Many of those individuals who claim to be an heir to the Hawaiian throne base their claims on the English common law regarding heirship to the throne. Under English common law, the Crown is inherited by the monarch’s children or if no children by a collateral line. The inheritance is by the eldest male child called an heir apparent, or if there be no male child then the eldest female child called an heir presumptive.
While an heir apparent cannot be replaced, an heir presumptive can be if the monarch has a male child before their death. An example of an heir presumptive was Queen Elizabeth II. She was the only daughter of King George VI. George VI had no male children. Elizabeth became Queen on February 6, 1952. And an example of an heir apparent is the Queen’s eldest son, Charles III, who became King Charles after his mother’s passing on September 8, 2022.
Heirship to the throne is not only regulated by the English common law, but also by the British Parliament. According to the British Royal Household website, the “succession to the throne is regulated not only through descent, but also by Parliamentary statute.” The two Parliamentary statutes referred to are the 1689 Bill of Rights and the 1701 Act of Settlement. The 2013 Succession to the Crown Act amended the Bill of Rights and Act of Settlement by repealing male primogeniture where a younger son can displace an elder daughter who under the previous laws was known as an heir presumptive. After 2013, an heir apparent can be either male or female but they must be the eldest.
The Hawaiian Kingdom has its own customs and laws regarding heirship to the Hawaiian throne. English common law does not apply to the Hawaiian Kingdom. Under Hawaiian custom at the turn of the nineteenth century, it was the King who would designate his successor with the consent of his Council of High Chiefs. This is how Liholiho, King Kamehameha’s son, was proclaimed by Kamehameha as his successor before his death in 1819. Liholiho was thereafter called Kamehameha II. On July 14, 1824, Kamehameha II died in London. When his body was brought back in 1825, the Council of Chiefs, with Ka‘ahumanu as Regent, proclaimed that Kamehameha II’s younger brother, Kauikeaouli, would be his successor as Kamehameha III.
After Kamehameha III proclaimed the establishment of a constitutional monarchy in 1840, the Hawaiian government would become involved in regulating who would be the heirs and an heir apparent to the Hawaiian throne. Under Hawaiian law, there was no heir presumptive. The 1840 Constitution stated, the “kingdom is permanently confirmed to Kamehameha III, and his heirs, and his heir shall be the person whom he and the chiefs shall appoint, during his life time, but should there be no appointment, then the decision shall rest with the chiefs and the house of Representatives.”
This provision was amended by article 25 of the 1852 Constitution, which stated, the “crown is hereby permanently confirmed to His Majesty Kamehameha III during his life, and to his successors. The successor shall be the person whom the King and the House of Nobles shall appoint and publicly proclaim as such, during the King’s life; but should there be no such appointment and proclamation, then the successor shall be chosen by the House of Nobles and the House of Representatives in joint ballot.”
The 1852 Constitution also provided qualifications for the House of Nobles to confirm or deny the King’s appointment. Article 26 states, “No person shall ever sit upon the throne who has been convicted of any infamous crime, or who is insane or an idiot. No person shall ever succeed to the crown, unless he be a descendant of the aboriginal stock of Aliis.” Convicted of an infamous crime is a person convicted of a felony. According to Michael Clemente, in his article A Reassessment of Common Law Protections for “Idiots,” “important characteristics of idiocy included: heightened dependence on others, ineducability, a lack of normalcy or maturity, and sometimes idiocy’s congenital origins and accompanying physical abnormalities.” He also states that unlike insanity which “was marked by intermittent ‘madness,’” idiocy was a permanent mental state. An example of a Monarch that went insane was King George III.
Kamehameha III appointed and received confirmation by the House of Nobles that his adopted son Alexander Liholiho would be his successor on April 7, 1853. He was called Kamehameha IV after Kamehameha III died on December 15, 1854.
Kamehameha IV only had one son, Prince Albert Edward Kauikeaouli Kaleiopapa a Kamehameha, but he tragically died at the age of 4 on August 27, 1862. On November 30, 1863, Kamehameha IV died without appointing a successor according to Article 25. This situation triggered Article 47, which states, “Whenever the throne shall become vacant by reason of the King’s death, or otherwise, and during the minority of any heir to the throne, the Kuhina Nui, for the time being, shall, during the vacancy or minority, 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 Kamāmalu, a sister of Kamehameha IV, was the Kuhina Nui or Prime Minister at the time of the death of her brother. Victoria Kamāmalu provided continuity for the office of the Crown pending the appointment by her and the Nobles confirming the successor to be her other brother Lot Kapuaiwa as Kamehameha V on November 30, 1863.
When the 1864 Constitution came into effect on August 20th, the position of Kuhina Nui was repealed and replaced by the Cabinet Council should a monarch die without a proclaimed successor. Article 33 states, “should a Sovereign decease…the Cabinet Council at the time of such decease shall be a Council of Regency.”
