Images of Old Hawaiʻi

by Peter T Young 2 Comments

The Great Māhele

At the time of Captain Cook’s contact with the Hawaiian Islands the land was divided into several independent Kingdoms.  By right of conquest, each King was owner of all the lands within his jurisdiction.
 
After selecting lands for himself, the King allotted the remaining to the warrior Chiefs who rendered assistance in his conquest.  These warrior Chiefs, after retaining a portion for themselves, reallotted the remaining lands to their followers and supporters.
 
The distribution of lands was all on a revocable basis.  What the superior gave, he was able to take away at his pleasure.  This ancient tenure was in nature feudal, although the tenants were not serfs tied to the soil – they were allowed to move freely from the land of one Chief to that of another. 
 
Under King Kamehameha III, the most important event in the reformation of the land system in Hawaii was the separation of the rights of the King, the Chiefs and the Konohiki (land agents.)
 
The King retained all of his private lands as his individual property; one third of the remaining land was to be for the Hawaiian Government; one third for the Chiefs and Konohiki; and one third to be set aside for the tenants, the actual possessors and cultivators of the soil.
 
More than 240 of the highest ranking Chiefs and Konohiki in the Kingdom joined Kamehameha III in this task.  The first māhele, or division, of lands was signed on January 27, 1848; the last māhele was signed on March 7, 1848 (164-years ago, today.)
 
Each māhele was in effect a quitclaim agreement between the King and a Chief or Konohiki with reference to the lands in which they both claimed interests.
 
In each māhele for lands for the King, the Chief or the Konohiki signed an agreement: “I hereby agree that this division is good.  The lands above written are for the King.  I have no more rights therein.”
 
The remaining lands were set aside for the Chief or Konohiki and the King signed an agreement: “I hereby agree that this division is good.  The lands above written are for (name of Chief or Konohiki); consent is given to take it before the Board of Commissioners to Quiet Land Titles.”
 
The Great Māhele itself did not convey title to land.
 
The high Chiefs and the lesser Konohiki were required to present their claims before the Land Commission to receive awards for the lands.  Until an award for these lands was issued by the Land Commission, title to such lands remained with the government.
 
Even after receiving a Land Commission Award, the recipient did not acquire a free and clear title.  He was still required to pay commutation to the government, in cash or by surrender of equally valuable lands (set at one third of the value of the unimproved land.)
 
Kamehameha III divided the lands he reserved for himself into two separate parts; the smaller portion he retained for his personal use (“Crown” lands); the larger portion he gave ‘to the Chiefs and people’ (“Government” lands.)
 
The lands identified and separated in 1848 as Crown lands, Government lands and Konohiki lands were all “subject to the rights of native tenants” on their respective kuleana.
 
The Land Commission was authorized to award fee simple titles to native tenants who occupied and improved the land (and proved they actually cultivated those lands for a living.)
 
In the Great Māhele of 1848, of the approximate 10,000 awards, around 1,000,000-acres were reserved by King Kamehameha III as “Crown” lands, 1,500,000-acres were given by the King (as “Government” lands) to the ‘government and people’, approximately 1,500,000-acres were set aside for the Chiefs (as “Konohiki” lands) and less than 30,000-acres of land were awarded to the native tenants (Kuleana lands.)
 
The awarding of these completed the māhele of the lands into the Crown lands, Government lands, Konohiki lands and Kuleana lands and brought to an end the ancient system of land tenure in the Hawaiian Kingdom. 
 
 

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William Ansel Kinney

William Ansel Kinney was born October 16, 1860 in Honolulu. His parents were born in Canada, lived a while in Calais, Maine, then moved to Hawai‘i.

William first attended the Royal School at Honolulu, afterwards at O‘ahu College (Punahou – (1874–1877.)) During his boyhood, when out of school, he has been a clerk in a law office. He graduated from Michigan University Law School in 1883. (Michigan University)

He returned to the Islands; his first law partner was Arthur P Peterson. Then, in 1887 he became partners with William Owen Smith and Lorrin A. Thurston. (Kuykendall) From 1887-1888, he was a member of the House of Representatives, representing Hawai‘i Island.

