constitution of 1840 - university of hawaiʻi

Constitution of 1840

Hawai.i.s Constitutions 1839 to 1894

by Jon M. Van Dyke William S. Richardson School of Law

University of Hawai ' i at Manoa [email protected]

Kamehameha III (Kauikeaouli) promulgated the Declaration of Rights in 1839, followed

in 1840 by the Kingdom's first Constitution (which included an amended version of the

Declarati~1) to protect the interests of all inhabitants of the Kingdom. I These documents

protected the commoners (maka'ainana) from oppression by the chiefs (Ali'i) or government

agents (Konohiki) who would be removed from their positions if they violated the Constitution. '

In its 1839 language, the Declaration of Rights said that it is not "proper to enact laws for the

protections of rulers only" or "to enact laws to enrich the chiefs only, without regard to the

enriching of their subjects also. ,,3 The Declaration also recognized property rights, stating that:

"Protection is hereby secured to the persons of all the people, together with their lands, their

building lots and all their property while they conform to the laws of the kingdom, and nothing

whatever shall be taken from any individual , except by express protection oflhe laws.'" Prince

Jonah Kuhio Kalanianaole later called the 1839 Declaration "the Hawaiian Magna Charta" and

I RALPH S. KUYKENDALL, CONSTITUTIONS OF THE HAWAIIAN KINGDOM: A BRIEF HISTORY AN D ANALYSIS, 21 PAPERS OF THE HAWAIIAN HISTORICAL SOCIETY 8 (1940).

21d. at 10.

3 1 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM 1778-1854: FOUNDATION AND TRANSFOIUvlATION 160 (1938, 7th printing 1989) (quolingfrom lexl in 2 HAWAIIAN SPECTATOR 347-48 (Ju ly 1839)).

' Id. at 160 and 271 -72.

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

explained that it was significant that it had not been "wrung from an unwilling sovereign by force

of arms," but rather was the free surrender of power "by a wise and generous ruler, impressed

and influenced by the logic of events, by the needs of his people, and by the principles of the new

civilization that was dawning on his land.,,5

The 1840 Constitution went still further, explaining in paragraph 14 of its preface that

although all the land had belonged to Kamehameha I, "it was not his own private property. It

belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had

management of the landed property." This document thus recognized the trust relationship that

existed between the Ali' i and the maka' ainana regarding the land, and the rights of the common

people to a share of the 'Aina (land). As the Hawai'i Supreme Court later explained, the 1840

Constitution "acknowledged that the people of Hawaii are the original owners of all Hawaiian

[from ch 15] The 1840 Constitution created a legislative body, consisting of a House of

Nobles with 16 high Ali'i who were specifically named in the Constitution plus a "representative

body" whose members "shall be chosen by the people, according to their wish, from Hawai' i,

Maui, O'ahu and Kaua'i." Pursuant to a law enacted in 1842, petitions were circulated and those

whose petitions had the most signatures became one of the seven members of the House of

Representatives (two from Hawai'i, Maui, and O'ahu, and one from Kaua'i).7 On July 30, 1850,

5 Prince J.K. Kalanaianaole, The Story of the Hawaiians, 21 MID-PACIFIC MAGAZINE 117, 124 (Feb. 1921).

6 State v. Zimring, 58 Hawai'i 106, 111, 566 P.2d 725, 729 (1977).

7 Laws of the Hawaiian Islands, 1842, Chapter II, Of the Representative Body.

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a law was enacted allowing male subjects of the Kingdom (native-born or naturalized) plus male

"denizens" (foreigners given rights similar to those of subjects) to vote if they were at least 20

years old, had lived for one year in the Kingdom, and were neither insane nor unpardoned

felons. 8 A companion statute increased the size of the House of Representatives from seven to

24 and gave the Cabinet Ministers seats and the right to vote in the House ofNobles.9

The 1840 Constitution also created a six -person Supreme Court, consisting of the King, the

Kuhina-nui, and four others appointed by "the representative body.,,10

The 1840 Constitution "for the first time gave the common people a share in the

government - actual political power." I I The Native Hawaiian historian Samuel Kamakau, who

was himself elected to the legislature from Maui in 1842,12 praised the new constitutional

structure, saying that it was a unique historical example of a ruler agreeing to share power

without "war and bloodshed. ,,13 Kamakau wrote that Kamehameha III had been "so beloved by

the whole people," and said that "[p ]erhaps no king born to the throne ever made a better

ruler ... ," emphasizing that "[h]e made all men free and equal" by ensuring that no laws enforced

8 1 KUYKENDALL, supra note 3, at 265-66 (citing An Act to Regulate the Election of Representatives of the People, July 30, 1850).

9 Id at 265 (citing An Act to Increase the Number of Representatives of the People in the Legislative Council, July 30, 1850).

I°Id at 167-68.

I1Id. at 167.

12 SAMUEL M. KAMAKAU, RULING CHIEFS OF HAWAII 397 (1961, revised ed.1992).

13Id. at 371.

