Statewide County HI Archives News.....Wiki Mo’olelo – Part 22 – Hawaiian Land System before 1841. January 5, 2009
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File contributed for use in USGenWeb Archives by:
Darlene E. Kelley donkeyskid@msn.com January 6, 2009, 6:54 pm

Keepers Of The Culture, A Study In Time Of The Hawaiian Islands January 5, 2009

Contributed for use in USGenWeb Archives
By Darlene E. Kelley
donkeyskid@msn.com
January 5, 2009.

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Historical Collections of Hawaii
Keepers of the Culture, A study in time of the Hawaiian Islands.
Wiki Mo’olelo – Part 22 – Hawaiian Land System before 1841.
By Darlene E. Kelley

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Wiki Mo’olelo = Part 22.

HAWAIIAN LAND SYSTEM BEFORE 1841.


In the reign of Kamehameha I, the land system then existing was essentially
feudalistic in character. The land belonged to the conquering king. Long after
the death of Kamehameha I, when at a time when the council of chiefs became very
powerful, it was declared in the constitution of 1840 that, though “ all the
land from one end of the islands to the other “ belonged to Kamehameha, “ it was
not his own private property. It belonged to the chiefs and people in common, of
whom Kamehameha I was the head, and had the management of the landed property.”
In practice, however, it made little difference to such a ruler as Kamehameha I
whether he owned the land outright or merely in a representative capacity; in
either case, he disposed of it as he saw fit, and probably it never occurred to
him to theorize about it. The King retained part of the land for his own
personal use and enjoyment and gave part to the principal chiefs under him; the
chiefs in turn gave land to their retainers and a regular feudal hierarchy was
thereby established. Possession of the land carried with it the right to fish
and opportunity to carry on fishing operations; the right to take water for
domestic and agricultural purposes; and the right to use forest products for
house and canoe building and the making of household utensils. All land, save
that of the King, was held in a revocable tenure and dispossession was in fact
not uncommon; insecurity was an essential feature of the system. When a
landowner died, the land reverted to the King, who did with it as he pleased; it
might be given to the heir of the deceased or it might not.

Closely interwoven with the land system were the matters of taxation and labor.
Each person who receive land owed feudal dues to him from whom he received it.
Both personal service and a portion of the produce of the land. These feudal
dues may be regarded as having a dual character; they were a nature of taxes for
the support of the government and rent for the use of the land. In absence of
definate rules, such a system, in Hawaii as in other parts of the world, at
times operated oppressively upon the lowest order in the fuedal scale, the
tenants who cultivated the soil. Before 1839 the subject was not regulated by
law, but “ each landlord had a right to tax his particular tennants at
pleasure,” as William Richards explained to Lt. Charles Wilkes, commander of the
United States exploring expedition.
“ The consequence of this system was that the common laborers did not themselves
receive probably on a average , more than one third of the avails of their
labors, while the different orders of chiefs received the remaining two thirds.
This great amount taken by the superiors was not the worst feature of this
oppressive system. The remaining one third was not safe. Or rather there was no
distinct dividing line by which the tenant might know and hold his own. If a man
by uncommon industry, brought his farm to a higher state of cultivation than his
neighbor, he was not thereby sure of having more for his own use, and he could
distinctly lay his hand on any article of value and say that was his own. But
not withstanding all the advantages which the superiors enjoyed over their
inferiors, yet favoriteism, jealousy,but more than fickleness of character were
so universal, that no landholder considered himself safe in his possessions, and
therefore even ridiculed the idea of making extensive inprovements. So insecure
did the people feel themselves to be, in possession of their lands, that the
more reflecting class always tried to obtain and often did obtain a small
division under different chiefs, so that when they were dispossessed of one,
they might be saved from starvation by the produce of the other……….. And what
was more, it was usually the case that when a man was dispossessed of hid lands,
he was usually dispossessed of most, if not all of his personal estate which had
either been acquired either directly or indirectly from the lands he had
possessed.”

It is to be observed that the tenants were not serfs tied to the soil; they
could move to some other district if conditions became to hard. Besides the
direct assessments on the property of the people and the labor which they had to
perform for their immediate landlords, the King had the right to call out all
the people to perform any kind of work which he desired to be done, and as
Richards remarked, “ there were no established rules by which labor was
assessed, nor any limit to the amount.”

