The early history of the Hawaiian Judiciary may be divided into three periods: the first, which may be briefly described as the period of absolute government, extending from the earliest migrations of Hawaiians to the Islands (about 1000 to 1840.)
Pā‘ao (CA 1300,) from Kahiki (Tahiti,) is reported to have introduced (or significantly expanded) a religious and political code in old Hawai‘i, collectively called the kapu system. This forbid many things and demanded many more, with many infractions being punishable by death.
Anything connected with the gods and their worship was considered sacred, such as idols, heiau and priests. Because chiefs were believed to be descendants of the gods, many kapu related to chiefs and their personal possessions.
While the social order defined very strict societal rules, exoneration was possible if one could reach a puʻuhonua (place of refuge) and be cleansed, as well as cleared by a kahuna (priest).
The puʻuhonua was especially important in times of war as a refuge for women and children, as well as warriors from the defeated side.
The second period of the early judicial system, a period that is referenced as the time of constitutional government, extending from 1840 to 1893; the third is a brief transitional time (through the Provisional government and Republic) leading to association with the United States (Territory and now State.)
During the first period, the system of government was solely through the actions of the high Chief. Under this system all functions of government, executive, legislative and judicial, were by the paramount chief (with advice from his council of chiefs, kahuna and other advisors.)
At the time of Cook’s arrival (1778-1779), the Hawaiian Islands were divided into four kingdoms: (1) the island of Hawaiʻi under the rule of Kalaniʻōpuʻu, who also had possession of the Hāna district of east Maui; (2) Maui (except the Hāna district,) Molokaʻi, Lānaʻi and Kahoʻolawe, ruled by Kahekili; (3) Oʻahu, under the rule of Kahahana; and at (4) Kauaʻi and Niʻihau, Kamakahelei was ruler.
The Judiciary was established during the reign of Kamehameha I (1789-1819) with three grades of courts: the National or Supreme, presided over by the King; the Island or Superior, presided over by the respective Governors.
There were two classes of District or Inferior Courts, presided over by the under-Chiefs and the Tax Officers respectively, with concurrent jurisdiction as to territory but different as to subject matter.
The Judicial divisions were also established during this period: the Islands of Oahu (1st Circuit) and Hawaii (3rd Circuit) each constituting one and the Islands of Maui (2nd Circuit) and Kauai (4th Circuit) with their adjacent smaller islands, respectively, constituting the others.
These divisions remained unchanged until the Act of 1892 to reorganize the judiciary went into effect January 1, 1893, when the Island of Hawaii was divided into two circuits, the Third and the Fourth, and Kauai which formerly constituted, with its adjacent islands, the Fourth Circuit, was designated as the Fifth. (Lydecker) (Hawai‘i Island later consolidated into the 3rd Circuit and Kauai went back to being the 4th Circuit.)
The Constitution of 1840 provided for the Executive, Legislative and Judicial divisions of the government, but was not very clear as to the powers of each. Under it the Island Courts continued to be held by the respective Governors more by custom than by the express language of the Constitution.
The Constitution empowered the Governors to appoint the Judges, as was done by the Governors of Hawaii and Kauai in 1844, when special judges were appointed for foreign cases and by Governor Kekūanāoʻa of O‘ahu, when, on September 19, 1845, he appointed Lorrin Andrews to act as his substitute in all such cases.
The Supreme Court was established by the Constitution of 1840, which provided that the King should be the Chief Judge of the Supreme Court. Also ‘The Representative body shall appoint four persons whose duty it shall be to aid the King and Premier, and these six persons shall constitute the Supreme Court of the Kingdom.’
The Act of 1846 to Organize the Executive Departments provided that until the passage of an Act to Organize the Judiciary Department, there should be appointed one or more judges to sit at Honolulu, with original jurisdiction in cases involving over one hundred dollars in value, and appellate jurisdiction in all other cases from all the local courts of the Kingdom in cases involving less than one hundred dollars in value.
Under this act Lorrin Andrews was appointed June 24, 1846, as one of the judges, and on November 30 of that year William L Lee as another, the two to act jointly or severally. These appointments were to hold until the passing of the Act to Organize the Judiciary. This Court was the forerunner of the Supreme Court as now established.
The Supreme Court of the Hawaiian Islands was established by the Act of September 7, 1847 to Organize the Judiciary, and was first designated as the Superior Court. Previous to the establishment of Territorial Government, Justices of the Supreme Court held life commissions.
The Organic Act fixed a stated term of four years, subject to removal by the President of the United States. Now Justices are appointed for an initial ten-year term; after initial appointment, the Judicial Selection Commission determines whether a justice will be retained in office. A justice may not serve past age 70.)
Under the Act of 1847 to Organize the Judiciary Department, the Circuit Courts, to some extent, took the place of the former Governors’ Courts. In each circuit there were to be two judges.
The Constitution of 1852 provided for their appointment of judges by the King with the approval of the Privy Council. Under the Constitution of 1864 (promulgated by the King upon his own authority) the appointing power was vested solely in the King.
The Attorney General’s Department was organized by the Act approved April 27, 1846. The Legislature of 1862 passed an Act providing that the King may appoint an Attorney-General, and the Constitution of 1864 made the appointment compulsory.
By 1866, the need for a new courthouse government building in the Hawaiian Kingdom was apparent. The old courthouse, completed in 1852, accommodated not only the judicial needs, but also served as the reception hall for diplomatic ceremonies and official social functions.
On February 19, 1872, Kamehameha V laid the cornerstone for the new building, Ali’iolani Hale. The use of concrete blocks, a fairly new building material, “infinitely superior for both durability and ornament,” was recommended and accepted by Public Works.
To increase the work force, convicts were brought from the prison and made to labor on the project. In 1874, during the reign of King Kalākaua, the building was finally completed.
Today, Ali’iolani Hale houses the Supreme Court of Hawai`i, the court administration offices, a law library, and the Judiciary History Center.
Open to the general public and welcoming visits from classroom students, the Judiciary History Center reflects the unique legal and judicial history of our islands from the days of kapu law to the present – from chiefs to monarchy to statehood.
The image shows Ali‘iolani Hale in 1875, shortly after it was completed. The King Kamehameha Statue that now stands in front of the building was unveiled on February 14, 1883, during the coronation ceremonies for King Kalākaua. (Lots of information here is from Thayer, Lydecker and Judiciary History Center.)