829 and 1830, (New York: Sleight & Robinson, 1831), 148.
feudal autocracy, had no uniformity of law systematically applied throughout the islands. Rather it fell on each of the tenants in chief and their designated vassals to be both lawmaker and arbiter over their own particular tenants resident upon the granted lands from the King.
FROM BRITISH GOVERNANCE TO HAWAIIAN GOVERNANCE It is not clear whether Ka`ahumanu and the Council of Chiefs clearly understood their relationship with Great Britain as a protecting State, but it was evident that the lines of communication between Great Britain and the Sandwich Islands, through its resident Consul Charlton, had become strained, if not problematic. This could account for the action taken by Ka`ahumanu and the Council of Chiefs when they entered into a treaty with Captain Thomas Jones, on behalf of the United States. According to Professor W.D. Alexander,
On the 22d of December, 1826, a great council of chiefs was convoked by the queen regent, at which Captain Jones and the British consul were present. At this council Mr. Charlton declared that the islanders were subjects of Great Britain, and denied their right to make treaties, to which Captain Jones replied that Charlton’s own commission as consul recognized the independence of the islands. The council then proceeded to business, and soon agreed to the terms of the commercial treaty with the United States, the first between the Hawaiian Government and any foreign power.105
The treaty was a direct challenge to British sovereignty over the Sandwich Islands by not just Ka`ahumanu and the Council of Chiefs, but now by the United States. In
W.D. Alexander, A Brief History of the Hawaiian People (American Book Company 1891), 197.
particular, article two read, “The ships and vessels of the United States, (as well as their Consuls and all other citizens,) within the territorial jurisdiction of the Sandwich Islands, together with all their property, shall be inviolably protected against all enemies of the United States in time of war.”106 An apparent conflict would arise if Great Britain, as the protecting State, became an enemy of the United States as it had as recently as 18121815. Despite the failure of the United States Senate to ratify the treaty, Ka`ahumanu and the Council of Chiefs adhered to its terms in its relations with United States ships and citizens.
Code of Laws Ka`ahumanu called a meeting of the Council of Chiefs on December 7th 1827, to discuss “the act of Kamehameha in giving up the islands to the protection of Great Britain,”107 which was on the minds of the Chiefs since November, and the prospect of drafting a national code of laws for the kingdom. The Chiefs were still yet unclear as to the meaning of the words spoken by King George IV to the Sandwich Island delegation in 1824, and whether they might draft a code of laws on their own or would they need British approval first. Ka`ahumanu and the Council of Chiefs were not aware of the secret instructions given to Lord Byron asserting that the Sandwich Islands were British. After an emphatic debate on the topic, during which Ka`ahumanu accused the British consul of being “a liar and that no confidence is to be placed in anything that he says,”108
Treaties and Conventions Concluded between the Hawaiian Kingdom and other Powers, since 1825 (Elele Book, Card and Job Print 1887), 1.
Chamberlain Journal, November 3, 1827. Chamberlain to Whitney and Ruggles, Dec. 17-27, MS in HMCS Library.
it appeared that the Chiefs came to understand the British relationship to be that of comity rather than vassalage. And in the end, the chiefs were “fully convinced that it would not do to send to England for laws; but that they must make them themselves.”109 The first national code of laws was a penal code of three laws enacted by Kamehameha III with the advice and consent of the Council of Chiefs prohibiting murder, theft and adultery. Guilt of murder was punishable by death, and guilt of the latter two were punishable by imprisonment in irons. Three additional laws prohibiting the selling of rum, prostitution, and gambling were later added to the code, and proclaimed together as the first penal laws of the kingdom on December 8th 1827. The enforcement of these penal laws, however, resided within the multi-tiered feudal structure of various mesne lords who ruled over the people. The “rule of law” had not yet been laid as the cornerstone of constitutional governance and enforcement of the law was not sufficient across the realm, but it was the beginning of modernity and the move from a federal to a unitary form of governance.
Ascension of Kamehameha III By 1829, Kamehameha III, though only fifteen years of age, began to take an active role in the affairs of government,110 and together with Ka`ahumanu, as Premier, and the Council, proceeded to assert that the kingdom was not a British dependency, as previously thought, but a separate and autonomous nation. Captain Finch of the U.S.S. Vincennes, while visiting the island group in 1829, heard for the first time the use of the
Id. Jarves, supra note 55, p. 134.
” U. Finch’s Cruise in the U..S. a more impressive penal code was enacted with five chapters.” Sixteenth Annual Report of the Hawaiian Historical Society and Papers. Ltd. 1908 (Hawaiian Gazette Co. or more modernly Hawaii.word Hawaiian. W. 57 . supra note 34. in allusion to the fact of the whole Groupe having been subjugated by the first Tamehameha [Kamehameha]. Navy Department Archives. Westervelt. Captain Finch reported: The Government and Natives generally have dropped or do not admit the designation of Sandwich Islands as applied to their possessions. Kamehameha III assumed full control of government and appointed Kina`u as his Premier and the successor to Ka`ahumanu. Vincennes. but adopt and use that of Hawaiian. the teaching of the 111 “Capt.”112 Facing Religious Tolerance Religious tolerance did not enter the political scene until 1827 when a Catholic missionary party arrived in Honolulu on July 7th on the ship Comete from the French port city of Bordeaux. 112 113 Kuykendall. 48. December 31. the Catholic missionary party made no request for a license to stay. By order of Ka`ahumanu on January 3rd 1830.111 Upon the death of Ka`ahumanu in 1832. and took notice of a deliberate movement by the government of the islands to form a distinct national identity that was not British.S.113 Unlike the American Protestants who received a conditional license from Kamehameha II in 1820. In 1834. 1909). “Hawaiian Printed Laws Before the Constitution.D. who was the Chief of the principal Island of Owhyhee.S. and for the next two years they were able to establish a small following of the native population. and “each chapter was discussed and ratified by the council of chiefs according to ancient custom before receiving the King’s signature and becoming law. 139.
and as from that time they have been under sentence of banishment until within this past year when we have been brought into new and increased trouble on account of the 114 Id. to be calculated to set man against man in our kingdom. where “religion constituted the organic law of the country. and as it was on this account that the priests of the Romish faith were at that time banished and sent away from this kingdom. but a direct challenge to their authority. Native Catholics were routinely subjected to persecution and punishment at the hands of the Chiefs. which stated.Catholic religion was forbidden throughout the kingdom. and the government’s antiCatholic policy was again the subject of dispute by foreigners. Therefore. one of whom was a British subject.” The only change that took place was the form of religion—from the strict religious kapu to Christianity as decreed by Ka`ahumanu. who was British. arrived in the islands by direction of the Order of the Sacred Hearts. and the Catholic priests. were expelled from the country on December 24th 1831. This prompted Kamehameha III to issue the following ordinance on December 18th 1837.. to Ka`ahumanu and the Council of Chiefs. another Catholic priest. administratively. p. religion was as much a part of chiefly governance as governance was an extension of religion. but that did not change the governing principle of the Chiefs. while. in part: As we have seen the peculiarities of the Catholic religion and the proceedings of the priests of the Roman faith. 142. On September 30th 1836. governance resided solely with the King and his Chiefs. 58 . and as we formerly saw the disturbance was made in the time of Ka`ahumanu I. 114 Since time immemorial. Catholicism represented not only a challenge to the Protestant faith.
We moreover prohibit all vessels whatsoever from bringing any teacher of that religion into this kingdom. 390. Kamehameha III already issued “orders that no more punishments should be inflicted. forbid…that anyone should teach the peculiarities of the Pope’s religion nor shall it be allowed to anyone who teaches those doctrines of those peculiarities to reside in this kingdom. and within a week. supra note 55. 321. Id. and that all who were then in confinement.request of foreigners that we make it known in writing. with my chiefs. I. independent of foreign power.116 When the French warship arrived. Therefore we utterly refuse to allow anyone to teach those peculiarities in any manner whatsoever. 317.. 116 117 59 . for it is not proper that two religions be found in this small kingdom. 115 Jarves.115 A French warship was dispatched to the islands under the command of Captain Laplace and arrived at Honolulu on July 9th 1839. should be released” on June 17th. Laplace informed Kamehameha III. Id. That the Catholic worship be declared free throughout all the islands subject to the king. Therefore. That a site at Honolulu for a Catholic church be given by the government. Captain Laplace issued the following five demands: 1. but she also demands that he conform to the usages of civilized nations.”117 Far from treating the Hawaiian Kingdom as a French ally. “the formal intention of France that the king of the Sandwich Islands be powerful. the last of the native prisoners were freed from the Honolulu Fort. 2. nor shall the ceremonies be permitted to land on these shores.. But a month before the ship’s arrival. and that he consider her his ally.
the Premier. On the morning of June 14. That all Catholics imprisoned on account of their religion be immediately set at liberty.000 from foreign merchants in Honolulu. 4.118 Before the threat of hostilities could be carried out by Captain Laplace. to be restored when it shall be considered that the accompanying treaty will be faithfully complied with. compelled the King to sign an additional convention of eight articles on June 16th that imposed jury selection benefits to Frenchmen and a fixed duty on French wine or brandy not to exceed five per 118 Alexander. war will immediately commence. be brought on board of the frigate “Artemise” by a principal chief. and they must also pay damages which foreigners injured under these circumstances will have a right to claim. That the king place in the hands of the captain of the “Artemise” the sum of twenty thousand dollars as a guarantee of his future conduct toward France. and that the French flag be saluted with twenty-one guns.3. and misled by bad advisers. Maui. were forced to sign the French treaty on behalf of Kamehameha III who was still en route to Honolulu from the kingdom’s capital city of Lahaina. 1839. That the treaty. not feeling satisfied. Kekuanao`a. Kekauluohi. and Captain Laplace. signed by the king. and all the devastations and calamities which may result shall be imputed to them alone. 1891). 60 . A Brief History of the Hawaiian People (American Book Company. and the Governor of O`ahu. 5. Kamehameha III arrived in Honolulu. as well as the money. The funds filled four boxes and were sealed by the government’s wax seal. These are the equitable conditions at the price of which the king of the Sandwich Islands shall preserve friendship with France…If contrary to expectation. 226. The Hawaiian government managed to borrow $20. the king and chiefs refuse to sign the treaty I present.
cent ad valorem. Kamehameha III and his chiefs pursued government reform that sought to establish as well as protect rights of its people. Undeterred by foreign aggression. 61 .
to reside there. Adm. etc. Instead. agriculture. but it would be unwise to treat each constitution as if it were entirely separate and distinct from the others. Great Britain could no longer assert its claim of “sovereignty not only by discovery. printed in Report of the Historical Commission of the Territory of Hawai`i for the two years ending December 31.CHAPTER 3 THE RISE OF CONSTITUTIONAL GOVERNANCE AND THE UNITARY STATE: KAMEHAMEHA III TO KALAKAUA With the implied recognition of the autonomy of the Hawaiian Kingdom by the United States in 1826 and the French in 1839. It was during this time that the Hawaiian Kingdom began to evolve from absolute rule under a multi-tiered federal system of governance to a unitary State under a constitutional monarchy. to engage in business (trade. BPRO. namely in the years of 1840. Foreigners were the source of many of these difficulties that centered on questions relating to their entry into “the country. 1 62 . p. pages 241-245. Uniformity of law across the realm and the centralization of authority had become a necessity. 1852 and 1864.”1 without attracting trouble for itself from the United States and France. missionary work. 19. Kamehameha III’s government stood upon the crumbling foundations of a feudal autocracy that could no longer handle the weight of geo-political and economic forces sweeping across the islands. 1824. these constitutions were crucial links in an evolutionary chain—a de jure progression of constitutionalism that culminated into eighty articles in the 1864 constitution. 2/1693. September 14. This would infer a severance in the chain of de jure governance and complicate matters. to acquire house Secret Instructions to Lord Byron. During this period three constitutions can be identified. 1926.). but by a direct and formal Cession by the Natives.
if these regulations be liberal. Richards committed himself at the urging of Kamehameha III to instruct the Chiefs on political economy and governance. as they ought to be.3 In order to address such vexing problems. the governing order of the Hawaiian Kingdom would also have to adjust to the change in its social system as a result of increased commercial trade and resident foreigners.”2 Just as Great Britain was forced to adjust its old governing order to the new social system brought about by the industrial revolution in the First Reform Act of 1832. Unable to secure an instructor in this way. volunteered to travel to the United States in search of someone who would instruct the chiefs on government reform.lots and land by lease or otherwise. The Hawaiian Kingdom: 1778-1854. William Richards. and a few fundamental laws that will afford security for property. Commenting on the change in Great Britain 2 Ralph S. If then the natives wish to retain the government of the islands in their own hands and become a nation. 1938). 122. or inheritance. it seems to be absolutely necessary that they should establish some defined form of government. if they are anxious to avoid being dictated to by any foreign commanding officer that may be sent to this station. 63 . one of the missionaries own. In 1831. Kuykendall. an Englishman. to build houses on the land so acquired. and such commercial regulations as will serve for their own guidance as well as for that of foreigners. 137. General William Miller. Foundation and Transformation. for example.. Kamehameha III turned to his religious advisors—the missionaries—for advice on the matter. will. vol. commerce will flourish. 1 (University of Hawai`i Press. 3 Id. lease. and all classes of people will be gainers. and to transfer their property either by sale. made the following observation about the Hawaiian governing order.
he stated. (University of Hawai`i Press. 154. 8. Inventing Politics: A New Political Anthropology of the Hawaiian Kingdom. “William Richard’s Report to the Sandwich Islands Mission on His First Year In Government Service. which of course could not have been understood except by full illustration drawn from Hawaiian custom and Hawaiian circumstances.. Smellie states. who had no formal education in political science. Smellie. relied on the work of Professor Francis Wayland. which would be morally and logically binding and acceptable to all its members. 1950).” Fifty-first Annual Report of the Hawaiian Historical Society for the Year 1942 (Hawaiian Printing Company. “Peace and tranquility are not 4 K. President of Brown University.B. “Elements of Moral Science (1835)” and “Elements of Political Economy (1837). William Richards.” According to Richards. the “lectures themselves were mere outlines of general principles of political economy. 66. Richards sought to theorize governance from a foundation of Natural Rights within an agrarian society based upon capitalism that was not only cooperative in nature.brought about by the Industrial Revolution.. two problems were always to the fore: to understand the scope and nature of the changes which were taking place. 6 64 . 5 Juri Mykkanen. 2003).”4 Richards.B. A Hundred Years of English Government (Gerald Duckworth & Co. Wayland was interested in “defining the limits of government by developing a theory of contractual enactment of political society. Professor K. 1838-1839. 1943). Ltd.”5 Richards developed a curriculum based upon Hawaiian translations of Wayland’s two books. but also morally grounded in Christian values. In Richards translation of Wayland’s Elements of Political Economy. that when “population was so rapidly increasing and when trade and industry were expanding faster than they had ever done before. and to adjust the machinery of government to a new social order.”6 Through his instruction. Limited.
”7 From the premise that governance could be formed and established to acknowledge and protect the rights of all the people and their property.” Translation by Keao NeSmith. University of Hawai`i at Manoa. 1840). o ia wale no ke kumu e paa ai na kanawai a me ke aupuni. So the full application of Wayland’s political economy. No ke Kalai`aina (Lahaina: Lahainaluna High School Press. O ka pono o na `lii a me na kanaka. feesimple and life estates. it was said to follow that laws should be enacted to maintain a society for the benefit of all and not the few.” Translation by Keao NeSmith. In the mean time. personal property and agriculture formed the basis of the Hawaiian economy. 7 Id. University of Hawai`i at Manoa. 8 65 . and land agents [Konohiki].”8 Wayland’s theory of cooperative capitalism. making direct reference to Richards’ 1839 instructional book that translated Wayland’s Political Economy into the Hawaiian language: The business of the Governors.maintained when righteousness is not maintained. God provided for the occupation of government leaders in order to bless the people and so that the nation benefits. “God did not establish man as servants for the government leaders and as a means for government leaders to become rich.. Richards asserted. at this point. “Aole hoi e mau ka malu ana a me ka kuapapa nui ana o ka aina ke malama ole ia ka pono. is as follows: to read frequently this law to the people on William Richards. which presupposed private ownership of land and a free market as the foundation of political economy. was hindered at the time because the Kingdom was still in a feudal state of ownership as it had been since Kamehameha I. Ua haawi mai ke Akua i ka oihana alii mea e pomaikai ai na kanaka i mea hoi e pono ai ka aina. According to an 1840 statute.g. The righteousness of the chiefs and the people is the only basis for maintaining the laws of the government. e. 64. and tax officers of the general tax gatherer. could not be fully realized until the people could possess freehold titles. 123. “Aole i honoho mai ke Akua in a kanaka i poe hana na na `lii a i mea e waiwai ai na `lii.
Kamehameha III granted the first Constitution incorporating the Declaration of Rights as its preamble. he can do it in no way except to engage with energy in some business. William Richards. 66 . The code provided that “no chief has any authority over any man. established in the reign of Kamehameha III (Lahainaluna. any farther than it is given him by specific enactment. limb. 127. and thus shall the landlords do in the presence of their tenants on their working days. with proper reference to the welfare of the body. Translation of the Constitution and Laws of the Hawaiian Islands.all days of public work. If a man wish to become rich. The man who does not labor enjoys little happiness. and no tax can be levied. The quoted text is a translation from the Hawaiian text of Richards’ No Ke Kalaaina. not even preserve his life unless he labor for it. Thus Kings obtain kingdoms by striving for them with energy. Kamehameha III proclaimed an expanded uniform code of laws for the kingdom that was preceded by a “Declaration of Rights. Let every one also put his own land in a good state. 9 10 Id. 1842). He cannot make himself comfortable. according to the principles of Political Economy.” The Declaration formally acknowledged and vowed to protect the natural rights of life.. and liberty for both chiefs and people.”10 The following year on October 8th. 28.”9 1840 CONSTITUTION On June 7th 1839. and no man can be dispossessed of land which he has put under cultivation except for crimes specified in the law. and no chief can act as a judge in a case where he is personally interested. He cannot obtain any great good unless he strives for it with earnestness. 68. other than that which is specified in the printed law.
Constitutional Theory. having reference not only to the permanency of his Throne and Dynasty. per se. legislative and judicial. Of his own free will he granted the Constitution of 1840. serve as chief judge of the Supreme Court.” The American Political Science Review 19(2) (1925): 291. The granting of the first constitution by Kamehameha III was not a limitation. By that Constitution. all the attributes of absolute sovereignty. 3 Hawai`i 715. chiefs and people alike. on behalf of the entire Supreme Court. in relation to the rights of persons on the one hand.”11 The first constitution did not provide for separation of powers. King Kamehameha III originally possessed. 67 . he voluntarily divested himself of some of his powers and attributes as an absolute Ruler. 11 12 In the Matter of the Estate of His Majesty Kamehameha IV. executive. and conferred certain political rights upon his subjects. but an incorporation of sharing power. Corwin.The purpose of a written constitution “is to lay down the general features of a system of government and to define to a greater or less extent the powers of such government. e. establishing his Government upon a declared plan or system. in his own person. and sit as a member of the House of Nobles who would enact laws together with representatives chosen from the people. The Crown’s duty was to execute the laws of the land. “Constitution v. and on the other…in relation to certain other political entities which are incorporated in the system.g. of abusive power. as a boon to his country and people. By that instrument he “declared and established the equality before the law of all his subjects.”12 According to Justice Robertson. admitting them to a share with himself in legislation and government. and the prerogatives of the Crown permeated every facet of governance. 720 (1864). but to the Government of his country according to fixed laws and Edward S.
There were no other ministers that ran government by direction of a primary minister appointed by the Crown until 1845. The Office of Prime Minister (Princeton University Press. Joseph Booth. According to Bryum Carter. Bryum Carter. Keith. Shortly after the ascension of George II. 2. 1 (Government Press. vol.13 Evolution of Prime Minister The role of the Prime Minister established by Kamehameha I in 1794 was for all intents and purposes a misnomer.B. 64. in lieu of what may be styled the feudal. thereby creating the “office of Prime Minister” that “made possible the evolution of the modern system of ministerial responsibility. The King and the Imperial Crown (Longman. 14 15 16 68 . the function of ministers in administering government separate from the Crown. when a cabinet ministry was established for the first time by statute. as the British did. and Walpole was able to gain full control of the cabinet ministry. Statute Laws of His Majesty Kamehameha III. George I and II. and often returned to Hanover and left the country to be run by his cabinet ministers who were led by Sir Robert Walpole and Lord Townsend. was primarily as an agent at will of the Crown on matters of national governance. A. the first prototype of the modern Prime Minister emerged during reigns of the first two Hanoverian Kings.civilized usage. 1846).”16 The role of the Hawaiian Prime Minister (Kalaimoku) under Kamehameha I. Green and Co.14 Prior to 1845.. 1936). 3 Hawai`i 616. Hawaiian governance did not experience. 22. but chaotic and uncertain system. which previously prevailed. 1956). Townsend resigned.15 George I had little interest in English politics nor a grasp of the English language. It was an idiosyncrasy of Hawaiian governance. that the title Prime Minister would be replaced 13 Rex v. 630 (1863).
17 Hawaiian Independence and the Question of British Sovereignty Since the meeting of the Sandwich Islands delegation with King George IV in 1824. After the temporary occupation by French 1840 HAWN. All documents and business of the kingdom executed by the Premier. namely King William IV and Queen Victoria. The King shall not act without the knowledge of the Premier. All important business of the kingdom which the King chooses to transact in person. According to the First Act of Kamehameha III passed by the Hawaiian Legislature in 1845. shall be done by the Premier under the authority of the King. and the veto of the King on the acts of the Premier shall arrest the business. 17 69 . The duties of the Premier. nor shall the Premier act without the knowledge of the King. he may do it but not without the approbation of the Premier. All government property shall be reported to him (or her) and he (or she) shall make it over to the King. shall be considered as executed by the King’s authority. as provided by constitutional provision include: All business connected with the special interests of the kingdom. CONST. the only British policy regarding the kingdom appears to have been the secret instructions given to Lord Byron. The Premier shall be the King’s special counselor in the great business of the kingdom. But these instructions apparently were not communicated either to Kamehameha III or to the successors of the British Crown. in addition to the duties enumerated in the constitution. which the King wishes to transact. the Premier.with Premier (Kuhina Nui) after the death of Kamehameha I. headed the cabinet ministry as Minister of the Interior and from this point on was a prime minister in the truest sense of the title.
…had been declared to be under the protection of the British Government. May 21st. were still considered…to remain in the same position. on behalf of Lord Aberdeen. at the expense of that enjoyed by other Powers. two years later reinforced the position of the Hawaiian government. Lord Aberdeen. He also “desired to be informed whether those islands which. Ltd 1925). and subsequently in the year 1824. 7. Lord Palmerston’s report politically dispelled the notion of British dependency and admitted Hawaiian independence.troops under the command of Captain Laplace in 1839. 21 70 . Lord Ingestrie. In a letter to the British Admiralty on October 4th 1842. 19 20 Report of the Historical Commission of the Territory of Hawai`i for the two years ending December 31. All that appears to his Lordship to be required. Viscount Canning. is. 36. supra note 2. and with regard to the protectorate status of the Islands “he was non-committal and seemed to indicate that he knew very little about the subject. wrote: Lord Aberdeen does not think it advantageous or politic. Lord Palmerston acknowledged there was no report on the situation with the French. that no other Power should exercise a greater degree of influence than that possessed by Great Britain. called upon the Secretary of State for Foreign Affairs. Lord Palmerston.21 18 Kuykendall. in the year 1794. Report of the Minister of Foreign Affairs. a member of the British House of Commons.”19 To the Hawaiian government. to seek to establish a paramount influence for Great Britain in those Islands. 1845 (Polynesian Press 1845). Id. 1824 (Star-Bulletin. 185.”18 In response.20 A clearer British policy toward the Hawaiian Islands by Lord Palmerston’s successor. to provide an official response on the matter.
Kamehameha III commissioned three envoys. Basing his actions on certain complaints made to him in letters from the British Consul Richard Charlton.”22 British Occupation While the envoys were on their diplomatic mission. and the United States. and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State. To accomplish this. William Richards. entered Honolulu harbor in February 1843. a British Naval ship. This caused Kamehameha III “considerable embarrassment in managing his foreign relations. who was absent from the kingdom at the time. the political interest of all three powers was to ensure that none would have a greater interest than any other. under the command of Lord Paulet. after threatening to level Honolulu with United States House of Representatives. but for political reasons could not openly exert its claim over and above the other two naval powers. it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I. France. and Sir George Simpson. making outrageous demands on the Hawaiian government. 42 (Government Printing Office 1895) [hereafter Executive Documents]. Paulet eventually seized control of the Hawaiian government on February 25th 1843. Of all three powers. a British subject. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain. Due to the islands prime economic and strategic location in the middle of the north Pacific. HBMS Carysfort.In the summer of 1842. Timoteo Ha`alilio. Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. 22 71 . 53rd Congress. Executive Documents on Affairs in Hawaii: 1894-95.
Id. Calhoun to the Hawaiian envoys. which took place in a grand ceremony on July 31st 1843. The Anglo-French proclamation stated: 23 Kuykendall. the Hawaiian envoys succeeded in their mission of securing international recognition of the Hawaiian Islands “as a sovereign and independent State.. 220. and the United States followed on July 6th 1844 by letter of Secretary of State John C. and the latter sailed from the Chilean port of Valparaiso and arrived in the islands in July 1843. News of Paulet’s action reached Admiral Thomas of the British Admiralty. Kamehameha III proclaimed before a large crowd. supra note 20.25 The Hawaiian Islands was the first Polynesian and non-European nation to be recognized as an independent and sovereign State. After a meeting with Kamehameha III. ua mau ke `ea o ka `aina i ka pono (the life of the land is perpetuated in righteousness). 214. Foreign Affairs Report. but did so under written protest and pending the outcome of the mission of his diplomats in Europe. 4. International Recognition of Hawaiian Independence By 1843.” Great Britain and France explicitly and formally recognized Hawaiian sovereignty on November 28th 1843 by joint proclamation at the Court of London.cannon fire. supra note 2. The King’s statement became the national motto of the country.24 At a thanksgiving service after the ceremony.23 Kamehameha III was forced to surrender the kingdom. 24 25 72 . Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government.
1863) at 101. Great Britain. 26 Thomas Thrum. 1846) at 11. 1879) at 129. 9. 1839. have thought it right to engage. since 1825 (Elele Book. except for the 1875 Hawaiian-Austro/Hungarian treaty. Russia (June 19. “Hawaiian Register and Directory for 1893. 1858). Hamburg (Jan. Switzerland and the United States. Bremen (March 27. 13. 28 29 9 U.S.Her Majesty the Queen of the United Kingdom of Great Britain and Ireland. Japan. 1848) at 15. Netherlands (Oct. 1836 and March 26.26 As a recognized State. Hamburg. 120. 1874) at 119. Great Britain (Nov. Netherlands. Italy. and never to take possession. 1871. French Tahiti (Nov. of any part of the territory of which they are composed (emphasis added). 1887) at 171.27 and entered into extensive diplomatic and treaty relations with other States that included Austria-Hungary. Reprinted at Hawaiian Journal of Law & Politics 1 (Summer 2004): 115. at 5. to consider the Sandwich Islands [Hawaiian Islands] as an Independent State. 1846) at 3 and 9. January 28. 1869) at 99. Belgium. 977. the Hawaiian Islands became a full member of the Universal Postal Union on January 1st 1882. 1886) at 115 and 147. Great Britain’s New South Wales (March 10. Sweden-Norway. 4. supra note 22. neither directly or under the title of Protectorate. France. and Switzerland (July 20. taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations.” Hawaiian Almanac and Annual (1892): 140. 1863) at 89. Card and Job Print 1887): Belgium (Oct.28 Regarding the United States. Bremen. which is at the Hawai`i Archives. maintained more than ninety legations and consulates throughout the world. can be found in Treaties and Conventions Concluded Between the Hawaiian Kingdom and other Power. Germany (March 25. Samoa (March 20. 16. France (July 17. Spain. September 8. or under any other form. 1864) at 83. Russia. the Hawaiian Kingdom entered into four treaties: 1849 Treaty of Friendship. and His Majesty the King of the French. 24. Commerce and Navigation. 1862) at 71. 19. Italy (July 22. 19. Denmark (Oct. 73 . 1853) at 41. reciprocally. 1882) at 143. Stat. Germany. March 26. 1854) at 43. Sweden and Norway (April 5. Denmark.30 1883 Postal Convention Executive Documents. 7 and 57. 8. Portugal (May 5.29 1875 Treaty of Reciprocity. 1846. Reprinted in Hawaiian Journal of Law & Politics 1 (Summer 2004): 114. 1855) at 47. Japan (Aug. 1862) at 79. Portugal. Spain (Oct. 27 These treaties.
in time of war the neutrality of the Hawaiian Islands. to induce them to adopt the same policy toward the said Islands. receive every possible protection. 736. Reprinted at Hawaiian Journal of Law & Politics 1 (Summer 2004): 126. whether by discovery or by formal cession from Kamehameha I. 31 32 33 74 .S. and Her Majesty the Queen of Spain engages to respect. 1863 Spanish Treaty. 1399. within the ports and waters of the Hawaiian Islands. for example. Stat. shall. 25 U. short of active hostility. Article XXVI of the 1863 Hawaiian-Spanish treaty.31 and the 1884 Supplementary Convention to the 1875 Treaty of Reciprocity. Stat. the Hawaiian Kingdom continued to evolve as a constitutional monarchy as it kept up with the rapidly changing political. 30 19 U. Stat.Concerning Money Orders. 23 U. social and economic tides that showed no signs of receding from its shores. As an independent State. provides: All vessels bearing the flag of Spain. supra note 28.33 (emphasis added) The British government lauded Admiral Thomas’ action and by its act of formal recognition of Hawaiian independence. the British government relinquished any and all legal claims over the Hawaiian Islands.S.32 The Hawaiian Kingdom was also recognized within the international community as a neutral State as expressly stated in treaties with the Kingdom of Spain in 1863 and the Kingdom of Sweden and Norway in 1852. and to use her good offices with all the other powers having treaties with the same. in time of war. 108.S. 625. Reprinted at Hawaiian Journal of Law & Politics 1 (Summer 2004): 129. Reprinted at Hawaiian Journal of Law & Politics 1 (Summer 2004): 134.
Responding to a slew of appeals to remove these foreign advisors who replaced native Chiefs. On October 29th of that year.P. Kamehameha III penned the following letter that was communicated throughout the realm—a letter that speaks to the time and circumstance the kingdom faced: Kindly greetings to you with kindly greetings to the old men and women of my ancestors’ time. the only attorney in the kingdom.Formalizing Hawaiian Law In 1845 Kamehameha III refocused his attention toward domestic affairs and the organization and maintenance of the newly established constitutional monarchy. as Minister of Finance. he commissioned Robert Wyllie of Scotland to be Minister of Foreign Affairs. I see that I must have new officials to help with the new system under which I am working for the good of the country and of the old men and women of the country.” and to unite with them what is good under these new conditions in which we live. not out of contempt for the ancient wisdom of the land. All were granted patents of Hawaiian citizenship prior to their appointments. That is why I have appointed foreign officials. These appointments sparked controversy in the kingdom and renewed concerns of foreign takeover. as Attorney General. but because my native helpers do not understand the laws of the great countries who are working with us. Judd. a former missionary. and John Ricord. G. That is why I have dismissed them. William Richards as Minister of Education. I earnestly desire to give places to the commoners and to the chiefs as they are able to do the work connected with 75 . This was a critical time for the Kingdom to maintain its independence. I desire all the good things of the past to remain such as the good old law of Kamehameha that “the old women and the old men shall sleep in safety by the wayside.
Kamakau.” according to Mykkanen. the kingdom was only in its fourth year of constitutional governance and the shortcomings of the first constitution began to show. One of his first tasks was establishing a diplomatic code for Kamehameha III and the Royal Court. He was an attorney by trade and by all accounts a very able and professional attorney well versed in both the civil law of continental Europe and the common law of both Britain and the United States. 76 . Among the chiefs Leleiohoku. “Early Constitution of the Judiciary of the Hawaiian Islands.the office. “Besides prescribing rank orders. A. I have therefore refused the letters of appeal to dismiss the foreign advisors.” Maile Wreath. and the appropriate 34 35 Samuel M. The people who have learned the new ways I have retained. and I wish there were more such men. February 1875. Judd. 401. And as soon as the young chiefs are sufficiently trained I hope to give them the places. of his residence in Louisiana. “the mode of applying for royal audience. Ruling Chiefs of Hawai`i (Kamehameha Schools Press 1992). But they are not now able to become speakers in foreign tongues.F. and John Young [Keoni Ana] are capable of filling such places and they already have government offices. G. reprinted in Hawaiian Almanac and Annual (Press Publishing Company Steam Print. as a consequence. one of them over foreign officials. for those who speak only the Hawaiian tongue. Paki. Chief Justice Judd stated that Ricord “seems to have been learned in the civil as well as the common law. Here is the name of one of them.”35 When Ricord arrived in the Islands. He understands the work very well.L. 65. no doubt.34 John Ricord arrived in the Hawaiian Islands in 1844 from Oregon and was retained as Special Law Advisor to Kamehameha III. 1888). Kapeau. based on the principles of the 1815 Vienna Conference. Secretary of the Treasury.
while the tradition in Great Britain and the United States was the Common law. to the Hawaiian Legislature. 38 Id. Kamakau recounted Ricord’s view: The laws of Rome. 37 Report of the Attorney General Read Before His Majesty. was what system of law should one “prepare the King’s Government” under? France and Belgium’s government was based on a Civil or Roman law tradition. May 21st. suited to the Hawaiian Islands as a recognized nation in reciprocity with others so mighty. so enlightened and so well organized as Great Britain. 161. and Belgium. it will become your duty to prepare [the King’s] Government to concert in some measure with theirs. The Hawaiian people must have laws adapted to their mode of living. “there is an almost total deficiency of laws. In a report to the Legislature. Wednesday. “the Constitution had not been carried into full effect [and] its provisions needed assorting and arranging into appropriate families. the new court etiquette set the Hawaiian standard for practically everything that constituted the royal symbolism. the United States of America. 3.dress code. France or any other country. On this topic. Ricord concluded that. could not be used for Hawai`i. These Powers having received His Majesty into fraternity. Western Asia and Africa descended. (University of Hawai`i Press 2003). that government from which all other governments of Europe.”38 The underlying issue. 5.. France. But it is right to study the laws of other 36 Juri Mykkanen. 77 .”36 His second and more important task was to draft a code that better organized the executive and judicial departments. which was submitted to the Legislature for sanction and approval. and prescribed machinery to render them effective. nor could those of England.”37 Ricord observed that. 1845 (The Polynesian Press 1845). Inventing Politics: A New Political Anthropology of the Hawaiian Kingdom. however.