The almost incessant warfare before 1796 was accompanied by a continuous shift
of ownership, but the long years of peace following the close of Kamehameha’s
wars of conquest gave oppportunity for the pattern of landholding arranged by
him to become permanently established. After the death of Kamehameha I. as the
chiefs became more powerful. Their land holdings were correspondingly less
likely to be distrurbed. In 1825, the same council of chiefs that seated
Kauikeaouli on the throne as Kamehameha III gave its sanction to the principle
of heredity in landholding, thereby strengthening the position of landholding
aristocracy which then existed. The great chiefs by this time, therefore, had
attained comparitive security and permanence in their possession of immense
landed estates. But the same measure of security did not exist for the lower
classes; they were as much subject to the caprice of their overlords as they had
ever been, and contemporary evidence strongly suggests that the lot of the
common people was harder the early years of the reign of Kamehameha III than it
had been during the time of Kamehameha I. The economic and social consequences
of the coming in of foreigners and foreign things also weighed heavily upon the
common people.

In so far as landed property was concerned, foreigners resident on the islands
were in about the same position as the common people. Those who received grants
of land held by them by the same precarious tenure as natives. It is necessary
to emphasize this fact, because the pretensions of foreigners after 1840 tended
to obscure it. The subject of the tenure by which foreigners was shown about
1836 when the question came to head in a determined effort by some foreigners to
gain the right of holding land in fee simple. This effort failed and the British
treaty signed in that year by Lord Edward Russell contained a specific
acknowledgement that 
“ the land …… is property of the King.” The position of the Hawaiian government
was clearly stated in a letter from Kamehameha III to the American Consul, in
which he said that, “ according to the rules in this country at the time that
most of the foreigners came in possession of their building lots, all land
holders both native and foreign held their lots at the will of the chiefs, and
thus it was with all land holders, and the King had the power to dispossess all
the subordinate chiefs. We never knew or heard of any variation from this usage
until Lord Russell was here in the year 1836. Previous to that time all
foreigners as well as natives were subject to the usage, and it had never been
opposed by them.”

Foreigners, however, were naturally, more secure in the possession of personal
property and houses than were the common natives; and protection for such
species of property belonging to the foreigners was pledged by the Hawaiian
authorities in the British treaty of 1836 and the French convention of 1837.

We now come to 1839 and the declaration of rights and the laws which made that
year one of the most memorable in the History of Hawaii. The declaration of
rights contains the statement: “ 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.” The laws of 1839, revised in 1840, were intended
to give force and effect to the principles contained in the declaration and to
regulate the various kinds of taxation, of which there were three: poll tax,
land tax, and labor tax. In the section dealing with the labor tax, the amount
of labor which might be required of any tenant was limited to six days a month,
three for the landlord and three for the King ( i.e. the government ), except
when there was some important public work to be done which was for the benefit
of the people at large; at such times, an additional six days’ labor might be
exacted, and this was required not only of tenants, but also of those natives
who were not tenants. The regular labor tax could be commuted by a payment of
nine dollars a year, half to the landlord and half to the King. It will be seen
that in these laws the two aspects of the old feudal dues 
( tax and rent ) were differentiated, though not very explicity. The portion of
the labor tax rendered the landlord may be regarded as rent; all the rest was a
tax for the support of the government.

The declaration of rights and the laws of 1839 and 1840 were designed to secure
the people in the possession of their lands and all other property and to
prevent the abuses which had been common up to that time. But that object was
not fully accomplished. The Board of Commissioners to quiet land titles in 1846
made the statement that “ neither the law of 1839 nor of 1840 were found
adequate to protect the inferior lord and tenants, for although the violators of
law, of every rank, were liable to its penalty, yet it was so contrary to
ancient usage, to execute the law on the powerful for the protection of the
weak, and the latter often suffered.”
In the period inmmediately after 1839, the tenure by which lands were held was
in the nature of a perpetual lease subject to forfeiture for non payment of
rent, and the amount of rent being regulated by laws in the making of which
people had a voice. We find in 1840 the first admission by the King and chiefs
that the common people had an actual ownership interest, as distinguished from a
mere right of use, in the land of the kingdom. This appears in the statement
previouslyquoted from the constitution of 1840, to the effect that the lands
belonged not to the King as his own private property but “ to chiefs and people in 
Common” of whom the King was the managing head. Whatever may have been the cause
of this admission and whether or not it was an attempt at rationalizing the old
feudal land system or at reconciling that system with the democratic ideas and
influences which were at work in Hawaii, it was of great importance and
furnished the starting point for the theory afterwards formulated by the Land
Commission.

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Next Wiki Mo’olelo = part 23.


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