Article 22 provides, “The Crown is hereby permanently confirmed to His Majesty Kamehameha V, and to the Heirs of His body lawfully begotten, and to their lawful Descendants in a direct line; failing whom, the Crown shall descend to Her Royal Highness the Princess Victoria Kamamalu Kaahumanu, and the heirs of her body, lawfully begotten, and their lawful descendants in a direct line. The Succession shall be to the senior male child, and to the heirs of his body; failing a male child, the succession shall be to the senior female child, and to the heirs of her body. In case there is no heir as above provided, then the successor shall be the person whom the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim as such during the King’s life; but should there be no such appointment and proclamation, and the Throne should become vacant, then the Cabinet Council [as a Council of Regency], immediately after the occurring of such vacancy, shall cause a meeting of the Legislative Assembly, who shall elect by ballot some native Alii of the Kingdom as Successor to the Throne; and the Successor so elected shall become a new Stirps for a Royal Family; and the succession from the Sovereign thus elected, shall be regulated by the same law as the present Royal Family of Hawaii.”
The 1864 Constitution provided an additional regulation regarding heirs to the throne. Article 23 provides, it “shall not be lawful for any member of the Royal Family of Hawaii who may by Law succeed to the Throne, to contract Marriage without the consent of the Reigning Sovereign. Every Marriage so contracted shall be void, and the person so contracting a Marriage, may, by the Proclamation of the Reigning Sovereign, be declared to have forfeited His or Her right to the Throne, and after such Proclamation, the Right of Succession shall vest in the next Heir as though such offender were Dead.”
Kamehameha V had no children, which required him to “appoint with the consent of the Nobles” as his successor to the throne. On December 11, 1872, Kamehameha V died without a proclaimed successor according to Article 22. His death triggered Article 22 and 33, where his Cabinet Council, comprised of the Minister of the Interior, the Minister of Finance, the Minister of Foreign Affairs, and the Attorney General, would become a Council of Regency and whose duty was to immediately convene the Legislative Assembly to elect by ballot a new Royal Stirps.
On January 8, 1873, William Charles Lunalilo, was the first elected King in the kingdom. He was thereafter called King Lunalilo. He was not of the Kamehameha Dynasty thereby creating a new stirp. Just over a year, on February 3, 1874, King Lunalilo died without appointing a successor to the throne. His Cabinet Council became a Council of Regency, and they convened the Legislative Assembly in a special session and David Kalākaua was elected to be King on February 12, 1874. He came to be known as King Kalākaua. Two days later, on February 14th, he appointed his younger brother, William Pitt Leleiōhoku, to be his successor in accordance with Article 22, which was confirmed by the Nobles. Three years later, on April 10, 1877, Leleiōhoku passed away. The next day, King Kalākaua appointed his sister Princess Lili‘uokalani as the heir apparent to the throne in accordance with Article 22, which the Nobles consented.
King Kalākaua was not of the Lunalilo or Kamehameha Dynasty. His dynasty was comprised of the King, his brother Prince William Pitt Leleiohoku, his sister Princess Lili‘uokalani, his sister Princess Miriam Likelike, and his niece Princess Victoria Kaʻiulani, daughter of Princess Likelike. In 1883, King Kalākaua extended his dynasty by proclaiming the inclusion of Princess Virginia Kapoʻoloku Poʻomaikelani, Princess Victoria Kinoiki Kekaulike, and her sons Prince David Kawananakoa, Prince Edward Abnel Keli‘iahonui, and Prince Jonah Kūhiō Kalaniana‘ole. Princess Po‘omaikelani and Princess Kekaulike were the younger sisters of Queen Kapi‘olani, the wife of King Kalākaua. Prince Edward died September 25, 1887, at the age of eighteen.
King Kalākaua’s last will and testament, dated May 21, 1888, was filed for probate in the Hawaiian Supreme Court on March 5, 1891, and proved on the following day. The first six articles addressed the succession of the throne.
KALAKAUA, by the grace of God and the will of the Legislative Assembly of the Hawaiian Islands, King, being of sound and disposing mind and memory and well knowing the uncertainties of human life, do hereby make, publish and declare this to be Our last Will and Testament, in manner following that is to say:
First—In conformity with Our appointment and public proclamation made on the 12th day of April A. D. 1877, and in accordance with the 22d Article of the Constitution promulgated by Us on the 7th day of July A. D. 1877, that Our beloved Sister, Her Royal Highness Princess Liliuokalani, be Our successor to the Throne of Hawaii, it is Our will that she ascend the Throne immediately upon Our decease in case We die without heirs of Our body lawfully begotten.
