Historical Collections of The Hawaiian Islands -  Part 18 - The Ancients

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Historical Collections of Hawaii
Keepers of the Culture
Influence of Foreigners on Hawaii
Part 18 -- Law Enforcement [ in the beginning ]
Kaahumanu's Successor
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Part 18. Law Enforcement - In the beginning.


So the Hawaii rulers gropingly made their way through an unfamiliar
field, slowly replacing in part the old kapus and customary laws written
statutes after the matter of foreign lands.That they did not act wisely
at all times, is not strange. In law enforcement and the development of
the machinery of justice te same halting progress is disconcernible. At
first the enforcement of any law depended upon the disposition of the
local chief -- indeed, most of the early laws were in the nature of
local regulations, and it was only slowly that the idea of uniform law
came to be understood. The mixed character of the population, native and
foreign, created complications; the commaon natives, habituated to
represent kapus, submitted without much complaint to any serious
enforcement of whatever laws were laid down, but the foreigners raised a
clamor when some of the laws were enforced against them, particularly
those which touched their pleasures or their profits.  

In the old days as as late as 1824, capital punishment was inflicted at
the will of the king or superior chief and without trial. After 1825,
trial by jury was introduced and the mode of execution was fixed at
hanging. The first case of this kind was in 1826. Chamberlain gives a
detailed account of an execution by hanging in 1828, the gallows having
been erected on the plain between Honolulu and Waikiki. The hanging had
first been set for March 1, but shortly before that date, three chiefs
called on the missionaries to inquire respecting the manner of executing
murderers in civilized countries.
" They were told that the manner of leading the man forth and the order
of execution was not the important subject. That the regularity of his
trial and the certainty of his guilt was the great thing." In view of
this advice a new trail was held before a jury of twelve men ( natives )
nominated by Kaahumanu. Governor Boki thought the prisoner should die,
but the jury would not pronouce the crime, murder, because of some doubt
in their minds as the intention to kill. Nevertheless, sentence of death
was eventually pronounced, for the man was publically hanged on March
18.

Some cases involving foreigners are of interest because they show a
development in procedure. In August,1825, two foreigners in Honolulu got
into an altercation over a woman and one of them fired two shots at each
other. Two days later, the chiefs held a council at which all the
foreigners of the village were invited to be present to decide upon the
case of the two foreigners. ..... They were both sentenced to depart the
islands. The case clearly was one coming under the law of 1822.   

About two years later occurred a case of assault and battery in which a
foreigner, Captain G.W. Gardner, was struck repeatedly by a certain John
Lawler. Gardner applied for redress to Gov. Boki who seemed disinclined
to do anything. Gardner then applied to the American commercial agent
who insisted that the Governor take cognizance of the case. A trial was
held and Lawler was fined $ 200. 
Chamberlain makes the following comment on this case:  " This appears to
be the first case of the kind which has ever been tried in the
islands,and it is worthy of being taken notice of especially as the
court was convened to settle a difficulty between foreigners, which has
heretofore been asserted belonged to foreigners alone to settle. In this
case, it was thought necessary to call upon the gov. of the island and
not only represnt the case to him but to insist in his attending to it.
"

In 1829, three natives stole $ 300 worth of goods from one of the
foreign merchants and the governor requested the foreigners to state to
him what they thought the punishment should be. The foreigners in reply
drew up a petition " praying that measures be taken to secure their
property from depredation, and these men be punished accordingly to
their crime without specifying the exact kind, though they referred to
the punishment inflicted in America and England on the crime of
housebreaking." We have no information as to how the governor disposed
of the case.

In 1831, a daring store robbery was committed by a white man ( Mackey )
and a negro ( Cooper ). Cooper confessed and Mackey was brought to trial
before a jury of five, foreigners apparently. The Governor Kuakini was
the judge and the American cmmercial agent prosecuted the case.  Mackey
was found guilty and sentenced to receive one hundred lashes on his bare
back and to be expelled from the country. The first part of the sentence
was immediately inflicted. He was tied to a cart's tail and dragged
through the streets, receiving at every square a ceratin number of
lashes until he got the whole.

