Historical Collections of The Hawaiian Islands -  Hawaiian Constitution of 1864 - Part 1

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Historical Collections of Hawai'i
Keepers of the Culture
Hawaiian Constitution of 1864
Part 1 - Explaination and Convention 
Drafting of the 1864 constitution

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Part 1. Constitution of 1864

On March 3, 1864, Kamhameha V read to the members of the cabinet a paper
setting forth his views on the subject of changes that ought to be made
in the constitution. He believed the principle of universal suffrage
should be abandoned because he considered that it was altogether beyond
the political capacity of the Hawaiian people in the state of
development which they attained; and he advocated a property
qualification both for representatives in the legislature and for
voters. He thought the prerogatives of the Crown ought to be more
carefully protected .... and that the influence of the Crown ought to be
more carefully protected and that the influence of the Crown ought to be
seen pervading every function of the government. He suggested the
advisability of limiting powers of the privy council, and stated that
the powers of the house of representatives, especially in relation to
financial matters, ought " to be subjected to the gravest
consideration." One of his objections to the existing constitution was
that it went too much into detail.

After the King read his statement, Wyllie and Harrison were appointed a
committee to report upon the same and to make any additional suggestions
which they may regard as essential, stating fully their views in
relation to the mode in which changes should be made. Some discussion
followed, in the course of which Attorney General Harris suggested  that
the modification of the Constitution or the enactment of a new one be
made by a Convention. Chief Justice Allen was present at this meeting
and the official minutes indicate that he and Varigny approved the
suggestion made by Harris. The idea of a Convention to revise the
constitution was not a new one. It had been distinctly stated and
defended by Wyllie and Gregg in their minority report
to the house of nobles, dated August 8, 1862, in which they argued that
the Sovereign may, if in his opinion "the good  of the country reguires
it, initiate a revision of the Constitution without being fettered by
the special forms of amendment prescribed by its terms. He can submit of
his own will, a new fundamental law for the consideration of the
different estates of his Kingdom, or call a convention of those estates
to devise a modification of the existing mechanism of government. The
authority of initiation is in his hands. But at the same time, either of
the estates are to privileged to offer respectful suggetions." 

Wyllie and Harris, appointed March 3, presented their report at a
meeting of the cabinet on March 30; they agreed with the views expressed
by the King. " The changes proposed to be introduced in the Constitution
were next read" and were 
" postponed fro mature consideration."
On Apriil 4, a general discussion of the constitution and of the
proposed amendments was begun by the cabinet; this was continued on the
fifh, seventh and eighth, and concluded on the twenty first of April. It
appears that, following this discussion, Attorney General Harris
prepared a new draft of a constitution emboding the changes that the
cabinet had agreed upon.

On April 28, the King informed the cabinet of his intention to call a
convention, and a week later he signed a royal proclamation
summoning delegates of the people to meet with him and the nobles on
July 7,
1864. Said the King, " It is Our will to meet Our Nobles and the
Delegates of Our people, for the purpose of consulting on the revision
of the Constitution of Our Kingdom." At the same time, notice was given
of an election at which the delegates of the people were to be chosen,
in the same manner as legislative representatives.

The appearance of the proclamation called forth an extensive and
acrimonious  discussion in the newspapers, in public meetings, and in
private conversations. This action of the king in calling a convention
and his failure to take the oath to maintain the existing constitution
was denied. In May and June the King made  tour to the outside islands
to meet the people and explain his purpose; everywhere the loyalty of
the people to him was evident. Wyllie accompanied him and made a number
of speeches violently attacking the Constitution of 1852, thereby
weakening the good impression made by the King. In the public debate
preceding the election of delegates to the convention
the government was somewhat at a disadvantage because the administration
had decided, early in the year, to let the official newspaper, the
Polynesian, die rather than to carry it along as a financial liability.
But the Pacific Commercial Advertiser published letters on both sides,
including a series written by Harris with the authority of his
colleagues, explaining to some extent the changes proposed to be made in
the constitution. The election was held on June 13. Its outcome appeared
to be unfavorable to any radical action regarding the Constitution.

After the King's return to Honolulu about the end of June, he and his
advisors went carefully through Haris' draft of a constituton, giving it
a final revision; and it was then printed in both languages. This work
was not completed until more then ten days after the opening of the
convention.

