The Great Mahele: Hawaii's Land Division of 1848 9780824841393

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THE GREAT MAHELE

K A M E H A M E H A III (From a daguerreotype,

courtesy

Bemice

P. Bishop

Museum)

THE GREAT MAHELE Hawaii's Land Division of 1848

Jon J. Chinen

UNIVERSITY OF HAWAII PRESS

13 12 11 10 09 08

17 16 15 14 13 12

C o p y r i g h t © 1958 by University of Hawai'i Press All rights reserved Library of Congress Catalog Card N u m b e r 5 7 - 1 4 4 7 3 ISBN 9 7 8 - 0 - 8 7 0 2 2 - 1 2 5 - 5 Printed in the United States of America

University of Hawai'i Press books are printed on acidfree paper and meet the guidelines for permanence and durability of the Council on Library Resources

To my wife, Winifred

PREFACE The most important event in the reformation of the land system in Hawaii was The Great Maheleol 1848. This event separated and defined the undivided land interests of King Kamehameha III and the high-ranking chiefs and konohikis, and led to the end of the feudal system that existed in the Islands. However, The Great Mahele is still surrounded by confusion and misunderstanding. In an attempt to understand The Great Mahele and its effect, I have studied thoroughly the events that preceded this momentous undertaking, the acts of King Kamehameha III and the high chiefs and konohikis, recorded as The Great Mahele, and the events that immediately followed. The Privy Council Records, the Journals of the Legislature, the records at the Office of Commissioner of Public Lands, and all the cases reported in the Hawaii Reports have been carefully analyzed. This book is the result of the research. It is hoped that the materials in this book will be of aid to the reader in understanding and appreciating The Great Mahele of 1848. Jon J. Honolulu 1957

vli

Chinen

Page 1. A n c i e n t L a n d S y s t e m

1

Map of Oaku, showing districts

2

2. T h e L a n d C o m m i s s i o n

8

Facsimile

of Land Commission

Award

10-11

3. T h e G r e a t M a h e l e

15

Facsimile

of title page of The Mahele Book

17

Facsimile

of pages from

Facsimile

of Royal Patent

The Mahele Book

18-19 22

4 . C r o w n and G o v e r n m e n t L a n d s

26

Facsimile

28

of Royal Patent (Grant)

5. K u l e a n a L a n d s

29

Bibliography

33

I. ANCIENT LAND SYSTEM The date of man's first arrival in the Hawaiian Islands is not known. But by 1778, when Captain James Cook discovered the islands and made them known to the Western world as the Sandwich Islands, they were already well settled by a population of over 200,000 bronze-skinned Hawaiians. Their lives having been closely associated from ancient times with the soil, the Hawaiians took great interest in the lands on which they lived and from which they derived their livelihood. For purposes of easier control and management, the Hawaiians divided all the lands within the Islands into a number of divisions, gave each division a separate name, and defined its boundaries to the best of their ability. Certain persons were trained to retain the knowledge of these divisions, and such knowledge was carefully passed on from generation to generation. 1 To a large extent, the Hawaiians made the divisions of the lands along rational lines, following a mountain ridge, the bottom of a ravine, or the center of a stream or river. But oftentimes only the line of growth of a certain type of tree or grass marked a boundary; and sometimes only a stone determined the corner of a division. 1. Ralph S. Kuykendall, The Hawaiian Kingdom, 1778-1854 (Honolulu: University of Hawaii, 1938); Principles Adopted By The Board of Commissioners To Quiet Land Titles, 1846, Revised Laws of Hawaii, 1925, vol.11, pp. 21202152; Oni v. Meek, 2 Hawaii 87 (1858); In re Boundaries of Pulehunui, 4 Hawaii 239 (1879); Shipman v. Nawahi, 5 Hawaii 571 (1886); Harris M.Carter, 6 Hawaii 195 (1877); In re Boundaries of Kapoino, 8 Hawaii 1 (1889); Horner v. Kumuliilii, 10 Hawaii 174 (1895); In re Kakaako, 30 Hawaii 666 (1928); Territory v. Gay, 31 Hawaii 376 (1930); Territory v. Bishop Trust Company, Ltd., 41 Hawaii 358 (1956). X

Map of Oahu, showing

districts.

