Senior Law Professor Reports War Crimes to U.S. Attorney General

FOR IMMEDIATE RELEASE

Press Conference at William S. Richardson School of Law, University of Hawai‘i at Manoa, Monday, September 22, 2014, at 2:00 pm

University of Hawai‘i’s senior law professor notifies U.S. Attorney General, Eric Holder, Jr., of war crimes committed in the Hawaiian Islands

Professor ChangHONOLULU (September 19, 2014) – Senior law professor Williamson B.C. Chang has reported to U.S. Attorney General Eric Holder, Jr. that war crimes have and continue to be committed in the Hawaiian Islands. Professor Chang is a faculty member of the University of Hawai‘i William S. Richardson School of Law and has been with the law school for the past thirty-eight years.

The Office of Hawaiian Affairs’ (OHA) top executive, CEO Kamanaopono Crabbe, contracted political scientist, Dr. Keanu Sai, to draft a memorandum on the legal status of Hawai‘i under international law. Based on information Sai disclosed in what has become known as the OHA Memo, CEO Crabbe authored a letter to Secretary of State, John Kerry. Crabbe sought legal clarification on the status of Hawai‘i from Secretary Kerry primarily because Sai concluded that OHA is in possession of monies acquired from the “State of Hawai‘i’s” general fund through pillaging.

Pillaging is prohibited under article 33 of the 1949 Geneva Convention, IV, being a war crime under U.S. federal criminal law as well as a felony. According to 18 U.S.C. §2441 “Whoever, whether inside or outside the United States, commits a war crime…shall be fined under the this title or imprisoned for life or any number of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

The International Criminal Tribunal for the former Yugoslavia has defined pillaging, which is the same as plunder, as “the fraudulent appropriation of public and private funds belonging to…the opposing party.” According to the OHA Memo, the State of Hawai‘i is not a legitimate government under international law and as a self-declared entity it has no authority to collect taxes from individuals throughout the Hawaiian Islands. This fraudulent collection of monies is a form of pillaging from public property that belongs to the Hawaiian Kingdom, not the United States.

Eric_HolderIn the letter addressed to Attorney General Holder, Professor Chang described his reporting of war crimes as being obligated under Federal criminal law and if he did not report the war crimes he could be fined or imprisoned for three years. “Pursuant to 18 U.S.C. §4Misprision of felony, I am legally obligated to report to you the knowledge I have about multiple felonies that prima facie have been and continue to be committed here in the Hawaiian Islands,” Chang said. “I have been made aware of these felonies through the memorandum by political scientist David Keanu Sai, Ph.D., who was contracted by the State of Hawai‘i Office of Hawaiian Affairs, entitled Memorandum for Ka Pouhana, CEO of the Office of Hawaiian Affairs regarding Hawai‘i as an Independent State and the Impacts it has on the Office of Hawaiian Affairs.”

Chang explained the action taken was not only prompted by a legal obligation, but also because he’s a State of Hawai‘i employee. “I and other State officials and employees receive State monies that have been implicated as being gained through the commission of felonies, namely the war crime of pillaging, and we could also face prosecution under 18 U.S.C. §3—Accessory after the fact,” Chang said. “I am deeply concerned about this matter that affects all State of Hawai‘i officials and employees, including myself personally.”

Due to the urgency of the matter Chang’s letter asks for a response from the Department of Justice within two weeks. If the Department of Justice’s “response in two weeks is able to refute the evidence provided for in the Memo, then assuredly the felonies—war crimes—have not been committed,” Chang said. The letter goes on to say, “But if your office is not able to refute the evidence, then this is a matter for the U.S. Pacific Command, being the occupying power, and all State of Hawai‘i officials and employees, as well as I, are compelled to comply with Hawaiian Kingdom law and the law of occupation.”

Chang’s letter was also carbon copied to the Commander of the U.S. Pacific Command headquartered at Camp Smith, Island of O‘ahu, and to the Prosecutor of the International Criminal Court in The Hague, Netherlands.

The press conference will be located in front of the Administration building across from the Law Library. Parking is provided in the parking structure behind the law school at $5.00.