40 78 . Title to territory. after which. Attorney General Ricord “submitted at intervals portions of the succeeding code to His Majesty in cabinet council of ministers. Distinguishing Dominium from Real Property There is a distinction between title to the territory of a state and title to real property. infused with some civil law reasoning. 39 Kamakau. Governmental organization leaned toward the principles of English and American common law. Because the Hawaiian Islands sat at the international crossroads of trade and commerce that spanned across the Pacific Ocean. articles and sections. merchants. had influenced the evolution of Hawaiian law since Kamehameha I. Compilers Preface. 402. William Richards. supra note 34.”40 These organic laws were based on a hybrid of both civil and common law principles that spanned four hundred forty seven pages and subdivided into parts. where they have first undergone discussion and careful amendment. chapters. adoption or rejection. as from a judiciary committee. they have next been transferred to the Rev. amendment. Statute Laws of His Majesty Kamehameha III (Government Press 1846). 6. is what jurists called dominium. from both the civil and common law countries.peoples. for faithful translation into the native language. and fitting that those who conduct laws offices in Hawai`i should understand these other laws and compare them to see which are adapted to our way of living and which are not. but at the very core the was to be Hawaiian. according to Hugo Grotius. they have been reported to the legislative council for criticism. discussion.39 Complying with the resolution of the legislature.
e. life estate and leasehold—and the conditions imposed on real property by the person of the King were gradually replaced by legislative enactments of a modern State—e. and to him belonged all the land from one end of the Islands to the other. the dominium was described as follows. Kamehameha I. but retained ownership over them. 69. antecedent to their possession. edited by William M. McKinney and Burdett A. eminent domain. It belonged to the chiefs and people in common. CONST. 13. allegiance. of whom Kamehameha I was the head. Grotius on the Rights of War and Peace. was the founder of the kingdom. on the other hand. derived from the feudal law. 41 Ruling Case Law as Developed and Established by the Decisions and Annotations. 79 . Rich.” 42 Real property.43 Hugo Grotius. taxes. 10 (Bancroft-Whitney company 1915). 42 43 1840 HAWN.g. feesimple. there was not formerly. whereby the King granted out the use and profits of the land to his vassals on certain conditions.being the origin of property or ownership.41 This derived from the principle that the “state had an original and absolute ownership of the whole property possessed by the individual members of it. and that their possession and enjoyment of it being subsequently derived from a grant by the sovereign. vol. According to Hawaiian constitutional law. Any breach of the conditions would cause dispossession and the land would be reallocated to someone else. though it was not his own private property. Wherefore. translated by William Whewell (Oxford University Press 1853). These feudal possessions came to be known as real property—i. or has the direction of the kingdom (emphasis added). and had the management of the landed property. and is not now any person who could or can convey away the smallest portion of land without the consent of the one who had.
”45 The government held both the dominium and original fee-simple title to all the lands.46 If the title was confirmed to have been lawfully acquired from Kamehameha I. and which it is right and equitable that the government should recognize and protect. 44 Statute Laws of His Majesty Kamehameha III. whether in fee. and 3rd. the tenant [native commoner]. the government. 1753. vol. Black’s Law. and of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare.By statute in 1846. this constitutional provision was interpreted as establishing “three classes of persons having vested rights in the lands—1st. the landlord [Konohikis]. life estates or leases acquired “anterior” to date of the establishment of the Land Commission to the reign of Kamehameha I. vol. for life or for years. as being lawful in themselves. 107. II (Government Press 1847). it received a Land Commission Award subject to the rights of native tenants. his successors or agents. 45 46 80 . (West Publishing Company 1968). confirm or reject all private claims to fee-simple titles. a Board of Commissioners to Quiet Land Titles (Land Commission) was established on December 10th 1845 to investigate.”44 When rights are constitutionally vested “they are not subject to be defeated or cancelled by the act of any other private person. I (Government Press 1846). 4th ed. 83. and settled according to the then current rules of law. it next [became] necessary to ascertain the proportional rights of each. subject to the vested undivided rights of the chiefly and native tenant classes. 2nd. Statute Laws of His Majesty Kamehameha III. In order to verify private claims to property since the reign of Kamehameha I.
so that its chief may have his share of all the various products of the uka or mountain region. the following resolution was unanimously passed by the Privy Council.The Great Mahele (Division) In 1848. …subject only to the rights of the Tenants. Steam Print 1882).” And an ili kupono held the same traits as an ahupua`a despite its origin. extending from the sea to the mountain. It was agreed upon that in lieu of quitclaiming their undivided right in the dominium. it was understood that the King would participate in his private capacity and not as head of the government. He therefore makes known to the other Konohikis.47 During this division. 47 48 Minutes of the Privy Council. December 11. 129.D. and the kai or sea. “Ke ae aku nei au i keia mahele. that they are only holders of Lands under him.49 Whereas. in order to “ascertain the proportional rights” of the government. Aohe ou kuleana maloko. I have no more rights within. Belonging to the King the lands written above. Id..” Translation: “I consent to this division it is good. Alexander. where it notes the “King now claims to be Konohiki (Chief) of a great portion of the lands. ua maika`i. mental and moral improvement of our people that the W. the cultivated land. capable of being converted into a fee-simple. Before the chiefs received lands they had to first relinquish all claims to lands previously held by them in the following form and signed. Advertiser Co. No ka Mo`i is kakau ia maluna. chiefly and native tenant classes. or land division. 49 81 . 1847.” The signature of the Konohiki signified the evidence of consent and bound the Konohiki and his successors to the rules and conditions of the division between themselves and the Government as well as the division with the native tenants. it has become necessary to the prosperity of our Kingdom and the proper physical. the King in Privy Council initiated the Great Mahele (Division). which would not only guide the division process. 87.”48 On December 18th 1847. from the government over large tracts of land called ahupua`a and `ili kupono. 4-5. but a typical ahupua`a “is a long narrow strip.C. This was reflected in the Privy Council minutes. An ahupua`a varies in size and shape. Surveyor General’s Report: A Brief History of Land Titles in the Hawaiian Kingdom (P. but also contractually bind the King and the Konohikis to adhere to the rules of the division. each chief would receive a freehold life estate. but he will only take a part and leave them a part.
undivided rights at present existing in the lands our Kingdom. that we will be guided in such division by the following rules: 1—His Majesty. our Most Gracious Lord and King. and the remaining third to the Tenants. as pointed out by the Constitution and Laws. to have and to hold. We Kamehameha III. to them. to them. 5—The division prescribed in the foregoing rules. subject only to the rights of the Tenants. in Privy Council Assembled. subject only to confirmation by the King in Privy Council. which shall be set off to the said Tenants in fee-simple. their heirs and successors forever. one-third to the chiefs and Konohiki(s) in proportion to their possessions. Konohiki or Tenant shall desire such division. Therefore. His heirs and successors forever. 2—One-third of the remaining lands of the Kingdom shall be set aside. to have and to hold to Him. shall in accordance with the Constitution and Laws of the Land. whenever His Majesty or any of said Tenants shall desire such division. King of the Hawaiian Islands and His Chiefs. 3—The division between the Chiefs or Konohiki(s) and their Tenants.. shall be entitled to a feesimple title to one-third of the lands possessed and cultivated by them. and distinctly defined. do solemnly resolve. to have and to hold. retain all his private lands. shall in no wise interfere with any lands that may have been granted by His Majesty or His 82 . the actual possessors and cultivators of the soil. as the property of the Hawaiian Government subject to the direction and control of His Majesty. whenever any Chief. prescribed by Rule 2nd shall take place. 4—The Tenants of His Majesty's private lands. shall be separated. as his own individual property. their heirs and successors forever.
. the For a expanded discussion on the Great Mahele and the vested rights of native tenants. The dominium.” and fee-simple titles shall be granted to all other allottees upon the Award of the Board of Commissioners to quiet Land Titles. 7—All the lands of His Majesty shall be recorded in a Book entitled “Register of the lands belonging to Kamehameha III. By virtue of the 1850 Kuleana Act.” and deposited with the Registry of Land Titles in the Office of the Minister of the Interior. 6—It shall be optional with any Chief or Konohiki.” The Contemporary Pacific: A Journal of Island Affairs 15(1) (2005): 237. to any Hawaiian subject or foreigner. but now only the vested rights of the native tenant class. King of the Hawaiian Islands. as the lands of the Hawaiian Government. shall be recorded in a Book entitled “Register of the lands belonging to the Hawaiian Government. see Surveyor General’s Report. Umi Perkins.Predecessors in fee-simple. or any other Konohiki whenever they “desire such division” as prescribed by rules 3 and 4. The granting of freeholds in fee or for life to the Konohiki class did not diminish the government’s title to the dominium that remained with the state. and all lands set aside. in the place of setting aside one-third of the said lands as Government property. “Kahana: How the Land Was Lost (bookreview). however. holding lands in which the Government has a share. which payment shall operate as a total extinguishment of the Government right in said lands. 50 83 . nor in any way operate to the injury of the holders of unexpired leases. “Teaching Land and Sovereignty—A Revised View. and David Keanu Sai. supra note 47. to pay into the Treasury one-third of the unimproved value of said lands.” Hawaiian Journal of Law and Politics 2(Summer 2006): 97.50 Native tenants who desired a fee-simple title to land and sought to divide their interest out of the dominium could approach the King. in his private capacity as a Konohiki. no longer possessed the undivided vested rights of the chiefly class.
leaving no kindred surviving. in fee-simple” by applying to special agents appointed by the Minister of the Interior. shall suffer the punishment of death. passed on the 21st day of December. Compiled Laws of the Hawaiian Kingdom (Hawaiian Gazette 1884). 1849. the Government and Konohiki classes waived their commutation fee of one-third of the unimproved value that would have been payable by the native tenant class in order to acquire their fee-simple title to their entire lands claimed. An Act Confirming Certain Resolutions of the King and Privy Council. all such land and lands shall thereupon escheat and revert to the owner of the Ahupuaa. or entitled to any estate of inheritance or kuleana in any land or lands in this Kingdom. the duty of dividing out native tenant rights was resumed by the Government and Konohikis. 1849. 1851. August 6. Chapter VI. and all his property shall be confiscated to the government. Penal Code. For those native tenants who were unable to file a claim with the Land Commission. a native tenant could not divide out their interest within lands already conveyed by the government or Konohikis. 477. of which such escheated kuleana had originally formed a part. whether in fee. and. In other words.56 By Privy Council resolution.53 The prescribed division was regulated by rule 5. June 16. 1850 52 Id. December 21.51 This Act also defined the division for native tenants to be one quarter acre for a house lot and whatever lands lie in actual cultivation. 54 55 A remainderman is a person who inherits the property in fee upon the death of the owner of a life estate. Section 4. for life or for years. Granting to the Common People Allodial Titles for Their Own Lands and House Lots. they could divide out their interest on lands held by the government “in lots from one to fifty acres.” Section 9. A. and Certain Other Privileges (also known as the Kuleana [Freehold] Act). 51 Sections 5 & 6.54 remainder. “Upon the decease of any person owning. including the Crown.” 56 84 .52 When the Land Commission statutorily ceased to exist in 1854. 53 “Whoever shall commit the crime of treason.Land Commission was empowered by the government and Konohiki class to grant feesimple titles to native tenants who were encouraged to submit their claims to divide out their interest when the Mahele was being discussed in Privy Council.55 or want of heirs. unless the lands have reverted to the same by treason.. possessed of. as well as authorizing the Land Commission to act on their behalf in the division as prescribed by the Mahele rules 3 and 4. Ili or other denomination of land. An Act to Provide for the Appointment of Agents to Sell Government Lands to the People.D.
” or in the Hawaiian language. not even that of royalty itself. a priori the right is vested in a class and not a finite number of individuals like the Konohiki class. 70 (1851).58 In fact. “Teaching Land and Sovereignty. or by purchase from freeholders themselves. Foreign nationals were initially barred from acquiring fee-simple Kekiekie v. and according to Chief Justice William Lee. 57 Umi Perkins. 85 . As a class. the Konohikis made up a finite number affixed to those who were recognized chieftains in the Hawaiian Kingdom. nearly all the desirable Government land was sold.”59 Non-aboriginal Hawaiian subjects were able to acquire freehold estates and leases through government grants and awards by the Land Commission. “koe nae na kuleana o na Kanaka ma loko. generally to natives. supra note 47. see also Kuki`iahu v.”57 This is the reason why all conveyances in the Hawaiian Islands have the uniform clause in deeds “reserving the rights of native tenants. the rights of native tenants exist in perpetuity. Edward Dennis. native tenants acquired in excess of 150. who bound themselves and their successors to the rules and conditions of the Great Mahele. and no power can convey them away. Native tenants who divided out their interests from the dominium did not affect the vested rights of native tenants who did not divide. 1 Hawai`i 69. 1 Hawai`i 90 (1851). Therefore. William Gill.” By 1893.” Hawaiian Journal of Law and Politics 2 (Summer 2006): 100. the Surveyor General reported to the Legislative Assembly that between “the years 1850 and 1860.000 acres of land by purchase of government grants pursuant to the 1850 Kuleana Act. 24.According to the registry book there were only two hundred fifty-three recognized Konohikis. these rights are “secured to them by the Constitution and laws of the Kingdom. 58 59 Alexander. but the native tenant class is ever increasing and is comprised of all natives who were not Konohikis.
and among other lands. All titles to real property were subject to the following conditions: 1. that the well being of their country must essentially depend upon the proper development of their internal resources. To resume certain lands upon just compensation assessed. streets. To levy taxes upon every tax yielding basis. if so the law decrees. and that in order to its proper cultivation and improvement. by means of roads. and Richards’ teachings laid the foundation for a new political economy and constitutional change. 5. The Hawaiian rulers have learned by experience.. 3.60 These acts effectively brought to a close the feudal state of land tenure in the Hawaiian Islands. To punish for high treason by forfeiture. To encourage and even enforce the usufruct of lands for the common good. in things real. 2. To provide public thoroughfares and easements. 61 86 .titles under the 1845 Organic Acts. 85. &c. supra note 44. to which he and his children can lay no intrinsic claim. but this law was later repealed under the “Alien Disability Act” of July 10th 1850. I). the holder must have some stake in it more solid than the bare permission to evolve his daily bread from an article.61 60 Statute Laws (vol. that regard must be had to the immutable law of property.. 86. and in things personal as chattels. 4. if for any cause the public good or the social safety requires it. as lands. for the common good. of which land is the principal. if so the law decrees. Id. bridges.
36. Ltd. a framework of government describing the legislative. the “three powers of a modern [constitutional monarchy] have distinct functions. whose duty was to revise the Constitution of 1840. headed by William Lee from the House of Representatives. As part of an interdependent whole. and an amendment article. one to be chosen by the King. a declaration of rights. 62 87 .62 Provisions to Address Imminent Threats to the Realm The amended constitution did not have a preamble. executive and judicial organs. but was organized in the same manner as the Massachusetts constitution. The Massachusetts constitution was the most advanced of any constitution of the time and was organized into four parts: a preamble. and one by the Representatives. According to Hegel’s theory of a constitutional monarchy. followed the structure and organization provided for by the Massachusetts Constitution of 1780. and an article describing the mode of amending the constitution. and judicial powers. 1841-1918 (The Hawaiian Gazette Co. The commission. The draft of the revised Constitution was submitted to the Legislature and approved by both the House of Nobles and the House of Representatives and signed into law by the King on June 14th 1852. the legislative. but are not completely separate. a framework of government that described the functions of the executive subdivided into five sections. each power is defined not only by its own particular Robert C. 1918). Lydecker. the Legislature passed a resolution calling for the appointment of three commissioners. to propose amendments to the constitution. with the exception of the order of the form of government: a declaration of rights..1852 CONSTITUTION In 1851. one by the Nobles. Roster Legislatures of Hawai`i.
000 from Kamehameha III as surety to prevent the persecution of Catholics. returned the four Bernard Yack. but not without the approbation of the Kuhina Nui. French Rear Admiral Hamelin who arrived in the islands on the 22nd on the frigate Virginie. The King. Laplace also forced the King to sign another treaty imposing jury selection benefits to Frenchmen and a fixed duty on French wine and brandies. These provisions would allow the King to act swiftly in a dire situation should circumstances demand. if indispensable to free it from the insult and oppression of any foreign power. All important business for the Kingdom which the King chooses to transact in person. he may do. though. Article 45.” The American Political Science Review 74(3) (1980): 713. retained remnants of absolutism as a carryover of the former constitution.function. in case of invasion or rebellion. these provisions included: Article 39. by constitutional provision. In other words. when French Captain Laplace exacted $20.”63 The constitution. the Crown was capable of altering the constitution or even cession of the kingdom to a foreign state without legislative approval. by and with the approval of His Cabinet and Privy Council.000. In particular. or any part of it under martial law. can. On March 21st 1846. 63 88 . but also by the other powers which limit and interact with it. Tensions with France These provisions were retained particularly because there had been tenuous relations with France since 1839. and he can ever alienate it. The King and Kuhina Nui shall have a negative on each other’s public acts. “The Rationality of Hegel’s Concept of Monarchy. place the whole Kingdom.
shall not be prohibited.boxes containing the $20. and shall be liable to such reasonable duty as the Hawaiian Government may think. and other spirituous liquors are however excepted from the stipulation.64 Three days later. brandies. Alexander.000. Admiral De Tromelin. Wines. nor shall they be subject to an import duty higher than five per cent ad valorem. fit to lay upon them. and contained “two objectionable clauses. who arrived in the islands on August 12th on board the French frigate Poursuivante. No British [French] subject accused of any crime whatever shall be judged otherwise than by a jury composed of native or foreign residents. brandies. 64 W. and other spirituous liquors” from both countries.00 to the Hawaiian government. A Brief History of the Hawaiian People (American Book Company 1891). provided always that the amount of duty shall not be so high as absolutely to prohibit the importation of the said articles. “sent the king a peremptory dispatch containing ten demands which had been drawn up by Mr. Tension again arose with the French in August 1849.D. These treaties superseded the British 1836 treaty and the French 1839 treaty. when Consul Dillon accused the Hawaiian government of violating the 1846 French treaty. proposed the British [French] Consul and accepted by the Government of the Sandwich Islands. 65 89 . ARTICLE VI. British [French] merchandise or goods recognized as coming from the British [French] dominions.”65 ARTICLE III. which proved to be a fruitful source of trouble in subsequent years. Kamehameha III reluctantly signed two identical treaties with the French and British that reiterated the Laplace treaty’s provision of jury selection and a cap on duties on “wines. Id. 261.
but private property would be restored. and that in any event the persons and property of French residents would be scrupulously guarded. The Hawaiian government sent a courteous.Dillon. De Tromelin landed a fully armed force in Honolulu and took possession of the government fort... and seized the king’s yacht.”66 These again centered on the treatment of Catholics. the ten day occupation and the destruction of the fort was justified under France’s international right of reprisal. 267. the duty on spirituous liquors. the French consul presented the same demands as had Dillon and resumed his “policy of an annoying 66 Id. Id. with the French consul Dillon and his family. 268. reply explaining that it had not violated the treaty and that if any rights of French citizens have been violated. The government offered to refer any dispute to the mediation of a neutral power. “the customhouse and other government buildings. 266. Id. By proclamation of the Admiral on the 30th. yet firm. 67 68 90 ..”68 The fort had previously been abandoned and the Hawaiian government provided no opposition to the landing of French troops. Louis Perrin replaced Dillon as French consul and arrived in Honolulu on December 13th 1850. and that until justice had been denied by them there could be no occasion for diplomatic interference. and informed the admiral that no resistance would be made to the force at his disposal.67 Undeterred by reason and fairness. To the government’s surprise. The two French warships left Honolulu for San Francisco on September 5th 1849. the courts of the kingdom were open for the redress of all such grievances. and the unequal treatment of Frenchmen. together with seven merchant vessels in port.
and acknowledged and protected the rights of its citizenry. He gave us a Constitution and fixed laws.diplomatic interference with the internal affairs of the kingdom. to be used as a safeguard to meet any sudden emergency.”71 On February 16th 1854. the King and Premier placed the kingdom temporarily under the protection of the United States. Id.”69 As a result.. 278.”72 Negotiations between Wyllie and the American commissioner David L. which greatly diminished the annoyance exhibited by the French consul. 277. he secured the people in 69 Id. The age of Kamehameha III was that of progress and of liberty—of schools and of civilization. the King “commanded Mr. Despite open threats to the kingdom.. and of threats by filibusters from abroad and by conspirators at home to overturn the government. Gregg were not successful and the prospect of annexation came to a close upon the death of Kamehameha III on December 15th 1854. Id. By 1853. 70 71 72 91 . Wyllie [Minister of Foreign Affairs] to ascertain on what terms a treaty of annexation could be negotiated. Id. the topic of annexation to the United States was a subject of serious deliberation by the King who “was tired of demands made upon him by foreign powers.70 These events and other threats to the safety of the kingdom caused great trepidation amongst the King and other governmental officials and constituted the driving force behind the prospect of ceding the Hawaiian Islands to the United States.. 270. Kamehameha III successfully transformed Hawaiian governance from a feudal autocracy to the edifice of constitutional government that recognized a uniform rule of law.
by statute. This independent department was headed by a President who presided over a five member Board of Education that was “superintended and directed by a committee of the Privy Council.74 Article 25 provided that the “successor [of the Throne] shall be the person whom the King and the House of Nobles shall appoint and publicly proclaim as such. He was the adopted son of the King. An Act to separate the office of Kuhina Nui from that of Minister of Interior Affairs. and was confirmed successor on April 6th 1853. He gave them a voice in his councils and in the making of the laws by which they are governed. now by law imposed upon him. and has left the impress of his mild and amiable disposition on the age for which he was born. January 6. 74 75 76 92 . supra note 56. Lydecker. in accordance with Article 25 of the Constitution of 1852.” The first year of his reign he approved an Act to separate the office of Kuhina Nui from that of Minister of Interior Affairs. the cabinet consisted of 73 Speeches of His Majesty Kamehameha IV (Government Press 1861). He was a great national benefactor. 199. supra note 62. and removed the last chain of oppression. during the King's life.73 Ascension of Kamehameha IV Alexander Liholiho succeeded to the throne as Kamehameha IV. and responsibilities of the office of Minister of Interior Affairs. 1855.”75 In 1855.the title to their lands. 49. The legislature reasoned that the “Kuhina Nui is invested by the Constitution with extraordinary powers.”76 From this point. 5. the Department of Public Instruction was established. and whereas the public exigencies may require his release from the labor. replacing the ministry of Public Instruction whose minister formerly served as a member of the cabinet council. Compiled Laws.
of the Constitution of 1852. Minister of Finance. Regarding those sovereign prerogatives of absolutism retained in the constitution. in Privy Council. and the Attorney General.79 On the very same day. every sixth year. which changed legislative sessions from annual to biennial. Harris. but was unsuccessful. During this period the District Attorneys throughout the islands performed the functions of the office. the Premier. to be laid before the King and Legislature for their consideration.the Minister of the Interior.”78 The constitution was also amended in 1856. On October 3. was to be the successor of the Hawaiian Throne in accordance with Article twenty-five of the 1852 constitution. The responsibility for such change would fall on his successor and brother. and received confirmation by the Nobles. provided that “whenever the throne shall become vacant by reason of the King's death the Kuhina Nui shall perform all the duties incumbent on the King. Victoria Kamamalu. Prince Albert. leaving the Kingdom without a successor to the throne. Lot Kapuaiwa. Kamehameha IV received confirmation from the Nobles that his minor son. 211. The young Prince died August 19th 1862. proclaimed Lot Kapuaiwa to be the successor to the Throne in accordance with Article 25 of the Constitution of 1852. to make a complete census of the inhabitants of the Kingdom. supra note 56.77 It was also the “duty of the Board of Education. in an Extraordinary Session of the House of Nobles. the office of Attorney General was not filled until 1862 with the appointment of Charles C. 79 93 . Kamehameha IV sought to rid these prerogatives by constitutional amendment. Article 47. and shall have and After John Ricord left the kingdom in 1847. Ascension of Kamehameha V On November 30th 1863. Minister of Foreign Affairs. counting from the year 1860. 1859. and left the Kingdom without a successor. 77 78 Compiled Laws. Kamehameha IV died unexpectedly. He was thereafter styled Kamehameha V.
and this formed the main basis for the King to convene the first constitutional convention whose duty was to draft a new constitution. were not just problematic to him. which ironically was authorized by the very constitution he sought to amend. but also a source of great difficulty for his late brother Kamehameha IV and the Legislative Assembly. 1864 CONSTITUTION Kamehameha V and his predecessor recognized these two articles as a hindrance to responsible government. which by this Constitution are vested in the King. after approving this Constitution. In Privy 80 Lydecker. 94 . shall take the following oath. Victoria Kamamalu provided continuity for the office of the Crown pending the appointment and confirmation of Kapuaiwa. namely Articles 45 and 94. Kamehameha V refused to take the oath of office until the 1852 Constitution was altered in order to remove those sovereign prerogatives that ran contrary to the principles of a constitutional monarchy. If he did take the oath. 99. Kamehameha V was convinced that these anomalous provisions.” This provision implied a choice as to whether to take the oath. he reserved to himself the responsibility of change.exercise all the powers. By not taking the oath. which provided that the “King. supra note 62. which needed altering. he would have bound himself to the constitution whereby any change or amendment to the constitution was vested solely with the Legislative Assembly. Kamehameha V knew that his refusal to take the oath was constitutionally authorized by Article 94 of the Constitution. Upon his ascension. which Kamehameha V felt should be constitutionally altered and made mandatory.” In other words.80 Apparently.
but rather the same draft that was before the convention with the exception of the property qualifications for representatives83 and their 81 Id. Kamehameha V explained his action of abrogating the 1852 Constitution and proclaiming a new constitution by making specific reference to the “forty-fifth article [that] reserved to the Sovereign the right to conduct personally. As a result.Council. Id. but without the intervention of a Ministry or the approval of the Legislature.”82 The constitution he now proclaimed was not new. who is insane or an idiot. and on July 7th 1864 the convention convened. 82 Article 61: “No person shall be eligible for a Representative of the People. After days of debate over this article. Kamehameha V dissolved the convention and exercising his sovereign prerogative by virtue of Article 45. he annulled the 1852 constitution and proclaimed a new constitution on August 20th 1864. In this article. the King resolved to look into the legal means of convening the first Constitutional Convention under Hawaiian law.81 Between July 7th and August 8th 1864. the King and Nobles wanted to insert property qualifications for representatives and their electorate. each article in the proposed Constitution was read and discussed until the convention arrived at Article 62. in cooperation with the Kuhina Nui (Premier). Legislature Acknowledges Lawfulness of Kamehameha’s Actions In his speech at the opening of the Legislative Assembly of 1864. nor unless he be a male subject of the Kingdom. who shall have arrived at the full age of Twenty-One years— 83 95 . but the elected delegates refused. The elected delegates could not come to agree on this article. such portions of the public business as he might choose to undertake. the Convention arrived at an absolute deadlock.
leaving a minor heir. unless he shall have been pardoned by the King. who would “administer the Government in the name of the King. Provided.electorate. within the Kingdom. who was answerable to the Legislative Assembly regarding matters of removal by vote of a lack of confidence or impeachment proceedings. to the value over and above all incumbrances of One Hundred and Fifty Dollars of of a Lease-hold property on which the rent is Twentyfive Dollars per year—or of an income of not less than Seventy-five Dollars per year. and the sole authority to amend or alter the constitution was the Legislative Assembly. who shall have attained the age of twenty years. Article 33. 96 . by constitutional provision. or who shall have an annual income of at least Two Hundred and Fifty Dollars. of a clear value. which was now a unicameral body comprised of appointed Nobles and Representatives elected by the people sitting together. who shall have paid his taxes. derived from any property. The function of the Privy Council was greatly reduced. derived from any property or some lawful employment. over and above all incumbrances.84 The legislature later repealed the property qualifications in 1874. The office of Premier was eliminated.” Article 62: “Every male subject of the Kingdom. shall be entitled to one vote for the Representative or Representatives of that District. that no insane or idiotic person. if born since the year 1840. of at least Five Hundred Dollars. the last of which shall be the year immediately preceding his election.” 85 The Crown.. and a Regency replaced the function of Premier should the King die. and the constitution provided that no act of the Monarch was valid unless countersigned by a responsible Minister from the Cabinet. and shall have been domiciled in the Kingdom for one year immediately preceding the election. however. and shall know how to read and write.” 84 85 1864 HAWN. and who shall own Real Estate. and shall have caused his name to be entered on the list of voters of his District as may be provided by law. but maintained literacy as the only qualification. The constitution also provided that the “Supreme Power of the who shall know how to read and write—who shall understand accounts—and shall have been domiciled in the Kingdom for at least three years. nor any person who shall have been convicted of any infamous crime within this Kingdom. or some lawful employment. shall be allowed to vote. and by the terms of such pardon have been restored to all the rights of a subject. was bound to take the oath of office upon ascension to the throne. CONST. and shall be possessed of Real Property in this Kingdom. and exercise all the powers which are Constitutionally vested in the King.
The committee recognized the constitutionality of the King’s prerogative under the former constitution and acknowledged that this “prerogative converted into a right by the terms of the  Constitution. Your Majesty has now parted with. In fact. being empowered to elect a new monarch in 86 1864 HAWN. John I`i.”88 In other words.87 Nothing could be further from the truth.”86 The constitution. He was the last Monarch to have exercised a remnant of absolutism. both for Yourself and Successors. has been erroneously labeled as a coup d'état that sought to increase the power of the Crown.W. Ralph S. which. Legislative. Hawaiian Archives. and this Assembly thoroughly recognizes the sound judgment by which Your Majesty was actuated in the abandonment of a privilege. Kuykendall. which was comprised of Godfrey Rhodes. the 1864 Legislative Assembly appointed a special committee. Article 20.H. Ascension of the Elected Monarchs: Lunalilo and Kalakaua On December 11th 1872. and the method by which it came about. the Crown was not only authorized by law to do what had been done. is divided into the Executive. 97 . and Judicial. Kamehameha V died without naming a successor to the Throne. and J. Kauwahi to respond to Kamehameha V’s speech opening the new legislature. 1953). 133. these shall always be preserved distinct. 87 88 Reply to His Majesty’s 1864 Address at the Opening of the Legislature. Twenty Critical Years. but the action of Kamehameha V further limited his own authority under the former constitution. CONST. vol. and the Legislative Assembly. The Hawaiian Kingdom: 1854-1874.. II (University of Hawaii Press. at some future time might have been productive of untold evil to the nation.Kingdom in its exercise.
whose members were predominantly United States citizens. The purpose of the league was to seize control of the government for their economic gain. large caches of arms were brought in by the League from San Francisco and dispersed amongst its members. Id. called themselves the Hawaiian League. 579. Before this meeting.accordance with the 1864 constitution.90 The group made certain demands on Kalakaua and called for an immediate change of the King’s cabinet ministers. The Hawaiian Kingdom’s first elected King died a year later without a named successor. Kalakaua appointed his sister.. On that same day the 89 Executive Documents. 1887 REVOLUTION During the summer of 1887. the King reluctantly agreed on July 1st 1887 to have this group form a new cabinet ministry made up of League members. The driving motivation for these revolutionaries was their belief that the “native [was] unfit for government and his power must be curtailed. as heir apparent and received confirmation from the Nobles. Under threat of violence. and held a meeting on June 30th 1887 in Honolulu at the Armory building of the Honolulu Rifles. elected William Charles Lunalilo on January 8th 1873. supra note 22.”89 A local volunteer militia. and to neutralize the power of the native vote. and the Legislature once again convened and elected David Kalakaua as King on February 12th 1874. 574. a minority of subjects of the Hawaiian Kingdom and foreign nationals met to organize a takeover of the political rights of the native population. while the Legislature remained out of session. 90 98 . On April 11th 1877. Lili`uokalani.
CONST. Green as Minister of Finance. Once the next legislature convened. Thurston as Minister of the Interior. and be approved by the King. and the proposed amendment or amendments have been “agreed to by two-thirds of all members of the Legislative Assembly. the new ministry also invited two members of the Supreme Court. Judd and Associate Justice Edward Preston. 92 93 94 99 .. Article 80. Godfrey Brown as Minister of Foreign Affairs. took “an oath to support the Constitution and Laws. and if the same shall be agreed to by a majority of the members thereof”93 it would be deferred to the next Legislative session for action. “to assist in the preparation of a new constitution.”92 which now implicated the two highest ranking judicial officers in the revolution. supra note 56. 8. The United States and the Hawaiian Kingdom (Greenwood Press 1980). Merze Tate. or the levying of war against the King’s government…the same being done by a person owing allegiance to this kingdom. they embarked on a criminal path of treason. Chief Justice Albert F. and faithfully and impartially to discharge the duties of his office. Instead.”91 Under strict secrecy and unbeknownst to Kalakaua. Hawaiian constitutional law provided that any proposed change to the constitution must be submitted to the “Legislative Assembly."94 As a minority. Allegiance is the obedience and 91 Compiled Laws. these individuals had no intent of submitting their draft constitution to the legislature. 1864 HAWN. such amendment or amendments shall become part of the Constitution of this country. The Hawaiian Penal Code defines treason “to be any plotting or attempt to dethrone or destroy the King. which was not scheduled to reconvene until 1888. Lorrin A. Ashford as Attorney General.new cabinet comprised of William L. and Clarence W. 91. Id.
The King’s sister and heirapparent. 1964).fidelity due to the kingdom from those under its protection. 181. Lili`uokalani. with an intent or for an object affecting some of the branches or departments of said government generally. Hawai`i’s Story by Hawai`i’s Queen (Charles E. also concluded: 95 Penal Code of the Hawaiian Islands.. short of actual demonstration. the force must be employed or intended to be employed for the dethroning or destruction of the King or in contravention of the laws.”95 The statute goes on to state that in order to constitute the levying of war. or affecting the enactment. or the public tranquility generally. 96 97 100 . Lili`uokalani. or affecting the people. Tuttle Co. and was declared to be the new law of the land. or of some general law. who served as Minister of the Interior from 1883 to 1886. Inc. 8. or a particular district. or in opposition to the authority of the King’s government. (Government Press 1869). and thereafter the 1887 Constitution presumably annulled the former constitution.96 The Bayonet Constitution The draft constitution was completed in just five days. and had taken measures to have him assassinated if he refused. discovered later that her brother had signed the constitution “because he had every assurance. that the conspirators were ripe for revolution. repeal or enforcement of laws in general. Id. in distinction from some special intent or object affecting individuals other than the King.”97 Gulick. The King was forced to sign on July 6th.
