Historical Collections of The Hawaiian Islands - Part 22 - The Ancients ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/hi/hifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: by Darlen6 E. Kelley November 28, 2006 http://www.genrecords.net/emailregistry/vols/00026.html#0006374 +++++++++++++++++++++++++++++++ Historical Collections of Hawaii Keepers of the Culture Influence of Foreigners on Hawaii Part 22 -- Birth of a Constitutional Governement --- Declaration of Rights and Laws 1839 Liquior Legislation Religious Toleration French Treaty of 1839 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Part 22- Declaration of Rights 1839 These various influences were so far effective that when Richards in 1839 entered the service of Kamehameha III, he was able to write that the king was " designing to make considerable change in the government in favor of the people and especially designed for encourage- ment of industry." During the next year, which was free from foreign troubles, the king and Kuhina-nui, the chiefs and their advisors were able to give serious and sustained attention to the subject of changes in the national polity. The first fruits of their deliberations were the declaration of rights and the laws of 1839. These were published together in a small pamphlet of twenty-four pages bearing the date June 7, 1839. What parts Richards himself had in this work is difficult to determine. In the article published in the Hawaiin Spectator, unsigned but almost certainly written by him, the following account is given of the way which the laws were drafted. "They were written by a graduate, Boaz Mahune of the Lahainaluna Seminuary at the direction of the King, but without any definate instructions as to what he should write. He in the first instance wrote about one third of the present quantity of matter, and that was read to the king and several chiefs, who met and spent two or three hours a day for five days in sucession, in the discussion of the laws, and the various subjects of which they treated. In some particulars the laws were pronounced defective, in others erronous, and the writer was directed to rewrite them, and conform them to the views that had been expressed. This was done, and they were thus considerly enlarged, and then passed a second reading at a meeting of the king and all the important chiefs of the Islands. At this reading a longer time was spent than at the first. They were still pronounced defective, and further additions and corrections were made in the same manner and by the same person as before. Then they passed their third and last reading, after which the king inquired of the chiefs if they aproved, and on their saying, yes, he replied, " I also approve." and then rose and in their presence affixed his name." After quoting the declaration of rights the artcle goes on to say, " The above sentiments [i.e. the declaration ] were not all original with the writer of the laws mentioned above. But the whole of the remainder [i.e. the laws themselves ] is purely the production of his own mind, with only such aid as he received in the discussions afore mentioned." From this we may perhaps conclude that Richards had an important share in the writing of the declaration of rights. Farther on in the same article it is intimated that he took part in the discussion of the laws. The declaration of rights is not inappropriately called the Hawaiian Magna Carta. It was a great and significant concession voluntarily granted by the king to his people. It defined and secured the rights of the people, but it did not furnish a plan or framework of the government. It was repeated, with some amendments, in the constitution of 1840. In its original form it reads as follows: " God hath made of one blood all nations of men, to dwell on the face of the earth in unity and blessedness. God has also bestowed certain rights alike on all men, and all chiefs, and all people of all lands. These are some of the rights which he has given alike to every man and every chief, life, limb, liberty, the labor of his hands, and productions of his mind. God has also established governments and rule for the purposes of peace, but in making laws for a nation it is by no means proper to enact laws for protection of rulers only, without also providing protection for their subjects; neither is it proper to enact laws to enrich the chiefs only, without regard to the enriching of their subjects also; and hereafter, there shall by no means be any law enacted which is inconsistant with what is above expressed, neither shall any tax be assessed, nor any service or labor required of any man in a manner at variance with the above sentiments. These sentiments are hereby proclaimed for the purpose of protecting alike, both the people and the chiefs of all these islands, that no chief may be able to oppress any subject, but that chiefs and people may enjoy the same protection under one ad the same law. Protection is hereby secured to the persons of all the people, together with their lands, their building lots and all their property, and nothing whatever shall be taken from any individual, except by express provision of the laws. Whatever chief shall perservingly act in violation of this constitution, shall no longer remain a chief of the Sandwich Islands, and the same shall be true of the governors, officers, and all land agents." The laws of 1839 were not intended to replace or supercede the laws of 1835; those earlier laws comprised a little criminal code, these of 1839 were somewhat in the nature of a civil code. They were divided into thirteen sections and seven or eight minor divisions . The first section related to the poll tax, the second to the land tax ( or rent ), the third and fourth dealt with fisheries and fishing rights, Section five had to do with the labor tax; it provided that the king ( i.e. the government ) might require of each able-bodied man, with certain specified excetions, three days labor each month, and the landlords three days, but this compulsory labor might be committed by a money payment. Sections six to ten dwelt with a variety of subjects looking to the wefare of the people. Section eleven contained the important provision that the governors must not enact laws for their particular islands without the consent of the national government. Section twelve related to inheritance, providing that all personal property should descend to heirs, and land also if held in small portions. " But those individuals who