Secretary of State Gresham’s Report to President Cleveland Regarding the Illegal Overthrow of the Hawaiian Kingdom Government on January 17, 1893

To ensure clarity as to what actually happened on January 17, 1893, below is the report by Secretary of State Walter Gresham to President Grover Cleveland dated October 18, 1893. The report stems from the periodic reports to the Secretary of State from James Blount as Special Commissioner. From April 1, 1893, when he began the investigation, to his final report dated July 17, 1893. Gresham’s report led to President Cleveland’s message to the Congress on December 18, 1893, concluding that the “military demonstration on the soil of Honolulu was of itself an act of war,” and that “the provisional government owes its existence to an armed invasion by the United States.”

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DEPARTMENT OF STATE
Washington, October 18, 1893

THE PRESIDENT:

The full and impartial reports submitted by the Hon. James H. Blount, your special commissioner to the Hawaiian Islands, established the following facts:

Queen Liliuokalani announced her intention on Saturday, January 14, 1893, to proclaim a new constitution, but the opposition of her ministers and others induced her to speedily changer her purpose and make a public announcement of that fact.

At a meeting in Honolulu, late on the afternoon of that day, a so-called committee of public safety, consisting of thirteen men, being all or nearly all who were present, was appointed “to consider the situation and devise ways and means for the maintenance of the public peace and the protection of life and property,” and at a meeting of this committee on the 15th, or the forenoon of the 16th of January, it was resolved amongst other things that a provisional government be created “to exist until terms of union with the United States of America have been negotiated and agreed upon.” At a mass meeting which assembled at 2 p.m. on the last-named day, the Queen and her supporters were condemned and denounced, and the committee was continued and all its acts approved.

Later the same afternoon the committee addressed a letter to John L. Stevens, the American minister at Honolulu, stating that the lives and property of the people were in peril and appealing to him and the United States forces at his command for assistance. This communication concluded “we are unable to protect ourselves without aid, and therefore hope for the protection of the United States forces.” On receipt of this letter Mr. Stevens requested Capt. Wiltse, commander of the U.S.S. Boston, to land a force “for the protection of the United States legation, United States consulate, and to secure the safety of American life and property.” The well armed troops, accompanied by two gatling guns, were promptly landed and marched through the quiet streets of Honolulu to a public hall, previously secured by Mr. Stevens for their accommodation. This hall was just across the street from the Government building, and in plain view of the Queen’s palace. The reason for thus locating the military will presently appear. The governor of the Island immediately addressed to Mr. Stevens a communication protesting against the act as an unwarranted invasion of Hawaiian soil and reminding him that the proper authorities had never denied permission to the naval forces of the United States to land for drill or any other proper purpose.

About the same time the Queen’s minister of foreign affairs sent a note to Mr. Stevens asking why the troops had been landed and informing him that the proper authorities were able and willing to afford full protection to the American legation and all American interests in Honolulu. Only evasive replies were sent to these communications.

While there were no manifestations of excitement or alarm in the city, and the people were ignorant of the contemplated movement, the committee entered the Government building, after first ascertaining that it was unguarded, and read a proclamation declaring that the existing Government was overthrown and a Provisional Government established in its place, “to exist until terms of union with the United States of America have been negotiated and agreed upon.” No audience was present when the proclamation was read, but during the reading 40 or 50 men, some of them indifferently armed, entered the room. The executive and advisory councils mentioned in the proclamation at once addressed a communication to Mr. Stevens, informing him that the monarchy had been abrogated and a provisional government established. This communication concluded:

Such Provisional Government has been proclaimed, is now in possession of the Governmental departmental buildings, the archives, and the treasury, and is in control of the city. We hereby request that you will, on behalf of the United States, recognize it as the existing de facto Government of the Hawaiian Islands and afford to it the moral support of your Government, and, if necessary, the support of American troops to assist in preserving the public peace.

On receipt of this communication, Mr. Stevens immediately recognized the new Government, and, in a letter addressed to Sanford B. Dole, its President, informed him that he had done so. Mr. Dole replied:

GOVERNMENT BUILDING
Honolulu, January 17, 1893

SIR: I acknowledge receipt of your valued communication of this day, recognizing the Hawaiian Provisional Government, and express deep appreciation of the same.

We have conferred with the ministers of the late Government, and have made demand upon the marshal to surrender the station house. We are not actually yet in possession of the station house, but as night is approaching and our forces may be insufficient to maintain order, we request the immediate support of the United States forces, and would request that the commander of the United States forces take command of our military forces, so that they may act together for the protection of the city.

Respectfully, yours,

SANFORD B. DOLE
Chairman Executive Council.

His Excellency JOHN L. STEVENS,
United States Minister Resident.

Note of Mr. Stevens at the end of the above communication.

The above request not complied with.

STEVENS.

The station house was occupied by a well-armed force, under the command of a resolute capable, officer. The same afternoon the Queen, her ministers, representatives of the Provisional Government, and others held a conference at the palace. Refusing to recognize the new authority or surrender to it, she was informed that the Provisional Government had the support of the American minister, and, if necessary, would be maintained by the military force of the United States present; that any demonstration on her part would precipitate a conflict with that force; that she could not, with hope of success, engage in war with the United States, and that resistance would result in a useless sacrifice of life. Mr. Damon, one of the chief leaders of the movement, and afterwards vice-president of the Provisional Government, informed the Queen that she could surrender under protest and her case would be considered later at Washington. Believing that, under the circumstances, submission was a duty, and that her case would be fairly considered by the President of the United States, the Queen finally yielded and sent to the Provisional Government the paper, which reads:

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.

That I yield to the superior force of the United States of America, whose minister plenipotentiary, his excellency John L. Stevens, has caused United States troops to be lauded at Honolulu and declared that he would support the Provisional Government.

Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representative and reinstate me and the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

When this paper was prepared at the conclusion of the conference, and signed by the Queen and her ministers, a number of persons, including one or more representatives of the Provisional Government, who were still present and understood its contents, by their silence, at least, acquiesced in its statements, and, when it was carried to President Dole, he indorsed upon it, “Received from the hands of the late cabinet this 17th day of January, 1893,” without challenging the truth of any of its assertions. Indeed, it was not claimed on the 17th day of January, or for some time thereafter, by any of the designated officers of the Provisional Government or any annexationist that the Queen surrendered otherwise than as stated in her protest.