Second—It is Our wish that Our beloved Sister and successor the Princess Liliuokalani, failing heirs of her body upon succeeding to the Throne of Hawaii, appoint and publicly proclaim as her successor Our beloved Niece, Her Royal Highness the Princess Victoria Kawekiu Kaiulani Keahilapalapa Kekauluohi.
Third—It is further Our wish that the Throne of Hawaii shall descend to Our beloved Niece, Her Royal Highness the Princess Victoria Kawekiu Kaiulani, the daughter and heir of Her Royal Highness Princess Likelike, and to the heirs of her body in succession, it being Our wish and desire that the sovereignship of the Kingdom of Hawaii be perpetuated in the family of which We are the head.
Fourth—In the event that the Throne of Hawaii shall descend to Our beloved Niece, Her Royal Highness the Princess Victoria Kawekiu Kaiulani, as in the last article provided, while she has not attained the age of majority, We ordain that Her Majesty Our Beloved Queen Consort Kapiolani, if then surviving, shall be Regent to conduct the Government until the Princess shall have attained the age of majority.
Fifth—In case, however, the royal line as hereinbefore indicated in articles one, two and three shall be about to become extinct, and Her Majesty Our beloved Queen Kapiolani shall then survive, it is Our wish that the Sovereign last reigning of Our immediate family, as before indicated, shall appoint and proclaim Her Majesty Queen Kapiolani to be the next successor to the Throne of Hawaii.
Sixth—It is our wish to provide that when the last one of Our immediate family shall come to the Throne, there being no issue of his or her body to succeed in order, and Her Majesty Queen Kapiolani not being alive when such event shall occur, the Throne of Hawaii shall descend to Our beloved Sister, Her Royal Highness Princess Poomaikelani, and after her, failing heirs of her body, the Throne of Hawaii shall descend to the sons of Our cousin as follows: First to His Royal Highness Prince David Kawananakoa and to the heirs of his body, and failing heirs then to His Royal Highness Prince Cupid Kalanianaole and the heirs of his body; each to assume the name and title of Kalakaua, and to be numbered in order from Us as the first of this name, and in that case to assume the number that shall next follow in numerical order.
On January 29, 1891, Princess Lili‘uokalani, heir apparent, succeeded to the throne upon the death of King Kalākaua who died on January 20, 1891, in San Francisco, California. Between January 20th and the 29th, Princess Lili‘uokalani, along with Kalākaua’s Cabinet, were serving as a Regency serving in the absence of the King who was in the United States.
Although the Hawaiian Kingdom was invaded by U.S. Marines on January 16, 1893, and illegally overthrew the monarchy, the Hawaiian Kingdom as a State continued to exist as a subject of international law, which included its legal order as a constitutional monarchy, despite the American occupation that is now at 133 years. Therefore, under Hawaiian Kingdom law, the Kalākaua Dynasty continued to exist until the death of Queen Lili‘uokalani on November 11, 1917.
The following heirs to the throne died before the death of Queen Lili‘uokalani: Princess Ka‘iulani, first in line, died March 6, 1899; Queen Kapi‘olani, second in line, died June 24, 1899; Princess Po‘omaikelani, third in line, died October 2, 1895.
Both Prince David Kawānanakoa and Prince Kūhiō Kalaniana‘ole were married after the U.S. invasion and unlawful overthrow of the government in 1893. Prince Kūhiō married Elizabeth Kahanu Kaʻauwai on October 8, 1896, and Prince David married Abigail Cambell on January 6, 1902.
According to article 23 of the 1864 Constitution, as amended, these marriages are unlawful unless they received the “consent of the Reigning Sovereign” who was still Queen Lili‘uokalani, without which “Every Marriage so contracted shall be void.” Under Hawaiian law, this consent would be evidenced by a public proclamation of the Queen. There is no evidence of any proclamation making these marriages lawful in accordance with article 23. This provision only applied to the heirs of the throne within the Kalākaua Dynasty. Although the marriages were void by virtue of this article, it did not remove Prince David and Prince Kūhiō as heirs to the throne. Article 23 requires a “Proclamation of the Reigning Sovereign,” to declare their “right to the Throne” has been forfeited, and that “the Right of Succession shall vest in the next Heir as though such offender were Dead.” There is no evidence of a proclamation by the Queen on this matter before her death in 1917. Prince David died on June 2, 1908, and Prince Kūhiō died on January 7, 1922. Therefore, the Kalākaua Dynasty came to an end at the death of Prince Kūhiō.
