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I The Crown Lands of Hawaii BY Thomas Marshall Spaulding,-r~ OCTOBER 10, 1923 Published by the UNIVERSITY OF HAWAII Honolulu UNIVERSITY OF HAWAII OCCASIONAL PAPERS NO.1 The Crown Lands of Hawaii Thomas Marshall Spaulding A thesis prepared in the Department of History and Political Science, under the supervision of K. C. Leebrick, Ph.D. OCTOBER 10, 1923 Published by the UNIVERSITY OF HAWAII Honolulu (Occasional Papers are published at irregular intervals and are,serially nutbered..) Te Crown Lnd of Hawai (lomihi knlloP)vi as the crown 180nds of l lawa-i Thomas Marshall $paulding (A I. t., Ilii vc ISi I v 01 M NielI I i() NTIE'1NTIS i'il I'iiol illd Tene. Elvolutioii of Tndividunl TRigbits in Land. Pr~itipieils \ulopIteul I)v 1110 Bonrd of L-und (ommnhssiollers. 1(vtO1a Revenues. fle (1 re.,t 1 -,iliee. PeriodI frouu 18418 ito 18(4. Litign Ition) Over thle i,-tntct of Eiulmu1iuuieiii IN Legishlim 101 f 18(14 io- 1 8(8i P eriol froll 1 8;( to 1891. oui- Li: i)ds M1 ruger Nvi h lub Il i n D)n III) 1, t oIlt )( VYi1le oif I lie Li ir(is. Autoit indis (it el. N of es. 4 L 5~ L5H, b'6 it The Crown Lands of Hawaii EARLY LAND TENURE In the history of European civilization, we can readily trace the transition from allodial holding to the purely feudal system of land tenure, wherein the king is the supreme landlord and all other holders are directly or indirectly his tenants; and again to the system now prevailing in the United States, substantially allodial, though marked with traces of feudal theory. In the greater part of the United States feudalism never existed practically at all, or only in such an enfeebled form as lingered on in England in the seventeenth century; but in that little corner of our country called Hawaii men still living were born under a feudal regime in some respects more complete and effective than ever prevailed in mediaeval Europe. The origins of the system in Hawaii are lost in antiquity. We can see its end but not its beginning. From the commencement of authentic history, we find the monarch to'be the absolute owner, in theory and in fact, of every foot of land within his dominions, not as an individual, indeed, but in virtue of his office. This was true during what might be termed the period of the Hawaiian heptarchy, when petty kings fought continually against each other, and boundaries of kingdoms advanced and retreated according to the ability and the ambition of their sovereigns. It could not fail to be true, then, after Kamehameha the Great joined all the islands in one monarchy. As king he succeeded to all the legal rights of the sovereigns whom he superseded; as conqueror by force of arms he was able to dispose of the lands of the conquered according to his pleasure, and would have been so even if legal theory had flatly opposed him instead of fully sanctioning all that he did. All land, then, was the king's. Reserving such as he chose as his private domain, the remainder he granted out to his principal chiefs, who rendered services andl taxes in return. These tenants in chief made similar grants of part of their lands on similar terms, and the process continued in the way with which we are familiar in Europe, though in Hawaii subinfeudation was carried to an extent rarely, if ever, known in Europe-certainly not in England. Ownership remained always, in the king, and it was no mere shadowy claim of title, but a real and ever-present fact. The royal dues, in service and in produce, were constantly exacted, unchecked by any of those recognized customs which in England and France and Germany placed definite limits upon the demands of the suzerain. In Hawaii the lord had his rights X Fat 4 against tle tenant, but the tenant ha(l none against his lord. If his burdens prove(l too heavy his only redress, short of rebellion, was to surrender his fief and seek another lord. Nor had he any security of tenure even while he rendered his ldues punctually. Iand was occasionally reallotted, and at the death of a king a general redistribution by his successor was the almost invariable rule. Up to the time of Kamehameha I fiefs in general had not become hereditary. It is true that certain lands had remained for genierations in the same families. (Note 1.) This may have been more or less accidental, and have implied no acknowledgment of any actutal right, but in the course of time it would naturally result in the claim of such a right, and perhaps lead eventually to a general recognition of the principle of inheritance. It is clear, however, that no such custom existed as to most of the lands of the kingdom, and that the transfer of a fief from one family to another was no matter for either surprise or just grievance. IVOL()LtII()N OF INDIVII)UIAL\ RIGHITS IN LAND. In the last years of the reign of Kamehameha I began that revolution in the system of land tenure which ended, in little over a quarter of a century, with the complete disappearance of the feudal system and the establishment of full individual ownership. Kamehameha I, by adopting the principle of hereditary succession as the normal rule in grants of land, took an important stelp. (Note 2.) The tenant still ha(l no actual right in his land, nor any absolute certainty that he could either retain it for himself (luring his lifetime or transmit it to his posterity on his death, but at least his expectation of both events became reasonable enougll to offer him some encouragemlent to industry. (Note 3.) The 1Bill of Rights of Kamehamehla III, promulgated in 183(, converted this expectation into a legal right, and its principles were a(lopted in the constitution granted in 1840. "Protcction is hereby secured to the persons of all the people, together with their lands, their building lots, and all their property, while thev conform to the laws of the kingdom, and nothing' whatever shall be taken from any individual except by express provision of the laws.' (Note 4.) At the same time it was declared: 'KIamehamella I was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, thouegh it was not his ovwn private property. It belonged to the chiefs and people in common, of w\homi Kamehamneha I was the hlead, an(d hadl the managemlllent of tle landed property. Wherefore, there was not formerly, and( is llot now, any person who could or can c)onvey away the smallest portion of land without 5 h~le conisent of the one wxho hadCI or has the (lirectioll of the kingdo011 ' (Note 5 Af:te~r thils timlc. as xxcll -Is before aldl land was the property of the kmol,- I ot it xxais no ho)ier, sthibect to his arbitrary disposi11011. 1 c ncc tot I iiihitekn 11ayoher landlord (konohilli) CUldlCl~l 1 OVe a tenmt11. 