possess three or more divisions of land can bequeath only two thirds to heirs, ad the other third reverts to the king." Section thirteen provided water for irrigation should be allotted to the different pieces of land in proportion of taxes paid. The minor divisions which followed the thirteen sections were in large part in the nature of advice to chiefs, land agents, and government officers; the last one required an annual meeting of the chiefs in the month of April to enact laws and transact the business of the kingdom. +++++++++++++++ Liquor Legislation and Temperance Movement. In 1838 two liquor laws were enacted, and since this fact had an important bearing on the relations with France from 1839 onward for many years, it seems desirable to give a brief sketch of the temperance movement in the Hawaiian Islands. Alcoholic liquors were introduced into Hawaii by foreigners and they soon acquired an undesirable popularity. The earliest liquor legislation is attributed to Kamehameha I, who is said to have proclaimed a stringent prohibitory law in 1818. In this respect, as in many others, Kamehameha II failed to follow the example of his illustrious sire and durng his brief reign drunkenness became distressingly common throughout the whole kingdom, but especially unrestrained in the principal towns and seaports, Honolulu and Lahaina, where foreigners were most numerous. During the early years of the regency the elder chiefs did something to curb the evil, and about 1826, Governor Hoapili of Maui undertook to stamp it out completely on that island and its dependencies, Lanai and Molokai, with the result that for many years rum-drinking was exceedingly rare in those places. But at Honolulu the evil was not handled in any such rigorous fashion, in spite of the law on the subject, until Kuakini became acting governor of Oahu in 1833. As part of his lapse from the straight and narrow, the latter permitted the opening of grog-shops upon payment of a license fee of forty dollars for each half year. By his time, however, a new influence was coming into play. The temporance movement in the Hawaiian islands closely parallels and nearly synchronizes with the same movement in the United States. It began in 1820's and in the 1830's became a potent force. It took a strong hold on the Hawaiian people and on the masters of whaling ships which visited the islands. It was doubtless the reason for the law against drunkenness which was included in the code of 1835 and was certainly the main cause for the two liquor laws in 1838. On March 13 of the latter year the king published at Lahaina a notice to the "foreigners who keep grog-shops on Oahu" stating at the termination of their current license period ( March 31 ) the number of liquor licenses for Oahu would be reduced. " But two houses only will be left where liquors may be sold, the two houses were billiard tables are now kept, and the other grog-shop are taboo and must not sell no more," under penalty of a fine of two thousand dollars or forfeiture of the house and premises. Just a week later a law regulating the sale of ardent spirits was enacted and proulgated. By this law no restrictions was imposed on the sale of spirits by the barrel or cask, but a license was required for selling at retail. In accordance with the notice issued beforehand, only two licenses were granted, instead of twelve or fourteen as had been the case previously. Several of the foreigners whose liquor licenses were discontinued entered a vigorous and ineffectual protest against the actions of the government, which they denounced as unfair and unjust. During the summer the distillation of spirituous liquors within the kingdom was prohibited, and on August 21, 1838, a law was enacted prohibiting the importation and purchase of distilled liquors after January 1, 1839, and imposing a duty of one dollar per gallon on wines imported after that date. This was the first import duty ever imposed by the Hawiian government. The Hawaiian customs service originated at this time, in the apointment of an inspector of wines who was also the collector of customs for the port of Honolulu. ++++++++++++++++ Religious Toleration After the promulgation of the law of December 18,1837, " rejecting the Catholic religion," the persecution of native Catholics continued for two and a half longer; but on June 17,1839, the king issued orders that punishment should no longer be inflicted on the adherents of that faith. While this was not a repeal of the law of December 18,1837, and, did not necessarily mean the Catholic priests were to be allowed to teach their doctrines, it was ceratinly a long step in that direction; as a radical reversal of national policy, it requires some explanation. Why was such an order issued by the king ? There were various causes which may be noted. The advice of foreign navel officers had been uniformally in favor of religious toleration. In addition to those mentioned before, reference must be made to Captain R. Eliott of H.B.M.S. Fly, at the islands in the fall of 1838, who protested vigorously to Kinau against the persecution of Catholics and emphatically repudiated the idea, put put forward by her in a letter to him, in reply to a question, that the Catholic ceremonies were idolatrous. He also warned her, in reply to a question, that she had not better not expel Father Walsh from the country. In her letter to Captain Elliott, Kinau said, " The [ Protestant] missionaries have likewise explained the subject in the same manner, that we ought not to punish our people on account of religion." And the king only a few months later declared that several of the Protestant missionaries had objected strongly to the persecution of native Catholics, and that Richards after entering the service of the government had " disputed strongly with Kekuanaoa the governor of Oahu, urging the entire abolition of that thing." Another important reason for the change was the death of those chiefs who were the strongest supporters of the anti- Catholic policy. Kinau, considered by the Catholics as their " greatest enemy," whose pertinacity in sticking to her position is clearly illustrated in her correspondence with Captain Eliott, died on April 4, 1839. Six days later, passed away Kaikioewa, a chief who had been most active in opposition to the Catholics. The death of these chiefs removed a serious obstacle to a policy of conciliation. Still another reason. and probably the most effective one, was the fear of reprisals by France. Long