On June 30, the King put to his cabinet
three questions, " Which, in his opinion, ought to be agreed upon before
the Convention." First, " Has the Soveregn a right to call a Convention
?" This was answered in the affirmative. Second, 
" Has that Convention a right to enact a new Constitution ?" On this
question, Wylle, Harris, and Varigny stated that 
" if the Convention chose to assume the power of enacting a new
Constitution, and if it passed by the two estates [ nobles and delegates
of the people] under the understanding that it was to be the organic Law
of the Land, and, as such, signed by the King, then there could be no
doubt that it would be the Constitution of the Kingdom." Hopkins
declined to express an opinion. Third. " Is the draft agreed upon to be
proposed as a new Constitution, or in shape of amendments to the present
Constitution?" Wyllie thought this question should be settled by the
convention itself, but Varigny considered such a course impractical; his
opinion was that the draft should be submitted as amendments. Hopkins
agreed with Varigny on the latter pint, but Harris " was of opinion that
this was altogether a new Constitution not to be treated as amendments
to the present one." After thinking the matter over, the King, on July
4, informed te cabinet of his dicision, which was "that the draft
submitted to the Convention was not to be treated as amendments to the
present constitution, but as a new Constitution to be agreed upon and
enacted by the three Constituting powers of the Realm." Hopkins
expressed strongly his disagreement, but continued in office.

The convention met on July 7. It consisted of the King, the fifteen
nobles, and twenty six delegates of the people. Comsiderable time was
spent in the details of organization and the adoption of rules. It was
decided that the three estates should sit together for the purpose of
dscussion, but that all the votes on the constitution should be taken by
estates, the delegates first; if they voted affirmatively, the question
would then go to the nobles, and finally to the king. Varigny and
Harris,who were not members of the convention, nevertheless attended by
command of the King and took part in the debates but did not vote. They
spoke first for the King when he was not present and when he did not
choose to speak in person; in fact, they carried the burden of debate
for the administration and did it with skill and vigor.

Though the cabinet had decided not to raise the question of the power of
the convention, that question came up July 13, during the consideration
of the rules; and O.H. Gulick, delegate for South Kona, introduced a
resolution saying that the powers of the convention were only advisory
and that the Legislature was the only constituting medium. This brought
on a debate that continued for four days. In brief, the theory advanced
by the King and his advisors was that the entire constituting power of
the realm was concentrated in this convention, all three estates being
present, the King and nobles in person and the people represented by
their delegates specially
elected for the purpose. The argument against this theory was that it
was not sanctioned by the constitution, and furthermore that the people,
when they elected their delegates, had no definate knowledge as to the
exact purpose for which they were being elected --- the proclamation had
spoken only of 
" consulting on the revision of the Constitution." not of enacting a new
constitution. The decision turned finally on the opinion of the judges
of the supreme court. The conventin was informed that all three of the
judges believed the convention had the necessary power to enact the a
new constitution. In view of this opinion, the delegates voted against
Gulick's resolution by a large majority.

This decision cleared the way for the real business of the convention.
On July 19 and 22 the draft of the proposed new constiturtion was put
through its first reading. The draft submitted was in the same form and
he same length ( eighty articles) as the constitution granted a few
weeks later by the King, and most of its articles were either identical
with or very simular to those of the latter constitution. On July 26,
the second reading and discussion, article by article, was begun; this
continued from day to day until article 62 was reached. Upon a few
aricles there was a sharp debate, and alterations were made in some of
them, but the remaining articles -- by far the larger number -- were
accepted without change. It seems clear that the first sixty one
articles offered no insurperable obstacles to a final agreement.

But article 62, which came up on August 8, dealt with a subject on which
there was an irreconcilable difference of opinion. It was the article
defining the qualifications of voters and included both a literacy test
and a property or income qualification, the main speakers were Judge
Robertson, Harris, Varigny, Hopkins, and one of the native delegates,
J.W.H. Kauwahi. The opposition was led very ably by Dr. G.P. Judd,
supported by D.H. Hitchcock, J.P. Green, V. Knudsen, and others. The
debate continued for about five days, interspersed, toward the end, with
votes on various alternatives and subsidiary motions. The early votes (
Aug 11) indicated that a property or income qualification for voters
would not be approved by the delegates of the people, but the debate
continued through the twelfth and thirteenth and the attempts were made
to find the basis for a compromise on which the opposing forces could
agree. The result simply demonstrated that it was impossible for the
three estates ( King, nobles, and delegates ) to agree on this highly
controversal subject. The convention having arrived at an absolute
deadlock, the King disolved it with a speech in which he said:

" I am very sorry that we do not agree on this important point. As I
said the other day, this [voting] is not right belonging to the people,
as some here have said. I have told you, and my ministers also have told
you, that in all other monarchical countries sufferage is limited, and
it is thought that the possesson of property is proof of industry and
thrift, therefore in those enlightened countries it is said that the
class who possess property are the proper persons to advise their
Representaives in regard to the necessities of the Government, and the
poor, lazy, and ignorant are debarred from this privilege.

It is clear to me if universal sufferage is permitted, this Government
will soon lose its Monarchical character ........