Kinney was part of the team that drafted the 1887 Constitution of the Kingdom of Hawai‘i (‘Bayonet Constitution.’) Other reforms to the government included replacement of the Kings cabinet. (Forbes)

He moved to Salt Lake City, Utah, about 1890 and practiced law there. “After several visits to the states about 1891 (his mother) came to live for a time at Salt Lake with her second son William A Kinney, then and for several years after a well-known attorney of this city. (Salt Lake Herald, April 9, 1897)

Following the overthrow of the Hawai‘i constitutional monarchy, “William A. Kinney, now a lawyer in Salt Lake City, but a former resident of the Sandwich Islands and one of the leading participants in the revolution of 1887…”

“… met the members of the committee (seeking Hawai‘i annexation to the US) at Ogden for the purpose of renewing old acquaintance, and was induced to accompany the body to Washington in an unofficial capacity as legal adviser.” (NY Times, February 4, 1893)

Kinney moved back to the Islands in 1893 and on August 16, 1893 he married Alice Vaughan McBryde in Honolulu. McBryde was the daughter of Judge Duncan McBryde, who laid the foundation for what later was to become McBryde Sugar Company. Not a planter himself (but encouraged by Kinney and Dillingham,) McBryde hired a few men to obtain seed, plow the land and haul cane.

The original plantation lands extended from Kōloa to the Hanapepe River giving the newly formed McBryde Sugar Company access to a port. At first, the ʻEleʻele sugar mill was used to grind the cane, but within a couple of year, the Directors knew that another mill would have to be built.

As fortune would have it, McBryde bought the large Cuban type mill originally destined for Molokai’s American Sugar Company, whose plans for a plantation had to be abandoned. (HSPA)

Following Queen Lili‘uokalani’s arrest in 1895, “Mr William A. Kinney … Without military experience, he was commissioned a captain, and afterward charged with the duty of Judge Advocate in attacking me, and those of my people who sought liberty from the foreign oppressor.” (Lili‘uokalani)

While critical of Kinney related to the trials in 1895, in 1909, Lili‘uokalani retained Kinney and others in her claim to Crown Lands.

“Mr Kinney was judge advocate for the United States in the trial of Queen Lili‘uokalani and as he says ‘I tried her, prosecuted her, and convicted her, and I am now her attorney. Of course there was never anything personal in the matter.’” (Hawaiian Gazette, July 26, 1910)

Queen Lili‘uokalani made a claim to Crown Lands as her personal property. Noting, “Her cause of action is predicated upon an alleged ‘vested equitable life interest’ to certain lands described in the petition, known as ‘crown lands,’ of which interest she was divested by the defendants.”

However, the US Court of Claims noted, “It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country.”

The Court concluded, “The crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as part and parcel of the public domain.”

The Court further noted, “The constitution of the Republic of Hawai‘i, as respects the crown lands, provided as follows: ‘That portion of the public domain heretofore known as crown land is hereby declared to have been heretofore, and now to be, the property of the Hawaiian Government …” (Lili‘uokalani v The United States, 1910)

Later, Kinney joined forces with Prince Kūhiō in fighting Governor Frear (and the Big 5’s hold on the Islands,) noting, “Simply that the plantations, finding Gov. Frear under fire on their account, have been trying to fix things up …”

“… for they do not propose to lose control of the governorship and the local Territorial government; and when they do, however justly, a determined cry will be raised by them for commission government.”

“(I)nsistent retention of medieval ideas on land and labor, is merely an illustration of the recognized principle that things are apt to move along the lines of least resistance.”

“When the plantations of Hawaii have either got to do the right thing in regard to homesteading or go to the wall, they will come to time, and they should be forced to that position, not by way of retaliation nor in a spirit of hostility but because it is right and just to Hawaii and to the mainland that this be done.” (Kinney, Testimony before US House of Representatives, 1912)

The matter related to appointment of the next Territorial Governor of Hawai‘i. Kinney wanted someone without ties to the Plantations.

Lucius Pinkham, from the mainland, but had prior Island business interests and noted by Kūhiō that the Hawaiians “are very fond of Pinkham and … believe he is their best friend,” got the appointment.

Kinney left the Islands shortly thereafter and lived in California, continuing with his legal profession; he died sometime after 1930 in California.