The largest unit or division of land was, naturally, the island. Each island was then divided into a number of districts called "mokus." These districts or mokus were geographical subdivisions only, and no administrators were assigned to them. The number of districts on each island varied, depending upon the size of the island. At the time of The Great Mahele of 1848, the Island of Oahu was divided into: Ewa, Kona, Koolauloa, Koolaupoko, Waialua, and Waianae. Since then, Kona has been renamed "Honolulu," and Wahiawa has been created from portions of Ewa, Waialua, and Waianae. These are important today as judicial districts. The unit next smaller to the district was the kalana. This, too, was a geographical subdivision only, and is not of much importance today. A moku was divided for landholding purposes into units called "ahupuaas," each of which was ruled by either a chief or a konohiki. The ideal ahupuaa extended from the sea to the mountains, enabling the chief of the ahupuaa and his followers to obtain fish and seaweeds at the seashore, taro, bananas, and sweet potatoes from the lowlands, and forest products from the mountains. However, more often than not, an ahupuaa failed to extend to either the mountain or the seashore, being cut off from one or the other by the odd shapes of other ahupuaas. Although the ahupuaa has been called the "unit" of land in the Islands, it is not a measure of area as the a c r e is. While the acre contains a definite area, the ahupuaas vary in size. Though the smalle r ahupuaas contain only a hundred a c r e s of land, the larger ones contain more than 100,000 a c r e s . The unit next in size to the ahupuaa was called an " i l i . " While some ahupuaas, as the Ahupuaa of Waimanalo on Oahu, were without any ili, 2 several ahupuaas contained 30 or 40 His, each with its own name and carefully defined boundaries. Oftentimes, an ili consisted of several separate sections of land scattered over an island, one section along the seashore, a second in the lowlands, and another in the mountains. These separate sections were called "leles," from the verb lele, to jump.3 There were two principle types of ili, the ili of the ahupuaa and the ili kupono, often shortened to ili ku. The ili of the ahupuaa was a mere subdivision for the convenience 2. Harris v. Carter,

supra.

3. Homer 3

v. Kumuliilii,

supra.

Ahupuaa of Kemau Hamakua, Hawaii L.C. Aw. 9971, Ap. 3 515 Acres

) An ahupuaa (and kuleana ivithin the ahupuaa) extending from the sea to the mountain, ivith one boundary along a gulch.

of the chief holding the ahupuaa, and the l e s s e r chief, or konohiki, of such an ili of the ahupuaa was only an agent of the superior chief holding the ahupuaa. The Ili of Lihue in the Ahupuaa of Honouliuli was an ili of the ahupuaaA The ili kupono or ili ku was completely independent of the ahupuaa in which it was situated. 5 The chief of the ili kupono paid his tributes, not to the chief of the ahupuaa within which his ili kupono was situated, but directly to the king himself. Even when there were changes among the chiefs of the various ahupuaas, the chiefs of the ili kuponos within those ahupuaas were not affected. In some cases, the ilis within an ahupuaa absorbed the l a r g e r portion of the lands. On the Island of Hawaii, the Ili of Waikaloa and the Ili of Puukapu have included nine-tenths of the land in the Ahupuaa of Waimea. 6 Some ilis do not appear to be in any ahupuaa, such as the ilis that were set apart as Fort Lands by the legislative Act of June 7, 1848. And there has never been an ili within an ili? 4. Harris v. Carter, supra. 5. Shipman v. Naivahi, supra; In re Kakaako, supra; Territory v. Gay, 6. Harris v. Carter, supra. 7. fn re Boundaries of Kapoino,

supra. supra.