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any class distinctions and that "[t]he tabus of the chiefs were all done away.,,14 "But his greatest

achievement was the change in the form of government to a constitutional monarchy and to a

kingdom based upon law."ls

Constitution of 1852

The Constitution of 1852, written mostly by Chief Justice William Little Lee,16 further

reduced the power of the King. Although Article 36(1) stated that n[t]he King is sovereign of all

the Chiefs and of all of the people; the Kingdom is His," this Constitution distributed the power

between the King and the people. It "differentiates more fully the legislative, executive, and

judicial functions of the government; ... provides for universal suffrage, without qualification

either for representatives or voters; and places important checks on the arbitrary powers of the

king. Thus it is to be regarded as a distinct triumph of the 'foreign' over the native influence in

the development of Hawaiian political institutions.,,17 Article 78 of the 1852 Constitution

maintained the practice of allowing all male subjects and denizens to vote. Annual elections

were held between 1851 and 1856, and thereafter elections were held every two years. IS

14 ld at 419-20.

IS ld. at 427.

16 The other drafters sere Dr. Gerritt Judd and Judge John 'ri, but "the main work was done by Lee. " SALLY ENGLE MERRY, COLONIZING HAWAII: THE CULTURAL POWER OF LA W 102 (2000).

17 WILLIAM FREMONT BLACKMAN, THE MAKING OF HA WAIl: A STUDY IN SOCIAL EVOLUTION 122 (1906).

IS Robert C. Schmitt, Voter Participation Rates in Hawaii Before 1900, 5 HAWAIIAN JOURNAL OF HISTORY 50,51 (1971) (citing CIVIL CODE OF THE HAWAIIAN ISLANDS 187 (1859)).

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Under Articles 49-50 of the 1852 Constitution, the Privy Council consisted of the King,

the members of the Cabinet, and others appointed by the King serving at his pleasure in an

advisory capacity. Under Articles 43-47, the King appointed a ranking chief to the position of

Kuhina Nui to serve as a check on the King's powers. During a King's minority or vacancy, the

Kuhina Nui was to perform the King's duties and assume all powers vested in the King by the

Constitution. After the death of Kamehameha IV (Alexander Liholiho) on November 30, 1863,

the Kuhina Nui Victoria Kamamalu acted pursuant to Article 47 (but without going through the

formalities of Article 25) to proclaim that the late King's older brother, 32-year-old Prince Lot

Kapuaiwa, should become the new King, as Kamehameha V. This procedure was viewed at the

time as controversial, but despite the failure to comply strictly with the Constitution's

requirements, the people greeted the proclamation of Prince Lot as the new King with general

enthusiasm. 19

1864 Constitution

While he was in office (1854-63), Kamehameha IV and his advisors made continuous

efforts to amend the Constitution to restore the King's position ofpower,2o but they were

relatively unsuccessful. Kamehameha V shared similar ideas concerning Hawaiian nationalism

19 According to Kuykendall it was universally recognized throughout the Kingdom that in the absence ofa direct heir of Kamehameha IV, Prince Lot Kapuaiwa was the rightful successor. 2 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM 1854-1874: TWENTY CRITICAL YEARS 124 n.33 (1953, 4th printing 1982); see also MEIRIC K. DUTTON, THE SUCCESSION OF KING KAMEHAMEHA V TO HA WAI' I's THRONE 12 (1957).

20 KUYKENDALL, CONSTITUTIONS, supra note 1, at 21. Kamehameha IV was especially concerned with reducing the powers of the Kuhina-nui, the Privy Council, and the House of Representatives, and wanted to reconsider universal suffrage. Id.

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and independence.21 He has been described as superior to his younger brother "in energy,

perseverance and strength of will ,,22 and as "the last great chief of the olden type. ,,23 When he

took office, he refused to take an oath to support the existing 1852 Constitution24 and he

impaneled a Constitutional Convention in 1864 to draft a new constitution. This body was

unable to reach agreement on the requirements for voting, however, and so it was dissolved. The

King then asked Judge George Morison Robertson (who had served as Vice-President of the

failed Convention) to work with his Attorney General Charles Coffin Harris and other members

of the Cabinet to draft a new Constitution reflecting the King's desire that lithe prerogatives of

the Crown ... be more carefully protected ... and that the influence of the Crown ... be seen

pervading every function of the government. ,,25 Robertson, Harris, and the new King all agreed

that voting should be limited to persons who had a certain amount of property and income. After

meeting together for several days, they produced a new Constitution that included a property

qualification for voting and dramatically increased the power of the King. Article 62 required

voters to own property of at least $150, or a leasehold with rent of at least $25/year, or to have an

21 2 KUYKENDALL, supra note 19, at 125.

22 Id. British Commissioner Synge is cited as the source of this description of Kamehameha V.

23Id. (citing Dr. W.D. Alexander for this description).

24 Queen Lili'uokalani later explained that the 1840 and 1852 Constitutions "were doubtless drafted under the supervision and advice of the missionaries," and "[s]o when Prince Lot came to the throne in 1863, under the title of Kamehameha V., his first official act was to refuse to take the oath to the maintain the existing constitution." LILIUOKALANI, HAWAII'S STORY BY HAWAII'S QUEEN 20 (1898, reprinted 1997).

2S 2 KUYKENDALL, supra note 19, at 127.

