|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|
Prior to the first arrival of Europeans in 1778, the inhabitants of the Hawaiian Islands lived in a highly organized, self-sufficient, social system, with a sophisticated language, culture, religion and a land tenure that bore a remarkable resemblance to the feudal system of ancient Europe. The monarchical government of the Hawaiian Islands was established in 1810 by His Majesty King Kamehameha I. He ruled the Hawaiian Islands from April 1810 until his death in May 1819. Upon the death of King Kamehameha I, his son King Kamehameha II was successor to the throne and ruled the Hawaiian Islands from May 8, 1819 to July 1824 when he died of measles in London. His Majesty King Kamehameha III, the second son of His Majesty King Kamehameha I, was successor to the throne upon the death of his older brother in July 1824.
Moving Towards a Constitutional Basis of Government
The Hawaiian Kingdom was governed until 1838, without legal enactments, and was based upon a system of common law, which consisted partly of the ancient kapu (taboo) and the practices of the celebrated Chiefs, that had been passed down by tradition since time immemorial. The Declaration of Rights, proposed and signed by His Majesty King Kamehameha III on June 7, 1839, was the first essential departure from the ancient ways. 1
Hawaiian Declaration of Rights, 1839
The Declaration of Rights of 1839 recognized three classes of persons having vested rights in the lands; 1st, the King or Government; 2nd, the Chiefs; and 3rd, the native Tenants, and declared protection of these rights to both the Chiefly and native Tenant classes. 2 These rights were not limited to the land, but included the right to "...life, limb, liberty, freedom from oppression; the earnings of his hands and the productions of his mind, not however to those who act in violation of the laws." 3
Hawai'i's First Constitution, 1840
One year later on October 8, 1840, His Majesty King Kamehameha III voluntarily relinquished his absolute powers and attributes by promulgating a constitution that recognized three grand divisions of a civilized monarchy; the King as the Chief Executive, the Legislature, and the Judiciary. 4 The Legislative Department of the Kingdom was composed of the King, the House of Nobles, and the House of Representatives, each of which had a negative on the other. The King represented the vested right of the Government class, the House of Nobles represented the vested right of the Chiefly class, and the House of Representatives represented the vested rights of the native Tenant class. The Government was established to protect and acknowledge the rights already declared by the Declaration of Rights, 1839.
The Constitution generally defined the duties of each branch of government. Civilly, the laws embraced the usual rights and duties of the social relations between the three classes of people, and initiated the internal development of the country with the promotion of industry and commerce. In these laws the fundamental basis of landed tenure was declared, and cultivation of the soil, under a feudal tenancy not much differing that of ancient Europe, was encouraged by relaxing the vassal service of the Chiefly and Tenant classes.
Anglo-Franco Proclamation of 1843 Admitting Hawai'i into the Family of Nations
Faced with the quintessential problem of foreign encroachment of Hawaiian territory, His Majesty King Kamehameha III deemed it prudent and necessary to dispatch a Hawaiian delegation to the United States and Europe with the power to settle alleged difficulties with nations, negotiate treaties and to ultimately secure the recognition of Hawaiian Independence by the major powers of the world. In accordance with this view, Timoteo Ha'alilio, William Richards and Sir George Simpson were commissioned as joint Ministers Plenipotentiary on April 8, 1842. Sir George Simpson, shortly thereafter, left for England, via Alaska and Siberia, while Mr. Ha'alilio and Mr. Richards departed for the United States, via Mexico, on July 8, 1842.
The Hawaiian delegation, while in the United States of America, secured the assurance of its President on December 19, 1842 of its recognition of Hawaiian independence, and then proceeded to meet Sir George Simpson in Europe and secure formal recognition by Great Britain and France. On April 1, 1843, Lord Aberdeen on behalf of Her Britannic Majesty Queen Victoria, assured the Hawaiian delegation that "Her Majesty's Government was willing and had determined to recognize the independence of the Sandwich Islands under their present sovereign." On November 28, 1843, at the Court of London, the British and French Governments entered into a formal agreement of the recognition of Hawaiian independence.