] Olelson.F. Then everything would have been plain sailing for their little oligarchy. N. Wilcox.] McCandless.S.A. And the cabinet could only be removed by the legislature on a question of want of confidence. 99 101 . The new property qualifications had the purpose of ensuring that Nobles remained in the hands of non-natives. It was drafted by a select group of twenty-one individuals99 that effectively placed control of the Legislature and Cabinet in the hands of individuals who held foreign allegiances. Property qualifications were reinstituted for candidates of both Nobles and Representatives.A. supra note 26. Rev. Hitchcock.B.A. which would serve as a controlling factor over the House of Representatives. In the William O.W. Kinney.] Tucker. and a show of resistance a justification for assassinating him. A.” Added to this group of individuals were Chief Justice A. J.B. Dole. Blount reported: For the first time in the history of the country the number of nobles is made equal to the number of representatives. W. Emerson. [John A.G.B. who were selected by persons 98 Executive Documents. Rowell. [W. W. S.E. N. Waterhouse. C. H. 760. Dr.The ready acquiescence of the King to their demands seriously disconcerted the conspirators. Cecil Brown. [S. Geo. with a sham republican constitution. E. Smith. 98 This so-called constitution has since been known as the bayonet constitution and was never submitted to the Legislative Assembly or to a popular vote of the people. Wundenburg. F. as they had hoped that his refusal would have given them an excuse for deposing him. Wilcox.O. Jonathan Austin. Kennedy.G. W. Thurston. Judd and Associate Justice Edward Preston. This furnished a veto power over the representatives of the popular vote to the nobles. The constitution reinstituted a bi-cameral legislature and an election of Nobles replaced appointments by the King. Smith Collection at the Hawaiian Archives there is a near finished version of the 1887 draft with the following endorsement on the back that read: “Persons chiefly engaged in drawing up the constitution were—L. Ashford.
The election of a single representative by the foreign element gave to it the legislature. Germans. Included in this group were the contract laborers from Portugal’s Madeira and Azores Islands who emigrated to the kingdom after 1878 under labor contracts for the sugar plantations. there was public outcry on the manner in which the constitution was obtained through the King and not through the Legislature as provided for by the 1864 constitution. if any. English.102 On August 30th 1887. league members utilized this large voting block specifically to neutralize the native vote. 407. 579. vol. 102 102 . League members owned these plantations.” This same purpose is admitted by all persons here. 101 Ralf Kuykendall. Despite the fact that very few. and not subjects of the Kingdom.100 So powerful was the native vote that resident aliens of American or European nationality were allowed to cast their vote in the election of the new legislature without renouncing their foreign citizenship and allegiance. Why was this done? In the language of the Chief Justice Judd. The Kalakaua Dynasty.mostly holding foreign allegiance. III (University of Hawai`i Press 1967). Again. of these workers could even read or write. The Hawaiian Kingdom: 1874-1893. large numbers of Americans. British Consul Wodehouse reported to the British Government the new Cabinet’s 100 Executive Documents. “to balance the native vote with the Portuguese vote. Id. supra note 26. and other foreigners unnaturalized were permitted to vote…101 Leading up to the elections that were to be held on September 12th. According to Blount: These ignorant laborers were taken before the election from the cane fields in large numbers by the overseer before the proper officer to administer the oath and then carried to the polls and voted according to the will of the plantation manager.
Rayner and Keeler. no. p. Chief Justice Judd cannot serve as a judge of his own crime. 548 (1966). 105 Id. 29. political and confidential. or as Judd stated a “successful revolution. He wrote. 580. “The new Administration which was dictated by the “Honolulu Rifles” now 300 strong does not give universal satisfaction. “it is [international law] which defines the conditions under which a government should be recognized de jure or de facto.. PO 58/220. 103 . and it is a matter of judgment in each particular case whether a regime fulfills the conditions. supra note 26. Article 10 of the 1864 constitution provides. would carry the elections if necessary at the point of the bayonet.’”103 The election “took place with the foreign population well armed and the troops hostile to the crown and people. the Administration. 103 104 Executive Documents. Aug.” and the natives’ “means of resistance was naturally what was left of political power. 2 All England Reports 536.”105 Revolution and the Rule of Law If it was a rebellion. 1887.”104 James Blount also concluded that foreign ships anchored in Honolulu harbor during this time “must have restrained the native mind or indeed any mind from a resort to physical force. 579. 30.”107 He continues to state that the “conditions under international law for the recognition of a new regime as the de facto government of a state are that the Wodehouse to FO. As a participant in the revolution.response to these protests.. 106 107 Carl-Zeiss-Stifftung v. and…Attorney General Ashford is reported to have said ‘that they. 576.. BPRO.”106 what was the measurement of its success or its failure? According to Lord Reid. Ltd. “No person shall sit as a judge…in any case…which the said judge…may have…any pecuniary interest”—nemo iudex in causa sua (no one can be a judge in his own cause). Id. Hawaiian Archives.
108 104 . This space of time is the revolution itself where the opposing forces between lawful and criminal are engaging. In order to answer the second condition of “seems likely to continue” in the affirmative. if that change is effected in terms of “Judgment of the High Court of Rhodesia. The second part of the definition deals with the likelihood of the regime continuing in “effective control. Appellate Division. When.108 A successful revolution creates a de facto government. there are two parts in the definition of de facto and de jure governments. The first part requires that a regime should be “in effective control over the territory” and this requisite is common to both a de facto and a de jure Government. This is so because a mere change of the personnel of the Government. success is time sensitive whereby the law breaker has been transformed into a law creator by virtue of effective permanency. not merely the persons who govern by virtue of it. but the success of the revolution is measured by the maintenance of effective control and not merely the fact of effective control. It is the new Constitution which must be overthrown. In other words. however.” 39 International Law Reports 184 (1970). then it is a de facto Government. and not merely being replaced by another Government elected in terms of the new revolutionary Constitution.” According to Chief Justice Hugh Beadle. it is “firmly established. and determination of the victor is a pure question of fact and not law.” If it “seems likely” so to continue.” and “overthrown” here means being displaced.new regime has in fact effective control over most of the state’s territory and that this control seems likely to continue. Beadle states that the likelihood of continuing in effective control of the territory depends on the likelihood of its being “overthrown.” it becomes a de jure Government.
Hans Kelsen. to interpret legal power 109 Id. Law as Fact (Stevens 1971). 105 . 118. more or less difference in regard to the aims and the means of those in power.. as the establishment of a constitution.the revolutionary Constitution. but as an illegal act. 175. for without this there will be anarchy or confusion rather than a reign of legality. a successful revolution must fulfill three factual conditions: (1) possess the machinery of the State. if the order they have tried to establish remains inefficacious. 1940. then on the other hand. I (Government Printing Office. General Theory of Law and State (Harvard University Press 1945). when power and authority is passing from one person or body to another. and this according to the old monarchic constitution.111 Professor Karl Olivecrona explains that “victory of the revolution corresponds to the constitutional form in ordinary law-giving. New rules are then given in accordance with the new constitution and are soon being automatically accepted as binding. their undertaking is interpreted. 66. (2) operate with the assent of the people and without substantial resistance to its authority.” He states: Certainly in this sense an operative legal system necessarily entails a high degree of regular obedience to the existing system. still leaves a revolutionary Government in control. and (3) fulfill international obligations. And where revolution or civil war has supervened it may even be necessary in the initial stages. 225. vol.109 Professor Hans Kelson states that if “the revolutionaries fail. The whole machinery is functioning again. Digest of International Law.”110 According Green Hackworth. not as legal. 111 112 Karl Olivecrona.”112 Lord Lloyd further expounds on the second condition of “assent of the people” and no “substantial resistance. a law-creating act. 110 Green Haywood Hackworth. as the crime of treason.
an “officer de jure is one who not only is invested with the office. Cooley. it is no longer relevant for the purpose of determining what is legally valid to explore the sources of ultimate de facto power in the state. According to Justice Thomas Cooley. When however this transitional stage where law and power are largely merged is passed. The Idea of Law (MacGibbon & Kee. as at least afford a strong presumption of right. however. 1876). Thomas M. and yet is not a good officer in point of law. and according to Chief Justice Joseph Steere. 114 115 106 . 185.”115 A de facto officer is recognizable under municipal law. or he exercises the office with such circumstances of acquiescence on the part of the public. or by reason of the expiration of his term of service. 1966). 162. Id. but rather to offices is government. An officer de facto is defined to be one who has the reputation of being the officer he assumes to be. Ltd. the “doctrine of a de facto officer is said to have originated as a rule of public necessity to prevent public mischief and protect the rights of innocent third 113 Dennis Lloyd. but by reason of some defect in his title. For by this time the constitutional rules will again have taken over and the legal system will have resumed its regular course of interpreting its rules on the basis of its own fundamental norms of validity.in terms of actual obedience to the prevailing power. or of some informality.”114 He further explains that a de facto officer “comes in by claim and color of right. but who has been lawfully appointed or chosen. he is unable to maintain his possession. and therefore has a right to retain the office and receive its perquisites and emoluments. A Treatise on the Law of Taxation (Callaghan and Company. omission or want of qualification.”113 From a municipal law standpoint. the terms de jure and de facto are not applied to revolution or civil war.
” states Cooley. On November 22nd 1888. Benoit.” He adds that “no one is under an obligation to recognize or respect the acts of an intruder. supra note 102. 119 107 . 898.”117 And “the party himself who had usurped a public office.parties who may be interested in the acts of an assumed officer apparently clothed with authority and the courts have sometimes gone far with delicate reasoning to sustain the rule where threatened rights of third parties were concerned. Clark.”119 For the next five years this organization would be the most persistent and influential group opposing the small group of revolutionaries by maintaining that the constitution of 1864. 217 Michigan 63. Brown. 71 (1921). there was active opposition to the minority of revolutionaries by the Hawaiian citizenry that ranged from peaceful organized resistance to an unsuccessful armed attack against the usurpers. 20 Michigan 176 (1870). was the legal constitution of the country. Kuykendall. Cooley. or to shield himself from responsibility on no better basis than his usurpation. the Hawaiian Political Association (Hui Kalai`aina) was established with the purpose of the “restoration of the constitutional system existing before June 30th 1887. Cooley calls him a usurper or intruder. which he defined “as one who attempts to perform the duties of an office without authority of law. v. During this period. Thomas M. as amended. A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union. the Hawaiian 116 Carpenter v.”116 If a person seizes office and is neither de jure or de facto. 7th ed. and without support of public acquiescence. 448. “is never allowed to build up rights. and for all legal purposes they are absolutely void. (Little. and Company 1903). 117 118 Auditors of Wayne Co.”118 Throughout the revolution.
U. “but it became clear that…no native jury would convict him of that crime. Stevens stated: This preponderance of native opinion in favor of Wilcox. led an unsuccessful armed attack against the cabinet ministry on the grounds of `Iolani Palace. but their verdict represented the native sentiment throughout the kingdom. fairly represented the popular native sentiment throughout these islands in regard to his effort to overthrow the present ministry and to change the 120 Id. Wilcox was initially indicted for treason. 429. Secretary of State Blaine on November 4th 1889.. Minister Stevens from the American legation in Honolulu acknowledged the significance of the verdict. In a dispatch to U. The treason charge was dropped and he was brought to trial on an indictment for conspiracy.S. A Failed Attempt of Citizen’s Arrest In June 1889.”121 He was tried by a native jury.Kingdom was in a state of revolution. the organization’s leader. 121 108 . another organization was formed as a secret society called the Liberal Patriotic Association. whereby the insurgents could neither claim success de facto under international law nor as de facto officers under municipal law. whose purpose was “to restore the former system of government and the former rights of the king. What is of significance is that a native jury not only found Robert Wilcox not guilty. as expressed by the native jury. 425. which found him not guilty. which comprised eighty five percent of the Hawaiian citizenry.. Robert Wilcox with eighty men. Id.S.”120 The following month on July 30th.
every private “person that is present when any felony is committed. 4 (The University of Chicago Press 1979). so as to restore to the King the power he possessed under the former constitution. and mean such offenses as are punishable with death. being one of the organizers of the 1887 revolution. the country was still in a state of revolution or unlawfulness. and not a counter-revolution as called by the cabinet ministry. was an insurgent and served at the time as the so-called Minister of the Interior.122 There is a strong argument that the actions taken by Wilcox and other members of the Liberal Patriotic Association fell under the law as an unsuccessful citizen’s arrest. vol. or in other words. is bound by the law to arrest the felon.”123 According to the Hawaiian Penal Code. Wilcox argued: Yes.” which makes treason a felony. William Blackstone. 298. Thurston. you and such as you are the murderers. But if the original revolution was not successful. 289 123 109 . Minister. with your heart ever full of venom for the people and country which nurtured you and your fathers. Wilcox’s attack should be considered a failed attempt to apprehend revolutionaries who were serving in the cabinet ministry. a counter-revolution can only take place if the original revolution was successful. The murderers and the blood of the murdered should be placed where 122 Id.constitution of 1887. the “terms felony and crime. are…synonymous. Mr. Therefore.. himself. when he lashed out at Lorrin Thurston on the floor of the Legislative Assembly in 1890. Commentaries of the Laws of England. Under the common law. I say. Wilcox reinforced the theory of citizen’s arrest. any actions taken to apprehend or to hold to account the original perpetrators is not a violation of the law. but rather law abiding. In theory.
574. Charleston and he designated Lili`uokalani. and he planned to travel to the city of San Francisco for a period of respite. Judicial Remedies Available According to James Blount.S. 1890. and her rights. the rights of liberty.”125 Reinforcing Blount’s observation that there were 124 Speech of Robert W. the King’s health had deteriorated. it is a death of which I will be most proud.it belongs.S. her independence. The alleged corrupt action of the King could have been avoided by more careful legislation and would have been a complete remedy for the future. I never felt this action of mine to be a rebellion against my mother land. but would have been used in the elections to expel the authors from power. Executive Documents. …Our object was to restore a portion of the rights taken away by force of arms from the King. “none of the legislation complained of would have been considered a cause for revolution in any one of the United States. 125 110 . where Hawaiian subjects were making their objections heard. and I have hope I will never lack the help of the Heavens until all the rights are returned which have been snatched by the self-serving migrants of America. with those who without warrant opened fire upon natives trying to secure a hearing of their grievances before their King. as Regent during his absence. June 10. and if I die as a result of this my deed. his heir apparent. he departed on board the U. supra note 26. Wilcox before the Hawaiian Legislative Assembly. On November 25th. … Before the Living God.124 At the close of this tumultuous legislative session. but (an act) for the support and strengthening of the rights of my beloved race. the rights of the Throne and the good of the beautiful flag of Hawai`i.
and William O. Although the court denied the writ on substantive grounds. private citizens could “bring it in the name of the Attorney-General.126 The plaintiffs in this case were W. is to be treated as the personal act of the Sovereign. It would be an intolerable doctrine in a constitutional monarchy. and is done by any of his Ministers. Sanford B.judicial remedies available to the ordinary citizen under Hawaiian law to hold account government officials. to extend the inviolability of the Sovereign to his Ministry. to claim that what is directed to be done by the King in Cabinet Council. These individuals sought to “enjoin the Minister [of Finance] from taking silver half-dollars for gold par bonds” by petitioning for a writ of mandamus. was clearly pointed out by the Hawaiian Supreme Court in Castle vs. who by that signature makes himself responsible. if they violated the law as alleged. which could be applied for by tax paying citizens in any court of equity in the Kingdom.”128 126 Castle v.”127 The court also declared that: the Constitution provides that the Ministers are responsible. Kapena. 34. 5 Hawai`i 27 (1883). 36. Art. and. 127 128 111 . “No act of the King shall have any effect unless it be countersigned by a Minister. Minster of Finance..R. The proper remedy was mandamus or injunction. Kapena. it did maintain the remedy for tax paying citizens to hold to account governmental officials at the seat of government. Id. Castle. Smith who were also the leaders of the 1887 coup.. 42. and permission to do so [by the court] is accorded as of course. if the circumstances were warranted. Id. Dole.
1 (2001): 80. when Revolution is justifiable. 1864. 129 130 Executive Documents. for the necessity principle is designed to uphold the rule of law and the existing constitution. and when all Constitutional methods have been tried and found wanting.” and the response “may be invoked only to uphold the rule of law and the existing legal order. Hawaiians had long understood this principle as evidenced in a resolution read before the 1864 constitutional convention by Delegates Parker and Gulick: We do not deny that there may occur a crisis in a nation’s history. the doctrine of necessity calls for its temporary suspension and not it’s termination. vol. therefore.”130 Where a written constitution is the supreme law of the land. July 27.” The Convention. “Resolution read before the Constitutional Convention on July 22. Gulick. and. 1864. and a government resolved back into its constituent elements. with a sham republican constitution. 760. George Williams states that in order to legitimize a revolutionary act under the principle of necessity there “must be a transient and proportionate response to the crisis. (The Polynesian Press 1864). when a Constitution may be violated.”129 Necessity cannot be applied in this case. 131 112 .” Oxford University Commonwealth Law Journal. Mr. because the revolutionaries sought to consolidate their power devoid of any rule of law or maintenance of the existing legal order in order to benefit a “little oligarchy.The principle of necessity legitimizes a revolutionary act—otherwise a capital crime of treason—and renders lawful what would otherwise be unlawful. Parker and Mr. and not to abrogate it. “The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji. 6. when the very existence of a nation is at stake. supra note 26. But this doubtful and dangerous right is to be exercised only in those terrible emergencies. cannot be applied to uphold the legality of a new revolutionary regime.131 George Williams.
shall continue and remain in full effect. The constitution of 1864 no longer had the sovereign prerogative—Article 45. as the chief executive. whether organic or statutory. or that may hereafter be enacted. as amended. comprised the legal order of the Hawaiian state. 113 . Hawaiian Minister of Foreign Affairs. the enactment of law. did not have the constitutional authority to abrogate and then subsequently promulgate a new constitution without legislative approval. Kalakaua. the Civil Code. The 1864 Constitution. such parts only excepted as are repugnant to this Constitution. until altered or repealed by the Legislature.” For the next four years. Territory On March 16th 1854. Robert Wyllie.S. Penal Code. the legal order of the Hawaiian Kingdom remained intact and continued to serve as the basis of Hawaiian constitutional law. the insurgents would struggle to maintain their control of the seat of government over the protests and opposition of Hawaiian subjects organized into political organizations. diplomats stationed in Honolulu. and the Session laws of the Legislative Assemblies enacted before the 1887 revolution. furthermore. All laws heretofore enacted. Article 78 of the 1864 Constitution provided that all “laws now in force in this Kingdom. made the following announcement to the British. and. shall be null and void. which are contrary to this Constitution. resided solely with the Legislative Assembly together with the Crown. French and U.THE HAWAIIAN CONSTITUTIONAL ORDER Unlike Kamehameha V. Notwithstanding the state of revolution.
I have the honor to make known to you that that the following islands, &c., are within the domain of the Hawaiian Crown, viz: Hawai’i, containing about, 4,000 square miles; Maui, 600 square miles; O’ahu, 520 square miles; Kaua’i, 520 square miles; Molokai, 170 square miles; Lana’i, 100 square miles; Ni’ihau, 80 square miles; Kaho’olawe, 60 square miles; Nihoa, known as Bird Island, Molokini ) Lehua Ka’ula ) Islets, little more than barren rocks: )
and all Reefs, Banks and Rocks contiguous to either of the above, or within the compass of the whole.132
Four additional Islands were annexed to the Hawaiian Kingdom under the doctrine of discovery since the above announcement. Laysan Island was annexed to the Hawaiian Kingdom by discovery of Captain John Paty on May 1st 1857.133 Lisiansky Island also was annexed by discovery of Captain Paty on May 10th 1857.134 Palmyra Island, a cluster of low islets, was taken possession of by Captain Zenas Bent on April
132 133 134
Islands of the Hawaiian Domain, prepared by A.P. Taylor, Librarian (January 10, 1931), 5. Id., 7. Id.
15th 1862, and proclaimed as Hawaiian Territory.135 And Ocean Island, also called Kure atoll, was acquired September 20th 1886, by proclamation of Colonel J.H. Boyd.136 Territorial jurisdiction extends “to the distance of one marine league (three miles), surrounding each of Our Islands of Hawaii, Maui, Kahoolawe, Lanai, Molokai, Oahu, Kauai and Niihau, commencing at low water mark on each of the respective coasts, of said Islands, and includes all the channels passing between and dividing said Islands, from Island to Island." 137 The Islands that comprised the territory of the Hawaiian Kingdom on January 16th 1893 are located in the Pacific Ocean between 5º and 23º north latitude and 154º and 178º west longitude.
Island: Hawai’i Maui O’ahu Kaua’i Molokai Lana’i Ni’ihau Kaho’olawe Nihoa Molokini Location: 19º 30' N 155º 30' W 20º 45' N 156º 20' W 21º 30' N 158º 00' W 22º 03' N 159º 30' W 21º 08' N 157º 00' W 20º 50' N 156º 55' W 21º 55' N 160º 10' W 20º 33' N 156º 35' W 23º 06' N 161º 58' W 20º 38' N 156º 30' W Square Miles/Acreage: 4,028.2 / 2,578,048 727.3 / 465,472 597.1 / 382,144 552.3 / 353,472 260.0 / 166,400 140.6 / 89,984 69.5 / 44,480 44.6 / 28,544 0.3 / 192 0.04 / 25.6
135 136 137
Id. Id., 8. March 16, 1854 Proclamation of Hawaiian Neutrality by His Majesty King Kamehameha III.
Lehua Ka’ula Laysan Lisiansky Palmyra
22º 01' N 160º 06' W 21º 40' N 160º 32' W 25º 50' N 171º 50' W 26º 02' N 174º 00' W 05º 52' N 162º 05' W
0.4 / 256 0.2 / 128 1.6 / 1,024 0.6 / 384 4.6 / 2,944 0.4 / 256
Ocean (a.k.a. Kure atoll) 28º 25' N 178º 25' W
Citizenship On January 21st 1868, Ferdinand Hutchison, Hawaiian Minister of the Interior, stated the criteria for Hawaiian nationality. He announced that “In the judgment of His Majesty’s Government, no one acquires citizenship in this Kingdom unless he is born here, or born abroad of Hawaiian parents, (either native or naturalized) during their temporary absence from the kingdom, or unless having been the subject of another power, he becomes a subject of this kingdom by taking the oath of allegiance.” According to the law of naturalization, the Minister of the Interior:
shall have the power in person upon the application of any alien foreigner who shall have resided within the Kingdom for five years or more next preceding such application, stating his intention to become a permanent resident of the Kingdom, to administer the oath of allegiance to such foreigner, if satisfied that it will be for the good of the Kingdom, and that such foreigner owns without encumbrance taxable real estate within the Kingdom, and is not of immoral character, nor a refugee from justice of some other country, nor a deserting sailor, marine, soldier or officer.138
Compiled Laws, supra note 56, 104.
The Monarch The executive authority was vested in the Crown, who was advised by a Cabinet of Ministers and a Privy Council of State. The Crown exercised his executive powers upon the advice of his Cabinet and Privy Council of State, and no act of the Crown would have any effect unless countersigned by a Cabinet Minister, who made himself responsible. With the advice of the Privy Council, the Crown had the power to grant reprieves and pardons, after conviction, for all offences, except in cases of impeachment. The Crown was also represented by an appointed Governor on each of the main islands of Hawai`i, Maui, O`ahu, and Kaua`i. The Crown opens each new session of the Legislature by reading a Speech from the Throne, which sets out the vision of the government for the country and the policies and actions it plans to undertake. No law can be enacted without the signature of the Crown and countersigned by one of the Ministers of the Cabinet.
CABINET. The Cabinet consists of the Minister of Foreign Affairs, the Minister of the Interior, the Minister of Finance, and the Attorney General of the Kingdom. The Cabinet is the Monarch’s Special Advisers in the Executive affairs of the Kingdom, and are ex officio members of the Privy Council of State. The Ministers are appointed and commissioned by the Monarch, and hold office during the Monarch’s pleasure, subject to impeachment. No act of the Monarch has any effect unless countersigned by a Minister, who by that signature makes himself responsible. Each member of the Cabinet keeps an office at the seat of Government, and is accountable for the conduct of his/her deputies and clerks. The Ministers also hold seats ex officio, as Nobles, in the Legislative Assembly.
On the first day of the opening of the Legislative Assembly, the Minister of Finance presents the Financial Budget in the Hawaiian and English languages. PRIVY COUNCIL OF STATE. The Monarch, by Royal Letters Patent, can appoint any of his subjects, who have attained the age of majority, a member of the Privy Council of State. Every member of the Privy Council of State, before entering upon the discharge of his/her duties as such, takes an oath to support the Constitution, to advise the Monarch honestly, and to observe strict secrecy in regard to matters coming to his/her knowledge as a Privy Counselor. The duty of every Privy Counselor is: to advise the Monarch according to the best of his knowledge and discretion; to advise for the Monarch’s honor and the good of the public, without partiality through friendship, love, reward, fear or favor; and, finally, to avoid corruption––and to observe, keep, and do all that a good and true counselor ought to observe, keep, and do to his Sovereign.
Legislative Assembly The Legislative Department of the Kingdom is composed of the Monarch, the Nobles, and the Representatives, each of whom has a negative on the other, and in whom is vested full power to make all manner of wholesome laws. They judge for the welfare of the nation, and for the necessary support and defense of good government, provided it is not repugnant or contrary to the Constitution. The Nobles sit together with the elected Representatives of the people in what is referred to as the House of the Legislative Assembly.
NOBLES. The Nobles sit together with the elected Representatives of the people and cannot exceed thirty in number. Nobles also have the sole power to try impeachments made by the Representatives. Nobles are appointed by the
Representatives are compensated for their term in office. A person eligible to be a Representative of the people must be a Hawaiian subject or denizen. officer in government or Judge. The President is the Chair for conducting business in the House of the Legislative Assembly. and is regulated and apportioned by the Legislature according to the population. The Representatives sit together with the appointed Nobles and cannot exceed forty in number. REPRESENTATIVES. PRESIDENT OF THE LEGISLATIVE ASSEMBLY. but the Nobles reserve the power to try and convict an impeached officer.Monarch for a life term and serve without pay. A person eligible to be a Noble must be a Hawaiian subject or denizen. and each elected Representative has a two-year term. Each Representative is entitled to one vote in the Legislative Assembly. must know how to read and write. which is ascertained from time to time by the official census. and attained the age of twenty-one years. and have resided in the Kingdom for at least one year immediately preceding his election. The people elect representatives from twenty-five districts in the Kingdom. Representation of the People is based upon the principle of equality. speaks to points of order in preference to other 119 . The President preserves order and decorum. understand accounts. resided in the Kingdom for at least five years. Each Noble is entitled to one vote in the Legislative Assembly. Elections occur biennially on even numbered years. at least twenty-five years. He is elected by the members of the Legislative Assembly at the opening of the Session and appoints members to each of the select or standing committees. Unlike the Nobles. Representatives have the sole power to impeach any Cabinet Minister. Nobles can introduce bills and serve on standing or special Committees established by the Legislative Assembly.
Rule of Law. Decisions by the Court are decided by majority. The Court may however hold special terms at other times. but normally only after the cases have been heard in appropriate lower circuit. and are assured that the law will be applied equally and impartially. The Supreme Court consists of a Chief Justice and four (4) Associate Justices. from time to time. Hawaiian subjects rely on a society based on law and order. but first. The Supreme Court considers civil. April. Impartial courts depend on an independent judiciary. Hawaiian governance is based on respect for the Rule of Law. The Judiciary The judicial power of the Kingdom is vested in one Supreme Court and in such inferior courts as the Legislature may. July and October. The Supreme Court sits for four terms a year on the first Mondays in the months of January. or a law or fact concerning the Hawaiian Constitution. whenever it shall deem it essential to the promotion of justice. Leave is granted for cases that involve a matter of public importance. All judges are appointed by the Monarch upon advise of the Privy Council of State. criminal and constitutional cases. The independence of the judiciary means that Judges are free from outside influence. and 120 . It is the final court of appeal at the top of the Hawaiian Kingdom’s judicial system. establish. district or police courts. Any person can have their case heard by the Supreme Court.members. The Supreme Court is the highest court in the land. permission or leave must be obtained from the court. and decides all questions of order subject to an appeal to the House by any two members.
Hartwell: The written law of England is determined by their Parliament. or does not authorize. unless it is warranted by the powers vested in that department by the Constitution. although appointed by the Crown. Whenever an act purporting to be a statute passed by the Legislature is an act which the Constitution prohibits. but this provision was ultimately removed by amendment in 1852 in order to provide separation between the executive and judicial branches. the first constitution of the country in 1840 provided that the Crown serve as Chief Justice of the Supreme Court. According to Hawaiian Supreme Court Justice Alfred S. and such act is sought to be enforced as law. can remove Judges by impeachment. 6 Hawai`i 25. together with those of the Executive and Judicial departments of government. 34 (1870). 121 . it is the duty of the Courts to declare it null and void. Initially. has not the supreme power held by the British Parliament. No act of either of these three departments can have the force and dignity of law. which every Englishman claims as his birthright. Our Legislature. The Rule of Law precludes capricious acts on the part of the Crown or by members of the government over the just rights of individuals guaranteed by a written constitution. however.139 139 In Re Gip Ah Chan. like the Congress of the United States. except in so far as the Courts may declare the same to be contrary to the unwritten or customary law. but its powers and functions are enumerated and limited. by a written constitution.notably from influence from the Crown. Article 65 of the 1864 Constitution of the country provides that only the Legislative Assembly.
sitting together. 199. Hawaiian constitutional law provides the following interactions of the three powers in the administration of governance.”142 the King’s “Ministers are responsible. they are nevertheless component agencies of a constitutional monarchy that exercises. and of the Representatives of the People.”145 the Chief Justice of the Supreme Court “shall be ex officio Charles Grove Haines. The King “shall never proclaim war without the consent of the Legislative Assembly.. and the Legislative Assembly. as Nobles. which Assembly shall consist of the Nobles appointed by the King. 140 141 1864 HAWN. Article 29 Id. in the Legislative Assembly.” Unlike the United States theory of separation of power where the branches of government are assumed independent of each other with “certain discretionary rights.”140 the Hawaiian theory views the branches as coordinate in function.. together the “Supreme Power of the Kingdom..”143 and “hold seats ex officio. legislative and judicial branches be distinct.”144 the “Legislative power of the Three Estates of this Kingdom is vested in the King. 142 143 144 145 122 .. Article 26 Id.. but distinct in form. Id.Separation of Powers Although the constitution provided that the executive. Id. privileges. Article 43.” The American Political Science Review 16(2) (1922): 194.”141 the “King has the power to make Treaties.” but when treaties involve “changes in the Tariff or in any law of the Kingdom [it] shall be referred for approval to the Legislative Assembly. CONST. Article 45. “Ministerial Responsibility Versus the Separation of Powers. prerogatives. Article 31.
Article 70. His Cabinet. Article 68. upon important questions of law. unless when impeached himself.President of the Nobles in all cases of impeachment. shall have authority to require the opinions of the Justices of the Supreme Court. and the Legislative Assembly.”147 146 Id.. 147 123 .”146 and the “King. and upon solemn occasions. Id.
Article 22 provides that “the successor shall be the person whom the Sovereign shall appoint with the consent of the Nobles. to maintain the Constitution of the Kingdom whole and inviolate. The Nobles were an elected body of men whose allegiance was to the foreign element of the population. That afternoon in a meeting of the Privy Council. but its wording was the exact same as the constitution of 1864. including the Chief Justice. himself. and his body returned to Honolulu on board the USS Charleston on the 29th. subject to confirmation by the Nobles when reconvened. by nomination of the Queen. could be considered as a de facto heir-apparent. and to govern in conformity therewith. The Queen was also prevented from confirming her niece. 124 . where she swore “in the presence of Almighty God. Judd administered the oath from the 1887 constitution. and publicly proclaim as such during the King's life. participated in the revolution by assisting in drafting the 1887 constitution. because the Nobles had been prevented from sitting in the Legislative Assembly since 1887 when they were replaced by an elected body beholden to foreign interests. Lili`uokalani took the oath of office. as heir-apparent. Ka`iulani Cleghorn. Lili`uokalani was thereafter proclaimed Queen.” Chief Justice Albert F. and three of the justices of the Supreme Court. Upon entering office. Ka`iulani. the legislative and judicial branches of government were compromised by the revolution.CHAPTER 4 THE PROLONGED OCCUPATION OF THE HAWAIIAN KINGDOM: LILI`UOKALANI TO THE PRESENT King Kalakaua died in San Francisco on January 20th 1891.” Nevertheless.
On January 17th the group declared themselves to be the provisional government headed by Sanford Dole as president. diplomats and military personnel. resident Minister John L. between a provisional government established as a result of U. in particular the Hui Kalai`aina (Hawaiian Political Association). intervention. to reinstate the lawful constitution. troops to protect the insurgents while they prepare for the annexation of the Hawaiian Islands to the United States by a treaty of cession and not conquest. and Secretary of State James Blaine. Being a minority. Blount. Cleveland received notice by a Hawaiian envoy commissioned by Queen Lili`uokalani that the overthrow and socalled revolution derived from illegal intervention by U. Presidency already had taken place in 1892 and resulted in Grover Cleveland defeating the incumbent Benjamin Harrison.S. He withdrew the treaty from the Senate. would order the landing of U. A treaty was signed on February 14th 1893.S. mainly due to the U. they sought active support from U. but Cleveland’s inauguration was not until March 1893.UNITED STATES’ VIOLATION OF HAWAIIAN STATE SOVEREIGNTY Lili`uokalani’s reign was fraught with political power struggles and rumors of overthrow.S. McKinley Tariff Act that created an economic depression.S. the Queen proclaimed her intention to do so on January 14th 1893. President Benjamin Harrison thereafter submitted the treaty to the United States Senate for ratification in accordance with the U.S. This caused the leader of the 1887 revolution. to organize the revolutionaries into a group calling themselves the Committee of Safety to plan for the ultimate takeover of the government and secure annexation to the U.S. Taking heed to calls by the people and political organizations. and appointed James H. After entering office.S. The election for the U. Lorrin Thurston. who. a 125 .S. constitution. Stevens on January 16th. as part of the plan.
as well as Hawaiian State territorial sovereignty. the Government thus established hastened off commissioners to Washington to make a treaty for the purpose of annexing the Hawaiian Islands to the United States. First Attempt to Illegally Annex Hawaiian Islands by Treaty The Blount investigation found that the United States Legation assigned to the Hawaiian Kingdom.”3 Thus he acknowledged that through such acts the government of a peaceful and friendly people was overthrown.. President Grover Cleveland addressed the Congress and he described the United States’ action as an “act of war. [hereafter Executive Documents].former U. 3 126 . Representative from Georgia and former Chairman of the House Committee on Foreign Affairs. 1 2 Id. 587. Cleveland further stated that a “substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to United States House of Representatives. as special commissioner to investigate the terms of the so-called revolution and to report his findings. Reprinted at Hawaiian Journal of Law & Politics 1 (Summer 2004): 136. (Government Printing Office 1895).S. On December 18th 1893. Reprinted at 1 Hawaiian Journal of Law & Politics 201 (Summer 2004). 53rd Congress. Id. were directly responsible for the illegal overthrow of the Hawaiian government with the ultimate goal of transferring the Hawaiian Islands to the United States from an installed government.1 Blount reported that.”2 The report also detailed the culpability of the United States government in violating international laws. Executive Documents on Affairs in Hawaii: 189495. 456. together with United States Marines and Naval personnel. 567. “in pursuance of a prearranged plan. committed with the participation of a diplomatic representative of the United States and without authority of Congress..