Joining Professor Chang at Monday’s press conference will be some of the 17 State of Hawaii employees from the University of Hawaii, the Department of Human Services, the Department of Public Safety, the Maui Fire Department, and the Department of Hawaiian Homelands, who endorsed the letter. Dr. Sai will also be at the press conference.

Click here to download Professor Chang’s letter.
Click here to download the OHA Memo.

Hawaiian Gazette Reports Americanization Program for Schools in Hawai‘i

Hawaiian Gazette

Patriotic_Program_Article

On April 3, 1906, the Hawaiian Gazette reported on page 6:

“As a means of inculcating patriotism in the schools, the Board of Education has agreed upon a plan of patriotic observance to be followed in the celebration of notable days in American history, this plan being a composite drawn from the several submitted by teachers in the department for the consideration of the Board. It will be remembered that at the time of the celebration of the birthday of Benjamin Franklin, an agitation was begun looking to a better observance of these notable national holidays in the schools, as tending to inculcate patriotism in a school population that needed that kind of teaching, perhaps, more than the mainland children do–although patriotism is inculcated in the schools there, also.

The matter was taken up by the school department, at once, and the teachers were asked to submit their views upon it. The result is embodied in the “patriotic program” printed herewith, which represents the best educational thought of the Territory. The program follows, and will be sent out officially in pamphlet form as a guide to teachers in the observance of national days in the schools.”

The term “inculcate” is defined as “to cause something to be learned by someone by repeating it again and again.” This is another word for “indoctrination” that is defined as “the process of inculcating ideas, attitudes, cognitive strategies or a professional methodology (see doctrine). It is often distinguished from education by the fact that the indoctrinated person is expected not to question or critically examine the doctrine they have learned.”

To download the full article click here.

To download the Patriotic Program pamphlet click here.

According to the U.S. Library of Congress’ “Chronicling America“:

“The Hawaiian Gazette was a fervent advocate of the sugar industry and other American economic interests in Hawai‘i. Early on, these interests were in line with those of the Hawaiian monarchy; as such, the Hawaiian Gazette became the official newspaper of the Kingdom in 1865 under King Kamehameha V and was published by James H. Black and the Hawaiian government until 1873. In the mid-1870s, the paper turned decidedly anti-monarchy when the views of King Kalākaua and those of the local oligarchy–a powerful contingent of pro-American, pro-annexation sugar interests–began to diverge. The Hawaiian Gazette attacked Kalākaua’s government for what it regarded as wasteful spending on the King’s coronation ceremony and efforts to revive public performances of Hawaiian chanting and hula. It avidly supported the call for a new government, which was achieved in 1887 when the Bayonet Constitution effectively stripped the king of his power and secured the oligarchy’s political authority. At that time, the Hawaiian Gazette resumed its place as one of the government’s biggest advocates; indeed, several high-ranking members of the oligarchy, including William R. Castle and Sanford B. Dole, would oversee the newspaper in years to come. In January 1893, the paper was among several that refused to print Queen Liliu‘okalani’s protest against the overthrow of the Hawaiian monarchy and painted her efforts to reestablish the Kingdom’s authority as illegal and counterrevolutionary. Following the Queen’s overthrow on January 17, 1893, the Hawaiian Gazette published the proclamation and orders of the new Provisional Government and began referring to Liliu‘okalani as Hawai‘i’s ‘ex-Queen.’ Two weeks later, the paper asserted that it, together with the Pacific Commercial Advertiser , “contained the only true and extended account of the late revolution”and encouraged readers to sign the Provisional Government’s loyalty oath.”

U.S. Department of State’s Website: Article on Hawaiian Annexation Removed

In an interesting move by the Office of the Historian on the U.S. Department of State, the article Annexation of Hawai‘i, 1898, was “removed pending review to ensure it meets our standards for accuracy and clarity.”

Milestones HI Annexation 1

Below is the article that was removed.

Milestones HI Annexation

Life in the Law – Interview with Professor Williamson Chang and Dr. Keanu Sai

Host of Life in the Law, Kenneth Lawson, interviews law Professor Williamson Chang and political scientist Dr. Keanu Sai on the legal issues surrounding the occupation of the Hawaiian Islands. Lawson is faculty at the University of Hawai‘i William S. Richardson School of Law and teaches criminal law.