International Treaties and Consular Relations
As a result of the recognition of Hawaiian independence in 1843 the Hawaiian Kingdom entered into treaties with the nations of Belgium in 1862; Bremen in 1851; Denmark in 1846; France 1846 and 1857; Germany in 1879; Great Britain in 1836, 1846 and 1851; Hamburg in 1848; Hong Kong (Colony of Great Britain) in 1884; Italy in 1863; Japan in 1871 and 1886; Netherlands in 1862; New South Wales (Colony of Great Britain) in 1874; Portugal in 1882; Russia in 1869; Samoa in 1887; Spain in 1863; the Swiss Confederation in 1864; Sweden and Norway in 1852; Tahiti (Protectorate of France) in 1853; and the United States in 1849, 1870, 1875, 1883, 1884. By January 17, 1893, the Hawaiian Kingdom had established over ninety embassies and consulates in multiple sea ports and cities throughout the world.
Hawaiian Organic Acts of 1845 and 1846
On June 24, 1845, a Joint Resolution was enacted by the Legislature and signed into law. The Attorney General was called upon to draw up a complete set of the existing laws embracing the organic forms of the different departments, namely the Executive and Judicial branches, with an outline of their duties and modes of procedure. This had brought forth the First Act of Kamehameha III to Organize the Executive Ministries, the Second Act of Kamehameha III to Organize the Executive Departments, and the Third Act of Kamehameha III to Organize the Judiciary Department. These Acts came to be known as the Organic Acts of 1845-46. 5
Hawaiian Penal Code
On September 27, 1847, the Legislature passed a law calling upon Chief Justice William L. Lee to establish a Penal Code. In the year 1850, a Penal Code was submitted to the Legislature by Chief Justice Lee and signed into law by His Majesty Kamehameha III, which had adopted the principles of the English common law. 8 On June 22, 1865, the Judges of the Supreme Court were directed, by an act of the Legislature, to compile and ready to publish the Penal Laws of the Kingdom. The matter required a compilation of the amendments and additions made to the Penal Code since 1850, and in the year 1869 a revised Penal Code was published. 9
Revising the Constitution of 1840
In 1851, the Hawaiian Kingdom Legislature passed a resolution calling for the appointment of three commissioners, one to be chosen by the King, one by the House of Nobles, and one by the House of Representatives, whose duty was to revise the Constitution of 1840. 10 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 14, 1852. By its terms, the Constitution would not take effect until December 6, 1852.
His Majesty King Kamehameha IV
On April 6, 1853, Alexander Liholiho was named successor to the office of the Constitutional Monarch by His Majesty King Kamehameha III in accordance with Article 25 of the Constitution of 1852, which provides 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, during the King's life..." 11 One year later on December 15th, His Majesty King Kamehameha III passed away and Alexander Liholiho ascended to the office of Constitutional Monarch and was thereafter called King Kamehameha IV.
Hawaiian Civil Code
Since the passage of the Organic Acts of 1845-46, a Joint Resolution was passed by the Legislature and signed into law in the year 1856, calling upon Prince Lot Kamehameha, Chief Justice William L. Lee, and Associate Justice George M. Robertson to form a committee and prepare a complete Civil Code and to report the same for the sanction of the Legislature in 1858. 12 Pursuant to the resolution, on May 2, 1859, a Civil Code was finally passed by the Legislative Assembly and signed into law on May 17, 1859. Session laws subsequently enacted by the Legislature amended or added to the Civil Code.
