Historical Collections of The Hawaiian Islands -  Part 17 - The Ancients

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Historical Collections of Hawaii
Keepers of the Culture
Influence of Foreigners on Hawaii
Part 17 - Law Making [ in the beginning ]
Reactions of foreigners.
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Part 17 --

Law Making - [ in the beginning ] 

It had apparently been expected that the British goverment would send
out a code of laws for the islands, but the visit of Lord Byron made it
plain that the enactment of laws rested in the hands of the king and
chiefs. From this time on, the attention of the Hawaiian rulers was much
taken up with the business of law making and law enforcement. They were
pushed into it by conditions resulting from the growing commercial
interests and the presence of a large number of foreigners, and the
teachings of the American missionaries. The importance of the former of
these influences is illustrated by the earliest printed laws of the
Hiawaiian kingdom. On March 8, 1822, two 
" Notices" ( which were really laws ) were published at Honolulu. The
first related to distrubances caused by seamen having liberty on shore
and provided that any of them " found riotous or disturbing the peace "
should be imprisioned in the fort and detained there until thirty
dollars was paid for the release of each offender. The second " Notice"
reads:

" His Majesty the King, desirous of preserving the peace and tranquility
of his dominions, has ordered that any foreigner residing on his
Islands, who shall be guilty
of molesting strangers, or in any way disturbing the peace, shall on
complaint be confined in the Fort, and thence sent from the Islands by
the first conveyance."

The two " Notices " of 1822 may properly be looked upon as two sections
of one law. The second printed law was that for the regulation of the
port of Honolulu, dated June 2, 1825, and signed by Karaimoku. This law
was discussed at the time of Lord Byron's visit. It superseded the
regulations in force since the time of Kamehameha I, which were
considered unduly burdensome to commerce.

Non-missionary influence in the shaping of law and govenment in Hawaii
before 1840 was brought to bear less perhaps, through direct
presentation of advice than it was through the creation of a situation
which made changes imperative. Captain 
W.B.Finch of the U.S. ship, Vincennes, in 1829, suggested to the king
that in the formulation of laws, it would be well for him to consult all
the foreign residents in which he had confidence. He added:

" Laws of some kind are necessary everywhere, particularly for your
exterior relations; the fewer, and more simple, the better; and the
sooner you set about making an attempt, the sooner, of course, you can
perfect a system. Wise laws are the highest achievements of the human
mind .......I wil only add one other recommendation, which is, the
semi-annual or annual meeting of the great chiefs, for the revision of
your state affairs."

About two years later, General William Miller, an English visitor, spent
several months in Honolulu and before his departure wrote out a
memorandum for the king and chiefs. In this he referred to the growing
commercial importance of the islands and remarked:

" This, therefore, being the natural order of things it can barely be
supposed that foreign nations will permit so important
a source of commerce to be impeded or seriously molested, by capricious
and arbitrary measures of the native rulers,....
If then the natives wish to retain the government of the islands in
their own hands and become a nation, if they are anxious to avoid being
dictated to by any foreign commanding officer tht may be sent to this
station, it seems to be absolutely necessary that they should establish
some defined form of government, and a few fundimental laws that will
afford security for property; and such commercial regulations as will
serve for thier own guidence as well as for that of foreigners; and if
these regulations be liberal, as they ought to be, commerce will
flourish, and all classes of people will be gainers."

The influence of the teaching of the missionaries on the making of laws
as mentioned before, became increasing evident after the visit of Lord
Byron. In the latter part of June, 1825, the chiefs held a meeting in
Honolulu at which " they agreed to patronize instruction, and engaged to
use their influence in extending it throughout the islands --and to
suppress vice, such as drunkeness, debauchery, theft and violation of
the Sabbath." In August they held another meeting and on the twentieth
of that month, Chamberlain recorded that for two or three nights past, a
crier has been sent out to proclaim in the ears of the people an edict
from the chiefs -- the substance of which is --- That the people are not
to play at ulumaita, pahee, puhenehene, cards, and etc., but turn to the
palapala -- and the husbands must not forsake their wives neither wives
their husbands -- nor any be guilty of lewdness-- that the people should
observe the Sabbath and go to meeting."  

The kapu on the various games mentioned was in accord with the teachings
of the missionaries, their objection being, however, not to the games
themselves, but to the gambling inseparably connected with them.