Resistance Radio – Interview with Film Maker Anne Keala Kelly

Keala KellyAnne Keala Kelly is an award winning, Native Hawaiian filmmaker and journalist whose works focus primarily on the early 21st century Hawaiian sovereignty movement. Her feature length documentary, Noho Hewa, has been screened and broadcast internationally and is widely taught in university courses that focus on indigenous peoples, the Pacific, and colonization.

Hawaiian Kingdom Blog

There have been recent inquiries as to the author of the posts on this blog. The answer is that it is the acting government of the Hawaiian Kingdom that authorizes the postings. This blog was established to inform the general public of the actions taken by the acting government and to provide information of a historical, legal or political nature regarding the country. It is not your typical blog that has a moderator to direct and manage the online dialogue. This blog is for informational purposes only and we appreciate the broad base of readership.

The primary objective of the acting government is to expose the occupation of our country within the framework of the 1907 Hague Conventions IV and V and our domestic statutes, and to provide a foundation for transition and the ultimate end of the occupation of the Hawaiian Kingdom. Article 43 of the 1907 Hague Convention IV mandates that the occupying government, being the United States of America, must administer the laws of the occupied State, being the Hawaiian Kingdom, and any deviation of this mandate is a violation of international law.

To understand the legal basis in the formation of the acting government in 1997 under the doctrine of necessity you can download the “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom.” You can also download the acting government’s “Strategic Plan of the acting Council of Regency.” Education is primary and is a fundamental component of the acting government’s strategic plan.

Hawaiian Rule of Law and the Separation of Powers

Hawaiian governance drew from political ideas of other countries as well as the experience of Hawaiian rulers. Hawai‘i’s history and circumstances were unique because Hawai‘i did not experience the peasant uprisings and revolutions that occurred in Great Britain and France. Legal cultures throughout Europe and the United States did, however, influence the leadership of the Hawaiian Kingdom, especially in the formative years of its transformation from absolute rule to constitutional governance.

Early in his reign, 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. Uniformity of law and the centralization of authority had become a necessity. Increased commercial trade brought an influx of foreigners wishing to reside and conduct business in the Kingdom, requiring changes in the legal system. In 1831, British General William Miller made the following observation of Hawaiian governance at the time:

William_MillerIf then the natives wish to retain the government of the islands in their own hands and become a nation, if they are anxious to avoid being dictated to by any foreign commanding officer that may be sent to this station, it seems to be absolutely necessary that they should establish some defined form of government, and a few fundamental laws that will afford security for property; and such commercial regulations as will serve for their own guidance as well as for that of foreigners; if these regulations be liberal, as they ought to be, commerce will flourish, and all classes of people will be gainers.

William RichardsKamehameha III turned to his religious advisors—the missionaries—for advice. William Richards volunteered to travel to the United States in search of someone to instruct the chiefs on government reform. When Richards was unable to find an instructor he dedicated himself, at the urging of Kamehameha III, to instruct the chiefs on political economy and governance. Richards had no formal education in political science or law but relied on the work of the President of Brown University, Francis Wayland. Wayland was interested in “defining the limits of government by developing a theory of contractual enactment of political society, which would be morally and logically binding and acceptable to all its members.”

Richards developed a curriculum based upon Hawaiian translations of Wayland’s two books, “Elements of Moral Science (1835)” and “Elements of Political Economy (1837).” According to Richards, the “lectures themselves were mere outlines of general principles of political economy, which of course could not have been understood except by full illustration drawn from Hawaiian custom and Hawaiian circumstances.” Richards sought to Francis_Waylandtheorize governance from a foundation of natural rights within an agrarian society based upon capitalism that was not only cooperative in nature, but also morally grounded in Christian values. His translation of Wayland’s Elements of Political Economy, states “Peace and tranquility are not maintained when righteousness is not maintained. The righteousness of the chiefs and the people is the only basis for maintaining the laws of the government.” Laws should be enacted to maintain a society for the benefit of all and not the few.