01 incriease his rent exceipt in accodaic xxth 1nx. No) suhbec cidi vet ohtain ahsoiute owierslop of aitid, ibut ai le''a ii itcircsti enforceaibi i the courts, could) 110w bV iad, tinder lea-se. A~s atenmporary expedient this servedi fairly xxvcll hut it could lbe oiilx temporar ox A Ph Iii I'aai now eli — I riniI, thc (11(1ral current of c'-Ix il tollwit x11111II 1,iiiign wit \iici IIl alid ELurolpc d 1 _111 ii)i1l~C)11 txa neces~ary to p~rovide as SO) )l as possil) 11)r com111plete in1dividual Ownei le op. IThis was donle b h a 1 ptc VII' of tile ac t to 01 ranize thle ec \-c utixvc dcpartmencits, approxved Apri i2 7i 184-16 \Artic le I V of this clhalter (Note 6) dir-cCted thle CICti clo of 1a hord of corniimissioners to (Itiet lald titics 'Ius MAtajesty Shall aippoinit thronishi the iliini1stc i of thc iiitcio10 a111( 111)01 conisnltatioll with 'lie, lrivy council, fixve ( mlls le one of wvhoml sihall lbe thle attorney gelleral of thils killc (1011 to lbe a hoard for tile illvestigyation aild final ascertainmenit or rejectioll of all claims of lpriva e individnals, wxhether nativ es or foreipgners, to ainy landled prop~erty acquired atelt(i10 to the p)assa-e of this -act tile awards wh Alicli hoard un1less appeaded fir011 as liireina-fter aIllowedl shall. he hindily 111)011 tiic 1ili1iistc1 of the in1terior aiid 111)o)1 the ap111)1 iCtot I 'lieie folho Vxiario(Ils pr~~ i ls llcllill- onie tJ t1)1 -171 i/l aptpe ii to thlC Supireme1C Ki rt, anid then tile followilo,- 'I' PC 11111i1 ter of tile ltciC1(Mr shall haive power iin mculcrreince wxithI lie, priny IC ulc)1Cii am1 tilidelr the salictioll of His Vi'd jst\ to issuc to;mx lessee oi tenanit for lifle of iand~s sdo cotlfiirllc, heii `1 awaxiaiail sull)ec~t, a patent in fee simp1ile for the <inlec 11p1(11 paymleint (If a coimlltntationl to lbe agreed upon ibv Ills AM ves~tv in1 priiy xCounicil.' Thc first Cof tliC txxo sections jutcuted proviies for 110 alteratPonl in tlt natur1e (If existing titles, hut olily for tile aceclrate (eteimlilatioll of righIts ill lanld alreadly existinl~y tileir legalbai ibeili tile TIM1 of Rights of 1839. lenuire at the wvill of tile landlord lad ibeeomle tenure for life or for a ternil, rent, ill produtce or inl 1aihor, xxa iS 1 loll Cr fixed at tile discretion of tile landlord, 1 lt 1w agreemenlt (If tile partices or hy law. It was for thle i)oard of comilliissionc rs to fix til( b till i viles ( f the lanlds in xwhose p Swsscsin boho Ii ladi)(mls andl( tellalieS haid tlius heeni confirmed, 411to + htciviOIline iler wli b xit c (mOditiois thecy xwere held. It was t) ox ge liothing nexx to e ite doi dlord or tenant, hot mierely 1(1 esi ab-mhhl Cefiilitelv their iresileetixe righlts. 6 But once the rights of the occupant in his lanll had been determined,-when, so to speak, the terms of his lease had been recorded,-the second of the two sections quoted would enable him to buy up the reversion at a price to. be fixed by the king in council, and to obtain a patent in fee simnlle, something unknown to earlier Hawaiian law. Other provisions were nade in this same act (Note 7), and in supllementary statutes passed within the year (Note 8), for the sale and lease of land, so that when the board should have completed its work, the law of real property in Hawaii would differ in no essential respects from that in Enlandl and the United Slates. PRINCIPLES ADOPTED 1Y TIIE BOA\RD OF IA\ND COMAIISSIONERS. In compliance with the statute, William Richards, John Ricord, J. Y. Kanehoa, John Ii and Z. Kaaluwai were appointed commissioners, andl commence(l their labors by a careful investigation into the nature of old land tenures and the respective rights of all classes of persons making claim to shares in landled property. On August 20. 1846, as a result of their examination, they agreed on certain principles, which, on October 26, 1846, were adopted by the legislature as rules which should covern in the partition of the lands of the island(s (Note 9). The board declared it to be "fully established that tlere are but three classes of persons havinll vested ri-ghts in the lands: Flirst. the Government; second, the landlord; and third, the tenant." Consideringo the practically unlimited powers which the king lhad until recently enjoyed, and which he still possessed except as thev had bleen restricted by law, it was concluded that "should the Kilng allow to the landlord one-third, to the tenant one-third, alnd retlin onle-third himself he, according to the uniform opinion of the witnesses, would injure no one unless himself." It is to be noted that the text uses the Kingl a(nd the Govcru1nment inlterchalngeably throughout. It is not Kauikeaouli Kamehamehaa, but tle l —awaiian S ate. which has been found to be the rightful owner of an undivided third of the lands within the national boundaries. (Note 10.) Until a few years earlier the Kin' cans tlhe State, and( there could be no distinction between king's property anid public property. Now, with tle establishment of constitutional overnment, a national treasury as distinct from tlle king's private purse had been created. As the kingf was thereby relieved from the duty of defravili- the expenlses of tlle state, so must he slrrender the incone al(l tile property which le le ha l d el( as the state's represeitative, though like anv otlher residleit (of thle kingdom le mioght holdl!property of his own anl(1 dlispose (of it at 1)letsurc. ( Note 11.) 7 ROYAL REVENUES. The development of a system of governmlent finance, independent of royal control, took place rapidly —almost instantaneously-in Hlawaii, but was otherwise very similar to that in England. In the one case the process took years, and in the other, centuries; it is not the only instance inl which the history of Hawaii is that of Europe in miiniature, and in which the one may hell) to explain the other. In Eng-land, as elsewhere, the king was originally expected to "live on his own." He paid all the expenses of the government out of his private estates. feudal dues, andl such otlher revenues as were from timle to time granted to him by the representatives of the people, or annexed by hlim in some more or less informal manner. Anyt surplus remaining lie dispose(l of for his own lbeefit. Sometimes, of course, he attended to his own benefit first and the lbsiness of government w\as conducted on what happened to be left. In the course of time new sources of revenue were ol)enedl not granted to the crown, but freeing- it from the oblig-ation of defraying the cost of certailn parts of the a(dministrationl. Finally the king surrendered lis hereditary revenues in return for an annual grant of money and relief from most of the expenses of government. This practice has been followed at the accession of each new monarch, and