A little later in the same year the chiefs placed a kapu upon the
promiscuous immorality which had sprung up in the ports of Honolulu and
Lahaina due to the presence of dissolute and unprincipled sailors and
other foreigners. The rage of the sailors ( supprted in some cases by
their officers, and having the contenance of at least one United Staes
naval officer ) was directed not so much against the native authorities
as it was against the missionaries, and particularly against Rev.
William Richards at Lahaina and Rev. Hiram Bingham at Honolulu. Riots
and armed demonstrations occurred several times during the years 1825,
1826, and 1627; and the chiefs felt it necessary to relax somewhat the
strict enforcement of law. It must not be supposed that all foreign
sailors and all masters of whaling ships practiced or encouraged
immorality and disrespect for rightful authority. There were many
honorable exceptions; and though one American navel officer ( Lt.John
Percival)
in the spring of 1826 threw the weight of his influence in the wrong
scale, and another ( Capt. Thomas ap Cateby Jones)
in the fall of the same year put his influence on the right side.

Such scenes as those referred to in the preceeding paragraph were not
conducive to orderly progress. The development of a system or code of
laws was further hampered by a division of the chiefs into two factions
which ran to extremes in opposite directions. The larger and more
powerful group favored and at times enforced a strict puritanical
regime; the other favored a liberal regime which in this unstable
community had an incorrigible tendency to run into license and disorder.
In the midst of the contending groups, the king was an  important but
uncertain factor. His natural impulse was to go with the liberal party
and much of the time he followed the impulse. Until after 1835 he could
not be depended upon to support consistantly a conservative and orderly
course. The division among the chiefs did not arise wholly nor perhaps
fundamentally from a difference of view about the character of the laws;
dynastic and family interests and personal ambitions were involved. At
times the peace of the country was threatened by this division, as when
Governor Boki of Oahu in 1829 and his widow in 1831 seemed on the point
of attempting to overthrow Kaahumanu. Foreigners sought to gain
advantage for themselves from the differences among the chiefs and hence
the domestic scene was colored by the traditional quarrel between
traders and missionaries, by the rivalry of British and American
nationals, and after 1827 by the Catholic question.
How the matter worked out in practice can be illustrated by an account
of two meetings of the chiefs which occurred in 1825 and 1827.

In the early part of December, 1825, several of the leading chiefs,
including Kaahumanu and Kalanimoku, were admitted to membership in the
church at Honolulu.Some time before this, the Ten Commandments had been
translated into Hawaiian and it occurred to some of the chiefs that
these would be a proper basis for the new laws of Hawaii. Accordingly,
on December 12, 1825, a meeting of the chiefs was held in Honolulu to
consider this subject. Announcement of the meeting had been made the day
before
( Sunday, at close of church service ), resulting in the attendance of a
group of foreign residents and traders and two or three missionaries in
addition to the chiefs. The meeting may not improperly be looked upon as
a session of the Hawaiian legislature; but a great part of the time was
taken up with a dispute betwen the traders and the missionaries. In
regard to the main business of the meeting, Chamberlain's account is as
follows:

" In the afternoon the chiefs assembled in the rear of Karaimoku's stone
house for the purpose of deliberating upon the adoption of the Ten
Commandments as the foundation of the laws of the land. The foreigners
fearing that something was about to be done that would be to their
disavantage, having concerted together, came up to oppose the adoption
of any measures that should be recommended by the missionaries."

Then followed the dispute between the foreigners and the missionaries,
after which; 

Karaimoku proposed the subject of adopting the The Ten Commandments to
the king and Kaahumanu recommending the adoption himself, he was
supported by Kaahumanu who proposed them to the king --- The king
appeared diffident and unwilling to say anything -- He was addressed by
Boki who took part against the adoption of the law.--- The king finally
said he was afraid of the people, and it would be well to defer the
laws. The subject was therefore dropped and the king left the circle
followed by his armed guards."

Two other eye witnesses, the missionary printer Elisha Loomis and one of
the traders, capt. Dixey Wildes, substantially agree with Chamberlain as
to what hapened. Captain Wildes, however, says the reason for the king's
decision was 
" that they did not know enough yet and must stop a little longer before
they did it." The incident gave rise to a charge that the missionaries
were attempting to have The Ten Commandments enacted into law. It is
fairly certain they did  not do so at this meeting; but there is little
doubt they would have approved such action if the chiefs had taken it.
This is distinctly affirmed in a conversation between Governor Boki and
Messrs. Loomis and Chamberlain about a year later -- a conversation
which also brings into relief a fundimental conflict in theory as to the
location of the law making authority. Boki remarked to the two
missionaries,

" You wished to establish the law -- Mr. Loomis replied no-- the
commandments were translated and if the chiefs had established them we
should have approved it -- Who established them ? he enquired -- Mr.
Loomis answered, the chiefs. He replyed, no that is the king alone,--
Kaahumanu, Kalaimoku and Mr. Bingham wihed to establish them, but that
is not for them to do, it is for the king and for him only. Mr. Loomis
said, we have nothing to do in deciding to whom such business belongs."