In his dispatch to Mr. Foster of January 18, describing the so-called revolution, Mr. Stevens says:

The committee of public safety forthwith took possession of the Government building, archives, and treasury, and installed the Provisional Government at the head of the respective departments. This being an accomplished fact, I promptly recognized the Provisional Government as the de facto government of the Hawaiian Islands.

In Secretary Foster’s communication of February 15 to the President, laying before him the treaty of annexation, with the view to obtaining the advice and consent of the Senate thereto, he says:

At the time the Provisional Government took possession of the Government building no troops or officers of the United States were present or took any part whatever in the proceedings. No public recognition was accorded to the Provisional Government by the United States minister until after the Queen’s abdication, and when they were in effective possession of the Government building, the archives, the treasury, the barracks, the police station, and all the potential machinery of the Government.

Similar language is found in an official letter addressed to Secretary Foster on February 3 by the special commissioners sent to Washington by the Provisional Government to negotiate a treaty of annexation.

These statements are utterly at variance with the evidence, documentary and oral, contained in Mr. Blount’s reports. They are contradicted by declarations and letters of President Dole and other annexationists and by Mr. Stevens’s own verbal admissions to Mr. Blount. The Provisional Government was recognized when it had little other than a paper existence, and when the legitimate government was in full possession and control of the palace, the barracks, and the police station. Mr. Stevens’s well-known hostility and the threatening presence of the force landed from the Boston was all that could then have excited serious apprehension in the minds of the Queen, her officers, and loyal supporters.

It is fair to say that Secretary Foster’s statements were based upon information which he had received from Mr. Stevens and the special commissioners, but I am unable to see that they were deceived. The troops were landed, not to protect American life and property, but to aid in overthrowing the existing government. Their very presence implied coercive measures against it.

In a statement given to Mr. Blount, by Admiral Skerrett, the ranking naval officer at Honolulu, he says:

If the troops were landed simply to protect American citizens and interests, they were badly stationed in Arion Hall, but if the intention was to aid the Provisional Government they were wisely stationed.

This hall was so situated that the troops in it easily commanded the Government building, and the proclamation was read under the protection of American guns. At an early stage of the movement, if not at the beginning, Mr. Stevens promised the annexationists that as soon as they obtained possession of the Government building and there read a proclamation of the character above referred to, ho would at once recognize them as a de facto government, and support them by landing a force from our war ship then in the harbor, and he kept that promise. This assurance was the inspiration of the movement, and without it the annexationists would not have exposed themselves to the consequences of failure. They relied upon no military force of their own, for they had none worthy of the name. The Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.

The earnest appeals to the American minister for military protection by the officers of that Government, after it had been recognized, show the utter absurdity of the claim that it was established by a successful revolution of the people of the Islands. Those appeals were a confession by the men who made them of their weakness and timidity. Courageous men, conscious of their strength and the justice of their cause, do not thus act. It is not now claimed that a majority of the people, having the right to vote under the constitution of 1887, ever favored the existing authority or annexation to this or any other country. They earnestly desire that the government of their choice shall be restored and its independence respected.

Mr. Blount states that while at Honolulu he did not meet a single annexationist who expressed willingness to submit the question to a vote of the people, nor did he talk with one on that subject who did not insist that if the Islands were annexed suffrage should be so restricted as to give complete control to foreigners or whites. Representative annexationists have repeatedly made similar statements to the undersigned.

The Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign, and the Provisional Government was created “to exist until terms of union with the United States of America have been negotiated and agreed upon.”   A careful consideration of the facts will, I think, convince you that the treaty which was withdrawn from the Senate for further consideration should not be resubmitted for its action thereon.

Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government?   Anything short of that will not, I respectfully submit, satisfy the demands of justice.

Can the United States consistently insist that other nations shall respect the independence of Hawaii while not respecting it themselves? Our Government was the first to recognize the independence of the Islands and it should be the last to acquire sovereignty over them by force and fraud.

Respectfully submitted.
W.Q. GRESHAM.

Americans are Protected Persons in the Hawaiian Kingdom

Originally posted on August 31, 2018. According to the International Committee of the Red Cross, “The Geneva Conventions and their Additional Protocols form the core of international humanitarian law, which regulates the conduct of armed conflict and seeks to limit its effects. They protect people not taking part in hostilities and those who are no longer doing so.” Coverage of the Geneva Conventions also apply to occupied territories where there is no actual fighting. Amnesty International defines war crimes as “crimes that violate the laws or customs of war defined by the Geneva and Hague Conventions.”

Internationally, “protected persons” is a legal term under international humanitarian law that refers to specific protections afforded to civilians in occupied territory whose rights are protected under the 1949 Geneva Convention, IV, and its Additional Protocol. According to Article 4 of the Geneva Convention:

“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”

Under this definition, civilians who possess the nationality of the occupying State while they reside in the territory of the occupied State are not protected under the Geneva Convention. Article 147 of the Geneva Convention provides a list of grave breaches, called war crimes, which would apply to protected persons as defined under Article 4.

“Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a [occupying] Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

The relevant grave breaches and explanations that would apply to the American occupation of the Hawaiian Kingdom can be found in paragraphs 190 through 205 of the Emergency Petition for Writ of Mandamus filed in federal court in Washington, D.C. If you are a protected person whose situation would fall under one of the explanatory paragraphs in the mandamus, a grave breach or war crime may have been committed against you.

Fifty years later, however, this definition of a protected persons was expanded to include the citizenry of the occupying State. This was an evolution of international criminal law ushered in by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The case was the prosecution and conviction of Duško Tadić who was a Bosnian Serb. After being arrested in Germany in 1994, he faced among other counts, twelve counts of grave breaches of the 1949 Geneva Convention, IV. On May 7, 1997, he was convicted by the trial court on 11 counts but did not include the counts of grave breaches of the Geneva Convention.

In paragraph 608 of its judgment, the trial court found that Tadic was not guilty of 11 counts of grave breaches because the civilian victims possessed the same Yugoslavian citizenship as Tadic who represented the occupying Power in the war. The prosecutors appealed this decision and it was not only reversed by the Appeal Chamber of the ICTY, but it also expanded the definition of protected persons in occupied territory under international humanitarian law.