each one has heen freed from the paymtent of certain charges which hadl lbeen borne 1y his predecessors, until the civil list, as it is still called, has becomle practically the "pay and allowances" of the sovereign. Curiously enough, the surrender of the hereditary revenues in return for an allowance of less value bv some nillions of (lollars, is occasiolally sIoken of as if it were a nmunificent gift bestowed by the killn ul)on the British p)eople; his relief from the ohligation of meeting the expenses of the government-some hundreds of millions-is forgotten. Tn both Engiland and Hawaii, then, the national revenues were sooner or later taken out of the hands of the king, a grant of mloney from the public treasury being given to him at the same time. In bloth countries the king could possess property of his own. In both countries, too, there was a third class of property which remained at the disposal of the king,-private in the sense tlat he had the full enjoymelnt of its proceeds, but pubtlic in that he held it because of his position as head of the state, and only while occuIpyin( that plosition. In ESngland the revenues of the luclhy of Tancaster are p!aidl over to the king throiglhout his reign; lie lIas the free use of them, whatever they may amount to, blut oio lis dleath or dlc)eosition they 1)ass to his successor in 8 office. A similar source of income was provided for the constitutional kingr of Hawaii il 1848, when the crown lands were set aside. While there were at first considerable differences between his rights in them and those of the English king in the duchy of Lancaster, these differences were largely removed within a few years, and the 'likeness in the later days of the Hawaiian monarchy was very close. THE GRIEAT MAIHIEL-E. The principles adopted by the board of land colnmmissioners were simple, but their application to particular cases was naturally a difficult matter. The board, with occasional changes in membership, proceeded steadily with its work. but it became evident that ils operations "woul(l occupy a long series of years, and that the Commission would encounter much difficulty in settling the riglls of the clhiefs and ko-nohikis." (Note 12.) The need of some more expeditious method of settlement soon forced attention, and the matter was finally taken up in the Privy Council, where it was fully discussed at the sessions of December 11, 14 and 18, 1847. (Note 13.) Meanwhile the king, as the landlord from whom the tenants in chief held, had advanced a claim to a large part of the land of the islands,-that is, he believed himself to have rights under the second of the three classes of persons lamen(l in tile principles adopted by the board,-auand had worked out a division of the lan(ls in the island of Oahul, between himself and the chiefs, on the basis of his claim. 'The chiefs do not greatly object to this, but they ask: Has the government a third interest in lands left to us? 'lTe King replies Yes, and the governmient has a thirdl interest in his." (Note 14.) It will be seen that this was mnealnt as an adjustment of rights within the second of the three classes, assigning to each konohiki, superior or inferior, his proper share, after which the government (the first class) would take onethird from each konohiki, and the tenants (the third class) would presumably be entitled to convert their leaseholds into fee simple estates of one-third area. There was considerable debate in the council as to the validity of the king's claim. Some believed that "the King as an individual and as the head of the nation should be regarded as one"; that "the government portion of the lands should go into the hands of the King, from which he should select a part as his individual property, and set aside the remain(der for the use and support of his governmelt." Chief Justice Lee, however, after study of the question, gave it as his opinion that "the King and the government were one anl the same in 9 most things, but not in every thing. Froml the constitution it seemed clear that in p)roperty the King- and government were two separate and distinct persons." (Note 15.) After full discussion it was 'determined (December 18, 1847) to appoint a committee which should endeavor by negotiation to effect an equitable (livision of lands between the chiefs on the one hand an(l the government and the king on the other, this to be followed by a division of the second portion into state and crown lands. The right of the tenants to their third was recognized, but a general distribution to them was not attempted. Each tenant might receive an allotment upon application, which seems to have been made in only a few cases, most apparently preferring their existing leaseholds to tle smaller holdings in fee simple. The committee's work was so quickly performed that on March 30, 1848, there was "presented a book of 225 pages consisting of the lands assigned to the King on tle left and those to the chiefs on the right-also a (livision of the King's lands from those belongoing to the Governnent." (Note 16.) This was the "Mahele Book," sige(d and sealed by the killg oln March 8, 1848. In it is contained anl instrument setting aside the crown lands, translated into English as follows: "Know all men by these presents, that I, Kamehameha 1II, by the grace of God, King of these Hawaiial Islands. have given this (lay of my own free will and have made over and set apart forever to the chiefs and people the larger part of my royal land, for the use and benefit of the Hawaiian Government, therefore iby tlis instrument I hereby retain (or reserve) for imyself and for my heirs and successors forever, my lands iiscribel at pages.... of this book: these lands are set apart for me and for my heirs and successors forever, as my own property exclusively." (Note 17.) The action of the kilng and council was broug-lt before the leg-islature at its next session, and on June 7, 1848. was passed an act confirming, tle division aogreed on. The plertinent portions read as follows: "\'hereas, It hatlh lplease(l his iiost gracious laTjesty Kamehameha III, the Kinig, after reservilng, certain lands to hllmself as his owxn lprivate p)rop)erty, to surrender andl forever make over untto his chiefs and people the greater l)ortion of his royal domain; "And whereas, "Be it enacted bl the Hlouse of Nobles andl Representatives of the Hawaiian Islands in Legislative Council assembled, "That expressing our deepest thanks to his Majesty for this noble and truly royal gift. we do herely solemnly confirm this great act of our good King,r and declare the following named lands, viz: * * To be the private lands of his Majesty 10 Kamehameha IIT, to have and to hold to liimnself, his heirs and successors