before the middle of 1839 the king ad chiefs had good reason to expect a visit from a French warship with no friendly purpose. Early in February news was received in Honolulu of the proceedings of Captain Du Petit-Thouars at Tahiti in August and September, 1838, when he exacted from Queen Pomare a treaty, an apology and a salute to the French flag, and an indemnity of $2,000 for the expulsion of two French Catholic priests some time before. The issue of the Sandwich Island Gazette for February 16,1839, contained the following item: " We are informed by a correspondant in Valparaiso, that two French ships of War will be dispatched for these Islands, to demand the most ample satisaction from the king of Hawaii for the insults and oppression which have of late been extended to the subjects of France by the government of the Sandwich Islands." In the middle of June, news was received of the arrival at Tahiti of " the French frigate destined to these islands to settle the difficulties in regard to the Catholics." It was at this moment that the king issued his order that persecution of native Catholics should cease. The persecuton was not, however, completely discontinued until after the arrival of the French frigate. Captain Laplace arrived at Honolulu July 9, 1839, on the frigate L'Artemise. Having consulted the French consular agent, Jules Dudoit, the captain on the same day addressed to the king an ultimatum, styled a " Manifesto," which reads in part: " Misled by perfidious counsels, deceived by the excessive indulgence of which my country has been given evidence in their favor for several years, they [ the king and chiefs] doubtless do not know how powerful France is, and that there is no power in the world which is capable of preventing her from punishing her enemies; otherwise they would have endeavored to merit her good will, instead of displeasing her as they have done by ill treating the French: ....... in fine, they would have understood that persecuting the Catholic religion, tarnishing it with the name of idolatry, and expelling , under this absurd pretext, the French from this archipelago, was to offer an insult to France and to her sovereign." After stating that it was the intention of France that the king of the Hawaiian islands should be independant, he presented the following demands: 1. That the Catholics worship be declared free, throughout all the dominions subject to the king of the Sandwich Islands; that the members of this religius faith shall enjoy in them all the privileges granted to the Propestants. 2. That a site for a Catholic Church be given by the government at Honolulu, a port frequented by the French, and that this Church be ministered by priests of their nationality. 3. That all Catholics imprisoned on account of religion ... be immediately set at liberty. 4. That the king .... deposit in the hands of the Captain of L'artemise the sum of twenty thousand dollars as a guarentee of his future conduct towards France, which sum that government will restore to him when it shall consider that the accompanying treaty will be faithfully complied with. 5. That the treaty signed by the king .... as well as the sum above mentioned be conveyed on board the frigate L'Artemise by one of the principal chiefs of the country; and also that the batteries of Honolulu salute the French Flag with twenty one guns, which will be returned by the frigate. Finally, Laplace declared that if these demands were rejected by the king, war would immediately commence. In the existing posture of affairs, there could be no serious thought of resistance by the Hawaiian authorities. The king was absent at Lahaina, but the treaty embodying the conditions named was signed on his behalf, July 12, by the kuhina-nui and the governor of Oahu ( afterwards ratified by the king ), the money ( borrowed from local merchants) was taken on board the frigate; and the other stipulations carefully complied with. On the Sunday following, the French Commander came on shore with 120 marines and 60 seamen under arms to attend a military mass which was celebrated by Father Walsh in one of the king's houses. ++++++++++++++++ French Treaty of 1839. Captain Laplace did not consider that he had completed his work until he concluded a convention to protect the personal and commercial interests of his countrymen. Accordingly, he brought forward the draft of such a convention, which the king was induced to sign July 17, 1839. Most of the articles of this convention were unobjectionable; two of them, however, placed distinct limitations upon the king's sovereignty, Article IV. No Frenchman accused of any crime whatever shall be judged otherwise than a jury composed of foreign residents, proposed by the Consul of France and accepted by the government of the Sandwich Islands. Article VI. French merchandise or known to be French procedure, and especially wines and brandies, shall not be prohibited, nor pay a higher duty than 5 per cent. as valorem. It will be seen that the sixth article effectually repealed the liquor law of August 21,1838. This convention was the beginning of a system of unequal treaties which fettered the domestic policy and plagued the foreign relations of the country for years. There was afterwards considerable debate over the question whether threats were made in order to obtain the kings' signature to the convention of July 17; the evidence indicates that the king feared hostilities if he failed to sign the document, but it was not, for that reason, held invalid. The privileges acquired by British and French subjects by virtue of the several treaties and conventions of 1836-1839 left the Americans in an unfavorable position, dependant only on the goodwill of the Hawaiian government and the dubious treaty of1826. the new American agent for commerce and seaman, P.A. Brinsmade himself deeply interested, did not care to leave the rights of Americans hanging by such a slender thread. He therefore addressed a letter to the king, making some inquiry on the subject, to which the king replied: " I have received your letter and now definately inform you that it is my settled plan to allow like privileges to the subjects of all great nations visiting these Sandwich Islands. Wherefore the rights which we promised by treaty to allow to any one nation, they will also be allowed to the subjects of the United States, according to the extent to which they shall be demanded. " ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Continued in part 23.