In its judgment in 1999, the Appeals Chamber concluded:

“[The] primary purpose [of Article 4] is to ensure the safeguards afforded by the [Geneva] Convention to those civilians who do not enjoy the diplomatic protection, and correlatively are not subject to the allegiance and control, of the State in whose hands they may find themselves. In granting its protection, Article 4 intends to look to the substance of relations, not their legal characterisation as such. … Hence, even if in the circumstances of the case the perpetrators and the victim were to be regarded as possessing the same nationality, Article 4 [Geneva Convention] would still be applicable.” Tadic, ICTY Appeals Chamber, Judgment (1999), para. 168 and 169.

This is an important evolution in international criminal law and has a profound impact on the occupation of the Hawaiian Kingdom. Up until 1999, protected persons in the Hawaiian Islands excluded American citizens. But since 1999, the Tadic case has expanded protection to citizens of the occupying State who reside in the territory of an occupied State. The operative word is no longer nationality or citizenship, but rather allegiance that would apply to all persons in an occupied State. This is not to be confused with an oath of allegiance, but rather the law of allegiance that applies over everyone whether they signed an oath or not. Hawaiian law only requires an oath of allegiance for government employees.

Under Hawaiian Kingdom law there is specific wording that covers allegiance. It is found in the Hawaiian Penal Code under sections 2 and 3 of  Chapter VI for the crime of treason.

“Allegiance is the obedience and fidelity due to the kingdom from those under its protection. … An alien, whether his native country be at war or at peace with this kingdom, owes allegiance to this kingdom during his residence therein, and during such residence, is capable of committing treason against this kingdom.”

By expanding the scope and application of protected persons to American citizens residing in the Hawaiian Kingdom, they, along with all other nationalities of foreign States as well as Hawaiian subjects, are afforded equal protection under the Geneva Convention and can be considered victims of grave breaches or war crimes committed against them by American citizens in violation of the Hague and Geneva Conventions.

Backstory of the Hawaiian Kingdom v. Biden Federal Lawsuit

Yesterday, Federal District Judge Leslie Kobayashi signed an Order officially ending the federal lawsuit Hawaiian Kingdom v. Biden. Attorney General Dexter Ka‘iama, representing the Hawaiian Kingdom by its Council of Regency, filed the notice of withdrawal on November 28, 2023, and yesterday was the Order. The federal lawsuit was initiated on May 20, 2021, and spanned for nineteen months. Here is the backstory of the federal lawsuit and its significance in obtaining evidence for the war crime of usurpation of sovereignty during military occupation.

The objective for the filing of the lawsuit was to seek an order from the court to compel the United States, the State of Hawai‘i and the Counties to comply with international humanitarian law by administering the laws of the Hawaiian Kingdom as an occupied State. The lawsuit also sought from the court an order to halt the imposition of American municipal laws because it is the war crime of usurpation of sovereignty during military occupation, which is the unlawful imposition of legislative and administrative measures of the occupying State.

But before the federal court could rule on the complaint, the Hawaiian Kingdom requested the court to transform from an Article III Court into an Article II Occupation Court, since the court is operating within the territory of the Hawaiian Kingdom and not within the territory of the United States. Article III Courts are federal courts that operate within the territory of the United States by judicial authority under Article III of the U.S. Constitution, whereas Article II Occupation Courts are federal courts that are established under the executive authority President under Article II of the U.S. Constitution in territories that are occupied by the United States military.  According to Professor Bederman, there are twelve instances in the history of the United States where Article II Occupation Courts were established during the Mexican War, the Civil War, the Spanish-American War, and the Second World War.

An amicus brief or friend of the court brief was filed by the International Association of Democratic Lawyers, the National Lawyer Guild, and the Water Protector Legal Collective on October 6, 2021, to help explain to the court why it was obligated to transform into an Article II Occupation Court. The Court pondered on this issue for five months.

Then on March 3, 2022, District Judge Kobayashi issued an Order granting the dismissal of Sweden’s Honorary Consul Anders Nervell from the lawsuit. In the Order, and without providing any evidence that the Hawaiian Kingdom no longer exists under international law, she stated that she will not transform into an Article II Occupation Court. Instead, Judge Kobayashi justified her decision on prior court decisions that provided no evidence of the Hawaiian Kingdom’s demise under the rules of international law. American court decisions, like American laws and administrative measures, constitute the war crime of usurpation of sovereignty during military occupation. In other words, Judge Kobayashi knowingly committed the war crime.

The Hawaiian Kingdom attempted to address the error of Judge Kobayashi but to no avail. She laid the path for the court and the defendants to commit the war crime of usurpation of sovereignty during military occupation and deprivation of fair and regular trial. The Hawaiian Kingdom would then use the proceedings to get evidence that the defendants and the court knowingly imposed American legislative and administrative measures. The elements for the war crime of usurpation of sovereignty during military occupation are:

1. The perpetrator(s) imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.

2. The perpetrator(s) was aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights.

3. Their conduct took place in the context of and was associated with a military occupation

4. The perpetrators were aware of factual circumstance that established the existence of the military occupation.

The third and fourth elements refer to the mens rea or the criminal intent requirement. With respect to these last two elements:

1. There is no requirement for a legal evaluation by the perpetrator as to the existence of the military occupation.

2. In that context there is no requirement for awareness by the perpetrator of the facts that established the character of existence of the military occupation.

3. There is only a requirement for the awareness of the factual circumstances that established the existence of a military occupation.

Later that month, on March 22, 2022, H.E. Dr. David Keanu Sai, as Minister of Foreign Affairs ad interim, delivered an oral statement to the United Nations Human Rights Council (HRC) bringing attention of the war crime of usurpation of sovereignty before the 47 countries that are member States of the HRC, which included the United States. Here is the message:

None of the 47 member States of the HRC protested, or objected to the oral statement of war crimes being committed in the Hawaiian Kingdom by the United States. This is important because under international law, according to Professor Antunes, acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” In other words, silence means agreement.

This oral statement would have the effect of shifting accountability from the U.S. courts to the Royal Commission of Inquiry (RCI). The RCI’s mandate is “to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”

The RCI will focus on senior leadership of the United States, the State of Hawai‘i and the Counties. In mid-November of 2022, the RCI published its first war criminal reports of the senior leadership that were also named defendants in Hawaiian Kingdom v. Biden. The evidence of these perpetrators’ mens rea was by their own admissions in pleadings filed with the federal court.