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annual income of$75/year, and also required voters to be able to read and write if they were born

after 1840. One had to be a "male subject of the Kingdom" to vote under this provision, which

eliminated "denizens" from eligibility.26 Because of these changes, the number of voters fell

dramatically. Under this Constitution, the 18 members of the House of Nobles and the 27

members of the House of Representatives convened together as a unicameral body to enact

legislation. The egalitarian phrase in Article I of the 1852 Constitution proclaiming that "God

hath created all men free and equal" was removed from the 1864 document?7 This document

remained in effect for 23 years until 1887 when King Kalakaua was forced to adopt the "Bayonet

Constitution. "

The 1864 Constitution had abolished the Kuhina Nui office, and so after Kamehameha V

died in 1872, an election of "all the male subjects of the kingdom,,28 was held on January 1, 1873

which William Charles Lunalilo won overwhelmingly. This decision was then confirmed by the

Legislature as required by the 1864 Constitution.29 The new King then promoted the repeal of

the property/income requirement for all elections, which occurred in 1874.30 But the wealth

requirements were reinstated in 1887, along with an onerous literacy requirement, for electors

26 See JONATHAN KAY KAMAKAWIWO'OLE OSORIO, DISMEMBERING LAHUl 125 (2002) (reporting that Lot "wanted to confine the franchise to actual subjects of the kingdom"), 134 ("Denizens ... were disenfranchised").

27 Constitution of 1852, art. 1; Constitution of 1864, art 1; Osorio, supra note 26, at 132-33.


29 ld.; Constitution of 1864, art. 22.

30 See KUYKENDALL, CONSTITUTIONS, supra note 1, at 42-43 (discussing the amendments to Articles 62 and 63 of the 1864 Constitution).

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casting votes for the House ofNobles.31

King Lunalilo died on February 3, 1874 after serving for little more than one year and

because he had not named a successor, Article 22 of the the 1864 Constitution assigned the task

to the Cabinet Council and the Legislative Assembly. After a short but bitter campaign between

the two main candidates - Queen Emma, widow of Kamehameha IV and great-grandniece of

Kamehameha I, and David Kalakaua, a descendant of high Ali' i of Hilo who had supported

Kamehameha 132 - the legislative body voted for Kalakaua 39-6.

The 1887 Constitution

The 1887 Constitution is called the "Bayonet Constitution" because it was imposed upon

King David Kalakaua at gunpoint by Westerners led by Lorrin A. Thurston, who were linked to

missionary families and sugar plantations, and it reduced the power of the Monarchy

significantly. Article 34 of the 1864 Constitution had provided that "[t]he King is Sovereign of

all the Chiefs and of all the People; the Kingdom is His," but the 1887 Constitution deleted the

words "the Kingdom is His." Article 31 of the 1864 Constitution had provided that "[t]o the

King belongs the Executive power," but this article was revised in the 1887 Constitution to read

"[t]o the King and the Cabinet belongs the Executive power." Article 41 of the 1887

Constitution authorized the King to appoint the Cabinet Ministers, but once appointed the

Ministers answered to the Legislature, because in the new Constitution a Cabinet Minister could

31 ROBERT C. SCHMITT, HISTORICAL STATISTICS OF HAWAII 594 (1977).

32 LILIKALA KAME'ELEIHIWA NATIVE LAND AND FOREIGN DESIRES: PEHEA LA E PONO AI?

313 (1992).

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be removed by the King only with approval of the Legislature. More importantly, Article 41

provided that no act of the King would have any effect unless it was countersigned by a member

of the Cabinet and Article 78 stated that every action taken by the King must be "with the advice

and consent of the Cabinet." Article 48 of the 1887 Constitution authorized the King to veto

legislation,33 but the veto could be overridden by a two-thirds vote of the Legislature. The 1887

Constitution also eliminated the status of the King as commander-in-chief and gave control of the

military to the Legislature.

The structure of the Legislature was also revised in the 1887 Constitution, which

converted the House of Nobles into an elected rather than appointed body, made the number of

Nobles equal to the number of Representatives (they met in a unicameral body), and imposed

different voting qualifications for the House of Nobles and for the House of Representatives. To

vote for the Nobles, one had to be a taxpaying male resident 20 years of age "of Hawaiian,

American or European birth or descent" who could "read and comprehend an ordinary newspaper

in either Hawaiian, English or some European language,,34 who had resided in the Kingdom for

three years or more and met the "stiff property qualification,,35 of owning at least $3,000 in

33 The language in the 1887 Constitution was somewhat ambiguous on whether the King could veto legislation without the consent of the relevant ministry, but the Hawai'i Supreme Court upheld his right to do so by a 4-1 vote, with Justice Sanford Ballard Dole dissenting. Everett v. Baker, 7 Hawai'i 229, 1888 WL 906 (1988). See JONATHAN KAy KAMAKAWIWO'OLE OSORIO, DISMEMBERING LAHUl: A HISTORY OF THE HAWAIIAN NATION TO 1887 at 241 (2002).

34 1887 Constitution, art. 62.

35 Patrick W. Hanifin, To Dwell on the Earth in Unity: Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawaii, 5 HAWAII BAR JOURNAL 15, 25 (2002).

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taxable property or having an annual income of $600/year.36 The same requirements applied to

voters for the House of Representatives, except that the property/income requirement was

eliminated.