forever; and such lands shall be re<gulated and disposed of according to his royal will an(l pleasure, subject only to the rights of tenants." (Note 18.) Thus the Great Mahele (i. e., division) was completed, and the crown lands, as distinct fromn lands for the use and benefit of the government, were set apart. hPERIOD FROM 1848 TO 1864. The next few years may be passed over briefly. From the timue of the division until his death, Kamehanmeha III admlinistered the crown lands through an agent, receiving the revenues, selling and leasing at pleasure. T e died on Dece-mber 15, 1854, and was succeeded on the throne by hlis nlephew, IlKamehameha IV. The late king's will, probated January 27, 1855, after providing for the payment of his debts anll (levising certaill lalnds to hlis consort, Queen Kalama, inl lieu of dower, left all llis remaining estate to his nephew, the new king. The administration of the crown lands was continued as before. They were treated in all respects as private lands; the queen consort (Emma) joined with the king in deeds to individuals vwhienever it would have been necessary for a private citizen to (lo so in order to bar right of (lower; portions were sold and the remainder was heavily burlened with mortgages. (Note 19.),ITIGATION OVER TIHE EST\IATE O() KIAM:III EITA I'. Kamehameha IV died intestate on November 30, 1863, and the crown passed to his brother, Kamehameha V. A dispute at once arose as to the listril)ution of his estate and particularly as to the disposition to be ma(le of the crown lands. The widow, Queen Enmma, laid claim to one-half, with (lower in the other half, on the theory that the crown lands were hlis private property and subject to the ordinary rules of inheritance. If this assumption were correct, ller right to receive one-llalf could not be disputel, for un(ler Ilawaiilan law an equal division of the estate must be made between the late king's widow an(l his father. (Note 20.) As to her (lower right in the remainder the case was not so clear. I-er entire claim was oppose(d ly the attorlney-goeneral, who held that the crown lands constituted "a royal (lomlain annexed to the Hawaiian crown," that they descended from each holder to his successor on the throne, and that they were not suil)ject to the right of dower. It seems probable that up to this time no very careful consideration had been given to the exact legal status of the crown 11 lands. Since they had first been set apart, the reigning sovereign had always receive(l the income from them, as lie would have done whether they were llis prixate property or "a royal domain annexed to the crown." On the one occasion when a new kiIng had acceded, he had entered into possession, 1)y law, of whatever property was attached to the crown, and(, by the will of his predecessor, of the latter's private property, so that no (question had arisen as to which category included the crowna lands,-they all passed into the same hands anyway, and there was nothing to draw particular attention to the matter. It is easy to find contemporary statements that seem to inmply that the lands set apart for Kamnehameha III in 1848 were ceded to him as absolutely as those assigned to the chiefs were to them, but such remarks were not made as technical legal statements, and too much must not be deduced from them. On the otler hand it seems to have been pretty commnonly assume(, without any great amount of reflection, that the crown lands would go witl the crown. ()Once the issue was actually lmade, it was not hard for reasolable men to take diametrically opposite views and to make a plausible argument on each side. The character of Kanmehameha V, of Queen Elmma and of the attorney-general are sufficient evidence that the litigation was an honest attemt)t to settle an honest difference of opinion. The case was argued at the April term, and the decision announced by Justice George H-1. Robertson on May 27, 1864 (Note 21). "In our opinion, while it was clearly the intention of Kamehameha III to protect the lands which he reserved to himself out of the domain whlich had been acquirel by his famlily tlrough the prowess and skill of his father, the conqueror, fronl the danger of being treated as public domain or Government p)roperty, it was also his intention tto )rovidle that those lands shoull (lescend to his heirs and successors, the future wearers of the crown which the conqueror had won; ain( we un(lerstal(1 the act of the 7th June, 1848, as havilng securedl both thles(e obljects. 'nl(ler that act the lands (lescend in fee, the inheritance being limited however to the successors to the throne, an(l each successive possessor may regulate and dispose of the samle according to his will and pleasure, as private property, in like manner as was (lone b1) KIamehameha 111. In our opinion the fifth clause of the will of Kamehameha III was not necessary to pass the reserved lands to Kamehameha IV, any more than the first clause was necessary to pass to him the crown. lie was entitled to inherit those lands by force of the act of 7th June, 1848, when lie succeeded to the crown, in virtue of the public proclamation ma(le by his predecessor with the consent of the House of Nobles. (No:e 22.) 12 * * * 1We are clearly of opinion also that her Atajesty Queen Elimma is lawfully entitled to dower in thle reserved landils, except so far as she may have barredl her right thlerciln by hler o,\vn act and deed. There is nothilng in tle Act of 7th June, 184X8, wllicl can be understood as taking away thle (ueen's right of dower in the lands therein namned; nor is there any law of tllis Kingidom which renders the matrimonial rights of the wife of the Kinll, any less than or any different from those of tle wife of any private gentleman. Such was unquestionably the understanlllilng of h)otll IKamehallmeha 11 andl his successor as to (lower in those lanllds, which are to be (lealt with in all respects as private inheritalle property, subject only to tlie special legislative restriction on the manner of their descent." To sum up, then, it had been established that tlhe reigning sovereign mlight enjoy the revenues of the crownl lands (lurilg hlis lifetime, alln might also sell or mortgage any I)aLrt or all of tlhem, the proceeds becominlg his private personal lproperty; that on his death all such lands still held should pass to hils successor ji office, sullject to tle samle rigllt of (lower as private laiids. LEGISL.