There is no requirement for a “legal evaluation” or agreement that Hawai‘i is under a military occupation but rather only the awareness of the “factual circumstance that established the existence of the military occupation.” The amended complaint and the Hawaiian Kingdom’s own filed pleadings provided the factual circumstances of the American military occupation and neither the defendants nor the judges refuted or objected to these facts or provided any evidence that the Hawaiian Kingdom is no longer a sovereign and independent State under international law. Silence under international law means agreement.

Since the establishment of the International Criminal Court (ICC) there has been major developments in the national criminal laws of the 123 States that signed the ICC’s founding document, the Rome Statute. Article I of the Rome Statute states:

An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concerns, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

Complementary jurisdiction means that the national courts of these States are the first to deal with international crimes. This is because States, not the ICC, already have national criminal justice systems in operation and are capable of dealing with perpetrators who commit international crimes. The ICC deals only with cases under limited circumstances and has been the cause of much criticism.

Usurpation of sovereignty during military occupation has not only victimized the civilian population in the Hawaiian Islands for over a century, but it has also victimized the civilians of other countries that have visited the islands since 1898 who were unlawfully subjected to American municipal laws and administrative measures. These include State of Hawai‘i sales tax on goods purchased in the islands but also taxes placed exclusively on tourists’ accommodations collected by the State of Hawai‘i and the Counties. The collection of these taxes from tourists constitute the war crime of pillaging.

The Counties have recently added 3% surcharges to the State of Hawai‘i’s 10.25% transient accommodations tax. Added with the State of Hawai‘i’s general excise tax of 4% in addition to the 0.5% County general excise tax surcharges, civilians who are visiting the islands will be paying a total of 17.75% to the occupying power. In addition, those civilians of foreign countries doing business in the Hawaiian Islands are also subjected to paying American duties on goods that are imported to the United States destined to Hawai‘i. These duty rates are collected by the United States according to the United States Tariff Act of 1930, as amended, and the Trade Agreements Act of 1979.

Under national criminal jurisdictions, States of these tourists would have authority to arrest and prosecute under passive personality jurisdiction. The passive personality principle provides countries with jurisdiction for crimes committed against their nationals while they were abroad in the Hawaiian Islands. This type of jurisdiction has more teeth as opposed to universal jurisdiction that allows States to prosecute war criminals who committed crimes outside of the territory of the State and where the perpetrator or victim is not a national of the State. The drawback on universal jurisdiction is that it can only be triggered when the perpetrator is in the territory of the prosecuting State. Passive personality jurisdiction, on the other hand, provides for immediate action to apply for extradition arrest warrants to be issued by the prosecuting State where the perpetrators remain outside of the prosecuting State’s territory.

The RCI will focus its attention on the various national criminal jurisdictions in order to seek arrests warrants for the subjects of the RCI’s war criminal reports because war crimes cannot continue to take place in Hawai‘i with impunity. War crimes have no statute of limitations and prosecution can follow a perpetrator until his elderly years.

The Far Reach of the War Crime of Usurpation of Sovereignty Being Committed in the Hawaiian Islands Since 1898

Usurpation of sovereignty during military occupation was listed as a war crime in a 1919 report by the Commission on Responsibilities of the Paris Peace Conference that was established by the Allied and Associated Powers at war with Germany and its allies in the First World War. The Commission was especially concerned with acts perpetrated in occupied territories against non-combatants and civilians.

Usurpation of sovereignty during military occupation is the imposition of the laws and administrative measures of the Occupying State over the territory of the Occupied State. Usurpation, according to Black’s Law dictionary, is “The unlawful encroachment or assumption of the use of property, power or authority which belongs to another.”

The Commission did not indicate the source of this crime in treaty law but it would appear to be Article 43 of the 1907 Hague Regulations, which states, “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Article 43 is the codification of customary international law that existed on January 17, 1893, when the United States unlawfully overthrew the government of the Hawaiian Kingdom and began its prolonged belligerent occupation.

In the annex of its 1919 report, the Commission charged that in Poland the German and Austrian forces had “prevented the populations from organising themselves to maintain order and public security” and that they had “[a]ided the Bolshevist hordes that invaded the territories.” It said that in Romania the German authorities had instituted German civil courts to try disputes between subjects of the Central Powers or between a subject of these powers and a Romanian, a neutral, or subjects of Germany’s enemies. In Serbia, the Bulgarian authorities had “[p]roclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian.” It listed several other war crimes committed by Bulgaria in occupied Serbia: “Serbian law, courts and administration ousted;” “Taxes collected under Bulgarian fiscal regime;” “Serbian currency suppressed;” “Public property removed or destroyed, including books, archives and MSS (e.g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub);” “Prohibited sending Serbian Red Cross to occupied Serbia.” It also charged that in Serbia the German and Austrian authorities had committed several war crimes: “The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial organisation, etc.;” “Museums belonging to the State (e.g., Belgrade, Detchani) were emptied and the contents taken to Vienna.”

The crime of usurpation of sovereignty during military occupation was referred to by Judge Blair of the American Military Commission in a separate opinion in the Justice Case, holding that “This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.” Australia, Netherlands and China enacted laws making usurpation of sovereignty during military occupation a war crime. In the case of Australia, the Parliament enacted the Australian War Crimes Act in 1945 that included the war crime of usurpation of sovereignty during military occupation.

The war crime of usurpation of sovereignty during military occupation has not been included in more recent codifications of war crimes, casting some doubt on its status as a crime under customary international law. And there do not appear to have been any prosecutions for that crime by international criminal tribunals of late. However, the war crime of usurpation of sovereignty during military occupation is a war crime under “particular” customary international law. According to the International Law Commission, “A rule of particular customary international law, whether regional, local or other, is a rule of customary international law that applies only among a limited number of States.” In the 1919 report of the Commission, the United States, as a member of the commission, did not contest the listing of the war crime of usurpation of sovereignty during military occupation, but rather only disagreed, inter alia, with the Commission’s position on the means of prosecuting heads of state for the listed war crimes by conduct of omission.