The Hawaiian Kingdom: 1874-1893. This second treaty was signed on 4 Id.repair. and were now calling themselves the Republic of Hawai`i.S. Any such interference is an unlawful act. it is merely confined to premature recognition of the rebel government. entered into a second treaty of cession with the same individuals who participated in the illegal overthrow with the U. officials. Krystyna Marek. 127 . far from taking the form of military assistance to one of the parties. 26. even if. 647. Five years passed before Cleveland’s presidential successor. III (Honolulu: University of Hawai`i Press 1967). vol. 53rd Congress. Congress.”4 and committed to Queen Lili`uokalani that the Hawaiian government would be restored. legation in 1893. (Librairie Droz 1968). 1894. 5 Ralf Kuykendall.. According Professor Krystyna Marek: It is a well-known rule of customary international law that third States are under a clear duty of non-intervention and non-interference in civil strife within a State.S.6 In a deliberate move to further isolate the Hawaiian Kingdom from any assistance of other countries and to reinforce and protect the puppet government installed by U. the Senate and House of Representatives each passed similar resolutions in 1894 strongly warning other countries “that any intervention in the political affairs of these islands by any other Government will be regarded as an act unfriendly to the United States. 2nd Session. but he failed to follow through in his commitment to re-instate the constitutional government as a result of partisan wrangling in the U. 6 7 Senate Resolution.”7 The Hawaiian Kingdom was thrown into civil unrest as a result. May 31. The Kalakaua Dynasty. William McKinley. Identity and Continuity of States in Public International Law. 2nd ed. 64. vol.S.5 President Cleveland refused to resubmit the annexation treaty to the Senate.
an invasion of the rights of the ruling chiefs. 3 (July 25. Reprinted at 1 Hawaiian Journal of Law & Politics 227 (Summer 2004)..”8 Protests Prevent Second Attempt to Annex Hawaiian Islands by Treaty Queen Lili`uokalani was in the United States at the time of the signing of the treaty and protested the second annexation attempt of the country. do hereby protest against the ratification of a certain treaty. 1877. 1893.June 17th 1897 in Washington. finally. Lili`uokalani of Hawai`i. has been signed at Washington by Messrs.9 Hawaiian political organizations in the Islands filed additional protests with the Department of State in Washington. 1897). purporting to cede those Islands to the territory and dominion of the United States. by the will of God named heir apparent on the tenth day of April. Thurston. the Queen filed a diplomatic protest with the United States Department of State on June 17th1897. D. A. While in Washington. and. The Queen stated. the perpetuation of the fraud whereby the constitutional government was overthrown. which. A. Hawaii’s Story by Hawaii’s Queen (Charles E. I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii. so I am informed.D. in part: I. 9 128 .C. Tuttle Co. Hatch. D.D. 8 Liliuokalani.” The New York Times. and Kinney..C. D. These organizations were the Men and “Hawaiian Treaty to Wait—Senator Morgan Suggests that It Be Taken Up at This Session Without Result. an act of gross injustice to me. Inc. and by the grace of God Queen of the Hawaiian Islands on the seventeenth day of January. 1964). but would “be taken up immediately upon the convening of Congress next December. 354.C. in violation of international rights both toward my people and toward friendly nations with whom they have made treaties..
13 129 .10 In addition. “means that a foreign state occupies a portion of territory claimed by a state. “Prescription..S. troops disembarked the U. city of El Paso and the Mexican city of Juarez moved. Aloha Betrayed: Native Hawaiian Resistance to American Colonialism (Duke University Press 2004). The legal significance of these protests creates a fundamental bar to any future claim the United States may assert over the Hawaiian Islands by acquisitive prescription.S. 10 Noenoe Silva. The Rio Grande River that separated the U. in which the United States claimed prescriptive title to Mexican land.11 The Senate was unable to garner enough votes to ratify the so-called treaty. side of the river. 11 12 Gerhard von Glahn’s. a petition of 21.S. Law Among Nations. 273-287. Nation Within: The Story of America’s Annexation of the Nation of Hawai`i (Tom Coffman/Epicenter 1999). 268. Boston in Honolulu harbor without permission from the Hawaiian government on January 16th 1893. into Mexican territory.” according to Professor Gehard von Glahn. thereby creating six hundred acres of dry land on the U.13 Over the protests of the Mexican government Tom Coffman. through natural means. See also Coffman. and the Hawaiian Political Association (Hui Kalai`aina). supra note 10.” American Journal of International Law 4(4) (1910): 925.’ and exercises rights of sovereignty over a long period of time. as they did when U. 145-159.S. 371. 6th ed.169 signatures of Hawaiian subjects protesting annexation was filed with the Senate when it convened in December 1897.”12 An example of a claim to “prescription” can be found in the Chamizal arbitration. but events would quickly change as war loomed. The Queen and her people would find themselves at the mercy of the United States military once again. “El Chamizal’ Dispute Between the United States and Mexico. (Macmillan Publishing Company 1992).S.Women’s Hawaiian Patriotic League (Hui Aloha `Aina). encounters no protest by the ‘owner.
” Brownlie further concluded that. diplomatic protests by Mexico prevented title arising. the tracks as well as stations and warehouses. On the following day. 926. the State of Texas granted land titles to American citizens.” American Journal of International Law 5 (1911): 782. 4th ed. in the opinion of the Commissioners. of American owned railroads and street railway have been placed thereon. from any possible future claim over Hawai`i by prescription—failure to continue the protests. Professor Ian Brownlie. Congress declared war on Spain.. Ian Brownlie. “failure to take action which might lead to violence could not be held to jeopardize Mexican rights. the United States Government…erected…a custom-house and immigration station. would not jeopardize vested rights.S. drawing from the 1911 award. President McKinley issued a proclamation that stated. and. “It being desirable that such war 14 Id. “possession must be peaceable to provide a basis for prescription. an arbitral commission established by the two States rejected the United States’ claim to prescriptive title and ruled in favor of Mexico. protests by the Queen and Hawaiian subjects loyal to their country had a significant legal effect in barring the U. confirmed that. 15 130 . the city authorities of El Paso…erected school houses. Principles of Public International Law.”15 In other words. see also “Chamizal Arbitration Between the United States and Mexico. 157. Breakout of the Spanish-American War On April 25th 1898.14 In 1911. which could lead to violence.who called for the renegotiation of the territorial boundaries established since the 1848 treaty of Guadalupe Hidalgo that ended the Mexican American war. (Clarendon Press 1990).
S. Hawai`i Archives. Minister to Hawai`i Harold Sewall to U. Zelandia.S. the U. on May 21st. 17 U. 167.should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice.S. 18 131 .”17 Clearly. Charleston.S.500 troops to reinforce Dewey in the Philippines and Guam. 1898). a protected cruiser. the McKinley administration sought to proclaim before the international community that the war would be conducted in compliance with international law.”16 The Supreme Court later explained that “the proclamation clearly manifests the general policy of the government to conduct the war in accordance with the principles of international law sanctioned by the recent practice of nations. the City of Sidney and the Australia. 175 U. (June 4. was re-commissioned on May 5th. Day. The Paquete Habana. 1770. No. and ordered to lead a convoy of 2. In a deliberate violation of Hawaiian neutrality during the war as well as of international law. on the transport ships the China. as well as the Spanish colonies of the Philippines and Guam. and the Senator. These troops were boarded on the transport ships of the City of Peking. set a course to the Hawaiian Islands for re-coaling purposes.S. The convoy arrived in Honolulu on June 1st. 712 (1900). and took on 1. Colon.943 tons of coal before it left the islands on the 4th of June. Stat. arrived in Honolulu on June 16 30 U. the convoy. Battles were fought in the Spanish colonies of Puerto Rico and Cuba. After Commodore Dewey defeated the Spanish Fleet in the Philippines on May 1st 1898. Secretary of State William R.S.18 A second convoy of troops bound for the Philippines.
I have the honor today to enter a formal protest with the Hawaiian Government against the constant violations of Neutrality in this harbor. note 3. Davis. but the territory of Spain. notified Secretary of State William R.667 tons of coal. at any British port. No.23rd and took on 1. 168 (8 June 1898)..S. 430. naval convoys and assisted in re-coaling their ships. 20 21 22 132 . Day of the Spanish protest in a dispatch dated June 8th. The Elements of International Law (Harper & Brothers Publishers 1903). territory.21 Renjes declared: In my capacity as Vice Consul for Spain. Spanish Vice-Counsel in Honolulu.22 19 Id. Sewall to Day. or nearer destination. Legation in Honolulu.S. Army. 175 (27 June 1898). since 1893. had welcomed the U. the supply of coal for belligerent ships entering a neutral port was regulated by international law. while actual war exists between Spain and the United States of America. a formal protest was lodged on June 1st 1898 by H. Renjes. 1862) adopted the rule that a belligerent armed vessel was to be permitted to receive. from the U. Judge Advocate General for the U. No. George B. notes that “during the American Civil War.S.19 During this time. a puppet government of the U.S.S. As soon as it became apparent that the so-called Republic of Hawai`i. a supply of coal sufficient to enable her to reach a port of her own territory. supra note 18. the British Government (on January 31. Id. Minister Harold Sewall.”20 The Philippine Islands were not U. Hawaiian Neutrality Intentionally Violated Major General Davis.
The 1871 Treaty of Washington between the United States and Great Britain addressed the issue of State neutrality during war. T.A. stated that as “hostilities in time of war can only lawfully take place in the territory of either belligerent. and provided that a “neutral government is bound…not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other. or the recruitment of men. Davis.”25 Bailey continued: The position of the United States was all the more reprehensible in that she was compelling a weak nation to violate the international law that had to a large degree been formulated by her own stand on the Alabama claims. Major General Davis. supra note 20. 23 17 U. At the end of the war. and for the United States to force her into this position was cowardly and ungrateful. or on the high seas. Bailey. “The United States and Hawaii During the Spanish-American War. because such an entry would constitute an invasion of the territory. she was flagrantly violating the neutrality of Hawaii.”23 Consistent with the 1871 Treaty.” The American Historical Review 36(3) (April 1931): 557. in line with the precedent established by the Geneva award. Furthermore. Stat. it follows that neutral territory. as such.A. Bailey stated. 24 T. 25 133 . 429. is entitled to an entire immunity from acts of hostility. or for the purposes of the renewal or augmentation of military supplies or arms. “although the United States had given formal notice of the existence of war to the other powers.S. and therefore of the sovereignty. it cannot be entered by armed bodies of belligerents. Hawaii would be liable for every cent of damage caused by her dereliction as a neutral. in order that they might proclaim neutrality. and was jealously watching their behavior. Spain or cooperating power would doubtless occupy Hawaii. of the neutral. 863.”24 In an article published in the American Historical Review in 1931.
hearings were held on the Newlands resolution.S. intervention in 1893 and the subsequent creation of a puppet government. nor can the inhabitants themselves prevent such occupation. however correct in form. Captain Mahan stated: It is obvious that if we do not hold the islands ourselves we cannot expect the neutrals in the war to prevent the other belligerent from occupying them. to insure payment of damages. Marek.26 Due to U. the United States took complete advantage of its own creation in the islands during the Spanish-American war and violated Hawaiian neutrality.indefinitely if not permanently. The agreements concluded by them with the occupant are not genuine international agreements.27 Newlands Submits Resolution to Annex Hawaiian Islands After the defeat of the Spanish Pacific Squadron in the Philippines. submitted a joint resolution for the annexation of the Hawaiian Islands to the House Committee on Foreign Affairs on May 4th 1898. such agreements are merely decrees of the occupant disguised as agreements which the occupant in fact concludes with himself. Marek argues that: Puppet governments are organs of the occupant and. U.S. Naval Captain Alfred Mahan explained the military significance of the Hawaiian Islands to the United States. Six days later. failing a genuine contracting party. Congressman Francis Newlands (D-Nevada). as such form part of his legal order. and in testimony submitted to the committee. with the consequent jeopardizing of the defenses of the Pacific Coast. 114. supra note 5. The commercial value is not 26 Id. 27 134 . Their measures and laws are those of the occupant.
great enough to provoke neutral interposition. In short, in war we should need a larger Navy to defend the Pacific coast, because we should have not only to defend our own coast, but to prevent, by naval force, an enemy from occupying the islands; whereas, if we preoccupied them, fortifications could preserve them to us. In my opinion it is not practicable for any trans-Pacific country to invade our Pacific coast without occupying Hawaii as a base 28
General John Schofield of the Army also provided testimony to the committee that justified the seizure of the Islands. He stated:
We got a preemption title to those islands through the volunteer action of our American missionaries who went there and civilized and Christianized those people and established a Government that has no parallel in the history of the world, considering its age, and we made a preemption which nobody in the world thinks of disputing, provided we perfect our title. If we do not perfect it in due time, we have lost those islands. Anybody else can come in and undertake to get them. So it seems to me the time is now ripe when this Government should do that which has been in contemplation from the beginning as a necessary consequence of the first action of our people in going there and settling those islands and establishing a good Government and education and the action of our Government from that time forward on every suitable occasion in claiming the right of American influence over those islands, absolutely excluding any other foreign power from any interference.29
On May 17th 1898, Congressman Robert Hitt (R-Illinois) reported the Newlands resolution out of the House Committee on Foreign Affairs, and debates ensued in the
31 United States Congressional Records, 55th Congress, 2nd Session, at 5771. Id.
House until the resolution was passed on June 15th.30 But even before the resolution reached the Senate on June 16th, the Senators were already engaging the topic of annexation by resolution on May 31st. During a debate on the Revenue Bill for the maintenance of the war, the topic of the annexation caused the Senate to go into secret executive session. Senator David Turpie (D-Indiana) made a motion to have the Senate enter into secret session and according to Senate rule thirty-five, the galleries were ordered cleared and the doors closed to the public. These session transcripts, however, would later prove to be important.31
The Great Charade: Annexation by Congressional Resolution From June 16th to July 6th, the resolution of annexation was in the Senate chambers, and would be the final test of whether or not the annexationists could succeed in their scheme. Only by treaty, whether by cession or conquest, can an owner State, as the grantor, transfer its territorial sovereignty to another State, the grantee, “since cession is a bilateral transaction.”32 A joint resolution of Congress, on the other hand, is not only a unilateral act, but also municipal legislation about which international law has imposed “strict territorial limits on national assertions of legislative jurisdiction.”33 Therefore, in order to give the impression of conformity to cessions recognizable under international law, the House resolution embodied the text of the failed treaty. On this note, Senator
Associated Press, “Secret Debate on U.S. Seizure of Hawaii Revealed,” Honolulu Star-Bulletin, A1 (February 1, 1969).
Lassa Oppenheim, International Law, 3rd ed., (Longmans, Green and Company 1920), 376.
Gary Born, International Civil Litigation in United States Courts, 3rd ed., (Kluwer Law International 1996), 493.
Bacon (D-Georgia) sarcastically remarked, the “friends of annexation, seeing that it was impossible to make this treaty in the manner pointed out by the Constitution, attempted then to nullify the provision in the Constitution by putting that treaty in the form of a statute, and here we have embodied the provisions of the treaty in the joint resolution which comes to us from the House.”34 Regarding Congressional authority to annex, the proponents relied on Article IV, section 3 of the U.S. Constitution, which provides that “New States may be admitted by the Congress into this Union.” Annexationists in both the House and Senate relied on the precedent set by the 28th Congress when it annexed Texas by joint resolution on March 1, 1845.35 Opponents argued that the precedence was misplaced because Texas was admitted as a State, whereas Hawai`i was not being annexed as a State, but as a territory. Supporters of annexation, like Senator Elkin (RWest Virginia), reasoned that if Congress could annex a State, why could it not annex territory?36 On July 6th 1898, the United States Congress passed the joint resolution purporting to annex Hawaiian territory, and President McKinley signed the resolution on the following day, which proclaimed that the cession of the Hawaiian Islands had been “accepted, ratified, and confirmed.”37 Like a carefully rehearsed play, the annexation ceremony of August 12th 1898, between the self-proclaimed Republic of Hawai`i and the United States, was scripted to appear to have the semblance of international law.38 On a stage fronting `Iolani Palace in
Cong. Record, supra note 28, 6150. Congressional Globe, 28th Congress, 2nd Session (1845), 372. Cong. Record, supra note 28, 6149. 30 U.S. Stat. 750. 107 U.S. STAT. 1510. Reprinted at Hawaiian Journal of Law and Politics 1 (Summer 2004): 290.
Honolulu, the following exchange took place between U.S. Minister Harold Sewell and Republic President Sanford Dole.39
Mr. SEWELL: “Mr. President, I present to you a certified copy of a joint resolution of the Congress of the United States, approved by the President on July 7th, 1898, entitled “Joint Resolution to provide for annexing the Hawaiian Islands to the United States. This joint resolution accepts, ratifies and confirms, on the part of the United States, the cession formally consented to and approved by the Republic of Hawaii.” Mr. DOLE: A treaty of political union having been made, and the cession formally consented to and approved by the Republic of Hawaii, having been accepted by the United States of America, I now, in the interest of the Hawaiian body politic, and with full confidence in the honor, justice and friendship of the American people, yield up to you as the representative of the Government of the United States, the sovereignty and public property of the Hawaiian Islands. Mr. SEWELL: In the name of the United States, I accept the transfer of the sovereignty and property of the Hawaiian Government.
Legal Interpretation of Annexation by Congressional Action The event of annexation, through cession, is a matter of legal interpretation. According to Kelsen, a renowned legal scholar, what transforms an “event into a legal or illegal act is not its physical existence, determined by the laws of causality prevailing in nature, but the objective meaning resulting from its interpretation.”40 He goes on to state
Lorrin A. Thurston, The Fundamental Law of Hawaii (The Hawaiian Gazette Co., Ltd. 1904), 253. Hans Kelsen, Pure Theory of Law (University of California Press 1967), 3.
that, the “legal meaning of this act is derived from a ‘norm’ [standard or rule] whose content refers to the act; this norm confers legal meaning to the act, so that it may be interpreted according to this norm. The norm functions as a scheme of interpretation.”41 The norm, in this particular case, is U.S. constitutional and international law, and whether or not Congress could annex foreign territory. It is a constitutional rule of American jurisprudence that the legislative branch, being the Congress, is not part of the treaty making power, only the Senate when convened in executive session.42 In other words, without proper ratification there can be no cession of territorial sovereignty recognizable under international law, and the joint resolution is but an example of the legislative branch attempting to assert its authority beyond its constitutional capacity. Douglas Kmiec, acting U.S. Assistant Attorney General, explained that because “the President—not the Congress—has the constitutional authority to act as the representative of the United States in foreign affairs, Congress may proclaim jurisdiction or sovereignty over the territorial sea for international law purposes if it possesses a specific constitutional power.”43 United States governance is divided under three separate headings of the U.S. Constitution. Article I vests the legislative power in the Congress, Article II vests the executive power in the President, and Article III vests the judicial power in various national courts, the highest being the Supreme Court. Of these three powers, only the President has the ability to extend his authority beyond U.S. territory, as he is “the
Id., 4. U.S. CONST., Article II, section 2, clause 2.
Douglas Kmiec, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” Opinions of the Office of Legal Counsel of the U.S. Department of Justice 12 (1988): 238, 250.
S. Louisiana. 3. 35 (1960).”46 A clear and relevant example of a senate resolution in executive session took place in 1850. 1. p. provided two-thirds of the senators present concur. commerce. see also Thurston. Report of the Minister of Foreign Affairs to the President of the Republic of Hawaii (Honolulu Star Press 1898). not under Article I of the U. Senator William King (D-Alabama) submitted the following resolution of ratification that passed by unanimous consent. Constitution. 45 46 Id. That the Senate advise and consent to the ratification of the treaty of friendship. was not only incapable of annexing the Hawaiian Islands because it had no extra-territorial force.S. by and with the advice and consent of the senate.” Volume 8. when the U. which called for ratification to be done “by the President of the United States.”45 A joint resolution is a legislative action of Congress. while a Senate resolution of ratification is an executive action in concurrence with the President by virtue of his authority under Article II. 727. section 2 provides that the President “shall have the power. 120.S. 47 140 . Senate ratified the Hawaiian-American treaty of friendship. Resolved (two thirds of the Senators present concurring). but it also violated the terms of Article VII of the so-called treaty.”44 The joint resolution. supra note 75..47 44 United States v. Article II. to make treaties.constitutional representative of the United States in its dealings with foreign nations. therefore. 363 U. Henry E. 245. concluded at Washington the 20th day of December. and navigation between the United States of America and His Majesty the King of the Hawaiian Islands. Cooper. in the year eighteen hundred and forty-nine. “Journal of the Executive Proceedings of the Senate of the United States of America. commerce and navigation. by and with the advice and consent of the Senate.
Congressman Hugh Dinsmore (D-Arkansas) correctly stated in the debates that Texas was never annexed by joint resolution. a Congressional law and not a resolution of ratification as proclaimed by Minister Sewell at the annexation ceremonies in Honolulu. Jr.51 To clarify this. territory. and it is clearly formatted so it could not be misconstrued to be a law or legislative action. but an executive act under the President’s treaty making power.S. 242. according to Kmiec. 48 49 Thurston. notes the manner in When the Senate Foreign Relations Committee reports out the treaty the committee also proposes a resolution of ratification usually in this form: Resolved.S. supra note 43.49 A Senate resolution of ratification is not a legislative act. In fact. Constitution. Kmiec. Record. That the Senate advise and consent to the ratification of [or accession to] the [official treaty title]. 106-71.Senator King’s resolution was the standard form for ratification of international treaties.48 Although the joint resolution of annexation did incorporate the text of the treaty. The resolution is the evidence of the “advise and consent of the senate” required under Article II. (two-thirds of the Senators present concurring. sovereignty and jurisdiction beyond U. Only the President and not the Congress. has the “constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the Untied States. supra note 28..”50 Texas was not Annexed by Congressional Action Another blow to the annexation scheme was the reliance on Texas as a precedent for congressional authority to extend U. section 2 of the U.S. nevertheless. See 1 Senate Report no. (2001). at 122. supra note 39. Cong. Professor William Adam Russ. it was. 50 51 141 . a history scholar and political scientist. therein). 5778.
failed to ratify the proposed cession. 1846. The Hawaiian Republic. On December 28. 1845. accepted annexation and wrote a state constitution. The resolution merely signified the willingness of the United States to admit Texas as a state if it fulfilled certain conditions.54 The failure to ratify. if Texas refused. Thus annexation was. And Its Struggle to Win Annexation (Associated Universities Presses 1992). Hunter Miller. In October. there would be neither annexation of a territory nor admission of a state. Obviously. 1845.”52 Russ explains that. in effect. The Texan Congress adopted the joint resolution on June 21. 1845. and concludes the annexationists’ use of Texas was an “absurdity. 54 142 . Treaties and Other International Acts of the United States of America (Government Printing Office 1934).. and formal admission took place on February 19. such as acceptance of annexation. there was a time limit that Texas had to present to Congress a duly ratified state constitution on or before January 1. 327. On April 12th 1845. Jr. Texas entered into a treaty of annexation with the United States. Moreover. 52 53 Id. the people in a referendum not only ratified the constitution but also voted to accept annexation. there is serious doubt whether Texas was a State of the Union through Congressional legislation. a bill to admit the new state was signed by President Polk. no doubt. 1894-1898. accepting the American offer. A special convention which met on July 4. with the seating of Texan members in both houses of Congress. 1845. but the Senate. accepted three times.” and William Adam Russ. 1846. like Hawai`i.”53 If one were to look at this within the interpretive context of international law—a law between and not within independent states. 699. was attributed to the fact that Mexico did not recognize “the independence or separate existence of Texas.which Texas was admitted as a state.
if it should have more than one branch emptying directly into the sea. supra note 52. tomorrow the decision may be different. In other words. Id.56 This raises a problem as to what was the legal status of the so-called State of Texas between its formal admission into the United States on February 19th 1846 and the final proclamation of the Treaty of Peace with Mexico on July 4th 1848. following the deepest channel. opposite the mouth of the Rio Grande. from thence up the middle of that river. three leagues from land.” 57 55 Id. where it has more than one. the solution to this paradox “is to say that Congress (precedent or no precedent) enacts into law whatever it can get a majority of its members.. to the point where it strikes the southern boundary of New Mexico…” 56 57 Russ. which included the Texan territory. to believe is constitutional at any one time.maintained that Texas was still Mexican. otherwise called Rio Bravo del Norte. that of Texas via Mexico and the United States.55 What followed in the eyes of international law. 143 . and accepted the Rio Grande river to be the new boundary separating itself from Texas as a State of the American Union. and a majority of the Supreme Court. was the legislation of two separate Congresses conversing across the great divide of two separate territorial sovereignties. or Opposite the mouth of its deepest branch. 330. It wasn’t until the end of the Mexican American War that a peace treaty was signed on February 2nd 1848. at 213. Article V of the 1848 Treaty of Peace provides: “The boundary line between the two Republics shall commence in the Gulf of Mexico. a majority of the people. legality or constitutionality consists in what the Congress and/or the Court may believe is legal or constitutional today. whereby Mexico formally released its sovereignty over its northern territories. According to Russ.
Supreme Court illustrated this view by asserting. Records. as Gary Born states. Ball (D-Texas) characterized the annexation of the Hawaiian State by joint resolution as “a deliberate attempt to do unlawfully that which can not be lawfully done. supra note 28. and other authorities understood international law as imposing strict territorial limits on national assertions of legislative jurisdiction. to places and persons.S.S. Himely.”58 In The Apollon (1824). 262. 5975.S. Justice Department’s Office of Legal Counsel. supra note 33.”62 From the U. 493. 59 60 61 62 63 144 . 8 U.”59 and that the “laws of no nation can justly extend beyond its own territory” for it would be “at variance with the independence and sovereignty of foreign nations. 22 U. “American courts. because during the 19th century. The Apollon. 279 (1807).Government Officials and Scholars Unclear as to how Hawai`i was Annexed Many government officials and constitutional scholars were at a loss in explaining how a joint resolution could have extra-territorial force in annexing Hawai`i. Kmiec. upon whom the legislature have authority and jurisdiction. “that the legislation of every country is territorial.”60 The court also explained. “however general and comprehensive the phrases used in our municipal laws may be. 241.”63 And Westel 58 Born. a foreign and sovereign State. Id. they must always be restricted in construction.”61 Consequently. the U. Rose v. supra note 43. Cong. Congressman Thomas H.S. 362. Kmiec also concluded that it was “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. commentators. 370 (1824).
was strenuously contested at the time both in Congress and by the press..”67 According to Professor Louis Henkin.65 These are international agreements “made by the President as authorized in advance or approved afterwards by joint resolution of Congress. 65 66 Louis Henkin. argued that the annexation of both Texas and Hawai`i did not take place by congressional action. Executive Agreements and Presidential Power in Foreign Policy (Praeger 1986). and the distinction between these “so-called ‘executive agreements’ and ‘treaties’ is purely a constitutional one and has no international significance."64 Some scholars.Only by means of treaties.”66 Other international agreements made by the President under his own constitutional authority are called sole executive agreements that do not require ratification from the Senate nor approval by the Congress. (Clarendon Press 1996). for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted. but it was denied that this might be done by a simple legislative act. “the constitutionality of the CongressionalExecutive agreement seems established. (Baker. however. and Lawrence Margolis. 67 145 . Voorhis 1929). “Draft Convention on the Law of Treaties. it was asserted.” American Journal of International Law 29 (1935): 697. 2nd ed. 62-70. The Constitutional Law of the United States.. 427.. 7-9. International Executive Agreements: Democratic Procedure under the Constitution of the United States (Columbia University Press 1941). by a simple legislative act. The right to annex by treaty was not denied. Wallace McClure. Harvard Research in International Law. Foreign Affairs and the United States Constitution. a constitutional scholar and political scientist. 215.Willoughby. [and] it is used regularly at least for trade and 64 Westel Willoughby. 2nd ed. but by congressional-executive agreement instead. can the relations between States be governed. summed it all up when he stated: The constitutionality of the annexation of Hawai`i.
S. was merely an apologist attempt to make sense of an incoherent act of arrogation. then how can it legislate the annexation of a foreign State that exists beyond its territorial borders. whether before or after. is that the joint resolution of annexation did not approve any executive agreement made by the President with the Republic of Hawai`i. however. and remains available to Presidents for wide. the congressional-executive agreement argument Wallace McClure made in his 1941 published work International Executive Agreements while he worked for the U. If the Congress has no authority to negotiate with foreign governments. 68 Henkin. Congress could no more annex the Hawaiian Islands in 1898 as matter of military necessity during the Spanish American war than it could annex Afghanistan today as a matter of military necessity during the American war on terrorism. Department of State. territory. There remains no evidence in either the Presidential or Congressional records that a congressional-executive agreement was even contemplated or even discussed in the annexations of both Texas and Hawai`i.postal agreements. 218.”68 The underlying problem. supra note 66.S. Without a treaty of cession or even a bona fide congressional-executive agreement. Instead. the sovereignty of the Hawaiian State remains unaffected by foreign legislation of any State. As a legislative body empowered to enact laws that are limited to governing U. but rather embodied the text of the failed treaty itself in statute form and used by the President as if it was a ratification of the treaty. even general use should the treaty process again prove difficult. 146 .
” Hawaiian Journal of Law & Politics 1 (Summer 2004): 280. just a few weeks after the defeat of the Spanish fleet in Manila Bay in the Philippines.”70 According to Hall. that the annexation or some action in regard to those islands had become a military necessity. and with the knowledge that Hawaiian neutrality had deliberately been violated by the McKinley administration. as divulged in these transcripts. reported that “the secrecy was clamped on during a debate over whether to seize the Hawaiian Islands—called the Sandwich Islands then—or merely developing leased areas of Pearl Harbor to reinforce the U. D. Senator Henry Cabot Lodge (R-Massachusetts) argued that.”69 Concealed by the debating rhetoric of congressional authority to annex foreign territory. The transcripts of the Senate’s secret session.Secret Senate Transcripts Reveal Intent of the Joint Resolution The true intent and purpose of the 1898 joint resolution of annexation would not be known until the last week of January 1969. for the President to utilize his war powers in the occupation and seizure of the Hawaiian Islands as a matter of military necessity. after a historian noted there were gaps in the congressional records. was to have the joint resolution serve merely as consent. On this day. “the rights of occupation may be 69 Secret Debate. were made public after the Senate passed a resolution authorizing the U. The Associated Press in Washington. on the part of the Congress. supra note 31. “Transcript of the Senate Secret Session on Seizure of the Hawaiian Islands. the true intent of the Senate. fleet at Manila Bay. 1898. On May 31st 1898. 70 147 .S. 70 years earlier.C. National Archives to open the records.S.. May 31. the “Administration was compelled to violate the neutrality of those islands. the Senate entered into its secret session. that protests from foreign representatives had already been received and complications with other powers were threatened.
and implies no change in the legal position of the invader with respect to the occupied territory and its inhabitants. William E.”74 Birkhimer sought to expound on what Chief Justice Salmon Chase noted in his dissenting opinion in ex parte Milligan regarding military government and martial law that exist under U. 559. law.S.S. Army 1st Lieutenant William E. the latter over loyal territory of the State enforcing it. 1904). 72 73 74 75 148 . Birkhimer wrote the first of three editions that distinguished between military government and martial law—the “former is exercised over enemy territory.S. leading legal authority on U.”72 The Senate would take full advantage of the perceived right of belligerency in the war against Spain and justify the occupation of the Hawaiian Islands as a matter of necessity and self-preservation. Birkhimer. Cong. Records.”71 but occupation by necessity is a belligerent right limited to States at war with each other. 142 (1866). supra note 28. the distinction is important whereby “military government is…placed within 71 William Edward Hall. Hall also states that “if occupation is merely a phase in military operations. Military Government and Martial Law (James J. 1. (Oxford University Press. 2. military occupations included the seminal case ex parte Milligan. A Treatise on International Law.S.” In 1892. 8th Ed. Birkhimer’s publication “Military Government and Martial Law. Id. Chapman 1892). 71 U. the rights which he possesses over them are those which in the special circumstances represent his general right to do whatever acts are necessary for the prosecution of his war. and U.73 At the time of the Spanish American war. Ex parte Milligan.75 According to Birkhimer.placed upon the broad foundation of simple military necessity..
It is incidental to the state of war. Ex parte Milligan. limited only by international law. but also with Chief Justice Chase’s statement regarding the establishment of a military government on foreign soil. were not only familiar with Birkhimer’s publication.”77 Relevant passages from Birkhimer on this subject include: …The instituting military government in any country by the commander of a foreign army there is not only a belligerent right. He may invade the hostile country and subject it to the sovereignty and authority of the United States. and to employ them in the manner he may deem most effectual to harass. or conquering army rules the country with supreme power. with the express or implied sanction of Congress. …The commander of the invading. an ardent annexationist. particularly Senator John Morgan (D-Alabama).”76 After careful review of the transcripts of the secret session. but often a duty. and subdue the enemy. and the orders of his government. it is very likely that the Senators. and appertains to the law of nations. conquer. supra note 74. knew first hand the limitation of exercising sovereignty beyond a State’s borders because of his service as a member of the 76 Birkhimer. while martial law is within the cognizance of municipal law. 77 149 . …As commander-in-chief the President is authorized to direct the movements of the naval and military forces. Senator Morgan. occupying.the domain of international law. supra note 75. Chase stated that military government is established “under the direction of the President.