\TIO)N OF 1864-1866. For tlhe first time the exact legal status of the crown lands was now clear and the serious contlition of affairs was brought to )ub)lic attention. The new king- was, indeed, confi1rm1: in his right to the benefit of them, but they camie to him burdened with mortgages placed on them by his pre(lecessors andl their value further diminiished, (lurin;g Queen IEnmma's life-time, by her rilght of dower. Hlis income fromn themli promised to be small. BIut this was not the worst of it. T'I e fornmer kings, though they hadl mort-gaged a great (leal, had not sold much, but there was nothing to i)revent a spendthrift mIonarch frotm (lisposing of every acre to the highest bidder, and leaving nothing to tothse wiho came after. (f course this had been known from the el)gillnilng, but there had never been any imminent (lang'er andl nothing hlad l)een done. Now, lhowever, tl.e (lecision of tle Sulprele Court moved the legislature to provi(le inot only for tlle needs of the reigning king lbut also for tle protection of llis successors. First, the kino- was relieved from tlhe lu>r(ien of Oueeln E:lma's dower. By an act passed D)ecember 3, 1864, a g'rant of six thousand (lollars a year from the national treastury was madle to her, in lieu of dowver, the preamblle reciting thlat Wh lereas, i i is not advantageoius to tlhe'Kingdom that the Royal D)omain slloultl be diminished." (Note 23.) This was in effect an increase of the civil list during the lifetime of Queen Emma. 13 Next, Col January 3), 186-5,, was approved an act )f such importance that it 1must be (luotetl in full. (Note 24.) Whereas by the net entitled "An Act relating to the lands of Iis Majesty the King, and of the Government,'" passed on the 7th day of June, A. I). 1.84, it appears bly the preamble that His Most Gracious Majesty Kamehameha III, the King, after reserving certain lands to himnself as his own private property, to surrender and mlake over unto his chiefs and peop)le the greater portion of his royal (domain; and whereas by the same act it was declared that certain lands therein namled slh:ll be the private lands of Kamehlameha III, to have and to hold to liniself, his heirs, and successors forever, and that the said lan(ds shall be regulated and disposed of according to his royal will land pleasure, subjeet only to the rights of tenants; and whereas by the proper ( costructi.on of thle said statute the words 'heirs and successors' mean tle heirs and successors to the royal office; and whereas the history of said land shows that they were vested in the King for the purpose of maintaining the royal state alld dignity, aind it is therefore disadvantalolgeous to the public interest tt tht te s.id lands should be alienated or the said royal donlmin diminished; and whereas, further, during the two -late reigiins the saiid royal domain iIas been greaitly diminished and is now charged with mortgages to secure considerable sums of money: Now, tle refore, -Be it eaieted by thle King andm the Legislative Assenmbly of tihe 1Iawaiiati Islands, i L the Legislature of the Kingdomn assembled: Sectioni 1. The Minister of finance is hereby authorized to issue oxcliequler bonds, with coluponis attiached, to the aimoiint of not more than.i30,000, s ail bonds to bear ilterest at not more than 12 per cent per annumn, p):ay:ble half yearly, to be redeeimabie at such times within the next twenty years as tlie said miiister of finance shall deem expedieit, which sotid bonds shall be issued( whensoever necessary to the conmoissioners of crown lands, hereinafter provide( for, to be used to extinguish those mortgages which miay remain iunsatisfied after the adiiimiistraitor of his late Majestv's estate lhas exhausted all the estate beloniginog to his l:tte Majesty, in a private caplacity, which the said adoministraotor imxty be legally e( titled to use for the payment of the debts of tle estatte. See. '2. Full 'authority is hereby given to suclh ef omissioners, joinltly witih the minister of finance, to negoti.-te for the redemption of the mortoanges ill tlie preceding section referred. to, land dispose of the s.id exchlequer blnds for that pulrpose in such manner as may be mnost aldvantageous to the pulblic interest. See. 3. It is further enacted that so many of the lands which,y t1he statute enacted on tlhe 7th of June, 1848, ar(e dFclared to be tlie privatle lalnds of His Majesty K](amehlameha, II, to l:have and to hold to hlimself, his heitrs, and successors forever, as mnay be Iat this time unilienaste(, and have descended to His Majesty Ka(mlehamehla V, shall le hencefolrth inalienable, and shall descend to the heirs and successors of the H:iwaiian Crown forever; and it is further en:acted1 that it shall not be Ilawftul hereafter to execute any lease or leaises of the said lands for atny termn of years to exceed thirty. Sec. 4. The comnmissioners of the crown lands shall have full power and authority to make good and valid leases of the said lands for any number of years not exceeding thirty; but in nio case shall it be:latwful to collect the rents onl the same for more thanr one year in advamnce, or to receive anything in the nature of a bonus for signing the 14 said lease, and all tile rents, profits, and emoluments derived from the said lands, after deducting the necessary and proper expenses of managing the same, shall be for the use and benefit of the reigning sovereign, and payable by the said commissioners to the order of the King, except when the King shall be a minor, and then they shall be invested for the benefit of the said minor King, as the legislature may direct, until the said minor shall have arrived at the age of Majority, and excepting further as in the succeeding section set forth. Sec. 5. There shall be set apart by the said commissioners onefourth part of the annual revenue of the said estate, which shall be paid into the public treasury and be devoted first to the payment of the interest on the exchequer bonds herein above provided for, and so much of the said fourth part of the said income as may be in excess of the said interest on the said bonds shall be applied to the payment of the principal of the said bonds until the entire sum by this act authorized to be issued shall be fully paid. See. 6. The board shall consist of three persons, to be appointed by His Majesty the King, two of whom slall be appointed from among the mnemnbers of his cabinet council, and serve without any remuneration, and the other shall act as land agent, and shall be paid out of the revenues of the said land such sum as may be agreed by His Majesty tle King. As regards Kamehamleha V, this law gave him the assistance of the pulblic credit in extilnguishing' the debt on the crown lands, which might or might not be of any practical benefit to him. The important thing' is that henceforth these lands were inalienable, so that no king might sell them and take all their value for himh self, to the exclusion of his successors. IBearing in mind that Ilis MIost Gracious Majesty King