The arable portions of an ili w e r e further subdivided into smaller tracts of land called " m o o s " or "mooainas." The moo was next in s i z e to an ili and was set aside f o r purposes of cultivation only. The moo was then subdivided into l e s s e r tracts called "pauka," also set aside f o r purposes of cultivation. The patches of land cultivated by the tenants or commoners f o r their chiefs or landlords w e r e called "koeles." Later, because the tenants worked only on Fridays f o r their landlords, these patches became known as Poalimas, meaning Fridays. The smallest unit of land was called a "kihapai," and was cultivated by a tenant-farmer f o r himself and his f a m i l y . At the time of Captain Cook's discovery of the Islands, the eight main islands w e r e divided into several independent kingdoms. By right of conquest, each king was lord paramount and owner of all the lands within his jurisdiction. Immediately below the king w e r e his w a r r i o r chiefs, and at the bottom w e r e the tenant-commoners. A f t e r selecting the choicest lands f o r himself, the king allotted the remaining lands to the w a r r i o r chiefs who had rendered assistance in his conquest. These w a r r i o r chiefs, after retaining a portion f o r themselves, reallotted the remaining lands to their own f o l l o w e r s and supporters. These reallotments of lands continued down to the lowest tenants, the common people. All these persons in possession of lands, superior and inferior, w e r e considered as having certain rights in the products of the soil. Each individual was deemed entitled to a share of what he produced f r o m the soil, gathered f r o m the seashore, or collected f r o m the mountains. These rights w e r e not clearly defined, but w e r e recognized and acknowledged by all. 8 The distribution of lands w e r e all on a revocable basis. What the superior gave, he was able to take away at pleasure. Because it was not considered just and right, dispossession did not occur too frequently. However, upon the death of a chief holding an ahupuaa or an ili kupono, numerous changes w e r e made by the king, with the heirs of the decedent often ignored in f a v o r of a new group of persons. This ancient tenure was in nature feudal, although the Adopted By The Board of Commissioners 8. Principles tles, supra; Keelikolani v. Robinson, 2 Hawaii 522 (1862). 5

To Quiet Land

Ti-

tenants were not serfs tied to the soil. They were allowed to move freely from the land of one chief to that of another. And the claims of the superior over the inferior were not for military services, but were for labor and products of the soil. When King Kamehameha I brought all of the islands under his control at the beginning of the nineteenth century, he simply utilized the land system in existence. 9 After setting aside the lands he desired for his personal use and enjoyment, Kamehameha I divided the rest among his principal warrior chiefs for distribution to the lesser chiefs and, down the scale, to the tenant-commoners. These allotments were still on a revocable basis. However, to a great extent, Kamehameha I permitted the heirs of a deceased chief to remain on the ahupuaa or Hi kupono previously granted by him to the chief. The tenure was still nonmilitary, and the tenants were f r e e to move from the land of one chief to that of another. All persons in possession of land, from the superior chiefs down to the tenant-commoners, owed and paid to Kamehameha I not only a land tax, but also services which he called for at his discretion. In addition to the yearly taxes, they also paid a portion of the products of the land. And they owed obedience to the king at all times. Upon the death of Kamehameha I on May 8, 1819, in accordance with his will his son Liholiho was recognized as King Kamehameha II. With the crown the new king inherited his father's absolute sovereign powers over the Islands. Kamehameha II made only a few changes in the distribution of lands, leaving the great majority of the lands with the chiefs who had been rewarded by his father. These sovereign powers descended with the crown to Kauikeaouli who became King Kamehameha III upon the death of his brother in England on July 14, 1824.10 When Kamehameha III ascended the throne, he found a large foreign population in the Islands. The fur and sandalwood trades and the whaling industry in the Pacific Ocean had brought to the Islands aggressive sailors, traders, and 9. Principles Adopted By The Board of Commissioners To Quiet Land Titles, supra; In re Matters of Estate of His Majesty Kamehameha IV, 2 Hawaii 715 (1864). 10. In re Matters of Estate of His Majesty Kamehameha IV, supra; Kapiolani Estate v . Atcherly, 21 Hawaii 441 (1913), 238 United States 119 (1915).