Richards asserted, “God did not establish man as servants for the chiefs and as a means for chiefs to become rich. God provided for the occupation of government leaders in order to bless the people and so that the nation benefits.” Wayland’s theory of cooperative capitalism, with private ownership of land and a free market as the foundation of political economy, was difficult to implement because the Kingdom was in a feudal state since the rule of Kamehameha I. Individuals could not hold land titles in the form of freehold titles, e.g. fee-simple and life estates. Therefore, personal property and agriculture formed the basis of the Hawaiian economy at this stage. According to an 1840 statute,

“The business of the Governors, and land agents [Konohiki], and tax officers of the general tax gatherer, is as follows: to read frequently this law to the people on all days of public work, and thus shall the landlords do in the presence of their tenants on their working days. Let every one also put his own land in a good state, with proper reference to the welfare of the body, according to the principles of Political Economy. The man who does not labor enjoys little happiness. He cannot obtain any great good unless he strives for it with earnestness. He cannot make himself comfortable, not even preserve his life unless he labor for it. If a man wish to become rich, he can do it in no way except to engage with energy in some business. Thus Kings obtain kingdoms by striving for them with energy.”

The Hawaiian Kingdom was moving towards developing and adhering to the “rule of law,” where there exists a government of law and not a government of chiefs. In the preamble of the 1840 Constitution it provides, “Protection is hereby secured to the persons of all the people, together with their lands, their building lots, and all their property, while they conform to the laws of the kingdom, and nothing whatever shall be taken from any individual except by express provision of the laws. Whatever chief shall act perseveringly in violation of this constitution, shall no longer remain a chief of the Hawaiian Islands, and the same shall be true of the Governors, officers, and all land agents.”

Under a feudal autocracy, the chiefs who held authority over the people under them had the sole authority to enact laws, execute laws and be the judge of the violation of these laws over the people. Hawaiian constitutionalism sought the transfer of the inherent authority of the chiefs into a single government that would enact laws that would apply equally to both chiefs and people together. To do this would be to achieve the cornerstone of constitutionalism—separation of powers.

Separation of powers refers to government responsibilities divided into distinct branches that prevent one branch from exercising the function of another branch. Hawaiian constitutional law separates government into three branches: the legislative, which is responsible for enacting laws and appropriating a budget for the operation of government; the executive, which is responsible for executing laws enacted by the legislative branch and the administration of government; and the judicial, which is responsible for the interpretation of the constitution and laws when disputes are brought before the courts.

Although, the Hawaiian Kingdom was a constitutional monarchy since 1840, it did not achieve the separation of powers until 1864. For 24 years the Hawaiian government operated more under a theory of sharing of power between the three Estates of the kingdom: the Monarch, Nobles and the People, rather than a separation of power theory. Under the first constitution in 1840, the King’s duty was to execute the laws of the land, serve as chief judge of the Supreme Court, and sit as a member of the House of Nobles that would enact laws together with representatives chosen from the People.

The 1852 Constitution was the first step toward separating the branches, where Article 23 stated: “The Supreme power of the Kingdom, in its exercise, is divided into the Executive, Legislative and Judicial; these are to be preserved distinct; the two last powers cannot be united in any one individual or body.” The King, however, who heads executive branch, could still create legislation without the participation of the legislative branch. Article 45 provided, “All 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 the Kuhina Nui shall have a negative on each other’s public acts.” In other words, this provision was a loophole that needed to be addressed. Another cross over of branches under the 1852 Constitution were that two sitting Justices of the Hawaiian Kingdom Supreme Court, George M. Robertson and Lawrence McCully, were elected Representatives in the legislative branch. Both Justices also served as Speaker of the House of Representatives.

The separation of powers was finally accomplished under the 1864 Constitution when the provision of Article 45 was removed and Judges were barred from serving as elected Representatives in the Legislative Assembly. Article 20 of the 1864 Constitution provides, “The Supreme Power of the Kingdom in its exercise, is divided into the Executive, Legislative, and Judicial; these shall always be preserved distinct, and no Judge of a Court of Record shall ever be a member of the Legislative Assembly.”