The Hawaiian Kingdom Royal Commission Inquiry views usurpation of sovereignty during military occupation as a war crime under “particular” customary international law and binding upon the Allied and Associated Powers of the First World War—United States of America, Great Britain, France, Italy and Japan, principal Allied Powers and Associated Powers that include Belgium, Bolivia, Brazil, China, Cuba, Ecuador, Greece, Guatemala, Haiti, Honduras, Liberia, Nicaragua, Panama, Peru, Poland, Portugal, Romania, Thailand, Czech Republic, formerly known as Czechoslovakia, and Uruguay. Great Britain, as an empire at the time, included Canada, Australia, New Zealand, and South Africa who also fought in the First World War. Therefore, as an international crime under particular customary international law, these countries are obligated to prosecute this war crime in their courts.

In the Hawaiian situation, usurpation of sovereignty during military occupation serves as a source for the commission of other war crimes within the territory of the Hawaiian Kingdom, which includes the war crimes of compulsory enlistment, denationalization, pillage, destruction of property, deprivation of fair and regular trial, deporting civilians of the occupied territory, and transferring populations into an occupied territory. The reasoning for the prohibition of imposing extraterritorial prescriptions or measures of the occupying State is addressed by Professor Eyal Benvenisti:

The occupant may not surpass its limits under international law through extra­territorial prescriptions emanating from its national institutions: the legislature, government, and courts. The reason for this rule is, of course, the functional symmetry, with respect to the occupied territory, among the various lawmak­ing authorities of the occupying state. Without this symmetry, Article 43 could become meaningless as a constraint upon the occupant, since the occupation administration would then choose to operate through extraterritorial prescription of its national institutions.

Usurpation of sovereignty during military occupation came before the Permanent Court of Arbitration (“PCA”) in 1999. In Larsen v. Hawaiian Kingdom, the Permanent Court of Arbitration convened an arbitral tribunal to resolve a dispute where Larsen, the claimant, alleged that the Government of the Hawaiian Kingdom, by its Council of Regency, the respondent, was liable “for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.” The PCA accepted the case as a dispute between a “State” and a “private party” and acknowledged the Hawaiian Kingdom to be a non-Contracting State in accordance with Article 47 of the 1907 Hague Convention. The PCA annual reports of 2000 through 2011 specifically states that the Larsen v. Hawaiian Kingdom proceedings were done “Pursuant to article 47 of the 1907 Convention.” According to Bederman and Hilbert of the American Journal of International Law:

At the center of the PCA proceeding was the argument that … the Hawaiian Kingdom continues to exist and that the Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ “unlawful imposition [over him] of [its] municipal laws” through its political subdivision, the State of Hawai‘i [and its County of Hawai‘i].

In the situation of Hawai‘i, the usurpation of sovereignty during military occupation would appear to have been total since the beginning of the twentieth century. This is an ongoing crime where the criminal act would consist of the imposition of legislation or administrative measures by the occupying power that goes beyond what is required necessary for military purposes of the occupation. Since 1898, when the United States Congress enacted an American municipal law purporting to have annexed the Hawaiian Islands, it began to impose its legislation and administrative measures to the present in violation of the laws of occupation.

Given that this is essentially a crime involving government action or policy or the action or policies of an occupying State’s proxies such as the State of Hawai‘i and its Counties, a perpetrator who participated in the act would be required to do so intentionally and with knowledge that the act went beyond what was required for military purposes or the protection of fundamental human rights.

Usurpation of sovereignty has not only victimized the civilian population in the Hawaiian Islands for over a century, but it has also victimized the civilians of other countries that have visited the islands since 1898 who were unlawfully subjected to American municipal laws and administrative measures. These include State of Hawai‘i sales tax on goods purchased in the islands but also taxes placed exclusively on tourists’ accommodations collected by the State of Hawai‘i and the Counties.

The Counties have recently added 3% surcharges to the State of Hawai‘i’s 10.25% transient accommodations tax. Added with the State of Hawai‘i’s general excise tax of 4% in addition to the 0.5% County general excise tax surcharges, civilians who are visiting the islands will be paying a total of 17.75% to the occupying power. In addition, those civilians of foreign countries doing business in the Hawaiian Islands are also subjected to paying American duties on goods that are imported to the United States destined to Hawai‘i. These duty rates are collected by the United States according to the United States Tariff Act of 1930, as amended, and the Trade Agreements Act of 1979.

The far reach of the victims of war crimes committed in the Hawaiian Islands includes civilians throughout the world in various countries.

At the United Nations World Summit in 2005, the Responsibility to Protect was unanimously adopted. The principle of the Responsibility to Protect has three pillars: (1) every State has the Responsibility to Protect its populations from four mass atrocity crimes—genocide, war crimes, crimes against humanity and ethnic cleansing; (2) the wider international community has the responsibility to encourage and assist individual States in meeting that responsibility; and (3) if a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter. In 2009, the General Assembly reaffirmed the three pillars of State’s Responsibility to Protect their populations from war crimes and crimes against humanity under resolution A/63/308, and in 2021, the UN General Assembly passed resolution A/75/277 on “The responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.”

Rule 158 of the International Committee of the Red Cross Study on Customary International Humanitarian Law specifies that “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” This “rule that States must investigate war crimes and prosecute the suspects is set forth in numerous military manuals, with respect to grave breaches, but also more broadly with respect to war crimes in general.”

Determined to hold to account individuals who have committed war crimes and human rights violations throughout the territorial jurisdiction of the Hawaiian Kingdom, the Council of Regency, by Proclamation on April 17, 2019, established a Royal Commission of Inquiry in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.”

In mid-November of 2022, the Royal Commission of Inquiry published War Criminal Reports no. 22-0002, 22-0002-1, 22-0003, 22-0003-1, 22-0004, 22-0004-1, 22-0005, 22-0005-1, 22-0007, and 22-0007-1 that provides the evidence that U.S. President Joseph Biden, Jr., Vice-President Kamala Harris, Admiral John Aquilino, IRS Commissioner Charles Rettig, Senator Charles Schumer, Representative Nancy Pelosi, State of Hawai‘i Governor David Ige, Commissioner Ty Nohara, Tax Director Isaac Choy, Hawai‘i County Mayor Mitchell Roth, Hawai‘i County Council Chairwoman Maile David, Maui County Mayor Michael Victorino, Maui County Council Chairwoman Alice Lee, County of Kaua‘i Mayor Derek Kawakami, and Kaua‘i County Council Chair Arryl Kaneshiro have committed the war crime of usurpation of sovereignty during military occupation. Accomplices to this war crime include: U.S. Attorneys Brian Boynton, Anthony Coppolino, and Michael Gerardi; State of Hawai‘i Attorneys Holly T. Shikada and Amanda J. Weston; County of Hawai‘i Attorneys Elizabeth Strance, Mark Disher and Dakota Frenz; County of Maui Attorneys Moana Lutey, Caleb Rowe and Iwalani Mountcastle; and County of Kaua‘i Attorneys Matthew Bracken and Mark Bradbury.