Kalakaua ascended the throne (only nine years later, it will be realized that this law came not lluch too soon. nd(ler the act of January 3, 1865. one-quarter of the income of the crown llands was to be turned into the treasury to pay the interest on the government's loan and to extinguish the principal. Kamlehameha V, however, (lid not lilmit himself to this, but paid over nearly the entire revenue of the domliain. Far from seeking to get as much as lie could for himself, his ambition appears to have been to tratnsllit tie crownl lands to his successor free froil all indebtedness. IHis Tgelerosity in tilis respect was emulated by the legislature. It was decided to free the crown lalnds, once for all, from all burdens, and by a resolution approved July 6, 1866, the government assumeld liability for both the principal and the interest of the bonds. (Note 25.) Blontls to the total of $27,000 were issued to extinguish the mortgages. (Note 26.) Thenceforth until the end of the monarchy each king enjoyed the full revenue of the royal lands. 15 PI 1ROD) FROAM 1866 TO 1893. For nearly thirty years there is nothing of consequence to relate, except one curious episode to he men-tioned later. The principal of the trust fund rel)resetedl by the crown lalnds was now effectually protectedl, and it was only the interest that Kalakaua could squander, alonog with his regular subsi(ly from the civil list and his large but uncertain incomle fronl bribes anll frauds on the custom-house. (Note 27.) The area of the lands in the hands of the comlnissioners was slightly reduced, the courts holdinmg that certain tracts heretofore administerecd b them hald been the private pro!perty of Kamehamehia IV, and therefore passe(l to his heirs. (Note 28.) On one of these tracts the government had pai(l off a mortg-age, under the termns of the act of July 6, 1866; the p)remiises were acc(ordinivlv clarged with the amountt, ol p)rayer of the Minister of 1ilnance. (Note 2(). On September 30, 1880, I'-iiccss Rutlh, a lescelndalt of Kalelhameha I, conveyed to Claus Spreckels, for ia consideration of $10.000, "all my estate, right, title and interest botlt at law and in equity of, in and to' the Hlawaiian crown la Inds. (Note 30.) As the princess had no estate, right, title or interest of any description in the crown lands, either at law or in elquity, this was a singular proceeling. It is possible that sle imnagined herself to have some sort of vague rights in the p)roplertry. She was a princess of the house of KaImelhalehla wlichl h1ad once owned every foot of land in the kingdomi, andl she may well have found it hard to grasp the idea that all of the royal lai(ls could pass to another family, leavirng nolne for the (lescend(lants of the conqueror. Acts and dlecisions of new-fan mlle(l things like legislatures and courts could not mean much to her. Alnyway, she w 1ould have no objection to taking the money wl]ich lMr. Sp)reckels p)ressed upon her. Sl)reckels, of course, lhad n illusions as to her rights, but his Ipart in the transaction is easily uii(lerstoo(d. Ile was hand in g-love with the klillng a(ld alln lmost e(ually unscrupulouis politiciaiis, adl is said to h1(ave lboaste(d, not long after this, that lie had the legislature in his pocket. I lis frienls might help him to imake somiething< out of this (leed of PI'incess Ruth's, and even if they could not, its possiblle hlackmlail vallue was considerablle. le was willing to invest tel tholusandl (ollars in an enterprise that al)leare(l (an(l provel ) to offer considlerable profit with no great risk of loss. An incorruptile Supremie Court stood in t ie way of his gaining anything through legal proceedings, but his capacity to make trouble was so evident that the cabinet felt it expedient to buy him off. Accordingly there was introduced in the legislature, passed on July 20th, 16 and apl)proved on July 21, 1882, al act autlhorizing the conveyance to hlim of the ahupuaa of Wailuku, a part of the crown lands inl the island of Maui, "estimated to contain twenty-four thousand acres or thereabouts," on condition of his relinquishing all claims on the remainder of the crown lands. (Note 31.) CROWN LANDS MERGED WITH TIIE PUBItIC DOMAIN. I liiokalalni, the last monarch of H-[awaii, was dethroned on January 17, 1893, and a provisional government was established, which was succeeded onl July 4, 1894, by a republic of the familiar American form. With the enforced abdication of the queen, the lands "vested in the King for the purpose of miaintaining the royal stale and dignity" passed to the new "heir and successor of the — awaiian Crown," and the provisional and republican governments successively took themi in charge. To remove any doubts which might possibly exist, the constitution of the republic expressly provided: "That portion of the public domain heretofore llknow as crown land is hereby declared to have been heretofore, and now to be, tie property of the Hawaiian Government, and to be now free andl clear from any trust of or concerning the same, and from all claim of any nature whatsoever upon the rents, issues, and profits thereof." (Note 32.) After the annexation of Hawaii to the United States in 1898, the organic act, passed by Congress in 1900 to establish a government for the territory, repeated the same provision. (Note 33.) Title was no longer in the Hawaiian governmlent, however, but in that of the United States, the treaty of annexation providing that "the Republic of Hawaii also cedes and hereby transfers to the.Tnited States the absolute fee and ownership of all public, governllent, or crown lands, * together with every right and appurtenance thereunlto appertainilng." (Note 34.) The treaty was not ratified as such, but the joint resolution providing for annlexationl (approved July 7, 1898), adopted its terimls. (Note 35N. (LAI M OF Til E I'ORM ER QU)EEN. The loss of her income from the crown lands, amnounting to albout $50,000 a year, was naturally resented by the former queen, blit dluring tlle existence of thle republic of HTawaii it was evidently impossible for her to recover anything' through the courts, whose existence was derived from tile sanme instrument (the constitution of 1894) which asserted the crown lands to be free "fromn any trust" and "from all claim of any nature whatsoever." Nor does it seem to have occurred to her or to her advisers, until 17 a long time had passel, that her legal position had perhals been altered since annexation. After several years, however, suit was brought in the United States Court of Claims, alleging the right of the ex-queen to the income during her life, and the last act in the history of the crown lands to6k place. The case deserves more than a hasty examination. Aside