Secretary of State Frelinghuysen explained to Senator Morgan in a letter that. dated May 17. reprinted in Foreign Relations of the United States 358 (1885).79 U.S. but was simply an “enabler” for the President to occupy the Hawaiian Islands. 80 81 Senate Transcripts. the American schooner Daylight was anchored outside the Mexican harbor of Tampico when a Mexican gunship collided with the schooner during a storm.” The American Journal of International Law. Morgan. 21 (4) (Oct. but the United States emphatically denied this claim. 6. Id.”80 As evidenced in Morgan’s exchange with Senator William Allen (P-Nebraska) in the secret session. Morgan. for no sovereignty can extend its process beyond its own territorial limits. Digest of International Law. either the thing or the person made the subject of jurisdiction must be within the territory. supra note 70. 150 . that the did occur “in Mexican waters and Mexican law is applicable. 353 (1927).. docket no.Senate Foreign Relations Committee in 1884.S.81 In other words. it is the “uniform declaration of writers on public law [that] in an international point of view.S. but merely served as an “express sanction” of the Congress to support the President as their commander-in-chief in the war against Spain. In 1882. 1884. 79 Letter concerning the Schooner Daylight from Secretary of State Frelinghuysen to Mr. it was not a matter of U. 679. vol.78 The Mexican authorities took the position that any claim for damages by the owners of the schooner should be prosecuted through Mexican tribunals and not through diplomatic channels. It was later determined by a General Claims Commission (United States and Mexico) convened to hear the Daylight Case. who was fully aware of the two failed attempts to annex Hawai`i by a treaty of cession. (U.” “Judicial Decisions Involving Questions of International Law. constitutional law. attempts to apply a perverse reasoning of military 78 John Basset Moore. the joint resolution was never intended to have any extra-territorial force. Government Printing Office 1906). The law in force in Mexico at the time of the collision contained no presumption in favor of ships at anchor or in favor of sailing ships in collision with steamers. 1927): 791.
jurisdiction over the Hawaiian Islands. ALLEN. I do not desire to interrupt the Senator needlessly. but deriving his powers from the law. Mr. is that the President of the United States shall have the powers conferred upon him by Congress full and ample. ALLEN. Would it not be exceptional because we have never before had a foreign war like this. ALLEN. as used in these transcripts. then. Instead. to provide a code of laws for the government of a neutral territory in anticipation that within five or six months we might declare war against that power and reduce its territory? Mr. it was a matter of arrogating Hawaiian territory for oneself without right. or anything approximating to it. I infer the Senator means that Congress shall legislate and establish a civil government over territory before it is conquered and that that legislation may be carried into execution when the country is reduced by force of our arms? Mr. in his eyes. Mr. but justified. that Congress shall enact a law to enable him to do it. Mr. but that he shall understand that they come from Congress and do not come from his prerogative. 151 . The term annexation. was not in the context of affixing or bringing together two separate territories. the Commander-in-Chief of the Army and Navy of the United States. and not leave it to his unbridled will and judgment. or whatever his powers may be merely as the fighting agent of the United States. MORGAN. and all I intend to contend for at any time. MORGAN. Would it not be just as wise. under the principle of military necessity. but I want to understand his position. I am not discussing the wisdom of that. What I mean is. All I am contending for at this time. the President having no prerogative powers.
Mr. 269.” and 82 Id. his constitutional powers as Commander-in-Chief of the Army and the Navy are not defined in that instrument. whether it was believed by its author or not. Smythe v.) 374. MORGAN. Territory of Hawai`i v. for the enabling power comes from Congress. referenced Swayne’s statement when the court was faced with the question of whether or not the Newlands Resolution extended the U. 380 (1874). or the like of that. Supreme Court in 1874. Mr.84 Unfortunately.S. 90 U.S. in particular. The Supreme Court did. Fiske.. When he is in foreign countries he draws his powers from the laws of nations. 82 These transcripts are as integral to the Newlands Resolution as if it were written in the resolution itself. Constitution over the Hawaiian Islands. Ironically. but when he is at home fighting rebels or Indians. ALLEN.S. however. a legal fiction “may sometimes mean simply a false statement having a certain utility. Fuller. 83 84 152 .S.”83 The intent of the Senate was to utilize the President’s war powers and not congressional authority to annex. due to the injunction of secrecy imposed by the Senate in 1898 regarding these transcripts. Mankichi.S. 212 (1903). 197. 190 U. it was the U. Mankichi that underscored this principle and. According to L. “The intention of the lawmaker is the law. That would arise from his constitutional powers as Commander-in-Chief of the Army and the Navy. create a legal fiction to be used as a qualifying source for the Newlands resolution’s extraterritorial effect. According to Justice Swayne of the U. he draws them from the laws of the United States. the Supreme Court had no access to these records when it arrived at its decision in 1903. Supreme Court in Territory of Hawai`i v.L. and without it he cannot turn a wheel. (23 Wall. No.
“Though the resolution was passed July 7.S. 1930): 369. Christopher Schroeder. at noon of that day. the United States occupied the Hawaiian Islands for the purpose of waging the war against Spain. The International Law of Occupation (Princeton University Press 1993). the American flag was raised over the government house.“an expedient but false assumption. nor affect Hawaiian sovereignty.” which “spring the constraints that international law imposes upon the occupant. Fuller. unilaterally seized the Hawaiian Islands by way of a joint resolution. when. as well as to fortify the islands as a military outpost for the defense of the United States in future conflicts with the convenience of the puppet government it installed on January 17th 1893. 5.”85 The utility of Mankichi would later prove useful when questions arose regarding the annexation of territory by legislative action. this legal basis stems from “the principle of inalienable sovereignty over a territory. According to Professor Eyal Benvenisti. note 19. and the islands ceded with appropriate ceremonies to a representative of the United States.86 Because Congressional legislation could neither annex Hawaiian territory.L. supra note 84. Mankichi.  the formal transfer was not made until August 12th. 86 87 Eyal Benvenisti. Department of Justice 20 (1996): 398. “Validity of Congressional-Executive Agreements that Substantially Modify the United States’ obligations Under an Existing Treaty. “Legal Fictions. 210. 88 153 . there is strong legal basis to believe that Hawai`i remained a sovereign State under international law when the U.S.” Opinions of the Office of Legal Counsel of the U.”88 Patriotic societies and 85 L.”87 THE MILITARY OCCUPATION OF THE HAWAIIAN ISLANDS While Hawai`i was clearly not a participant in the hostilities of the SpanishAmerican War.” Illinois Law Review 25 (Dec.
supra note 5.S. whether belligerent or neutral. with the consent of the Congress by joint resolution. 110. was no exception when it was occupied by the United States during its war with Spain. as a sovereign and neutral state. delimits the power of the occupant 89 Coffman. 677. 322. Senate Transcripts. Hawai`i. and “in particular they protested the fact that it was occurring against their will. 175 U. represents a clear violation of the rule preserving the continuity of the occupied State.”92 and acknowledged the constraints and protection international laws provide to all sovereign states.”91 In fact. President McKinley proclaimed that the Spanish-American war would “be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice. Benvenisti. supra note 87. Marek. As Marek states. The Paquette Habana. 6.”89 The “power exercising effective control within another’s sovereign territory has only temporary managerial powers.93 Article 43 of the 1899 Hague Regulations. clearly intended to mask the violation of international law as if the annexation took place by treaty.”90 The actions taken by the McKinley administration. the occupant administers the territory on behalf of the sovereign. which remained the same under the 1907 amended Hague Regulations. As noted by Senator Henry Cabot Lodge during the Senate’s secret session. supra note 70. 712 (1900). 90 91 92 93 154 . “a disguised annexation aimed at destroying the independence of the occupied State. supra note 10.many of the Hawaiian citizenry boycotted the ceremony.” and during “that limited period.
see 36 U.and serves as a fundamental bar on its free agency within an occupied neutral State. 8. 94 Although the United States signed and ratified both Hague Regulations. as far as seemed wise.”95 Professor Doris Graber also states that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code.”97 This instruction to apply the local laws of the occupied State is the basis of Article 43 of the Hague Regulations. as far as possible. supra note 87. With specific regard to occupying neutral territory.S. Stat. “was accepted by scholars as mere reiteration of the older law. Stat. in Coenca Brothers vs. the Arbitral Tribunal. Professor Munroe Smith reported that the “military governments established in the territories occupied by the armies of the United States were instructed to apply. 2310. Stat. Doris Graber.”96 Consistent with this understanding of the international law of occupation during the Spanish-American war. 155 . the “text of Article 43. (Columbia University Press 1949).S. the local laws and to utilize. The United States also signed the 1907 Hague Regulations respecting the Rights and Duties of Neutral Powers at The Hague on October 18th 1907 and ratified by the Senate on March 10th 1908. 94 95 Benvenisti. the services of the local Spanish officials. 143.” according to Benvenisti. which post-date the occupation of the Hawaiian Islands. The 1907 Hague Regulations respecting Laws and Customs of War on Land was signed at The Hague October 18th 1907 and ratified by the Senate March 10th 1908. 1898): 748. and subsequently the article was generally recognized as expressing customary international law. The Development of the Law of Belligerent Occupation: 1863-1914. 1803. Germany (1927). “Record of Political Events. see 36 U. see 32(1) U.” Political Science Quarterly 13(4) (Dec. 2277.S. 96 97 Munroe Smith. concluded “the occupation of Salonika by the The United States signed the 1899 Hague Regulations respecting Laws and Customs of War on Land at The Hague on July 29th 1899 and ratified by the Senate March 14th 1902.
the law of occupation ought to be not only applied with equal force and effect. Green and Co. Annual Digest of Public International Law Cases. 98 “Chevreau case (In the Matter of the Claim Madame Chevreau Against the United Kingdom). (David McKay Co. International Laws of Occupation Since 1900. but that the occupier should be shorn of its belligerent rights in Hawaiian territory as a result of Hawai`i’s neutrality. in the course of the war.”98 Later.”100 Although the Hague Regulations apply only to territory belonging to an enemy. nevertheless. Germany. The International Economic Law of Belligerent Occupation (Carnegie Endowment for International Peace 1942). 1931). 241.” American Journal of International Law 27 (1933): 160. occupies neutral territory. 101 156 . Ernst Feilchenfeld. predominantly including military personnel. 571. 8. (Longmans. Ernst Feilchenfeld states. 1927 & 1928. the U. usually held that the rules on belligerent occupation will also apply where a belligerent.”101 Despite Hawai`i being a neutral state at the time of its occupation during the Spanish American war. even if the neutral power should have failed to protest against the occupation. Because of this military presence and its strategic Coenca Brothers v. “it is. 389). International Law..S. 7th ed.. (Greco-German Mixed Arbitral Tribunal. 1948-52).”99 Professor Lassa Oppenheim observes that an occupant State on neutral territory “does not possess such a wide range of rights with regard to the occupied country and its inhabitants as he possesses in occupied enemy territory. in the Chevreau case (1931). December 1st 1927. the Arbitrator concluded that the status of the British forces while occupying Persia (Iran)—a neutral State in the First World War—was analogous to “belligerent forces occupying enemy territory. 99 100 Lassa Oppenheim. has grown exponentially.Allies in the autumn of 1915 constituted a violation of Greek neutrality. migration to Hawai`i. case no.
is precluded from affecting the national population through mass migration and/or birth of U. Additional commands that report to the Pacific Command include U.102 In 1911. Army Commander. with mortar batteries at Diamond Head. Joint Interagency Task Force West. The Pacific Command’s responsibility stretches from North America’s west coast to Africa’s east coast and both the North and South Poles. Special Operations Command Pacific. Forces Korea. 102 U. Territorial Governor Wallace Rider Farrington in 1924 further stated. U. Marine Corps. “Oahu is to be encircled with a ring of steel. <http://www. military presence in the world. Census. Navy.S. all headquartered in Hawai`i. big guns at Waikiki and Pearl Harbor. 104 U.105 One of the fundamental duties of an occupier is to maintain the status quo ante for the national population of the occupied State. Pacific Command. and is comprised of Army. stated. University of Hawaii. for the single largest combined U. Pacific Command was established in the Hawaiian Islands as a unified command on 1 January 1947. (Hawaii War Records Depository. Alaska Command.S. “Ring of Steel: Notes on the Militarization of Hawaii.S. This principle should apply particularly to those who possess the nationality or political status of the Hawaiian Kingdom. Joint Task Force Full-Accounting.S. Brigadier General Macomb. and a series of redoubts from Koko Head around the island to Waianae. William Addleman.S. the U. since 1947.pacom. Forces Japan. It is the oldest and largest of the United States’ nine unified military commands.location. U. citizens within Hawaiian territory. which overlooks Pearl Harbor on the island of O`ahu. 1849-1939. 105 157 . the Asia-Pacific Center for Security Studies. 103 Ian Lind. The U.” Social Process in Hawaii 31 (198485): 25.”103 U.mil> (last visted October 2.S. Located at Camp Smith.S. Hamilton Library.S. infra note 120. 9. “Every day is national defense in Hawai`i. Hawai`i has played a role in nearly every major U.S. as an outgrowth of the command structure used during World War II. District of Hawai`i. and the Joint Intelligence Center Pacific in Pearl Harbor. the Pacific Command is headed by a four star Admiral who reports directly to the Secretary of Defense concerning operations and the Joint Chiefs of Staff for administrative purposes. Manoa). Hawaiian law recognizes three ways of acquiring citizenship: by application to the Minister of the Interior for naturalization.S.S. Hawai`i has been the headquarters. Pacific Command. armed conflict. That Admiral is the Commander-in-Chief. and Air Force service components.”104 Most notably. 2008).S. U. History of the United States Army in Hawai`i.
a part of the alien population. that “the nationality of the inhabitants of occupied areas does not ordinarily change through the mere fact that temporary rule of a foreign government has been instituted. and who must still be considered so today despite being only approximately 20% of the current population in the Islands. constituted nearly 85% of the Hawaiian citizenry. is a Hawaiian subject. who possess the nationality of their parents. Thus under the laws of most countries children born in territory under enemy occupation possess the nationality of their parents. 1 (Government Press.S. 1846). the U. 60. is prevented from exercising the first two means of acquiring Hawaiian citizenship. vol. any individual today who is a direct descendent of a person who lawfully acquired Hawaiian citizenship prior to the U.106 As a foreign government. 76. international laws mandates an occupying government to administer the laws of the occupied State during the occupation. Notwithstanding the magnitude of the United States’ malfeasance that has taken place since the American occupation during the Spanish-American war. that is. inasmuch as military occupation does not confer de jure sovereignty upon an occupant. and citizenship acquired by descent of Hawaiian subjects for children born abroad.citizenship by birth on Hawaiian territory (jus soli). Hawaiian law recognizes all others. The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (University of Minnesota Press 1957). in a role similar to that of a trustee (occupying State) and 106 Statute Laws of His Majesty Kamehameha III.”107 That being the case. who according to the 1890 census. Gehard von Glahn. Von Glahn explains.S. that of the legitimate sovereign of the occupied area. 107 158 . This greatly affects the political position of aboriginal Hawaiians today. occupation that began at twelve noon on August 12th 1898.
supra note 12.”110 Hawai`i’s sovereignty is maintained and protected as a subject of international law. 159 . which are gradually introduced. and regulations) of the occupant.” Chinese Journal of International Law 2(1)(2002): 682. supra note 107. there are three distinct systems of law that exist in an occupied territory: “the indigenous law of the legitimate sovereign.beneficiary (occupied State) relationship. 109 110 von Glahn. Furthermore. As such.” Referring to the American occupation of Hawai`i. supra note 12. decrees. at 785-794. as far as possible. although its effectiveness is greatly diminished by the fact of occupation. at 6. in spite of the absence of a diplomatically recognized government since 1893. Article 43 of the 1907 Hague Convention IV provides for the co-existence of two distinct legal orders. while respecting. and von Glahn. which states. “The Hawaiian Kingdom Arbitration Case and the Unsettled Question of the Hawaiian Kingdom’s Claim to Continue as an Independent State under International Law. even in the absence of effectiveness. and the applicable rules of customary and conventional international law. This principle is clearly laid out in article 43 of the Hague Regulations. unless absolutely prevented.108 Thus. the latter shall take all the measures in his power to restore and ensure. In other words. that of the occupier and the occupied. orders. proclamations. Patrick Dumberry states: the 1907 Hague Convention protects the international personality of the occupied State. the legal order of the occupied State remains intact. the United States should have Benvenisti. 774. the laws in force in the country. See von Glahn. public order and civil life. “the authority of the legitimate power having in fact passed into the hands of the occupant.109 According to von Glahn. 108 Patrick Dumberry. the laws (legislation. supra note 87. 95-221. the occupier cannot impose its own domestic laws without violating international law. to the extent that it has not been necessary to suspend it.
military’s administration of Iraqi law in Iraq with portions of the law suspended due to military necessity. but simply the authority or power to exercise some of the rights of sovereignty.administered Hawaiian Kingdom law as defined by its constitution and statutory laws.S. §358. indispensable both to the inhabitants and to the occupying force.S. Frederick Olafson warns that. but confers upon the invading force the means of exercising control for the period of occupation. Army regulations on the law of occupation recognize not only the sovereignty of the occupied State.” American Journal of International Law 97(4) (October 2003): 842-860. but also bar the annexation of the territory during hostilities because of the continuity of the invaded State’s sovereignty. Current scholarship on this subject has been plagued by presentism that reinforces the present with the past. Army Field Manual 27-10.112 (emphasis added) When appropriate legal and political theoretical frameworks are used it becomes clear that the United States cannot claim to be the successor State of the Hawaiian Kingdom under international law. similar to the U. “Beyond Occupation Law. Army regulations on the laws of occupation not only recognize the continued existence of the sovereignty of the occupied State.S. U. Scheffer. U.111 U. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress. In fact. 111 112 “The Law of Land Warfare”. It does not transfer the sovereignty to the occupant.S. “by tying interpretation so closely to the active and parochial interests of the interpreter” current scholarship has ironically “opened the door to a willful exploitation of the past in David J. (July 1956). 160 . The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order.
“Interpretation and the Dialectic of Action.the service of contemporary interests. as has been strictly subject to the principle of effectiveness. (Oxford Press 2006). but also maintain and protect the international personality of the occupied State. that of the occupied State is regular and ‘normal’.”113 To break this cycle. In the first place: of these two legal orders. a weak title must rely heavily. 2nd ed. until it is rebutted. while that of the occupying power is exceptional and limited. generally. of an established State. The Journal of Philosophy 69 (20) (1972): 719. A presumption is a rule of law where the finding of a basic fact will give rise to the existence of a presumed fact. Thus. legal scholars and political scientists should utilize alternative theoretical frameworks. 113 Regarding the principle of effectiveness in international law. 115 161 . as Craven states. the relation between effectiveness and title seems to be one of inverse proportion: while a strong title can survive a period of non-effectiveness. the presumption––in practice a strong one––is in favor of the continuance. not be reason of its effectiveness. Marek explains.114 Professor James Crawford explains that. on full and complete effectiveness. which seek to explain Hawai’i’s relationship with the United States and not limit the scholarship to mere critique.” See Marek. And. It is the latter which makes up for the weakness in title. in the absence of any evidence extinguishing Hawai`i’s sovereignty during or since the nineteenth century. while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness. It can produce legal effects outside the occupied territory and may even develop and expand. if not exclusively. notwithstanding the effectiveness and propaganda attributed to prolonged occupation. supra note 5.”115 Therefore. 114 James Crawford. “A comparison of the scope of the two legal orders. of the occupied and the occupying State. Belligerent occupation presents an illuminating example of this relation of inverse proportion. the legal order of the occupant is. At the same time. co-existing in one and the same territory and limiting each other. at 102. belligerent occupation “does not extinguish the State. and against the extinction. in other Frederick Olafson.. The Creation of States in International Law. international laws not only impose duties and obligations on an occupier. 701. Belligerent occupation is thus the classical case in which the requirement of effectiveness as a condition of validity of a legal order is abandoned. throws an interesting light on one aspect of the principle of effectiveness in international law. “the continuity of the Hawaiian Kingdom. Furthermore. but solely on the basis of the positive international rule safeguarding its continuity.
or sovereignty. Dean. And all citizens of the United States resident in the Hawaiian Islands who were resident there on or since August twelfth. eighteen hundred and ninety-eight. authored a legal opinion for the acting Hawaiian Government concerning the continuity of the Hawaiian Kingdom. on the part of the United States. 141.S. eighteen hundred and ninety-eight and all the citizens of the United States who shall hereafter reside in the Territory of Hawaii for one year shall be citizens of the Territory of Hawaii. Congress passed an Act establishing a civil government to be called the Territory of Hawai`i. and the United States’ failure to properly extinguish the Hawaiian State under international law (12 July 2002).words. 118 162 . nationals. Stat. Professor of International Law. Id. and proceeded to treat the Hawaiian Islands as if it were an incorporated territory by cession.S. SOAS. section 4 of the 1900 Act stated: all persons who were citizens of the Republic of Hawaii on August twelfth. the U.S. University of London. may be refuted only by reference to a valid demonstration of legal title. 116 117 31 U. Reprinted at Hawaiian Journal of Law & Politics 1(Summer 2004): 512.118 Matthew Craven. are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii.117 Regarding U. never intended to comply with international laws when it annexed Hawai`i by joint resolution. On April 30th 1900.S.116 Civilian Government Established in Violation of the Laws of Occupation Notwithstanding the blatant violation of Hawai`i’s sovereignty since January 16th 1893. the U.
12. accounted for a mere 20% (only 86. the migration of U. General characteristics—Hawai`i. 122 123 Benvenisti. and subject to the jurisdiction thereof. 120 121 Id.174 (including native Hawaiians.S. “all persons born or naturalized in the United States.174) of the total population by 1950. laws. which provides that the occupying power shall not “transfer parts of its own civilian population into the territory it occupies.S. 140. rather than the population of the occupant.990 in 1890.) out of a total population of 499. supra note 87. the putative population of U. who were now “citizens” of the U.”123 Benvinisti also goes on to state that civilian migration and settlement in an occupied State is questionable under Article 43 of the Hague Regulation.928 (not including native Hawaiian nationals) out of a total population of 89. The 14th Amendment states. which included both military and civilian immigration. 163 . 18 (U. 6 UST 3516.091 of 423.121 According to international law.In addition to this Act. the Fourteenth Amendment of the United States Constitution was applied to individuals born in the Hawaiian Islands.”122 Benvenisti asserts that the purpose of Article 49 “is to protect the interests of the occupied population. since it cannot be “deemed a matter of security of the See Mankichi. Aug.794 in 1950. is a direct violation of Article 49 of the Fourth Geneva Convention. Government Printing Office 1952). citizens to these islands.” 119 United States Bureau of the Census. supra note 80. “citizens” in the Hawaiian Kingdom exploded from a meager 1. Convention Relative to the Protection of Civilian Persons in Time of War.S. which accounted for 85% of the total population in 1890.120 The native Hawaiian population. 1949. are citizens of the United States.S.119 Under these U.S. 75 UNTS 287. to 423.
without any knowledge of the Senate secret session transcripts. September 24.126 This puzzled the advocates for statehood in the islands who assumed the Hawaiian Islands were a part of the United States since 1898. the legislature of the imposed civil government in the Islands.128 Beginning with the passage of this statute. but failed because Congress did not view the Hawaiian Islands as an incorporated territory. Act 86 (H. 125 Cessation of the transmission of information under Article 73 e of the Charter: communication from the Government of the United States of America. a concerted effort was made by residents in the Hawaiian Islands to seek entry into the Federal union. United Nations Document A/4226.”125 The first statehood bill was introduced in Congress in 1919. “For most people. enacted a “Bill of Rights. asserting their perceived right of becoming an American State of the Union. Territory of Hawai`i. supra note 70. No. 322. 1959. they also began attempting to transform the Islands into a state of the American union. and it is even more difficult to demonstrate its contribution to ‘public order and civil life. 100. 425). 26 April 1923. 126 127 Senate Transcript. 128 164 . as it does to this day.’”124 Shortly after the 1900’s.” on April 26th 1923. “the fiction of the Republic of Hawaii successfully obscured the nature of the conquest. when the American citizens who migrated to the Territory of Hawaii began to settle and reside there.” according to Tom Coffman. The act of annexation became something that just happened.occupation forces.B. The object of American statehood was finally accomplished 124 Id. supra note 10. Coffman.127 Ironically. but they weren’t aware of the Senate’s secret session that clearly viewed Hawai`i to be an occupied state and not an incorporated territory acquired by a treaty of cession.
S. 100.854. as well as those prescribing the terms or conditions of the grants of lands or other property therein made to the State of Hawai`i are consented to fully by said State and its people. 130 131 132 165 .beginning in 1950.S. 63 delegates were elected to draft a constitution that was ratified on November 7th 1950. and on August 21st 1959.132 In 1988.130 In a special election held on June 27th 1959.. “shall Hawai`i immediately be admitted into the Union as a State?”. 1959. Id. As a result of the elections. On July 28th 1959. supra note 126. Hawai`i Senators and one Representative were elected to office. Congress approved the statehood bill and it was signed into law on March 15th 1959. two U. when two special elections were held in the occupied kingdom. Kmiec working at the U.S.. 4. but also Congress’ authority to establish boundaries for the State of 129 Cessation of Info.129 On March 12th 1959. “all provisions of the Act of Congress approved March 18. second. the U. and third. Justice Department raised questions concerning not only the legality of congressional action in annexing the Hawaiian Islands by joint resolution. three propositions were submitted to vote. 73 U. President Eisenhower proclaimed that the process of admitting Hawai`i as a State of the Federal union was complete.”131 The residents in the Islands accepted all three propositions by 132. and all claims of this State to any areas of land or sea outside the boundaries prescribed are hereby irrevocably relinquished to the United States”. First.938 votes to 7. reserving rights or powers to the United States. 1959. supra note 126. Stat.S. Cessation of Info. 100. “the boundaries of the State of Hawai`i shall be as prescribed in the Act of Congress approved March 18.
Hawai`i that lie beyond the territorial seas of the United States’ western coastline. “which authorizes the United States to claim territorial rights in the sea for the purpose of international law.134 The problem here is that Hawai`i should have never been placed on the list in the first place. he did caution that it was the “President’s constitutional status as the representative of the United States in foreign affairs. Transmission of Information under Article 73e of the Charter.135 It can be argued that 133 134 Kmiec. the United States further misrepresented its relationship with Hawai`i when the United States ambassador to the United Nations identified Hawai`i as a non-self-governing territory under the administration of the United States since 1898. Charter. United States Misrepresents Hawai`i before the United Nations In 1946.”133 Reminiscent of the admission of Texas as a State through congressional legislation.” not Congress. 252.S. 166 . Norton. United Nations General Assembly Resolution 66(I). supra note 43.3d 1271. Although Kmiec acknowledged Congressional authority to admit new states into the union and its inherent power to establish state boundaries. 135 Kahawaiola`a v. December 14.N. there is no legal basis for any U. prior to the passage of the Statehood Act. 386 F. claim of sovereignty over the Hawaiian Islands. 2004). because it already achieved self-governance as a “sovereign independent State” beginning in 1843 — a recognition explicitly granted by the United States itself in 1849 and acknowledged by 9th Circuit Court of Appeals in 2004. at 1282 (9th Cir. the United States ambassador reported Hawai`i as a non-self-governing territory. 1946. even under acquisitive prescription. In accordance with Article 73(e) of the U. but absent a treaty of cession.
General Assembly. Puerto Rico and the Virgin Islands.138 None of the territories on the list of non-self-governing territories. American Samoa. 136 137 138 Pacific Command. In addition to Hawai`i. the U. Belgium. also reported its territories of Alaska. Panama Canal Zone. December 15. 1960. United Kingdom and the United States. such as Russian and China.N. Guam. were recognized sovereign States. New Zealand. 167 .S. with the exception of Hawai`i.” defined self-governance in three forms: a sovereign independent State. Denmark. Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 (e) of the Charter. would have prevented the United States from maintaining their military presence. member States.137 The U. supra note 134. supra note 105. See Resolution 66 (I). France. Netherlands. in a resolution entitled “Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 (e) of the Charter. The initial Article 73(e) list comprised of non-sovereign territories under the control of sovereign States such as Australia. The reporting of Hawai`i as a non-self-governing territory also coincided with the United States establishment of the headquarters for the Pacific Command (PACOM) on the Island of O`ahu. or integration with an independent State.Hawai`i was deliberately treated as a non-self-governing territory or colonial possession in order to conceal the United States’ prolonged occupation of an independent and sovereign State for military purposes. free association with an independent State.136 If the United Nations had been aware of Hawai`i’s continued legal status as an occupied neutral State. United Nations Resolution 1541 (XV).
S. Native Hawaiians are not an indigenous people within the United States with the right to internal self-determination. First. This situation has been maintained. the major aim for the lesser haoles was to promote and maintain their privileged position. behind the reified veil of U. the overthrow and the events that have transpired since then were confined to the framework of United States domestic politics and laws that systematically consigned the Hawaiian situation from an issue of State sovereignty under international law to a race-based political platform within the legal order of the United States. 168 .Notwithstanding past misrepresentations of Hawai`i before the United Nations by the United States.” he continues. as a sub-discipline of political science. Hawai`i remains a sovereign and independent State despite the illegal overthrow of its government in 1893 and the prolonged occupation of its territory for military purposes since 1898. but rather comprise the majority of the citizenry of an occupied State with a right to end the prolonged occupation of their country.” “Most Hawaiians. “the essential purpose of the haole [foreigner] elite for four decades after annexation was to control Hawaii. International Relations. was not used as a tool to investigate and/or to understand the overthrow of the Hawaiian Kingdom government. there are two facts that still remain. sovereignty over the Hawaiian Islands. According to Lawrence Fuchs. a professor of American Studies. second. HAWAIIAN INDIGENEITY AND THE SOVEREIGNTY MOVEMENT The Hawaiian sovereignty movement appears to have grown out of a social movement in the islands in the mid 20th century. until now. Instead. inclusion of Hawai`i on the United Nations list of non-self-governing territories was an inaccurate depiction of a sovereign state whose rights had been violated. and.
(Ku Pa`a 1995). Momi Kamahele states.” Ameraisa Journal 26(2) (2000): 40. 7.”141 Michael Dudley and Keoni Agard credited John Dominis Holt and his 1964 book On Being Hawaiian. language. A Call for Hawaiian Sovereignty (Na Kane O Ka Malo Press 1993). let alone know anything at all of the Hawaiian past. arts and music—euphoria of native Hawaiian pride.”140 Professor Sam No`eau Warner points out that the movement also resulted in the revitalization of “the Hawaiian language through immersion education. 141 Sam L. to clarify even such simple matters for many among us as the maiden name of a Hawaiian grandmother. On Being Hawaiian. Fuchs. that “the ancient form of hula experienced a strong revival as the Native national dance for our own cultural purposes and enjoyment rather than as a service commodity for the tourist industry. “The Movement to Revitalize Hawaiian Language and Culture. edited by Leanne Hinton and Ken Hale. (Academic Press 2001).“were motivated by a dominant and inclusive purpose—to recapture the past.” in The Green Book of Language Revitalization in Practice. Brace & World 1961). (Harcourt. 68. So much that came down to us was garbled or deliberately distorted. for igniting the resurgence of native Hawaiian consciousness. Hawaii Pono: A Social History. 4th ed. 143 John Dominis Holt. No`eau Warner.142 Holt asserted: I am a part-Hawaiian who has for years felt troubled concern over the loss of Hawaiianness or ethnic consciousness among people like ourselves. 133. 142 Michael Dudley & Keoni Agard. “`Ilio`ulaokalani: Defending Native Hawaiian Culture. 169 . Momi Kamahele. 107.143 139 140 Lawrence H. It was difficult to separate truth from untruth.”139 Native Hawaiians at the time were experiencing a sense of revival of Hawaiian culture.
was practically the beginning of time. they needed a definition of time that spanned something more than eleven years. still feeling out its role as America’s newest state.”144 Coffman admits that when he wrote his first book in 1970 he used Statehood in 1959 as an important benchmark in Hawaiian history.145 The first sentence in chapter one of this book read. supra note 10.”146 He recollected in a subsequent book: Many years passed before I realized that for Native Hawaiians to survive as a people. Id. supra note 10. so that as a state Hawaii’s was still young. Catch a Wave: A Case Study of Hawaii’s New Politics (University of Hawai`i Press 1973). 147 Coffman.147 The native Hawaiian community had been the subject of extreme prejudice and political exclusion since the United States imposed its authority in the Hawaiian Islands in 1898. and the history books that followed routinely portrayed the native Hawaiian as passive and inept. according to Holt. the 144 145 146 Coffman. Tom Coffman. December 7th 1941. the effective definition of history had been reduced to a few years. xii. xxii. the “year 1970 was only the eleventh year of statehood. After the overthrow of the Hawaiian Kingdom. and anything that might have happened before that was prehistory. 170 . still enthralled by the right to self-government. 1. The demand for a changed understanding of time was always implicit in what became known as the Hawaiian movement or the Hawaiian Renaissance because Hawaiians so systematically turned to the past whenever the subject of Hawaiian life was glimpsed.Hawaiian Renaissance Tom Coffman explained that when he “arrived in Hawai`i in 1965.
”150 As a result.self-respect of native Hawaiians had been “undermined by carping criticism of ‘Hawaiian beliefs’ and stereotypes concerning our being lazy. Silva.149 Although the Hawaiian Renaissance movement originally had no clear political objectives.”148 This stereotyping became institutionalized. It was almost as if they believed what the white man said about them. supra note 143. people begin to recover from the wounds caused by that disjuncture in their consciousness. since then a good many of them had lost their lives through disease. “When the stories can be validated. it did foster a genuine sense of inquiry and thirst for an alternative Hawaiian history that was otherwise absent in contemporary history books. wrote: The Hawaiians had lost much of their reason for living long ago. because many of the chiefs withdrew from politics in favor of nostalgic self-indulgence. supra note 11. Their resistance to all this was feeble. as happens when scholars read the literature in Hawaiian and make the findings available to the community. in 1974. they lost their leaders. but the interpretive context of Hawaiian history was. that they had only half learned the lessons of civilization. Gavan Daws. who. the survivors lost their land. when the kapus were abolished. 148 149 150 Holt. 291. 171 . and is evidenced in the writings by Gavan Daws. laughing. Native Hawaiians began to draw meaning and political activism from a history that appeared to parallel other native peoples of the world who had been colonized. at the time. lovable children who needed to be looked after by more ‘realistic’ adult oriented caretakers came to be the new accepted view of Hawaiians. Shoal of Time (University of Hawai`i Press 1974). According to Political Science Professor Noenoe Silva. 7. and now at last they lost their independence. 3.