The literacy rules - requiring the ability to read Hawaiian, English, or another European

language - had the effect of allowing immigrant-laborers from Portugal and Puerto Rico to vote,

but not those from Asia, even if they had become naturalized citizens of the Kingdom. The

property/income requirements, which were substantially higher than those utilized in the 1864

Constitution, had the effect of giving Westerners almost complete control of the House of

Nobles.37 As one commentator explained, the Bayonet Constitution, "which set up a

Government savoring of the English variety, was a clever device for securing to the [foreigners]

the control of the Kingdom. ,,38 "Considering that the annual income of the highest paid

Hawaiian free laborer was $248,,,39 fewer than half of those eligible to vote for the House of

36 1887 Constitution, art. 59. The literacy and three-year residency requirements were waived for persons residing in the Kingdom as of 1887 if they registered to vote for the first election following its promulgation.

Article 56 stated that the 24 Nobles (who previously had served for life) would have sixyear terms; to be a Noble, one had to be 25 years old, have resided in the Kingdom for three years, and be able to meet the same property requirements that applied to voters for the House of Nobles. Perhaps inadvertantly, this article did not require Nobles to be male or to be able to read.

37 WILLIAM A. RusS, THE HAWAIIAN REVOLUTION: 1893-94 at 20 (1959); 3 RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM 1874-1893: THEKALAKAUA DYNASTY 370 (1967, reprinted 1987) ("many of the native Hawaiians were excluded by the high property qualification"); LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY 29 (1961, reprinted 1983) ("The House of Nobles was thus converted from an instrument of the King to the legislative voice of the haoles.").

38 Russ, supra note 37, at 20.

39 Davianna Pomaika'i McGregor, The Cultural and Political History of Hawaiian Native People, in OUR HISTORY, OUR WAY: AN ETHNIC STUDIES ANTHOLOGY 363 (Gregory Yee Mark, Davianna Pomaika'i McGregor & Linda A. Revilla eds., 1996).

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Representatives could vote for the Nobles in Honolulu, and in the other islands only about one-

third of those who could vote for the House of Representatives could vote for the Noble

representing them.40

Citizenship or holding a letter of denization was no longer a requirement for voting. Only

eight .of the 10,216 Portuguese contract workers brought to the islands between 1878 and 1886

became naturalized citizens, but all who were adult males were allowed to vote if they signed a

document indicating that they would support the Bayonet Constitution and the laws of the

Kingdom. Professor Osorio has observed that "[t]he Bayonet Constitution allowed the whites

political control without requiring that they swear allegiance to the king. Indeed, the constitution

removed every paradox that had previously confounded haole citizens and other white residents

by making the nation belong to them without requiring that they belong to the nation.'''' 1

One of the most significant aspects of the 1887 Constitution was that it introduced a

racial requirement by limiting voting by nonnatives to those of European or American ancestry.

Aliens of Asian ancestry had no opportunities to participate in political decisionmaking, even if

they had become naturalized citizens. In 1884, 18,254 Chinese were in the Kingdom, some of

whom were qualified to vote under the 1864 Constitution by having been born or naturalized in

the Kingdom. More than 400 Chinese had become naturalized between 1850 and 1887.42 But

after the 1887 Constitution, none of those who had become citizens through naturalization could

40 For voting statistics during this period, see SCHMITT, HISTORICAL STATISTICS, supra note 31, at 597.

41 OSORIO, supra note 26, at 197.

42Id at 281 n. 8.

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continue to vote.43 In a 1892 opinion written by Justice Sanford Ballard Dole, the Hawai'i

Supreme Court upheld the "radical change" introduced by the 1887 Constitution "which

substituted the race requirement for the old condition of citizenship" and thus prohibited a

naturalized citizen of Chinese ancestry from voting.44 A male of Chinese ancestry born in the

Kingdom was deemed to be of "Hawaiian" birth under the language in the 1887 Constitution,4S

but still had to establish that he could read a newspaper in Hawaiian, English, or another

European language before he could vote. This arrangement was actively opposed by the Chinese

and Japanese in the Kingdom,46 and by the Japanese government,47 and it "gave to the haoles as a

group a greatly increased power in the government and reduced the Hawaiians to a position of

apparent and, for a while, actual inferiority in the political life of the country.,,48

The carefully-crafted language in the 1887 Constitution did allow persons of European

ancestry to vote if they could read a newspaper in any European language, a provision designed

explicitly to allow those of Portuguese ancestry to vote. Thurston and the others who wrote the

43 See Schmitt, Voter Participation Rates, supra note 18, at 56 (reporting that the 1890 census stated that persons of Chinese and Japanese ancestry accounted for 51.8% of all males of voting age, but that none were registered to vote).

44 Ahlo v. Smith, 8 Hawai'i 420, 1892 WL 1076, at *2 (1892).

4S 3 KUYKENDALL, supra note 37, at 407 n. * .

46 Id. at 406.

47 "[T]he Japanese Government now claims for its citizens equal rights with other foreigners." Statement of the Hawaiian Patriotic League, in Report ojCommissioner to the Hawaiian Islands, in 27 EXECUTIVE DOCUMENTS OF THE HOUSE OF REPRESENTATIVES FOR THE SECOND SESSION OF THE FIFTY-THIRD CONGRESS, 1893-94 at 448, 454 (1895), originally in Executive Document No. 47, 53 rd Cong., 2d Sess. (1893) (hereafter cited as BLOUNT REpORT).