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William Ansel Kinney-(PP-51-9-001)-1895-400
William Ansel Kinney-(PP-51-9-001)-1895-400
William_Ansel_Kinney-WC-1883
William_Ansel_Kinney-WC-1883
Hawaiian_Military_Commission-Alexander George Morison Robertson, William Ansel Kinney, and Alfred Wellington Carter-(PP-51-9-001)-1895
Hawaiian_Military_Commission-Alexander George Morison Robertson, William Ansel Kinney, and Alfred Wellington Carter-(PP-51-9-001)-1895
Neumann addressing Military Court-PP-53-6-003-00001
Neumann addressing Military Court-PP-53-6-003-00001
Trial_of_1895_Counter-Revolution_in_Hawaii-Kinney at far right
Trial_of_1895_Counter-Revolution_in_Hawaii-Kinney at far right
Political cartoon depicting Kinney on the shoulder of a governor going after sugarcane plantation interests-1912
Political cartoon depicting Kinney on the shoulder of a governor going after sugarcane plantation interests-1912

by Peter T Young 1 Comment

Claims to the Crown Lands

Under King Kamehameha III, the most important event in the reformation of the land system in Hawai‘i was the separation of the rights of the King, the Chiefs, the Konohiki (land agents) and makaʻāinana (the native tenants.)

More than 240 of the highest ranking Chiefs and Konohiki in the Kingdom joined Kamehameha III in this task (generally referred to as the Great Māhele.) The first māhele, or division, of lands was signed on January 27, 1848; the last māhele was signed on March 7, 1848.

Each māhele was in effect a quitclaim agreement; in each māhele for lands for the King, the Chief or the Konohiki signed an agreement: “I hereby agree that this division is good. The lands above written are for the King. I have no more rights therein.”

The King retained all of his private lands as his individual property; one third of the remaining land was to be for the Hawaiian Government; one third for the Chiefs and Konohiki; and one third to be set aside for the tenants, the actual possessors and cultivators of the soil.

The high Chiefs and the lesser Konohiki were required to present their claims before the Land Commission to receive awards for the lands. Until an award for these lands was issued by the Land Commission, title to such lands remained with the government.

In the Māhele, of the approximate 10,000 awards, around 1,000,000-acres were reserved by King Kamehameha III as “Crown” lands, 1,500,000-acres were given by the King (as “Government” lands) to the ‘government and people’, approximately 1,500,000-acres were set aside for the Chiefs (as “Konohiki” lands) and less than 30,000-acres of land were awarded to the native tenants (Kuleana lands.)

Kamehameha III divided the lands he reserved for himself into two separate parts; the smaller portion he retained for his personal use (“Crown” lands); the larger portion he gave ‘to the Chiefs and people’ (“Government” lands.)

On June 7, 1848, Kamehameha III approved a Law, passed at the Council House, that listed respective ahupua‘a and ili that were “the private lands of His Majesty Kamehameha III … and said lands shall be regulated and disposed according to his royal will and pleasure subject to the rights of native tenants.”

Another long list of ahupua‘a and ili were noted as “the lands of the Hawaiian Government.” A shorter list of O‘ahu lands were “set apart for the use of the Fort in Honolulu, to be cultivated by soldiers and other tenants under the direction of the Governor of O‘ahu”. (An Act Relating to the Lands of His Majesty the King and the Government, 1848)

For a while, the ‘Crown’ lands were viewed and handled “to be the private lands of His Majesty Kamehameha III, to have and to hold to himself, his heirs and successors forever”. (An Act To Relieve The Royal Domain From Encumbrances, And To Render The Same Inalienable, 1865)

Kamehameha IV administered his land in much the same way as his uncle (as if it was his own private property.) In dispositions, Queen Emma joined him, waiving her right of dower in such lands.

Queen Emma was the first to make a claim to the Crown Lands as private property, with the death of Kamehameha IV.

She “claimed that all the property possessed by her late royal husband was his private property” and made claim of dower to one-half of the Crown Lands in the royal domain; the Attorney General opposed her claim, noting they constituted “a Royal Domain annexed to the Hawaiian Crown”.

Kamehameha V responded that he, as “hereditary successor to the throne, shall inherit the entire estate, both real and personal derived from his Majesty Kamehameha III, at his decease, and held by Kamehameha IV, the King lately deceased.”

The Hawai‘i Supreme Court, in deciding the Estate of Kamehameha IV noted, “In 1840 (Kamehameha III) granted the first Constitution by which he declared and established the equality before the law of all his subjects, chiefs, and people alike.”

“By that Constitution, he voluntarily divested himself of some of his powers and attributes as an absolute Ruler, and conferred certain political rights upon his subjects, admitting them to a share with himself in legislation and government. This was the beginning of a government as contradistinguished from the person of the King …”

“… who was thenceforth to be regarded rather as the executive chief and political head of the nation than its absolute governor. Certain kinds of public property began to be recognized as Government property, and not as the King’s.”