Foreigners frequently complained of failure of the native authorities to
bring criminals to justice, due to either indifference or to the lack of
energy, and there were instances which seemed to justify the complaints.
In the case of a native servant in one of the missionary families, was
brought before the chiefs for repeated thefts. The missionaries brought
him before the chiefs and made a formal complaint. The chiefs censored
the culprit and bade him to restore what he had taken, but the
missionaries doubted that he would do so and whether the chiefs would
take any energetic measure to secure obedience to their commands. In
1834, two natives guilty of mutiny and murder on the high seas two years
earlier were brough to justice only when a British warship came at the
request of the British consul to see that it was done. The case was a
flagrant one and BIngham's  comment on it is worth quoting:

" Strange as the proceedings, from beginning to end, appeared, the
result tended to convince the king and chiefs, that if they had not the
energy and te will to restrain or punish such crime. their were other
powers that could and would do it for them, even if some were determined
to spare the life of the murderer."

It is only fair to say that the case just noted occurred during the
disorder following the death of Kaahunanu. In the
earlier years, the apparent inattention to law enforcement was doubtless
due in part to the absence of officails specifically charged with the
duty of enforcement, such as sheriffs, constables, prosecutors, and
district magistrates. In the early part of 1828, Kaahumanu informed the
missionaries of some steps which had recently been taken in order to
carry the laws into execution by the appontment of
a number of persons to investigate cases and try causes. From Kauai in
the follwing year, we have a report of the appointment by the governor
of the island of five persons " invested with authority at least
equivalent to that of a justice of the peace in America, and nearly
resembling it."

In 1829, the famous " cow case " gave the king and chiefs an oppertunity
to assert positively that the laws of the country applied to foreigners
as well as to the  natives. The circumstances were these. Cattle left to
graze on the plain to the eastward of Honolulu frequently broke into
cultivated enclosures, causing damage for which the poor farmesr could
obtain no redress. At length a trespassing cow was fired upon, made its
escape onto the open plain, was pursued and killed. The cow belonged to
the British consul, who with a companion ( the American commercial agent
) sought out the native who did the shooting, tied his hands, put a rope
about his neck, and started to lead him at rapid pace into the village.
The native, unable to keep up, fell and was dragged some distance before
another native cut the rope. The consul, greatly angered, incited the
English residents to draw up a petition, demanding protection for their
lives and property. The proclamation of October 7, 1829, previously
referred to, was a reply to this petition. It opened wit the statement:
" This is my decision for you: we assent to the request of the Englsih
residents; we grant the protection of the laws; that is the sum of your
petition," After mentioning the things prohibited by the laws, the
proclamation goes on: " If any man shall transgress any of these laws,
he is liable to the penalty, the same for every foreigner and for the
people of these Islands, whosoever shall violate these laws shall be
punished." the king then gives his dicision in the case of the cow in a
menner that would do justice to a modern court of law.

The divison among the chiefs affected law enforcement even more than did
law making.This was particularly true on Oahu, where Boki, leader of the
liberal party was governor. Neither he nor his wife Liliha, who was
acting governess after Boki left the country in December, 1829, made any
serious attempt to enforce the laws which were especially objected to by
the foreign residents, such as the laws against Sabbath descecration,
rum selling, and gambling. They even went further and sanctioned the
traffic in rum by granting licenses to sellers in direct oppostion to
the existing law, This laxity occasioned great dissatisfaction
among the older and higher chiefs, and in the early part of 1831 in a
council at Kailua or Lahaina, they came to the decision, approved by the
king, to remove Liliha from governorship. When a report of this decision
was received by the latter at Honolulu, she made preparations for
resistance and in her attitude of defiance seems to have encourgement
from some of the foreigners in the town. From this rash step she was
dissuaded by her father Hoapili who came down from Lahaina to Oahu for
that special purpose. On the first of April the decision of the king and
chiefs was made known in a public assembly at Honolulu. The island of
Oahu was placed in the keeping of Kaahumanu, who in turn appointed her
brother Kuakini ( the governor of Hawaii ) as acting governor of Oahu.