6

merchants. Many of them had been accustomed in their homeland to possessing lands in f e e simple, and vigorously challenged the right of the king and the chiefs to dispossess them at will. Meanwhile, the missionaries who f i r s t came to the Islands in 1820 also strove to change the system of land tenure, partly to improve the status of the tenantcommoners and partly so they, too, could possess land in f e e simple. The vigorous actions of the f o r e i g n e r s in the Islands, often supported by the commanders of the warships of their homelands visiting at the time in Hawaiian waters, f o r c e d Kamehameha III and his chiefs to review their national policy. Their study led to the enactment of the Bill of Rights of 1839,11 which was the beginning of a complete change in the government and in the land system in Hawaii. In the Bill of Rights, often called the "Magna Charta of Hawaii," rights of the people w e r e defined and protected. Part of the Bill of Rights reads, " P r o t e c t i o n is hereby s e cured to the persons of all the people, together with their lands, their building lots and all their property, and nothing whatever shall be taken f r o m any individual, except by e x press provision of the l a w . " The Act further stated that the "landlord cannot causelessly dispossess his tenant," and it also defined what was sufficient cause. The Bill of Rights was followed by the f i r s t constitution of the Hawaiian Kingdom, granted by King Kamehameha III on October 8, 1840.12 This constitution changed the Hawaiian government f r o m an absolute monarchy to a constitutional monarchy. Among other things, the constitution established a bicameral legislature consisting of a house of nobles and a representative body chosen by the common people. This representative body permitted the commoners to participate f o r the f i r s t time in their government. Another important feature was the creation of a supreme court, consisting of the king, the king's adviser known as the kuhina-nui, and four judges appointed by the representative body. A third important feature was the declaration 11. In re Matters of Estate lani Estate v. Atcherly, supra; sioners To Quiet Land Titles, 12. In re Matters of Estate A. Thurston, The Fundamental Company, Ltd., 1904), pp. 1-9.

of His Majesty Kamehameha IV, supra; KapioPrinciples Adopted By The Board of Commissupra. of His Majesty Kamehameha IV, supra; Lorrin Law of Hawaii (Honolulu: The Hawaiian Gazette

7

that, though all the land belonged to King 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 was the f i r s t formal acknowledgment by the king that the common people had some f o r m of ownership in the land, aside f r o m an interest in the products of the soil. Under the constitution, the common people were still unable to acquire absolute ownership of the land which they cultivated and on which they lived. However, they were no longer subject to a r b i t r a r y removal by the king or his chiefs.

2. THE LAND COMMISSION The f i r s t important step in the reformation of the s y s tem of land tenure in the Islands was the enactment of the statute of December 10, 1845, creating the Board of Commissioners To Quiet Land Titles, commonly r e f e r r e d to as the Land Commission, i The statute provided for a board of five commissioners to be appointed by King Kamehameha III "for the investigation and final ascertainment or rejection of all claims of private individuals, whether natives or foreigners, to any landed property acquired anterior to the passage of this Act." It stated that the awards of the Land Commission, unless appealed to the Supreme Court, "shall be binding upon the Minister of Interior and upon the applicant." The Act required the Land Commission to publish in a newspaper a notice concerning its special powers, its place of meeting and its mode of procedure in the performance of its duties. It declared that all persons, natives and f o r 1. Knudsen v. Board of Education, 8 Hawaii 60 (1890); Kapiolani Estate v. Atcherly, 21 Hawaii 441 (1913), 238 United States 119 (1915); Bishop v. Kalua, 36 Hawaii 164 (1942); Revised Laws of Hawaii, 1925, vol. II, pp. 2120-2152; Laws of Hawaii, 1846, p. 107; Lorrin A. Thurston, The Fundamental Law of Hawaii (Honolulu: The Hawaiian Gazette Company, Ltd., 1904), pp. 137-154. This statute was later r e - e n a c t e d as Article IV of An Act to Organize the Executive Department of the Hawaiian Islands, April 27. 1846. 8

that, though all the land belonged to King 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 was the f i r s t formal acknowledgment by the king that the common people had some f o r m of ownership in the land, aside f r o m an interest in the products of the soil. Under the constitution, the common people were still unable to acquire absolute ownership of the land which they cultivated and on which they lived. However, they were no longer subject to a r b i t r a r y removal by the king or his chiefs.