The reports have documented the necessary evidence that satisfies the elements of the war crime of usurpation of sovereignty during military occupation: (1) the perpetrators imposed imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation, which is the actus reus or the criminal act; (2) the perpetrators were aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights, which is the mens rea or the guilty mind; (3) their conduct took place in the context of and was associated with a military occupation; and (4) the perpetrators were aware of factual circumstances that established the existence of the military occupation.

With regard to the last two elements listed for the war crime of usurpation of sovereignty during military occupation: (1) there is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international; (2) in that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international; and (3) there is only a requirement for the awareness of the factual circumstance that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with.”

According to Professor Dietrich Schindler, “the existence of an [international] armed conflict within the meaning of Article 2 common to the Geneva Conventions can always be assumed when parts of the armed forces of two States clash with each other. … Any kind of use of arms between two States brings the Conventions into effect.” Dr. Stuart Casey-Maslen, author of The War Report 2012, further concludes that an international armed conflict “also exists whenever one state uses any form of armed force against another state, irrespective of whether the latter state fights back.”

The Hawaiian Kingdom has been in an international armed conflict with the United States since January 16, 1893, when U.S. troops invaded the city of Honolulu. The Hawaiian Kingdom has been under military occupation since January 17, 1893, when Queen Lili‘uokalani conditionally surrendered to the United States forces. For a comprehensive legal narrative and analysis of this international armed conflict download the Royal Commission of Inquiry’s ebook The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom (2020).

The 123 countries who are States Parties to the Rome Statute of the International Criminal Court have primary responsibility to prosecute war criminals under complementary and universal jurisdiction. This type of jurisdiction gives State Parties the first responsibility before the International Criminal Court can initiate proceedings and authority to prosecute individuals for international crimes to include the war crime of usurpation of sovereignty during military occupation without regard to the place the war crime was committed or the nationality of the perpetrator. With the exception of the United States, China, Cuba, Haiti, Nicaragua, and Thailand, the Allied Powers and Associated Powers of the First World War are State Parties to the Rome Statute.

In this situation where the citizenry of these countries have become victims of the war crime of usurpation of sovereignty during military occupation, they can seek extradition warrants in their national courts in order for their governments to prosecute these war criminals under the passive personality principle. The passive personality principle provides countries with jurisdiction for crimes committed against their nationals while they were abroad in the Hawaiian Islands. This has the potential of opening the floodgate to lawsuits from all over the world.

The commission of the war crime of usurpation of sovereignty during military occupation can stop when the United States, the State of Hawai‘i and the Counties begin to comply with Article 43 of the 1907 Hague Regulations and administer the laws of the Occupied State—the Hawaiian Kingdom.

National Holiday – Independence Day (November 28)

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

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George Simpson
Haalilio

The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William Richards

Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Daniel Webster

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Aberdeen

Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C Calhoun

This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”

The Day of Reckoning Has Finally Arrived for the Insurgency of 1893

Determined to hold to account individuals that have committed war crimes and human rights violations throughout the territorial jurisdiction of the Hawaiian Kingdom under this prolonged occupation by the United States, the Council of Regency, by Proclamation on April 17, 2019, established a Royal Commission of Inquiry (“Royal Commission”) in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.”

In accordance with Hawaiian administrative precedence in addressing crises, the Royal Commission was established by “virtue of the prerogative of the Crown provisionally vested in [the Council of Regency] in accordance with Article 33 of the 1864 Constitution, and to ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.” His Excellency, Dr. David Keanu Sai, Ph.D., was designated as Head of the Royal Commission, and Dr. Federico Lenzerini, Ph.D., as Deputy Head. Pursuant to Article 3 – Composition of the Royal Commission, the Head of the Royal Commission has been authorized to seek “recognized experts in various fields.”

The Royal Commission has acquired legal opinions from the following experts in international law: on the subject of the continuity of the Hawaiian Kingdom under international law, Professor Matthew Craven from the University of London, SOAS, School of Law; on the subject of the elements of war crimes committed in the Hawaiian Kingdom since 1893, Professor William Schabas, Middlesex University London, School of Law; and on the subject of human rights violations in the Hawaiian Kingdom and the right of self-determination by the Hawaiian citizenry, Professor Federico Lenzerini, University of Siena, Italy, Department of Political and International Studies. These experts, to include the Head of the Royal Commission, are the authors of chapters 1, 2, 3, 4, and 5 of Part II of the Royal Commission’s eBook – The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

According to Article 1(2), “The purpose of the Royal Commission shall be to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”

Article 1(3) provides, “The results of the investigation will be presented to the Council of Regency, the Contracting Powers of the 1907 Hague Convention, IV, respecting the Laws and Customs of War on Land, the Contracting Powers of the 1949 Geneva Convention, IV, relative to the Protection of Civilian Persons in Time of War, the Contracting Powers of the 2002 Rome Statute, the United Nations, the International Committee of the Red Cross, and the National Lawyers Guild in the form of a report.”

In Restatement (Third) of Foreign Relations Law of the United States, it recognizes that when “determining whether a rule has become international law, substantial weight is accorded to…the writing of scholars.” According to Black’s Law, 6th ed., United States courts have acknowledged that the “various Restatements have been a formidable force in shaping the disciplines of the law covered [and] they represent the fruit of the labor of the best legal minds in the diverse fields of law covered.” The Restatement drew from Article 38(1)(d) of the Statute of the International Court of Justice, which provides that “the teachings of the most highly qualified publicists of the various nations [are] subsidiary means for the determination of rules of [international law].” These “writings include treatises and other writings of authors of standing.” Professors Craven, Schabas, and Lenzerini are “authors of standing” and their legal opinions are “sources” of the rules of international law.

The Royal Commission would first provide Preliminary Reports on various subjects relative to its mandate, followed by periodic Reports of its investigation of war crimes that meet the constituent elements of mens rea and actus reus, and human rights violations.