from the merits of the ex-queell's claim, there was a preliminary legal question involved. In view of the provisions of the Hawaiian constitution of 1894, of the annexation resolution a1nd of the organic act, it would seem on the face of it that there was nothing ulpon which an action could he lasel. The, attorney for the claimant, Mr. Sidney Ballot, concedle( of course that the courts of the republic were unable undler t t t erms of the constitution to take cog-nizance of the case, bult a(lvanlce( tihe theory that the eqluitable righit (of the ex —queen was lilerely suspenldeld and not destroyed; that it still existe(l, although for the time heing ino court had 1 jurisdiction. If the right remaine(l at the time of annexation, then it was l)rotected by the fifth amendment to the constitution (deprivation of property without cldue process of law), and the clause in the organic act could not destroy it. As to the status of the crown landls prior to 1893, the claimant took the p)osition that they had always been the 1rivate lands of the king and in no sense national plroperty. (reat enlphasis was laid on tle words of Justice RXobert son, who, ill the decision of the case of tle estate of Kamlehamelll I\V. said: "The records of the discussion in Council show pIlainly his inlajesty's anxious desire to free his lands froinl tlie burlden of being consideredl public domain, and as such, suljectedl lo the dancger of confiscation in the event of his islands bteig I seizeld h ally forei-gn power." (Note 36.) And agcain, "it was clearly tile intention of Kamehameha III to protect the lands froln the danger of being treated as public domain." (f course, if tlie crown lands-or a life estate in them-were the lprivate plroperty of Liliuokalani, the action of the provisional government amiounted to confiscation. The decision of the court was delivered by lutlge Ienitoln W. Booth, on May 16, 1910. (Note 37.) -le first discussed the decision of 1864. "Although the court sustained the right of dower in the widow of the King, it is clear from the opinion that the crown lands were treated not as the King's private property in the strict sense of tile word. NVhile possessing certain attributes pertaiinng to fee-sinmple estates, such as unrestricte(d power of alienatioii and incuillbrance, there were likewise elougih conditionls surroundinig tle tenure to clearly characterize it as one pertaining to the support and muaintenance of the Crown, as distinct 18 from the person of the Sovereign. They belonge(l to the office and not to the indclividual." Referring to subsequent legislation, lie said: "The act of 1865 to become effective under the Hawaiian constitution required the approval of the King. On January 3, 1865, Kamehameha V approved the statute which expressly (livested the King of whatever legal title or possession he theretofore had in or to the crown lands. The Iawaiian Government in 1865 by its own legislation determined what the court is now asked to determine." And the decision of the court was that "the reservations lna(le were to the crown and not the King as an indivi(dual. Tlle cro\n lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. \When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as plart and parcel of the public domlain." The case was thls decided on its merits. Liliuokalani had never been the owner of the crown lands, and so had lost nothing tlrough the provisions of the constitution of 1894 and of the orcganic act. 'The court remarked: "We have not entered into a (liscussion of the defenses predicated upon the above provisions of law, believing the case disposed of before we reached them. It is, however, worthy of note that the organlic act of 1900 puts an en(l to any trust-if the same possibly existed." This last statement may be (loubtel. If Liliuokalani ever had any private propertv right in the landls and if it were not confiscated and destroyed by the constitution of the republic, then an act of Congress could not (leplrive her of it; that would clearly be a taking of property without due process of law, as argued by the claimant. In view of the groundls of the decision, however. the point is of no importance. The court held that ownership had bleen in the governnment untder the noniarchy as well as utnder the republic; and though it needed to go no further, it might well have decided that the constitution of 1894 destroyed (not suspended) any rights that previously existed, for the claimant's theory, though ingenious, and backed up by elaborate argument, seeims without foun(lationl. The sounlildness of the decision can hardly be doubte d; in fact, p)rolbably the claimant and her advisers never felt sanguine, but thought it might be worth while to take a chance. One wonders just where their artguments would lead. On their theory there was an equitable life estate in the reigning sovereign which could not be taken fronm himn by loss of the crowvn tlrocugh change of government. If the monarcll had b)eell continue(l after Liliuokalani's (lepositionl instead of beinll sulperseded by the republic, wo(-uld tlle revenues of tlle crownrl lands have ciontilled to be paid 19 to the ex-queen? No one could lhave seriously entertained such all idea. They would of course have accruedl to the lew sovereign, "the heir and successor to the royal office," the Princess Kaiulani. If the same rule did not apply under the actual circumstances, it could only be because Liliuokalani was succeelded )y a republican government instead of a constitutional monarch. The logic is obscure. Assuming,, however, that she, as the only queen there was, continued( to receive the income during her life; what was to become of it after her (leatlh? Would it go to her personal heirs? Or to the Hawaiian government? Certainly not the former, for they are inot "heirs and successors to the royal office." As to the latter, if it ever succee(le(l "to the royal office" it was on the deposition of Iiliuokalani and not on her death. There is, indeed, only one thing which lendls a little plausibility to the claim; that is the utterance of Justice Robertson, already quoted. Certainly it seems very much to the lpoint: "It was clearly the intention of Kamehameha III to protect the lands i* * *! from the (langler of being treate(l as public (lomain. This is as given in the claimant's argument, but the (luotation is not conmple'e, for these wor(ds follow: "It was also lhis inlention to provide that those lands should dlescen(l to his lheirs an(l successors, the future wearers of tile crown whlich the conqueror had won." The Court of Claims says that "this statemient" (as imperfectly quoted) "has been seizedl upl:o alid assilduously emp)lhasizeld by the claimant. It is not iln harmony