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· ~

1887 Constitution deduced that the 10,000 laborers of Portuguese ancestry49 would support their

efforts, and, in fact, "[i]t was the votes of foreigners including the Portuguese, enfranchised by

the new constitution, that gave the Reform Party [which was dominated by Westerners] its

decisive victory" in the election held September 12, 1887.50 Chief Justice Albert Francis Judd

later told Commissioner James Blount that "the reason that the Portuguese were allowed to vote

was to balance the native vote.,,51

Following King Kalakaua's death in San Francisco in January 1891 at the age of 54, the

Crown passed to his sister, Lili'uokalani, pursuant to the requirements of Article 22 of the 1887

Constitution.52 Queen Lili'uokalani later described the 1887 Constitution by writing that:

without any provocation on the part of the king, having matured their plans in secret, the men of foreign birth rose one day en masse, called a public meeting, and forced the king, without any appeal to the suffrages of the people, to sign a constitution of their own preparation, a document which deprived the sovereign of all power, made him a mere tool in their hands, and practically took away the franchise from the Hawaiian race. ,,53

Lili'uokalani characterized the Cabinet, under the 1887 Constitution, as "the absolute monarch of

the kingdom of the Hawaiian Islands. ,,54 Professor Osorio has explained that the 1887

49 By 1884, 10,000 Portuguese were in the islands. OSORIO, supra note 26, at 281 n.9 (citing ROBERT C. SCHMITT, DEMOGRAPHIC STATISTICS OF HAWAII 25 (1977)).

50 3 KUYKENDALL, supra note 37, at 410 (citing DAILY BULLETIN, Sept. 16, 1887 (letter of "One Who Voted Straight Reform")).

51 Letter from Commissioner James Blount to U.S. Secretary of State W.C. Gresham (June 1, 1893), in BLOUNT REpORT, supra note 47, at 110, 113.

52 See 3 KUYKENDALL, supra note 37, at 470-78.

53 LILIUOKALANI, supra note 24, at 180-81.

54Id. at 191.

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Constitution "meant the abrupt and nearly total termination of any executive power or royal

authority.,,55 The San Francisco Chronicle characterized the government established under the

Bayonet Constitution as "a military oligarchy that is more domineering than Kalakaua ever was"

and added that "freedom of the press of Honolulu is a myth under the refoll}1 party.,,56 This

Bayonet Constitution, "which set up a Government savoring of the English variety, was a clever

device for securing to the [foreigners] the control of the Kingdom. ,,57

Queen LiIi'uokalani's Proposed 1893 Constitution

In 1892, during the second year of Queen Lili'uokalani's reign, "[p]etitions poured in

from every part of the Islands for a new constitution" restoring the monarch's power,58 meetings

were held to discuss the development of a new constitution, and drafts were circulated. S9 The

Queen asked the Legislature to call a constitutional convention,60 but the Legislature refused, and

the Queen then attempted to promulgate a new constitution by decree on January 14, 1893,61

55 OSORIO, supra note 26, at 240.

S6 LILIUOKALANI, supra note 24, at 375 (quoting SAN FRANCISCO CHRONICLE, Sept. 5, 1887).

57 WILLIAM A. Russ, THE HAWAIIAN REVOLUTION: 1893-94 at 20 (1959).

58 LILIUOKALANI, HAWAII'S STORY By HAWAII'S QUEEN 230 (1898, reprinted 1997).

59 TOM COFFMAN, NATION WITHIN: THE STORY OF AMERICA'S ANNEXATION OF THE NATION OF HAWAII 119-20 (1998). HELENA G. ALLEN, THE BETRAYAL OF LILIUOKALANI: LAST QUEEN OF HA WAIl 1838-1917 at 281-82 ( 1982) (explaining that the Queen was working as early as August 1892 with Joseph Nawahi, Sam Nowlein and William White to develop the text ofa new Constitution and had presented copies of a draft to members of the Cabinet).

60 See, e.g., ALLEN, BETRAYAL, supra note 59, at 261.

61 3 KUYKENDALL, supra note 37, at 582. 14


, .

following the 1864 example of her predecessor Kamehameha V, and using a draft based on his

1864 Constitution. The Queen's proposed Constitution would have limited the electorate to

male "subjects" of the Kingdom (i.e., those born in Hawai'i or naturalized) "in distinction from

temporary residents,,,62 would have changed the House of Nobles to become a body of24

individuals appointed by the Monarch for life (rather than being a group elected for three-year

terms by those with property), would have increased the number in the House of Representatives

from 24 to 48,63 would have allowed her to remove members of the Cabinet, and would have

eliminated the requirement that the Monarch's actions be confirmed by the Cabinet.64 She later

defended the change that would have limited voting to "subjects" of the Kingdom by explaining

that she "had thought it wise to limit the exercise of suffrage to those who owed allegiance to no

other country" and that this approach is no "different from the usage in all other civilized nations

on earth. ,,65

From her perspective, based on the history and customs of the Native Hawaiians, "the

promulgation of a new constitution, adapted to the needs of the times and the demands of the

62 LILIUOKALANI, supra note 24, at 237.

63 3 KUYKENDALL, supra note 37, at 586; Blount Letter of July 17,1893, supra note 51, at 115.