2. THE LAND COMMISSION The f i r s t important step in the reformation of the s y s tem of land tenure in the Islands was the enactment of the statute of December 10, 1845, creating the Board of Commissioners To Quiet Land Titles, commonly r e f e r r e d to as the Land Commission, i The statute provided for a board of five commissioners to be appointed by King Kamehameha III "for the investigation and final ascertainment or rejection of all claims of private individuals, whether natives or foreigners, to any landed property acquired anterior to the passage of this Act." It stated that the awards of the Land Commission, unless appealed to the Supreme Court, "shall be binding upon the Minister of Interior and upon the applicant." The Act required the Land Commission to publish in a newspaper a notice concerning its special powers, its place of meeting and its mode of procedure in the performance of its duties. It declared that all persons, natives and f o r 1. Knudsen v. Board of Education, 8 Hawaii 60 (1890); Kapiolani Estate v. Atcherly, 21 Hawaii 441 (1913), 238 United States 119 (1915); Bishop v. Kalua, 36 Hawaii 164 (1942); Revised Laws of Hawaii, 1925, vol. II, pp. 2120-2152; Laws of Hawaii, 1846, p. 107; Lorrin A. Thurston, The Fundamental Law of Hawaii (Honolulu: The Hawaiian Gazette Company, Ltd., 1904), pp. 137-154. This statute was later r e - e n a c t e d as Article IV of An Act to Organize the Executive Department of the Hawaiian Islands, April 27. 1846. 8

eigners, with claims to interests in lands were required to present their claims to the Land Commission within two y e a r s after such notice had been published. No exceptions were made in favor of infants. 2 The Land Commission was required to render its decisions in accordance with the "principles established by the civil code of the kingdom in regard to prescription, occupancy, fixtures, native usages in regard to landed tenures, water privileges and rights of piscary, the rights of women, the rights of absentees, tenancy and subtenancy-primogeniture and rights of adoption." The Land Commission had no authority to create any new interest in land; it was granted only the authority to determine the rights in land existing as of the date of the Act. Upon the confirmation of a claim and the issuance of an award by the Land Commission to a successful claimant, the statute authorized the minister of interior to issue a Royal Patent on the Award, upon payment of commutation to the government. The f i r s t five m e m b e r s appointed to the Land Commission were William Richards, who was elected chairman by the other members, John Ricord, then the attorney gene r a l of the kingdom, Zorobabela Kaauwai, James Young Kaneohoa, and John Ii.3 The Land Commission held its f i r s t meeting on February 11, 1846. After organizing, it started on its f i r s t task, the formulation of the principles to guide its decisions. After a thorough study of the history of the Hawaiian land system, the Land Commission issued a document entitled Principles Adopted By the Board of Commissioners to Quiet Land Titles in Their Adjudication of Claims Presented to ThemA In the preface to its Principles, the Land Commission analyzed in detail the land system existing at the time in the Islands. It then declared that "there a r e but three c l a s s e s of persons having vested rights in the land, 1st, the government (the king), 2nd, the landlord (the chief and the konohiki), and 3rd, the tenant." After declaring that, under another act of the legislature, aliens were prohibited 2. Thurston v. Bishop, 7 Hawaii 421 (1888); Kapiolani Estate v. Atcherly, supra. 3. Principles Adopted By The Board of Commissioners To Quiet Land Titles, supra. 4. T h e s e p r i n c i p l e s a r e fully s e t out in Revised Laws of Hawaii, 1925, vol. II, pp. 2120-2152. 9

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liis faithful and loyally disposed subject for the consideration of / R o y a l E x c h e q u e r , all that piece of L a n d , situated at in the Island of

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Transformation,

Honolulu: The Hawai-

The Mahele Book. In the o f f i c e of the Commissioner of Public Lands. T e r ritorial Office Building, Honolulu. Journals of the Legislature, October, 1846. Honolulu. P r i v y Council Records.

In the Public Archives of Hawaii,

In the Public Archives of Hawaii, Honolulu.

