“The object of the Māhele was to ensure that in the event of annexation, Kamehameha III and other elite Hawaiians would not be dispossessed of their landholdings.”
“The strategy was to convert those landholdings into a legal form that would be recognized by an incoming colonial government – whether American, British, or French – as private property.” (Banner)
This falls back to the concept of the ‘Law of Nations’ – “Hobbes was … the first who gave a distinct, though imperfect idea, of the law of nations. He divides the law of nature into that of man, and that of states: and the latter is, according to him, what we usually call the law of nations.”
“‘The maxims,’ he adds, ‘of each of these laws are precisely the same: but as states, once established, assume personal properties, that which is termed the natural law, when we speak of the duties of individuals, is called the law of nations when applied to whole nations or states.’” (Law of Nations, 1844)
“The general usage now is not to touch private property upon land, without making compensation, unless in special cases dictated by the necessary operations of war, or when captured in places carried by storm, and which repelled all the overtures for a capitulation.” (Kent, 1826)
The matter was of serious interest to Kamehameha III …
“Only those lands belonging to the government could be confiscated in the event of conquest by an invading country. This was undoubtedly on the mind of Kamehameha III as discussed on December 18th, 1847 in Privy Council, ‘if a Foreign Power should take the Islands what lands would they respect?’”
“Recognition as a nation-state in 1843 prevented the legal colonization of Hawai‘i but Kamehameha III was well aware of the threat of imperialism. The acquisition of another state’s territory through conquest was not outlawed in international law until the Kellogg-Briand Pact in 1929. This topic was discussed in Privy Council on December 18th, 1847:” (Preza)
“The King remarked before this rule was passed if his lands were merely entered in a Book, the Government lands also in a Book and all private allodial titles in a Book, if a Foreign Power should take the Islands what lands would they respect.”
“Would they take possession of his lands?”
“Mr. Wyllie replied that after the recognition of His Majesty’s Independence by the United States, Great Britain and France, and the engagement of the two latter powers near to take possession of any part of the Islands, he thought the danger adverted to by the King was exceedingly remote.”
“Those Great Powers held the World in check, and they were not likely to permit that any other Powers should take a possession of the Islands which they bound themselves not to take.”
“So long as the King, as hitherto, governed his Kingdom justly and with due regard to the rights of all Foreigners and to the laws of Nations, no Nation could have a plea to seize the Islands.”
“Mr. Lee gave it as his opinion, that except in the case of resistance to, and conquest by, any foreign power the King’s right to his private lands would be respected.”
“The King said unless it were so, he would prefer having no lands whatever, but he asked during the French Revolution were not the King’s lands confiscated?”
“Mr. Wyllie replied they were confiscated, but that was by the King’s own rebellious subjects, and it was to prevent such a risk here, that he regreted that Mr. Lee had not added to his rules one to the effect that in the event of Treason to, or rebellion against, the King, all lands of the King, held by Chiefs Landlords or whomsoever should ipso facto revert to the King.”
“The King observed that he would prefer that his private lands should be registered not in a separate Book, but in the same Book as all other allodial Titles, and that the only separate Book, should be that of the Government lands.” (Privy Council Minutes, December 18, 1847)
“In our opinion, 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 conqueror had won; and we understand the act of 7th June, 1848, as having secured both those objects.”
“Under that act the lands descend in fee, the inheritance being limited however to the successors to the throne, and each successive possessor may regulate and dispose of the same according to his will and pleasure, as private property, in like manner as was done by Kamehameha III.” (Hawaii Supreme Court, Addressing Estate of Kamehameha IV 1864)
“The Māhele did not provide much land to Hawaiian commoners, but it was not supposed to. The Māhele was a means by which the Hawaiian elite hoped to preserve its eliteness under colonial rule, by holding on to its land.” (Banner)
The first māhele, or division, of lands was signed on January 27, 1848; the last māhele was signed on March 7, 1848.
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