64 Blount Letter of July 17, 1893, supra note 51, at 115; 3 KUYKENDALL, supra note 37, at 586; ALLEN, BETRAYAL, supra note 59, at 284; WILLIAM FREMONT BLACKMAN, THE MAKING OF HAWAII: A STUDY IN SOCIAL EVOLUTION 131-32 (1906, reprinted 1977). Although Article 62 of the version of the Constitution published in Commissioner James H. Blount's Report contains a requirement that voters own property of$150 or earn $75 per year, the members of her Cabinet reported that the version of the Constitution they had seen on January 14, 1893 had not contained such a requirement. Blount Letter of July 17, 1893, supra.

65 LILIUOKALANI, supra note 24, at 237.

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, ,

people, has been an indisputable prerogative of the Hawaiian monarchy,,,66 and she was acting

"to restore some of the ancient rights of my people. ,,67 Her native supporters in the Hawaiian

Patriotic League (Hui Hawaiian Aloha Aina) explained further that "it was only because the

immortal principles of justice, liberty, and equality were violated or ignored in the Bayonet

Constitution of 1887 that the Queen to satisfy her own people undertook to suggest to her

constitutional advisers, the cabinet, the promulgation of a new constitution embodying these

desirable features and addressed to the masses, not to a mere faction. ,,68

Although the Queen agreed to set aside her proposed Constitution (at least for the time

being) after the members of her Cabinet refused to sign it and other opposition emerged,69 her

initiative provided the opportunity that the wealthy Western businessmen and sugar planters in

the Annexation Club 70 had been waiting for -- to provide a pretext to overthrow the Monarchy

and to move toward the annexation of Hawai'i by the United States. One hundred years later, in

1993, the U.S. Congress acknowledged that the U.S. military and diplomatic officials had played

an essential role in ensuring the success of the overthrow and that this role had been "illegal" and

66Id at 21. See also id. at 238 (explaining that "[t]he right to grant a constitution to the nation has been, since the very first one was granted, a prerogative of the Hawaiian sovereigns" and noting that all the previous constitution's had been promulgated without approval of the people or voters, and that, in particular, the 1887 Constitution had been imposed by "aliens determined to coerce my brother").

67Id at 237.

68 Statement of the Hawaiian Patriotic League to President Grover Cleveland, July 15, 1893, in BLOUNT REpORT, supra note 47, at 483-84.

69 The Queen's explanation of the events during this period are in her statement to the Blount Commission, which is reprinted in LILIUOKALANI, supra note 24, at 376,383-89.

70 See SYLVESTER K. STEVENS, AMERICAN EXPANSION IN HAWAII 1842-1898 at 206-07 (1945, reprinted 1968); 3 KUYKENDALL, supra note 37, at 532-41.

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in violation of international law, and issued a formal apology for the activities of the United

States.71

1894 Constitution of the Republic of Hawai'i

When it became clear that the January 1893 overthrow of the Kingdom would not lead

immediately to the annexation of the islands by the United States, the Legislature of the

"Provisional Government" set up by the Western revolutionaries passed a law on March 15, 1894

to convene a Constitutional Convention, which met from May 30 to July 5, 1894 to adopt a

Constitution for the "Republic of Hawai'i,,72 through a process that had no popular legitimacy.73

"Insurrection leader Sanford Dole personally selected 19 of the 37 delegates so that the

insurrectionists would have a majority and retain control ofHawai'i. The remaining delegates

were elected, but many of the previously qualified voters were excluded by strict voting

requirements. ,,74 The 19 appointed members consisted of the five members of the Provisional

71 See Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Sec. 2, Pub. L. 103-150, 107 Stat. 1510 (1993).

72 See A.F. Judd, Constitution of the Republic of Hawai 'i, 4 YALE LAW JOURNAL 53 (1893); 1 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 501 (1906) .

73 The Western revolutionaries based their authority to convene the 1894 Constitutional Convention on the Proclamation issued by the Provisional Government on January 17, 1893, which stated that: "All Hawaiian Laws and Constitutional principles not inconsistent herewith shall continue in force until further order of the Executive and Advisory Councils." Judd, supra note 72, at 53-54.

74 Jennifer M.L. Chock, One Hundred Years of Illegitimacy: International Legal Analysis of the Illegal Overthrow of the Hawaiian Monarchy, Hawai 'i's Annexation, and Possible Reparations, 17 UNIVERSITY OF HA WAI'I LAW REVIEW 463, 490 (1995); see also GA VAN DA WS, SHOAL OF TIME: A HISTORY OF THE HAWAIIAN ISLANDS 281 (1968, reprinted 1974). The members of the Republic's Constitutional Convention are pictured in THURSTON TWIGG-SMITH, HAWAIIAN SOVEREIGNTY: Do THE FACTS MATTER? (1998), between pages 216 and 217.

17


Government's Executive Council and 14 members of its Advisory Council. 75 All delegates were

required to give an oath of allegiance to support the Provisional Government and to oppose

reestablishment of the monarchy.76 Twenty-one of the delegates were of U.S. ancestry, seven

were of English descent, six were Native Hawaiians, and three were Portuguese.77

The Constitution of 1894, prepared primarily by Sanford Ballard Dole7s and Lorrin A.

Thurston,79 was declared to be the law of the land effective July 4, 1894 by proclamation, so and

Dole became the President of this "Republic."sl The "Republic of Hawai'i" functioned for four

years until annexation was finally accomplished under the administration of a new U.S.