Criminal Report no. 22-0001

The day of reckoning has finally arrived through Hawaiian law for those individuals who have been found “guilty” of the crime of treason. After three years of preliminary reports, the Royal Commission has just published its first Criminal Report no. 22-0001 regarding the insurgency of 1893 and attainder of treason.

For over a century, members of the Provisional Government and its successor the Republic of Hawai‘i were not held accountable for their treasonous actions on January 17, 1893, in the unlawful overthrow of the government of the Hawaiian Kingdom under the protection of U.S. troops that invaded Honolulu the day before. Although war crimes and human rights violations did not exist at the time under international law, the high crime of treason did under Hawaiian Kingdom law.

Some of the insurgents came to be known as the Big Five, a collection of five large businesses, that wielded considerable political and economic power after 1893 to benefit themselves. The Big Five were Castle & Cooke, Alexander & Baldwin, C. Brewer & Co., American Factors (now Amfac), and Theo H. Davies & Co. In a May 3, 1940 report on the Hawaiian Islands by Elwyn J. Eagen to the Congressional Special House Committee on the National Labor Relations Act, he stated:

Virtually every business of any importance is owned or controlled by the so-called “Big-Five.” These companies have interlocking directorships. This method of obtaining joint action extends not only to the companies named but also to various subsidiary corporations. Most of the land in the Islands is owned or controlled by the same group which manage the affairs of the “Big Five.” There are no independent banks on the Islands. All of the banks are controlled by virtually the same people who are interested in the “Big-Five.” By controlling loans, the officers of the “Big Five” are able to keep semi-independent business men from engaging in activities hostile to their interests. They are also able to know the financial condition of all the inhabitants of the Islands. Persons who do not comply with the wishes of the “Big Five” are refused loans or extension and are forced out of business.

In the Statute Laws of 1846, section 7, it was enacted: “[l]and so patented [that is purchased from the Government] shall never revert to the king of these islands, nor escheat to this government, for any other cause than attainder of high treason, as defined in the criminal code (emphasis added).” Among the prerogatives of the king that affect lands is “[t]o punish for high treason by forfeiture, if so the law decrees.” The King’s superior right to forfeiture was transferred to the government when the Hawaiian Kingdom became a constitutional monarchy. Under the treason statute, which has no degrees, the Penal Code states:

  1. Treason is hereby defined to be any plotting or attempt to dethrone or destroy the King, or the levying of war against the King’s government, or the adhering to the enemies thereof, giving them aid and comfort, the same being done by a person owing allegiance to this kingdom.
  2. Allegiance is the obedience and fidelity due to the kingdom from those under its protection.
  3. An alien, whether his native country be at war or at peace with this kingdom, owes allegiance to this kingdom during his residence therein, and during such residence, is capable of committing treason against this kingdom.
  4. Ambassadors and other ministers of foreign states, and their alien secretaries, servants and members of their families, do not owe allegiance to this kingdom, though resident therein, and are not capable of committing treason against this kingdom.
  5. To constitute the levying of war, contemplated in the first section of this chapter, it shall be requisite that the persons concerned therein be parties to some overt act, in or towards procuring, preparing or using force, or putting themselves in a condition in readiness to use force, either by being present at such overt act, or by promoting, aiding in, or being otherwise accessory before the fact to the same.
  6. In order to constitute the levying of war, the force must be employed or intended to be employed for the dethroning or destruction of the King or in contravention of the laws, or in opposition to the authority of the King’s government, with an intent or for an object affecting some of the branches or departments of said government general, or affecting the enactment, repeal or enforcement of laws in general, or of some general law; or affecting the people, or the public tranquility generally; in distinction from some special intent or object, affecting individuals other than the King, or a particular district.
  7. An accessory before the fact to treason is guilty of treason, and shall be subject to prosecution, trial and punishment therefor, though the principals more directly concerned have not been convicted, or are not amendable to justice.
  8. No person shall be convicted of treason but by the testimony of two or more lawful witnesses to the same overt act of treason whereof he stands charged, unless he shall in open court, confess such treason.
  9. Whoever shall commit the crime of treason, shall suffer the punishment of death; and all his property shall be confiscated to the government.
  10. If any person who shall have knowledge of the commission of treason against this kingdom, shall conceal the same, and shall not, as soon as may be, disclose and make known such treason to the Governor of the island on which he resides, he is guilty of a great crime, and shall be punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor not exceeding ten years, in the discretion of the court.

By specific reference to the term attainder, the Hawaiian legislature adopted the English common law on high treason. In The King v. Agnee et al., the Hawaiian Supreme Court stated, “[w]e do not recognize as conclusive the common law nor the authorities of the courts of England or of the United States, any farther than the principles which they support may have become incorporated in our system of laws, and recognized by the adjudication of the Supreme Court.” In Agnee, the Court cited English common law commentators on criminal law such as Chitty and Bishop as well as English criminal cases.

Under English common law, attainder of high treason is a metaphor that has the effect of the corruption of blood resulting from the commission of high treason along with reversion of property by escheat, both real and personal, to the king or government. Attainder is under “common law, that extinction of civil rights and capacities which took place whenever a person who had committed treason or felony received sentence of death for his crime. The effect of ‘attainder’ upon such felon was, in general terms, that all his estate, real and personal, was forfeited. At the common law, attainder resulted in three ways, viz: by confession, by verdict, and by process or outlawry (emphasis added).”

By “process,” attainder resulted by an act of Parliament called a bill of attainder, which Edward Coke critiqued as a process that lacked provable evidence but acknowledged that the Parliament did have the authority to attaint for high treason. When Henry VIII ascended to the throne in 1509, “attainder by parliament was an established means of dealing with special offenders, particularly those who posed a threat to the security of the king and his realm.” John Hatsell’s Precedents of Proceedings in the House of Commons that was published in 1781 explains:

Although it is true, that this measure of passing Bills of Attainder…has been used as an engine of power…it is not therefore just to conclude, that no instances can occur, in which it ought to be put in practice. Cases have arisen…and may again arise, where the public safety, which is the first object of all government, has called for this extraordinary interference; and, in such instances, where can the exercise of an extraordinary power be vested with more security, than in the three branches of the legislature [Monarch, House of Lords, House of Commons]? It should, however, always be remembered, that this deviation from the more ordinary forms of proceeding by indictment or impeachment, ought never to be adopted, but in cases of absolute necessity; and in those instances only, where, from the magnitude of the crime, or the imminent danger to the state, it would be a greater public mischief to suffer the offence to pass unpunished, than even to over-step the common boundaries of law; and…by an exemplary through extraordinary proceeding, to mark with infamy and disgrace, perhaps to punish with death, even the highest and most power offenders.