KalakauaWhen King Kalakaua was forced to sign the 1887 Bayonet Constitution, he did so as the head of the executive branch, which was separate and distinct from the legislative branch. Since 1864, the executive was limited and confined to executing Hawaiian laws enacted by the Legislative Assembly and the administration of government. It did not have the ability to enact legislation as Kamehameha V did under Article 45 of the 1852 Constitution. The only branch that could change or amend the 1864 Constitution was solely the legislative branch. According to Article 80 of the 1864 Constitution:

“Any amendment or amendments to this Constitution may be proposed in the Legislative Assembly, and if the same shall be agreed to by a majority of the members thereof, such proposed amendment or amendments shall be entered on its journal, with the yeas and nays taken thereon, and referred to the next Legislature; which proposed amendment or the next election of Representatives; and if in the next Legislature such proposed amendment or amendments shall be agreed to by two-thirds of all members of the Legislative Assembly, and be approved by the King, such amendment or amendments shall become part of the Constitution of this country.”

BlountIn his final report dated July 17, 1893, to U.S. Secretary of State Walter Gresham, U.S. Special Commissioner, James Blount, interviewed the Chief Justice of the Hawaiian Kingdom that centered on the 1887 Bayonet Constitution. Unbeknownst to Blount at the time of the interview, the Chief Justice was a co-conspirator along with Associate Justice Edward Preston who assisted in the drafting of the Bayonet Constitution.

A.F. JuddBlount reported, “At this point I invite attention to the following extract from a formal colloquy between Chief Justice Judd and myself touching the means adopted to extort the constitution of 1887, and the fundamental changes wrought  through that instrument:

Q. Was that constitution ever submitted to a popular vote for ratification?
A. No; it was not. There was no direct vote ratifying the constitution, but its provisions requiring that no one should vote unless he had taken an oath to support it,  and a large number voted at that first election, was considered a virtual ratification of the constitution.

Q. If they voted at all they were considered as accepting it?
A. Yes, sir. I do not think any large number refused to take the oath to it.

Q. It was not contemplated by the mass meeting, nor the cabinet, nor anybody in  power to submit the matter of ratification at all?
A. No, it was not. It was considered a revolution. It was a successful revolutionary  act.

Q. And, therefore, was not submitted to a popular vote for ratification?
A. Yes, sir. It had mischievous effects in encouraging the Wilcox revolution of 1889, which was unsuccessful. I think it was a bad precedent, only the exigencies of the occasion seemed to demand it.

The 1887 Bayonet Constitution was never a constitution to begin with, but merely the act of an insurgency in the commission of the crime of high treason. The 1864 Constitution was never annulled and remained the Constitution of the country. To treat the 1887 Bayonet Constitution as if it were a Constitution of the country is to violate the Hawaiian Rule of Law, even if it was done through ignorance. But to move beyond ignorance is to dangerously move along the lines of the insurgency.

King Kalakaua and Queen Lili‘uokalani were not a part of any insurgency, but were Heads of State that had to deal with the insurgency that was both political and criminal. Both Lili‘uokalani_3Monarchs were not “above” the Constitution of the country, but were “under” it. This was acknowledged by the Queen in her diplomatic protest to the United States President on January 17, 1893. The protest stated, “I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom.”

Everyone in the Hawaiian Islands is subject to the laws of the Hawaiian Kingdom, whether Hawaiian subjects or aliens. §6 of the Hawaiian Civil Code, provides:

“The laws are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others. The property of all such persons, while such property is within the territorial jurisdiction of this kingdom, is also subject to the laws.”

Hawaiian Constitutionalism

Kam IIIOn June 7, 1839, Kamehameha III proclaimed an expanded uniform code of laws preceded by a “Declaration of Rights” that formally acknowledged and vowed to protect the natural rights of life, limb, and liberty for both chiefs and people. The code provided that “no chief has any authority over any man, any farther than it is given him by specific enactment, and no tax can be levied, other than that which is specified in the printed law, and no chief can act as a judge in a case where he is personally interested, and no man can be dispossessed of land which he has put under cultivation except for crimes specified in the law.”

1840 Constitution

On October 8, 1840, Kamehameha III approved the first constitution incorporating the Declaration of Rights as its preamble.