President, Republican William McKinley, who signed the Joint Resolution of Annexation on

75 SYLVESTER K. STEVENS, AMERICAN EXPANSION IN HAWAII 1842-1898 at 271 (1945, reissued 1968). Professor Andrade has reported that only five were Hawaiians and only two were Portuguese. ERNEST ANDRADE, JR., UNCONQUERABLE REBEL: ROBERT W. WILCOX AND HA WAIIAN POLITICS, 1880-1903 at 141 (1996) (citing HA WAIIAN STAR, May 5, 1894, and PACIFIC COMMERCIAL ADVERTISER, May 5, 1894).

76 STEVENS, supra note 75, at 271.

77 Id.

78 Judd, supra note 72, at 54.

79 COFFMAN, supra note 59, at 148-63; WILLJAM FREMONT BLACKMAN, THE MAKING OF HAWAII: A STUDY IN SOCIAL EVOLUTION 141 n.l (1906, reprinted 1977) (explaining that Dole and Thurston each prepared drafts independently, and then, according to Dole, they "fused the two, taking such parts from both as we thought best.").

so "[E]ven those few thousand voters who had elected the delegates who had approved the constitution could not be trusted to endorse it, and so the constitution became law not by plebiscite but by proclamation." DAWS, supra note 74, at 281.

SI Melody K. MacKenzie, Historical Background, in NATIVE HAWAIIAN RIGHTS HANDBOOK 13 (Melody Kapilialoha MacKenzie ed. 1991) (citing WILLIAM A. Russ, THE HAWAIIAN REpUBLIC 1894-1898 at 36 (1961 )).

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July 7, 1898.82

Article 91 of the 1894 Constitution stated that this new Constitution was the "Supreme

Law of the Republic" and that all previous Constitutions of the Hawaiian Islands, and all

inconsistent laws, were abrogated and deemed to be null and void. Section 1 of Article 92

declared that all statutes and all rights, actions, prosecutions, judgments, and contracts would

continue unless inconsistent with the 1894 Constitution or specifically abrogated or addressed.

Section 2 stated that statutes referring to the "King," the "Kingdom," or the "Provisional

Government" should be construed to refer to the "President" or to the "Republic of Hawai'i."

Article 15 of the 1894 Constitution stated that the Republic's territory included the land

that previously made up "the Kingdom of the Hawaiian Islands, and the territory ruled over by

the Provisional Government of Hawaii or which may hereafter be added to the Republic."

Through Article 95, the Republic took possession of the Crown Lands, which in 1894 consisted

of about 971,463 acres, and were valued (in terms of the value of the dollar at that time) at

$2,314,250.83 This constitutional provision also declared that the Crown Lands were to be

viewed as free and clear of any trust, it confirmed the earlier confiscation of Queen

Lili'uokalani's annual Crown Land revenue of approximately $50,000,84 and it purported to

deprive the Queen of any recourse through the courts of the new government. Subsequent

82 Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, ch. 55, 30 Stat. 750, 751 (1898).

83 C.P. IAUKEA, BIENNIAL REpORT OF THE COMMISSIONERS OF CROWN LANDS, 1894 at 8 (1894).

84 The 1894 Crown Lands Report determined that the annual revenue generated by the Crown Land for that period was approximately $49,268.75. Id. at 9. Another source reported the annual income from the Crown Lands to be $48,769.75. HELENA G. ALLEN, THE BETRAYAL OF LILI'UOKALANI 318 (1982) (citing State doc. #1313; 1384).

19


commentators have characterized this seizure as an expropriation without compensation.8s

The 1894 Constitution of the Republic of Hawai'i carefully limited voting rights to ensure

that Westerners would be able to maintain control of the islands. Voting was limited (a) to male

citizens of the Republic, but those naturalized prior to January 17, 1893 were denied the right to

vote unless they were "a native of a country having, or having had, treaty relations with

Hawaii,,,86 which was designed "to exclude Japanese and Chinese from the franchise,,,87 (b) to

males who had received a "certificate of service" from the Minister of Interior for having

"rendered substantial service" in the formation or functioning of the Provisional Government,88

and (c) to males holding a letter of denization. 89 Those in these categories could vote if they

were at least 20 years old, but they also had to take an oath that they would "support the

Constitution, Laws and Government of the Republic of Hawaii; and will not, either directly or

8S See, e.g., MacKenzie, supra note 81, at 3, 13 ("Under the republic's constitution, the republic also expropriated the Crown Lands, without compensation to the monarch."); Expressing the Policy of the United States Regarding the United States Relationship with Native Hawaiians and to Provide a Process for the Recognition by the United States of the native Hawaiian Governing Entity, and for Other Purposes, Senate Comm. on Indian Affairs, S. Rep. No. 107-66, at 13 (2001) ("The Republic also claimed title to the Government Lands and Crown Lands without paying compensation to the monarch.").

86 Constitution of the Republic of Hawaii, July 3, 1894, art. 74(1).

87 DA WS, supra note 74, at 281. Lorrin Thurston explained in his HANDBOOK ON THE ANNEXATION OF HAWAII, a pamphlet circulated around 1897 to promote annexation, that "the Chinese and Japanese in Hawaii. .. are not citizens, and by the Constitution of Hawai'i, they are not eligible to become citizens; they are aliens in America and aliens in Hawai' i; annexation will give them no rights which they do not now possess, either in Hawai'i or in the United States." Quoted in SALLY ENGLE MERRY, COLONIZING HAWAII: THE CULTURAL POWER OF LAW 135 (2000).