At the same meeting Kuakini announced clearly his determination to put a
new policy into operation and he proceeded without delay to a vigorous
enforcement of the law. The licensing of grogshops was discontinued and
a strong effort made to suppress the sale of rum and to break up the
gambling houses. Armed guards patrolled the streets and a party of them
entered a house where several foreigners were engaged in a game of
billiards and ordered them to desist. Horses of those who rode out for
pleasure on the Sabbath day were siezed an held  until fines were paid
for their release. The heavy hand of the law came down upon the
foreigner and natives alike. A number of the foreigners, in petition to
the king, entered a vigorous protest against what they temed "
encrochments made on their Liberties, Religion and harmless amusements."
They professed to see in these proceedings the working out of a plan to
drive the foreigners to desparation and induce them to leave the islands
as a means of evading the payment of the debts owed by the government to
the foreigners. " As you exact obedience of us we ask justice of you; we
ask are your laws intended for the residents alone, or for the residents
and natives? " They referred to the failure of the native authorities to
adequately safeguard the property rights of foreigners by punishing
nativeswho committed thefts and other offenses. They declared that good
and wholesome laws which Your Majesty may enact for the regulations of
your subjects and for the preservation of peace and order, the Residents
will always feel in duty bound to repect and obey, but any arbitrary,
unprincipled and unnecessary enactments, infringing on the rights and
liberties of the Residents, they shall feel themselves justified to
remonstrate against.

Though the excesses of the former time were much abated, it proved to be
impossible to maintian fully the puritanical regime contemplated by
Governor Kuakini. This is clearly shown in letters written by the
missionaries some months later. Rev. Hiram Bingham wrote on November 23,
1831:

" It remains to add that the determined supporters of the new game of
billiards continue their support at the biiliard table defended by the
counsuls, and that a number of the interested advocates of retailing
spirits at this port, continue their practice, particularly in retailing
to foreign residents and seamen, though neither are licensed by the
government. The government undertook ........ to break up some of the
Sabbath day amusements of the foreigners, such as fiddling and dancing
and carousing in the town and riding into the country and back. In this
effort they have perhaps been more sucessful than in the other."

Dr. G.P. Judd wrote on September 26,1831, from Honolulu:

" National affairs appear now to be in a very prosperous state as it
respects the native population, good order, peace and faithful obedience
to the laws are observed. But the foreigners cause the chiefs no little
trouble by withstanding and throwing obstacles in the way of the
execution of the laws among them, and some individuals have added
personal insult and threats to their opposition. While on the one hand
they use every art to entangle the chiefs in foolish bargains, and get
away their land, they eagerly catch at every thing which will afford a
pretext however futile on which to ground a complaint to the Engish or
American governments. It appears to us that unless some counter
inteligence is exerted the country will soon become under the government
of a foreign power."

From Kailua, Hawaii, Rev. Artimas  Bishop wrote on November 22 :

" The determined unyielding spirit of opposition manifested by foreign
residents and the numerous ships that touch here, the unwearied pains
that are taken to prejudice all strangers against the rulers, the
heedless manner also in which the government transact their affairs, the
impositions and insults continually heaped upon the chiefs, and their
almost inextricable dbts to the merchants, which give the such a hold
and such boldness over them, seem to indicate a crisis, perhaps a bloody
crisis not far distant ....... Things appear evidently to be tending to
the seizure of the islands by some foreign power. and yet, the king is
still running in debt."