The purpose of a written constitution was “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, in relation to the rights of persons on the one hand, and on the other…in relation to certain other political entities which are incorporated in the system.” The first constitution did not provide for separation of powers (e.g. executive, legislative and judicial). The King’s duty was to execute the laws of the land, serve as chief judge of the Supreme Court, and sit as a member of the House of Nobles that would enact laws together with representatives chosen from the people. The first constitution was not a limitation of power, but a sharing of power. Kamehameha III declared and established the equality of all his subjects before the law and voluntarily divested himself of his power as an absolute Ruler. According to the Hawaiian Supreme Court, in Rex v. Booth, 3 Hawai‘i 616, 630 (1863):

“King Kamehameha III originally possessed, in his own person, all the attributes of absolute sovereignty. Of his own free will he granted the Constitution of 1840, as a boon to his country and people, establishing his Government upon a declared plan or system, having reference not only to the permanency of his Throne and Dynasty, but to the Government of his country according to fixed laws and civilized usage, in lieu of what may be styled the feudal, but chaotic and uncertain system, which previously prevailed.”

In 1845, Kamehameha III refocused his attention on domestic affairs, and the organization and maintenance of the newly established constitutional monarchy. On October 29th, he commissioned Robert Wyllie of Scotland to be Minister of Foreign Affairs; G.P. Judd, a former missionary, as Minister of Finance; William Richards as Minister of Education; and John Ricord, as Attorney General. All were granted Hawaiian citizenship prior to their appointments. These appointments sparked controversy and renewed concerns of foreign takeover. Responding to a slew of appeals to remove these foreign advisors for native chiefs, Kamehameha III wrote the following letter that speaks to the tenor of the time and circumstances the kingdom faced:

“Kind greetings to you with kindly greetings to the old men and women of my ancestors’ time. 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,” and to unite with them what is good under these new conditions in which we live. That is why I have appointed foreign officials, not out of contempt for the ancient wisdom of the land, but because my native helpers do not yet understand the laws of the great countries who are working with us. That is why I have dismissed them. 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. I earnestly desire to give places to the commoners and to the chiefs, as they are able to do the work connected with the office. The people who have learned the new ways I have retained. Here is the name of one of them, G.L. Kapeau, Secretary of the Treasury. He understands the work very well, and I wish there were more such men. Among the chiefs Leleiohoku, Paki, and John Young [Keoniana] are capable of filling such places and they already have government offices, one of them over foreign officials. And as soon as the young chiefs are sufficiently trained I hope to give them the places. But they are not now able to become speakers in foreign tongues. I have therefore refused the letters of appeal to dismiss the foreign advisors, for those who speak only the Hawaiian tongue.”

John Ricord arrived in the Hawaiian Islands from Oregon on February 27, 1844 and was later appointed Attorney General on March 9th. He was an attorney by trade and well versed in both the civil law of continental Europe and the common law of both Britain and the United States. The kingdom was only in its fourth year of constitutional governance and the shortcomings of the first constitution began to show. One of Ricord’s first tasks was to establish a diplomatic code for Kamehameha III and the Royal Court, which was based on the principles of the 1815 Vienna Conference. His second and more important task was to draft a code to re-organize the executive and judicial departments for submission to the Legislature for approval.

In a report to the Legislature, Ricord concluded that, “there is an almost total deficiency of laws, suited to the Hawaiian Islands as a recognized nation in reciprocity with others so mighty, so enlightened and so well organized as Great Britain, France, the United States of America, and Belgium.” Ricord observed that, “the Constitution had not been carried into full effect [and] its provisions needed assorting and arranging into appropriate families, and prescribed machinery to render them effective.”

The underlying issue was which system of law should serve as a model: France and Belgium’s governments based on a Civil or Roman law tradition; or Great Britain and the United States’ tradition of Common law. Ricord explained:

“The laws of Rome, that government from which all other governments of Europe, Western Asia and Africa descended, could not be used for Hawai‘i, nor could those of England, France or any other country. The Hawaiian people must have laws adapted to their mode of living. But it is right to study the laws of other peoples, and fitting that those who conduct law 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.