88 Constitution of the Republic of Hawaii, July 3, 1894, arts. 17(2) and 74(1).

89 Id., arts. 19 and 74(1). 20


indirectly, encourage or assist in the restoration or establishment of a Monarchical form of

Government in the Hawaiian Islands. ,,90 The Republic awarded its certificate of service and

letters of denization to 362 aliens during its brief existence. 91 Most Native Hawaiians would not

declare an oath to the Provisional Government or the Republic, and at a meeting attended by

about 2,000 on April 9, 1894, those continuing to support the Monarchy agreed to boycott the

election for delegates to the Constitutional Convention. 92

The phrasing in Article 74 prohibiting persons from voting if they had become

naturalized before 1893 and if they came from a country without a naturalization treaty with

Hawaii excluded most Asians from the electorate. The provision governing naturalization also

produced this result, because it limited this procedure to citizens or subjects "of a country having

express treaty stipUlations with the Republic of Hawaii concerning naturalization,,93 and further

required such persons to "be able understandingly to read, write and speak the English

language,,94 and to "be able intelligently to explain, in his own words, in the English language,

90 Id., arts. 74(1) and 101.

91 Patrick W. Hanifin, To Dwell on the Earth in Unity: Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawaii, 5 HAWAII BAR JOURNAL 15, 29 (2002) (citing H. ARAI, INDICES TO CERTIFICATES OF NATIONALITY 1846-1854, DENIZATION 1846-1898, OATHS OF LOY ALTY TO THE REpUBLIC FROM OAHU 1894, AND CERTIFICATES OF SPECIAL RIOGHTS OF CITZENSHIP 1896-1898).

92 ANDRADE, supra note 75, at 139. See also LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY 32 (1961) (reporting that "about 2,500 persons" were at this meeting).

93 Constitution of the Republic of Hawaii, July 3, 1894, art. 18(2)(5).

94Id., art. 18(2)(3).

21


the general meaning and intent of any article or articles of this Constitution. ,,95

Voters must have paid their taxes,96 and, except for those with certificates of service, they

were obliged to demonstrate that they could read and write English or Hawaiian.97 The House of

Nobles was renamed the "Senate." To vote for the members of this body, voters had to meet the

additional requirement of demonstrating that they owned real property worth $1,500 or personal

property worth $3,000 or had an income of $600 for the previous year.98 To serve in the Senate a

person had to own property worth at least $3,000 or have earned $1,200 during the previous

year,99 which made the Senate "a fairly exclusive club.,,100 Even to serve in the House of

Representatives, one had to own property worth at least $1,000 or have earned at least $600

during the previous year. 101 The President was to be selected by the Legislature (for a six-year

term) rather than by popular vote, and was not eligible to be reelected for a second consecutive

95 Id., art. 18(2)(4).

96Id., art. 74(6).

97 Id., art. 74(7). This section also includes a requirement that voters (unless they have the certificate of service given to those who have supported the Provisional Government) "be able to read and write, with ordinary fluency, any section or sections of the Constitution." This provision was suggested by Lorrin Thurston, who noticed similar language in the 1891 Mississippi Constitution, where it was used for decades to exclude African-Americans from voting. COFFMAN, supra note 59, at 148, 156, 161.

98 Constitution of the Republic of Hawaii, July 3, 1894, art. 76.

99Id., art. 56.

100 TWIGG-SMITH, supra note 74, at 237.

101 Constitution of the Republic of Hawaii, July 3, 1894, art. 58. Voting for Representatives was according to the cumulative voting system. Id., art. 73.

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term.102 The President and the four Cabinet members formed an Executive Council. 103 Cabinet

members could be removed from office by the President only with the concurrence of the other

three members. 104 A Council of State consisting of five Senators, five Representatives, and five

Presidential appointees had the power to take certain actions between legislative sessions. 105

Chief Justice A.F. Judd explained that a parliamentary government and suffrage for

women would be appropriate for a "civilized and enlightened constituency," but would be

"unsafe" in Hawai'i's "heterogeneous" and "polyglot" communities.106 Attorney General

William O. Smith observed that "[t]hese islands are totally unfit for an ideal Republic" and

asserted that the government had therefore "to combine an oligarchy with a representative form

of government." 107 Lorrin A. Thurston had written in November 1893 that "I favor not less than

5 years for a readjustment and settling down period, before elections take place."lOs Thurston

Twigg-Smith, grandson of Lorrin Thurston, wrote subsequently that "[t]he Republic was a hard-

nosed form of government, giving up aspects of civil liberties and the universal voting rights its

people would secure later under Annexation, to assure its control until an administration

102 Id., art. 24.

103 Id., art. 21.

104 Id., art. 27.

105 Id. art. 81.

106 Judd, supra note 72, at 55,57.

107 DAWS, supra note 74, at 280 (citing Smith to Thurston, Feb. 18, 1894, Minister & Envoys).

lOS TWIGG-SMITH, supra note 74, at 232 (quotingfrom a November 19, 1893 letter written by Thurston to Sanford Ballard Dole).

23


sympathetic to Annexation took over the U.S. presidency.,,109

109Id at 128. 24


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