The Court noted, “These lands are to be in the perpetual keeping of the Legislative Council (Nobles and Representatives) or in that of the superintendents of said lands, appointed by them from time to time, and shall be regulated, leased, or sold, in accordance with the will of said Nobles and Representatives, for the good of the Hawaiian Government, and to promote the dignity of the Hawaiian Crown.”

The Court found, “while it was clearly the intention of Kamehameha III to protect the lands which he reserved to himself out of the domain which had been acquired by his family through the prowess and skill of his father, the conqueror, from the danger of being treated as public domain or Government property …”

“… it was also his intention to provide that those lands should descend to his heirs and successors, the future wearers of the crown which the conquerer had won; and we understand the act of 7th June, 1848, as having secured both those objects.” (Supreme Court Decision in the Matter of the Estate of Kamehameha IV, 1864)

The Crown Land stayed with the government and dower was acknowledged with Queen Emma, however there was a “settlement of a permanent annuity upon Queen Emma in lieu of her claim of dower in the royal domain.” (Alexander)

This litigation led to legislation which affirmed the decision of the court; on January 3, 1865, Kamehameha V approved an Act of the Legislative Assembly that initially noted …

“the history of said lands shows that they were vested in the King for the purpose of maintaining the Royal State and Dignity; and it is therefore disadvantageous to the public interest that the said lands should be alienated, or the said Royal Domain diminished.”

That 1865 law noted the Crown Lands “shall be henceforth inalienable, and shall descend to the heirs and successors of the Hawaiian Crown forever”.

The Act also noted that, “during the two late reigns, the said Royal Domain has been greatly diminished, and is now charged with mortgages to secure considerable sums of money” – the Law converted the mortgages to bonds. (An Act To Relieve The Royal Domain From Encumbrances, And To Render The Same Inalienable, 1865)

On the death of Kamehameha V, his half-sister, Ruth Keʻelikōlani, inherited his private lands, but the Crown Lands were held by the commissioners for the benefit of his successors.

Later (September 13, 1880,) Claus Spreckels purchased from Ruth Keʻelikōlani all her interest or claim in and to the Crown Lands. Rather than taking the issue to court, a compromise and an act was carried through the Legislature of 1882, where Spreckels received the ahupua‘a of Wailuku with ili and quitclaimed any interest in other Crown Lands. (Alexander)

Queen Lili‘uokalani made a claim to Crown Lands as her personal property. Noting, “Her cause of action is predicated upon an alleged ‘vested equitable life interest’ to certain lands described in the petition, known as ‘crown lands,’ of which interest she was divested by the defendants.”

However, the US Court of Claims noted, “It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country.”

The Court concluded, “The crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as part and parcel of the public domain.”

“Since 1865, so far as the record before us discloses, the character of the crown lands has not been changed; they have passed to the succeeding monarch. The income, less expense of management, has been used to support the royal office and treated as belonging to the Crown. All other property of the King has uniformly passed to his heirs regardless of his royal successor.”

The Court further noted, “The constitution of the Republic of Hawai‘i, as respects the crown lands, provided as follows: ‘That portion of the public domain heretofore known as crown land is hereby declared to have been heretofore, and now to be, the property of the Hawaiian Government …” (Lili‘uokalani v The United States, 1910)

Today, abstracting (researching title) government lands is fundamentally different from abstracting private lands. For private lands, owners have a deed that evidences ownership and a title company can trace the ‘chain of title’ at the Bureau of Conveyances by researching the transfers of the land from owner to owner via legal documents.

Instead of a deed or other legal document, the State owns the majority of former crown and government land through passage of laws. Public land title is passed by ‘operation of law.’

Today, there is no paper title for the majority of public lands, i.e., there is no deed showing the State owns it. There is no ‘chain of title’ for the majority of former Crown and Government Lands, since the lands were never conveyed out of the government.

We now generally refer to the Crown and Government Lands as ‘ceded’ lands. Under the Admission Act, about 1.2-million acres are to “be held by (the) State as a public trust” to promote one or more of five purposes:
1. support of the public schools and other public educational institutions
2. betterment of the conditions of native Hawaiians (per the Hawaiian Homes Act, 1920)
3. development of farm and home ownership on as widespread a basis as possible
4. making of public improvements
5. provision of lands for public use

As noted in the earlier discussion of Crown and Government Lands above, these lands, though under the control of changing sovereigns and governments (Kingdom to Provisional Government to Republic to Territory to State,) were in and continue to remain in the ‘public domain’ for the public good.

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