Complying with a legislative resolution, Ricord’s draft code was based on a hybrid of both civil and common law. Because the Hawaiian Islands were at the international crossroads of trade and commerce across the Pacific Ocean, merchants from many countries had influenced the evolution of Hawaiian law. Governmental organization leaned toward the principles of English and American common law, infused with some civil law, but at the very core was distinctively Hawaiian.

1852 Constitution

In 1851, the Legislature passed a resolution calling for the appointment of three commissioners to propose amendments to the first Constitution of 1840. One was to be chosen by the King, one by the Nobles, and one by the Representatives. Elected Representative William Little Lee headed the commission and followed the structure and organization of the 1780 Massachusetts Constitution, the most advanced of any constitution at that time. It was organized into four parts: a preamble; a declaration of rights; a framework of government describing the legislative, executive and judicial branches; and an amendment article. The revised Hawaiian 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, which became known as the 1852 Constitution.

The amended constitution was similar in structure to the Massachusetts Constitution, but with a different order: a declaration of rights; a framework of government that described the functions of the executive subdivided into five sections, the legislative and judicial powers; and an article describing the mode of amending the constitution.

The theory of a constitutional monarchy states the “three powers of a modern [constitutional monarchy] have distinct functions, but are not completely separate. As part of an interdependent whole, each power is defined not only by its own particular function, but also by the other powers which limit and interact with it.” The revised constitution retained remnants of centralized rule, giving the Crown the authority to alter the constitution or even cede the kingdom to a foreign state without legislative approval. These provisions would allow the King to act swiftly if circumstances demanded. In particular, these provisions of the 1852 constitution included:

“Article 39. The King, by and with the approval of His Cabinet and Privy Council, in case of invasion or rebellion, can, place the whole Kingdom, or any part of it under martial law; and he can ever alienate it, if indispensable to free it from the insult and oppression of any foreign power.

Article 45. All important business for the Kingdom which the King chooses to transact in person, he may do, but not without the approbation of the Kuhina Nui. The King and Kuhina Nui shall have a negative on each other’s public acts.”

On December 15, 1854, Kamehameha III died and was succeeded by his adopted son and heir apparent, Alexander Liholiho, who would after be called Kamehameha IV. On November 30th 1863, Kamehameha IV died unexpectedly, and left the Kingdom without a successor. On the same day, the Premier, Victoria Kamamalu, in Privy Council, proclaimed Lot Kapuaiwa to be the successor to the throne in accordance with Article 25 of the Constitution of 1852, and the Nobles confirmed him. Lot Kapuaiwa was thereafter called Kamehameha V. Article 47, of the Constitution of 1852, 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, and shall have and exercise all the powers, which by this Constitution are vested in the King.”

Victoria_KamamaluVictoria Kamamalu provided continuity for the office of the Crown pending the appointment and confirmation of Lot Kapuaiwa. Upon his ascension, 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, namely articles 45 and 94.

Kamehameha V knew that he had a choice not to take the oath, and that his refusal to take the oath was constitutionally authorized by article 94 of Kamehameha Vthe Constitution, which provided that the “King, after approving this Constitution, shall take the following oath.” Since he did not approve the Constitution, he was not required to take the oath. Kamehameha V felt the constitutional provisions should be changed since they were a source of great difficulty for his late brother Kamehameha IV, and would continue to be problematic for him and the Legislative Assembly. If he did take the oath, he would have bound himself to the constitution whereby any change or amendment to the constitution was vested solely with the Legislative Assembly. By not taking the oath, he reserved for himself the responsibility of change, which ironically was authorized by the very constitution he sought to amend.

1864 Constitution

Kamehameha V and his predecessor recognized articles 45 and 94 as a hindrance to responsible government, and therefore he convened the first Constitutional Convention to draft a new constitution on July 7, 1864. Between July 7 and August 8, 1864, each article in the proposed constitution was read and discussed until the Convention arrived at article 62. The King and Nobles wanted to insert property qualifications for representatives and voters, but the elected delegates refused. After days of debate over article 62, the Convention was deadlocked. As a result, Kamehameha V, in an act of irony, dissolved the convention and exercised his sovereign prerogative under article 45, and he annulled the 1852 constitution and proclaimed a new constitution on August 20, 1864. In other words, Kamehameha V utilized the very provision of absolutism in the 1852 Constitution (Article 45) he sought to remove by a Constitutional Convention, in order to promulgate the 1864 Constitution that the Constitutional Convention could not remove.