wAitl tlhe (letaile( history given by the court il its opiniol." (Going b1ac)k to thle record of the discussion in the Privy Council, mentioned by Justice Robertson, we find that in the course of tle dle)ate, )ecember 18, 1847, the King asked: "If a foreign power should take the Islands, what lands would they respect? Woul(l they take l)ossession of his lands?'" Mr. Lee, the Chief Justice, "gave it as his opinion, that except in the case of resistance to, and conquest by, any foreign power the King's rights to his private lanlds would be respected." The Kilg asked: "During the Trench Revolution were not the Kingr's lands confiscate(l?" To which Mr. Wyllie, the Minister of VForeig-n Affairs, replied: "Tlley were confiscated, but that was by thle King's owni rebellious subjects." (Note 38.) Now this does not necessarily show that the King believed the proposed segregation of lands woul(l insure his retention of those allotted to him, in case of his (leposition, but it does at least show that he had some curiosity on tile ploiilt. A:gain, it will not (d to foulnd anv theories on the wo-rls in his speech at tlee ol)ening of tile legislature in 1848: "I lhave also reserve(l to myself a portion of lands whlicl are to be rctainled ars nmy rivate prol)erty, 20 and to descend to my heirs forever." (Note 39.) If we are to insist on the narrowest literal meanlingn of the wor(ds "private property," we may not ig-nore the omission of the wor(ls "and successors"; we should have to take this as an assertion that the lalnds would descend to his personal heirs, which, accordinog to the Supreme Court's decision, was not the case. Taking everything into consi(leration, however, it is conceivable that Kaimel-aineha IIIt did believe the crown lands to be his own private property in the full sense of the words. If so, he was evidently mistaken as to thle legal effect of the act of the legislature a)pproving the partition. We have not only the Supremle Court's decision on the other side, but also the declarations of the legislatur e il 1865 that "the words heirs 1and successors mean the heirs anti successors to the royal office," and that "the history of said landls shows that they were vested in the King for the purlpose of mailnlaining, the royal state anl (lignity." As this act was approved by Kamehameha V, it may be taken, in the absence of evidence to the contrary, as expressing his views as well as those of the nobles and representatives. EXTENT AND V\ALUE OF TIHE L ANDS. The crown lands thus finally merged in thle public (lominalil had(l a total area of 971,463 acres, of which 642,852 were il tlhe islan(l ()f 1Iawaii, 69,121 in MIaui, 20,892 in Molokai, 17,36C) in I alai, 66,593 in ()ahu and 154,636 in LKauai. The value was estimated at $2,314,352. (Note 40.) This inclu(!ed agricultural land of all (lescril)tions and also consi(lerable city tracts. Some has now lieen alieliate(l aindl tile identity of the rest lhas of course been comnlletely lost, having bleen dealt with for thirty years without distinction froml other public lands. AUTHOC)RITIES CITED. Lydeeker (editor): Roster Legislatures of T-lawaii, 1.841-1918. Constitutions of Mlonarchy and Republic. Speeches of Sovereigns and President. Thurston (editor): Fundamental Laws of Hawaii. Laws of Hawaii: (The earlier collected as Volumes I andl II; the later designated by the year.) IT. S. Statutes at Large. Hawaiian Reports. IT. IS. Court of Claims Reports. Privy Council Records. (These have never been plublished; thle originals are preserved in the Ifawaiian Archives in Honolulu.) Report of the Commissioners of Cr(own ILands. 1894. Fornander: An Account of thle Polynesian Race. Blackman: The Making of Hawaii. 21 NOTES. 1. Fornander, II, p. 300. 2. Blackman, p. 157. 3. 2 Haw. R. 522, for some account of the customs as to inheritance in this transition period. 4. Lydecker, p. 8. 5. Lydecker, pp. 9-10. 6. Laws, I, 107. 7. E. g., Laws, I, 95. 8. E. g., Laws, II, 70. 9. Laws, II, 81. Fund. Laws, 140. 10. 7 Haw. 421. At p. 430: "The whole context of these Principles shows that the land tenures of this Kingdom were to be settled on the basis that the King — meaning the State or Government-lmhad onethird of any given land held by a landlord. * * * The terms King and Government are, as we see, used interchangeably. They mean the State in each case." 11. Lydcker, p. 10. Constitution of 1840: "I-He shall also retain his own private lands. ' 12. 2 Haw. R. 721. 13. P. C. Records of these dates. 14. P. C. Records, Dec. 11, 1847. 15. P. C. Records, Dec. 14, 1847. 16. P. C. Records, Mar. 30, 1848. 17. Quoted, 2 Haw. R. 723 and 45 Ct. Cls. 429. 18. Laws, 1848, p. 22. Quoted, 2 Haw. R. 717 and 45 Ct. Cls. 429 -430. 19. 2 Haw. R. 724-725. 20. The father of Kamehamleha IV and Kamehamlehal V was not of royal blood. Their mother was a sister of Kamehameha III. 21. 2 Haw. R. 715-726. 22. The Hawaiian monarchy was not at this time hereditary. Art. 25, constitution of 1852, provides that "the successor shall be the person whom the King and the House of Nobles shall appoint." I,ydecker, p. 38. 23. Laws, 1864-'65, pp. 71-72. 24. Laws, 1864-'65, p. 69. Quoted, 45 Ct. Cls. 431-432. The obvious omission in the preamble occurs in the original. 25. Laws, 1866-'67, p. 11. Quoted, 45 Ct. Cls. 432-433. 26. 6 Haw. R. 580. 27. The most notorious instance was the King's acceptance of a bribe of $75,000 for the award of the opium monopoly. After he had received $71,000, another applicant offered $80,000, and wisely insisted on getting the license before paying. The King's profit in the transaction, accordingly, was $151,000. The estate of the defrauded applicant, however, brought legal proceedings against the trustees whom the King had been compPlled to appoint for the settlement of his debts. Refund was resisted on the ground that the transaction was an illega: one, in which the courts would give no redress. With delightful gravitv the court declared that "it cannot be assumed that the King could le party to any illegal tranlsaction," and "in the eye of the law, the King cannot be bribed, or accept a bribe, or be capable of 22 committing a wrong"; and His Majesty was obliged to disgorge. 7 Haw. R. 401. 28. 6 Haw. R. 466. 6 Haw. R. 454. 29. 6 Haw. R. 579. 30. 6 Haw. R. 447. 31. Laws, 1882, p. 11. Quoted, 45 Ct. Cls. 433-434. Mr. Preston, the Attorney-General, introduced the bill, which is sufficient evidence of good faith. 32. Lydecker, p. 222. 33. 31 U. S. Stat. L. 161. 34. 45 Ct. Cls. 436. 35. 30 U. S. Stat. L. 750. Quoted, 45 Ct. Cls. 438-440. 36. 2 Haw. R. 722. 37. 45 Ct. Cls. 418. 38. P.!C. Records, Dec. 18, 1847. 39. Lydecker, p. 24. 40. Rep. of Commrs. of Crown Lands, 1894, p. 8. I I 4, -' *k-,71111s -o CD zC\C c r CY)) (I, -Cl, HD~ H54