In Coke’s commentary on the 1352 Statute of Treasons in the Third Institute, he explains that the term “attaint” in the statute “necessarily implieth that he be proceeded with, and attainted according to the due course, and proceedings of law, and not by absolute power.” The suspect, according to Coke, had to be attainted with direct proof of evidence and not attainted with the probability of evidence. He explains, “This doth also strengthen the former exposition of the word (provablement,) that it must be provably, by an open act, which must be manifestly proved.”

According to William Blackstone, “ANOTHER immediate consequence of attainder is the corruption of blood, both upwards and downwards; so that an attainted person can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king’s superior right of forfeiture: and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a remoter ancestor.” 

Section 8 of the Hawaiian treason statute addresses the first two ways where attainder results by conviction by trial or confession without trial. The third way is by “process” or “outlawry.” The latter was a process during the medieval period in England for the county court or by writ declared a fugitive on the run for the commission of treason an “outlaw.” The former could be done by a bill of attainder or law of attainder enacted by the English Parliament and signed into law by the Monarch.  While the United States constitutionally prohibits bills of attainder, where “[n]o bill of attainder or ex post facto Law shall be passed,” and Great Britain abolished practically all the law of forfeiture and escheat for treason and felony in 1870, the Hawaiian Kingdom has no such prohibition, which would allow bills of attainder to be enacted by the Legislative Assembly, but no such bill has ever been enacted.

While bills of attainder were a product of domestic law of a State and not the courts, they could also result as a consequence of a “process” of international law by virtue of a treaty between the governments of two States where the negotiations and agreement included, inter alia, the subject of high treason as defined by a State’s domestic law. This was precisely the case of the Agreement of Restoration entered into between Queen Lili‘uokalani and President Grover Cleveland on 18 December 1893.

Of the three modes of attainting a person or persons of the high crime of treason under English common law, the insurgents were attainted by “process” as evidenced in President Cleveland’s six-month investigation from 1 April to 18 October 1893, and acknowledged by Queen Lili‘uokalani in the Agreement of Restoration of 18 December 1893. The condition of the Agreement of Restoration for the Queen, after being restored to the throne, “to grant full amnesty as to life and property to all those persons who have been or who are now in the Provisional Government, or who have been instrumental in the overthrow of your government,” presupposes that these persons were guilty of committing the high crime of treason, and, therefore, were attainted. According to Black’s Law Dictionary, amnesty is a “sovereign act of forgiveness for past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of…treason. … Included in the concept of pardon is ‘amnesty,’ which is similar in all respects to a full pardon, insofar as when it is granted both the crime and punishment are abrogated; however, unlike pardons, an amnesty usually refers to a class of individuals irrespective of individual situations (emphasis added).” The Queen, however, was not restored and, therefore, amnesty was not granted to those found guilty of treason by a “process.”

As a person who is attainted by a conviction of treason by a court of law whereby escheat occurs at the moment of the commission of the crime so that all intervening dealings with the property are avoided, escheat for a person attainted by a “process,” like a bill of attainder or the Agreement of Restoration, occurs at the moment of the commission of the crime as well. Section 9 of the treason statute states, “[w]hoever shall commit the crime of treason, shall suffer the punishment of death; and all his property shall be confiscated to the government.” The term “property” in the statute includes both real and personal.

According to Thomas Tomlins, in the Law-Dictionary explaining the Rise, Progress, and Present State of the British Law, vol. 1 (1835), as “to Corruption of Blood, this operates upwards and downwards, so that an attainted person can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king’s superior right of forfeiture; and the person attainted shall also obstruct all descents to his posterity, wherever they are obliged to derive a title through him to a remoter ancestor.” Therefore, all persons who were guilty of the crime of high treason, their real property escheated to the Hawaiian government, and their ownership to personal property vested in the Hawaiian government at the moment they committed the crime of treason since 17 January 1893 and suffers the pains and penalties from the effects of the doctrine of the corruption of blood thereafter.

One of the Big Five is Alexander & Baldwin, Ltd. The history of Alexander and Baldwin goes back to 1869 when Samuel T. Alexander and Henry P. Baldwin entered into a partnership called the Haiku Sugar Company on Maui. The Hawaiian Commercial & Sugar Company, formerly owned by Claus Spreckels, was later acquired by Alexander & Baldwin, as well as Kihei Plantation.

While Alexander left the islands in 1883 because of bad health and settled in Oakland, California, he continued his business relation with Baldwin in the Hawaiian Kingdom. In 1894, the partners formed a new firm in San Francisco under the name of Alexander & Baldwin, for the purpose of conducting a general commercial business and handling their plantation interests in the United States. A branch was established in Honolulu in 1897 where the main office was located. The firm was incorporated as Alexander & Baldwin, Ltd., in 1900 with Baldwin as its president.

At the time of the overthrow of the government of the Hawaiian Kingdom, Baldwin was living on the island of Kaua‘i and was an active member of the Annexation Club. In a letter to U.S. Special Commissioner James Blount dated April 25, 1893, Baldwin stated, “I have acquired considerable property and represent plantations that have this year an output of about 23,000 tons of sugar.”

On May 30, 1894, Baldwin participated in the Republic of Hawai‘i’s constitutional convention. Because Baldwin was found guilty of treason by “process,” he was attainted on May 30, 1894 when he committed the high crime and all his property, both real and personal escheated and reverted to the government of the Hawaiian Kingdom. Despite the government of the Hawaiian Kingdom was not restored until 1997 by a Council of Regency, the office of the government of the Hawaiian Kingdom was vested with Baldwin’s property as a consequence of a breach of Hawaiian law. And under the doctrine of corruption of blood, the family of Baldwin was prevented from any lawful inheritance through or from Baldwin because he was stained with treason.

For a list of all persons found guilty of the high crime of treason download the Royal Commission’s Criminal Report no. 22-0001.