In his speech at the opening of the Legislative Assembly of 1864, Kamehameha V explained his action by making specific reference to the “forty-fifth article [that] 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.” The constitution was not new, but rather the same draft that was before the convention with the exception of the property qualifications for Representatives and voters as embodied in Articles 61 and 62.

Article 61: No person shall be eligible for a Representative of the People, who is insane or an idiot; nor unless he be a male subject of the Kingdom, who shall have arrived at the full age of Twenty-One years—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, the last of which shall be the year immediately preceding his election; and who shall own Real Estate, within the Kingdom, of a clear value, over and above all incumbrances, of at least Five Hundred Dollars; or who shall have an annual income of at least Two Hundred and Fifty Dollars; derived from any property, or some lawful employment.

Article 62: “Every male subject of the Kingdom, who shall have paid his taxes, who shall have attained the age of twenty years, and shall have been domiciled in the Kingdom for one year immediately preceding the election; and shall be possessed of Real Property in this Kingdom, to the value over and above all incumbrances of One Hundred and Fifty Dollars or a Lease-hold property on which the rent is Twenty-five Dollars per year—or of an income of not less than Seventy-five Dollars per year, derived from any property or some lawful employment, and shall know how to read and write, if born since the year 1840, and shall have caused his name to be entered on the list of voters of his District as may be provided by law, shall be entitled to one vote for the Representative or Representatives of that District. Provided, however, that no insane or idiotic person, nor any person who shall have been convicted of any infamous crime within this Kingdom, unless he shall have been pardoned by the King, and by the terms of such pardon have been restored to all the rights of a subject, shall be allowed to vote.”

The office of Premier was also eliminated under the new constitution, which also provided that no act of the Crown was valid unless countersigned by a responsible Minister from the Cabinet, who answered to the Legislative Assembly and could be removed by a vote of a lack of confidence or impeachment proceedings.

The function of the Privy Council was greatly reduced, and a Regency replaced the function of Premier if the King died, leaving a minor heir, who would “administer the Government in the name of the King, and exercise all the powers which are Constitutionally vested in the King.” The Crown was bound to take the oath of office upon ascension to the throne, and the Legislative Assembly had the sole authority to amend or alter the constitution. The Legislative Assembly was now a unicameral body comprised of appointed Nobles and Representatives elected by the people. The constitution also provided that the “Supreme Power of the Kingdom in its exercise, is divided into the Executive, Legislative, and Judicial; these shall always be preserved distinct.” Thus, the separation of powers doctrine was fully enshrined in Hawaiian constitutional governance.

The 1864 Legislative Assembly appointed a special committee comprised of Godfrey Rhodes, John I‘i, and J.W.H. Kauwahi to respond to Kamehameha V’s opening speech of the new legislature. 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 [1852] Constitution, Your Majesty has now parted with, both for Yourself and Successors, and this Assembly thoroughly recognizes the sound judgment by which Your Majesty was actuated in the abandonment of a privilege, which, at some future time might have been productive of untold evil to the nation.”

The Crown was not only authorized by law to do what had been done, but the action of Kamehameha V further limited his own authority under the former constitution. He was the last Monarch to exercise absolutism. No other Monarch could unilaterally change or amend the constitution as Kamehameha V did because the provision of Article 45 was no longer in the 1864 Constitution, and the only way to change or amend the constitution was according to Article 80 which vests that right in the Legislative Assembly together with the Monarch.

In compliance with Article 80, a resolution to amend the constitution was introduced into the Legislative Assembly in the year 1873 when the legislature was called into special session to elect King Lunalilo. When the Legislative Assembly was re-called into special session the following year in 1874 to elect King Kalakaua, the Legislative Assembly also repealed the property qualifications embodied in articles 61 and 62 of the 1864 constitution, but maintained the literacy qualification.