Since the first constitution was promulgated by King Kamehameha III in 1840, constitutionalism had begun in the Hawaiian Islands. For the next 24 years, Hawaiian governance would be transformed from an absolute monarchy to a limited monarchy under the separation of powers doctrine under the headings of Executive power, Legislative power and Judicial power. This cornerstone of constitutionalism was eventually enshrined in the 1864 constitution.
- ARTICLE 20. The Supreme Power of the Kingdom in its exercise, is divided into the Executive, Legislative, and Judicial; these shall always be preserved distinct, and no Judge of a Court of Record shall ever be a member of the Legislative Assembly.
- ARTICLE 31. The person of the King is inviolable and sacred. His Ministers are responsible. To the King belongs the Executive power. All laws that have passed the Legislative Assembly, shall require His Majesty’s signature in order to their validity.
- ARTICLE 45. The Legislative power of the Three Estates of this Kingdom is vested in the King, and the Legislative Assembly; which Assembly shall consist of the Nobles appointed by the King, and of the Representatives of the People, sitting together.
- ARTICLE 64. The Judicial Power of the Kingdom shall be vested in one Supreme Court, and in such Inferior Courts as the Legislature may, from time to time, establish.
In 1893, Queen Lili‘uokalani was constitutionally vested with the Executive power under Article 31, which is the power to execute laws enacted by the Legislature, which included the Civil and Criminal Codes, and to enforce judicial decisions made by the Courts. This authority, however, was interrupted when United States troops were unlawfully landed by order of the United States Minister John Stevens on January 16, 1893, in order to protect insurgents who, as part of a prearranged plan, would declare themselves to be a provisional government until annexation to the United States can be accomplished by a treaty of cession.
Over the protests by Oahu Governor Archibald Cleghorn and the Minister of Foreign Affairs Samuel Parker, the US troops were fully armed and occupied a small space between two buildings adjacent to the Government building on Mililani Street and fronting Iolani Palace, which was across King Street. If the police moved in to apprehend the insurgents for committing the capital crime of treason they would have to first deal with the US troops who were prepared for a fight. This situation quickly escalated from a domestic police matter to now an international incident that could spark a war between the Hawaiian Kingdom and the United States. Upon the sound advice of her advisors, Queen Lili‘uokalani provided the following protest.
The yielding of her power to enforce the law was limited to the the Queen’s constitutional authority enumerated under Article 31 of the Hawaiian constitution. It was not a transfer of the sovereignty of the country, and it was limited and confined to the circumstances of the invasion by US troops to aid and protect insurgents from arrest by the police force. It was made with the understanding of the Hawaiian government that the President would investigate the circumstances and restore the government.
If the United States was in complete control of Hawaiian territory as an occupying force it would, by circumstance, be vested with authority to enforce Hawaiian law under the international laws of occupation, and would not need the Queen to have temporarily assigned her power to enforce Hawaiian law to make it valid. But this was not the case. The US troops were illegally landed on January 16, 1893 and maintained a defensive position limited to a small space between two buildings called Opera House and Arion Hall that was situated on Mililani Street adjacent to the Government building. On January 31, 1893, lead insurgent Sanford Dole of the provisional government was concerned for their safety and requested US Minister Stevens for protection. Dole stated, “Believing that we are unable to satisfactory protect life and property, and to prevent civil disorders in Honolulu and throughout the Hawaiian Islands, we hereby, in obedience to the instructions of the advisory council, pray that you will raise the flag of the United States of America for the protection of the Hawaiian Islands for the time being.” The following day on February 1, 1893, US Minister Stevens directed Captain Wiltse of the USS Boston to comply with the request and take the necessary steps to establish a US protectorate.
On March 9, 1893, President Cleveland acknowledged receipt of the temporary assignment and thereafter took the necessary steps to investigate the overthrow by appointing James Blount as special commissioner on March 11, 1893. The protectorate status was terminated when US Special Commissioner Blount arrived in Honolulu on March 29, 1893 and began his investigation by direction of President Cleveland. Blount sent periodic reports to Secretary of State Walter Gresham in Washington, D.C., with his final report submitted on July 17, 1893.
The investigation was completed on October 18, 1893, where Secretary of State Gresham stated to the President, “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.” Gresham concluded in his report to the President, “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.” The President agreed and directed the new US Minister Albert Willis to negotiate with the Queen for restoration of the government, which led to the executive agreement of restoration on December 18, 1893. Because the Agreement of restoration has not been carried out since, the United States is still bound to administer Hawaiian law under the Lili‘uokalani assignment as well as the international laws of occupation.