The nationality or political status of persons belonging to the Hawaiian Kingdom are termed "Hawaiian subjects." Native Hawaiians became subjects of the Kingdom as a consequence of the unification of the islands by Kamehameha I at the turn of the eighteenth century. Since Hawai'i became constitutional, foreigners were capable of becoming Hawaiian nationals either through naturalization or denization. Under the naturalization laws of the Kingdom foreigners who resided in the Hawaiian Islands for five years could apply to the Minister of Interior for naturalization, whereby "...every foreigner so naturalized, shall be entitled to all the rights, privileges and immunities of an Hawaiian subject." 13
Denization was a constitutional prerogative of the Office of the Monarch, whereby, a foreigner may have all the rights and privileges of a Hawaiian subject, but is not required to relinquish his allegiance to his native country as is required under naturalization. 14 Denization was "dual citizenship," which was accompanied by an oath of allegiance to the Hawaiian Kingdom. It was reserved to those foreigners who may not have resided in the Kingdom for five years or more, but their services were needed in the affairs of government both local and abroad. The children of Hawaiian denizens born in the Hawaiian Kingdom were considered Hawaiian subjects. Examples of Hawaiian denizens were special envoys who negotiated international treaties and officers serving in the Hawaiian government.
His Majesty King Kamehameha V
On November 30, 1863, His Majesty King Kamehameha IV passed away unexpectedly, and consequently left the Kingdom without a publicly proclaimed successor. On the very same day the Kuhina Nui (Premier) in Privy Council publicly proclaimed Lot Kapuaiwa the successor to the Throne in accordance with Article 25 of the Constitution of 1852, and was thereafter called King Kamehameha V. 15 Pursuant to Article 47 of the Constitution of 1852, it provides that "whenever the throne shall become vacant by reason of the King's death the Kuhina Nui (Premier) shall perform all the duties incumbent on the King, and shall have and exercise all the powers, which by this Constitution are vested in the King."
Anomalous Provisions of the 1852 Constitution
Upon the accession of the throne by King Kamehameha V, he had refused to take the oath of office until the Constitution was altered. This refusal was constitutionally authorized by article 94 of the 1852 Constitution which provided that "[t]he King, after approving this Constitution, shall take the following oath..." This provision implied a choice to take or not take the oath, which King Kamehameha V felt should be constitutionally altered. Another provision of the 1852 Constitution needing alteration was the sovereign prerogative provided in article 45 which stated that "[a]ll important business of the Kingdom which the King chooses to transact in person, he may do, but not without the approbation of the Kuhina Nui (Premier). The King and Kuhina Nui (Premier) shall have a negative on each other's public acts." This sovereign prerogative allowed the King the constitutional authority to alter or amend laws without Legislative approval. These anomalous provisions needed to be altered along with the instituting of voter qualifications for the House of Representatives. His Majesty King Kamehameha V, in Privy Council, resolved to look into the legal means of convening the first Constitutional Convention.
Hawai'i's First Constitutional Convention in 1864
On July 7, 1864, a Convention was called by His Majesty King Kamehameha V to draft a new constitution. The Convention was not comprised of delegates elected by the people with the specific task of altering the constitution, but rather their elected officials serving in the House of Representatives, together with the House of Nobles and the King in Privy Council. Between July 7 and August 8, 1864, each article in the proposed Constitution was read and discussed until they arrived at article 62. Article 62 defined the qualification of voters for the House of Representatives. After days of debate over this article, the Convention arrived at an absolute deadlock. The House of Representatives was not able to agree on this article. As a result, His Majesty King Kamehameha V, in exercising his sovereign prerogative, dissolved the convention and proclaimed a new constitution on August 20, 1864. 16
Constitution of 1852 Authorizes Proclamation of New Constitution
In His Majesty King Kamehameha V's speech at the opening of the Legislative Assembly of 1864, he explained his abovementioned action of dissolving the Convention "and proclaiming a new constitution" by stating that the "...forty-fifth article (of the Constitution of 1852) reserved to the Sovereign the right to conduct personally, in cooperation with the Kuhina Nui (Premier), but without the intervention of a Ministry or the approval of the Legislature, such portions of the public business as he might choose to undertake..." 17 This public speech before the Legislative Assembly occurred without contest, and therefore must be construed as a positive statement of the approbation of the Kuhina Nui (Premier) as required by Article 45 of the said Constitution of 1852. This sovereign prerogative was removed from the 1864 Constitution, thereby preventing any future Monarchs of this right to alter the constitution without the approval of 2/3's of all members of the Legislative Assembly. 18
Fundamental Changes to the Constitution
Contrary to recent historical scholars, the 1864 Constitution did not increase the authority of the Monarch, but rather limited the power of the Chief Executive formally held under the 1852 Constitution. Under what has been termed the Kamehameha Constitution (1864), the Monarch was now required to take the oath of office and the sovereign prerogative was removed. Also removed was the office of the Kuhina Nui (Premier), which was found to be overlapping the duties of the Minister of Interior, and the bi-cameral nature of the legislative body. Where the legislature would formally sit in two distinct Houses (House of Nobles and the House of Representatives), it was changed to a uni-cameral House where the "[l]egislative power of the Three Estates of this Kingdom is vested in the King, and the Legislative Assembly; which Assembly shall consist of the Nobles appointed by the King, and of the Representatives of the People, sitting together." The property qualifications instituted in article 61 and 62 were repealed by the Legislature in 1874.