The disturbed conditions existing in 1826 and the excitement connected
with the visits of the two American men of war, the Dolphin and the
Peacock, left little time for law making, though it will be remembered
that the sandlewood and tapa tax law was enacted in December, 1826, and
in the same month a treaty
( " articles of agreement " between the United States and Hawaii was
signed. The subject of laws was not forgotten and there is evidence that
the older chiefs were fully determined that a code of laws should be
distinctly and formally established. In the latter part of 1827 the
chiefs summoned by Kaahumanu to consult about this matter of the laws
and certain other things which needed attention. As early as November 3,
Levi Chamberlain learned that one subject for consideration was to be "
the act of Kamehameha in giving up the lands to the protection of Great
Britain," which proved to be intimately connected with the question of
laws. When the chiefs came together in council, they were able, after
considerable conversation, to agree 
( December 7 ) upon five laws, prohibiting murder, theft, rum-selling,
prostitution, and gambling. But before the laws could be proclaimed,
difficulties arose.Boki raised the objection that no laws could be
established until they had been approved by the British government.
Undoubtedly this idea was put into his head by Richard Charlton, the
British consul, with whom he was closely associated. To meet the
objection, Kaahumanu proposed that they draw up a code of laws and send
them to England and summit them to King George. " Let him strike out
such as he pleases and such as he approves let him send back." She
proposed that her brother Kuakini, governor of Hawaii take the laws to
England, but Boki objected again and said, " Let the Consul write to
England."

Kaahumanu replied "do you not know that the consul is a liar and that no
confidence is to be placed in anything that he says."
Kuakini now spoke ... he wished them all to listen as he was about to
say something of importance. He said ....
" If England gives us laws she will send men to see that they are
executed. Our harbors will be filled with ships of war and our vessels
cannot go out or come in without their permission. We shall not be
visited by American ships without leave from Great Britain and we shall
forever be their servants, We shall no more be able to do as we please.
"  These words of Gov. Adams produced a powerful effect. Kaahumanu made
answer that this had been for a long time her opinion.-- Naihe said "
Let us look well before we take a step." The chiefs seemed fully
convinced that it would not do to send to England for laws; but that
they must make them themselves. 

The way was thus cleared for action, but the foreigners brought their
influence to bear against certain of the five laws which had been agreed
upon and a change was made. This was decided to adopt only three laws at
this time, to go into effect in three months ( i.e. in March, 1828 ). 

These three laws were:
 
first, against murder, " the one who commits murder here shall die, by
being hung."
Second, against theft, " the one who steals shall be put in irons."
Third, against adultry, " the one who committs adultry is imprisonment
in irons."

Three other proposed laws were, against rum selling, prostitution, and
gambling. were drawn up, to be explained and taught the people before
they shall be adopted. It was agreed that the chiefs should meet six
months later to continue their consultation upon the subject. The three
laws adopted and the three proposed were printed together on one sheet,
which bears the date December 8, 1827. On December 14, the people were
assembled in a coconut grove near the fort; the three enaced laws were
formally proclaimed, and the king, Kaahumanu, and Boki exhorted the
people, both native and foreign, to obey these three laws which had been
adopted and to give attention to the three which were not yet enacted.

This was the begining of formal legislation by the Hawaiian chiefs. The
contemporary chrniclers considered it a matter of great significance
that they had made a start in this important business. the chiefs met
again in June 1828, but we haveno record of what was accomplished. It is
etimated that Kaahumanu had difficulty in bringing the other chiefs to
task, and one report says they referred the business to David Malo who
declined to take upon himself the responsibility. We have in fact very
little information in regard to the conferences of the chiefs, but we
hear of new laws from time to time and on October 7, 1829, the king, in
a formal proclamation, declared, " The laws of my country prohibit
murder, theft, adultry, fornication, retailing ardent spirits at houses
for selling spirits, amusements on the Sabbath day, gambling and betting
on the Sabbath day and at all times."
A general law relating to marriage, divorce, and adultry had been
enacted and published a few weeks before ( on September 21 ) and this
subject is touched upon in the proclaimation of October 7.

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Continued in part 18.