The Hawaiian Renaissance gradually branched out to include a political wing often referred to as the “sovereignty movement. who specializes in the rights of indigenous peoples.152 under which “the United States returned 40 million acres of land to the Alaskan natives and paid $1 billion cash for land titles they did not return. State sovereignty and international laws were perceived not as a benefit for native peoples. at Manoa.S. 22.S. Decolonizing Methodologies: Research and Indigenous Peoples (Zed Books Ltd.primarily historical and not legal. “international law was thus able to govern the patterns of colonization and ultimately to legitimate the colonial order. 1999). student uprisings and the anti-Vietnam War movement. but were seen as tools of the colonizer. As certain native Hawaiians began to organize.C. Indigenous Peoples in International Law (Oxford University Press 2000). 113.”154 151 152 153 James Anaya.” which evolved into political resistance of U. Professor Linda Tuhiwai Smith observed that this political movement “paralleled the activism surrounding the civil rights movement. 154 Linda Tuhiwai Smith. a pamphlet produced by the students in “ES221––The Hawaiians” in the Ethnic Studies Program at the University of Hawai`i’s.”153 it became common practice for Native Hawaiians to associate themselves with the plight of Native Americans and other ethnic minorities throughout the world who had been colonized and dominated by Europe or the United States. 43 U. According to Professor James Anaya. 172 .”151 Native Hawaiians Associate with Plight of Native Americans Following the course Congress set in the 1971 Alaska Native Claims Settlement Act.S §1601. 37 (University of Hawai`i 1974). women’s liberation. sovereignty. Hawaiians: Organizing Our People.
S.. as a result of P. The Office of Hawaiian Affairs shall hold title to all the real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians.K.O. Another organization called ‘Ohana O Hawai`i (Family of Hawai`i). by openly occupying the island in defiance of the U. as a target range. Molokai and Hawaii.gov/lrb/con/conart12. which was formed in 1974. The board members shall be Hawaiians. The board shall select a chairperson from its members.155 Frustrated with inaction by the United States it joined another group called Hui Ala Loa (Long Road Organization) and formed Protect Kaho’olawe ‘Ohana (P.156 P. There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians.A. and.L.O.H.S.S. military. Id. was organized to stop the U.html>.O.).158 O. an organization called A.O.) in 1975. Maui. 173 .K. Article XII. Navy had been using the entire island as a target range for naval gunfire since World War II. the Navy terminated its use of the island in 1994. 113.” (visited October 2. even went to the extreme of proclaiming a declaration of war against the United States of America. 109.157 The political movement also served as the impetus for native Hawaiians to participate in the State of Hawai`i’s Constitutional Convention in 1978.A. Id. 2008) < http://hawaii. as provided by law.A.’s activism.H. off the southern coast of Maui. which created an Office of Hawaiian Affairs (O. supra note 142. Kauai.In 1972.H. There shall be not less than nine members of the board of trustees. The U. (Aboriginal Lands of Hawaiian Ancestry) was founded to seek reparations from the United States for its involvement in the illegal overthrow of the Hawaiian Kingdom government in 1893.” and “Native Hawaiian” 155 156 157 158 Dudley & Agard. Navy from utilizing the island of Kaho’olawe. recognizes two definitions of aboriginal Hawaiian: the term “native Hawaiian” with a lower case “n. section 5 of the State of Hawai`i Constitution states: “There is hereby established an Office of Hawaiian Affairs.K. provided that each of the following Islands have one representative: Oahu.
Planning and Research Office. 188 F. 108. Congress. 2004).’s mission is to: malama (protect) Hawai`i’s people and environmental resources and OHA’s assets. 2001). 2d 1219 (D. 2002). Chapter 42––An Act To amend an Act entitled “An Act to provide a government for the Territory of Hawaii.” both of which were established by the U. Supp. Hawaiian Homestead Act. 2d 1161 (D.”161 The intent of the Apology resolution was to offer an apology to all Native Hawaiians.”162 O. The federal court dismissed the other two cases after determining that the plaintiffs did not have standing to sue the State of Hawai`i. 160 Section 201.H. and Arakaki v. 2008) <http://www. These cases included Rice v. 161 162 163 Apology. Nakatani (Barrett v. constitution.159 The former is defined by the 1921 Hawaiian Homestead Commission Act as “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778. the enhancement of lifestyle and the protection of entitlements of Native Hawaiians. 42 U. Stat.html>. prior to 1778. Cayetano. Since 2000.S.”160 while the latter is defined by the 1993 Apology Resolution as “any individual who is a descendent of the aboriginal people who. Arakaki v.org/databook/databook1996_1998/go-app. supra note 160. 495 (2000). toward ensuring the perpetuation of the culture.S. 1900. only Rice v.163 As a governmental agency.A. 528 U. State of Hawai`i were successful in removing a racial qualification of native Hawaiian ancestry necessary for voting and running for office as a trustee of the Office of Hawaiian Affairs. State of Hawai`i). Of these cases. Lingle. Carroll v.3d 1091 (9th Cir. the Office of Hawaiian Affairs have been challenged on federal constitutional grounds that the program is race-based and violates the equal protection clause of the U.” approved April 30. supra note 38.S.S. while the Hawaiian Homes Commission Act’s definition was intended to limit those receiving homestead lots to be “not less than one-half. and for other purposes. states that is serves both definitions of Hawaiian. Haw. 305 F. Appendix. Office of Hawaiian Affairs.98. while enabling 159 Native Hawaiian Data Book 1996. Haw. without regard to blood quantum. Supp. Cayetano and Arakaki v. (visited October 2. granting certain powers to the board of harbor commissioners of the Territory of Hawaii. State of Hawai`i.A. 174 . O.oha.with an upper case “N. occupied and exercised sovereignty in the area that now constitutes the State of Hawai`i. 314 F. to establish an Hawaiian Homes Commission. as amended.H.
identity and political voice. the “Hawaiian 164 Duncan Ivison. Currently. Paul Patton & Will Sanders. Operating within an ethnic or tribal optic stemming from the Native American movement in the United States. an indigenous peoples rights advocate. Professor Noel Kent states that. “Settlers of Color and ‘Immigrant’ Hegemony: ‘Locals’ in Hawaii. the sovereignty movement eventually expanded itself to become a part of the global movement of indigenous peoples who reject colonial “arrangements in exchange for indigenous modes of self-determination that sharply curtail the legitimacy and jurisdiction of the State while bolstering indigenous jurisdiction over land. argues that “documents like the Draft Declaration [of Indigenous Human Rights] are used to transform and clarify public discussion and agitation. The sovereignty movement created a multitude of diverse groups. indigenous human rights concepts in international usage. recognized nationally and internationally. 89. each having a separate agenda as well as varying interpretations of Hawaiian history. 165 Haunani-Kay Trask. sovereignty is not viewed as a legal reality.” Specifically. but a political aspiration. and the political linkage of the non-self-governing status of the Hawaiian nation with other non-self-governing indigenous nations move Hawaiians into a world arena where Native peoples are primary and dominant states are secondary. Trask states that “legal terms of reference.” Amerasia 26(2) (2000): 17. 175 . Political Theory and the Rights of Indigenous Peoples (Cambridge University Press 2000). to the discussion.the building of a strong and healthy Hawaiian people and nation. but rather focuses on the history of European and American colonialism and the prospect of decolonization.”164 Professor Haunani Trask.”165 This political wing of the renaissance is not in any way connected to the legal position that the Hawaiian Kingdom continued to exist as a sovereign State under international law.
At both these levels. supra note 38. “Indigenous ‘Sovereignty’ and International Law: Revised Strategies for Pursuing ‘Self-Determination.168 This implied that only ethnic Hawaiians constituted the kingdom. 198.sovereignty movement is now clearly the most potent catalyst for change. 176 . Hawaii: Islands under the Influence (University of Hawaii Press 1993).” and “during the late 1980s and early 1990s sovereignty was transformed from an outlandish idea propagated by marginal groups into a legitimate political position supported by a majority of native Hawaiians. Jeff J.S. Corntassel and Tomas Hopkins Primeau. government. The resolution provided: Congress…apologizes to the Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawai`i on January 17.”166Nevertheless. indigenous peoples were viewed not as sovereign states. and fertilized the incipient ethnocentrism of the sovereignty movement.167 United States Apology and Introduction of the Akaka Bill In 1993. rather than the citizenry of the Hawaiian Kingdom. 168 Apology. and political activism relied on the normative framework of the developing rights of indigenous peoples within the United States and at the United Nations.’” Human Rights Quarterly 17(2) (1995): 347. for the United States’ role in the overthrow of the Hawaiian government. but rather “any stateless group” residing within the territorial dominions of existing sovereign states. but political in nature. apologized only to the Native Hawaiian people. 1893 166 167 Noel Kent. the U. the movement was not legal. maintaining an indigenous and historically inaccurate focus.
169 The congressional apology rallied many Native Hawaiians. and the deprivation of the rights of Native Hawaiians to self-determination. 110th Congress (2007).172 The second period 169 170 171 172 Id. According to Akaka. The resolution reinforced the belief of a native Hawaiian nation grounded in Hawaiian indigeneity and culture.” American Journal of International Law 65(3) (July 1971): 463. 310.171 President Woodrow Wilson and others first applied the principle to nations directly affected by the “defeat or collapse of the German. a political scientist. 177 . indigenous. but the bill failed to reach the floor of the Senate for vote. who were not fully aware of the legal status of the Hawaiian Islands as a sovereign state. the bill’s purpose is to provide “a process within the framework of Federal law for the Native Hawaiian people to exercise their inherent rights as a distinct.with the participation of agents and citizens of the United States. also known as the Akaka Bill. S. Id. Consistent with the Resolution in 2003. Rupert Emerson. §19..”170 According to Professor Rupert Emerson. Russian. rather than an occupied State under prolonged occupation. “Self-Determination. in the belief that their situation had similar qualities to Native American tribes in the nineteenth century. there are two major periods when the international community accepted self-determination as an operative right or principle. Senator Daniel Akaka (D-Hawai`i) submitted Senate Bill 344. It was re-introduced by Senator Akaka on January 17th 2007 (S. 310). native community to reorganize a single Native Hawaiian governing entity for the purpose of giving expression to their rights as native people to self-determination and self-governance. to the 108th Congress. AustroHungarian and Turkish land empires” after the First World War. 1513.
took place after the Second World War and the United Nations’ focus on disintegrating overseas empires of its member states. and O.S. declarations on indigenous rights. National Security Council Defines Indigenous Peoples The Akaka bill’s identification of Native Hawaiians as an indigenous people with a right to self-determination is informed by the U.” The Council directed these delegates to “read a prepared statement that expresses the U.N. National Security Council’s position on indigenous peoples.S.” the “Commission’s Working Group on the United Nations (UN) Draft Declaration on Indigenous Rights. and Article 73(e) territories under the United Nations Charter. U.” and to the “Organization of American States (OAS) Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Populations. 2008) <http://www1. By erroneously categorizing Native Hawaiians as a stateless people. On January 18th 2001.S. Commission on Human Rights. and defined 173 174 Id. “which had remained effectively untouched in the round of Wilsonian self-determination. Trust. Position on Indigenous Peoples.N.umn.html>. the Council made known its position to its delegations assigned to the “U. “U.” 174 The Council also directed these delegates to support the use of the term internal selfdetermination in both the U.A.S. 2001. the principle of selfdetermination would underlie the development of legislation such as the Akaka bill.”173 These territories have come to be known as Mandate.edu/humanrts/usdocs/indigenousdoc. understanding of the term internal ‘self-determination’ and indicates that it does not include a right of independence or permanent sovereignty over natural resources. 178 .” January 18.S. (visited October 2. National Security Council.
S. indoctrination has been so complete that the power relationship between occupier and occupied has become blurred if not effaced.” Canadian Review of Studies in Nationalism 17(1-2) (1990): 88. Today. which has been consigned under U. one can see inherent contradictions and divergence of thought and direction. Contrast between Hawaiian State Sovereignty and Hawaiian Indigeneity International laws. and cultural development.Indigenous peoples as having “a right of internal self-determination. By comparing and contrasting the two concepts of Hawaiian State sovereignty and Hawaiian Indigeneity. Esman.” By virtue of that right. provides an alternative view to the political and legal history of the Hawaiian Islands. National Security Council. “they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic. or who claim the right to independent statehood under the doctrine of self-determination of peoples. have dominated the scholarly work of lawyers and political scientists regarding Hawai`i. 179 . and after four generations of occupation.”176 The Akaka Bill falsely identifies native Hawaiians and their right to selfdetermination through this definition given by the U.S. 175 176 Id. social. State sovereignty and the right to internal self-determination of indigenous peoples.”175 This resolution sought to constrain the growing political movement of indigenous peoples “who aspire to rule their territorial homeland. “Ethnic Pluralism and International Relations. Milton J. as an interpretative context. as social and political theories. amnesia of the sovereignty of the Hawaiian State has become so pervasive that colonization and decolonization.
Colonization: A Study of the Founding of New Societies (Ginn & Company 1908). who specialized in colonial studies..” and therefore must be distinguished from migration. (West Publishing Company 1990). Keller goes on to state that the “so-called ‘interior colonization’ of the Germans [within a non-German State] would naturally be a misnomer on the basis of the definition suggested.”179 This is the same as suggesting that the migration of United States citizens into the territory of the Hawaiian Kingdom constituted American colonization and somehow resulted in the creation of an American colony. Albert Galloway Keller. 2. 180 . while the latter is the mode of entry into the territory of another sovereign State. 265. Hawaiian Indigeneity Non-self-governing Dependent Sovereignty Sought Indigenous (mono-ethnic) Colonization De-Colonization The legal definition of a colony is “a dependent political economy. These scholars have lost sight of the original 177 178 Black’s Law Dictionary. 179 Id. consisting of a number of citizens of the same country who have emigrated therefrom to people another.178 The former is an extension of sovereignty over territory not subject to the sovereignty of another State.”177 According to Professor Albert Keller. 6th ed.Hawaiian State Sovereignty Self-governing Independent Sovereignty Established Citizenship (multi-ethnic) Occupation De-Occupation vs. The history of the Hawaiian Kingdom has fallen victim to the misuse of this term by contemporary scholars in the fields of post-colonial and cultural studies. 1. colonization is “a movement of population and an extension of political power. and remain subject to the mother country.
Craven. India from Great Britain. Erstaz is German for an imitation or substitute. is that the colonized must negotiate with the colonizer in order to acquire state sovereignty. concludes: 180 181 Slavoj Zizek. and notions are thus transformed into ideological universals. Id.use and application of the terms colony and colonization. the male sex colonizes the female sex. and have remained steadfast in their conclusion that the American presence in the Hawaiian Islands was and is currently colonial in nature.g. 181 . Colonization/de-colonization is a matter that concerns the internal laws of the colonizing State and presumes the colony is not sovereign. the use of the term colonization “starts to function as a hegemonic notion and is elevated to a universal paradigm. while occupation/de-occupation is a matter of international law relating to already existing sovereign States.”181 In the legal and political realm. Interrogating the Real (Continuum 2005). and so on. the fundamental difference between the terms colonization/de-colonization and occupation/de-occupation. Rwanda from Belgium. 92. e. Soviet occupation of the Baltic States. Professor Slavoj Zizek critically suggests that in post-colonial studies. and Indonesia from the Dutch. so that in relations between the sexes. State sovereignty is presumed and not dependent on the will of the occupier. Under the latter. the upper classes colonize the lower classes. and the American occupation of Afghanistan and Iraq. e.g.”180 In cultural studies he argues that it “effectively functions as a kind of ersatz-philosophy. a Professor of International Law who has done extensive research on the continuity of the Hawaiian State. This has been the source of much confusion in the way of legal or political solutions.
S. despite a history of its non-compliance. 182 . As a matter of State sovereignty. Hawaiian State sovereignty and the international laws of occupation. but also provides the legal framework for regulating the occupier. Therefore. The effects of 182 Matthew Craven.182 Thus. colonialism must be viewed as a tool of the occupant that was used to commit fraud in an attempt to destroy the memory of sovereignty and the legal order of the occupied State. It in abundantly clear that the U. History. consistently employ the terms and theories associated with colonization and indigeneity. of occupation and political marginalization. but to the political and legal process. international law is the appropriate legal framework to not only understand Hawai`i’s prolonged occupation. therefore. they are reinforcing the very control they seek to oppose. when Hawaiian scholars and sovereignty activists. which presupposes sovereignty to be an aspiration and not a legal reality. of de-colonization. government administered the Hawaiian Islands since 1898 as if it were a colonial possession. “Hawai`i. but also provide the basis for resolution through reparations.For the Hawaiian sovereignty movement. Self-determination. but it was for the purpose of concealing a gross violation of international law. on the other hand. inherent sovereignty and indigenous peoples are terms fundamentally linked to not just the concept. in particular. not only presume the continuity of Hawaiian sovereignty. acceding to their identification as an indigenous people would be to implicitly accede not only to the reality. and International Law. and not self-determination of a stateless people. All they might hope for at that level is formal recognition of their vulnerability and continued political marginalization rather than the status accorded under international law to a nation belligerently occupied. but also to the legitimacy.” Hawaiian Journal of Law and Politics 1 (Summer 2004): 8.
and not the political basis of a sovereignty movement.colonization have no doubt affected the psychological and physiological being of many native Hawaiians. language and culture. these violations serve as the measurement for reparations and compensation to a people who. against all odds. 183 . health. As such. fought and continue to fight to maintain their dignity. but these effects must be reinterpreted through the lens of international law whereby colonial treatment is the evidence of the violation of the law.
3 The term obligatory does not import a choice. 857. 2nd College ed. except so far as exception is made by the laws of nations in respect to Ambassadors or others. section 6 of the Hawaiian Civil Code.CHAPTER 5 RIGHTING THE WRONG: BEGINNING THE TRANSITION FROM OCCUPIED TO RESTORED STATE Occupation does not change the legal order of the occupied State.”1 These constraints upon the occupier. but rather a mandate or legal constraint to bind. 80. provides: the laws are obligatory upon all persons.”2 Chapter II. Compiled Laws of the Hawaiian Kingdom (Hawaiian Gazette 1884). is also subject to the laws.. and according to Professor Marek. whether subjects of this kingdom. as formulated in Article 43 of the Hague Regulations. (Librairie Droz 1968). or citizens or subjects of any foreign State. Identity and Continuity of States in Public International Law. 2. The property of all such persons. The American Heritage Dictionary.4 According to Sir William R. 2nd ed. Anson. he can only prevent their implementation. while such property is within the territorial jurisdiction of this kingdom. he can merely prevent them from exercising their functions. exercisable by one person over another. 1 2 Id. He cannot destitute judges and officials. 3 4 184 . He cannot annul its laws. (Houghton Mifflin Company 1982). “obligation is a power of control. with reference to future and specified acts or Krystyna Marek. compel the occupying State “to respect the existing—and continuing—legal order of the occupied State. while within the limits of this kingdom. there is “nothing the occupant can legally do to break the continuity of the occupied State.
1 (West Publishing Company 1914). Id.forbearances.”5 It is a fundamental aspect of compliance that lays down the duty of all persons “while within the limits of this kingdom. Bouvier’s Law Dictionary and Concise Encyclopedia. 4 John Bouvier. but also by all persons within its territory to include aliens. “which binds the citizen to the government. (Government Press 1869).”7 A duty not just owed by the subjects of the state.”8 The statute also provides that an “alien. 6 7 Id.. “which the subject owes to the sovereign. 8th ed. Hawaiian penal law. whether his native country be at war or at peace with this kingdom. defines allegiance to be “the obedience and fidelity due to the kingdom from those under its protection. a question will naturally arise on whether or not the duty of a population’s allegiance is affected in any way when its government has been overthrown and replaced by a foreign occupational government. European practice in the 5 Sir William R. 8 9 185 .”6 It is also the duty. Anson. allegiance is the tie. vol.” and forms the basis of the legal order of the Hawaiian Kingdom—allegiance. According to Bouvier.”9 Intentional deviation of this mainstay of the Hawaiian legal order could be considered a treasonable act. 179. Penal Code of the Hawaiian Islands. in return for the protection which the government affords. 8. correlative with the protection received. owes allegiance to this kingdom during his residence therein. THE CIVIL POPULATION OF AN OCCUPIED STATE UNDER THE LAWS OF OCCUPATION As allegiance is the essential tie between the government and the governed. without which there is anarchy. Principles of the Law of Contract (Callaghan and Company 1880). in particular.
“the duty of allegiance is reciprocal to the duty of protection. and it can be said that. 6th ed. According to former U. Article 43 of the Hague Regulations provides that the laws of the occupied State must be administered. 1992).”10 According to Henry Halleck.”11 In recent times. the inhabitants were forced to swear an oath of allegiance.Van Nostrand 1861). Inc. Assistant Secretary of State David J.”12 The next logical question would be whether or not the laws of occupation affect or modify the domestic laws of the occupied state. 56. therefore. for the time. it loses. the inhabitants should give an obedience equal to that previously given to the laws of their legitimate sovereign and that. International Law (D. von Glahn states. when “a state is unable to protect…its territory from the superior force of an enemy. The Occupation of Enemy Territory…A Commentary on the Law and Practice of Belligerent Occupation (The University of Minnesota Press 1957). therefore. Law Among Nations. 12 186 . 791. “there seems to have been a change in point of view. which is not directed Gehard von Glahn.seventeenth and eighteenth century treated occupied territories as annexed territories. Hill. and the inhabitants of the conquered territory pass under a temporary or qualified allegiance to the conqueror. Gehard von Glahn. By the early nineteenth century. (Maxwell Macmillan Canada. however. which the Hawaiian civil code holds as obligatory. “Anglo-American courts defined the relationship of native inhabitants to the occupant as one of temporary allegiance.S. 777. its claim to the allegiance of those whom it fails to protect. and. at the least. 10 11 Henry Wager Halleck.” and. at the most. they should obey the occupant to the extent that such result can be enforced through the latter’s military supremacy. “the intention of the regulations is that the order and economy of civil life be disturbed as little as possible by the fact of military occupation. but this practice would change as a result of the evolution of international law and the maintenance of the legal order of an occupied State.
“The Rights of the Civil Population in Territory Occupied by a Belligerent.S. Benvenisti states that. however.”14 Therefore. “the drafters of this phrase viewed military necessity as the sole relevant consideration that could ‘absolutely prevent’ an occupant from maintaining the old order. military authorities at the port of Manila during the Spanish-American War. military necessity. 14. 213. e. The International Law of Occupation (Princeton University Press 1993). 15 187 .” The American Journal of International Law 11(1) (1917): 134.”13 This requirement for the occupant to respect the laws of the occupied State.against individuals or against society as an institution. which they are at war with. The United States. Hill. 42 Ct. called for by the necessities of war. and the protection of the interests of the occupied population by maintaining “public order and safety.g. Ho Tung and Co. expands the occupant’s lawmaking capacity beyond war measures.” This was precisely stated in 1907 by a United States Court of Claims in Ho Tung and Co. Cls. and this secondary and lawful aim would David J. 227-228 (1907). The United States regarding the collection of duties by U. 13 14 Benvenisti. v. and includes laws necessitated by the interests of the local population. but solely against armed resistance. v. also means that the occupant does not have to respect the laws if there are extenuating circumstances that absolutely prevents it.”15 von Glahn. The court held that “It is unquestioned that upon the occupation by our military forces of the port of Manila it was their duty to respect and assist in enforcing the municipal laws then in force there until the same might be changed by order of the military commander. there must be a balance between the security interest of the occupant against hostilities by the forces of the occupied State. He argues: that the secondary aim of any lawful military occupation is the safeguarding of the welfare of the native population.
government. whether they are lawful or not. is not judged by the restored civil authority of an occupied State. however. military government and martial law. territory during emergencies. civil law has been suspended by necessity and replaced by the orders of a military commander. Legislation emanating from a military government in occupied States. citizens and residents within U. 21. are judged after the civil authority has been reinstated. William E. These orders. while martial law is a matter of U.S. but by the international laws of occupation. municipal law.S. and martial law is exercised over U.S. among the various 16 Von Glahn. supra note 10.17 According to American usage. the functional symmetry. territory or abroad. Military government. Military law is exercised over military personnel. with respect to the occupied territory.seem to supply the necessary basis for such new laws as are passed by the occupant for the benefit of the population and are not dictated by his own military necessity and requirements. Chapman 1892). therefore. martial law is declared when U. Military Government and Martial Law (James J. and courts. military government is exercised over occupied territories of a foreign State. Birkhimer.S. of course. The reason for this rule is. 17 188 . This subject is fully treated by Benvenisti. whether or not the military bases are situated within U. who states: The occupant may not surpass its limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature.S. is a matter of international law and the rules of war on land. 97.16 Military Government American practice has divided military jurisdiction into three parts—military law.
and Company 1898). 1843) 19 Thomas M. The General Principles of Constitutional in the United States of America (Little.S. The International Economic Law of Belligerent Occupation (Carnegie Endowment for International Peace 1942). Brown. Army and Navy manual of military government and civil affairs during the Second World War. 20 Ernst Feilchenfeld. 19. “military government must be established either by reason of military necessity as a right under international law. 3 (December 22. Unlike U. However. since the occupation administration would then choose to operate through extraterritorial prescription of its national institutions. 190.21 18 Benvenisti. constitutional law that recognizes governmental acts of a failed rebellion so long as it “had no connection with the disloyal resistance to government. supra note 14. 145.S.” U. and it is the sole decision of the restored government on whether or not to maintain those laws. “United States Army and Navy Manual of Military Government and Civil Affairs. these laws lose all effect once the occupation comes to a close.”20 international law does not mandate a restored government to respect the legislation made by a military government because a returning sovereign has far-reaching rescinding powers. 21 189 . Without this symmetry. para.S. Army Field Manual 27-5. Article 43 could become almost meaningless as a constraint upon the occupant.18 According to the U. Cooley.”19 Orders and legislation from a military government can only be sustained so long as the military government remains in effective control of the occupied territory. or as an obligation under international law.lawmaking authorities of the occupying state.
’s (Clarendon Press 1999). 522. Guy S. In other words. ed. there was never a military government established by the United States to administer Hawaiian law. all laws enacted by the Federal government and the State of Hawai`i. have no extraterritorial force. there has been no legitimate government.”22 In the 1930s. the international doctrine of non-recognition arose out of the principle that legal rights cannot derive from an illegal situation (ex injuria jus non Stefan Talmon. First.” The Reality of International Law: Essays in Honour of Ian Brownlie. by operation of United States constitutional constraints as well as Article 43. the Hawaiian Kingdom was never at war with the United States and as a subject of international law was a neutral state.S. “Who is a Legitimate Government in Exile? Towards Normative Criteria for Governmental Legitimacy in International Law. and. nor has there been any Hawaiian government in exile. “international law nevertheless has some bearing on it where a government is created in breach of international law. which.Absence of a Legitimate Government since January 17th 1893 and the Stimson Doctrine of Non-recognition Three important facts resonate in the American occupation of the Hawaiian Kingdom. and while governments are matters of a state’s domestic law. p. 22 190 . stem from the lawmaking power of the United State Congress. All laws emanating from the national institutions of the United States have no legal effect within the occupied territory. to include its predecessor the Territory of Hawai`i since 1900. President. second. or is the result of an international illegality. Goodwin-Gill and Stephan Talmon. whether de jure or de facto under Hawaiian law or military under the executive authority of the U. third. operating within the occupied State of the Hawaiian Kingdom since the illegal overthrow of the Hawaiian government on January 17th 1893.
or lending support or assistance to. and according to Professor Malcolm Shaw: The role of non-recognition as an instrument of sanction as well as a means of pressure and a method of protecting the wronged inhabitants of a territory was discussed more fully in the Advisory Opinion of the International Court of Justice in the Namibia case. Id. The Court held that since the continued South African occupancy was illegal. 390.oritur). 24 25 191 . U. Such acts may range from mere violations of the occupation regime in the 23 Lassa Oppenheim. dealing with South Africa’s presence in that territory.. 7th ed.S. Malcolm Nathan Shaw. International Law.. member states of the United Nations were obliged to recognize that illegality and the invalidity of South Africa’s acts concerning Namibia and were under a duty to refrain from any actions implying recognition of the legality of. all unlawful acts which the latter does not want to commit openly and directly. Secretary of State Henry Stimson declared that “the illegal invasion would not be recognized as it was contrary to the 1928 Pact of Paris (the Kellog-Briand Pact) which had outlawed war as an instrument of national policy. 218.25 Marek explains that puppet governments “commit. for the benefit of the occupying power. International Law. 2 (Longmans 1952). the doctrine came about as a result of the Japanese invasion of Manchuria in 1931 and the setting up of a puppet government. 392. 1971.” 24 The non-recognition doctrine came to be known as the Stimson doctrine. After the invasion. which Professor Lassa Oppenheim calls “an inescapable principle of law. vol. the South African presence and administration.”23 In particular. (Cambridge University Press 2003). 5th ed.
allegedly independent. supra note 1.occupied. the foreign invader. 27 28 29 30 192 . Marek.”30 The provisional government. central or local.S. to carry out acts which would be unlawful if performed directly by the occupant. Territory of Hawai`i and the U. in other words. Maximilian Litvinov. to disregard the firmly established principle of the identity and continuity of the occupied State. In its field manual on the law of land warfare. but in reality serving merely as a screen for.”27 The very aim of establishing puppet governments is “to enable the occupant to act in fraudem legis.”29 The U. in other words. 19 League of Nations Official Journal 341 (1938). State of Hawai`i were all governments created out of an “international illegality. and they do not carry on its continuity. 110. Id. President Cleveland concluded the 26 Marek. it provides that the “restrictions placed upon the authority of a [military] government cannot be avoided by a system of using a puppet government. they are neither its government. U.”26 In 1938. supra note 1. Acts induced or compelled by the occupant are nonetheless its acts.”28 The most prominent feature of puppet governments “is that they are in no way related to the legal order of the occupied State. to commit violations of the international regime of occupation in a disguised and indirect form.” In the investigation of the 1893 overthrow. reminded the League of Nations that there are cases of annexations “camouflaged by the setting-up of puppet ‘national’ governments. Department of the Army affirms this understanding of puppet regimes. Republic of Hawai`i.. U. Army Field Manual 27-10 §366 (July 1956). 113. and an agency of. “The Law of Land Warfare”. 115.S.S.S. but still surviving State to a disguised annexation. nor its organ of any sort.
Congress also concluded that the provisional government’s successor. however. both of which were not self-declared.”32 The question. 453. 1510. and render them null and void.S. are subjects of national law whose rights are enshrined in the State’s organic. the Republic of Hawai`i.S. The occupant who fails to establish the required regime does not seek international protection for its policies in the occupied area. Individuals. but established by Congressional statute? Clearly the creation of these surrogates circumvented the duty of administering Hawaiian Kingdom laws during the occupation. 31 32 33 107 U. These United States House of Representatives.provisional government was “neither de facto nor de jure.”31 but self-declared. 212. 193 . on the other hand. 53rd Congress. In response to contemporary challenges regarding the failure to fulfill the duty to establish a direct system of administration in an occupied territory. statutory and common law. Executive Documents on Affairs in Hawaii: 1894-95. indeed. Reprinted at Hawaiian Journal of Law and Politics 1 (Summer 2004): 290. Benvenisti argues: any measures whatsoever introduced by the occupant or its illegal surrogates would merit no respect in international law. and the U. (Government Printing Office 1895).33 THE CASE FOR REPARATIONS States are subjects of international law and have rights and duties and the capacity of acting with legal consequences. Benvenisti. supra note 14. and. and as such they can be argued to be puppet regimes illegally imposed in the occupied territory of the Hawaiian Kingdom. STAT. is not entitled to expect any deference for these policies. The illegality of the occupation regime would taint all its measures. was also “self-declared. is what was the status of the Territorial government (1900-1959) and the State of Hawai`i government (1959present).
They achieve this goal by maintaining themselves as the mainspring of the creation and use of law. International Law in a Divided World (Clarendon Press 1986). Contemporary International Law. compensation and satisfaction. “States are the foundation of the international political system. they should behave toward each other. restitution in kind.” and they “agree that international law shall be their tool. exist.”37 International law is founded on 34 Antonio Cassese. while restorative justice uses reconciliation that attends “to the negative consequences of one’s action through apology. not their master. Andrew Schaap. 63. Political Reconciliation (Routledge 2005). while in existence. reparation and penance. Id. this instrument had to offer a fairly comprehensive regulation for the identification and survival of states.”35 He explains: International law was originally fashioned into one of the instruments for safeguarding the “personality” and existence of states. 10.two legal systems are not the same and any “failure to grasp this crucial fact would inevitably entail a serious misinterpretation of the impact of law in this community. and demise and in which.”34 According to Werner Levi. It had to specify the manner in which states would arise. (Westview Press 1991). and restorative justice where the injured party or parties are individuals within a State. and can be imposed either singularly or collectively depending on the circumstances of the case. are forms of reparations afforded to an injured party. To be effective. 13.36 According to international law. Werner Levi. 2nd ed. 35 36 37 194 . There are two recognized systems that provide reparations to an injured party—remedial justice where the injured party is a State. Remedial justice addresses compensation and punitive actions.
the court set forth the basic principles governing reparations after breaching an international obligation.remedial justice. whether presented by states or other litigants..”38 The Guatemalan Historical Clarification Commission is an example of a restorative justice system. which was “established in 1996 as part of the UN-supervised peace accord. “Righting Wrongs: Reparations in the Articles of State Responsibility. Politics and the Past: On Repairing Historical Injustices (Rowman & Littlefield 2003).”40 In that case. the award. of JOHN TORPEY. have existed if that act had not been committed. 2003): 836. whereas individual States. 40 195 .” The Commission’s function was to describe “the nature and scope of human rights abuses during the 30-year civil war. if need be. and described by Professor Dinah Shelton as “the cornerstone of international claims for reparation. or. Netherlands. opening the way to a common future. sometimes with the assistance of the United Nations. 39 Dinah Shelton. wipe-out all the consequences of the illegal act and reestablish the situation which would.” American Journal of International Law 96(4) (Oct. Poland) heard before the Permanent Court of International Justice in The Hague.”39 An example of remedial justice is the 1927 seminal Chorzow Factory case (Germany v. The court stated: The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must. The Healing of Nations: The Promise and Limits of Political Forgiveness (Rowman & Littlefield Publishers 2005). 25. employ or facilitate varying forms of restorative justice within their territorial borders where “previously divided groups will come to agree on a mutually satisfactory narrative of what they have been through. 38 Mark R. if this is not possible. 27. Restitution in kind. Amstutz. so far as possible. payment of a sum corresponding to the value which a restitution in kind would bear. in all probability.
17. are subject to regulation by the application of the principles and rules of international law.41 For the past century. Ian Brownlie. 94. the term annexation conjures up synonyms such as affix. But careful study of the annexation reveals that it was not benign. Hawai`i’s territory was occupied for military purposes and in the absence of any evidence extinguishing Hawaiian sovereignty. supra note 12. international laws not only impose duties and obligations on an occupier.”42 Brownlie. territory legally brought about by a congressional resolution. Indemnity.S. e. then the dynamics of state sovereignty can be expressed in terms of law. but a malign act of arrogation on the part of the United States to seize the Hawaiian Islands without legal restraints. As a benign verb. append. Principles of Public International Law. 42 43 196 . A). a treaty of cession or conquest. its government “is that part of a state which undertakes the actions that.damages for loss sustained which would be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. and. attributable to the state.g. a renowned scholar of international law. 47. incorporate or bring together. no. 1928 PCIJ (ser. despite the overthrow of its government. 287. sovereignty is in a major aspect a relation to other states (and to organizations of states) defined by law. as states are equal and have legal personality.”43 Restitutio in integrum is the basic principle and primary right of redress for states whose rights have been 41 Chorzow Factory (Germany v. but maintains and protects the international personality of the occupied State. 4th ed. von Glahn. As an operative agency of the United States. (Clarendon Press 1990). Poland). asserts that if “international law exists. scholars have viewed the overthrow of the Hawaiian government as irreversible and the annexing of the Hawaiian Islands as an extension of U.