Taking a gneral view of developments during this period, it will be seen
that from 1823 to 1832, that is to say during the regency of Kaahumanu,
there was a distinct progress in law making  ( though some of the laws
enacted were of doubtful wisdom because of their too puritanical
character ) and a general tightening up of law enforcement, cultimating
in the vigorous rule of Governor Kuakini on Oahu. Following the death of
the old regent there was a serious reaction extending over a period of
two or three years.
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Kaahumanu's Successor.

Kaahumanu died June 5, 1832. Next to Kamehameha I, she is certainly the
most imposing figures among the native rulers of Hawaii. A chief of high
rank and autocratic temper, she governed her people, as a contemporary
observer remarked, " with a rod of iron." In her later years her most
striking characteristic was religious zeal; she was the firm friend and
protector of the Protestant missionaries and exerted herself to the time
of her last illness in spreading the Christian gospel. 
It was written by Henry A. Peirce, who was very critical of the
missionaries and of many acts of the native rulers, wrote of Kaahumanu
just after her death:

" She died a Christian. It has always heretofore been my opinion that
her adherence and adoption of the Christian religion was from policy
.......but I have lately been convinced from the piety displayed during
her sickness and at the hour of her death that she really believed in
and practiced the principles of the Christian religion." 

Devotion to religion was coupled with vigoruous support of measures of
reform, even when these ran to unwise extremes. The Catholic
missionaries encountered her relentless opposition, but even recognized
the purity of her intentions and Father Bachelot wrote of her as a 
" woman of much character, a friend of the general good and of order,"
who in her attitude toward Catholicism was simply misled by the
teachings of Protestant  
missionaries.

Her sucessor in the office of Kuhina-nui was Kinau. The latter was a
daughter of Kamehameha I and a half sister of Kauikeaouli but of lower
chiefly rank than the king, her mother having been born of lesser rank
than Keopuolani, the king's mother. She was, however, considerably older
than the king. On July 5, 1832, the two rulers issued a joint
proclamation, or rather, two parallel proclamations. The king on his
side made known that the office held by Kaahumanu now belonged to Kinau.

" I am superior, and my Mother [ meaning Kinau ] subordinate .......She
is my chief Agent ...... We two who have been too young and unacquainted
with the actual transaction of business, now for the first time
undertake dstinctly to regulate our kingdom ....... Ye men of foreign
lands, let not the laws be by you put under your feet. When you are in
your own countries,
there you will observe your own laws."

Kinau on her side declared "that the office which my mother [ meaning
Kaahumanu, though Kaahumanu was not her actual mother ] held intil her
departure, is now mine. All her active duties and her authority are
committed to me. The tabus of the king, and the law of God, are with me,
and also the laws of king ....... My appointment as chief agent is of
long standing, even from our father  [Tamehameha ] ...... This is
another point. I make known to you; according to law or violation of
law, shall be the loss or dispossession of land. We are endeavoring to
make our minds mature."

While it is not explicitly stated in the proclamations, the comtemporary
situation makes it clear that Kinau became not only kuhina-nui but also
regent, Kauikeaouli being as yet only eighteen years of age. This is
true despite the fact that the "Expostion of the Principles on which the
present Dynasty is founded," in the constitution of 1840, implies the
regency terminated with the death of Kaahumanu.

For several months, affairs went on much as before, but about the
begining of 1833, Kauikeaouli became displeased over Kanau's refusal to
sanction the purchase of a brig on which he had set his heart and which
he agreed to buy. Kinau held that the finances of the kingdom were not
in condition to stand this heavy expense. The king's resentment took the
singualar form of throwing off all wholesale restraints and entering
upon a course of intemporance and debauchery which continued with little
interruption for nearly two years. Early in March a crier was sent
through the streets to proclaim the abrogation of all laws except those
relating to murder and theft. The royal example was followed by
thousands in all parts of the kingdom. The hula andother ancient sports
and pastimes were revived and extensively practised, to the
accompaniment of gambling, drunkenness, and other vices indulged in both
natives and foreigners in a strong reaction against the rigorous
puritanical rule which had reached its climax in 1831 and 1832.

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Continued in part 19.