Statutes of the Kingdom and of the T e r r i t o r y of Hawaii: Laws of Hawaii : 1846, 1847, 1848, 1850, 1852, 1854. 1860, 1862, 1864, 1892, 1909. Revised Laws of Hawaii, 1925, Vol. II. pp. 2120-2236, Principles Adopted By The Board of Commissioners To Quiet Land Titles. Hawaiian Cases, Supreme Court of Hawaii: Akowai v. Lupong, 4 Hawaii 259 (1880) Ate he fly v. Lewers & Cooke, 18 Hawaii 639 (1908) Bishop v. Kalua, 36 Hawaii 164 (1942) Bishop v. Mahiko, 35 Hawaii 608 (1940) Bishop v. Namakaala & Kahinukawa, 2 Hawaii 238 (1860) Board of Education v. Bailey, 3 Hawaii 702 (1876) Boundaries of Kapoino, 8 Hawaii 1 (1889) Bmnz v. Minister of Interior, 3 Hawaii 783 (1877) Cornwell v. Board of Education, 4 Hawaii 540 (1882) Davis v. Brewer, 3 Hawaii 270 (1871) Dowsett v. Maukeala, 10 Hawaii 166 (1895) Greenwell v. Paris, 6 Hawaii 315 (1882) Harris v. Carter, 6 Hawaii 195 (1877) Horner v. Kumuliilii, 10 Hawaii 174 (1895) In re Austin (Land Title. Waimalu). 33 Hawaii 832 (1936) In re Boundaries of Kapoino, 8 Hawaii 1 (1889) In re Boundaries of Kewalo, 3 Hawaii 9 (1866) In re Boundaries of Paunau, 24 Hawaii 546 (1918)

33

In re Boundaries of Puìehunui, 4 Hawaii 239 (1879) In re Kakaako, 30 Hawaii 666 (1928) In re Matters of Estate of His Majesty Kamekameha IV, 2 Hawaii 715 (1864) In re Title of Kioloku, 25 Hawaii 357 (1920) In re Title of Pa Pelekane, 21 Hawaii 175 (1912) Jones v. Meek, 2 Hawaii 9 (1857) Juddv. Kuanalewa, 6 Hawaii 329 (1882) Kaai v. Mahuka, 5 Hawaii 354 (1885) Kahoomana v. Minister of Interior, 3 Hawaii 635 (1875) Kalama v. Kekuanoa &.H, 2 Hawaii 202 (1857) Kanaina v. Long, 3 Hawaii 335 (1872) Kapiolani Estate v. Atcherly, 21 Hawaii 441 (1912) Keelikolani v. Robinson, 2 Hawaii 436. 522 (1862) Kekiekiev. Dennis, 1 Hawaii 69 (1851) Kenoa v. Meek, 6 Hawaii 63 (1871) Knudsen v. Board of Education, 8 Hawaii 60 (1890) Kukiiahu v. Mahuka. 5 Hawaii 354 (1885) Laanui v. Puohu, 2 Hawaii 161 (1859-) Minister of Interior v. Papaikou Sugar Company, 6 Hawaii 125 (1890) Mist v. Kaivelo, 11 Hawaii 587 (1898) Oni v. Meek, 2 Hawaii 87 (1858) Pedro v. Chun Yun Fan. 4 Hawaii 461 (1882) Rosev. Yoshimura, 11 Hawaii 30 (1897) Shipman v. Nawahi, 5 Hawaii 571 (1886) Territory v. Bishop Trust Company, Ltd., Supreme Court Number 3005(1956) Territory v. Cay, 26 Hawaii 382 (1922) Territory v. Gay, 31 Hawaii 376 (1930) Territory v. Liliuokalani, 14 Hawaii 88 (1902) Thurston v. Bishop, 7 Hawaii 421, 438 (1888) Hawaiian C a s e s . United States Supreme Court: Atcherly v. Lewers & Cooke, 222 United States 285 (1911) Kapiolani Estate v. Atcherly, 238 United States 119 (1915) Hawaiian C a s e s . F e d e r a l Circuit of Appeals: Territory v. Hutchinson Sugar Plantation Company. 272 F e d e r a l 856 (C.C.A. 9th 1921)

34