” according to Professor James Crawford. §901 (1987). The International Law Commission’s Articles on State Responsibility: Introduction. through remedial justice. 46 47 JAMES Crawford. such as restoration of the status quo ante.”47 “In the case…of unlawful annexation of a State. Restatement (Third) of the Foreign Relations Law of the United States.44 for “it is a principle of international law and even a general conception of law. or specific performance of an undertaking. Responsibility of States for Internationally Wrongful Acts In 1948. the American Law Institute’s Restatement of the Foreign Relations Law of the United States emphasizes the “forms of redress that will undo the effect of the violation. supra note 41. that any breach of an engagement involves an obligation to make reparation. Even so. The Law and Procedure of the International Court of Justice (Grotius 1986). restitution.’”46 When an international law has been violated. the United Nations established the International Law Commission (ILC).”48 The underlying function of reparations. Gerald Fitzmaurice. 29. 215. Part I (Oxford University Press 1983). ancillary measures (the return of persons and property seized in the course of the invasion) will be required as an aspect either of cessation or restitution. System of the Law of Nations: State Responsibility. Text and Commentaries (Cambridge University Press 2002). comprised of legal experts from around the world that would fulfill the Charter’s mandate Ian Brownlie. “the withdrawal of the occupying State’s forces and the annulment of any decree of annexation may be seen as involving cessation rather than restitution. 211.”45 Gerald Fitzmaurice argues that the “notion of international responsibility would be devoid of content if it did not involve a liability to ‘make reparation in an adequate form. is to restore the injured State to that position as if the injury had not taken place.violated. 48 197 . 6. 44 45 See Chorzow.
began its work in 1956. Brownlie. supra note 43.”50 After nearly half a century.C. and the I.52 Crawford suggested that by having the General Assembly initially take note of the Articles by resolution. in a comprehensive and ordered form.A.. Id. the I.of “encouraging the progressive development of international law and its codification. para.”51 Members of the Commission were divided on the options and decided upon a two-stage approach that would first get the General Assembly to take note of the articles. supra note 48. according to Brownlie. of rules or existing law and the approval of the resulting text by a law-determining agency. See also Fourth Report. A/CN. Res. which were annexed to a resolution. the articles could be the subject of “a convention on State responsibility and some form of endorsement or taking note of the articles by the General Assembly.C.”53 According 49 Id. According to Crawford. 1. Crawford.. leaving its content to be taken up in the normal processes of the application and development of international law.L. 59/35 of December 2.C.”49 State responsibility was one of fourteen topics selected for codification. and was faced with two options for action by the United Nations.L. the commission also thought that maybe a later session of the General Assembly would be best to consider the appropriateness and feasibility of a convention. 30. 2004. After some reflection. finally completed the articles on Responsibility of States for Internationally Wrongful Acts on August 9th 2001. “involves the setting down. Codification.L. it could “commend it to States and to international courts and tribunals. the I. 50 51 52 53 198 . See also G. Id. 59.4/517. 26. at 58.’s Special Rapporteur for the articles and member of the commission since 1992 as well as presiding arbitrator in the Larsen case.
a legal scholar of international law. 4/517. 842. the significance of the “work of the ILC is similar in authority to the writings of highly qualified publicists.” American Journal of International Law 96 (2002): 867.56 The codification of international law on State responsibility has been hailed as a major achievement “in the consolidation of the rule of law in international affairs. 22 (2001). Caron. in particular.” This is especially true because it “ventured out into the ‘hard’ field of law enforcement and sanctions.”58 Despite her view David D. 54 55 James Crawford. that “States. supra note 40.” Baltic Yearbook of International Law 3 (2003): 58.”55 There are two conceptual premises that underlie the articles of State responsibility: 1. Remedial justice as the goal of reparations for those injured by the breach of an obligation. para. whatever its status. Crawford stated. supra note 33.54 In his fourth report on State Responsibility. but that States shall not “recognize as lawful a situation created by a serious breach. see also Brownlie.”57 Shelton also lauds. because it will be an authoritative text in the field it covers. 56 Lauri Malksoo. A/CN.N. Article 41’s mandate that States not only cooperate in order to bring to an end a serious breach of international law. and 2.” which is a recognized source of international law. 57 58 See Shelton. 838. 199 . The importance of upholding the rule of law in the interest of the international community as a whole. supra note 54.to Professor David Caron. tribunals and scholars will refer to the text. which has been classically considered the Achillean heel of international law.” U. “Fourth Report on State Responsibility. 25. “The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority. “State Responsibility and the Challenge of the Realist Paradigm: The Demand of Baltic Victims of Soviet Mass Repressions for Compensation from Russia. Caron. Doc.
unog. individuals and businesses against Iraq as well as selected publications. the United Nations Security Council specifically addressed and established a means to satisfy injured parties who suffered from an international wrongful act by a State. It wasn’t a dispute.”62 Iraq’s invasion and occupation of Kuwait was a violation of Kuwait’s territorial integrity and sovereignty.that the articles represent “the most far-reaching examples of the progressive development of international law. 62 200 . it is only in this last respect that a quasi-judicial function may be involved. and therefore considered an international wrongful act. 2008) <http://www2.” American Journal of International Law 87(1) (1993): 144. Id. (visited October 2. “The United Nations Compensation Commission—A New Structure to Enforce State Responsibility..”61 According to United Nations’ Secretary General Kofi Annan. 61 The United Nations established a website for the United Nations Compensation Commission. it is a political organ that performs an essentially fact-finding function of examining claims. though.”59 she admits it also highlights “the need to identify the means to satisfy injured parties while ensuring the international community’s interest in promoting compliance. the Security Council established the United Nations Compensation Commission as “a new and innovative mechanism to collect. 856. 59 Id. evaluating losses. After the first Gulf war. Crook. assessing payments and resolving disputed claims. so intervention of an international court or arbitral tribunal was not necessary. verifying their validity.”60 In 1991.ch/uncc/>. “the Commission is not a court or an arbitral tribunal before which the parties appear. assess and ultimately provide compensation for hundreds of thousands—or even millions—of claims against Iraq for direct losses stemming from the invasion and occupation of Kuwait. 60 John R. The website is an excellent resource of information regarding the claims by states.
and the continuing viability of the claim itself. once the respondent State opposes the claim. 67 201 . a conflict of legal views or of interests”64 between two States. 1155. and…constitutes a breach of an international obligation of the State. A. supra note 43. Ser. 66 Article 69 of the 1969 Vienna Convention on the Law of Treaties defines a “peremptory norm or general international law [as] a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. on the other hand. Treaty Series.” See Brownlie. 64 65 According to Brownlie.N. at 477. has to establish its qualifications for making the claim. 2.. whether legal or political. an international wrongful act consists of “an action or omission…attributable to the State under international law. especially if the breach involves the violation of a peremptory norm or jus cogens. but an internationally wrongful act is not dependent on a State’s opposing claim. They have nothing to do with questions of the jurisdiction of a court or tribunal 63 Crawford. Article 33. enquiry and mediation provide for the settlement of political disputes that deal with competing political or economic interests. a “state presenting an international claim to another state. is “a disagreement on a point of law or fact.”63 A dispute.67 Crawford explains: Circumstances precluding wrongfulness are to be distinguished from other arguments which may have the effect of allowing a State to avoid responsibility. Mavrommatis Palestine Concession case. PCIJ.65 A claim by a State66 becomes a dispute. U.An internationally wrongful act must be distinguished from a dispute between States. at 81. arbitration and judicial settlement settle legal disputes that seek to assert existing law.” See Vienna Convention on the Law of Treaties (1969). either in diplomatic exchanges or before an international tribunal. p. vol. 331. no. Conciliation. before the merits of the claim come into question. 11. supra note 48. According to the Responsibility of States for Internationally Wrongful Acts. while negotiation. United Nations. CHART.
Elements of International Law (Clarendon Press 1936). Hawai`i could find satisfaction through a compensation commission established by the United Nations Security Council that would be capable of addressing the subject of reparations and the effects of a prolonged occupation. the appropriate venue for remedy could be the Security Council and not an international court or arbitral tribunal. 4th ed. those elements which have to exist for the issue of wrongfulness to arise in the first place and which are in principle specified by the obligation itself. The Elements of International Law (Harper & Brothers 1903). 69 202 . the danger to the intervening State “must be great. distinct. Negotiating Settlement: 1893 Cleveland-Lili`uokalani Agreement of Restoration When U.68 In similar fashion.. I will argue that Hawai`i does not have a dispute with the United States.over a dispute or the admissibility of a claim. George B. A Treatise on International Law. Davis.B. In these next sections. and not rest on vague and uncertain 68 Crawford. as an international wrongful act. 99. 162. Non-interference was a recognized general rule of international law. 21. (F. James Kent. Henry Wheaton. unless the interference was justifiable under the right of the intervening State’s selfpreservation. 8th Ed. Rothman 1981). forces and its diplomatic corps overthrew the Hawaiian Kingdom government in 1893 with its aim towards extending its territory through military force. 55. Commentaries on American Law. Thomas D. William Edward Hall. (F. 12th ed.e. and imminent.S. supra note 48.B. i. 50. in the nineteenth century as it is now. or peremptory norm. They are to be distinguished from the constituent requirements of the obligation. Rothman 1989). it constituted a serious breach of the Hawaiian State’s dominion over its territory and the corresponding duty of non-intervention. (Oxford University Press.69 But in order to qualify a State’s intervention. Introduction to the Study of International Law. 100. and therefore. Woolsey. 1904).
it may be safely asserted. U. to apologize or express its regret for his behaviour. 53rd Congress. Oppenheim states that “according to special circumstances and conditions the home State may be obliged to disown an act of its envoy. Kent. 3rd ed. or to pay damages.suspicion.” 71 He concluded that the “lawful Government of Hawaii was overthrown without the drawing of a sword or the firing of a shot by a process every step of which. is directly traceable to and dependent for its success upon the agency of the United States acting through its diplomatic and naval representatives.”73 On November 13th 1893. Legation. United States House of Representatives. 252.S. 1895). with her 70 Id.”74 Willis explained to the Queen of the “President’s sincere regret that. 73 74 203 .S. 24. supra note 71. Minister Willis requested a meeting with the Queen at the U. either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property. International Law.. 71 72 Id. and his hope that.”72 On the responsibility of State actors.”70 The Hawaiian Kingdom posed no threat to the preservation of the United States and after investigating the circumstances that led to the overthrow of the Hawaiian government on January 17th 1893. through the unauthorized intervention of the United States.. she had been obliged to surrender her sovereignty. (Longmans. President Cleveland determined that “the military occupation of Honolulu by the United States…was wholly without justification. Green and Company 1920). 452 [hereafter Executive Documents]. Executive Documents on Affairs in Hawaii: 1894-95. 1242. Executive Documents.. “who was informed that the President of the United States had important communications to make to her. Lassa Oppenheim. 455. (Government Printing Office.
” When asked again if she would reconsider the President’s request. and their property confiscated.”78 The Queen referenced Chapter VI.. Id.”79 75 Id. “[w]hoever shall commit the crime of treason shall suffer the punishment of death and all his property shall be confiscated to the Government. “[t]hese people were the cause of the revolution and the constitution of 1887. My decision would be. They must be sent out of the country.consent and cooperation.. Id. or punished. she responded. 76 77 78 79 204 . that such persons should be beheaded and their property confiscated to the Government. as the law directs. 1242. The Queen was then asked. “[s]hould you be restored to the throne.”75 The President concluded that the “members of the provisional government and their supporters. would you grant full amnesty as to life and property to all those persons who have been or who are now in the Provisional Government. section 9 of the Penal Code. though not entitled to extreme sympathy. the wrong done to her and to her people might be redressed. There will never be any peace while they are here. which states. “[t]here are certain laws of my Government by which I shall abide. Id. have been led to their present predicament of revolt against the Government…by the indefensible encouragement and assistance of our diplomatic representative. Id. or who have been instrumental in the overthrow of your government?”77 She responded. 457.”76 Thus being subject to the pains and penalties of treason under Hawaiian law.
S.. Id. The United States. 285. 1192.In a follow-up instruction sent to Willis on December 3rd 1893.” but it was dependent upon an unqualified agreement of the Queen to recognize the 1887 constitution. Cl. 10 Ct. Id. U. Justice Loring correctly stated that the word amnesty has no legal significance in the common law. United States. 81 Gresham directed Willis to convey to the Queen that should she “refuse assent to the written conditions you will at once inform her that the President will cease interposition in her behalf. but arises when applied to rebellions that bring about the rules of international law. Knote v. 5 Nev.84 which is “an act of sovereign mercy and grace.S. 373 (1870). 397. 407 (1875). 81 82 83 84 85 205 . 369. 80 Gresham acknowledged that the President had a duty “to restore to the sovereign the constitutional government of the Islands. Ex parte Law. 296 (1866).”85 As Cleveland’s request for a grant of general amnesty from the Queen was essentially tied to the Hawaiian crime of treason. and to grant full amnesty to those individuals instrumental in setting up or supporting the Provisional Government.”82 Constitutional Constraints upon the Agreement to Settle In Knote v. Id. flowing from the appropriate organ of the government. 83 He adds that amnesty is the synonym for oblivion and pardon. McKeeby. see also Davies v. Minister to continue to negotiate with the Queen. Secretary of State Gresham directed the U. 85 Ga. assume all administrative obligations incurred by the Provisional Government. three 80 Id.
English. and other foreigners unnaturalized were permitted to vote…”86 He concluded these elections “took place with the foreign population well armed and the troops hostile to the crown and people. but out of session. the revolutionaries of 1887 found no other alternative but to appeal to the U. By soliciting the intervention of the U. King Kalakaua. supra note 71. 1906). 1 (Government Printing Office. as 86 See Executive Documents.S. at the point of a bayonet. at 579. Germans.questions naturally arise. and (3) acquiescence of the people. See also John Bassett Moore. vol. troops for their protection. As Blount discovered in his investigation. these revolutionaries effectively rendered their 1887 revolution unsuccessful. 87 United States doctrine at the time considered rebellions to be successful when the revolutionaries are (1) in complete control of all governmental machinery. Id. and organized a new election of the legislature while the lawful legislature remained in term. (2) there exists no organized resistance. the purpose of the constitution was to offset the native voting block by placing it in the controlling hands of foreigners where “large numbers of Americans.”87 With the pending retake of the political affairs of the country by the Queen and loyal subjects.88 The 1864 Constitution. troops in order to provide for their protection with the ultimate aim of transferring the entire territory of the Hawaiian Islands to the United States. resident Minister John Stevens to order the landing of U. 88 206 .S.S. and transformed the matter from a rebellion to an intervening state’s violation of international law. 139. A Digest of International Law. When did treason actually take place? Was the Queen constitutionally empowered to recognize the 1887 constitution as lawful? And was the Queen empowered under Hawaiian constitutional law to grant a pardon? The leaders of the provisional government committed the crime of treason in 1887 when they forced a constitution upon the Queen’s predecessor.
Lydecker. As chief executives. but limited in authority by a written constitution.. 1864 HAWN. Prior to the revolution. Article 27. 1918). the Monarch “by and with the advice of His Privy Council. CONST. and the session laws of the Legislative Assembly enacted before the revolution on July 6th 1887. is who has the pardoning power and when can that power be exercised. and publicly proclaim as such during the King's life…” 89 90 U. after conviction. the Civil Code.S. Penal Code. 22 of the Hawaiian Constitution provides: “…the successor shall be the person whom the Sovereign shall appoint with the consent of the Nobles. both the Queen and President were not only authorized. could only come through consultation with Her Privy Robert C. for all offences.89 in accordance with Article 22 of the Hawaiian constitution. and. CONST..amended. Art. the Queen was confirmed as the lawful successor to the throne of her brother King Kalakaua on April 10th 1877. Hawaiian law vests the pardoning power in the executive by constitutional provision. comprised the legal order of the Hawaiian State and remained the law of the land during the revolution and throughout the subsequent intervention by the United States since January 16th 1893. Ltd. except in cases of impeachment. Article II. therefore. except in cases of impeachment (emphasis added). though. Roster Legislatures of Hawaii: 1841-1918. but where the laws differ. the Queen’s decision to pardon.. constitution.”90 but under the Hawaiian constitution. Similar to United States law. (The Hawaiian Gazette Co. has the power to grant reprieves and pardons. §2. unlike the President.S.”91 As a constitutional monarchy. the President alone has the “power to grant reprieves and pardons for offenses against the United States. capable of negotiating on behalf of the Hawaiian Kingdom the settlement of the dispute with the United States. 138. Under the U. 91 207 .
The Hawaiian constitution also vests the law making power solely in the Legislative Assembly comprised of the “[t]hree Estates of this Kingdom…vested in the King. e.. after three meetings with Willis. 93 208 . nor was she able to grant amnesty to prevent the criminal convictions of treason. but only after judgments have already been rendered by Hawaiian courts.g. the Queen finally agreed with the President and provided the following pledge that was dispatched to Gresham on December 20th 1893. Article 80. Article 45. sitting together. and the Legislative Assembly. the Queen’s recognition of the 1887 constitution.”92 Any change to the constitution. and the power to pardon can only be exercised once the conviction of treason had already taken place and not before.”93 From a constitutional standpoint. Another constitutional question would be whether or not the Queen would have the power to grant a full pardon without advise from Her Privy Council. Id. An agreement between the two Heads of State had 92 Id. which Assembly shall consist of the Nobles appointed by the King. which would be the case. must be first proposed in the Legislative Assembly and if later approved by the Queen then it would “become part of the Constitution of [the] country. On December 18th 1893.Council.. a commitment on the part of the Queen could have strong consideration when Her Privy Council is ultimately convened once the government is restored. the Queen was not capable of recognizing the 1887 constitution without first submitting it for consideration to the Legislative Assembly convened under the lawful constitution of the country. and of the Representatives of the People. If not.
if reinstated as the constitutional sovereign of the Hawaiian Islands. to assume the Government precisely as it existed on the day when it was unlawfully overthrown. and desiring to put aside all feelings of personal hatred or revenge and to do what is best for all the people of these Islands. do hereby and herein solemnly declare and pledge myself that. if restored. I further solemnly agree to accept the restoration under the constitution existing at the time of said revolution and that I will abide by and fully execute that constitution with all the guaranties as to person and property therein contained. 94 The Queen’s declaration was dispatched to the President by Willis and represented the final act of negotiation and settlement of the dispute that arose between 94 Executive Documents. and that I will forbid and prevent the adoption of any measures of proscription or punishment for what has been done in the past by those setting up or supporting the Provisional Government. in recognition of the high sense of justice which has actuated the President of the United States. with restoration of all rights.finally been made for settlement of the international dispute and restoration of the government. in the proper course of administration. to assume all the obligations created by the Provisional Government. supra note 71. it being my purpose. 1893. 209 . both native and foreign born. I furthermore solemnly pledge myself and my Government. I. Liliuokalani. to every person who directly or indirectly participated in the revolution of January 17. privileges. including all expenditures for military or police services. that I will immediately proclaim and declare. unconditionally and without reservation. if restored. 1269. and immunities under the constitution and the laws which have been made in pursuance thereof. a full pardon and amnesty for their offenses.
which is highly unlikely given its illicit purpose. not legal.S. the dispute was settled and all that remained for the United States President was to restore the Hawaiian Kingdom government. the spirit of “mercy and grace” offered to a cabal of criminals who would later defy the offer of pardon. Hawaiian constitutional law prevents it from having any legal effect. is capable of committing treason against this kingdom. was to mitigate the severity of criminal punishment inflicted on the failed revolutionaries. Furthermore. and seek protection of the United States under the guise of annexation. VI.S. But despite the Queen’s reluctant recognition of the 1887 constitution. The push for amnesty by the United States was political. whether his native country be at war or at peace with this kingdom. owes allegiance to this kingdom during his residence therein. If the constitution did empower the Queen to recognize the 1887 constitution without the legislature. These criminals never intended to be an According to §3. in a most trying and difficult time for the Queen. but rather a recognized mandate founded in the principles of international law. which included U. no doubt.the United States and the Hawaiian Kingdom on January 16th 1893. unless it was first submitted to a lawfully convened Legislative Assembly. and during such residence. after the criminal convictions of the failed revolutionaries. there would be no need for amnesty since the overthrow of the Hawaiian government was directly linked to the revolution of 1887 as reported by U. the United States’ duty to restore the government was not dependent on an agreement with the Queen to grant amnesty. and. and assume administrative obligations of the so-called provisional government. Chap.” 95 210 . “An alien. In other words.95 Notwithstanding the constitutional limitations and legal constraints placed upon the Queen as Head of State. citizens. Special Commissioner James Blount. whereupon the Queen was to grant amnesty. Hawaiian Penal Code. the agreement to pardon did represent.
Id.”97 These subsequent actions taken by the revolutionaries would no doubt have a profound affect on whether or not the offer of a pardon is still on the table. (3) the president’s authority as commander in chief. Foreign Affairs and the United States Constitution. whether as a provisional government that would “exist until terms of union with the United States of America have been negotiated and agreed upon. to enter into agreements with foreign States is not limited to treaties. 187. executive agreements do not.S. (Clarendon Press 1996). 198. 211 .independent State. 2nd ed. but includes executive agreements. supra note 89. subject to the ratification of the Senate. 215. and (4) the president’s duty to “take care that the laws be faithfully executed.”100 According to Professor Louis Henkin: 96 Lydecker. whether jointly with Congress98 or under the President’s sole constitutional authority.. 97 98 “The executive branch claims four sources of constitutional authority under which the President may enter into executive agreements: (1) the president’s duty as chief executive to represent the nation in foreign affairs. “Presidents have made some 1600 treaties with the consent of the Senate [and] they have made many thousands of other international agreements without seeking Senate consent.” 99 100 Louis Henkin.S. United States Obligation Established by Executive Agreement The ability for the U. (2) the president’s authority to receive ambassadors and other public ministers. and U. 145. even when they are posthumously tried for the crime of treason by a restored Hawaiian government.”96 or when they changed their name to the so-called Republic of Hawai`i that authorized its President “to make a Treaty of Political or Commercial Union [with] …the United States.S. Senate. See Chapter 4.99 While treaties require ratification from the U.
” and his duty to “take care that the laws be faithfully executed. 1974. (2) the president’s authority to receive ambassadors and other public ministers.101 According to the U. Franklin Roosevelt exchanged over-age destroyers for British bases early during the Second World War.S. In 1817. Theodore Roosevelt put the bankrupt customs houses of Santo Domingo under U. differing in formality and importance.S. McKinley agreed to contribute troops to protect Western legations during the Boxer Rebellion and later accepted the Boxer Indemnity Protocol for the United States. A Gentlemen’s Agreement with Japan (1907) limited Japanese immigration into the United States. Since the Second World War there have been numerous sole agreements for the establishment of U. 102 212 . control to prevent European creditors from seizing them. the “executive branch claims four sources of constitutional authority under which the President may enter into [sole] executive agreements: (1) the president’s duty as chief executive to represent the nation in foreign affairs.Presidents from Washington to Clinton have made many thousands of agreements. and (4) the president’s duty to ‘take care that the laws be faithfully executed. the Rush-Bagot Agreement disarmed the Great Lakes.S.2(b)(3). 219. 11 Foreign Affairs Manual 721. (3) the president’s authority as commander in chief.S. October 25.. on matters running the gamut of U. policy in the Far East.’”102 The agreement with the Queen evidently stemmed from the President’s role as “chief executive.” and the binding nature of 101 Id.S.” “commander in chief. Root-Takahira (1908) and Lansing-Ishii (1917) defined U. military bases in foreign countries. Foreign Affairs Manual. Potsdam and Yalta shaped the political face of the world after the Second World War. foreign relations.
204 F. the Soviet Union nationalized the corporation and sought to seize its assets in the New York bank with the assistance of the United States. so long as the agreement is not “inconsistent with legislation enacted by Congress in the exercise of its constitutional authority. 1953). Justice Sullivan argued that there are different kinds of treaties that did not require Senate approval.S. as in the case of treaties. 229 (1942). the Executive had authority to speak as the sole organ of that government..the agreement must be considered confirmed. 660 (4th Cir. but is vested exclusively in the national government. see also United States v. After the revolution. 330.2d 655. 2). 103 104 United States v. 105 213 .S. as that term is used in the treaty making clause of the Constitution (article 2. Capps. Inc.105 United States v. The assignment and the agreements in connection therewith did not. require the advice and consent of the Senate. acceptance of the assignment and agreements and understandings in respect thereof were within the competence of the President may not be doubted. The assistance was “effected by an exchange of diplomatic correspondence between the Soviet government and the United States [in which the] purpose was to bring about a final settlement of the claims and counterclaims between the Soviet government and the United States. Governmental power over external affairs is not distributed.. 324. Belmont. Id. Pink.”104 Justice Sutherland explained: That the negotiations. Governmental power over internal affairs is distributed between the national government and the several states. Guy W. 326 (1937). The case involved a Russian corporation that deposited some of its funds in a New York bank prior to the Russian revolution of 1917. And in respect of what was done here. 301 U. Belmont. 315 U. 203.”103 In United States v.
252. supra note 73.Regarding the constitutional limitations placed upon the Queen in her agreement with the President. Congress took deliberate steps to prevent the President from following through with his obligation to restore. whereby the corresponding and necessary principles of treaty law can be used to ensure its compliance. where “a crime committed by the envoy on the territory of the receiving State must be punished by his home State. As such. the Cleveland-Lili`uokalani agreement of restoration is binding upon both parties and is an international compact maintained under international law. is whether or not the compact is self-executing or does it need legislation to put it into effect.S. international practice views “that a state is bound irrespective of internal limitations by consent given by an agent properly authorized according to international law. As previously stated. as a matter of domestic law. and to grant pardons without legislative intervention. These Senate hearings sought to circumvent the requirement of international law. however. which included hearings before the Senate Foreign Relations Committee headed by Senator Morgan.”107 Morgan’s purpose was to vindicate the illegal conduct and actions of the U. as the chief executive. to assume the administrative costs of the provisional government. but she did have the authority. 107 214 . 613. United States Breach of the 1893 Cleveland-Lili`uokalani Agreement In the United States. Principles of Public International Law. Legation and Naval authorities under 106 Ian Brownlie. the Queen was not constitutionally authorized to proclaim the validity of the 1887 Constitution. 4th ed. (Clarendon Press 1990). a pro-annexationist and its Chairman in 1894.”106 The implementation of the agreement. Oppenheim.
For the next three years they would maintain their authority by hiring mercenaries and force of arms. Reports of Committee on Foreign Relations 1789-1901 Volume 6. 1893. to bar the President from restoring the government as was previously agreed upon with the Queen because there was a fervor of annexation among many members of Congress. but four Democrats submitted a minority report declaring that while they agree in exonerating the commander of the USS Boston. Senate Report 227 (February 26. 53rd Congress. they renamed themselves the Republic of Hawai`i. Sanford Dole. McKinley unilaterally annexed the Hawaiian Islands for military purposes during the Spanish-American War under the guise of a Congressional joint resolution. but the Senate was unable to ratify the treaty on account of protests by the Queen and Hawaiian nationals. Mr.S.109 In 1897. 1894. On August 12th 1898. 16th. the Republic signed another treaty of cession with President Cleveland’s successor. 109 215 . law. Captain Wiltse. as a matter of congressional action. arresting and imprisoning Hawaiian nationals who resisted their authority with the threat of execution. they could not concur in exonerating “the minister of the United States.”108 By contradicting Blount’s investigation. admitted in an executive meeting on January 14. Stevens. President of the so-called Republic of Hawai`i. William McKinley. Morgan intended. and tried the Queen on fabricated evidence with the purpose of her abdicating the throne. and 17th of January. that “there was no legal evidence of the complicity of the ex-queen to cause her arrest…” Minutes of the Executive Council of the Republic of Hawai`i. 108 Two days before the Queen was arrested on charges of misprision of treason. from active officious and unbecoming participation in the events which led to the revolution in the Sandwich Islands on the 14th. 1894). Four Republicans endorsed the report with Morgan. at 363. Cleveland’s failure to fulfill his obligation of the agreement allowed the provisional government to gain strength. and on July 4th 1894. at 159 (Hawai`i Archives).U.
and so soon as such acceptance clearly indicated. 112 113 Vienna Convention on the Law of Treaties.113 and “operates so as to preclude a party from denying the truth of a statement of 110 Oppenheim. “a valid agreement is therefore concluded so soon as one party has signified his intention to do or to refrain from a given act. every agreement between them regarding any obligation whatever is a treaty. 111 D. 1155 U. supra note 69.W. since “there exists no other law than International Law for the intercourse of States with each other. because. 331.S. This is a grave breach of his agreed settlement with the Queen as the Head of State of the Hawaiian Kingdom. 383.”110 According to Hall. Bowett. “Estoppel Before International Tribunals and its Relation to Acquiescence.N. supra note 73. conditionally upon the acceptance of his declaration of intention by the other party as constituting an engagement.” 33 British Yearbook of International Law 33 (1957): 181. to restore the Hawaiian government.112 The rationale for this rule derives from the maxim pacta sunt servanda—every treaty in force is binding upon the parties and must be performed by them in good faith. 661. which was drawn from the common law.”111 The Function of the Doctrine of Estoppel The principle that a State cannot benefit from its own wrongful act is a general principle of international law referred to as estoppel. The 1893 Cleveland-Lili`uokalani international agreement is binding upon both parties as if it were a treaty. as Oppenheim asserts. 216 . Article 26.T.These actions taken against the Queen and Hawaiian subjects are directly attributable and dependent upon the non-performance of President Cleveland’s obligation. Hall. on behalf of the United States.
whether treated as a rule of evidence or as substantive law.C. “Estoppel in International Law. Article 27. underlying “most formulations of the doctrine of estoppel in international law is the requirement that a State ought to be consistent in its attitude to a given factual or legal situation. 1155 U. Bowett. estoppel by deed as in matters of written agreement or contract. I. is as much a part of international law as they are in municipal law.”117 In municipal jurisdictions there are three forms of estoppel—estoppel by judgment as in matters of court decisions.T. MacGibbon. and due to the diplomatic nature of States relations.” International and Comparative Law Quarterly 7 (1958): 468. Exchange of Notes. supra note 112. and estoppel by conduct as in matters of statements and actions. Vienna Convention on the Law of Treaties. 115 116 Id.S. 473. he expands the second form of estoppel to include estoppel by “Treaty.”114 According to I.”116 This principle was later codified under Article 27 of the 1969 Vienna Convention on the Law of Treaties. Compromis. 331. whereby “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. 201. affirmed the principle “that a State cannot invoke its municipal law as a reason for failure to fulfill its international obligation. D. 117 118 217 . Bowett states that these forms of estoppel.. the Permanent Court of International Justice. or other Undertaking in Writing.N. supra note 112.”115 To ensure consistency in State behavior. in a number of cases. a legal scholar in international law.”118 Brownlie states that because estoppel in international law 114 Bowett.W. MacGibbon.fact made previously by that party to another whereby that other has acted to his detriment.C.
The necessity of this attitude of absolute inactivity on the part of the Hawaiian people was further indorsed and emphasized by Commissioner Blount. supra note 112. yet it can not and must not be construed as 119 Brownlie. The statement of fact must be clear and unambiguous. As stated in the memorial: And while waiting for the result of [the investigation]. if the Hawaiians have held their peace in a manner that will vindicate their character as law-abiding citizens. it is “shorn of the technical features to be found in municipal law. There must be reliance in good faith upon the statement either to the detriment of the party so relying on the statement or to the advantage of the party making the statement. supra note 43. the Queen requested all her loyal subjects to remain absolutely quiet and passive. 120 218 . 202. 3. Bowett. reliance in good faith was clearly displayed and evidenced in a memorial to President Cleveland by the Hawaiian Patriotic League on December 27th 1893. The statement of fact must be made voluntarily.”119 Bowett enumerates the three essentials establishing estoppel in international law: 1. unconditionally. so that. as for the third.120 It is self-evident that the 1893 Cleveland-Lili`uokalani agreement meets the requirements of the first two essentials establishing estoppel. with full confidence in the American honor. and. and to submit with patience to all the insults that have been since heaped upon both the Queen and the people by the usurping Government. 2. and must be authorized. 641.rests on principles of good faith and consistency.
which was also printed in two Honolulu newspapers. on June 16th 1897. These protests were received and filed in the office of Secretary of State Sherman and continue to remain a record of both dissent and evidence of reliance upon the conclusion of the investigation by President Cleveland and his obligation and commitment to restitutio in integrum—restoration of the Hawaiian government. 3 (September 17. one in the Hawaiian language123 and the other in English. in part: WHEREAS: By memorial the people of Hawaii have protested against the consummation of an invasion of their political rights.122 The commission was established on July 9th 1898 after President McKinley signed the joint resolution of annexation on July 7th 1898. or ready to acquiesce in the wrong and bow to the usurpers.” Ke Aloha Aina. A memorial of the Hawaiian Patriotic League was filed with the United States “Hawaiian Commission” for the creation of the territorial government appears to be the last public act of reliance made by a large majority of the Hawaiian citizenry. D. Munroe Smith. and have fervently appealed to the President.. 3 (September 15.121 Continued reliance was also displayed by the formal protests of the Queen and Hawaiian political organizations regarding the second treaty of annexation signed in Washington. 1898): 752. 1898).” The Hawaiian Star. “Record of Political Events. The memorial.” Political Science Quarterly 13(4) (Dec. the Congress and the People of the United States. between the McKinley administration and the selfproclaimed Republic of Hawai`i. “Memoriala A Ka Lahui.124 stated. 122 123 124 219 . “What Monarchists Want. and 121 Executive Documents. supra note 71. to refrain from further participation in the wrongful annexation of Hawaii.evidence that they are apathetic or indifferent.C. and was holding meetings in Honolulu from August through September. 1898). 1295.