His Majesty King Kamehameha V dies without Naming a Successor
On December 11, 1872, His Majesty King Kamehameha V passed away without naming a successor to the office of Constitutional Monarch. As a consequence to the passing of the late King, the Legislative Assembly readied itself to exercise the constitutional authority it possessed to elect, by ballot, a native Chief to be the Constitutional Monarch. Article 22 of the Constitution of 1864 of the Hawaiian Kingdom provides that "..should the Throne become vacant, then the Cabinet Council, immediately after the occurring of such vacancy, shall cause a meeting of the Legislative Assembly, who shall elect by ballot some native Ali'i (Chief) of the Kingdom as Successor to the Throne...".
His Majesty King William Lunalilo and His Majesty King David Kalakaua
On January 8, 1873, William Charles Lunalilo was elected as the successor to the office of Constitutional Monarch in accordance with Article 22 of the Constitution of 1864, but one year later on the 3rd day of February, 1874, the King died without naming a successor. The Hawaiian Legislature once again met in special session to elect David Kalakaua to the office of Constitutional Monarch on February 12th, 1874. 19
His Majesty King David Kalakaua names his Successor in Office
On April 10, 1877, King David Kalakaua publicly proclaimed Lydia Kamaka'eha Dominis to be his successor to the office of Constitutional Monarch in accordance with article 22 of the Constitution of 1864, following the death of William P. Leleiohoku, heir-apparent. 20
Extortion of the so-called 1887 Constitution
On October 16, 1886, the Hawaiian Legislature was adjourned by King David Kalakaua after it met in Legislative session for 129 days, and was not scheduled to reconvene in Legislative Session until April of 1888. 21 According to Article 46 of the Constitution of 1864 it provides that the "...Legislative Body shall assemble biennially, in the month of April, and at such other time as the King may judge necessary, for the purpose of seeking the welfare of the nation."
Takeover of Native Political Rights
In 1887, while the Legislature remained out of session, certain naturalized subjects of the Hawaiian Kingdom and foreign nationals, which included citizens of the United States, met in a mass meeting to organize a takeover of the political rights of the native population in the Kingdom. 22 These individuals were organized under the name "Honolulu Rifles," and threatened His Majesty King David Kalakaua with bodily harm to accept a new cabinet council on July 1st. Thereafter, a new constitution was forced upon the King on July 7, 1887, by the members of the new cabinet without the consent or ratification of the Legislative Assembly. Under this so-called constitution deriving itself from the executive branch and not the Legislative branch, a new Legislature was elected while the former remained out of session, but voters, which for the first time included "resident aliens," had to swear an oath to support the so-called constitution before they could vote. This new Legislature was not properly constituted under the Constitution of 1864, nor the lawfully executed Session Laws of the Legislative Assembly of the Hawaiian Kingdom.
Constitution of 1864 Remains Law of the Land
In spite of the extortion of the so-called constitution of 1887, commonly known as the "bayonet constitution," the Constitution of 1864 and the Session laws of the Legislative Assembly enacted since October 16, 1886, still remain in full force and legal effect in the Hawaiian Kingdom as of today. Article 78 of the Constitution of 1864, provides that all "...laws now in force in this Kingdom, shall continue and remain in full effect, until altered or repealed by the Legislature; such parts only excepted as are repugnant to this Constitution. All laws heretofore enacted, or that may hereafter be enacted, which are contrary to this Constitution, shall be null and void."
