462-463

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Reports of Committee on Foreign Relations 1789-1901 Volume 6 pp462-463 300dpi scan (VERY LARGE!)

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of whom Kamehameha I. was the head and had the management of the landed property. Wherefore there was not formerly and is not now, any person who could or can convey away the smallest portion of land without the consent of the one who had or has the direction of the kingdom."

The bill of rights promoted activity in land matters, and for the next few years difficulties arising from land disputes pressed upon the King, producing great confusion and even endangering the autonomy of the kingdom. In 1841, Ladd & Co., the pioneers in sugar cultivation in this country, obtained from the King a franchise which gave them the privilege of leasing any unoccupied lands for one hundred years at a low rental. This franchise was afterwards transferred to a Belgian colonization company of which Ladd & Co. were partners, under circumstances that made a good deal of trouble for the Hawaiian Government before the matter finally disappeared from Hawaiian politics. The intimidation of the King by Lord Paulet, captain of the British frigate Carysfort, under which the provisional cession of the country to England was made in 1843, was based largely upon a land claim of Mr. Charlton, an Englishman, which was regarded by the King as illegal, but which he finally indorsed under Paulet's threat of bombarding Honolulu. These troubles naturally developed among the Hawaiians an opposition against the policy of allowing foreigners to acquire land which, in 1845, reached the definite stage of political agitation and petitions to the Government.

During these years of undefined rights, the common people were protected in their holdings by law to a certain extent, but their tenure was based mainly upon their industrious cultivation of their lands, except as to house lots and the payment of rent in labor.

The question of the proportionate interests of the King, the chiefs, and the common people in the lands of the kingdom was one of great difficulty. As we have seen, the constitution of 1840 distinctly recognized such a community of interest, but Hawaiian precedents threw no light upon the problem of division. It had been a new departure to admit that the people had any inherent right in the soil, and now to carry out that principle required the adoption of methods entirely foreign to the traditions of Hawaiian feudalism.

In this transition time the necessity of an organized government separate from the person of the King, became apparent even to the chiefs, and this was carried out by three comprehensive acts in 1845,1846, and 1847. The first, "to organize the executive ministry of the Hawaiian Islands;" the second, "to organize the executive departments of the Hawaiian Islands;" and the third, "to organize the judiciary department of the Hawaiian Islands."

As soon as the existence of a responsible government, detached from the person of the King, became an accepted feature of the political system, it was felt that in some way or other the Government ought to have public lands and become the source of land titles. At its inception the Government, as a distinct organization, was possessed of no landed property; it may be said to have had a right to that portion of the King's interest in the landed property of the Kingdom which he held in his official capacity, in distinction from that which belonged to him in his private capacity; but this was a mere theoretic right, dimly recognized at first, and only after innumerable difficulties and fruitless expedients was it finally developed and carried out in the great mahele or division of lands between King, chiefs, and people in 1848. Elaborate laws were made for the purchase of land by the Government from private landholders

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which do not appear to have added materially to the public domain.

The act to organize the executive department contained a statute establishing a board of royal commissioners to quiet land titles. This statute was passed December 10,1845. It was a tentative scheme to solve the land problem, and though not in itself sufficiently comprehensive for the situation, it was in the right direction, and led, through the announcement of principles of land tenure by the commission, which were adopted by the Legislature, to a better understanding of the subject, and finally, in the latter part of 1847, to the enactment by the King and privy council of rules for the division of the lands of the Kingdom, which, with the statute creating the land commission and the principles adopted by them, formed a complete and adequate provision for the adjustment of all recognized interests in land on the basis of the new departure in the principles of tenure.

At the time of the creation of the board of commissioners to quiet land titles and up to the enactment of rules by the privy council for land division, the nation was still feeling its way through the maze of the difficult questions which were pressing upon it in this great reform in land matters. Each step which it made threw light upon the path for the next one. The rapidity with which this reform was accomplished must be attributed not only to the wisdom and fidelity of the advisers of the nation, but largely to the earnestness and patriotism of the King and chiefs, who cheerfully made great sacrifices of authority and interest for the sake of a satisfactory solution of these questions.

The commissioners to quiet land titles were authorized to consider claims to land from private individuals, acquired previous to the passage of the act creating the commission. This included natives who were in the occupancy of holdings under the conditions of use or payment of rent in labor, and also both natives and foreigners who had received lands from the King or chiefs in the way of grants. The awards of the board were binding upon the Government if not appealed from, and entitled the claimant to a lease or a royal patent, according to the terms of the award, the royal patent being based upon the payment of a commutation of one-fourth or one-third of the unimproved value of the land, which commutation was understood to purchase the interest of the Government in the soil.

The principles adopted by the land commission use the words King and Government interchangeably, and failed to reach any adjudication of the separate rights of the King in distinction from those of the Government in the public domain, or, in other words, they failed to define the King's public or official interests in distinction from his private rights, although they fully recognized the distinction. There was, however, an implied apportionment of these two interests through the proceedings by which an occupying claimant obtained an allodial title. The commission decided that their authority coming from the King to award lands represented only his private interests in the lands claimed. Therefore, as the further payment of the claimant as a condition of his receiving a title in fee simple from the Government was one-third of the original value of the land, it follows that the King's private interest was an undivided two-thirds, leaving an undivided one-third belonging to the Government as such.

The commission also decided that there were but three classes of vested or original rights in land, which were in the King or Government, the chiefs, and the people, and these three classes of interests were about equal in extent.

The land commission began to work February 11, 1840, and made


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