As we do not agree it is useless to prolong the session, and as at the
time His Majesty Kamehameha III gave the constitution of the year 1852,
He reserved to himself the power of taking it away if it was not for the
interest of his Government
and people, and as it is clear that the King left the revision of the
Constitution to my predecessor and myself, therefore as I sit in His
seat, on the part of the Sovereignty
of the Hawaiian Islands, I make known today that the Constitution of
1852 is abrogated. I will give you a Constitution."

For a week, Hawai'i was without a written constitution. During that
time, the government was a simple autocracy. The Pacific Commercial
Adertiser of August 20, 1864, called it " an Oligarchy, ruled by a
Ministerial Cabinet of Four."

Two days after the dissolution of the convention, the King and cabinet
together with Judge Robertson held a meeting "for the purpose of
discussing and framing the new Constitution promised by His Majesty."
The draft which had been submitted to the convention was taken as a
basis. Three sessions ( Aug 15,16,17 ) were spent in going over the
draft and introducing such modifications as seemed desirable, including
several of the amendments adopted by the convention. On Aug 20, 1864,
the new constitution thus prepared was signed by Kamehameha V, who, on
the same day, took the oath to maintain it and caused it to be
promulgated as the fundamental law of the Kingdom.

This events called forth some angry and some sorrowful comments by
advocates of a different policy, believers in a liberal system of
government and those who thought the Constitution of 1852 with its
democratic features had been reasonably sucessful. The action of the
King was condemned on the grounds that it was revolutionary and that it
was a retrograde step, back to absolution which existed before 1840.
There was in some quarters a disposition to place the blame for what had
been done more upon the King's advisors ( Wyllie and Harris in
particular ) than upon the King himself. It is no doubt true that
Wyllie, by his continual harping on the alleged defects of the
Constitution of 1852, his insistence on strengthening the Royal
prerogative,and his attacks on the house of representatives, had done
much to prepare the way for some radical action, and Harris certainly
had a very important part in putting the scheme into execution, but a
study of record shows that it was Kamehameha V who took the initiative
at evry stage; the King was the real author of the " coup d' etat " of
1864.
Virigny says that he and Harris approved completely without physical
opposition.
Wyllie and Hopkins were not so confident. Wyllie wished to make a
military display in order to overawe the opposition; on his suggestion
the government took some precautionary measures, but it was doubtful
that they were necessary. The Hawaiian people were strongly attached to
the Kamehameha family, and this feeling of loyalty overbalanced any
resentment that may have been aroused by the arbitary action of the
King.

As for the restriction that the King wished to place on the privilege of
voting, which aroused such stubborn opposition and led to the
dissolvation of the convention, it is of some interest to note that the
Pacific Commercial Advertiser, a newspaper which was in bitter in its
criticism of the government, expressed the following opinion about two
weeks before the King issued hi proclamation for a convention:
" Every reasonable man must be convinced that a property qualification
of some kind, applicable to represntatives candidates as well as to
voters, has become a necessity and is te only guard that can be
established to prevent our Legislature from being filled with men
totally unfit to represent at least the foreign population and its
capital, or to enact laws for the Kingdom. Let us have change in this
organic law of the land, even if the Constitution itself has to be
remodeled."

The Constitution of 1864 was based on that of 1852, but 21 articles are
the same in the two documents. The earlier constitution had 105
articles, that of 1864 only 80. The reduction resulted from the omission
of 22 articles and the combination of others. Although many changes were
made, those of really outstanding significance were not very numerous
and can be sumerized briefly
The kuhina nui was abolished, and the powers of the privy council were
greatly curtailed; but the powers and prerogatives of the King were much
increased, and the position of the cabinet a an administrative body was
strenghtened. As a consequence, the king and cabinet became the
dominating element in the government. It was provided that the nobles
and the representatives of the people should sit together in one chamber
and be known collectively as the legislative assembly, thus putting an
effective curb on the independent action of the house of
representatives. As foreshadowed in the convention, the constitution now
contained a property qualification for voters born after 1840.

The Constitution of 1864 remained in force for twenty three years,
longer than any other Hawaiian constitution prior to annexation. By his
" coup d' etet." the King had accomplished his purpose to make the
influence of the Crown " pervade " every function of the government, and
it continued to do so throughout the nine year of his reign and later
years of the reign, several attempts were made to create liberal,
independant party in opposition to the complete dominion of the King and
Cabinet. In some election years this movement showed considerble
strength, but it never won any decisive victory. There was also more or
less continuous criticism of the constitution and of the " despotism "
and " politcal corruption " made possible by it, but, while Kamehameha V
lived, efforts to change the constitution in any fundamental way met
with no success whatever. That there was a strong and growing
dissatisfacation with the Constitution of 1864 is indicated by the
political manifestos issued by the rival candidates for the throne after
the death of Kamehameha V, and that was influenced for political gain
and influenced by foreigners.

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Con't in part 2- The 1864 Constitution