3. 2.S. Annexation of the Hawaiian Islands by joint resolution in 1898. Charter. be restored. and the 1893 ClevelandLili`uokalani agreement of restoration is the evidence of final settlement. we solemnly pray that the constitutional government of the 16th day of January. 6. 5. As such. 4. 1893. Designating Native Hawaiians as an indigenous people situated within the United States. There is no dispute between the United States and the Hawaiian Kingdom regarding the illegal overthrow of the Hawaiian government. A.D. These claims include: 1. and. territorial government in 1900. Admission of Hawai`i as a State of the Federal Union in 1959. Recognition of any pretended government other than the Hawaiian Kingdom as the lawful government of the Hawaiian Islands.WHEREAS: The Declaration of American Independence expresses that Governments derive their just powers from the consent of the governed: THEREFORE. unless it can show that the 1893 Cleveland-Lili`uokalani agreement had been fulfilled. the United States is estopped from asserting any of the following claims. Therefore.N. 220 . Administration of the Hawaiian Islands as a non-self-governing territory since 1898 pursuant to Article 73(e) of the U. Establishment of a U. BE IT RESOLVED: That the representatives of a large and influential body of native Hawaiians. under the protection of the United States of America. the United States cannot benefit from its non-performance of its obligation of restoring the Hawaiian Kingdom government under the 1893 Cleveland-Lili`uokalani agreement over the reliance held by the Queen and Hawaiian subjects in good faith and to their detriment.
namely that the occupying power may not exploit the occupied territories for the benefit of its own population. therefore. and its territorial integrity as they existed in 1893. who also served as associate arbitrator in the Larsen case. and the economic and military exploitation of Hawaiian territory—all stemming from the U. 47. in this case. the nationality of its citizenry. it is a principle. but also a shield that protects the continued existence of the Hawaiian Kingdom. stated: Accommodation of change in the case of prolonged occupation must be within the framework of the core principles laid down in the Regulations on the Laws and Customs of War on Land and the Fourth Convention.” and. 125 221 .125 Despite the egregious violations of Hawaiian sovereignty by the United States since January 16th 1893.S.The failure of the United States to restore the Hawaiian Kingdom government is a “breach of an international obligation. the principle underlying much of the Regulations on the Laws and Customs of War on Land. an international wrongful act as defined by the 2001 Responsibility of States for International Wrongful Acts. mass migrations and settlement of foreign citizens. and. the principle of estoppel not only serves as a shield that bars the United States from asserting any legal claim over the Hawaiian Islands. imposition of a foreign nationality upon the citizenry of an occupied State. together with selfChristopher Greenwood. International Humanitarian Law (Laws of War): Revised report prepared for the Centennial of the First International Peace Conference. pursuant to United Nations General Assembly Resolutions A/RES/52/154 and A/RES/53/99 (May 1999). Self-help is a recognized principle of international relations. The severity of this breach has led to the unlawful seizure of Hawaiian independence. In a 1999 report for the United Nations Centennial of the First International Peace Conference. government’s perverse view of military necessity in 1898. in particular. Professor Christopher Greenwood.
legislative and judicial power in the Islands without any lawful authority. or justify in public settings.126 This is a case of impelling compliance under existing law. Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press. The former is procedural and rule based within an already existing legal system organized to acknowledge and protect enumerated rights. the U. 3. Being that the situation is legal in nature and grounded in rights not only secured to sovereign states. All Hawai`i has is its legal position as a subject of international law. and other States in the world. As a result of being a small reemerging State. and. whereas the latter is aspirational and aims to create legal change in a system by employing legal ideas and traditions that seek to persuade. the profound impact it has on the economy of Mary Ann Glendon.S. The Hawaiian Kingdom is a very small State when compared to the U. inspire. has not complied with international law regarding the Hawaiian Islands. But there is a difference between a deliberate move to impel compliance under existing law. and has exercised executive. but they all have legal parity despite varying degrees of political. 126 222 .S. 1991). explain. as a consequence. and legal mobilization and the reform movement. Hawai`i does not have the conventional capabilities that larger States employ to impel compliance through the threat or actual intervention of political. economic and military strengths. Impel Compliance For over a century. it is a subject of legal discourse. but also correlative rights secured to individuals that derive by virtue of the legal order of the state. that provides the legal justification to compel the United States to comply with the international laws of occupation.preservation. economic or military force.
128 127 Antonio Cassese. which along with other States’ economies they collectively extend to the international level as a global economy. 2005). Unlike the command economy of the former Soviet Union where the economy is determined and controlled by the government. complex linked deals are the norm. Howells and Stephen Weatherill. Simple oneoff. 2nd ed. rely on law as “a body of predictable and ascertainable standards of behavior allowing each economic factor to maintain a set of relatively safe expectations as to the conduct of other social actors (including the State authorities. Geraint G.”127 The U. Rather. economy is based on free enterprise and competition. Contract law provides security for those who act in reliance on the deals struck. 107. in cases of transgression). 1986). nor have they been since the Industrial Revolution. Ltd. 10. Thus law became one of the devices permitting economic activities and consolidation and protecting the fruits of such action. if not fulfilled. as players in the economy. States.. whose governments serve as the regulating authorities. In many respects.S. (Ashgate Publishing.States. International Law in a Divided World (Clarendon Press. the United States has a market economy based on capitalism where private enterprise is encouraged and government intervention limited. Consumer Protection Law. backed by law. 128 223 . Commerce resolves around promises made and promises fulfilled and. made good in other ways. over-the-table transactions are not the stuff of modern commerce. International laws facilitate trade between States. but the business transactions themselves take place within States. contracts are the lifeblood of a market economy. Contracts allow long-term planning.
whether Hawaiian subjects or citizens of foreign States. The sheer volume of invalid contracts will have a devastating effect on both the U. British courts attempted to get around this doctrine involving private contracts originating out of non-recognized States. QB 205 (1978). 1 FLR 956 (2002).. 136. (Oxford University Press 2007). these States were not subjects of international law. Yeldag. International law only recognizes title to the territory of a State—dominium—whereby its 129 Martin Dixon. as a consequence. Southern Rhodesia. Textbook on International Law. 3 All ER 572 (1970). “provided that there was no statutory prohibition…and provided that such recognition did not in fact compromise the UK Government in the conduct of its foreign relations. Adams v. invalid.S. The doctrine of non-recognition also prevents courts of other countries from recognizing contracts that originate out of an illegal situation. Rayner & Keeler. According to Professor Martin Dixon.130 Northern Cyprus131 and East Germany. Adams. B. Emin v. and global economies as the continuity of the Hawaiian State comes to public attention. 224 . provided some latitude for the British courts to address the parameters of the nonrecognition doctrine on private law acts as they entered the British legal system. 2 All ER 536 (1966). 2 FLR 707 (2000). involved the implication of private contracts originating under the authority of governments that did not possess de facto recognition. B. i. and. however. 131 132 Carl Zeiss Stiftung v. to establish a military government to administer Hawaiian law during the occupation has consequently rendered all contracts entered into by individuals within Hawaiian territory since the date of the Cleveland-Lili`uokalani agreement of restoration on December 18th 1893.e.”129 These British cases.The omission of the U. Aegean Turkish Holidays. v. 130 Hesperides Hotels v. 6th ed.132 Without de facto recognition.S.
The U. or in other words a successful revolution. but rather afforded international recognition as belligerents in a state of civil war within the United States of America. whereby the two States emerged in the aftermath of World War II. Northern Cyprus continues to contest the agency of the Republic of Cyprus. Northern Cyprus. 134 Freeman Snow. Supreme Court also recognized certain private law acts done under and by virtue of the Confederate States during the American Civil War. recognition occurred postbellum when the uprising had been defeated. p. contracts. the U. do not address the validity of contracts arising out of 133 See Distinguishing Dominium from Real Property. is where a “State must have complete independence in the management of its foreign relations. International Law: Lectures Delivered at the Naval War College (Government Printing Office. took place while these governments were in actual control of the internal sovereignty. were domestic agents contesting for the right to exercise internal sovereignty over a defined territory without de facto recognition.S. whereby de facto recognition is the evidence of the revolution’s success and replacement of the de jure government. 78. 225 . Southern Rhodesia. and East Germany (German Democratic Republic) contested the agency of the Federal Republic of Germany over the whole of the German State. and East Germany. 1895). whereby the Confederacy contested the agency of the U. however. Chapter 3. 19. e. contested British agency. on the other hand. Federal Government.S.S.”134 The governments of Southern Rhodesia. as a British colony.g. These cases.133 External sovereignty. where the recognition of certain private law acts.government is the agent that exercises internal sovereignty over that territory. Unlike the British cases. The Confederate States were not recognized as de facto governments under international law. The abovementioned cases are associated with revolutions.
S. its identity as lost and its personality as merged with that of the occupant. 83. but. 6th ed. to the extent that they take effect during the continuance of his control. moreover. vol. administered the municipal law of the Hawaiian Kingdom in its occupation of the Hawaiian Islands. II (Longman. is bound to confuse and undermine the clear notion of identity and continuity of the occupied State.”136 Therefore. Hall explains: Thus judicial acts done under the control of the occupant. Id. not the municipal law of the United States.an unlawful occupation of a recognized State’s territory. administrative acts so done. 135 Marek. If the U. 82. according to Oppenheim. its continuity as interrupted.”135 She explains that a de facto government is “an internal State phenomenon [a successful revolution]. Professor Krystyna Marek cautions that occupation must not be confused with de facto governance. International Law. when they are not of a political complexion. 136 137 226 . William E.. the municipal law of the Hawaiian Kingdom determines the validity of contracts in the Hawaiian Islands. remain good. Lassa Oppenheim.. To mistake belligerent occupation for a de facto government would mean treating the occupied State as annexed.. contracts would be valid. 1940). 254. and the various acts done during the same time by private persons under the sanction of Municipal Law. supra note 1. She warns that “assimilation of belligerent occupation and de facto government not only enlarges the powers of the occupant.”137 In other words. Green and Co. [but] belligerent occupation is external to the occupied State. the validity of contracts during an occupation is “essentially of municipal law [of the occupied State] as distinguished from International Law.
without violating the intent and purpose of the 1893 Cleveland-Lili`uokalani agreement of restoration. the whole social life of the community would be paralysed by an invasion [that is occupation]. Private law acts that took place during this period were recognized as being valid. including all expenditures for military or police services.”138 As a consequence of the 1893 Cleveland-Lili`uokalani agreement of restoration. (Clarendon Press. Courts. courts of third States could not recognize private acts of individuals that took place subsequent to December 18th 1893.S. supra note 14. would be precluded from recognition under the doctrine of estoppel. Consequently.”140 and recognize certain private law acts in similar fashion as U. supra note 94. 8th ed. 579. 72. though.S. A restored Hawaiian Kingdom government. in the proper course of administration. but private law acts that occurred after the agreement under both the provisional government and its successor the Republic of Hawai`i were not recognized by the lawful government. 1924). this recognition must also include all private law acts done under “proper course of administration” that occurred since July 6th 1887 to the date of the consummation of the agreement with President Cleveland on December 18th 1893. and U. International Law. whether under the provisional government or the Republic of Hawai`i. Queen’s Declaration. Queen Lili`uokalani agreed to “assume all the obligations created by the Provisional Government. which is a binding treaty between the U. could exercise “the prerogative power of the [returning] sovereign. which is not 138 William Edward Hall. Benvenisit.”139 and since the provisional government was a direct outgrowth of the 1887 revolution. in particular.S. Courts did in the aftermath of the Civil War. and the Hawaiian Kingdom under international law.Were it otherwise. 139 140 227 .
Ford v. 1 Woods 439. Hanauer v. or intended to defeat the just rights of citizens. White. Surget. and other acts of like nature. 594. Hatch v. such for example. Congress. it was in direct contravention of the rule preserving the continuity of the occupied State. 342.S.142 When the U. 570. 8 Wall. be regarded as invalid and void. 142 Texas v. Sprott v. should be suffered to remain undisturbed. must. 190. Ford v. 733 (1868). 167. established by statute the governments of the Territory of Hawai`i in 1900 and later the component State of Hawai`i in 1959. 17 Wall. 1. governing the course of descents. 459.S.”141 In Texas v. Oliver. United States. 228 . 700. in general. Chase’s Dec.S. when the “resistance to the federal government ceased. regulating the conveyance and transfer of property. Hanauer v. and private rights could not be built up under.S. however. the U. Lockhart. Surget. Railroad Co. Doane. but rather the 141 Cooley. Supreme Court held that: acts necessary to peace and good order among citizens. 97 U. 12 Wall. White. 439. and providing remedies for injuries to person and estate. Horn v. as acts sanctioning and protecting marriage and the domestic relations. but prudent. 1 Woods 437.S.legally binding under international law. 74 U. or in reliance upon them. real and personal. According to Cooley. must be regarded in general as valid when proceeding from an actual. 97 U. and other similar acts. and upon the basis of which the people had acted and had acquired rights. 20 Wall. Smith. Thorington v. see also Keppel v. Burroughs. supra note 18. which would be valid if emanating from a lawful government. Cook v. and that acts in furtherance or support of rebellion against the United States. But all acts don in furtherance of the rebellion were absolutely void. Private law acts during this period were not done according to the municipal laws of the occupied State. 15 Wall. 594. Woodruff. regard to the best interests of all concerned required that such governmental acts as had no connection with the disloyal resistance to government. though unlawful government. and the willful dereliction of administering Hawaiian Kingdom laws..
is the 1970 Advisory Opinion of the International Court of Justice on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Namibia case). Despite the creation of these surrogate governments. State.municipal laws of the occupant State. the governing case regarding the validity of private law acts done during an occupation where the occupant State illegally imposes its legal system within the territory of an internationally recognized. but South Africa refused to withdraw from Namibian territory and consequently the situation transformed into an illegal occupation. but occupied. “the General Assembly of the United Nations adopted resolution 2145(XXI). The Namibia Case and the Application of the Non-recognition In 1966. As a former German colony. “the rule [on the prohibition of wartime annexation] stands and cannot be affected by any purported action of the Occupying Power or third States. 79. 19481991 (United Nations 1992). “Without the consent of the invaded State to any change in the territorial quo ante.” according to Professor Schwarzenberger. whereby it decided that the Mandate was terminated and that South Africa had no other right to administer the Territory. Advisory Opinions and Orders of the International Court of Justice.S. could not claim title to Hawaiian territory without a valid treaty of cession from the Hawaiian Kingdom government. vol. 144 Summaries of Judgments. 229 . Namibia became a mandate territory under the administration of South Africa after the close of the First World War. the U. According to the 143 Georg Schwarzenberger.”144 This resulted in Namibia coming under the administration of the United Nations. International Law. 168. II (Stevens & Sons Limited.”143 Therefore. 1968).
the Court concluded that “South Africa. In particular.. the illegality or invalidity of acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate cannot be extended to such acts 145 Id. that the “ultimate objective of the sacred trust was self-determination and independence. Id.”146 Addressing the legal consequences arising for States. has the obligation to put an end to it and withdraw its administration from the Territory. 146 147 148 230 . clarified that “non-recognition should not result in depriving the people of Namibia of any advantages derived from international cooperation.”147 The Court explained that by “occupying the Territory without title. however.International Court of Justice. Id.”148 The ICJ. South Africa incurs international responsibilities arising from a continuing violation of an international obligation. 80.” and that both member and non-members “States of the United Nations are under an obligation to recognize the illegality and invalidity of South Africa’s continued presence in Namibia and to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia.”145 The Court also added. “The mandates system established by Article 22 of the Covenant of the League of Nations was based upon two principles of paramount importance: the principle of non-annexation and the principle that the well-being and development of the peoples concerned formed a sacred trust of civilization. Id. being responsible for having created and maintained that situation.
S.S.S. supra note 48. Effect of Occupation on United States Courts in Hawai`i Since Hawaiian law is the only law recognizable under international law. the “jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. 251.S. courts is not exercised by virtue of a belief in sovereign authority. Crawford.” and that the “jurisdiction of the nation within its own territory is necessarily exclusive and absolute.S.”149 The principle of the doctrine of non-recognition has been codified under Article 41(2) of the Responsibility of States for International Wrongful Acts (2001). Dixon. U. Professor Crawford states that “no State shall recognize the situation created by the serious breach as lawful. 11 U.”152 The jurisdiction of U. in particular Article 41(2) of the Responsibility of States for International Wrongful Acts. are incapable of enforcing contractual obligations within the territory of the Hawaiian State. deriving their authority under U.as the registration of births. would directly compromise their governments “in the conduct of its foreign relations”151 and. including the responsible State. U. but rather a qualified sovereign authority recognizable by law. 116. This obligation applies to all States. Without first acquiring Hawaiian sovereignty by cession. deaths and marriages. The Schooner Exchange v. courts are estopped by the 1893 Cleveland-Lili`uokalani agreement of 149 Id. supra note 129.S. including the U. law. because. 150 151 152 231 . 136 (1812). courts. as U.S. as the responsible State. McFaddon. Chief Justice Marshall stated.”150 Recognition of private law acts since December 18th 1893 by the courts of third States.
which can only take place with the consent of the ceding State. Doe v. 416 F. 154 155 232 . 386 F. 2004). Kamehameha.S. and Rule 12(b)(1). This action taken by the defendant would shift the burden onto the plaintiff to prove that the U. 2005). another case that came before the court.R.153 In Doe v. and.P.3d 1271. did legally acquire Hawaiian sovereignty under international law in order to qualify the jurisdiction of the court. 1048 (9th Cir.”155 The assumption of governance over internal affairs does not equate to a transfer of sovereignty. Kahawaiola`a v. Also. of the Ninth Circuit. F. This places the courts here in the Hawaiian Islands in a very vulnerable position whereby a defendant can procedurally object to the jurisdiction of the court by pleading that there is a binding agreement of restoration of the Hawaiian Kingdom government. the Hawaiian Islands were still a sovereign kingdom. Norton. Justice Susan Graber. the Ninth Circuit also acknowledged that the Hawaiian Kingdom was “a co-equal sovereign alongside the United States until the governance over internal affairs was entirely assumed by the United States.C. in Kahawaiola`a v.P. 153 Rule 12(b)(1).S. and that there is exists no valid transfer of Hawaiian sovereignty under international law to the U.3d 1025. Kamehameha. stated “When Congress first enacted §1981 in 1866. Norton.. thereby. which would go to the heart of the court’s jurisdiction.”154 Graber’s observation left a question as to the time.C.restoration from exercising jurisdiction within the territory of the Hawaiian Kingdom.R. H. whether by treaty or prescription—a congressional joint resolution notwithstanding. Another important case at the State of Hawai`i level was State of Hawai`i v. 1282 (9th Cir. maintain the plaintiff’s suit. place and manner by which that sovereignty was legally transferred to the United States.
should they be presented with it. Id. In 1994. Court of Federal Claims. Heen affirmed the lower court’s decision denying Lorenzo’s motion to dismiss. the Armed Services Board of Contract Appeals. Id. but explained that “Lorenzo [had] presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature. Federal Courts are classified under three separate headings in line with the first three Articles of the Federal Constitution.S. Civilian Board of Contract Appeals.”158 It is abundantly clear that the Hawaiian Kingdom continues to exist “as a state in accordance with recognized attributes of a state’s sovereign nature. Article I Courts are established by Congress.159 Article II Courts are Military Occupation Courts 156 77 Hawai`i 219 (1994). Postal Service Board of Contract Appeals.Lorenzo. the case came before a three-member panel of Intermediate Court of Appeals and Judge Walter Heen delivered the decision.156 In that case. Merit Systems Protection Board.. As a State level case. Board of Patent Appeals and Interferences.” despite the prolonged occupation since the Spanish-American War. the reason Lorenzo’s argument failed was because he “did not meet his burden of proving his defense of lack of jurisdiction. Courts-martial. Social Security Administration’s Appeal Council. Under U. 159 233 . and Trademark Trial and Appeal Board. 157 158 These types of courts include. constitutional law.”157 In other words. Territorial Courts. Tax Court. Court of Appeals for the Armed Forces. it had no precedence on the Federal Court. 221. Bankruptcy Courts. Lorenzo claimed to be a citizen of the Hawaiian Kingdom and that the State of Hawai`i courts did not have jurisdiction over him. but in substance it could serve as an indication of how a court would view such a position. Court of Appeals for Veteran Claims.
S.. Burke v. 1865) (No. 768 (Prov. Court of International Trade. 1107 (1971).S. and (3) was constituted without an Act of Congress or any other legislative concurrence. military bases abroad. while U. (13 How.) 519 (1873). 160 These types of courts include. 57 U. 260 (1909). United States v. La. 126 (1900). “international law is part of our law.146).S.S. 343 U. 16. territory and “were the product of military occupation. Reiter.S. 164 234 . (2) which exercises either civil jurisdiction or criminal jurisdiction over civilians in peacetime. soldiers. Bederman defines an Article II Court as “a tribunal established: (1) pursuant only to the President’s warmaking power under Article II of the Constitution. Harrison. 61 U. 832.161 While Article I Courts and III Courts are situated within the territorial jurisdiction of the United States. Id.”163 Article II Courts are fully recognized by decisions of Federal Courts. Cas.S.160 and Article III Courts are created by the constitution itself. the U.164 International law and not the domestic laws of the United States determine a State’s sovereign nature.S.S. that are situated on U. Alldridge. Leitensdorfer v. 27 F. and the Second World War. 163 Jecker v. Article II Courts are situated outside of U. 179 U. being Article I Courts. Kinsella. according to the United States Supreme Court. Santiago v. 89 U. Montgomery.S. Civil War.S. Supp.) 276 (1874).) 387 (1874). Steamship Co.) 176 (1857). (22 Wal. Bederman. Froehlke. SpanishAmerican War. Supp.. Jacobs v.S. troops occupied foreign countries and administered the laws of the these States. In re Vidal.) 498 (1851). (20 How. 214 U. 341 (1952). Webb. 87 U. (19 Wall. and the Foreign Intelligence Surveillance Court of Review. Court of Appeals. and must be ascertained and administered by the courts of justice of appropriate jurisdiction. and whose jurisdiction is limited to U. (20 Wall. Williamson v. Nogueras.S. Miltenberger. 161 162 David J.) 164 (1853). “Article II Courts. (16 How. 840 (1970). Union Bank. Cross v.S. 320 F. Supreme Court. Mechanics’ & Traders’ Bank v. Madsen v. 86 U. District Courts.”162 Exceptions to this rule are Courts-martial. as often as questions of These types of courts were established during the Mexican-American War. New Orleans v.established by authority of the President. 334 F.” Mercer Law Review 44 (1992-1993): 826. 54 U.S. in The Paquete Habana. Foreign Intelligence Surveillance Court. Ct. Furthermore.
the Hawai`i Intermediate Court of Appeals specifically made reference to the Lorenzo case.S. Furthermore. 82 Hawai`i 281.”165 In Nishitani v. 166 The political question doctrine is where a court refuses to hear a political. Article III courts do not have extra-territorial jurisdiction and cannot assume jurisdiction within the borders of another sovereign and independent State without violating the foreign State’s territorial integrity. and the executive and legislative branches. Neff.”166 There is a presumption against federal jurisdiction and the parties seeking to invoke subject matter jurisdiction must demonstrate that the court is capable to hear the case in the first place. on one hand. courts. Baker.” 167 235 . For example. 289 (1996). 3rd rev. a resident of France and a private school in France cannot confer jurisdiction upon a U. Bouvier’s Law Dictionary. because the very subject-matter of the case took place outside of the territorial jurisdiction of United States. Consent does not confer subject matter jurisdiction nor can its absence be waived. issue because it belongs to a coordinate branch of government. the defendant has the burden of proving facts in support of any defense…which would have precluded the court from exercising jurisdiction over the defendant. 2626. defines it as “one over which the courts decline to take cognizance in view of the line of demarcation between the judicial branch of government. the court cannot exercise the political question doctrine167 and overrule defendant’s motion. as an elementary principle. 677 (1900). since the school is situated in another State’s jurisdiction. the executive or legislative branches. And so it is laid down by jurists. District Court to determine an admission policy into the French school.right depending on it are duly presented for determination. In Pennoyer v. and stated that. not legal. on the other.S. Justice Stephen Field resounds the territorial limits of U.S. (1914). that the laws of one 165 175 U. “although the prosecution had the burden of proving beyond a reasonable fact establishing jurisdiction.
and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. duties. illegally assessed taxes. except so far as is allowed by comity. Parties who entered into contracts within the territorial jurisdiction of the Hawaiian Kingdom. “is a mere nullity. and all actions done by the U.” says Story. because the courts themselves cannot exercise jurisdiction without a lawful transfer of Hawaiian sovereignty. and its surrogates. etc. all official acts performed by the provisional government and the Republic of Hawai`i after the Cleveland-Lili`uokalani agreement of restoration on December 18th 1893. contracts.State have no operation outside of its territory. 722 (1877) 236 . cannot be recognized as legal 168 Pennoyer v. licensing.”168 Strategy to Begin the Administration of Hawaiian Kingdom law A viable and practical legal strategy to impel compliance must be based on the legal personality of the Hawaiian State first. real estate transactions.S. Courts in the Islands to provide a remedy for breach of simple or sealed contracts. for and on behalf of the Hawaiian Kingdom since the occupation began on August 12th 1898. This exposure will no doubt force States to intercede on behalf of their citizenry. Neff.g. cannot rely on U. being the Territory of Hawai`i and the State of Hawai`i.S. 95 U.S. but it will also force States to abide by the doctrine of non-recognition qualified by the Namibia case and codified in the Articles of State Responsibility for International Wrongful Acts. and incapable of binding such persons or property in any other tribunals. Therefore. and from this premise expose the effect that this status has on the national and global economies—e. “Any exertion of authority of this sort beyond this limit. 714.
S. which. will create economic ruination for the U. which is provided under Article II of the U.and valid without violating international law. unless they too be converted into Article II Courts. Maui. 237 . is for the Commander of the U. Bankruptcy Court. Federal District Court. shall be the provisional laws of the occupier. and Article III courts. By virtue of this authority. The 169 See von Glahn. no doubt. in order to file claims in defense of their rights secured to them by Hawaiian law.S. Pacific Command to establish a military government and exercise its legislative capacity. as well as being accessible to private individuals. so long as they are consistent with Hawaiian Kingdom laws and the law of occupation. Constitution. whether Hawaiian subjects or foreign citizens.S. the executive branches of the Federal and State of Hawai`i governments in order to continue services to the community headed by the Mayors of Hawai`i island. the commander of the military government can provisionally legislate and proclaim that all laws having been illegally exercised in the Hawaiian Islands since January 17th 1893 to the present. who should report directly to the commander of the military government. O`ahu and Kaua`i.169 The military government will also have to reconstitute all State of Hawai`i courts into Article II Courts in order for these contracts to be enforceable. according to the Namibia case. The only exceptions.. are the registration of births.g. All Article I Courts. under the laws of occupation. e. A temporary remedy to this incredible quandary. The military government should also provisionally maintain.g. that are currently operating in the Islands are devoid of authority as Congress and the Judicial power have no extraterritorial force. e. by decree. supra note 12. The military government’s authority exists under and by virtue of the authority of the President. deaths and marriages.
considered. Their willful denial of Hawai`i’s true status as an occupied State does not excuse them of criminal liability under laws of occupation. von Glahn. While the attending delegates studiously eschewed the inclusion of the terms ‘war crimes’ and ‘Nuremberg principles’ (apparently regarding the latter as at best representing particular and not general international law). is faced with no other alternative but to establish a military government. and were.S. Congress and the Supreme Court. is to put an end to war crimes having been committed and are currently being committed against Hawaiian subjects by individuals within the Federal and State of Hawai`i governments.”171 Article 146 of the Geneva Convention provides that the “High Contracting Parties 170 See Feilchenfeld. 248. But another serious reason to establish a military government. violations of the rules of war had to be. 171 238 . supra note 10.e. but ultimate responsibility.S. does lie with the U. At that point. the State Legislature and County Councils. aside from the economic factor. President. i. The Legislative Assembly of the Hawaiian Kingdom can take up the lawfulness of these provisional laws when it reconvenes during the transitional stage of ending the occupation.Pacific Command Commander will replace the function of the State of Hawai`i Governor. and the State of Hawai`i’s legislative branch. would also be replaced by the legislative authority of the military government. it can determine whether or not to enact these laws into Hawaiian statute or replace them altogether with new statutes. supra note 21. the U.” states von Glahn. “War crimes. however.170 Without having its economic base spiral out of control. “played an important part of the deliberations of the Diplomatic Conference at Geneva in 1949.
or any protocol to such convention to which the United States is a party. 239 . or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention…[and] extensive destruction and appropriation of property.”173 Protected persons “are those who.” 172 “Grave breaches” enumerated in Article 147.”175 Establishing a military government will shore up these blatant abuses of protected persons under one central authority. 18 U. of suppressing conduct contrary to the Hague and Geneva conventions taking place in an occupied State. at a given moment and in any manner whatsoever. that has not only the duty. Id. H. Article 147. in case of a conflict or occupation.S. McCormack and Gerry J. The Law of War Crimes: National and International Approaches (Kluwer Law International 1997).” According to Axel Marschik..undertake to enact any legislation necessary to provide effective penal sanctions for persons committing. law. in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Article 4. The United States did ratify both Hague 172 Axel Marschik. ed. but the obligation. any of the grave breaches of the present Convention defined in the following Article. find themselves. a war crime is “defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949. 72. not justified by military necessity. compelling a protected person to serve in the forces of a hostile Power. “The Politics of Prosecution: European National Approaches to War Crimes. or ordering to be committed. 173 174 175 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949). Simpson. note 33. this article provides that “States have the obligation to suppress conduct contrary to these rules by administrative and penal sanctions.S. Code §2441(c)(1).” (Timothy L.”174 According to U.s). that are relevant to the occupation of the Hawaiian Islands. include: “unlawful deportation or transfer or unlawful confinement of a protected person.
”176 Thus. As per the 1893 Cleveland-Lili`uokalani agreement. and is considered one of the “High Contracting Parties. and the occupation of neutral territory for military purposes is an international wrongful act. As explained in Chapter 4. 177 178 Hague Convention VI (1907). IV. and has remained in the Hawaiian Islands ever since. 1907. Article 12.and Geneva Conventions.S. October 18. the primary objective is to compel the President of the United States. as defined by the Responsibility of States for Internationally Wrongful Acts. 240 . through his Commander of the U. Pacific Command.. The failure to restore the Hawaiian Kingdom government constitutes a breach of an international obligation.S. military does not possess wide discretionary powers in the administration of Hawaiian Kingdom law as it would otherwise have in the occupation of a State it is at war with. Hence. Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Article I. 2277. Respecting the Laws and Customs of War on Land. the U. but instead illegally occupied the Hawaiian Kingdom for military purposes during the Spanish-American War. In a neutral State. the Hague and Geneva conventions merely provide guidance for the establishment of a military government.178 and the breach of this international obligation by the U. Treaty Series 539. Treaties and Other International Acts Series. 36 U. belligerent rights do not extend over territory of a neutral State.Stat.177 As a result. 3365.S.S. was obligated to restore the Hawaiian Kingdom government. Rights and Duties of Neutral States. has “a continuing character [that] extends over the entire period during which the act continues and remains not in conformity with the 176 Hague Convention No. Id.S. there exists a continued exploitation of Hawaiian territory for military purposes in willful disregard of the 1893 Cleveland-Lili`uokalani agreement of restoring the Hawaiian government de jure. August 12. to establish a military government for the administration of Hawaiian Kingdom law. the U. 1949.
179 180 Id. the U. the international obligation of the U.S. in the least.. “may not rely on the provisions of its internal law as justification for failure to comply with its obligation.S.S. During this period of administration.international obligation.”179 The extended lapse of time has not affected. 241 . More importantly. Id. must first abide by the international laws of occupation and administer the laws of the Hawaiian Kingdom. the U. under the Cleveland-Lili`uokalani agreement.. Article 31(1). Article 14(2). diligent research will need to be carried out in order to provide a comprehensive plan for an effective transition. despite over a century of non-compliance and prolonged occupation.”180 Preliminary to the restoration of the Hawaiian Kingdom government de jure.
and the continuity of the Hawaiian Kingdom as a sovereign State is grounded in the very same principles that the United States and every other State rely upon for their own legal existence.S. both external and internal. 2 242 . and in the absence of any “valid demonstration of legal title. And recalling U. and would afford not protection either to states or to individuals. the 1893 Cleveland-Lili`uokalani Agreement remains legally binding on the United States.2 1 United States v. 753. Secretary of State Bayard’s frequently quoted 1887 statement of the rule of law regarding the position of the United States and international obligations. Connery (November 1. on the part of the United States. he stated: If a government could set up its own municipal law as the final test of its international rights and obligations.S. 317 (1936).”1 but is vested either in the State or in the successor State. 1887). It has been constantly maintained and also admitted by the Government of the United States that a Government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties. or sovereignty. Curtiss-Wright Export Corp. Secretary Bayard to Mr.CONCLUSION State sovereignty “is never held in suspense. Therefore. 304.. to deny Hawai`i’s sovereignty would be tantamount to denying the sovereignty of the United States and the entire system the world has come to know as international relations. 299 U. despite the lapse of time.” sovereignty. then the rules of international law would be but the shadow of a name. remains vested in the Hawaiian State. In other words. Foreign Relations 751.
has manipulated and obfuscated these events for its benefit over and above the rights of the Hawaiian Kingdom and its nationals under international law. through its agencies since 1893. the author has attempted to chart out the overarching themes that address the events of the overthrow in historical. resources and efforts should be redirected in order to develop and foster a reckoning of Hawai`i’s history—a reconciliation of the past.3 It is crucial at this stage to continue this type of research so that eventually Hawai`i. “a context-based approach for the development of a body of publishable research that gives life and structure to a Hawaiian national consciousness and connects thereby to the theory of State continuity.In this dissertation. he advocates. Through this narrative. a Hawaiian historian at the University of Hawai`i at Manoa. Rather than focusing attention on reconciling the present.”4 The challenge for other scholars and practitioners in the fields of political science. legal and contemporary relevance. at 1. history and law is to distinguish between 3 See Young’s Kuleana. will have a clearer understanding of these historical events and the profound impact it has today. at 32. Professor Kanalu Young. and the world community at large. it is undeniable that the United States government. supra note 10. Selected nineteenth-century primary and secondary sources were then contoured to the needs of the occupier government apparatus to provide school children with knowledge that indoctrinated as it educated. 4 243 . For Young. argues that: American scholars developed a military occupation-based historiography predicated on their own misrepresentations of the indigenous and national Hawaiian pasts and their own last century of illegal control here. Id..
The ramifications of this study cannot be underestimated. far-reaching. Rigorous and diligent study into the HawaiianAmerican situation is not only warranted by the current legal and political challenges facing Native Hawaiians that the Akaka bill seeks to quell. They span from the political and legal to the social and economic venues situated in both the national and international levels. 244 . no doubt. Therefore.the rule of law and the politics of power. partisanship or just plain bias. and its consequences are. it is a matter of what is right and just. in light of the severity of this needed research. analytical rigor is at the core and must not fall victim to political affiliations.
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