Prince Kūhiō had no children, but Prince David had three children, Abigail Kapiʻolani, David Kalākaua, and Lydia Liliʻokalani. Article 23 precludes these children from being heirs to the throne under the Kalākaua Dynasty because the marriage of Prince David was void. Under Hawaiian Kingdom law, there were three separate Royal Dynasties that came to an end. The Kamehameha Dynasty came to an end at the death of King Kamehameha V on December 11, 1872. The Lunalilo Dynasty came to an end at the death of King Lunalilo on February 3, 1874. And the Kalākaua Dynasty came to an at the death of Prince Kūhiō on January 7, 1922.
In 1996, remedial steps were taken to reinstate the Hawaiian Kingdom government, as it stood under its legal order, prior to the U.S. invasion and unlawful overthrow of the Hawaiian government, on January 17, 1893 (see pages 18-23 in the Royal Commission of Inquiry). In accordance with the 1864 Constitution, as amended, and the doctrine of necessity, an acting Council of Regency, comprised of Cabinet Ministers, was established to serve in the absence of the Executive Monarch. Following this process, an acting Government, comprised of officers de facto, was established as the successor to Queen Lili‘uokalani, Hawai‘i’s last Executive Monarch, which left the office vacant from the date of her death.
There was no legal requirement for the Council of Regency, as the successor in office to Queen Lili‘uokalani under Hawaiian constitutional law, to obtain recognition from the United States as the government of the Hawaiian Kingdom. The United States’ recognition of the Hawaiian Kingdom, as an independent State, on July 6, 1844, was also the recognition of the Hawaiian Kingdom government—a Constitutional Monarchy. Successors in office to King Kamehameha III, who at the time of international recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, Queen Lili‘uokalani in 1891, and the Council of Regency in 1997.
According to M.J. Peterson, in his book Recognition of Governments: Legal Doctrines and State Practice, 1815-1995, the legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather through the constitution and laws of the Hawaiian Kingdom. According to United States foreign relations law, Restatement (Third), §203, comment c, “Where a new administration succeeds to power in accordance with a state’s constitutional processes, no issue of recognition or acceptance arises; continued recognition is assumed.”
The Hawaiian Council of Regency was established in a similar fashion to the Belgian Council of Regency, which was formed, after King Leopold was captured by the Germans, during the Second World War. Just as the Belgian Council of Regency was established under Article 82 of its 1831 Constitution, as amended, in exile, so to was the Hawaiian Council of Regency formed under Article 33 of its 1864 Constitution, as amended, not in exile but in situ. As F.E. Oppenheimer explains the Belgian situation in his article Governments and Authorities in Exile:
As far as Belgium is concerned, the capture of the king did not create any serious constitutional problems. According to Article 82 of the Constitution of February 7, 18[31], as amended, the cabinet of ministers have to assume supreme executive power if the King is unable to govern. True, the ministers are bound to convene the House of Representatives and the Senate and to leave it to their decision of the united legislative chambers to provide for a regency; but in view of the belligerent occupation it is impossible for the two houses to function. While this emergency obtains, the powers of the King are vested in the Belgian Prime Minister and the other members of the cabinet.
Professor Lenzerini, who wrote a legal opinion on the authority of the Council of Regency, stated:
In light of the foregoing—particularly in consideration of the fact that, under international law, the Hawaiian Kingdom continues to exist as an independent State, although subjected to a foreign occupation, and that the Council of Regency has been established consistently with the constitutional principles of the Hawaiian Kingdom and, consequently, possesses the legitimacy of temporarily exercising the functions of the Monarch of the Kingdom-it is possible to conclude that the Regency actually has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.
In 1999, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, recognized the Hawaiian Kingdom’s continued existence as a State, under international law, and the Council of Regency as its provisional government. And in 2024, Oxford University Press (OUP) London acknowledged the Hawaiian Kingdom continues to exist as an occupied State and the Council of Regency as its provisional government when published Dr. Keanu Sai’s chapter Hawai‘i’s Sovereignty and Survival in the Age of Empire.
In all its publication OUP states, “Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide.” To maintain “excellence in research, scholarship, and education,” OUP operates by a double-blind review, where the author of the manuscript and the peer reviewers are both anonymous. The peer review process is where scholarly work is rigorously scrutinized by experts selected as reviewers, also referred to as referees, by OUP. Once it passes the peer review process OUP publishes the manuscript. If Hawai‘i was the 50th State of the American Union, and not the occupied State of the Hawaiian Kingdom, this manuscript would not have gotten passed the peer review process.
This published chapter begins with the death of Captain Cook in 1779, evolution from absolute rule to a constitutional monarchy, government reform, invasion by U.S. Marines that led to the unlawful overthrow of the government in 1893, the American occupation that followed, the restoration of the government by a Regency that serves in the absence of a monarch in 1997, and ends with the Larsen v. Hawaiian Kingdom dispute where the Permanent Court of Arbitration, in 1999, recognized the continued existence of the Hawaiian Kingdom as an occupied State and the Council of Regency as its provisional government.