Her Majesty Queen Lili'uokalani
On January 29, 1891, His Majesty King David Kalakaua passed away and his named successor, Lydia Kamaka'eha Dominis, ascended to the office of Constitutional Monarch and was thereafter called Queen Lili'uokalani. In an attempt to counter the effects wrought by the extortion of the so-called constitution of 1887, Her Majesty Queen Lili'uokalani, drafted a new constitution that embodied the principles and wording of the Constitution of 1864, on January 14, 1893. 23 This draft constitution was not Kingdom law, but remained subject to ratification by 2/3's of all members of the Legislative Assembly, which had been out of session since October 16, 1886.
Hawaiian Supreme court reports on the subject
of Constitutional history in the Hawaiian Kingdom:
*Rex v. Booth, 2 Haw. 616; *In re Estate of His Majesty Kamehameha IV, 2 Haw. 715; The King v. Paakaula, 3 Haw. 30; Burdick v. Rhodes, 3 Haw. 250; The King v. Camacho, 3 Haw. 385; Kini Maka v. Ah Fai, 3 Haw. 631; Marchant v. Marchant, 3 Haw. 661; The King v. Yat Sing, 3 Haw. 672; Pahoa v. Haupu, 4 Haw. 158; The King v. Tong Lee, 4 Haw. 335; In re Chow Bick Git and Wong Kuen Leong, hapeas corpus, 4 Haw. 385; In re Gig Ah Chan, habeas corpus, 6 Haw. 25; In re Fort Street, 6 Haw. 638; The King v. Luce, 6 Haw. 686.
* highly recommend
- See Declaration of Rights of 1839, preamble to the Hawaiian Kingdom Constitution of 1840.
- See Estate of Kamehameha IV, 2 Haw. 719 (1864); Principles, vol. 2, Haw. Stat. laws, p. 83 (1846); Privy Council Minutes, Dec. 11, 1847, vol. 2, p. 87.
- See Declaration of Rights of 1839, preamble to the Hawaiian Kingdom Constitution of 1840.
- See Hawaiian Kingdom Constitution of 1840.
- See Thrum's Hawaiian Annual, 1893, p. 45.
- Ibid., p. 68.
- See Statute Laws of Kamehameha III, 1845 & 1846.
- See Forward of the Penal Code of the Hawaiian Kingdom, 1850.
- See Forward of the Penal Code of the Hawaiian Kingdom, 1869.
- See Haw. Session Laws, 1851, p. 103.
- See Roster Legislatures of Hawai'i, 1841-1918, p. 49; Constitution of 1852 of the Hawaiian Kingdom, art. 25.
- See Hawaiian Session Laws, 1856, p. 60.
- See article VIII, chapter VII, title 2 of the Civil Code of the Hawaiian Kingdom, Compiled Laws of 1884, "Naturalization of Foreigners," p. 104-106.
- See Id.
- See Haw. Privy Council minutes, vol. 8, p. 165.
- See Haw. Privy Council minutes, July 10, 17, Aug. 11, 1864.
- See Roster Legislatures of Hawai'i, 1841 1918, p. 99, Hawai'i Archives.
- See Constitution of 1864 of the Hawaiian Kingdom, art. 80.
- See Roster Legislatures of Hawai'i, 1841-1918, p. 126, Hawai'i Archives.
- See Roster Legislatures of Hawai'i, 1841-1918, p. 138, Hawai'i Archives.
- See Roster Legislatures of Hawai'i, 1841-1918, p. 156, Hawai'i Archives.
- See Report by Presidential Investigator James Blount, "Interview with Chief Justice Judd," App. II, Foreign Relations of the U.S., 1894, 53d Congress, 3d sess., House of Rep., Ex. Doc. 1, part 1, Affairs in Hawai'i, p. 575.
- See Draft Constitution, January 14, 1893, Hawai'i Archives.
|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|